Unilateral Acts of States in Public International Law 9789004274600, 900427460X, 9789004274617, 9004274618

Table of contents :
Unilateral acts in international law : terminology and evolution ofviews --
Definition of unilateral acts --
Types of unilateral acts of states in public international law --
Validity of unilateral acts --
Individual actions of states regulated by the law of treaties and the notion of unilateral acts of states --
Unilateral acts and territory --
Norms of international law dealing with possible unilateral acts of states pertaining to individuals --
Diplomacy and unilateral acts of states --
Norms connected with the use of force and unilateral acts of states --
Is it possible to create obligations by the means of unilateral declarations? --
The nature and characteristics of unilateral promise --
Legal problems of recognition --
Recognition as a type of legal act --
Is recognition a unilateral act by definition? --
Waiver in public international law --
Protest in international law --
Final conclusions.

Citation preview

Unilateral Acts of States in Public International Law

Queen Mary Studies in International Law Edited by Malgosia Fitzmaurice Phoebe Okowa

volume 22

The titles published in this series are listed at brill.com/qmil

Unilateral Acts of States in Public International Law By

Przemysław Saganek

LEIDEN | BOSTON

Library of Congress Cataloging-in-Publication Data Saganek, Przemyslaw., author.  Unilateral acts of states in public international law / by Przemyslaw Saganek.   pages cm. -- (Queen Mary studies in international law ; volume 22)  Includes bibliographical references and index.  ISBN 978-90-04-27460-0 (hardback : alk. paper) -- ISBN 978-90-04-27461-7 (e-book) 1. Unilateral acts (International law) I. Title.  KZ1262.J87.S34 2016  341.26--dc23 2015035045

This publication has been typeset in the multilingual “Brill” typeface. With over 5,100 characters covering Latin, ipa, Greek, and Cyrillic, this typeface is especially suitable for use in the humanities. For more information, please see www.brill.com/brill-typeface. issn 1877-4822 isbn 978-90-04-27460-0 (hardback) isbn 978-90-04-27461-7 (e-book) Copyright 2016 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper.

Contents List of Abbreviations vii Introduction 1

Part 1 General Theory of Unilateral Acts 1 Unilateral Acts in International Law – Terminology and Evolution of Views 9 2 Definition of Unilateral Acts 34 3 Types of Unilateral Acts of States in Public International Law 86 4 Validity of Unilateral Acts 112

Part 2 Search for Unilateral Acts. Survey of Fields and Topics of International Law Introduction to Part 2 168 5 Individual Actions of States Regulated by the Law of Treaties and the Notion of Unilateral Acts of States 171 6 Unilateral Acts and Territory 216 7 Norms of International Law Dealing with Possible Unilateral Acts of States Pertaining to Individuals 250 8 Diplomacy and Unilateral Acts of States 282 9 Norms Connected with the Use of Force and Unilateral Acts of States  303

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Contents

Part 3 Creation of Obligations by the Means of Unilateral Declarations. The Problem of Unilateral Promises

Introduction to Part 3 336

10

Is it Possible to Create Obligations by the Means of Unilateral Declarations? 338

11

The Nature and Characteristics of Unilateral Promise 378

Part 4 Other Classical Acts 12

Legal Problems of Recognition 441

13

Recognition as a Type of Legal Act 482

14

Is Recognition a Unilateral Act by Definition? 536

15

Waiver in Public International Law 563

16

Protest in International Law 602



Final conclusions 632 Bibliography 641 Index 657

List of Abbreviations a.d.

ajil byil Case W.Res.J.Int.L eez ejil fyil gyil Harvard Int’l L. Club J. icj ilc ilr Int’l L. Stud. Ser. us Naval War Col. IYb.il Jap.ail J. Soc. Comp. Legis. Mich. ybi Legal Stud. nm Nordisk Tidsskrift Int.Ret pcij Pol.Yb. il rcadi rdilc rgdip riaa un unclos unts un ga Yb.ilc vclt

Annual Digest of Public International Law Cases; Annual Digest and Reports of Public Interna­ tional Law Cases American Journal of International Law British Yearbook of International Law Case Western Journal of International Law exclusive economic zone European Journal of International Law The Finnish Yearbook of International Law German Yearbook of International Law Harvard International Law Club Journal International Court of Justice International Law Commission International Law Reports International Law Studies us Naval War College Italian Yearbook of International Law Japanese Annual of International Law Journal of the Society of Comparative Legislation Michigan Yearbook of International Legal Studies Nautical Mile Nordisk Tidsskrift for International Ret Permanent Court of International Justice Polish Yearbook of International Law Recueil de Cours, Academie de Droit International Revue de Droit International et de Législation Comparée Revue Général de Droit International Public Reports of International Arbitral Awards United Nations un Convention on the Law of the Sea United Nations Treaty Series United Nations General Assembly Yearbook. International Law Commission Vienna Convention on the Law of Treaties

Introduction The issue of unilateral acts of states in public international law is one of the most complicated issues in the doctrine of international law. The very attempt to define such acts is a difficult task. For example, the authors of a classical manual of public international law write that transactions other than negotiations and treaties fall generally into the broad category of unilateral acts, i.e. acts performed by a single state, which nevertheless have effects upon the legal position of other states, particularly (but not exclusively) in their relations with the author state.1 Even such a definition, seemingly straightforward and non-controversial, gives rise to several important questions. Is it really so that a unilateral act can be distinguished from negotiations? Must they by definition be performed by a single state only?2 Must they have effects upon the legal position of other states? The task of the present book is to attempt to answer these questions and many similar questions situated within the realm of international law theory, to which the present book is mainly devoted. ‘Unilateral acts of states’ is a group category. It comprises a number of elements, many of which are worthy of treatment in separate books or treatises. The present book is neither their conglomerate nor a summary. It is worth noting that the readiness of international law specialists to discuss this group category is a relatively recent phenomenon. References to it can be found only within the last 120 years. Its path into the annals of international law has been a difficult one, albeit successful in the end. It is not hard to find the reasons for this. Overlooking unilateral acts of states would mean overlooking an important source of international law obligations, and no specialist in international law can accept such a state of affairs. On the other hand, when introduced into the discourse of the doctrine of international law, the group notion starts to take on its own life and presents its own problems. It may even be said that it gives rise to more problems than it resolves. 1 R. Jennings, A. Watts, Oppenheim’s International Law, vol. 1, t. 2, London, New York 1996, pp. 1187–1188. 2 R. Jennings and A. Watts write that a few states may act, but what is decisive is that ‘the act has legal significance quite apart from the response of the addressee’, p. 1187, footnote 1. It would be difficult to present this view as obvious or generally accepted.

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The very notion of a ‘unilateral act of a state in international law’ was introduced by the theory of law. Its actual practice, however, might have managed better or worse without it. In fact unilateral acts performed in several fields of international life have neither benefited from nor lost anything in connection with the introduction of the general notion. I should hasten to add that this does not mean that the topics discussed in this book are devoid of practical importance. It is actually the opposite. The number of practical aspects is very large, and the development of the doctrine of unilateral acts of states is not the construction of a theory devoid of practical significance. Nevertheless it is still building a theory and mainly building a theory. What’s more, the essence of the theory is to describe numerous complicated facts and elements of international life from one basic perspective, i.e. whether they deserve being classified as a unilateral act of a state in international law. The main dilemma of any author writing on unilateral acts of states in public international law is the following: Should one adopt a precise definition of a unilateral act beforehand and then identify types of such acts? Or perhaps one should first compile a list of such types and then construct a precise definition on the basis of it? In my opinion, neither approach is satisfactory. A third approach seems better suited to resolving the dilemma, to wit: both the types of acts and their precise definition should be searched for rather than taken for granted. Of course, such an approach presupposes the adoption of a provisional definition, or at least an idea of a unilateral act. Such provisional definitions could, however, be modified as a result of further analyses. In fact, borrowing both the definition and the catalogue of types of unilateral acts as a starting point presents no problem. They are both the subject of numerous works. Even if the majority of them are short references in manuals of public international law, their authors are frequently very precise on both topics (i.e., both the definition and the list of such acts). The most frequently adopted definition presents unilateral acts in public international law as a subcategory of legal transactions (acte juridique, Rechtsgeschäft), and the most frequently adopted catalogues of types of unilateral acts include notification, waiver, recognition and protest. Nowadays notification is usually replaced by ‘promise’. These can be called ‘classical unilateral acts’. From the outset I excluded the idea of writing a book limited, a priori, to classical unilateral acts alone. If a standard book on unilateral acts of states in public international law is deemed to be a description of classical acts and an attempt to find their common characteristics, the present book deliberately deviates from that standard. Its adoption would be the antithesis of a valuable theoretical analysis. The task of theory is to ask difficult questions rather than to avoid them. This relates especially to asking questions about the essence of a

INTRODUCTION

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topic under analysis. The notion of unilateral acts of states in public international law should be subjected to such questioning. Its abstract dimension refers to definition, while its more practical dimension refers to types of actions which should, or should not, be qualified as unilateral acts of states in public international law. It is worthwhile to confront this notion (in its both dimensions) with several types of acts (transactions, behaviours) which are regulated by international law and discussed in its manuals. This is the task of Parts 1 and 2 of the present book. Part 1 discusses the very understanding of unilateral acts. It covers the notion of a unilateral act (Chapter 1), the definition of unilateral acts of states in public international law (Chapter 2), types of unilateral acts (Chapter 3) and the grounds for their invalidity (Chapter 4). Part 2 is devoted to searching for unilateral acts in several branches of international law, i.e. in diplomatic law, rules connected with individuals, rules connected with territory, and rules connected with military conflicts. Paradoxically enough, the first area researched in Part 2 is the law of treaties, which might at first glance seem to be the most likely candidate for omission entirely, inasmuch as a treaty would seem to be the antithesis of a unilateral act. However, many acts connected with treaties are performed individually by a single state. They are designated as unilateral and deserve attention in any monograph of unilateral acts of states. The analysis of this field reveals a lot of paradoxes, or apparent paradoxes, connected with the very notion of a unilateral act, as well as unilateralism in general. Parts 3 and 4 are connected with the classical unilateral acts, i.e. promise, recognition, waiver and protest. The basic question is whether they are unilateral acts by definition, or only could be unilateral. Unilateral promise occupies a special position in this respect, as it is the only act which is unilateral by definition. Its legal force has been in doubt until recently, however. Nowadays it is the main point of reference of international case-law dealing with unilateral acts. It is also worth noting that the necessity to differentiate between binding and non-binding acts is most acute with respect to unilateral declarations. Sometimes one may gain the impression that the binding force of unilateral promises is the very essence of the discussion on unilateral acts of states in public international law. Although this thesis is not adopted in this book, it is nevertheless obvious that promise requires special treatment. Hence the entirety of Part 3 is devoted to unilateral promises. The other classical acts, i.e. recognition, waiver and protest, are discussed in Part 4. In this respect the main challenge was how to include ‘recognition’ within the narrow limits of a book on unilateral acts of states. Recognition is manifestly the most mysterious of unilateral acts and the subject of a vast literature. On the other hand, waiver is the subject of few publications, even

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though it touches upon several points that are crucial to the general theory of international law. The structure of the book is perhaps not neutral with respect to its content and final conclusions. Hence it may be useful at this point to address possible future criticism of its structure. In this regard comparisons with other works on the topic are inevitable. Three monographs of unilateral acts of states which were accessible at the time of preparation of the present book deserve special attention.3 The first is a 1936 work in German, written by a Swiss author – F. Pfluger.4 Two others – written after ww ii – were published in Italian (by G. Biscottini)5 and French (by E. Suy).6 The monographs of F. Pfluger and E. Suy will be the main points of reference. What they have in common is their division into two parts – a general part and a specific one, the latter describing one-by-one several types of unilateral acts (exclusively or almost exclusively classical ones). So a typical (if that word can be used at all taking into consideration the small number of these monographs) monograph of unilateral acts is a kind of hybrid. Let us consider here an attempt to transpose that type of structure to a book on treaties. It would have to consist of a short common part and detailed comparative analyses of different kinds of treaties (dealing with war, diplomacy, economy, environmental protection, etc.). Such comparisons are however very risky with respect to unilateral acts. The differences between the several types of ‘classical’ unilateral acts are so large that there is no possibility to avoid separate descriptions of these several types of acts. Hence it is worthwhile looking at the proportions between the different parts, i.e. the proportion between the general part and the analyses of several types of acts, and proportion among the various parts devoted to the various types of acts. I can imagine an argument along the following lines: If the present work does not treat the catalogue of classical acts as binding, then they have too much influence and occupy too much space in the structure of the work. In response I would point out that their position in the world-wide discussion on unilateral acts of states is nevertheless an objective fact. Indeed one of the aims of the present book is to determine whether they deserve that position. 3 Since then several new books on unilateral acts of states have been published. They include: A. Martínez Puñal, Actos unilaterales, promesa, silencio y nomogénesis en el derecho internacional, Santiago de Compostela 2011; M.I. Torres Cazorla, Los actos unilaterales de los Estados, Madrid 2010. Last but not least it is worthwhile to mention: Ch. Eckart, Promises of States under International Law, Oxford and Portland 2012. Inasmuch as they appeared after the construction of the first version of the present book, they did not influence its structure. 4 F. Pfluger, Die einseitigen Rechtsgeschäfte im Völkerrecht, Zürich 1936. 5 G. Biscottini, Contributo alla teoria degli atti unilaterali nel diritto internazionale, Milano 1951. 6 E. Suy, Les actes juridiques unilatéraux en droit international public, Paris 1962.

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In order to make that determination one has to carefully examine their definitions, forms, properties, and so on. Another fact which deserves mention in this introduction is that the notion of unilateral acts of states in public international law is also the topic of works of the International Law Commission (ilc). During its 48th session the ilc identified that subject as an area in which the codification and development of international law is useful.7 In resolution 51/160 of 16 December 1996 the un General Assembly urged the ilc to continue its work in that area. In 1997 the ilc established a working group for unilateral acts of states, under the chairmanship of E. Candioti. V. Rodríguez-Cedeño was nominated as special rapporteur for the topic. On 5 March 1998 he presented the first report on the topic of unilateral acts of states.8 In subsequent years he presented his other reports – the last one (9th report) being issued in 2006. In the reports he presented his analyses and conclusions dealing with unilateral acts in general. His reports also contain observations concerning several types of acts. One can find remarks in some reports concerning concrete documents taken from the state practice(s). Last but not least, the special rapporteur started relatively soon to present draft articles on unilateral acts of states. In the last – 9th report – he switched from articles to draft principles. In 2006 the ilc decided to adopt non-binding “Guiding principles”.9 They cover, however, only a small fraction of the problems connected with unilateral acts of states, even of the ones presented in the reports of the special rapporteur. It is difficult to perceive these “Guiding principles” as a success. On the contrary, they were rather a failure.10 This then is another argument for a thorough analysis of the topic of unilateral acts. It can also be interpreted as a kind of warning how important the question of definition of unilateral acts of states really is. Any attempt to codify such acts without really deep theoretical background has small chances for success. The reports of the special rapporteur, his draft articles and draft principles, as well as the ilc’s “Guiding principles” will be invoked in many places in this book. General references to the ‘special rapporteur’ mean V. Rodríguez-Cedeño, and general references to ‘reports’ refer to his reports on unilateral acts of 7 8 9 10

Official Records of the General Assembly, Fifty-first Session, Supplement No. 10 (A/51/10). Citation on the basis of the first report, p. 3. A/CN.4/486 (First report on unilateral acts of States). ilc Fiftieth session, Geneva, 20 April–12 June 1998. Text of the “Guiding principles” accessible in the document A/CN.4/L.703 of 20 July 2006. For a very valuable and very critical commentary on them, see: Ch. Eckart, op. cit., pp. 183–194.

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states, unless expressly provided otherwise. The official codes of the these reports as un documents are indicated in the bibliography. Translations of works in languages other than English were prepared by me, unless expressly indicated otherwise. This work would not have been come to fruition without the invaluable assistance of many people and institutions. Now is a good opportunity to thank them. The first (Polish) version of the book11 was prepared under a grant of the Polish Ministry of Science and Informatics. Current edition (amended and updated) was financed from sources of the Polish National Centre for Science (ncn) (UMO-2014/13/B/HS5/01490). I would also like to thank prof. W. Czaplinski for all his comments and insights concerning the book. The help he gave me – as a friend, the supervisor of my Ph.D. thesis, and as the director of the Institute of the Law Studies of the Polish Academy of Sciences, has been invaluable in my work on this book. I also owe special gratitude to Dr E. Mikos-Skuza, who read the chapter on acts connected with war. I would like to give my thank to dr. James Hartzell for his help with the approximation of the style of the present book to classical English. It goes without saying that I take full responsibility for any defects in the book, as the end product is mine. I also want to express my thanks for the assistance in the collection of materials given to me by Prof. W. Scholz, Prof. M. Muszyński, Dr R. Henczel, Dr S. Dębski, Dr Marcin Kałduński, Prof. M. Kowalski, Prof. B. Krzan, and Mr. Szymon Zaręba. The preparation of the book would have been impossible without the help of foreign libraries. I would like to thank Prof. S. Hobe from the University of Köln and his assistant Mr. J. Grieben for giving me the possibility to use the libraries of that University. My two-month stay at the Max-Planck Institute in Heidelberg also provided great input for this work. I would like to express my extreme gratitude to the directors of the Institute, Prof. A. von Bogdandy, Prof. R. Wolfrum and Prof. J. Frowein, for giving me access to the very rich library of the Institute and offering valuable assistance in helping me find what I needed.

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P. Saganek, Akty jednostronne państw w prawie międzynarodowym, Warszawa 2010.

Part 1 General Theory of Unilateral Acts

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chapter 1

Unilateral Acts in International Law – Terminology and Evolution of Views 1.1

Introductory Remarks

W. Fiedler writes that attempts to reach a general definition of unilateral acts of states in public international law by way of abstraction have failed because of versatility of the various categories that need to be summarised under a common heading.1 All the same those attempts and definitions, presented within the framework in which they were given, will be referred to several times herein. Certainly, the most intuitive definition would suggest that a unilateral act is an act performed by one party (or even one person). In fact the topic of the present book is much more narrow as concerns only acts of states. Secondly, it only covers acts important from the point of view of public international law. The very choice of terminology is, however, quite risky. Too much depends on it. One can hardly avoid the feeling that a slight change of a leading term could result in a fundamental change of the definition, scope of items covered, and detailed conclusions. This is easy to see it if one examines the different terminology which can be found in the discussion on unilateral acts of states in public international law. For example, are ‘acts of states in public international law’ synonymous with ‘acts of states adopted on the basis of public international law’? What about their relationship to ‘legal acts of states connected with public international law’ or ‘legal acts of states regulated by public international law’? Last but not least, what is the relationship of all those notions to the notion of ‘transactions of public international law’? These questions may be treated as the tip of an iceberg. But they help explain why Chapter 2 is aimed at working out an optimal definition of such acts, while the present chapter concentrates first of all on the terminology only. 1 W. Fiedler, Unilateral Acts in International Law, in: R. Bernhardt (ed.), Encyclopedia of Public International Law, vol. 4, Amsterdam, London, New York, Oxford, Paris, Shannon, Tokyo 2000, p. 1018.

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1.2 Terminology The diversity of terminology used with respect to unilateral acts can be considered as obvious if one takes into consideration the fact that discussions concerning international law are held in different languages. But even authors writing in the same language have a tendency to use different terms. So for example, the author of the first monograph on unilateral acts uses the term einseitige Völkerrechtsgeschäfte.2 A. Verdross and B. Simma write about einseitigen Rechtsakten.3 On the other hand, the German version of a manual by Y. Takano uses two terms: einseitige völkerrechtliche Handlung and Allein­ handlungen.4 The first notion – einseitige völkerrechtliche Handlung – is also used by O. Kimminich,5 while M. Geistlinger6 and H.F. Köck7 write about ein­ seitige Rechtsgeschäfte. The author of the second monograph on unilateral acts – G. Biscottini,8 uses the term atti unilaterali nel diritto internaziolane, which seems to be reflected verbatim in several languages – including English and Polish. It is worthy of mention that E. Suy, author of the most influential monograph, regretted that while the Germans were able to differentiate among Rechtshandl­ ungen, Rechtsakte and Rechtsgeschäfte, the French doctrine had at its disposal only the term actes juridiques. Suy consequently uses the term acte juridique unilateral.9 2 F. Pfluger, Die einseitigen Rechtsgeschäfte im Völkerrecht, Zürich 1936, p. 28. 3 A. Verdross, B. Simma, Universelles Völkerrecht. Theorie und Praxis, Berlin 1984, p. 425. See also: J.P. Müller, L. Wildhaber, Praxis des Völkerrechts, Bern 2001, p. 71; G. Dahm, Völkerrecht, 2. völlig neu bearbeitete Auflage von: J. Delbrück, R. Wolfrum, Berlin 2002, Band i/3, pp. 764–773. 4 Y. Takano, Einfuhrung in das Volkerrecht, Band 2, Köln, Bonn, München 1984, p. 4. 5 O. Kimminich, Einführung in das Völkerrecht, Pullach bei München 1975, p. 265. 6 M. Geistlinger, Zur Beendigung selbständiger einseitiger Rechtsgeschäfte unter besonderer Berücksichtigung der Neutralitätsnotifikation Österreichs, in: B. Simma, C. Schulte, (Hrsg.), Völker- und Europarecht in der aktuellen Diskussion. Akten des 23. Österreichischen Völker­ rechtstages, Wien 1999, p. 75ff. 7 H.F. Köck, Die Beendigung einseitiger Rechtsgeschäfte, w: B. Simma, C. Schulte, (Hrsg.), Völker- und Europarecht in der aktuellen Diskussion. Akten des 23. Österreichischen Völkerrechtstages, Wien 1999, p. 89. 8 G. Biscottini, Contributo alla teoria degli atti unilaterali nel diritto internazionale, Milano 1951. 9 For the same view, see also: F. Rigaldies, Contribution à l’étude de l’acte juridique unilatéral en droit international public, La Revue Juridique Thémis, 1980–81, vol. 15, Nr 2, p. 417ff.; J. Dehaussy, Les actes juridiques unilatéraux en droit international public: à propos d’une théorie restrictive, Journal de Droit International, 1/1965, p. 41ff.; J. Spiropoulos, Traité théorique et pratique du droit international public, Paris 1933, p. 231; P. Guggenheim, Traité de Droit international public. Avec mention de la pratique internationale et suisse, t. i, Genève 1953, p. 147. It is worthwhile to note that E. Suy, in using this term, notes at the beginning that it should be understood as synonymous with Rechtsgeschäfte and negozi giuridici, i.e. terms used in two

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Other French works – both earlier ones10 as well as later ones,11 use the term actes unilatéraux. Their connection with international law is rather presumed. Works in English refer generally to ‘unilateral acts’ or ‘unilateral acts of states’.12 The latter term – ‘unilateral acts of states’ – was used in the reports of the special rapporteur of the ilc. However, when he commenced in his second report to prepare the text of draft articles, he used the term ‘international legal acts.’13 W. Fiedler also writes about ‘unilateral acts of states in international law’.14 J.-P. Jacqué is completely right however when he sarcastically writes, that the very concept of act (d’acte) is still alien to the Anglo-Saxon doctrine; it is symptomatic that it is even difficult to find an English equivalent, while the terms ‘juridical act’ or ‘legal act’ have sense only for the translator, who is just using them.15 The Polish doctrine uses generally the term ‘akty jednostronne państw’16 which can be translated verbatim as ‘unilateral acts of states’. One cannot overlook the fact that there are fundamental differences between the terms ‘act’ and ‘legal transaction’ (no matter whether understood as Rechtsgeschäft or Rechtshandlung). As will be shown, such differences 10

11

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13 14 15 16

earlier monographs. See: E. Suy, Les actes juridiques unilatéraux en droit international public, Paris 1962, p. 2. G. Scelle, Manuel de droit international public, Paris, 1948, p. 12, P. Reuter, Principes de droit international public, rcadi, 1961, ii, pp. 574–577; A.-Ch. Kiss, Les actes unilatéraux dans la pratique française du droit international, rgdip, 1961, pp. 317–331. See: R. Quadri, Cours général de droit international public, rcadi iii 1964, p. 361, P. Vellas, Droit international public. Institutions internationales, Paris 1970, p. 202 et. seq.; F. Villagrán Kramer, Les actes unilatéraux dans le cadre de la jurisprudence internationale, in: International Law on the Eve of the Twenty-first Century. Views from the International Law Commission, un New York 1997, pp. 137–161, A. Pellet, Droit international public, Paris 1981, p. 26. See: G. Schwarzenberger, International Law, London 1949, vol.1, p. 224ff.; A. Cassese, International Law, Oxford 2005, pp. 184–185, K. Skubiszewski, Unilateral Acts of States, in: M. Bedjaoui (ed.), International Law: Achievements and Prospects, Paris 1991, p. 221 et. seq., E. Suy, Some unfinished new thoughts on unilateral acts of states as a source of international law, Journal for Juridical Science – Tydskrif vir Regswetenskap 3/2001, p. 1; V.-D. Degan, Sources of International Law, the Hague, Boston, London 1997, p. 253 et.seq. Second report, p. 4, par. 18. See also: p. 8, par. 38. W. Fiedler, Encyclopedia…, 2000, vol. 4, pp. 1018 et. seq. J.-P. Jacqué, Acte et norme en droit international public, rcadi, 1991, ii, t. 227, p. 367. R. Bierzanek, J. Symonides, Prawo międzynarodowe publiczne, Warszawa 1994, p. 100.

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influence the scope of elements included into discussions on unilateral acts of states and those excluded from that scope. This fact should not be forgotten, although neither should it be overestimated. Though the term ‘act’ is relatively wide, the authors writing on unilateral acts of states in public international law limit the scope of their interest to acts connected with international law. Thus their statements are much more comparable to each other than would be suggested by the very wording of the basic terms they use. It should be noted however that the requirements for the draft articles prepared by the ilc were much more stringent, which was one of the reasons for the failure of the ilc in its codification efforts. There is no doubt that two words are of crucial importance for the topic. The first is the word ‘act’, the second is the word ‘unilateral’. It therefore seems useful to examine how they are understood in the case-law of international courts. 1.3

The Understanding of the Notion ‘Act’ in Public International Law

The word ‘act’ is a common part of everyday English. It is both a verb and a noun. The Oxford Online Dictionary gives five basic meanings of the verb ‘to act’.17 They are: 1. 2. 3. 4. 5.

‘Take action; do something’ ‘Behave in the way specified’ ‘Fulfil the function or serve the purpose of’ ‘Take effect; have a particular effect’ ‘Perform a role in a play, film, or television’

Each of those basic meanings has a set of more specific applications and modifications. The same dictionary gives four main definitions of the noun ‘an act’. Leaving aside the one which is evidently outside the scope of interest of the present book (i.e. an ‘act’ as ‘a main division of a play, ballet, or opera’), three meanings remain. They are: 1. 2. 3.

‘A thing done; a deed’ ‘A pretence’ ‘A written law passed by Parliament, Congress, etc.’

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http://www.oxforddictionaries.com/definition/english/act?searchDictCode=all consulted on 9 February 2015. All the meanings cited are taken verbatim from this page.

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The first of those meanings is the widest. It allows the word ‘act’ to encompass everything that is done, effected, performed, executed and so on. What’s more, a lack of action may also be deemed an ‘act’. It is no wonder then that the word ‘act’ is frequently used in the legal terminology, as well as the terminology of international relations. In this sense one can speak about legal and political acts, acts of states or international organizations, and unilateral, bilateral or multilateral acts. In this context it is difficult to draw a clear distinction between and ‘act’ as a synonym for ‘activity’ on the one hand, and an ‘act’ as a synonym of ‘transaction’ on the other. The first meaning is evidently at stake when one speaks of illegal acts, acts of barbarism, acts of war, unfriendly acts, etc. The second meaning is of special importance in the field of civil law. Can, for example, a contract be called an act? In Polish the preference would be evidently for some other name, which would be rather translated as a legal transaction. This indicates that what is a stake here is a linguistic custom more than anything else. There is no problem in viewing transactions as a subcategory of acts. This very meaning can, but does not have to be, associated with acts understood as documents. In Polish the term ‘act’ is the name used to identify documents produced by public notary lawyers, whose documents, called ‘notaries’ acts’, are legally binding and directly enforceable in the courts. The term ‘acts’ can also be used with respect to decisions of the legislator, executive or the judiciary, i.e. ‘acts of Parliament’ or ‘administrative acts’. And while there is no special requirement that the term be used with respect to Court judgments, there would be no problem with justifying such a use, if necessary. In fact, the very term ‘act’ is very useful to refer to all judicial activities, not only those taking the form of a judgment (e.g. a positive decision to hear a case, nomination of judges for a given case, adjournment of proceedings, and so on). The best illustration of the wide meaning of the term is visible in the caselaw of the Permanent Court of International Justice (pcij) and the International Court of Justice (icj). For example in the case of the Mavrommatis Palestine Concession the pcij stated that: It is an elementary principle of international law that a State is entitled to protect its subjects, when injured by acts contrary to international law committed by another State, from whom they have been unable to obtain satisfaction through the ordinary channels.18

18

pcij Publications, Series A, No 2, p. 12.

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In the advisory opinion on certain questions relating to settlers of German origin in the territory ceded by Germany to Poland, the pcij ruled that the main object of the Minorities Treaty was to assure respect for the rights of Minorities and to prevent discrimination against them by any act whatsoever of the Polish State.19 In Advisory Opinion no 17 on Greco-Bulgarian communities, the pcij referred to ‘acts of violence’ which were (in addition to wars) the reason for emigration.20 These are not the only contexts in which one can find the word ‘act’. In the above-mentioned case of the Mavrommatis Palestine Concessions the pcij, when analysing the notion ‘control’ stated that the word ‘control’, in the sense in which it is generally used, cannot be employed to describe practically all acts of public authority; “control” always means measures of a special character in connection with an economic policy consisting in subordinating, in one way or another, a private enterprise to public authority.21 Hence there is no doubt about the very wide meaning of the term ‘act’. The famous Lotus case mentions several measures which form part of criminal proceedings, such as placing the accused on trial, his/her arrest, detention pending trial, or the judgment given by the criminal court.22 Interestingly, the English version refers to them as ‘steps’, while the French text uses the term ‘actes’. In the Advisory Opinion on certain questions relating to settlers of German origin in the territory ceded by Germany to Poland, the pcij referred to legislative acts of a state (in this case the Prussian laws on real property).23 In its Advisory Opinion No 18 concerning the Free City of Danzig and the Inter­ national Labour Organization, the pcij deemed as ‘acts’ the ratification of a draft convention or the filing of a complaint against another Member State for failure to observe the provisions of a convention.24 19 20 21 22 23 24

pcij Publications, Series B, No 6, p. 25. pcij Publications, Series B, No 17, p. 20. pcij Publications, Series A, No 2, p. 20. pcij Publications, Series A, No 10, p. 12. pcij Publications, Series B, No 6, p. 24. pcij Publications, Series B, No 18, p. 15.

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The notion ‘act’ was also used in Art. 88 of the Treaty of Saint-Germain. It provided that The independence of Austria is inalienable otherwise than with the consent of the Council of the League of Nations. Consequently, Austria under­takes in the absence of the consent of the said Council to abstain from any act which might directly or indirectly or by any means whatever compromise her independence, particularly, and until her admission to membership of the League of Nations, by participation in the affairs of another Power.25 In the Advisory Opinion on the customs regime between Germany and Austria, the pcij ruled that “alienation”, as mentioned in Article 88, must be understood as any voluntary act by the Austrian State which would cause it to lose its independence or which would modify its independence in that its sovereign will would be subordinated to the will of another Power or particular group of Powers, or would even be replaced by such will. Further, since the signatory Powers to the Treaty of Saint-Germain other than Austria have in Article 88 approved this inalienability by Austria of her independence, they are themselves clearly bound not to participate in acts involving alienation.26 In the Advisory Opinion on the treatment of Polish nationals and other persons of Polish origin or speech in the Danzig territory, the pcij ruled that that the question whether, in a given case, an act or failure to act constitutes a breach of the provisions of Article 33, paragraph 1, of the Convention of Paris is essentially a question of fact to be decided on the merits of each case.27 Also ‘acts’ mentioned in the judgment in the case of interpretation of the Statute of the Memel Territory (preliminary objection) should be treated as encompassing activities or behaviours.28 The notion ‘act’ is equally correct to refer to several procedural steps taken before international courts. So in the case of the free zones of Upper Savoy and the district of Gex, the pcij referred to 25 26 27 28

Cited on the basis of the pcij Advisory Opinion on the Customs Regime between Germany and Austria; pcij Publications, series A/B, No 41, p. 42. Ibidem, p. 46. pcij Publications, series A/B, No 44, p. 43. pcij Publications, series A/B, No 47, pp. 245 and 248.

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dates for the completion of the various acts of the written procedure in the case.29 In the case of the monetary gold removed from Rome, the icj deemed the adoption of the Washington Statement by three states (the usa, the uk and France), the deposit of the declaration of acceptance of the jurisdiction of the Court by Italy, and the filing of the application to constitute ‘separate and successive acts’.30 Also in the judgment concerning the Peter Pázmány University the pcij ruled that no special act of acquisition by the successor State was necessary for it to take over the property of its predecessor.31 In the judgment on preliminary objections in the Corfu Channel case, the icj ruled that Furthermore, there is nothing to prevent the acceptance of jurisdiction, as in the present case, from being effected by two separate and successive acts, instead of jointly and beforehand by a special agreement.32 One of the questions formulated to the icj in the special agreement concluded by the uk and Albania after this judgment was the following: (2) Has the United Kingdom under international law violated the sovereignty of the Albanian People’s Republic by reason of the acts of the Royal Navy in Albanian waters on the 22nd October and on the 12th and 13th November 1946 and is there any duty to give satisfaction?33 The icj responded in the negative, also using the same term ‘acts’.34 A few pages later it used another term – The Court recognizes that the Albanian Government’s complete failure to carry out its duties after the explosions, and the dilatory nature of its

29 30 31 32 33 34

pcij Publications, series A/B, No 46, p. 100. i.c.j. Reports 1954, p. 31. pcij Publications, series A/B, No 61, p. 237. Corfu Channel case, Judgment on Preliminary Objection: i.c.j. Reports 1948, p. 15, at p. 28. Corfu Channel case, Judgment of April 9th, 1949: i.c.j. Reports 1949, p. 4; at p. 6. Ibidem, at p. 32.

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diplomatic notes, are extenuating circumstances for the action of the United Kingdom Government. (emphasis added)35 Referring to the placing of mines in the Corfu Channel and possible participation of then-Yugoslavia in this enterprise, the icj ruled that It is clear that the existence of a treaty, such as that of July 9th, 1946, however close may be the bonds uniting its signatories, in no way leads to the conclusion that they participated in a criminal act.36 It also stated that It is true, as international practice shows, that a State on whose territory or in whose waters an act contrary to international law has occurred, may be called upon to give an explanation.37 The very term ‘act’ is present in many other judgments.38 They can only lead to the conclusion that any state activity could be qualified as an act. It could be legal or illegal, regulated or non-regulated, formal or informal, extended over time to a greater or smaller degree. In conclusion it can be seen that the very word ‘act’ cannot in and of itself be expected to be particularly useful in order to limit the scope of the topic of the present book. 1.4

Doctrine of Act of State and the Topic of the Present Work

The question underlying the present subchapter (namely, whether the term ‘act’, as contemplated by the doctrine of act of state, encompasses a unilateral act of a state) could be asked with respect to every context of the use of the word ‘act’ mentioned in the previous subchapter. Such an analysis will be undertaken in Chapter 3 and in Part 2 of the present book. However, by means of exception reference to the doctrine of act of state will be undertaken briefly here. 35 36 37 38

Ibidem, at p. 35. Ibidem, at p. 17. Ibidem, at p. 18. Case concerning the Northern Cameroons (Cameroon v. United Kingdom), Preliminary Objections, Judgment of 2 December 1963: i.c.j. Reports 1963, p. 15, at pages 29, 35, 37; South West Africa, Second Phase, Judgment, i.c.j. Reports 1966, p. 6, at p. 11.

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A few words must be said on the doctrine itself. R. Jennings and A. Watts convey its essence in the words: This is to the effect that courts of one state do not, as a rule, question the validity or legality of the official acts of another sovereign state or the official or officially avowed acts of its agents, at any rate insofar as those acts involve the exercise of the state’s public authority, purport to take effect within the latter’s own jurisdiction and are not in themselves contrary to international law.39 This principle is associated with the rulings of the Supreme Court of the usa in the cases Underhill v. Hernandez of 189740 and Banco Nacional de Cuba v. Sabbatino of 1964.41 The relevant fragment of the former reads: Every sovereign State is bound to respect the independence of every other sovereign State, and the courts of one country will not sit in judgment on the acts of the government of another done within its own territory. Redress of grievances by reason of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves.42 I. Brownlie stresses that such a doctrine is not a principle of international law.43 It is also underscored that the doctrine has a limited geographical scope.44 39

40 41

42 43 44

R. Jennings, A. Watts, op. cit., pp. 365–366. Sometimes the essence of the doctrine is presented so that claims may not be made against individuals but against the state which ordered them to issue an act or which accepted such an act; see: H.T. Kingsbury, The “Act of State” Doctrine, ajil, 1910, pp. 359–372. The latter author regards the doctrine as a part of domestic law. See ibidem, p. 359. M. Zander, The Act of State Doctrine, ajil, 1959, p. 830. P.-M. Dupuy, Droit international public, Paris 2000, p. 423. R.C. Allison, Act of State Doctrine: First National City Bank v. Banco Nacional de Cuba [406 u.s. 759 (1972)], International Lawyer, 1973, p. 220; S. Jacobs, R.H. King, S. Rodriguez, The Act of State Doctrine: A History of Judicial Limitations and Exceptions, Harvard International Law Journal, 1977, p. 677. Citation on the basis of: R. Jennings, A. Watts, op. cit., pp. 366–367. I. Brownlie, Principles of Public International Law, Oxford 1990, p. 507. It is a fact, however, that it is an expression of the legal norm of the sovereign equality of states. W. Czapliński, A. Wyrozumska, Prawo międzynarodowe publiczne. Zagadnienia systemowe, Warszawa 2004, p. 252.

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What is especially important here is the status of the ‘acts’ to which the doctrine refers. This topic is seldom analysed. It is however obvious that the doctrine covers acts understood as activities as well as legal transactions, and even documents.45 There is no doubt that such acts are as a rule effected individually by states and nobody can deny designating them as unilateral. The pressing question at hand is their relationship to the topic undertaken in this book. The publications on unilateral acts of states in public international law have so far never referred to the act of state doctrine. It does not seem that this was by mistake. On the contrary, the doctrine of unilateral acts of states looks for acts (transactions) by the means of which an author-state is creating new obligations for itself (or at least is confirming its pre-existing more general obligations), is defending its rights, or even establishing new rights (if the law so permits). All such acts must be covered by public international law. On the other hand, the doctrine of act of state is an instrument of domestic law of some states. As a rule acts mentioned by the doctrine of act of state refer only to acts of domestic law. However, one cannot exclude situations in which a given act covered by the doctrine of act of state will be a unilateral act of a given state in public international law. The latter could be determined by means of autonomous analysis of a given act as such. The very fact of the latter being covered by the doctrine of act of state is of no importance, however. Thus in such situations one can speak about a mere coincidence of the two elements. This is why that problem of the ‘act of state’ doctrine will not be discussed in further parts of the present work. 1.5

The Wide Meaning of the Term ‘Unilateral’ in the Case-Law, International Documents and in the Legal Doctrine

The word ‘unilateral’ is present in common, everyday language. The Oxford Online Dictionary gives two definitions of the term.46 The first is: performed by or affecting only one person, group, or country involved in a situation, without the agreement of another or the others

45 46

M. Zander, op. cit., p. 826. Both meanings on the basis of: http://www.oxforddictionaries.com/definition/english/ unilateral?searchDictCode=all consulted on 9 February 2015. All the meanings cited are taken verbatim from this page.

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The second is: relating to or affecting only one side of an organ, the body, or another structure. Since I referred to a number of judgments using the word ‘act’, it is useful to do the same with respect to the word ‘unilateral’. In this case their number is much smaller, but the diversity of meanings is more visible. I do not refer here to judgments discussing ‘unilateral classical acts’, since they will be cited in the further chapters. But those judgments using the term ‘unilateral’ in all other contexts are referred to here. The most obvious context surrounding the use of the term ‘unilateral’ has to do with activities effected by one person only. The international courts face that problem in the context of cases brought to them by a single state. So for example in its Advisory Opinion No 16 on interpretation of the Greco-Turkish Agreement of 1 December 1926, the pcij had to decide whether each of the states which had signed the Agreement of Athens was entitled to exercise the right of recourse provided for by that Agreement unilaterally and without any previous decision having been taken by the Mixed Commission.47 In the case of the Mavrommatis Palestine Concession, the pcij ruled that the Court was not competent to interpret and apply, upon a unilateral application, that Protocol as such, for it contained no clause submitting disputes on this subject to the Court.48 In the case of interpretation of judgment No 3, the pcij wondered whether it had jurisdiction to make a judgment concerning interpretation at the request of Greece. The pcij noted that Bulgaria had submitted observations regarding the Greek Government’s request for an interpretation, without disputing the Court’s jurisdiction to give such an interpretation. In consequence the Court ruled that it had jurisdiction to do so as the result of this agreement between the Parties, so that there is no need for the Court to consider in the present case whether, in the absence of a definite dispute between the Parties regarding the interpretation of the judgment of September 12th 1924, the requisite

47 48

pcij Publications, Series B, No 16, p. 11. pcij Publications, Series A, No 2, p. 28.

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jurisdiction could be based exclusively on the unilateral request made by the Greek Government.49 In the case concerning denunciation of the treaty of November 2, 1865 between China and Belgium, the pcij referred (in the affirmative) to the possibility of the unilateral withdrawal of the suit by the Belgian Government, the Applicant in the case.50 The most interesting references are not connected with procedure. In the case of the free zones of Upper Savoy and the district of Gex, the term ‘unilateral’ was repeated several times. Firstly, the pcij called the establishment of the so-called Great zone a sovereign and unilateral decision of France.51 The second reference related to the character of the zones. The pcij ruled that Ever since their creation, those free zones, which the Court has to deal with, possessed a unilateral character, that is to say that the withdrawal of the French and Sardinian Customs lines to a position in rear of the political frontier was prescribed, without any similar or countervailing obligation being imposed upon Switzerland.52 The pcij explained that due to the Swiss law at the time of the creation of the zones this solution had not led to an inequality. What’s more, the very basic question in the case of the free zones was the following Can France, by a unilateral act, abolish the régime of the free zones of Upper Savoy and the District of Gex on the ground that, in the case in point, the act is one which falls exclusively within its domestic jurisdiction?53 49 50 51

52 53

pcij Publications, Series A, No 4, pp. 5–6. Order of the pcij of 25 May 1929, pcij Publications, Series A, Nos 18/19, p. 7; see also its order in the same case of 15 February 1927, pcij Publications, Series A, No 14, p. 11. pcij Publications, series A/B, No 46, p. 123. It should be understood in this way that France had international law obligations stemming from international law, but uniting of different zones belonged to the exclusive competence of France. It is obvious by the way, that no state can transform its international law obligations into the ones of domestic law without the consent of the holder of a given international law right. Ibidem, p. 123. Ibidem, p. 135.

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In the same case the pcij ruled Whatever value may attach to the French note of May 18th, it cannot, in any circumstances, affect the conditions of the Federal Council’s acquiescence in the Article in question [that is art. 435 of the Treaty of Versaille – author’s note], that acquiescence being a unilateral act on the part of Switzerland.54 In the Advisory Opinion on the international status of South-West Africa, the icj ruled that it is clear that the Union has no competence to modify unilaterally the international status of the Territory or any of international rules concerning it. This was shown by Article 7 of the Mandate, which expressly provided that the consent of the Council of the League of Nations was required for any modification of the terms of the Mandate.55 In the Nottebohm case, the icj called naturalization a unilateral act, and what’s more it ruled that it must be determined whether that unilateral act by Liechtenstein is one which can be relied upon against Guatemala in regard to the exercise of protection.56 As is known, the result of that examination was negative. In the case concerning denunciation of the Treaty of November 2, 1865 between China and Belgium the pcij referred to treaties concluded between the parties and unilateral declarations in regard to matters concerning which they may use their discretion.57 In the case of Fisheries Jurisdiction (United Kingdom v. Iceland), both the uk and the icj itself referred to Iceland’s unilateral extension of its fisheries jurisdiction.58 In the Corfu Channel case, the term ‘unilateral’ was used indirectly. It related to the British proposal to sweep the channel of mines. ‘The United Kingdom Government having informed the Albanian Government, in a communication 54 55 56 57 58

Ibidem, p. 142. i.c.j. Reports, 1950, p. 128, at p. 141. i.c.j. Reports 1955, p. 4, at p. 20. pcij Publications, Series A, No 8, p. 11. i.c.j. Reports 1974, pp. 7, 8, 21 and 22.

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of November 10th, that the proposed sweep would take place on November 12th the Albanian Government replied on the 11th, protesting against this “unilateral decision of His Majesty’s Government”’.59 In the judgment concerning Peter Pázmány University, the pcij deemed as unilateral one of the provisions of the Treaty of Trianon which imposed an obligation only on one state (i.e. Hungary).60 It is difficult to avoid the conclusion that such a ‘unilateral’ provision is a part of a multilateral instrument (i.e. a treaty). The term ‘unilateral act’ can be found in several treaties. For example, art. 6 of the Treaty of Little Entente of February 16, 1933 provided for the consent of the Council of Little Entente for any unilateral act changing the political situation of any of its members.61 The word ‘unilateral’ can also be found in the Statute of the icj and in the Vienna Convention on the Law of Treaties.62 It should not be surprising that this very notion is used with respect to such elements as trade sanctions imposed by one state,63 as well as other sanctions,64 the adoption of environmental measures and their execution in the waters65 or on land territory,66 the Monroe doctrine,67 the exploitation of the sea-bed outside the framework of any international organization,68 or even the activities of a us president without the permission of Congress.69 It is worthwhile to refer in this context to the considerations of J.T. Fried on unilateralism, 59 60 61 62 63

64 65

66 67 68 69

Corfu Channel case, Judgment of April 9th, 1949: i.c.j. Reports 1949, p. 4. at p. 33. pcij Publications, series A/B, No 61, p. 245. Ch. Rousseau, Droit international public, Paris 1970, p. 418. In the definition of reservation contained therein. R.B. Ackerman, Japanese Whaling in the Pacific Ocean: Defiance of International Whaling Norms in the Name of “Scientific Research”, Culture and Tradition, Boston College International and Comparative Law Review, 2002, p. 333. A. de Guttry, Some Recent Cases of Unilateral Countermeasures and the Problem of Their Lawfulness in International Law, IYb.IL, 1986–87, pp. 168–189. D.A. Fitch, Unilateral Action Versus Universal Evolution of Safety and Environmental Protection Standards in Maritime Shipping of Hazardous Cargoes, Harvard International Law Journal, 1979, p. 149ff. J.H. Steitz ii, The Peril of Unilateral Action: The Netherlands National Environmental Policy Plan, Georgetown International Environmental Law Review, 1990, p. 328. D.D. Carto, The Monroe Doctrine in the 1980’s: International Law, Unilateral Policy or Atavistic Anachronism, Case W. Res. J. Int. Law, 1981, pp. 203–204. V.A. Pruitt, Unilateral Deep Seabed Mining and Environmental Standards: A Risky Venture, Brooklyn Journal of International Law, 1982, pp. 345–363. K.D. Chapman, Separation of Powers and Unilateral Executive Action: the Constitu­ tionality of President Clinton’s Mexican Loan Initiative, Georgia Journal of International and Comparative Law, 1996–1997, pp. 163–185.

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bilateralism and multilateralism in us Trade Policy.70 Interestingly enough the special rapporteur in one of his reports referred to several kinds of sanctions and to such activities as the Helms-Burton Act.71 The word ‘unilateralism’ is used by F. McKay with respect to the relationship of the usa to the International Criminal Court.72 L.J. Theberge defines unilateralism as an attempt to use the domestic law of a given state to influence international law; such unilateralism is perceived by this author as a danger for international law.73 Manifestly the use of force is even a bigger challenge and there is no semantic problem with calling it unilateral as well. In consequence it can be seen that the term ‘unilateral’ has a very broad meaning, hence it is no wonder that the definitions of unilateral acts proposed by various authors differ to such a great extent.74 1.6

Evolution of Views on Unilateral Statements and Behaviours of States

1.6.1 Introductory Remarks The next chapters focus on the views of several specialists of public international law – both contemporary and earlier – on unilateral acts of states in public international law. In this subsection I examine their very emergence. I’m not referring here to the first references to given types of acts – like declarations of war or neutrality, but to the first references in the legal literature references to a wider (group) category of unilateral acts of states in public inter­ national law (unilateral legal transactions), or at least to the binding force of unilateral declarations. 1.6.2 The First Views on Promises One should stress that the legal doctrine began to address the issue of unilateral acts of states in public international law at a relatively late date. The same is true with respect to more general categories, such as legal transactions or 70

71 72 73 74

J.T. Fried, Squaring the Circle: Unilateralism, Bilateralism and Multilateralism in us Trade Policy. Comments on the Right Emphasis for us Trade Policy in the 1990s, Boston University International Law Journal, 1990, pp. 231–237. Third report, p. 10, par. 58. F. McKay, u.s. Unilateralism and International Crimes: The International Criminal Court and Terrorism, Cornell International Law Journal, 2003–2004, pp. 455–471. L.J. Theberge, Unilateralism: The Direct Challenge to International Law, California Western International Law Journal, 1979, p. 553. Vide: Chapter 2.

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legal facts. It is important however to note that this lack of references could mean not only lack of confirmation, but also lack of denial (unless a given author decided to do so with respect to a given type or types of acts). It would be difficult to overlook the fact that the notion of promises is present in the works of H. Grotius.75 Both E. Suy76 and P. Vellas77 also refer to his views on promises. They deserve to be examined in more detail. H. Grotius distinguishes three kinds of promises.78 The first of these three modes of speech is an assertion, setting forth a present intention concerning something in the future. That this assertion may be free from fault, the true expression of the opinion held at present is required, but not the continuance of that opinion.79 In consequence it does not give rise to any obligations. The second category is an informal promise. H. Grotius writes that: In the second mode of speech the intention shapes itself in respect to future time with a sufficient manifestation to show the necessity of continuance. This also may be called a sort of promise, which, without regard to the civil law, is binding either absolutely or under conditions, but gives no right, properly speaking, to the second party. In many cases it happens that a moral obligation rests upon us, but no legal right is acquired by another, just as becomes apparent in the duty of having mercy and showing gratitude; similar to these is the duty of constancy or of good faith.80 In consequence, also the second kind of promise does not give rise to legal obligations in the field of international law as it is nowadays understood. The third category of promise does however give rise to such legal rights and duties. H. Grotius puts it as follows: 75

De Jure Belli Ac Pacis Libri Tres, by Hugo Grotius, Volume Two, the translation, Book i by Francis W. Kelsey with the collaboration of Arthur E.R. Boak, Henry A. Sanders, Jesse S. Reeves and Herbert F. Wright and an introduction by James Brown Scott; Oxford: At The Clarendon Press, London: Humphrey Milford 1925, hereafter cited as H. Grotius, op. cit., pp. 328–343. 76 E. Suy, Les actes juridiques…, p. 109. 77 P. Vellas, op. cit., p. 204. 78 H. Grotius, op. cit., p. 330. 79 Ibidem. 80 Ibidem.

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In the third way of making a promise, such a purpose as that just mentioned is manifested by an outward sign of the intent to confer the due right upon the other party. This is a perfect promise, and has an effect similar to alienation of ownership. It is, in fact, an introduction either to the alienation of a thing or to the alienation of some portion of our freedom of action. To the former category belong promises to give; to the latter, promises to perform.81 One can wonder whether H. Grotius is really writing here about promises made by states. None of his examples refer to them; they are all concerned with promises made by human beings. So, for example, he writes about ‘promises of madmen, idiots, and children’ (p. 332); on responsibility for ‘ship-captains and business agents’ (p. 337) and on the effect of death on the validity of a transaction (pp. 338–339). If however one applies mutatis mutandis the principle lege non distinguente to the views of this author (of course not those dealing with children or dead people), one may conclude that his remarks (or at least some of them) may apply to promises made by states. The second question necessary to ask is whether what is at stake in the works of H. Grotius are unilateral promises. One could defend the view according to which his binding ‘promise’ denotes the content or effect of an agreement. The beginning of the cited chapter would speak in favour of the latter understanding. The respective chapter starts with the dispute of the author with François de Conan, ‘a man of exceptional learning’. The latter maintains the opinion that according to the law of nature, as well as the law of nations, no obligation is created by those agreements which do not contain an exchange of considerations ; that such agreements are honourably carried out only if the matter is of such a nature that it would have been honourable and consistent with some other virtue to fulfil them even without the promise.’82 H. Grotius does not agree with that statement. This is not the only reference to agreements in that chapter, although references to ‘promises’ are much more frequent. As there are several kinds of promises it would be impossible to claim that they are synonymous with agreements. But there is also no mutual exclusion – evidently promises could be found in agreements. This however still does not answer the question whether promises could be unilateral in the technical meaning of the term. 81 82

Ibidem, p. 331. Ibidem, p. 328.

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One can find a kind of answer in the view of H. Grotius according to which [i]n order that a promise may transfer a right, the acceptance of it is no less necessary than when a transfer of ownership is made; yet in this case also it is understood that a preceding request continues, and has the force of an acceptance.83 One can wonder what precisely this means. Two answers are possible. According to the first, unilateral promises by definition are devoid of legal consequences as such, they have them only as a part of an agreement. The other interpretation would suggest that parties could conclude an agreement with reference to a unilateral promise, but that the latter brings about legal consequences. All the same an acceptance of the beneficiary is necessary for the presence of such consequences. It is obvious at this point that the question of acceptance of (or more generally ‘reaction to’) a promise is important. It will be examined in Part 3 of the present book. Though it would be difficult to treat the views of H. Grotius as the first lecture on unilateral acts of states in public international law, or even on unilateral promises generally, they are nonetheless significant if one keeps in mind that it took more than 200 years for other references important for the present book to emerge. 1.6.3 The Notion of Declarations and Notes in 19th Century Writings In 1887 T. Funck-Brentano and A. Sorel wrote that exchanges of letters (échange de lettres) between sovereigns and exchanges of notes (échange de notes) between governments result in engagements (engagements), the content of which (portée) is determined by the character and sounding (teneur) of such letters or notes. When the letters of sovereigns or notes signed by diplomatic agents create obligations for states represented by a given sovereign or a diplomatic agent, they create rights for the addressee states.84 The most interesting question for our purposes is whether such ‘letters’ and ‘notes’ can contain unilateral acts. It would be erroneous to say that FunckBrentano and Sorel so confirmed directly. However, while they do not confirm it, neither do they deny it. In fact the cited passage was placed in the chapter 83 84

Ibidem, p. 338. T. Funck-Brentano, A. Sorel, Précis du droit des gens, Paris 1887, p. 103.

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on the right to negotiate and enter into treaties.85 Evidently the authors referred rather to treaties concluded in a simplified form. The very mention of exchanges of notes would suggest the interplay of statements of more than one state. In fact, the manuals (especially the older ones) could be perceived as a summary of the existing practice. Neither T. Funck-Brentano, A. Sorel, nor any author of that time gives any example of a purely unilateral promise.86 On the other hand the technological conditions of the 19th century usually made it necessary for states to refer to a topic more than once. This is why one can easily speak about the existence of an international agreement in that field. Funck-Brentano and Sorel write that treaties and conventions are state obligations par excellence; to the extent to which they create obligations – letters, notes, protocols and declarations take relatively the character of treaties and conventions.87 How should one understand these words? One interpretation would be very promising for our topic; it would suggest that letters, notes etc. can give rise to obligations as such. Another would suggest that they can form the basis of international agreements in a simplified form. The question of this form requires attention. Evidently the authors do not insist on formal requirements of exchange of notes with identical terms. Still one cannot be sure that it would be sufficient to see T. Funck-Brentano and A. Sorel as the earliest proponents of the binding force of a unilateral declaration. That question will remain without a definitive answer. Nevertheless the topics discussed, or at least hinted at, by them remain present in contemporary discussions. One of them is the lack of formality of international law in general and of treaties in particular. The second one concerns the legal impossibility of creating rights against the will of the beneficiary state. The third one is connected with a positive reaction of the beneficiary state. Less ambiguous is the understanding of the term ‘declaration’. It was reserved for a category of treaties. Funck-Brentano and Sorel describe it as an official act, by which states say that they agreed on certain general facts or certain principles or establish a behaviour upon which they are in agreement.88 85 86 87 88

Ibidem, p. 94. R. Quadri, op. cit., p. 364. T. Funck-Brentano, A. Sorel, op. cit., p. 109. Ibidem, p. 104.

Unilateral acts in international law

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1.6.4 References to Diplomatic Acts in the Early Writings References to diplomatic acts could be found in the work of A. Rivier. He distinguishes between diplomatic letters and other public acts made by governments.89 The former category is comprised of letters written by sovereigns90 and diplomatic correspondence in the proper meaning of the term (proprem­ ent dite), emanating from, inter alia, ministers for foreign affairs and diplomatic agents.91 Though the author concentrates on matters connected with diplomatic protocol, all the same his list seems promising from the perspective of the topic of the present work. What deserves special mention is a letter of Napoleon iii to the King of Prussia of September 1, 1870, in which the French emperor not having died with his soldiers, gave himself up into the hands of the addressee.92 The list of diplomatic letters comprises: mémories, mémorandums, which are sometimes called déductions; signed notes (écrites), verbal notes, letters, depeche, reports, offices (‘in which the author writes in the first person and refers personally to the addressee’); as well as lettre circulaire (when an identical note is addressed to several persons at the same time) and notes circulaires.93 One can regret that the legal effects of those letters are not elaborated on; their legal force is neither confirmed nor denied. A. Rivier separately discusses other public acts of governments,94 such as: manifestos issued at the beginning of war activities (addressed to a states’ own nationals, other nations, or all nations of the world); declarations of neutrality, and declarations declaring the enthronement, abdication or annexation of territory. Interestingly enough Rivier includes ‘diplomatic declarations and counter-declarations’ in that list, as if he did not remember that he had already mentioned them when speaking about diplomatic acts. The same group of acts includes: an explanation of the motives of the course of conduct of a state (e.g. at the time of conclusion of alliances, breaking down of negotiations, refusal to ratify a treaty, ordering of armaments or entry into war). Such documents should be perhaps associated with statements addressed to public opinion 89 90 91 92 93 94

A. Rivier, Principes du droit des gens, Paris 1896, t. ii, pp. 25–29. Ibidem, pp. 25–26. Ibidem, pp. 26–27. Ibidem, p. 26. Ibidem, pp. 26–27. Ibidem, pp. 28–29.

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rather than to other states; Rivier however does not prejudge this expressly. What’s more, the same group of acts includes a manifeste de guerre, declaration of war (la déclaration de guerre) and an ultimatum. Rivier suggests some rules concerning such acts, although they will hardly be satisfactory for 21st century lawyers. They refer to such elements such as human nature, experience, courtesy, realities of facts ( force même de choses) or necessity. In fact the only statement which seems to be relevant to contemporary times is that these acts are of a different nature. At this point it is hard to abstain from a malicious remark that it took many years of work of the ilc to arrive at exactly the same conclusion. It is obvious that Rivier’s conclusion (even if true) cannot replace the rest of the analyses of unilateral acts of states. 1.6.5 First Views on Unilateral Acts Par Excellence The determination of the ‘father’ of the doctrine of unilateral acts as such has turned out to be the most difficult task of this book. In the light of my analysis a lot speaks in favour of treating a German lawyer – P. Heilborn – as such a ‘father’. In 1896 he wrote that manuals of international law mention unilateral acts, but the latter are hardly examined in principle (principiell behandelt). Such an examination is really necessary.95 One can wonder how to understand the words ‘principiell behandelt’. Do they refer to a fundamental (thorough, careful, detailed) analysis, or maybe to an attempt to present an entire system, including unilateral acts of states. Even if the former answer is correct, Heilborn started to create such a system. It comprised acts creating, modifying or cancelling different rights and not only acts connected with rights of one kind such as occupation.96 Heilborn is also the first author known for enumerating unilateral acts of interest to him. They were: recognition, protest, waiver and notification.97

95

P. Heilborn, Das System des Völkerrechts entwickelt aus den völkerrechtlichen Begriffen, Berlin 1896, p. 374. 96 Ibidem. 97 Ibidem, see also: pp. 375–376.

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Also K. Gareis, at the beginning of the 20th century, presented a relatively coherent picture of unilateral acts.98 What’s more, he inserted them into a wider context comprising expressions of will (unilateral and bilateral) and other events. It is important to note that he called these expressions of will acts of international law. They included: occupation, declaration of war, and acts connected with war (Kriegsmassregeln), acts of states which encroach upon the interests of other states, international wrongful acts, as well as unilateral declarations aimed at creation, modification or cancellation of relationships of international law.99 The latter category of acts seems to be the one discussed by P. Heilborn. It is a kind of paradox that one of the first chapters on unilateral acts can be found in the English legal literature. The latter is famous because for many things, but not for an inclination to dwell on wide theoretical notions devoid of great practical importance. The famous manual of L. Oppenheim, originally published in 1905, included a chapter entitled ‘Transactions besides negotiation’.100 Oppenheim writes that ‘international transaction’ is a term referring to every act on the part of a State in its intercourse with other states.101 The author distinguishes among them negotiation and eleven other kinds of international transactions, namely, declaration, notification, protest, renunciation, recognition, intervention, retortion, reprisals, pacific blockade, war, and subjugation.102 It must be stressed that Oppenheim neither discussed the unilateral character of these acts as such, nor dwelt on the theoretical topic of unilateralism or its alternatives. The most impressive element, however, is that he expressly distinguished the above-listed eleven transactions from negotiations. One can wonder whether the reason had to do with the adopted method of presentation of the different topics in his book, or whether more fundamental and theoretical 98 K. Gareis, Institutionen des Völkerrechts, Giessen 1901, pp. 88–89. 99 The lists of such acts will be discussed in Chapter 3. 100 L. Oppenheim, International Law. A Treatise. Vol. i – Peace, London, New York and Bombay 1905, pp. 513–516. 101 Ibidem, p. 513. 102 Ibidem.

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grounds were behind his decision. One can expect the latter, as there can be no unilateral negotiations. That is why the exclusion of negotiations can be seen as an important argument for treating Oppenheim as one of the founding fathers of the topic of unilateral acts as such. It would seem foolhardy to ignore the reasons connected with the construction of a system in a voluminous treatise on international law, as well. They had their role to play in the decision of L. Oppenheim to distinguish negotiations (and one of their possible effects, i.e. treaties) from the other topics of the discussed chapter. This is not the only element to be taken into consideration. In fact Oppenheim, after listing eleven transactions, refers to separate chapters of his work devoted to: recognition, intervention, subjugation and to a separate volume devoted to war. The latter volume discusses retorsions, reprisals, peace blockade and of course war as such.103 Undoubtedly Oppenheim must have had some important reasons for presenting these eleven types of acts in one place. What’s more, their common characteristic lies in their difference as compared to negotiations. For this reason Oppenheim’s list, while not being the first lecture on unilateral acts, is all the same one of the first. In the chapter in question Oppenheim analyses only declaration, notification, protest and waiver.104 This structure is extremely similar to the contemporary presentations of unilateral acts of states. With respect to this element the question that must be asked is whether the decisive element was the structure of the work, or maybe there were some more sophisticated reasons. In my opinion, it was the former. Certainly the structure of the manual was based on objective premises. There is hardly any similarity between waiver and war. Other acts which are not discussed in detail are however much more similar to ones which are discussed in more detail. For example, disapproval may be expressed by the means of protest, but also by retorsion and reprisals. One can check if there are definitional differences among them, but one can hardly assume them without proof. Interestingly enough, the 8th edition of Oppenheim’s manual limited ‘Transactions besides negotiations or treaties’ to declaration, notification, protest and waiver.105 As noted earlier, in was only these notions that were analysed in detail in the original (1905) version of this chapter. It must be remembered, however, that the latter did not attempt to show any fundamental differences between these four transactions as compared to the remaining seven ones. The short list is similar to (though not identical with) contemporary 103 Ibidem. 104 Ibidem, p. 513 et.seq. 105 L. Oppenheim, International Law. A Treatise. Vol. i – Peace, Eighth edition edited by H. Lauterpacht, London, New York, Toronto, 1955, pp. 872–876.

Unilateral acts in international law

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ones. Hence paradoxically, Oppenheim’s manual could have paved the way for the shortened list of unilateral acts, even though Oppenheim himself was the supporter of a much longer one. In fact the path to the shortened list has been paved by many authors and many works. One of them was the 1926 manual of E. von Waldkirch. It included a chapter on legal acts,106 which contained a definition of legal transactions of international law (Rechtsgeschäft). They were divided into unilateral and nonunilateral (mehrseitig).107 E. von Waldkirch did not attempt to classify types of unilateral acts, he satisfied himself with citing examples thereof. References to unilateral acts can also be found in the work of E. Vanselow.108 He approaches the topic from the perspective of states becoming bound by new obligations. He writes that states may bind themselves by means of a declaration of will – either unilaterally or mutually (gegenseitig). Vanselow does not introduce the notion of promise. The element of incurring new obligations is visible however in waiver or unilateral recognition. The author had more problems with discussing protest in the part devoted to unilateral binding acts. He simply points to the fact that protest is the reverse of recognition and waiver.109 A classical list of unilateral acts (not including promise) can be found in the work of J. Spiropoulos.110 He does not dwell on the phenomenon of unilateralism. He also does not analyse the notion of legal transaction in detail. He limits himself to the statement that the will of a state in international relationships can be expressed by the means of legal acts (actes juridiques), and that the latter may be either unilateral or bilateral (bilatéraux).111 Three years later a first monograph of unilateral acts of states was published.112 Its author and his followers had to face the basic problem of how to define a unilateral act of a state in public international law. This forms the topic of the next chapter.

106 E. von Waldkirch, Das Völkerrecht in seinen Grundzügen dargestellt, Basel, 1926, p. 215 et. seq. 107 Ibidem, p. 215. 108 E. Vanselow, Völkerrecht. Einführung in die Praxis der Staaten, Berlin 1931, p. 42. 109 Ibidem, p. 42. 110 J. Spiropoulos, Traité théorique et pratique du droit international public, Paris 1933, pp. 231–232. 111 Ibidem, p. 231. 112 F. Pfluger, Die einseitigen Rechtsgeschäfte im Völkerrecht, Zürich 1936.

chapter 2

Definition of Unilateral Acts 2.1 Introduction The aim of the present chapter is to examine the problem of defining a unilateral act of state in public international law. The authors of legal writings on unilateral acts have approached this question differently. Two extremes can be established in this respect. The first was to avoid any definition. In this sense the notion of a unilateral act of state is self-explanatory and does not need a traditional definition (that is definition comprising d­ efiniens and d­ efiniendum). The second extreme is to present a very strict and ­sophisticated definition. Such definitions are found first of all in the French, German and Italian legal literature. The underlying idea is a narrow understanding of a unilateral legal transaction of a state in public international law. Emphasis is put on the concordance of the legal effects of such an act and the will (or intention) of the author-state. A given unilateral activity is treated as a legal transaction only if its effects are covered by the will of the acting state. On the other hand when the effects of a given activity are determined by the law itself, that activity is not qualified as a legal transaction. It is not surprising that this narrow definition works very well with respect to the classical catalogue of unilateral acts of states in public international law. As has been said several times, this catalogue is comprised of promise, recognition, waiver, and protest (and sometimes notification). The popularity of this catalogue may be viewed as support for a narrow definition of unilateral acts. My initial plan when constructing this book was to call that definition a classical one. However, it seems it would be an abuse to use this name with respect to an idea which is completely absent in, e.g., the Anglo-Saxon legal literature. That is why the notion of ‘narrow definition’ will be used in the further part of the present work. As has been said, it would be foolhardy to accept this definition without critical examination. Such examination is one of the aims of the present chapter. It will also discuss various other definitions proposed in the literature and presented during the works of the ilc on the topic of unilateral acts of states in public international law. They form an acquis which cannot be ignored.

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004274617_004

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The second task is more practical. If the idea of the present work is to search for unilateral acts of states in various branches of public international law, the several prerequisites of such an act must be established. These prerequisites (or characteristics) may be either inserted into a one-sentence definition or may be simply enumerated. Of course they will have to respond to the elements present in the very notion of a unilateral act of state in public international law. They must refer namely to the notion of an act, to its unilateral character, and to its connection with (involvement in) international law. These elements are usually inserted into a definition of a unilateral act, hence the present chapter is the best place to examine them. It is evident at first glance that these elements are quite general. They allow for different interpretations and differing conclusions with respect to more specific aspects. So they must not only be examined, but discussed in more detail. The main danger in works like the present one is to prejudge the conclusions at the moment of the choice of terminology and/or assumptions. For this reason a more open attitude is adopted as to the choice and understanding of the prerequisites of a unilateral act of a state in public international law. If this may be perceived as a drawback, a kind of compensation will be contained in Part 2, in which this relatively open idea of a unilateral act of state in public international law will be confronted with concrete activities of states. 2.2

Broader Categories Embracing Unilateral Acts of States

2.2.1 Introductory Remarks Authors writing on unilateral acts of states in public international law (actes juridiques unilatéraux) could be divided into two groups. The first of them presents such acts in a wider context. Some of them even arrive at their definition by means of refining of such wider categories. This group comprises such authors as: D. Anzilotti,1 G. Morelli.2 E. Suy3 or W. Góralczyk.4 The second group of authors does not refer to such wider categories, perhaps with the 1 D. Anzilotti, Cours de droit international, traduction française par G. Gidel, Paris 1929, pp. 333–338. 2 G. Morelli, Cours général de droit international public, rcadi, 1956, t. i, pp. 584–587. 3 E. Suy, Les actes juridiques unilatéraux en droit international public, Paris 1962, pp. 16–26. 4 W. Góralczyk, Prawo międzynarodowe publiczne w zarysie, Warszawa 1989, pp. 160–161.

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exception of the very notion of a legal transaction (acte juridique). This attitude is presented by Ch. Rousseau5 and P.-M. Dupuy.6 It seems useful to refer to wider categories of both facts and acts important from the perspective of international law. To this end the views of several authors will be invoked, including some who do not refer to unilateral acts as such. 2.2.2 Early Classifications of Legal Facts Quite a modest classification of legal facts can be found in the work of K. Gareis, who simply distinguishes natural events (Naturereignisse) and declarations of will (Willenshandlungen).7 Gareis designates the latter as acts of international law. He writes that they are unilateral or bilateral but they are always concluded between living persons as the collapse of a state is not a death (sic!).8 A similar classification was presented by D. Anzilotti. The most general category is the same, i.e. a fact important from the perspective of international law.9 Anzilotti divides such facts into natural events (faits de la nature), human activities (faits de la vie de l’individu) and activities of states (faits des Etats).10 What is of the critical importance is that this typology is not claimed to be exhaustive.11 Anzilotti divides activities of states into those activities which are in conformity with international law and those which are contrary to it.12 The first category includes i.a. expressions of the will of states in the field of international relations.13 Unfortunately Anzilotti does not suggest any other categories. It can hardly be denied that this classification does not lead us automatically 5 6 7 8

Ch. Rousseau, Droit international public, Paris 1970, t. i, p. 416. P.-M. Dupuy, Droit international public, Paris 2000, p.322. K. Gareis, Institutionen des Völkerrechts, Giessen 1901, p.88. Ibidem, p.88. This peculiar statement and references to the commentary on the German Civil Code (bgb) – vide: K.Gareis, op. cit., p. 88, footnote 4 and p. 89, footnote 1 – are the best illustrations of the influence of the science of civil law on the doctrine of international law. 9 D. Anzilotti, op. cit., pp. 333–334. 10 Ibidem, pp. 336–338. In the Polish legal literature a similar classification is presented by W. Góralczyk, see: W. Góralczyk, op. cit., pp. 160–161. 11 D. Anzilotti, op. cit., p. 336. 12 Ibidem, p. 338. 13 Ibidem.

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to a definition of a unilateral act (understood as acte juridique unilatéral or einseitiges Rechtsgeschäft). 2.2.3 Classification of Legal Facts by F. von Liszt The classification proffered by F. von Liszt is in every sense much more ela­ borate.14 The point of departure is the notion ‘fact’ (Tatsache). The author adds that what is at stake are facts important from the legal point of view. F.von Liszt divides such facts into natural events (natürliche Tatsache) and activities of men (human beings) based on their will (willkürliche menschliche Handlungen).15 The latter are divided into two subgroups: legal transactions (Rechtsgeschäfte) and delicts (international wrongful acts). F. von Liszt identifies legal transactions with declarations of will (Willenserklärung) which are aimed at legal effects (in the field of international law) – that is the creation, transformation or termination of a legal relationship.16 The most important of them are certainly treaties. One can imply that they are not the only ones, especially in that he refers several times to protests, recognition and waiver.17 Unilateral acts of states in public international law are not a topic of autonomous analysis by von Liszt. Interestingly enough, he writes that alongside (neben) legal transactions one can distinguish activities similar to legal transactions (rechtsgeschäftsähnliche Handlungen). He designates them as natural legal activities (natürliche Rechtshandlungen). As an example of such activities he cites the occupation of terra nullius as a mode of acquisition of territory.18 Therefore already in the teaching of von Liszt one can find support for a narrow definition of legal transactions, as was mentioned in the introductory remarks. F.von Liszt formulates also very precise requirements as to shape of legal effects of such transactions.

14 15

16 17 18

F. von Liszt, Das Völkerrecht systematisch dargestellt, zwölfte Auflage bearbeitet von M. Fleischmann, Berlin 1925, pp. 241–244. Ibidem, p.241. The very translation of the latter may be problematic. The word ‘willkürlich’ may be understood as arbitrary or capricious. In fact it is difficult to suggest that the cited author had this understanding in his mind. On the other hand it is difficult to identify ‘willkürlich’ with being ‘based on will’. For example, the very fulfilment of an obligation (accompanied by a will to fulfil it) can be hardly called ‘willkürlich’. The latter term seems to be reserved for acts or activities in which the will plays a decisive role. F. von Liszt does not say this expressly, however. F. von Liszt, op. cit., p. 242. Ibidem, pp. 243–244. Ibidem, p. 242.

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2.2.4 Classification of Legal Facts by A. Hold-Ferneck A similar (though not identical) system was presented by A. Hold-Ferneck. He writes that outside obvious and universal prohibitions without which one can hardly imagine international law (die sich aus dem Völkerrecht gar nicht hinwegdenken lassen), such as the duty to respect other states, prohibition of invasion of their territory or interference into their domestic affairs, the legal norms refer to certain facts (Tatbestände).19 The author distinguishes four categories of such facts. They comprise: natural events (death, the drying up of a river, the lapse of time); historical events (the emergence of a state or its collapse), activities (Handlungen) of subjects of international law, and activities of private persons (e.g. the escape of a criminal or smuggling of contraband).20 Certainly, the third category is the most important for the topic of the present work. Hold-Ferneck gives several examples of such activities. They include: recognition of a government of another state, conclusion of international agreements, opening of hostilities (Feindseligkeiten), self-help or activities contrary to international law.21 One of subcategories of these activities are legal transactions (Rechtshandlungen or Rechtsgeschäfte). Among legal transactions Hold-Ferneck distinguishes unilateral, bilateral and multilateral transactions.22 He associates legal transactions with two phenomena. The first is their legality. The second is the fact that the author-state acts with intention.23 Though it would be difficult to treat that fragment as a complete definition of a legal transaction, it is worth citing inasmuch as it is much broader than definitions of actes juridiques suggested by many other writers.24 The latter include F. Pfluger. 2.2.5 Classification of Legal Facts by F. Pfluger25 The author of the first monograph of unilateral acts also arrives at their definition by means of narrowing of much wider categories. He is not very original as 19 A. Hold-Ferneck, Lehrbuch des Völkerrechts, Leipzig 1930, t. ii, p. 6. 20 Ibidem, pp. 6–7. 21 Ibidem, p. 7. 22 Ibidem. 23 Ibidem. 24 Vide: infra. 25 The entire scheme – F. Pfluger, Die einseitigen Rechtsgeschäfte im Völkerrecht, Zürich 1936, pp. 4–5.

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regards the starting point – it is the notion juristische Tatsachen im vr26 Sinne, which can be understood as ‘facts interesting from the perspective of public international law.’ They are divided into natural events (natürliche Tatsachen) and activities important from the perspective of public international law in the broad meaning of the term (Völkerrechthandlung i.w.S.27). The latter are divided into legal and illegal activities (erlaubte und unerlaubte). Legal activities are divided into legal transactions (Rechtsgeschäfte) and international activities important from the perspective of international law in the narrow meaning of the term (Völkerrechthandlungen i.e.S.28). The former are divided into unilateral and bilateral. One can see without any difficulty that Pfluger (the author of the first and the only monograph of unilateral acts of states in German) limits his interest to acts designated as Rechtsgeschäfte. Acts or activities designated as Völkerrechthandlungen i.e.S lie outside the scope of his work. The decisive element is that the legal effects of legal transactions (understood as Rechtsgeschäfte), and only of them, take place in accordance with the will of the actor-state. On the other hand, the legal effects of ‘international activities important from the perspective of international law in the narrow meaning of the term’ (Völkerrechthandlungen i.e.S.) are said to take place irrespective of the will of the acting state.29 In fact, such a typology determines a priori the definition of a unilateral act in international law. The result is the very narrow definition mentioned in the introduction. As will be shown, neither that attitude nor the definition can be accepted in the present book. Other Examples of Typologies Referring to Narrow Definitions of Legal Transactions Another important classification was made by G. Morelli. He also starts with the notion of fait juridique international which can be translated as ‘fact important from the perspective of international law’. According to his definition, such an act may be understood as a fact or event to which public international law attaches legal consequences.30 Among such facts Morelli distinguishes natural events (faits purement naturels) and human activities (conduites 2.2.6

26 27 28 29 30

That is ‘völkerrechtlichen’. That is ‘im weiteren Sinne’. That is ‘im engeren Sinne’. F. Pfluger, op. cit., p. 5. G. Morelli, op. cit., p. 584.

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d’individus humains).31 Human activities can be attributed to states or not. The former are called faits juridiques subjectifs.32 G.Morelli divides them into: – facts based on will (volontaires), but not consisting of a declaration of will (manifestation de volonté); as an example of such facts the occupation of terra nullius is cited, – actes juridiques – that is, declarations of will giving rise to legal effects in accordance with that will.33 These categories are not believed to be exhaustive. The author writes that all faits juridiques which are not actes juridiques34 are called legal facts in the narrow meaning of the term.35 This last category and the rigid character of the classification resemble those of von Liszt and Pfluger. Also the attitude of Morelli means that only some unilateral acts (forms of activity) of states are taken into consideration in the discussion of unilateral legal transactions (acts). What remains outside are some unilateral acts which at the same time are legal (that is in conformity with international law), performed by states and bring about legal effects. This is also the stance of E. Suy. He also divides facts important from the perspective of law (faits juridiques) into natural events (faits juridiques naturels) and human activities (faits juridiques humaines).36 As regards the latter he satisfies himself with giving examples of them rather than mutually exclusive categories. He refers in this context to delicts, quasi-delicts; expressions of will bringing about legal effects irrespective of that will.37 As examples of the latter the following are cited: murder, occupation of a territory, opening of hostilities and declaration of war. It goes without saying that only some of these activities are attributed to states. On the other hand it would be difficult to identify such 31 32

33 34 35 36 37

Ibidem, p. 585. Interestingly enough, lapse of time is presented as an example of a natural event; see: ibidem. Ibidem, p. 586. Morelli presents as an example of the second category (not interesting for the present work as such) a request of an individual to recognize a foreign judgment (see pp. 585–586). According to him, such a request is a legal fact, but not a subjective legal fact as it is not attributed to a state. It is however doubtful whether such a request is an international legal fact (legal event) at all. Ibidem, p. 587. And exactly not being subjective facts (subjectifs), or even being them but not being legal transactions (actes juridiques). Ibidem, p. 587. E. Suy, op. cit., pp. 17–18. Ibidem, pp. 18–19.

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‘expressions’ with ‘declarations’ of will. Their effects are believed by Suy to take place irrespective of the will of the acting state.38 That is why according to Suy, only acts the effects of which are determined by the will of the acting state could be called as actes juridiques.39 F. Rigaldies also strictly distinguishes between the notion ‘acte juridique’ and ‘fait juridique’, according to the same criterion (the relationship between the will and the legal effect(s)).40 The only terminological remark that could be made with respect to his concept is that the notion fait juridique is rather a wider category, comprising many other elements (including natural events and legal transactions as well). Less Systemic Attempts to Situate Unilateral Acts of States as a Subcategory of Other Legal Categories Interesting effects can be achieved when one looks at the same phenomenon from a slightly different perspective. One such effect can be seen in the law of treaties. For example, M. Frankowska writes that

2.2.7

a treaty belongs to the sphere of legal acts (transactions) of international law which belong to a more general category of expressions of will of states (and other subjects of international law) in the field of international relations.41 Such acts may be unilateral, bilateral or multilateral, while a state may reveal its will in a tacit way (e.g. through a determined practice – which is the case of custom) or expressly.42 It is difficult to argue with these statements as such. One must wonder, however, if they do not give rise to a presumption that unilateral acts are by definition similar to treaties. In fact however, while there are unilateral acts similar to treaties there are also acts which are not similar to them at all. One can hardly overcome the feeling that such a mistaken view of the similarity of unilateral acts to treaties was shared by the special rapporteur at the beginning of 38 39 40

Ibidem, pp. 18–20. Ibidem, p. 19. F. Rigaldies, Contribution à l’étude de l’acte juridique unilatéral en droit international public, La Revue Juridique Thémis, 1980–81, vol.15, No 2, pp. 417–418. 41 M. Frankowska, Prawo traktatów, Warszawa 1997, p. 36. 42 Ibidem.

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his works. In fact his draft articles were clearly inspired by the Vienna Convention on the Law of Treaties. If the above-presented attitude can be seen as an interesting, though less systemic, inclusion of unilateral acts of states into a wider category (comprising unilateral acts and treaties), a similar solution could be based on the unilateral character as such. Namely sometimes unilateral acts of states are inserted into the same category as unilateral acts of international organizations, as a subcategory of unilateral acts. For example a fundamental work of N. Quoc Dinh treats unilateral acts of states in one place, along with acts of international organizations and other acts which are contractual but which are not treaties.43 In fact the very notion ‘unilateral act’ could be treated as a group category and point of departure for the working out of the notion of a unilateral act of state in public international law. N. Quoc Dinh (and the contemporary editors of his work) define such unilateral acts as an act attributed to a single subject of international law.44 D. Ruzié also finds it useful to refer in one place to ‘unilateral acts’, which are to  comprise unilateral acts of states, so-called acts concerning jurisdiction (actes juridictionnels) and unilateral acts of international organizations.45 Interestingly enough, even the special rapporteur was ready to concede that unilateral acts of states and acts of international organizations could be situated in one category.46 Such a statement would seem to be especially strange in the context of the ilc works, as a fundamental difference lies in the statutory (that is treaty-made) character of acts of international organizations. In fact the special rapporteur in the same report pointed out that difference and did not insist on the similarity of the two groups of acts.47 Certainly it would not be fair however to blame the authors of such presentations with mixing up unilateral acts of states and unilateral acts of international organizations. Their differences are as obvious as the use of the same adjective ‘unilateral’. 43 44 45 46

47

N. Quoc Dinh, P. Daillier, A. Pellet, Droit international public, Paris 1994, p. 352. Hereafter cited as N. Quoc Dinh, op. cit. Ibidem, p. 353. D. Ruzié, Droit international public, Paris 1992, p. 49. 1. report, p. 8, par. 31. The special rapporteur invokes the long-term program of works of the ilc of 1971, Yearbook ilc, 1971, vol. ii (part Two), p. 61, para. 282, cited on the basis of the first report, p. 8. 1. report, pp. 8–9.

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It is also difficult to compare such presentations with the above-cited categorizations aimed at including all facts (events) important from the legal point view. What remains is the presentation of perhaps the most complicated categorization. 2.2.8 Classification of Legal Facts by G. Venturini48 In his fundamental work G. Venturini presents two typologies important for the object of the present work. The first of them concerns facts which are based on will (faits volontaires). They are divided into four groups: 1. 2. 3.

4.

facts which are based on will but which are as such of no importance from the legal point of view (auxquels il n’est pas attaché une importance juridique);49 facts which are based on will but the legal significance of which is reduced to the fact of their being permitted by law;50 facts which are based on will, and which as such have importance from the legal point, which engage (impliquent) the will and conscience of the acting person, but which bring about legal effects regulated directly by legal norms (G.Venturini calls them actes juridiques ‘stricto sensu’); facts which are based on the will and which bring about legal effects according to the will of the actor-state.

Obviously the last category is the most important. It comprises manifestations of will which directly determine their legal effects, within the limits of the law. Venturini expressly underlines that this category comprises both ‘super partes’ acts as well as so-called negozi giuridici. The second typology presented by Venturini in the same text is shorter. It comprises three elements: negozi giuridici (declarations of will), declarations other than declarations of will, and activities based on will (activités volontaires).51 Venturini lists the following examples of declarations of will (manifestations de volonté): promise, waiver, recognition, declaration of war (déclaration de guerre), revocation (révocation), termination of a treaty because of its breach

48 49 50 51

G. Venturini, La portée et les effets juridiques des attitudes et des actes unilatéraux des États, rcadi, 1964–ii (t.112), pp. 410–411. According to G. Venturini, they have the same importance as natural facts. G. Venturini calls them as faits purement licites. G. Venturini, op. cit., p. 413.

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by another party or a fundamental change of circumstances.52 Their common characteristic is that they consist of the element of auto-limitation (l’exercice d’un pouvoir d’auto-réglementation).53 The list of acts of the second category is also quite impressive. Venturini mentions in this context: notification, protest, declarations of science or knowledge (déclarations de science ou de conaissance) such as (besides notification) ­ascertainment of facts, as well as several declarations connected with opposition ­(dissentiment) such as (besides protest): reservation (réserve), warning (l’avertissement, anticipatory protest) and declarations concerning sentiments (déclarations de sentiment) such as excuses (présentation d’excuses).54 As examples of activités volontaires Venturini cites: acts aimed at extension of territorial sovereignty over terra nullius or territories of other states (such as occupation or possession), waiver of sovereignty (derelictio) and certain acts of war, such as military occupation or blockade.55 Venturini stresses that such acts are in the nature of material activities (actions matérielles) and not declarations of will.56 It is difficult however to deny the existence of will on the part of the state which is the author of such acts. The types of acts (activities) listed by Venturini will be invoked several times in this book. Only on the basis of detailed analysis will it be possible to assess the qualification(s) suggested by this author. At this point one can just refer to the very sophisticated and subtle character of his differentiations. This could be both a cause for admiration as well as a source of peril. The main danger is connected with the fact that several statements concerning acts called as negozi giuridici could be automatically contrasted and confronted with the views of other authors writing on unilateral acts of states. In fact however such statements may be hardly comparable, as the scope of negozi giuridici is relatively narrow. On the other hand the examples of negozi giuridici cited by Venturini have been questioned by some other proponents of a narrow definition of a unilateral act of state in public international law. A separate problem is the very relationship between the two typologies. The first is obviously wider in scope. The second one seems to assume the legal effects of acts which fit into it. This is however less than clear as regards declarations connected with the views of states on several matters, especially with declarations of disapproval. 52 53 54 55 56

Ibidem p. 414 et. seq. Ibidem, p. 428. Ibidem, p. 428 et. seq. Ibidem, p. 436 et. seq. Ibidem, p. 436.

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Evidently negozi giuridici may be seen as another version of the narrow definition of unilateral acts of states, present in the cited works of F. von Liszt, F. Pfluger or G. Morelli. This may be true. On the other hand one should consider another possible explanation. It would point to the fact that there are different unilateral acts of states. The differences among them call for typologies and classifications. But the fact of not being classified as negozi giuridici is not equal to not being a unilateral act of state giving rise to legal effects. In this sense, negozi giuridici or international legal transactions in the narrow meaning of the term may turn out to be a subcategory of unilateral acts of states in international law. Following this view, the remarks on the former have rather the character of a description of such a subcategory rather than the very definition of a unilateral act of state in public international law. 2.3

Definition of a Unilateral Act of State in Public International Law

The sceptical evaluation by W. Fiedler of various attempts to define unilateral acts of states has already been cited. According to him, it is impossible to define unilateral acts of states in public international law. This view is widely shared. Some authors do not repeat it as such, but nonetheless draw practical conclusions from it and avoid even an attempt to define unilateral acts of states. What is specially avoided is a classical (Aristotelian) definition. What they do instead is try to narrow the scope of their analyses and justify it, or even avoid justifying it. Such an attitude is presented by A. Cassesse.57 R. Bierzanek and J. Symonides write in a general way that besides international agreements expressing the common will of the parties, we can have to do with unilateral acts of states performed by states in order to give rise to legal effects.58 One may also encounter an express justification of the choice of only a part of those matters which could be prima facie covered by the term ‘unilateral acts of states’. W. Góralczyk writes that when we discuss unilateral acts of states we usually limit the notion to acts which are purely or predominantly international in character, so in effect to acts which could be called diplomatic.59 57 58 59

A. Cassese, International Law, Oxford 2005, p. 184. R. Bierzanek, J.Symonides, Prawo międzynarodowe publiczne, Warszawa 1994, p. 100. W. Góralczyk, Prawo międzynarodowe publiczne w zarysie, Warszawa 1989, p. 167.

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Such a way of presentation is evidently motivated by the obvious fact that a wide scope of the term ‘unilateral act’ makes every possible definition dangerous. Also K. Skubiszewski avoids presenting such a definition. On the contrary he writes that unilateral acts of states are numerous and he will concentrate only on ‘acts, which have an impact in the realm of international law’ or ‘are legally relevant in international relations’.60 In fact however, the path from act relevant from the perspective of international law to a legal act (legal transaction) is, or at least may be, long. Any internationally wrongful act is relevant from the perspective of international law, but is not a legal transaction because of that. This is also true when an internationally wrongful act paves the way to a new customary norm of international law. All the same some authors decided to construct a definition of unilateral acts of states, or at least to refer in a general and synthetic way to their common characteristics. Thus P. Vellas, for example, defines a unilateral act of state (acte unilatéral) as a legal transaction (acte juridique), by the means of which the will of a subject of law (in the context of public international law – a state) creates situations opposable to other subjects of the international community.61 This definition should be reversed, as in fact it is the author-state (the state which acts unilaterally) rather than other states to whom the act is (or rather may be) opposable. Interestingly enough however, Vellas concludes his rather superficial considerations of unilateral acts of states with the statement that they are a false category in legal science (fausse catégorie juridique).62 One can only regret that the author does not devote sufficient attention that his definition does not make it easier to arrive at valuable conclusions concerning unilateral acts of states. F. Pfluger defines a unilateral act (or in other words a unilateral legal transaction of public international law) as a single declaration of will of one or a few subjects of international law which is aimed to produce legal effects in the field of public international law and which produces them in accordance with that will because a 60 61 62

K. Skubiszewski, Unilateral Acts of States, in: M. Bedjaoui (ed.), International Law: Achievements and Prospects, Paris 1991, p. 221. P. Vellas, Droit international public. Institutions internationales, Paris 1970, p. 202. Ibidem, p. 206.

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norm of public international law attaches such effects to such a declaration.63 It would be difficult to deny the very precise character of that definition. In fact it refers to several elements which will be discussed separately in the following subchapters. Although that definition is modified somewhat by Pfluger in his subsequent analyses, nevertheless its value is very significant. D. Ruzié defines a unilateral act as an act by which one party creates norms which give rise to rights and duties in legal relationships interesting from the point of view of other subjects of international law.64 As has been already mentioned, that definition covers unilateral acts of states, so-called acts concerning jurisdiction (actes juridictionnels) and unilateral acts of international organizations.65 This is why it is difficult to compare it automatically with the definitions limited to unilateral acts of states only. E. Suy and N. Angelet define unilateral acts of states (einseitige Rechtsgeschäfte) as declarations of will of subjects of international law which are aimed to produce legal effects.66 A. Verdross and B. Simma write that a unilateral legal transaction (einseitiges Rechtsgeschäft) is a declaration of will of a single state or an organized community of states, by which legal effects intended by that subject or subjects take place within the framework of general international law.67 The last component points out that unilateral acts are not sources of international law, but of international obligations only. This topic will be discussed further in one of the next subchapters. The phrase ‘an organized community of states’ refers rather to international organizations, so it is not dwelt on in this work. The reference to wider categories may serve as an argument to abstain from traditional definitions. It goes without saying that a more narrow category fulfils the requirements of a wider one(s) and has its own, peculiar characteristics. In that sense the category of facts is narrowed in order to arrive at a 63

‘Einzige auf Herbeiführung einer vr. Wirkung gerichtete Willenserklärung zu verstehen die von einem einzige oder von mehreren zu einer Handlungsfreiheit verbundenen vr-Subjekten vorgenommen – deshalb die gewollte Wirkung nach sich zieht, weil ein objektiver Vrsatz an den Rechtsfolgewillen die entsprechende Rechtswirkung knüpft’, see: F. Pfluger, op. cit., p. 28. 64 D. Ruzié, op. cit., p. 49. 65 Ibidem. 66 E. Suy, N. Angelet, Rechtsgeschäfte, einseitige; in: i. Seidl-Hohenveldern, Lexikon des Rechts; Völkerrecht, Neuwied, Kriftel 2001, p. 319. 67 A. Verdross, B. Simma, Universelles Völkerrecht. Theorie und Praxis, Berlin 1984, p. 425.

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narrower category of acts, and the latter must be refined in order to arrive at legal acts (legal transactions); and finally this latter category must be divided into unilateral and non-unilateral acts/transactions. This is the attitude chosen by E. Suy.68 W.Czapliński also takes the notion of a legal act (legal transaction) as a point of reference. He defines it as an activity (action or inaction) adopted by a subject of law in order to create certain effects in public international law.69 He narrows down that definition several times in order to arrive at the notion of unilateral acts of states. Firstly, he indicates that a unilateral act is one coming from one subject of international law.70 Secondly, it goes without saying that what is at stake is not every act but only a ‘legal act’ in the above-mentioned meaning. The next two qualification criteria have to do with the autonomy of the act71 and its hetero-normative character.72 E. Suy writes that a given act may be treated as a unilateral legal transaction if it fulfils three conditions: (1) it must be performed by one subject of law only; (2) it may not be dependent on any other act; and (3) it may not give rise to duties for other subjects.73 The requirement that unilateral acts produce legal effects is emphasized by several authors; e.g. Y. Takano writes that unilateral acts of states create, modify or extinguish rights or duties.74 Also the special rapporteur in his first report wrote that: a unilateral act should be understood as an act which is attributable to one or more States and which creates a new legal relationship with a third State which did not participate in its elaboration. More precisely, a unilateral act is an expression of will which is attributable to one or 68 69

E. Suy, op. cit., p. 44. W. Czapliński, Akty jednostronne w prawie międzynarodowym, Sprawy Międzynarodowe 6/1988, p. 98. 70 Ibidem. 71 Ibidem, pp. 98–104. 72 Ibidem, pp. 104–107. 73 E. Suy, Les actes…, pp. 33 and 44. 74 Y. Takano, Einführung in das Völkerrecht, Köln, Berlin, Bonn, München 1984, B.2, p. 4.

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more subjects75 of international law, which is intended to produce legal effects and which does not depend for its effectiveness on any other legal act.76 When in his second report he started to present draft articles on unilateral acts of states, Art.1 of the draft stated that it was applicable to unilateral legal acts formulated by States which have international effects.77 In a commentary he wrote that: The draft articles apply to unilateral acts formulated by States, whether individually or collectively, which have international legal effects. They thus exclude acts of a political character and acts which, while also unilateral and legal, do not produce international effects.78 Art.2 of the draft79 stated that: For the purposes of the present draft articles “unilateral legal act” means an unequivocal, autonomous expression of will, formulated publicly by one or more States in relation to one or more other States, the international community as a whole or an international organization, with the intention of acquiring international legal obligations.80 The special rapporteur was aware of the fact that his draft articles did not produce a definition of a universal application or usefulness. He referred in this context to Art.2(1)(a) of the Vienna Convention on the law of treaties concerning the notion ‘treaty’.81 It is just a definition for the needs of the convention, without the ambition to convey entirely the true nature of a treaty in international law. 75 76 77 78 79 80 81

The question whether a unilateral act can only be taken by a single state or one or more states is dealt with in Subsection 2.7. 1. report, p. 25, par. 133. 2. report, p. 4, par. 18. 2. report, p. 5, par. 22. In the version of the second report. 2. report, p. 8, par. 38. 2. report, p. 8, par. 41.

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One should add that the very notion ‘unilateral legal act’ did not appear in the Guiding Principles. It is quite interesting as the draft, prepared by the special rapporteur in his ninth report contained principle 1, according to which [a] unilateral act of a State means a unilateral declaration formulated by a State with the intent of producing certain legal effects under international law.82 In fact however principle 1 of the Guiding Principles reads only that Declarations publicly made and manifesting the will to be bound may have the effect of creating legal obligations. When the conditions for this are met, the binding character of such declarations is based on good faith; interested States may then take them into consideration and rely on them; such States are entitled to require that such obligations be respected. In the light of the above statement one can only confirm the otherwise obvious fact that certain unilateral acts of states may take the form of declarations. This cannot replace the definition of unilateral acts of states. Hence, an attempt to define a unilateral act of state is in fact an attempt to refer in a concise way to its characteristics. This will be the aim of the rest of the present chapter. 2.4

Acts Eliminated by Definition from the Scope of Unilateral Acts of States in Public International Law

The precise definition of a unilateral act of state, as well as a general formulation of its characteristics, requires both positive and negative attributes. The latter aim to exclude certain elements from the definition of a unilateral act of state. This method was used during the works of the ilc on the topic of unilateral acts. The special rapporteur decided to eliminate a priori entire areas from the scope of his works. These were: (1) the acts of other subjects of international law, especially those of international organizations, including judicial bodies (authoritative acts), (2) acts which are outside the purview of international law (political acts) 82

9. report, p. 1.

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(3) wrongful acts and acts which under international law may engage the international responsibility of States, a topic which the Commission is considering separately; and (4) acts and conduct, such as silence and acquiescence, which, irrespective of whether they are legal acts or forms of expression of the will of States, are not purely unilateral in nature.83 Depending on the item considered, the rapporteur’s decision may be considered as more justified or less justified. The separate character of unilateral acts of states on the one hand and acts of international organizations on the other is understandable and does not require any special justification. Much more must be said, however, about political acts. The special rapporteur himself concedes that it is difficult to distinguish them from unilateral acts of states in public international law, noting that it is a difficult and complex distinction which defies any clear-cut classification.84 In the same place he stresses however that a legal act differs from a political act by its very nature: that is, by virtue of its scope, its effects and the mechanism for ensuring compliance by the States which are bound by it.85 The difference is due to the fact that, with respect to a political act [t]he basis of its obligatoriness appears to reside in morality and politics, rather than in international law.86 The stance of the special rapporteur was supported by A. Pellet, who ­compared the relationship between a unilateral legal act and a unilateral 83 84 85 86

1. report, par. 29, p. 8. 1. report, par. 41, p. 9. 1. report, par. 42, p. 9. 1. report, par. 43, p. 10. The special rapporteur writes on their differentiation as follows: ‘The intention of the State which formulates or issues a declaration is what really must determine its legal or political character: in other words, whether that State intends to enter into a legal engagement or a political engagement.’; see: 1 report, p. 10, par. 44.

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political act to the relationship between a treaty and a gentlemen’s agreement.87 This element was seriously debated in the ilc. Already during the discussions on the first report several ilc members pointed out the problems with distinguishing between legal and political acts,88 as well as the fact that the latter were respected even more strictly than former (legal acts).89 In fact however, these two elements may be more important in the context of an attempted codification of the topic of unilateral acts of states than for theoretical considerations of the topic in general, and in particular distinguishing them from political acts. Nobody can deny the political significance of various legal acts. The very term ‘political act’ is actually an abbreviation, however. It means that a given act has no legal effects. Therefore its separate character with respect to legal transactions is beyond any doubt. The special rapporteur decided to leave acts giving rise to international responsibility and liability outside the scope of his reports. Though this very fact may be justified, the actual justification chosen by the special rapporteur is not very convincing and less than satisfactory. He justifies this decision because such acts are the subject of a separate report of another ilc special rapporteur.90 Such an argument fails to answer important questions on the relationship between unilateral legal transactions and acts giving rise to responsibility. There is no doubt that such interrelationships are possible. J.H.W. Verzijl rightly indicates that certain acts of recognition could be treated as internationally wrongful acts.91 If one can imagine a breach of law in the form of conclusion of a treaty, it may also take a form of certain unilateral activities. Intuitively, it may be useful to deny them access to the category of international legal acts. Paradoxically, use of the very word ‘legal’ in English suggests that illegal acts should be eliminated from the scope of the present analysis. This is however only partly true. What one can exclude is the very category of ‘unilateral breaches of law’. In other words – actions undertaken individually by states against their obligations under international law are not 87

88 89 90 91

Summary records of the meetings of the fiftieth session, Yb.ilc, 1998, vol. i, 2525 meeting, p. 46, par. 37. For a positive evaluation of ilc member R.I. Goco, see: ibidem, 2524. meeting, p. 36, par. 38. See the remarks of the ilc member Q. He, summary records of the meetings of the fiftieth session, Yb.ILC, 1998, vol. i, 2526. meeting, p. 50, par. 16. See: remarks of the ilc member I.I. Lukashuk, Summary records of the meetings of the fiftieth session, Yb.ILC, 1998, vol. i, 2524 meeting, p. 37, par. 45. 1. report, par.47, p. 10. J.H.W. Verzijl, International Law in Historical Perspective, vol. ii, Leiden 1969, p. 576. A precipitate recognition is cited as an example.

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a separate category of unilateral acts of states within the meaning adopted in this work. On the other hand, nobody can guarantee that a certain accepted type of unilateral act will not turn out in concreto to be an internationally wrongful act. This aspect is more than important. A unilateral act of state in public international law is expected to have legal effects. In fact every internationally wrongful act has such a legal significance in the form of state responsibility. A general reference to legal effects of unilateral acts of states in public international law should be therefore supplemented with a qualification. Accordingly it may be said that legal effects in the form of state responsibility are not sufficient per se for the presence of a unilateral act of state in public international law. The special rapporteur came back to this question in his fourth report. He stressed that the report had to adopt a narrowed definition of a unilateral act.92 The main criterion used was based on the assumption that for the purposes of codification a unilateral legal act of a state is a manifestation of will expressed with the intention of producing specific legal effects.93 In discussing countermeasures, the special rapporteur explained that they must be excluded from the scope of the study of unilateral acts: Such acts, which are unilateral from a formal standpoint and are sometimes legal acts – when they are not actions or other conduct – are necessarily linked to a pre-existing commitment.94 Whatever one can think about this argument, it should be appreciated that the special rapporteur did not refer to yet another type of justification. He could have suggested that countermeasures must be excluded inasmuch as they are by definition a reaction to another act of another subject of law. In fact however that configuration is always present in protests and nobody denies them legal character because of their character as reactions. On the other hand, one cannot deny that countermeasures may take different forms – including forms of domestic law acts.95 It is moreover more than doubtful if it 92 93 94 95

4. report, p. 8, par. 38. 4. report, p. 8, par. 37ff. 4. report, pp. 9–10, par. 42. 4. report, p.9, par.41. It refers to an interesting example of countermeasures in the form of ‘Nicaragua’s adoption of domestic regulations, in particular Law No. 325 of 7 December 1999, imposing taxes on goods and services proceeding or originating from Honduras or Colombia’.

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is possible to distinguish a type of act which could be called a ‘countermeasure’. What is important is rather the context of performance of such acts. As was stated in the first chapter, the term ‘unilateral’ seems to be ideal for ­countermeasures. This observation, however, does not have to be decisive for the doctrinal choice and the doctrinal definition of unilateral acts of states in public international law. In referring to silence and acquiescence, the special rapporteur wrote that irrespective of whether they are legal acts or forms of expression of the will of States, [they] are not purely unilateral in nature.96 One should only add that in his fourth report the special rapporteur introduced another limitation, writing that [t]his excludes conduct and attitudes which, although of unquestionable relevance under international law, should be removed from consideration; among these are silence as a manifestation of will and attitudes and actions which, although they may produce legal effects, do not fall into the category of acts that concerns us – for example, implicit, conclusive acts of recognition or waiver or other de facto acts such as occupation, which is of historical importance.97 In fact, the special rapporteur did not justify that decision in any way, The only pertinent statement preceding the cited sentence was the one indicating that the special rapporteur would deal only with acts in the narrow meaning of the term. Silence has fundamental importance for the topic and will be referred to several times in this work. Summing up, the task of codification allows for various exclusions and limitations of the topic to be codified. These may be, but do not have to be, of importance for the theory of unilateral acts of state in public international law. In fact, that aspect of the works of the ilc turned out to be of value for the theoretical discussion however. What was of the utmost importance was the exclusion of internationally wrongful acts. Still, it is difficult to adopt the conclusions of the special rapporteur automatically because of methodological reasons. In fact the statement that a given object is not a unilateral act may have to do with different elements, requiring a systemic approach. They may be in particular: the ontological category (countermeasures, silence), legal 96 97

1. report, p. 8, par. 29. 4. report, p. 11, par. 49.

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effects at all (political acts), legal effects of particular kinds (internationally wrongful acts) or the competent subject (acts of international organizations). In fact the number of important elements is even larger, and they are going to be discussed further. Negative assessments can be found also in the legal literature. For example A. Verdross and B. Simma distinguish unilateral legal acts (unilateral legal transactions) on the one hand, and declarations, notifications and material acts (Rechtshandlungen, actes de fait, atti materiali) on the other hand.98 According to them, declarations either fail to give rise to legal effects, or these effects are regulated by legal norms themselves.99 Such an attitude is baffling, however, as the authors themselves concede that declarations may contain promises.100 Their approach in this regard will not be adopted in the present book. 2.5

Preconditions of a Unilateral Act of State in Public International Law

The wide diversity of unilateral acts of states in public international law constitutes the main challenge for authors trying to construct a definition of such acts, or to enumerate their characteristics. Just for illustrative purposes one can invoke the list of acts presented by P.-M. Dupuy. It covers: acts by which states present their views, make use of their rights, confirm them or even waive them; enactment of domestic laws; publishing of a communiqué, sending of a diplomatic note to another state or international organization.101 What is more, that list is not exhaustive. It is not the task of the present chapter to assess the correctness of this list. In Chapter 3 it will be compared to and confronted with other lists presented in the literature. What must be said already in this place is the fact that the great diversity of items included (at least by some authors) in the group category of unilateral acts of states calls for systematizations. These may serve one of three possible goals: – to distinguish true unilateral legal acts from the rest, and concentrate on the former only; – to present the differences among various types of acts, while trying to keep all of them within a group category of unilateral acts; 98 A. Verdross, B. Simma, op. cit., p. 426. 99 Ibidem. 100 Ibidem. 101 P.-M. Dupuy, op. cit., 2000, p. 322.

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– to combine the preceding two, that is to eliminate certain acts from group category, while at the same time showing the similarities and differences among the acts which are kept within it. What is of the utmost importance in the context of systemization is the criteria used. F. Pfluger distinguishes three such criteria, namely: the fact of being a legal transaction (Rechtsgeschäftlichkeit); the unilateral character (Einseitigkeit); and the fact of being governed by public international law (Völkerrechtligkeit). These elements are to a large extent intuitive, especially on the grounds of the German and the fact that the key notion ‘Rechtsgeschäft’ is used in a consequent way by the author of the first monograph of unilateral acts of states.102 F. Rigaldies also arrives at his definition of a unilateral act after the gradual narrowing of the scope of his interest to three elements: legal act (acte juridique), declaration of will and unilateral character (understood as coming from one legal subject only).103 Taking into consideration these and similar attempts, one can try to formulate similar (though not identical) criteria. They are as follows: 1. 2. 3.

being an act (in order to distinguish it from something which is not an act. The only assumption made at this level is that there may be elements which by definition are not acts at all); connection of a given act (type of act) with public international law (this criterion requires further comment below); unilateral character of an act (in order to distinguish it from bilateral or multilateral acts).

One cannot exclude that it would be possible to divide the second element into two: 1. 2.

the international character of an act; the legal character of an act.104

It is however far from obvious that the two last elements would automatically lead to the element pointing out the connection of a given act (type of act) 102 F. Pfluger, op. cit., p. 29. 103 F. Rigaldies, op. cit., pp. 417–419. 104 It remains to be determined whether regulation by means of a general empowering norm is sufficient. It is difficult to accept a priori a general assumption in this respect which would apply to every case.

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with public international law. They are evidently too general. This relates first of all to the reference to legal character of an act. A domestic law may also relate to international situations. For these reasons the preference will be for the first list. The criterion of unilateral character speaks for the exclusion from the scope of interest of treaties and acts forming treaties (that is, offer and acceptance). Any attempt to include them into unilateral acts must be treated as a serious mistake or misunderstanding. The same must be said with respect to transactions which are not treaties, but are impossible without the cooperation of two or more states. These may be designated as ‘non-unilateral by definition’. On the other hand, reference must be made to acts which are performed by a single state and therefore could be called unilateral, but their true nature is different. They will be discussed in the next subchapter dealing with the autonomy of a unilateral act. The second criterion, i.e. the connection of a given act (type of act) with public international law requires a few qualifications. First of all it must be stressed that the aim of this criterion to exclude from the scope of unilateral acts in public international law all acts and activities which are deprived of any legal effects. Having a legal effect is a precondition of being a unilateral act of state. On the ground of the notions Rechtsgeschäft or acte juridique this requirement goes without saying. In English a very imperfect reference to it is attempted by words ‘in public international law’ or the artificial formula ‘legal act’. The second requirement is that what is of interest is not just any legal effect, but only one with a connection to public international law. Acts which are performed by states unilaterally but give rise to effects only in the sphere of domestic law are outside the scope of our topic. This does however raise the topic of relationship between acts of international law and those of domestic law. This is touched upon in subchapter 2.8. The third requirement was already mentioned in the previous subchapter. Acts which are unilateral and give rise to legal effects in the sphere of public international law are outside the purview of this work if this effect is just state responsibility or liability. This raises the question of the shape of expected effects of unilateral acts. This topic is discussed in subchapter 2.9. This question is especially important inasmuch as the narrow definition of a unilateral act of state differs from broader one above all (if not exclusively) as regards the perceived legal effects of an act. It does this in two respects. First of all it formulates very ambitious requirements as regards the relationship between the legal effects and the will of the acting state. Secondly it presents a relatively short list of possible legal effects. Last but not least reference must be made to the element of being an act. On the surface it seems to be a kind of tautology: a unilateral act is an act. While

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the first chapter showed the wide scope of this term, it is not however unlimited. A priori one can point out some characteristics. Much more interesting new ones emerge when this notion is confronted with several branches of international law. The entire Part 2 is devoted to this end. Paradoxically enough, the elements of an ‘act’ play an important role in these analyses. There is hardly any other element which presents such difficulties in international discussion on unilateral acts of states in public international law. An attempt was made to differentiate between ‘act’ and ‘activity’. The latter term was referred to during the works of the ilc on the topic of unilateral acts of states in public international law. In particular, during the debates on the first report, when I. Brownlie referred to, inter alia, acts not connected with the intentional production of legal obligations, another ilc member, G. Hafner said that all five institutions referred to by Mr. Brownlie were the result of “activities” or “attitudes” of States, rather than of “acts” of States as the term was usually understood.105 In this context he asked: Should the unilateral act be understood as comprising all the activities of the State that had an effect, or as comprising only activities of the State that were intended to create a legal effect, in which case the term “act” would cover a narrower field than the term “activity”?.106 In fact however this fragment of the exchange does not point out the ontological difference between act and activity, but at the elements which are added by lawyers to the word ‘act’. In our terminology ‘legal effects’ are a separate ­element of discussion, not included in the word ‘act’ as such. In fact, the attempts to differentiate act and activity are hardly convincing. The term ‘act’ is broad enough to encompass any activity. Thus it is no wonder that they are used interchangeably.107 There is also no problem for a single act to be composed of several acts. A promise may take place in one declaration but there is no obstacle to it taking place by means of two or more declarations. 105 Summary records of the meetings of the fiftieth session, Yb.ILC, 1998, vol. i, 2524 meeting, p. 36, par. 34. 106 Summary records of the meetings of the fiftieth session, Yb.ILC, 1998, vol.i, 2524 meeting, p. 36, par. 34. 107 Reference could be made to the classical text on agency in international law: A. P. Sereni, Agency in international law, ajil 1940, p. 639.

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On the other hand, a certain level of conciseness is necessary for the presence of an act. That is why it would be difficult to call a process lasting for many years an act. Still, there is hardly any possibility to set a maximum time limit on use of the term ‘act’. In fact what we face here is a question of description and giving a name for different phenomena. So, for example, if we conclude that occupation is an act and prescription is not, this does not mean that prescription is absent in international law. It simply means that it will not be called an act. Another event that could be hardly called an act is the creation of a new state. It is comprised of such a complex of facts and acts that calling it an ‘act’ would be a real challenge. Discussion on the presence or absence of an ‘act’ in a given situation is first of all concerned with the ontological category of a given object or phenomenon. For example one can wonder if it is possible to label consent as an act. A negative answer seems to be obvious. Consent is a kind of possible content comprised of acts or other elements. It could be seen as a result of them. In general, consent is in another ontological category than act. The same applies to processes or facts which otherwise avoid the character of an act. In some cases a fundamental question may emerge whether a set of events can be seen as one and called an act. A special challenge may be connected with such an act being recognized as act of domestic law. Thus while it would be too idealistic to expect too much from the very notion of act, it nevertheless plays a role in setting the limits of the scope of the topic under consideration in this work. It could be hardly compared with the respective role of the two remaining criteria however. They must be discussed in more detail. 2.6

Autonomy of a Unilateral Act

One of the aims of Chapter 1 was to show the very broad scope of the term ‘unilateral’. In fact very different phenomena may be designated as unilateral. One possible meaning of the term would suggest that any act performed by a single state is unilateral. In fact, however, many such acts are provided for by treaties. They may be facultative under the provisions of a given treaty, or even obligatory. One can seriously question both the possibility and the wisdom of deeming such acts as unilateral. This is why a true turning-point in the d­ octrine of unilateral acts of states took place when autonomous and non-autonomous acts were distinguished. It is quite difficult to find the author of this distinction. In fact the dispute focused rather on whether a given act was of a conventional or unilateral ­character, rather than on the classification of unilateral acts as autonomous or

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non-autonomous. What’s more, the presence of notification in the various lists of unilateral acts108 bears witness to the rather a weak sensitivity to the problem of autonomy in the older literature. Nonetheless the same literature opts for a narrow rather than broad catalogue of unilateral acts of states. In fact they did not cover several acts from the field of the law of treaties.109 The element of autonomy was not a topic of the two first monographs of unilateral acts (of Pfluger and Biscottini). The stance of E. Suy’s monograph is completely different. Suy does not use the very term ‘autonomy’ but excludes from his work: – unilateral acts dependent upon other unilateral acts (offer and acceptance) – unilateral acts dependent upon bilateral or multilateral acts.110 The conventional provisions on unilateral declarations (such as colonial clauses) are seen by Suy as facultative clauses, and acts based on them as dependent acts (actes juridiques dépendantes).111 In consequence, he treats the lack of dependence upon other acts as an element of definition of a unilateral act of state (acte juridique unilatéral). This view is shared by other authors.112 It is difficult to deny the phenomenon of acts which are unilateral only apparently. They seem to be unilateral because they are issued by a single state. All the same their legal effects are determined by other acts (especially bilateral or multilateral ones) or are dependent upon acts of another state. This phenomenon was noted even by writers adopting a very wide catalogue of unilateral acts of states. One of them is P.-M. Dupuy. He points to two phenomena:113 – acts connected with international agreements (accession, reservation, legal termination of a treaty, exit from an international organization),114 – the fact that the co-existence of two unilateral acts may lead to an international agreement.115 108 109 110 111 112 113 114

Vide: lists of unilateral acts presented in Chapter 3. Types of unilateral acts are discussed in the next chapter. E. Suy, op. cit., pp. 30–31. Ibidem, p. 32. D. Ruzié, op. cit., p. 49. P.-M. Dupuy, op. cit., pp. 327–328. This author notes that such acts have formally unilateral character and give rise to legal effects but would be senseless in the lack of an international agreement, see: P.-M. Dupuy, op. cit., p. 327. 115 P.-M. Dupuy introduces the notion of complex juridical acts; P.-M. Dupuy, op. cit., pp. 327–328.

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In the Polish literature, W. Góralczyk writes that acts which are formally an expression of will of one state but which are connected with other acts (unilateral or not) do not fall under the notion of unilateral acts of states in public international law.116 W. Czapliński, originally enough, discusses separately the unilateral character of acts and their autonomy.117 For him, the essence of the unilateral character of a given act is the lack of another partner whose statement would lead to the emergence of an international agreement. It means that it is not so than an act of a given state and a reply of another partner form together a treaty. He stresses that such a partner could be either a state, a group of states, or the international community.118 Referring to the element of autonomy, W.Czapliński notes that this element was the greatest problem both for the proponents and for the opponents of the separate legal character of unilateral acts of states. He associates those doubts ‘in particular’ with acts which are allowed or even made compulsory by treaties.119 The words ‘in particular’ must be underscored. They may suggest that the relationship between unilateral acts and treaties is not the only one which is important in this context. Acts connected with international agreements are discussed in other places in this book, especially in Chapter 5. What is of importance here is that they are a perfect illustration of non-autonomous acts. Suy did not use the notions unilateral act sensu stricto and sensu largo. Nowadays they are frequently used. The latter category would cover both autonomous and non-autonomous acts. The notion of unilateral act sensu stricto would be reserved for autonomous acts only. This aspect was developed in the book by W. Czapliński and A. Wyrozumska. They write that the broad notion of unilateral acts covers autonomous acts as well as other acts, the effects of which are determined by other norms of international law (…) or is dependent on other acts (unilateral acts sensu largo).120 W. Czapliński and A. Wyrozumska divide unilateral acts sensu largo into three groups: 116 W. Góralczyk, op. cit., p. 168. 117 W. Czapliński, op. cit., p. 98. 118 Ibidem. 119 Ibidem. 120 W. Czapliński, A. Wyrozumska, Prawo międzynarodowe publiczne. Zagadnienia systemowe, Warszawa 2004, p. 114.

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– obligatory acts (acts required by treaties or custom), – facultative acts expressly provided for by international law (e.g. by treaties), – mixed acts (having at the same time an internal and international character).121 A few remarks must be made in this context. Firstly, it should be stressed that the notion ‘unilateral legal acts of states sensu largo’ is a group category – comprising both autonomous acts (unilateral acts of states sensu stricto) and other acts. Secondly, it would be difficult to claim that mixed acts are very similar to obligatory or facultative acts provided for by treaties. That is why a separate subchapter will be devoted to the relationship of international acts and domestic ones. Thirdly, a topic which also requires examination is whether acts provided for by customary norms should be really excluded from the notion of unilateral acts of states sensu stricto. Having said the above, the cited passage seems to be completely uncontroversial as regards obligatory or facultative acts provided for by treaties. The fundamental work of N. Quoc Dinh distinguishes, besides autonomous acts, three other groups of acts, to wit: (a) acts connected with treaties, (b) acts connected with custom, (c) acts connected with resolutions of international organizations.122 K. Zemanek, on the other hand, distinguishes acts according to the aim which they are to serve. Thus he distinguishes so-called adjunctive unilateral legal acts on the one hand and autonomous ones on the other. The former are comprised of elements of treaty-making or the custom-forming process and have to be evaluated in the context of these processes.123 Sometimes the difficulties with distinguishing true unilateral acts from those which are merely apparently unilateral arise from the wording of the icj/pcij 121 Ibidem, pp. 114–116. 122 N. Quoc Dinh, op. cit., pp. 355–357. That is why this manual refers not only to types of acts (like accession or reservation), but also concrete acts connected with concrete treaties (e.g. the Adenauer declaration to the Third Protocol to the 1954 Paris Agreements), with concrete resolutions, or acts giving rise to new customary norms. 123 K. Zemanek, Unilateral Legal Acts Revisited, in: K. Wellens (ed.), International Law: Theory and Practice, 1998, p. 210.

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judgments. This is mainly due to the fact that their judgments designate declarations made on the basis of art.36 (2) of the Statute of the icj as unilateral acts. The judgment of the pcij in the Phosphates of Morocco case, and of the icj in the case of Norwegian loans, could serve as examples.124 In these judgments the term ‘unilateral act’ is used expressis verbis with respect to declarations on the acceptance of the jurisdiction of the respective court. In the face of such an unequivocal stance of the World Courts one can understand, from the psychological point of view, those authors who try to adopt the same terminology. However, it is difficult to treat those judgment as arguments in the doctrinal discussion of unilateral acts. As was said – the word ‘unilateral’ is broad enough that it cannot be treated as a reserved and highly regulated good. In fact, many different characteristics may be qualified as unilateral. The doctrine of unilateral acts of states must be prepared to decipher them. One should stress here that in many respects not only is the drawing of a definite border between autonomous and non-autonomous acts problematic, but even making any assumptions in this respect is very difficult. Special care is necessary in this regard. So e.g. the special rapporteur in his first report writes that: a strictly unilateral promise should be distinguished from a promise made by a State in response to the request of another State; from a promise whose purpose is to obtain its acceptance by another State; and from a promise made on condition of reciprocity. In all these cases the promise ceases to be autonomous and becomes situated within a relationship based on the law of international agreements.125 However convincing this may sound, it is less than obvious however. In my opinion, the mere request of another state is not enough to exclude the unilateral character of a given act. What is of decisive importance is the will of the author-state. It would be difficult to argue that it concludes a treaty against its will. On the contrary two elements must be confirmed. They are the presence of a legal obligation and the lack of a treaty. So in fact one must either confirm the existence of a unilateral act or look for another category – something between treaty and unilateral act.

124 F. Villagrán Kramer, Les actes unilatéraux dans le cadre de la jurisprudence internationale, in: International Law on the Eve of the Twenty-first Century. Views from the International Law Commission, un New York 1997, pp. 140–141. 125 1. report, par. 167, p. 30.

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Another important element is the reaction of the other/another state. The special rapporteur in his third report stresses that unilateral acts produce legal effects irrespective of whether or not they are accepted by the addressee; but he concedes that on this point there are different positions and views within the Commission.126 He also cites the opinion expressed in the vi Committee, according to which [i]t was unimaginable that a unilateral act would have legal effects in the relations between its author and another subject of international law if the latter had raised objections.127 The special rapporteur seems to perceive that element as a peril for his thesis on the autonomy of unilateral acts of states and claims that promises can produce legal effects independently of whether they are accepted by the addressee.128 This topic will be discussed in more detail in Chapter 5 and in parts devoted to promise and waiver.129 A most important aspect of the autonomy of acts refers to their relationship to customary norms of public international law. The opinions denying autonomy to acts connected with custom have already been invoked. The manual of N. Quoc Dinh presents that as the dominant view.130 It cites the conferment of nationality as an example of ‘acts stemming from the custom.’131 The special rapporteur, in his first report, also excluded from the scope of his study acts which, although formally unilateral, do not create a new legal relationship but are associated or linked with a pre-existing treaty or customary legal norm.132 126 127 128 129

3. report, p. 11, par. 60. 3. report, p. 11, par. 65. 3. report, p. 12, par. 68. Equally interesting conclusions emerge when one analyses this problem with respect to international recognition. 130 N. Quoc Dinh, op. cit., p. 354. 131 Ibidem, p. 327. 132 1. report, par.22, p. 7.

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It is the latter category that is of interest here. The special rapporteur denied autonomy to acts regulated by custom, as he wrote: These acts, although they appear to be strictly unilateral, are linked to a pre-existing (…) customary rule. Such acts do not produce legal effects except by virtue of a general rule of international law which establishes their conditions and modalities; the unilateral act is (in these cases) the condition for the application of a status or regime of international law.133 His statement on unilateral acts regulated by custom may be even a greater exaggeration, as he asserted that they go beyond the scope of strictly unilateral acts and fall within the realm of treaty relations.134 In his second report, the special rapporteur referred precisely to the autonomy of acts to justify the exclusion from his study of internationally wrongful acts. He wrote that [i]It seems difficult to conceive of an act which gives rise to the international responsibility of a State without being linked to the violation of a pre-existing norm, particularly the primary norm which the act in question is alleged to violate.135 These conclusions are reported here in extenso with the aim to demonstrate how many false conclusions can be inferred from wrong premises. In fact there can be no doubt that the premise chosen by the special rapporteur is completely wrong. One did not have to wait long for the confirmation of that truth. Already in the fourth report the special rapporteur referred all the same to acts regulated by custom as examples of unilateral legal acts.136 Even earlier, in his third report, he found it useful to confess that it is true that all unilateral acts are based on international law.137

133 134 135 136 137

1. report, p. 20, par. 106. See also: 2. report, par. 62, p. 11. 2. report, par. 62, p. 11. 2. report, p. 3, par. 9. 4. report, p. 3, par. 8. 3. report, p. 11, par. 60.

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One cannot abstain from detecting a kind of anxiety on the part of the special rapporteur in connection with this fact. That is probably why he makes the reservation that this very broad approach cannot be the yardstick for determining the autonomy of the act. The point is to exclude, by means of this criterion, acts linked to other regimes, such as all acts linked to treaty law.138 As has been said, this latter conclusion does not give rise to any special doubts. One should add that in the fifth report the special rapporteur removed references to autonomy from the definition of unilateral acts, hinting that it was not his own decision but rather the result of discussions in the ilc (a veiled reference to the pressure of other members).139 Based on the above, it seemed impossible to adopt in this book an a priori assumption that, for example, a waiver is a unilateral act of a state while the establishment of a maritime zone is not, as it is based on a customary norm. Both waiver and the establishment of maritime zones are the subject of such norms. While there are obvious differences between them, there are also similarities. And the fact of being regulated by custom belongs to the latter, not to the former. What is even more important is the very aim of distinguishing autonomous unilateral acts from non-autonomous ones. Usually it is not justified in any particular way. What’s more – it may seem strange that an author criticises a narrow classical catalogue of unilateral acts of states and yet insists on their autonomy. On the surface it may look like self-contradiction. It is, however, only an apparent self-contradiction, and in fact it is not difficult to justify. Let us imagine that somebody tries to draw conclusions on unilateral acts of states on the basis of the characteristics of the unilateral declarations accepting the jurisdiction of the icj. Nobody would doubt that such reasoning is more than dubious. In fact the latter declaration is regulated by a contractual provision, so it can tell us nothing, or very little, about true unilateral acts of states. The work of N. Quoc Dinh is one of a few which refers to what he considers to be the underlying aim of considerations concerning the autonomy of unilateral acts. According to him,

138 3. report, p. 11, par. 61. 139 5. report, p. 12, par. 52. For the shape of proposed art. 1 containing definition, see: 5. report, p. 18, par. 81.

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The requirement of autonomy of a unilateral act is supported by the proponents of a narrow notion and is aimed at the substantive (sensiblement) limitation of unilateral acts of states. If we look at the topic not from the perspective of formal sources of law but from the perspective of its creation, the requirement of autonomy is no longer a necessary element of definition of a unilateral act. We can give up that element all the more, as there is no unanimity as regards the acts fulfilling that requirement.140 In fact this element cannot be given up inasmuch as it touches upon the essence of the described phenomenon. On the contrary, it must be stressed. The aim of the present book is not to introduce censorship and limit the use of the word ‘unilateral’. Nobody can deny anybody the right to speak about a ‘unilateral declaration on the acceptance of the jurisdiction of the icj’, or a reservation, especially in that the respective legal instruments governing them use that adjective. What is important is to assess precisely the legal nature of a given act. That is why the use of the terms ‘unilateral act sensu stricto’ and ‘unilateral act sensu largo’ allows one to avoid any misunderstandings in this respect. Nobody wants to close the discussion of unilateral acts sensu largo. For this reason the entire Chapter 5 will be devoted to acts performed by states individually and regulated by the law of treaties, and Part 3 will refer to acts forming international agreements. In fact the element of autonomy will be present in all the following parts – both when discussing classical acts as well as when looking for other (less popular) unilateral acts of states. This element is in fact quite complex. It should be kept in mind that its aim is rather to classify and describe rather than to determine the legal force of an act. All the same, autonomy is an important criterion and will be treated as such. 2.7

Must a Unilateral Act Emanate from a Single State Only? The Problem of Collective Acts

There is no doubt that the approach which seems to be the most compatible with common sense and intuition would suggest that a unilateral act is by definition an act performed by one subject of law only. As only acts of states are of interest here, so in this sense a unilateral act would be the one emanating from one state only. One must however observe that the views of the doctrine go rather against that intuitive picture. 140 N. Quoc Dinh, op. cit., p. 355.

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The author of the first monograph of unilateral acts of states referred to this matter expressly. According to him, a unilateral act of a state is a declaration of will of one or several subjects of law,141 A. Verdross and B. Simma also consider that a unilateral legal transaction (einseitiges Rechtsgeschäft) may come not only from one state but also from an organized society of states. P.-M. Dupuy also opts for the possibility of collective acts of states.142 Interestingly, W. Czapliński writes that a unilateral act must be issued by one subject of international law,143 although in almost the same place he writes that a unilateral act is ex definitione an act not having a contractual character, i.e. such that was made by one state or a group of states forming one part.144 So it seems he also accepts collective acts as unilateral. On the other hand E. Suy opts for limiting the notion of a unilateral act (acte juridique) to acts performed by one subject of international law.145 This is also the position of D. Ruzié.146 However it should be noted that J. Dehaussy entered in a serious dispute with Suy.147 Dehaussy invoked the argument of etymology. He pointed out that by definition the term ‘unilateral’ referred to one party (in Latin latus, in German Seite), and not necessarily one subject only.148 Assuming that Dehaussy is right, the essence of distinguishing unilateral acts from all others would be the answer to the question whether an act is designed to regulate the mutual relations of the authors (a bilateral or multilateral act) or other persons (unilateral act). Such a concept would lead to the automatic qualification as unilateral acts of all examples of pactum in favorem tertii or pactum in onus tertii (within the limits determined by public international law). Such a description is hardly acceptable. This is all the more so if one takes into consideration the fact that many treaties regulate at the same time relations between/among the parties 141 F. Pfluger, op. cit., p. 28. 142 P.-M. Dupuy, op. cit., p. 325. 143 W. Czapliński, op. cit., p. 98. 144 Ibidem. 145 E. Suy, op. cit., p. 33, see also: p. 44. 146 D. Ruzié, op. cit., p. 49. 147 J. Dehaussy, op. cit., p. 51et. seq. 148 J. Dehaussy, op. cit., p. 52.

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and influence their relations with third states. Even such arguments are not especially necessary to rebut the theses of Dehaussy (or of M. Eisemann, whom Dehaussy invokes in this respect). They rest on a false premise. According to it, the essence of an agreement is to regulate mutual rights and duties. In fact agreements regulate all matters which the parties decide to put into them. The parties may decide on territorial cession between themselves or on an exchange of youth. Such an agreement actually regulates the mutual rights and duties of states parties. They may, however, e.g. open their airspace not only for themselves but also for planes of all states or several other states. Last but not least they may insert into the agreement the recognition of another new state (not participating in the agreement). Such objects rather escape the narrow notion of regulation of mutual rights and obligations. Also, the special rapporteur refers to this question in his first report. He writes a unilateral act should be understood as an act which is attributable to one or more States and which creates a new legal relationship with a third State which did not participate in its elaboration.149 It is clear that he also opts for unilateral collective acts. He writes expressly that With regard to form, the doctrine generally considers that what is involved is a single expression of will on the part of one or more States. Unilateral acts may accordingly be classified as individual or collective.150 He simultaneously makes the reservation that The fact that the act is a single expression of will does not mean that the subject of law that performs it is also single. To think otherwise would preclude recognition of the variety of strictly unilateral acts.151 The special rapporteur does not go as far as to state expressly that a treaty could be qualified as a unilateral act. His notion of collective acts is ambiguous enough to save him from such a conclusion. This could be of crucial importance. Suffice it to say that seeing a unilateral act in a treaty is a kind of p ­ aradox. It would lead to a special and unjustified relativism – the same act would be 149 1. report, p. 25, par. 133. 150 1. report, p. 26, par. 135. 151 1. report, p. 26, par. 135. See also: 4. report, p. 11, par. 47; it refers to the element of form as well the problem of individual and collective acts.

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bilateral (multilateral) for certain subjects, and unilateral from the perspective of others. F. Rigaldies also refers to the dispute whether the essence of the unilateral character of an act lies in one will (l’unicité de la volonté), or the fact of the existence of one party (one side, but not necessarily one person only) (unilatéralisme).152 Rigaldies himself regards this dispute as futile and reserves the notion of unilateral acts to those coming from one subject only.153 It is easy to see that one of the reasons for that decision is the fact that it allows one to embrace the acts of international organizations within the notion of unilateral acts. The issue of international organizations is, however, of secondary importance with respect to the topic of the present work. It would be very comfortable for an author writing on the topic to adopt beforehand the thesis that only an act performed by one state falls within the notion of a unilateral act of state. I am not ready however to insert this element into the definition of a unilateral act of state. It would be another unwelcome example of answering an important question before giving oneself the chance to analyse it carefully. That is why the definitive answer should be rather suggested after than before the discussion of types of unilateral acts. Still a few remarks must be made here. Firstly, the possibility of regarding treaties as unilateral acts is contrary both to logic and common sense. I am ready to adopt a priori an assumption according to which no treaty could be qualified as a unilateral act. The same applies to acts which are not treaties but emerge by definition only within the framework of cooperation of two or more states. Secondly, one can expect that the attitude toward collective acts must be different with respect to such acts as waiver or promise, and with respect to an act such as protest. Without any illusion that such divisions will be always easy, one may accept that in some situations acts performed by several states will be treated as unilateral acts. The borderline will be, however, the existence of an international agreement. 2.8

Unilateral Acts of International Law and of Municipal Law

W. Góralczyk writes that when we discuss unilateral acts of states we usually limit that notion to acts which are purely or predominantly international in character, so in 152 F.Rigaldies, op. cit., p.419. 153 Ibidem.

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effect to acts which could be called diplomatic. They are international both as regards the form, as well as the content. They are performed by state organs which are empowered to act in international relations; they are aimed at bringing about effects in international relations and their content is limited to international relations as well.154 Such a strong declaration could have been understood as an argument for elimination of domestic acts from the discussion of unilateral acts of states. However, this is not the stance of the cited author, who writes in another place that there are many acts which are at the same time domestic acts and international acts.155 As examples Góralczyk invokes domestic provisions on maritime zones as well as acts concerning the nationality of humans, legal persons, ships and airplanes.156 Dehaussy also opts for the inclusion of some domestic acts into the discussion of unilateral acts of states.157 He cites in this context acts determining territorial or personal jurisdiction of a state, as well as the scope of its powers with respect to foreigners.158 For P.-M. Dupuy such acts are a mere subcategory of unilateral acts.159 On the other hand E. Suy excludes the possibility of treating the conferment of nationality as a unilateral legal act of a state in public international law.160 W. Czapliński undertook a radical attempt to eliminate all domestic acts from the notion of unilateral legal acts of states in public international law.161 He writes that one should assume that acts of domestic law, even if they give rise to certain effects of international law (e.g. concern the state territory, territorial sea, the scope of jurisdiction of courts or nationality) cannot be treated as unilateral acts of states being sources of international law.162 154 W. Góralczyk, op. cit., p.167. 155 Ibidem. 156 Ibidem. pp.167–168. 157 J. Dehaussy, Les actes juridiques unilatéraux en droit international public: à propos d’une théorie restrictive, Journal de Droit International, 1/1965, p.55. 158 Ibidem. 159 P.-M. Dupuy, op. cit., pp.324–325. 160 E. Suy, op. cit., p.24. 161 W. Czapliński, op. cit., p.102 162 Ibidem.

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In fact one can hardly accept a definition of unilateral acts of states which would limit its scope to sources of public international law. Clearly protest is not such a source but is treated as such an act. Secondly, one can wonder how to understand the statement according to which ‘a domestic act is not an act of international law’. Certainly a statute (act of Parliament) is not as such a separate type of act of international law. This can be said about the law on companies, administrative procedure, kindergartens or cooperatives as well as a statute on territorial sea. However, there is still the question whether the very establishment of territorial sea at a given width cannot be called such an act. What’s more, no special skills are necessary to imagine a situation in which a certain unquestioned unilateral act takes the form of a domestic act. It doesn’t matter whether recognition or a promise take the form of a statute, administrative decision, or a resolution of a government. It is an act of international law and the fact of giving it a form of act of domestic law does not deprive it of that character. Czapliński justifies his stance by arguing that with respect to domestic acts their effectiveness will be limited to the territory of a given state and other states must respect them only within that scope.163 The special rapporteur also had to address this question. In his first report he wrote that: Reference to internal legal acts of States which have international effects leads us on to the consideration of internal legal acts which do not produce international effects and which therefore cannot be regarded as unilateral acts of States, even less as purely unilateral acts.164 The most striking fact is that the special rapporteur does not speak about internal acts in the preceding sections. The special rapporteur has great problems with determining which domestic acts have international effects. So, for example, he writes that A State may, in exercise of its public functions, formulate internal unilateral legal acts which may have only an internal legal effect and never, except where they are in accordance with international law, international

163 Ibidem. 164 1. report, p.20, par. 109.

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legal effects, such as those referred to above on the establishment of the exclusive economic zone of the State.165 One can understand this sentence in two ways. One would suggest that the establishment of the eez has international effects, unlike some other internal acts. The other understanding would suggest that the eez can have effects only via customary rules of law and only if it is in conformity with that law. A few lines later however the special rapporteur writes that National laws, such as those concerning nationality and maritime delimitation, may have an impact in the international sphere, in addition to their importance in relation to the formation of customary rules, as mentioned above.166 Undeniably the postulate to distinguish between internal and international acts is a valuable element in the doctrinal discussion. In fact, any domestic law could be qualified as unilateral, as was shown in Chapter 1. This situation could lead to complete confusion. On the other hand, however, an attempt to disqualify all domestic acts and a priori exclude them from the definition of a unilateral act of state is also dangerous. It could lead to an artificial narrowing of the notion of unilateral acts of states. Without excluding it a priori, one cannot accept it a priori as well. That is why the search for unilateral acts of states in several branches of law, undertaken in Part 2, refers to several acts which many authors seem ready to treat a priori as domestic law acts and exclude from their analysis. 2.9

General References to the Legal Effects of Unilateral Acts

It would seem to be a truism to say that each unilateral act gives rise to its own legal effects. However, the doctrine usually tries to grasp them in a more general way. In the field of the law of treaties such a general formulation is to be found in the pacta sunt servanda principle. There is no doubt that the espousers of doctrine would be happy to find a kind of mutation of this principle as applicable to unilateral acts of states. At least some of the definitions presented above were aimed at the articulation of this formula. Now is the proper time to refer to that aspect of the topic. 165 1. report, p. 21, par. 111. 166 1. report, p. 21, par. 112.

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I started this subsection with the statement that the legal effects of all acts ‘seem to be a truism’. I did so due to the fact that several voices can be heard putting into doubt the legal effects of any unilateral acts, or at least of some of them. An extreme opinion denies any legal effects to any unilateral act of state. A.-Ch. Kiss writes that it is a fundamental principle that unilateral acts bind neither the states which issued them nor all the more any other states.167 For him it is a reason of a small interest of the doctrine in unilateral acts of states. On the other hand, the same author writes that certain unilateral acts of states give rise to legal effects which could be quite considerable.168 It is hard to reconcile the two above-cited statements. Only a very special meaning of the term ‘binding’ would make a reconciliation possible. Can one imagine ‘legal effects’ which could not be described as ‘binding’ on the author of a unilateral act? Let us consider this with respect to the so-called classical acts. In this context one can wonder whether protest could be described as binding. A negative answer seems to be obvious. It is much less obvious with respect to waiver. It could be easily described as eliminating a given right or claim. But it is impossible to divorce that legal effect from its binding force. If waiver is not binding, one can waive a given right on Monday and on Tuesday make demands anew based on that very right. In support of his first statement Kiss cites the opinion of the French delegate in the un Security Council, formulated in 1957. It concerned the legal effects of Egypt’s unilateral declaration concerning the Suez Channel. It read as follows: a unilateral declaration, even if registered, cannot have value (portée) other than as a unilateral act. This means that a declaration adopted unilaterally may be modified or annulled by the same means.169

167 A.-Ch. Kiss, Les actes unilatéraux dans la pratique française du droit international, rgdip, 1961, p.317. 168 Ibidem. 169 onu, Conseil de Sécurité, 776 séance, tenue le 26 avril 1957, p.11; citation on the basis of A.-Ch. Kiss, op. cit., p.317, footnote 1.

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The very possibility of revoking an act is not equal to the lack of its force/effect, though it evidently affects the practical value of such an instrument. This topic is further discussed in the chapter on promise and other classical acts. Summing up, it is difficult to treat the position of A.-Ch. Kiss as a consequential denial of any legal effects to unilateral acts of states. Ch. Rousseau also presents a relatively radical position with respect to the legal effects of unilateral acts of states.170 He indicates three elements which every such act must possess: 1. 2. 3.

it must be a legal transaction (acte juridique) based on a demonstration of will (manifestation de volonté), as any legal transaction (acte juridique), it must bring about legal effects, that is rights and duties of third persons (in this sense such acts are called hetero-normative), it must be a source of international law.

While the first element is a tautology and does not need to be discussed, the two other elements refer directly to legal effects. Starting first with the third element, it evidently goes too far. The second element could be particularly controversial as regards the obligations of third states. Interestingly enough, while Rousseau opts for the possibility of creating such duties,171 he is not very consequent in this respect. In fact his list of unilateral acts of states is quite narrow and contains only the classical acts, including notification. The impossibility to create ex nihilo duties of other states by means of a unilateral act seems to be obvious.172 Rousseau criticises it. In his opinion that impossibility is inferred from the principle of autonomy of will, which he suggests is a principle of private law only. At the same time, according to him this position is irreconcilable with contemporary analyses of the international law on unilateral acts of states.173 In fact however this criticism is hardly convincing, and for that matter can hardly be understood. The impossibility to create obligations for other states is a normal consequence of state sovereignty. 170 Ch. Rousseau, op. cit., t. i, pp. 417–418. 171 Ibidem, p.417. 172 J. Dehaussy, op. cit., p.63. One should stress that this principle applies to acts of states as such. On the other hand, binding acts of organizations usually give rise to obligations for member states. The basis of that legal force is the statute of a given organization. This is why it is difficult to compare the latter with creation of obligations for third persons in the ordinary meaning of the term. 173 C. Rousseau, op. cit., t. i, p. 417.

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Several authors attempt to refer in a synthetic way to the legal effects of unilateral acts of states. R. Jennings and A. Watts write that unilateral acts of states have effects upon the legal position of other states.174 One can assume that these effects may include the creation of new obligations of the authorstate, but cannot consist in the creation of new obligations of other states. F. Pfluger several times underlines two key elements: – legal effects of an act are determined by the legal norm which attaches to the act; therefore the will of the author state is not the source of these legal effects, – the effects must be in conformity with that will, otherwise one does not have to do with a legal transaction.175 The second requirement is a simple repetition of a most important element of the narrow definition of a unilateral act of state in public international law. At the same time Pfluger concedes that not every single element of the effect must in fact be contemplated by the author state. It is rather their general shape that must be generated by the expression of will (according to the principle that whoever wants something is deemed to want all elements of that something).176 Several attempts have been made to enumerate the types of these legal effects. They are deemed to consist in the creation, modification, or extinction of rights or duties.177 This trio is very popular. It would be a mistake to treat it as dogma, however. For example Pfluger, the author of the first monograph on unilateral acts, after having presented this trio adds at once that a given transaction can be aimed (gerichtet sein) at the creation of a given legal situation (Gestaltung einer Rechtslage), or the preservation or the loss of certain qualifications (Verleihung oder Entzug von rechtlichen Qualifikationen).178 Interestingly enough, in his further analyses Pfluger does not insist on acts creating, modifying or extinguishing rights or duties – what seems to be sufficient is any change in the area regulated by the law (jede Veränderung der Rechtwelt).179 174 R. Jennings, A. Watts: Oppenheim’s International Law, vol.1, t.2, London, New York 1996, pp. 1187–1188. 175 F. Pfluger, op. cit., p. 47. 176 Ibidem, p. 55. 177 Ibidem, p. 43. 178 Ibidem. 179 Ibidem, p. 58.

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It is useful however to look how F.Pfluger arrives at his conclusions on the legal effects of unilateral acts of states. They are not preceded by a thorough analysis of various activities of states regulated by international law, or even an introductory survey of the acts to be discussed in the special parts of his monograph. In fact the picture of legal effects is due only to the very definition of a legal transaction (Rechtsgeschäft) adopted in the general theory of law. There is no doubt that the very notion Rechtsgeschäft is, or at least seems to be, much narrower than the term ‘act’ or ‘legal act’. That is why one must take into account a more liberal attitude to the legal effects of a given act. It is difficult to find any more impressive illustration of the significance of the very basic notion – both as a phenomenon and as the name used with respect to it. For this reason more general references to legal effects (not necessarily creating, transforming or extinguishing rights or duties) are of special importance. A. Cassese writes in a general way that [n]ot all unilateral acts give rise to new binding rules providing for specific conduct, not predetermined in its content. Indeed, most unilateral acts produce other legal effects, that are always predetermined by customary law.180 F. Pfluger, while citing the example of notification, also accepts that a unilateral act could influence the legal position of another state in a negative way.181 References to the legal effects of unilateral acts of states can also be found in the reports of the special rapporteur. In his third report he writes that the State formulating the unilateral act can either acquire obligations or confirm its rights.182 He does underscore that a state cannot, by means of a unilateral act, impose obligations on another State or on an international organization without the latter’s consent,183 180 A. Cassesse, op. cit., p. 184. In fact the first remark refers to promise; so indirectly A.Cassese, op. cit., p. 185. 181 F. Pfluger, op. cit., p. 63. 182 3. report, p. 9, par. 49. 183 Ibidem.

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a nd he associates that truth with the principles pacta tertiis nec nocent nec prosunt and res inter alios acta. But just a few lines later he writes that a review of practice reveals that a State can impose obligations by formulating a formal unilateral act, provided the addressee States agree.184 The special rapporteur in the same report writes however that The State can also impose obligations on one or more States by means of a unilateral act, which may originate internally but be applicable internationally under international law.185 In this context he invokes the establishment of exclusive economic zones. This wider approach – referring not only to the legal obligations of the author-state but to any and all legal effects was preserved in the fifth report.186 This is also the attitude that will be adopted in the present work. It will concentrate on search for legal effects of whatever type, rather than looking for a very precise type of legal effect. The above-presented list of effects described by Pfuger – creation of obligations for the author-state, their transformation or the elimination of the rights of the author state – quite well suggests what can be expected in this regard. These interplay unexpectedly well with the most popular types of unilateral acts. The first effect could be attributed to promise, the third one to waiver. The second effect (with all respective reservations, which are discussed in Part 4 of this book) could be attributed to at least some examples of recognition. It would be difficult however to insert these and only these effects into the definition of a unilateral act of a state. One must deal with other possible legal effects. One of them could be the preservation of the rights of the author state. This is generally associated with protest. There is no doubt that the most controversial issue is whether there can be such acts which create obligations of states other than the author state. From the perspective of the present work the task is to establish at least one such act. If it is possible to find one, the answer would have to be yes. If no such cases can be found, then the answer must be no. Once again such a question should not be answered beforehand, as this would be putting of a cart ahead of the horse.

184 3. report, p. 10, par. 53. 185 3. report, p. 10, par. 54. 186 5. report, p. 14, par. 60; for the then-version of definition, see: 5. report, p. 18, par. 81.

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One can understand the unwillingness towards the thesis that one state can unilaterally create obligations on the part of other states. This is explainable by the desire to avoid a misunderstanding which could lead to the following reasoning: unilateral acts can give rise to obligations of other states, hence any state can create obligations of the part of any other state. This reasoning is of course not acceptable. The creation of such obligations would be possible only in the presence of a norm of customary law to this end. This topic is thus at the very centre of attempts to define unilateral acts of states. The reference to legal effects is thus an integral part of defining a unilateral act of state. It is no coincidence that the narrow definition would lead to a very limited scope of such effects. There is however no need and no sense to adopt this definition without verifying it first. The only way of checking it is to go through several acts and activities and determine whether they: deserve the notion ‘act’; are truly unilateral; and give rise to any legal effects. It would be naïve to believe that no act other than a classical could fulfil these requirements. Of course, nobody can deny the right of authors to adopt a narrow definition of unilateral acts of states. Nor can anybody deny them the right to show objective differences among different acts. In fact however, refusing to admit that a multitude of acts provided for by customary law might have the character of unilateral legal acts in public international law does a disservice to the truth. One can look at the ilc as having been the main victim of both the narrow definition and the classical catalogue of unilateral acts. The trust in both happened to be a straight path to failure. 2.10

Unilateral Acts of States and the Sources of Public International Law

The next element which requires attention has to deal with the question whether unilateral acts of states can, or perhaps should be, described as sources of public international law. The lack of reference to unilateral acts of states in Art. 38 of the Statute of the International Court of Justice has attracted the attention of several authors.187 F. Villagran Kramer underlines that the case-law of the icj indicates that unilateral acts of states may give rise to legal obligations, but not necessarily be sources of law.188 Similarly K. Skubiszewski writes that 187 So e.g.: P.Vellas, op. cit., p. 201; F.Villagran Kramer, op. cit., p. 139. 188 F. Villagran Kramer, op. cit., p. 139.

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a unilateral acts of a State does not constitute any source of international law.189 He is ready only to concede that [u]nilateral acts may and often do influence the operation of the sources of law.190 The special rapporteur in his first report did not attribute special importance to the lack of reference to unilateral acts of states in Art. 38 of the Statute of the International Court of Justice.191 He indicated that two such omitted sources were unilateral acts of states and (norm-creating) acts of international organizations (an unquestionable source).192 Interestingly enough, while the special rapporteur included unilateral acts of states as sources of international law, the pertinent part of his first report was entitled Sources of international law and sources of international obligations. He wrote in that part that Legal acts, that is, acts performed with the intent to produce effects in international law, are the main source of obligations in international law. A State can incur obligations through formal acts which are not necessarily sources of international law, within the meaning referred to in Article 38 of the Statute of the International Court of Justice, already discussed briefly.193 One can understand this statement to mean that unilateral acts of states may be sources of international law, but do not always have to be. That is why it is possible to treat the legal effects of unilateral acts of states on one hand, and their relationship to the sources of international law on the other, as two relatively independent questions. The latter question is manifestly a theoretical question. It seems to be of utmost importance for the doctrine of sources of international law, however. 189 K. Skubiszewski, op. cit., p. 221. 190 Ibidem, p. 222. 191 1. report, par. 67, p. 13. 192 Ibidem. 193 1. report, par. 69, p. 13.

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Following the presentation of the first version of this book194 I felt a kind of dissatisfaction on the part of some readers connected with the problem of sources of international law. Evidently one must exclude the thesis which would see a source of international law in every unilateral act of a state. This relates above all to protest. In practice this question could be seriously considered only with respect to acts giving rise to obligations, or in other words – the creation, transformation or extinction of a legal relationship. What is especially important is whether one can equate the sources of legal obligations with the sources of law. If such identification takes place with respect to treaties, the basic question is why the same conclusion should not be applied to a unilateral promise. I fully agree with Ch. Eckart who writes that it should be clear that promises, once accepted as an existing legal mechanism, must necessarily share the status of treaties in this respect, at least treaties to which not all states are parties. Surely, either a mechanism creating only rules of particular applicability is considered not a source of law, but merely a source of (particular) obligations, and, thereby, promises along with treaties (even most of the ones often referred as ‘law-making’) are discarded from the sources of law, or this distinction (which would probably also have to exclude regional custom as law) is rejected, whereby both treaties and promises are sources of law.195 However, if one wants to be consequent, the same question must be asked with respect to acts of recognition or waiver. There is hardly any possibility to persuade anybody to see a declaration on waiver of immunity of a given diplomat or an act of recognition of a state or government as a source of international law. In consequence, one must deny the possibility to see a source of law in every unilateral act giving rise to obligations of the author state. There feeling still remains that this topic is more important for the study of sources of international law than the study of unilateral acts of states. In any case the establishment of any legal effect will be sufficient to confirm the presence of an act in the meaning adopted in the present work.

194 In Polish. 195 Ch. Eckart, Promises of States under International Law, Oxford and Portland 2012, p. 180.

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The Legal Foundation of the Binding Force of Unilateral Acts of States in Public International Law

One of the topics discussed in the literature is the basis for the legal force of unilateral acts of states in public international law.196 One can entertain serious doubts if it is possible to answer this question. An alternative would be to face this problem separately with respect to several types of acts. This is especially advisable if one reckons with the fact that various unilateral acts of states bring about different legal effects. On the other hand, one cannot disqualify beforehand all attempts to look for a single common basis for the binding legal force of all, or at least some, unilateral acts of states. In particular it would be useful to examine whether such a common basis, or at least justification, exists for unilateral promise, waiver and recognition. The special rapporteur devoted one chapter of his first report to this question.197 He invoked the phrase acta sunt servanda, used by the ilc in 1996.198 He drew from it a more precise norm: declaratio est servanda.199 Unfortunately, he did not justify the origin of that norm. It is difficult to accept that any nice Latin formulation is justified by itself. The special rapporteur did not seem to be embarrassed by the multiplicity of justifications of the binding force of unilateral acts of states giving rise to obligations of the author state. In this respect he invoked both the principle of good faith200 as well as a rule based on customary law which prescribes the obligation to keep promises.201 Certainly, one can assume the existence of such a customary norm with respect to waiver and recognition as well; otherwise they would not be binding. The confirmation that a general international law allows states to waive their rights or to recognize various subjects or objects is synonymous with the confirmation of the existence of such a norm. The special rapporteur in his fifth report (in art.7 of the draft articles) came back to the principle of acta sunt s­ urvanda.202 According to the draft article 196 Vide: infra. 197 1. report, par. 152–162, pp. 28–30. 198 1. report, par. 157, p. 29. 199 Ibidem. 200 Ibidem. 201 1. report, par. 159, p. 29. 202 5. report, add. 2, pp. 2–6.

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any unilateral act in force shall obligate the State or States formulating it and must be implemented in good faith.203 The insertion of such a clause into an international instrument may be justified in better or worse ways. The insertion of it into a monograph of international acts may be justified only by the blindness of the author. Firstly, one can identify without any difficulty acts with respect to which the principle manifestly does not work. Protest is a good example. Secondly, it is difficult to construct such a general formulation before an attempt to indicate various unilateral acts of states in public international law. Only their more careful examination will allow to identify their similarities (justifying such a common basis) or differences (which probably would make such a thesis completely unacceptable). On the other hand, the above-cited formula is evidently applicable to promise. Promise is an act which resembles a treaty to a large extent. It is no wonder that the advocated principle acta sunt servanda is a kind of reformulation of the rule pacta sunt servanda. What’s more, it cannot be limited to that type of act only. In this respect it has some element of general application. It can be assumed to apply to at least recognition and waiver. If however it is taken as a value of such general formulation, one must reckon that this value is quite limited. Even if confirmed, this principle would have no automatic application to all unilateral acts of states in public international law. The doctrine took on the more ambitious task of situating the source of the binding force of (de facto some) unilateral acts in more general concepts or within widely accepted sources of law. For example, O. Kimminich and S. Hobe cite three competing bases of such binding force – they are namely recognition, the protection of trust, and the concept according to which unilateral acts are offers of self-limitation addressed to the international society.204 G. Schwarzenberger and E.D. Brown refer to consent or estoppel in this way.205 In their opinion what is decisive in this respect is the principle of good faith and jus aequum. The co-authors of the manual of W. Graf Vitzhum also cite estoppel, the principle of good faith, and recognition as the three competing justifications for the binding force of unilateral acts of states defended in the literature.206 203 5. report, add.2, p. 6, par. 162. 204 O. Kimminich, S. Hobe, Einführung in das Völkerrecht, Tübingen, Basel, 2000, p. 196. 205 G. Schwarzenberger, E. D. Brown, A Manual of International Law, Estate, Milton near Abingdon, Oxon 1976, p. 141. 206 W. Graf Vitzthum (Hrsg), Völkerrecht, Berlin, New York 1997, p. 95.

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They do not choose between the three and do not try do delimit their respective scopes of application. K. Ipsen adopts a slightly different stance.207 According to him, the binding force of some acts is due to the lack of their autonomy and to their connection with other sources of law. Leaving aside the question of autonomy, this constitutes a very reasonable reference to customary norms. Ipsen refers to them expressly as regards the effects of recognition or opposition (Widerruf). Only if none of the previous justifications are at hand can one refer to the principle of good faith and especially the prohibition of venire contra factum proprium, as well as estoppel. This last situation is, according to Ipsen, visible in unilateral promise. As regards the reference to the principle of good faith Ipsen does not conceal the influence of the Nuclear Tests case on his reasoning. K. Doehring writes that the legal force of unilateral acts of states in public international law is recognized at present, though the principle of estoppel is also invoked. He associates the latter with the protection of trust (Vertrauensschutz) and the principle of good faith (Grundsatz von Treu und Glauben).208 The dangers connected with an attempt to extend such statements to all unilateral acts of states have already been mentioned. What’s more – the task of the doctrine is to search for concrete norms of public international law on certain types of unilateral acts. They may be inspired by general rules of law or may be formulated as them, but one cannot expect that non-normative rules would be in a position to replace concrete norms. All the same, their confirmation or denial will constitute the task of the further parts of this book. 2.12 Conclusions It is easy to observe that the majority of statements concerning unilateral acts of states in public international law in general are hardly verifiable. What if two authors identify different characteristics of unilateral acts if they refer to different lists of such acts? What if these lists differ if the authors use different definitions? Another source of problems is that a given author may adopt a priori his definition and adapt his list of acts to that definition. It may be also the other 207 K. Ipsen, Völkerrecht, München 2004, p. 236. 208 K. Doehring, Völkerrecht. Ein Lehrbuch, Heidelberg 2004, p. 143, see especially footnote 69.

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way round – and a given definition may be built on the basis of the types of acts examined. The resolution of such disputes resembles the chicken-and-egg dilemma. Nevertheless, some understanding of unilateral acts of states in public international law is necessary and would seem to include the following aspects. Firstly, only true acts are important for the topic of the present work. Secondly, such acts must be attributed to a single state or perhaps even a group of states, but only in situations in which the contractual character of an act can be excluded. Thirdly, an act must give rise to legal effects in the sphere of public international law. Fourthly, an act must be autonomous, otherwise it cannot be treated as unilateral in the proper meaning of the term. The fifth prerequisite is aimed at the delimitation of acts of public international law from acts of domestic law. One may accept that unilateral acts of states in public international law may be somehow qualified by domestic law, as is the case with international agreements. However, one must be ready to deny the character of unilateral acts of states in public international law to acts which are mainly or predominantly domestic. As has been indicated, what is necessary is to search for unilateral acts of states in public international law in several branches of international law. This is undertaken in Part 2. But before making that search it is necessary to refer to several types of unilateral acts of states in public international law and draw some conclusions about their validity (or invalidity).

chapter 3

Types of Unilateral Acts of States in Public International Law 3.1

Introductory Remarks

The question of the typology of unilateral acts of states in public international law is manifestly the most controversial aspect of the topic. One can see at first glance that the lists of typologies presented by various authors are sometimes even not similar to each other. J.-P. Jacqué writes that the development of the theory of acts means the search for the methods to isolate from the bulk of behaviours (comportements) attributed to subjects of international law the ones which belong to the sphere of public international law and bring about legal effects.1 Though this remark did not refer specifically to unilateral acts of states in public international law, it is quite useful for the present analysis. The only qualification is that what will be at the centre of our interest are types of acts as such, rather than the methods of their isolation. The authors writing on unilateral acts of states in public international law can be divided into three groups. The first group presents a closed catalogue of unilateral acts of states. The authors belonging to the second group indicate that it is impossible to present such a closed catalogue, while those in the third group make no attempt to present such a closed catalogue, but neither do they claim its impossibility.2 The relationship of the matter of types of unilateral acts to their definition has already been discussed. In fact they are just the two sides of the same coin. As the matter of definition was dwelt on in the preceding chapter, it is

1 J.-P. Jacqué, Acte et norme en droit international public, rcadi, 1991, ii, t. 227, p. 368. 2 For the views of several authors, Vide infra. If the presentation of these views in the present chapter is not organized according to these three groups, the reason is that the majority of authors do not justify their choice. It would be too idealistic to assume that their presentations are preceded by extremely deep analysis of several transactions of international law as well.

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004274617_005

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necessary here to look in more detail at the concepts, problems and ideas directly connected with types of unilateral acts of states. 3.2

Catalogues of Unilateral Acts in the Older Literature

It seems useful to start with the first attempts to indicate the types of unilateral acts of states in public international law. As was stated in Chapter 1, already in 1896 P. Heilborn listed as types of unilateral acts of states: recognition, protest, waiver and notification.3 A much longer list could be found in the work of K. Gareis. It comprised: occupation, declaration of war and acts connected with war (called Kriegsmassregeln), state acts affecting the interests of other states, internationally wrongful acts, as well as unilateral declarations aimed at the creation, transformation or extinction of relationships of international law.4 As was also remarked upon earlier, the monumental work of L. Oppenheim contained a chapter entitled Transactions besides negotiation, which identified eleven other kinds of international transactions, namely, declaration, notification, protest, renunciation, recognition, intervention, retorsion, reprisals, pacific blockade, war, and subjugation.5 On the other hand E. von Waldkich limited himself to just two examples of unilateral acts of states: declaration of war and declaration of neutrality. He invoked in this context also the last will of the King of Belgians of 2 August, 1889, in which he ceded to Belgium (effective upon the date of his death) his rights to Congo.6 There is no reason to treat von Waldkich’s list as exhaustive. 3 P. Heilborn, Das System des Völkerrechts entwickelt aus den völkerrechtlichen Begriffen, Berlin 1896, pp. 375–376. 4 K. Gareis, Institutionen des Völkerrechts, Giessen, 1901, pp. 88–89. 5 L. Oppenheim, International Law. A Treatise. Vol. i – Peace, London, New York and Bombay, 1905, (further referred to as Oppenheim 1), p. 513; L. Oppenheim, International Law. A Treatise. Vol. i – Peace, Third edition edited by R.F. Roxburgh, London, New York, Bombay, Calcutta, Madras, 1920, (further referred to as Oppenheim 3), pp. 648–651. 6 E. von Waldkirch, Das Völkerrecht in seinen Grundzügen dargestellt, Basel, 1926, p. 215.

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Despite the fact that F. von Liszt neither used the very term ‘unilateral act’ nor attempted to compile a list of them, in his work one can find references to express or implied declarations expressing approval (recognition, waiver) or disapproval of certain facts (protest).7 A. Hold-Ferneck listed the following as unilateral acts of states in public international law: offer, notification, recognition, waiver and claim.8 The latter was treated by him as a synonym for protest.9 3.3

Classical Catalogue of Unilateral Acts

As can be seen, certain types more often than others attracted the attention of authors dealing with unilateral acts of states in public international law. At the outset it should be noted that the majority of works from the end of the 19th and the beginning of the 20th century did not refer at all to unilateral acts of states. The few works which have been cited were definitely in the minority, and even among them it would be difficult to find any unanimity as regards the types of unilateral acts of states. Today the situation is the opposite. A typical work on public international law addresses unilateral acts of states in a relatively short chapter or subchapter. What can be usually found in such a fragment is a relatively short list of such acts.10 Already in the Introduction of this book the most popular catalogue of unilateral acts of states in public international law was referred to. The stable content of it was and still is formed by recognition, waiver and protest. These were and still are often accompanied by one additional act. Decades ago it was ‘notification’, nowadays it is usually promise. For reasons of simplification, any lists of unilateral acts of states in public international law which do not extend beyond these acts will be called “classical”. One of the tasks of this book was to discover the author of the classical catalogue of unilateral acts of states in public international law. As a point of departure I have taken the bibliography of the chapter on unilateral acts of states in public international law from the book of D. Anzilotti published in the 1930s. D. Anzilotti cites the works of five authors, to wit: P. Heilborn, L. Oppenheim, 7

F. von Liszt, Das Völkerrecht systematisch dargestellt, zwölfte Auflage bearbeitet von M. Fleischmann, Berlin, 1925, pp. 242–244. 8 A. Hold-Ferneck, Lehrbuch des Völkerrechts, Leipzig, 1930, t. ii, p. 9. 9 A. Hold-Ferneck, op. cit, t. ii, p. 11. 10 Vide: infra.

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K. Strupp, A. Cavaglieri and Kunz.11 The latter two persons are cited as the authors of shorter texts on waiver12 and protest,13 so one can eliminate them from the list of potential authors of the entire catalogue. Heilborn, Oppenheim, and Strupp remain on the list. Unfortunately, I was not in a position to gain access to the work of Strupp. In this light Heilborn is the most probable author of the classical catalogue. As was said, Oppenheim opts for a relatively long list of unilateral acts and in addition his work was published a few years after the ‘System’ of P. Heilborn. The question which must be asked here is what differentiates these ‘classical acts’ from the others. Interestingly enough, Heilborn prefaces his catalogue with the remark that he will deal with acts on the creation, transformation or extinction of different rights, and not only acts connected with a determined category of rights such as occupation.14 What does this actually mean? It seems obvious that at the time of the creation of the classical catalogue of unilateral acts, it was not perceived as exhaustive. Heilborn did not pretend that there are no unilateral acts other than recognition, protest, waiver and notification. Such other acts (he cites in this context occupation) could have been situated within the framework of specific branches of international law. It is impossible to reserve classical acts for one branch of international law. In fact, the emergence of the catalogue of acts which we now call ‘classical acts’ was to a large extent dictated by reasons of systematization adopted in the works on public international law in general. Similarly, D. Anzilotti in his manual lists as unilateral acts: notification, recognition, protest and waiver,15 but at the same time reserves that he is dealing with those ones which are the most important (remarquables) and common (communs).16 11

D. Anzilotti, Cours de droit international, traduction française par G. Gidel, Paris, 1929, p. 345. 12 A. Cavaglieri, Alcune osservazioni sul concetto di rinuncia nel diritto internazionale, Rivista di diritto internazionale, 1918, p. 3 et. seq., cited on the basis of D. Anzilotti, op. cit., p. 345. 13 Kunz, Protest im Völkerrecht, w: K. Strupp, Wörterbuch des Völkerrechts, vol. ii, p. 329 et. seq., cited on the basis of D. Anzilotti, op. cit., p. 345. 14 Ibidem. 15 D. Anzilotti, op. cit., pp. 346–351. 16 D. Anzilotti, op. cit., p. 346.

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It seems evident that ‘the most important’ does not comprise ‘all’. Nothing seems to indicate that the construction of this list was preceded by a thorough analysis of certain acts which are unilateral in character but belong in their entirety to a given specific branch of international law. On the other hand, it seems unquestionable that the classical catalogue would not have become so widely accepted had it had not its merits. One of them was already mentioned. Classical unilateral acts cannot be inserted into one and only one specific field of public international law. On the contrary, they can be found in all of them. Waiver can apply to very diverse rights; protest – to even the most diverse situations. Recognition can relate to different kinds of subjects, but it can refer to other objects as well. The same could be said nowadays about promise, the writers of the end of the 19th and beginning of the 20th centuries being rather silent on it. Promise is the most elastic type of act. In this respect it resembles a treaty. Almost everything may be promised (the exceptions resulting from the jus cogens norms). Notification – present in such earlier lists and absent in the present ones – could not even be attempted to be defined by reference to its content. This must have had an influence on the attitude toward notification in the contemporary doctrine. This general scope of application of classical unilateral acts of states could justify the decision of many authors to refer to them, and only to them, when discussing unilateral acts of states.17 There is however a danger connected with this approach. There is a tendency to overtake some ideas from the predecessors who conceived them. What’s more, this could be connected with some kind of simplification or even vulgarization. In this sense there can be danger that classical acts which were rightly treated merely as examples of unilateral acts of states will be looked at as an exhaustive catalogue. It would be the worst line of thinking. One must once again underscore at this point the laconic character of the majority of the doctrinal utterances on unilateral acts of states. On one hand this is because the authors researching/writing on them avoid ironclad declarations that classical acts are the only types of unilateral acts. Unfortunately, it also allows them to avoid making the statement (which would be welcome) that they are just examples of unilateral acts of states. It is beyond any doubt that the classical list is very popular. One can expect that almost every student of public international law would, if asked about unilateral acts of states, refer mainly, if not only, to that list. Already in the 1931 work of E. Vanselow the list of unilateral acts of states presented is limited to 17 Vide: infra.

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waiver, recognition, protest and notification.18 The same list can be found in the work of J. Spiropoulos,19 as well as the book of R. Bierzanek and J. Symonides.20 P. Guggenheim invokes in this context: notification of neutrality, recognition of a situation, protest and waiver.21 Nothing seems to suggest that he treats this list as exhaustive. A. Cassese also limits himself to pointing out examples of unilateral acts of states, which include: protest, recognition, waiver, notification and promise.22 A. Verdross and B. Simma cite the following as autonomous unilateral acts of states: recognition, waiver, protest and promise.23 As regards the latter they share their doubts whether it is actually a unilateral act or may be bilateral/multilateral. The list of J. Charpentier includes just promise, waiver and recognition.24 What is the most notable in his approach is his refusal to treat protest as a unilateral act of a state. Charpentier writes that protest is wrongly perceived as the opposite (l’inverse) of recognition. In his opinion it should be perceived as the opposite, or inverse, of notification, as it does not produce legal effects in and of itself, as it only allows one to officially know that a given claim is denied; the expected effect of a protest depends on the comparison of the rights of the author of the protest and its addressee.25 It can be only added that if one adopts a definition according to which a legal transaction creates obligations for the author, the elimination of protest from the catalogue of such acts is justified. One can even criticise the other authors who adopted such a definition and did not see its consequences as regards the essence of protest. This does not mean, however, that the definition of a legal transaction, as well as the list presented by Charpentier, will be adopted 18 19 20 21 22 23 24

25

E. Vanselow, Völkerrecht. Einführung in die Praxis der Staaten, Berlin, 1931, p. 42. J. Spiropoulos, Traité théorique et pratique du droit international public, Paris, 1933, pp. 231–232. R. Bierzanek, J. Symonides, Prawo międzynarodowe publiczne, Warszawa, 1994, pp. 100–101. P. Guggenheim, Traité de Droit international public. Avec mention de la pratique internationale et suisse, Genève, t. i, 1953, pp. 147–148. A. Cassese, International Law, Oxford 2005, pp. 184–185. A. Verdross, B. Simma, Universelles Völkerrecht. Theorie und Praxis, Berlin 1984, pp. 427–429. J. Charpentier, Engagements unilatéraux et des engagements conventionnels: différences et convergences, in: J. Makarczyk (ed.), Theory of International Law at the Threshold of the 21st Century. Essays in honour of Krzysztof Skubiszewski, The Hague, London, Boston, 1996, p. 368. J. Charpentier, op. cit., p. 368.

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a­ utomatically in the present work. It is important to remember that Charpentier underlines that any transaction may be effected either by a means of unilateral acts of states or by means of a treaty.26 This aspect will be of special importance when discussing waiver and recognition (Part 4). Also the special rapporteur in his first report presented a list of unilateral acts comprising promise, recognition, waiver, and protest.27 He did not justify his choice, and it is difficult to surmise the grounds upon which his list was limited to just classical acts. He did not expressly refer to either the exhaustive or non-exhaustive character of that catalogue. The same catalogue could be found in the reply of Argentina to a questionnaire prepared and disseminated by the ilc in 1999.28 On the other hand, the reply of Georgia referred to declaration, proclamation and notification.29 3.4

Attempts to Rationalize the Classical Catalogue of Unilateral Acts

One can see a tendency of some authors to justify the classical catalogue in a more complex way. This is done by associating acts with their functions. One such author is Ch. Rousseau.30 He defends a five-element catalogue, comprising notification, protest, promise, waiver and recognition.31 To large extent that fragment of the work of Rousseau is part of a dispute with E. Suy (who denied that notification was a unilateral legal transaction) and G. Venturini (who included in his list confirmation and warning). Rousseau divides unilateral acts into express and implied ones. In the group of express unilateral acts he identifies four groups,32 comprising: – acte-condition (notification), – acts creating obligations (promise and recognition), – acts which are aimed at confirmation of the rights of the author-state (protest), – acts leading to the cancellation of rights (waiver).

26 27 28 29 30 31 32

J. Charpentier, op. cit., pp. 368–369. 1. report, par. 14, p. 6. 4. report, p. 14, par. 64. 4. report, p. 14, par. 65. Ch. Rousseau, Droit international public, Paris, 1970, t. i, p. 420. Ch. Rousseau, op. cit., p. 420. Ch. Rousseau, op. cit., p. 420.

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Rousseau treats silence itself as a tacit act, and such silence in some situations may form tacit acquiescence (acquiescement tacite).33 D. Ruzié also distinguishes among unilateral acts: acte-condition, act of creation of obligations, act of confirmation of rights and act of resignation from rights. The only difference between him and Rousseau is the fact that he treats only recognition as an act creating obligations.34 This is however quite strange, as in the next fragments of his work he refers to the creation of obligations by unilateral acts within the meaning of the judgment on Nuclear Tests.35 They are rightly qualified as examples of promise, which is evidently a means of creating new obligations of states. Interestingly enough, the same author in the next passages of his work refers to acts of establishment of maritime zones, without referring at all to the very fact that they were not mentioned in his list of unilateral acts.36 It is difficult to find a better manifestation of the incompleteness of the former list, and one may gain the impression that it aimed at justifying the classical catalogue of acts, which was adopted a priori. Similar remarks could be made about A. Pellet. He distinguishes notification (acte-condition), recognition, protest, waiver and promise.37 It is hard not to note the influence of the fundamental work of Ch. Rousseau on the other French authors. At the same time, Pellet writes about two groups of acts: autonormative and hetero-normative.38 The former concerns the creation of obligations for the author-state, while the latter may exceptionally have to do with the creation of obligations for other states. Such acts are possible firstly if they are provided for by the norms of public international law. An example here could be the establishment of a 12-mile territorial sea. The second category of situations has to do with acts which a state adopts in the name of the entire international community. In this context Pellet cites the regulation of the right of passage in international channels.39 He seems to oversee the fact that his catalogue of acts is in fact much wider than the classical one for which he apparently opted. As can be seen, a narrow catalogue of acts is often taken from other authors automatically; it is seldom the result of thorough rethinking of the problem of unilateral transactions of public international law. It may be useful to look at 33 34 35 36 37 38 39

Ch. Rousseau, op. cit., p. 420. D. Ruzié, Droit international public, Paris, 1992, p. 50. D. Ruzié, op. cit., p. 50. D. Ruzié, op. cit., p. 51. A. Pellet, Droit international public, Paris, 1981, p. 27. A. Pellet, op. cit., p. 27. A.A. Pellet, op. cit., p. 27.

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how the problem was dealt with by the authors of the two most popular monographs of unilateral acts. 3.5

Lists of Unilateral Acts in the Monographs of Unilateral Acts

3.5.1 List of Unilateral Acts According to F. Pfluger F. Pfluger writes that distinguishing unilateral from bilateral legal transactions on the basis of public international law is even more difficult as there are no types of legal transactions determined by objective international law (es keine objektivrechtlich bestimmten Typen von rg gibt). Because of that only objective analyses of concrete circumstances without reference to the external form can decide what is a unilateral and what is a multilateral legal transaction.40 The above statements are anything but clear. How can one understand the first sentence? Should it be read to mean that there are no types of acts which ex definitio are unilateral? This would seem to be a rationalisation of Pfluger’s unclear statement rather than the actual presentation of its hidden sense. What’s more, if that way of understanding the first sentence is chosen, the second one loses its sense completely. If it is impossible to objectively differentiate unilateral acts from multilateral ones, this may mean that the only criterion of differentiation will be the form of a given act. For example, a state can waive a right by means of a treaty or by means of a unilateral declaration of will. In the first situation a bilateral or multilateral act is in play, while in the second situation we are dealing with a unilateral act. One must note however that in the further part of his work Pfluger excludes from the scope of his interest acts of ‘formal international law’, by which he means acts of different international organs, acts of the law of war, acts of selfhelp, and acts of the execution of law.41 Pfluger himself concedes that this differentiation is arbitrary and difficult to apply, but it is the only way to make a logical lecture on unilateral acts of states possible.42 One should appreciate that Pfluger refers expressly to acts which he decided to leave outside the scope of his analysis. Every author has the right to choose 40 41 42

F. Pfluger, Die einseitigen Rechtsgeschäfte im Völkerrecht, Zürich, 1936, p. 35. F. Pfluger, op. cit., p. 36. F. Pfluger, op. cit., p. 36.

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those elements which he/she wants to discuss in detail, or not. Such an attitude is more honest than pretending that there are no problems, i.e. in this case that there are no other acts which are unilateral and which have legal effects. From the above-presented list it appears that the acts of international organizations are evidently not interesting for the present work, while others are in the very centre of its interest, i.e. are unilateral acts and require analysis. The same positive evaluation must be applied with respect to the fact that Pfluger lists, among other unilateral acts, also offer, acceptance of an offer and termination of a treaty.43 As was said in the preceding chapter, these acts must be in the centre of interest of any work on unilateral acts of states, but require very careful examination of their true nature. It is not difficult to see how the work of Pfluger could, until now, be held in such high esteem as regards theory-building. The author dwells on subjects, form, validity, and legal effects of acts. Yet despite all these elements the question of the catalogue of unilateral acts somehow escapes him. It rather emerges incidentally, on the occasion of presentation of other aspects, as is evidenced by the above-cited fragments. The author inserts a subchapter devoted to different kinds of unilateral acts,44 but its content does not even resemble the typologies which were cited in this chapter. It is rather a division of unilateral acts according to some objective characteristics. In fact it is more like a typology of the possible properties of unilateral acts.45 It comprises: (1) transactions requiring a specific form, and those not requiring such a form; (2) express or implied acts; (3) pure (those by which the declaration itself gives rise to legal effects) and mixed acts (which require some additional elements), (4) self-sufficient and non-self-sufficient (i.e. connected with other acts); (5) main and accessory; (6) referring to a condition, term (deadline) and terminable on the one hand, and unconditional, not referring to term (deadline) and not terminable on the other; (7) oriented on subjective relations and oriented on relations of another kind (nowadays they would be called inter partes and erga omnes); 43 44 45

F. Pfluger, op. cit., p. 16. F. Pfluger, op. cit., pp. 64–68. F. Pfluger, op. cit., pp. 64–68.

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(8) obligatory and dispositive; (9) individual and collective; (10) requiring an addressee and not requiring an addressee.46 Such a list or its mutations cannot, however, replace lists of the types of unilateral acts. One can say that the characteristics enumerated in the above-cited list could apply to an act in abstracto, however they could also apply to the circumstances of a particular transaction. In other words, the same type of act may in one circumstances have one of those characteristics or in another have the opposite one. This refers in particular to the characteristics mentioned in points 2, 6, 7 and 9.47 So, for example, recognition can be express or implied; protest may be made by one state or a few states, promise may refer to a condition or a term but may also not contain any; it may create rights for one state only or for the entire international community (as is the case of a promise to abstain from nuclear tests). The other characteristics refer to the type of act in abstracto. There is no doubt that the most important division is the one between obligatory and dispositive acts.48 The former create obligations in such a way that it does not affect the existing legal relationships, while the latter modify or extinguish existing legal relationships. In my opinion however, the usefulness even of that part of the catalogue is relatively small. First of all, if true unilateral acts must be autonomous, the very reference to the fourth criterion is doubtful (at least to the extent to which an act of another state would have to accompany the act of the authorstate of the supposed unilateral act). The number of doubts is even larger however. How can it be known that international law provides for acts requiring a specific form? How can one confirm the presence of true or mixed acts? Without making at this time or in this place the decision on their presence or absence in international law, one must conclude that nothing seems to suggest that Pfluger established the objective existence of such acts in public international law. It is difficult not to see that his catalogue reflects the ones adopted by the (at least continental) doctrine of private

46

47 48

F. Pfluger, op. cit., pp. 64–66. The numbers used by F. Pfluger are a little bit different. One of his points could cover more than one criterion. This is why I decided to depart from his numeration, while preserving their contents and even their sequence. One can wonder whether this does not concern (or at least may not concern) the property referred to in point 4. F. Pfluger, op. cit., p. 66.

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(civil) law. That is why their justification in a work on this field of international law could sound, at best, like: If international law recognizes acts similar to transactions of the domestic law of state x, then those acts could have the properties indicated in the above list. In conclusion it can be said that the first monograph of unilateral acts presents neither an exhaustive nor even exemplary catalogue of types of unilateral acts. Pfluger approaches this to the greatest extent when he writes about recognition and waiver as transactions based on general principles of law; protest, derelictio and occupation as transactions based on custom and protest (sic!), and notification, accession and termination as transactions based on the law of treaties.49 A lot seems to suggest that in Pfluger’s opinion all such acts must be treated as unilateral. As regards the latter two acts it suffices to recall that since the emergence of the monograph of Pfluger the doctrine has elaborated a division of unilateral acts into sensu largo and sensu stricto.50 The latter notion would evidently not be used with respect to accession and termination. The next interesting element is the fact that he refers to protest twice. Though the author of the first monograph describes in detail only recognition, waiver (in this context also derelictio), protest and occupation, as well as offer and its acceptance, it is difficult to treat him, in the light of the cited fragments, as a proponent of the classical catalogue of unilateral acts. 3.5.2 List of Unilateral Acts According to E. Suy E. Suy, who is in favour of a narrow catalogue of unilateral acts sensu stricto, comprising recognition, waiver, promise and protest, arrives at his catalogue in a very peculiar way.51 In fact he starts with the suggestion that one can establish an infinite number of acts (actes), leaving aside just activities (actions), which are effected by states and are unilateral. As examples he cites, from the scope of the law of treaties: offer and its acceptance, accession (accession and adhésion), termination (révocation and la dénonciation), reservation, and ratification; in the field of settlement of international disputes: protest, termination of diplomatic relations, offer of good services or mediation and ‘all procedural acts’ (tous les actes de procédure); in the field of territory: a­ nnexation,

49 50 51

F. Pfluger, op. cit., p. 46. Vide: chapter 2. E. Suy, Les actes juridiques unilatéraux en droit international public, Paris, 1962, p. 34.

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occupation, declaration and recognition or waiver.52 One can wonder how it is possible to move from such a broad scope and put on the straightjacket of the classical catalogue. The adoption of the latter is (according to the words of Suy) the result of three assumptions related to the very definition of a unilateral act. According to them, such an act: (1) is performed by one subject of law; (2) is autonomous (that is independent of any other act), (3) cannot give rise to obligations of third states.53 Such a laconic justification of such a fundamental decision – the adoption of a very short list of types of unilateral acts – can give rise to doubts. One can wonder in particular whether: – the list of recognized types of unilateral acts included in his study should depend to such an extreme extent on his definition of a unilateral act, – even assuming a positive answer to the first question, whether the definition adopted by Suy in fact would lead to such a result. It is difficult not to look at his decision as a kind of mixing reasons with their effects. If it is stressed that unilateral acts cannot give rise to obligations for third states, what is usually meant is that state sovereignty is hardly reconcilable with a situation in which one state creates obligations on the part of another one without the consent of the latter. Should one however deny the notion ‘unilateral’ to acts which are performed by a single state and give rise to effects determined by binding customary norms? They are evidently in conformity with the notion of state sovereignty. This is why Suy’s attitude resembles the justification of a list adopted beforehand rather than the working out of a list based on a critical analysis of various legal transactions. In this respect the statement of D. Anzilotti that he would concentrate on the most important acts only (without pretending that they are the only ones) seems much more honest. Suy would likely not convince anyone to adopt the classical catalogue who had not himself/herself adopted it beforehand. In fact the list of unilateral acts is the object of the dispute in the doctrine, and it reflects the dispute concerning the definition(s) of such an act. This is why it is necessary to look at broader lists of unilateral acts. 52 53

E. Suy, op. cit., pp. 33–34. E. Suy, op. cit., p. 34.

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The Widest Lists of Unilateral Acts

Sometimes the differences between the lists of unilateral acts are due to the fact that some of them by definition include acts which are not autonomous. In this respect the risk of misunderstandings is considerable. In fact the proponent of the classical list of unilateral acts as a rule does not deny that e.g. ratification or reservation to an agreement are performed individually and could be included into a wide notion of unilateral acts.54 All the same such longer lists deserve to be cited here. It is worthwhile to refer to the concept of F. Villagrán Kramer. He divides unilateral acts into acts ‘largo sensu’ and ‘stricto sensu’; however he does not specify which ones should be covered by the latter nation.55 He notes that some acts are connected with the law of treaties (approval, ratification, the deposition of the ratification document(s), reservation, accession), while the others are connected with the general law.56 As examples of the latter Villagrán Kramer lists notification, recognition of a legal situation, of facts, states or governments, as well as granting nationality. He also identifies waiver and protest as acts from the field of customary law.57 Only it is difficult to understand why, according to Villagrán Kramer, promise is situated outside both treaty and customary law.58 P.-M. Dupuy is a proponent of a broad definition of unilateral acts. He is also the author of a very wide list of such acts. He distinguishes three groups of unilateral acts: (1) acts connected with opposability of legal situations; (2) acts connected with the execution of sovereign rights; and (3) acts connected with the creation of legal obligations.59 The author places recognition and protest in the first group (connected with opposability). Recognition leads to opposability, and protest is aimed at preventing it.60 Dupuy writes that 54 55

56 57 58 59 60

For more detailed analyses, vide chapter 4. F. Villagrán Kramer, Les actes unilatéraux dans le cadre de la jurisprudence internationale, in: International Law on the Eve of the Twenty-first Century. Views from the International Law Commission, un New York 1997, pp. 139–140. F. Villagrán Kramer, op. cit., p. 139. F. Villagrán Kramer, op. cit., pp. 139–140. F. Villagrán Kramer, op. cit., p. 140. P.-M. Dupuy, Droit international public, Paris, 1993, p. 250. P.-M. Dupuy, op. cit., p. 251.

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a state confronted with a situation effected without its participation has two possible courses of action – either to recognize or to protest.61 In my opinion there are still two other possibilities. Firstly, the state can abstain from any reaction. Secondly, it can take measures other than protest which show that it does not accept a given situation or a claim. Clearly there are authors who would treat the first course of action as recognition, or acquiescence, and the second as protest. There is all the same a considerable space for discussion in this regard. The second group is to cover unilateral acts performed by a state in its domestic order to make use of the competences granted to that state by public international law.62 Dupuy lists in this context the grant (l’attribution) of nationality to a physical person (that is a human being), a legal person, a ship, an airplane or a space object, permission for a flight through the air territory of a given state, a declaration of embargo, and a declaration of war or neutrality.63 Dupuy concedes that such acts may take the form of domestic provisions, but does not attribute great importance to that fact.64 The third group includes, above all, a unilateral promise.65 W. Fiedler, in writing on unilateral acts, states that one may distinguish between those acts which constitute a unilateral legal transaction and those which do not. Whereas in the case of the first group the legal consequences are accomplished by the declaration of a State or subject of international law, the legal effects of the second type are defined by international law.66 Other classifications refer to (1) connection with treaties (ratification, accession, termination or reservation) or the lack of such connection; (2) direct legal effects; (3) direct influence upon customary law. 61 62 63 64 65 66

P.-M. Dupuy, op. cit., p. 251. P.-M. Dupuy, op. cit., p. 252. P.-M. Dupuy, op. cit., p. 252. P.-M. Dupuy, op. cit., p. 252. P.-M. Dupuy, op. cit., p. 252. W. Fiedler, Unilateral Acts in International Law, in: R. Bernhardt (ed.), Encyclopedia of Public International Law, vol. 4, Amsterdam, London, New York, Oxford, Paris, Shannon, Tokyo 2000, p. 1019.

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J.-P. Jacqué also refers to so-called ‘mixed acts’, that is acts of domestic law which all the same have effects in the field of international law.67 As an example he cites granting nationality. It is worthwhile to recall here that already in 1967 A.J.P. Tammes, one of the members of the ilc, suggested that the ilc should deal with the problem of unilateral acts. In this context he identified: recognition, protest, estoppel, proclamation, waivers and renunciations.68 P. Vellas groups unilateral acts into four categories,69 as follows: 1. 2.

3.

4.

acts of notification; acts qualified as unilateral, but in fact connected with other declarations of will (accession to a treaty, termination of a treaty, declaration such as the one made on the basis of Art.36 of the Statute of the icj and – strangely enough – promise); acts called as actes-condition (that is acts which are a precondition of application of certain rules which are objectively binding). In this context the author invokes: recognition of states and governments, declaration of war and neutrality and declarations concerning delimitation of the competences of a state); collective acts (acts of international organizations).

It’s difficult to be satisfied with this classification. In the first place, both protest and waiver are missing from it. What’s more, promise is inserted into a category of acts which are evidently governed by the law of treaties. It is beyond any doubt that the latter requires a strict separation from acts which are truly unilateral in character. Vellas’s classification demonstrates the attachment of the French doctrine to the very term acte-condition. A.-Ch. Kiss, author of one of the first French texts on unilateral acts refers to: notification, acte donné (confirmation of the receipt of an act), acte pris (taking information about an act), acquiescement (acquiescence), protest and waiver.70 This list evidently does not aspire to being complete, as in the other sections of his text he refers to, e.g., recognition and possibly other acts.71 It is 67

68 69 70 71

J.-P. Jacqué, Eléments pour la théorie de l’acte juridique en droit international public, Paris 1972, p. 171. In order to avoid any misunderstanding one should stress that according to Jacqué they are acts of both international and domestic law, ibidem, p. 171. Yearbook, 1967, vol. i, p. 179, para. 6; cited on the basis of 1. report, p. 4, par. 7, footnote 7. P. Vellas, Droit international public. Institutions internationales, Paris 1970, p. 202. A.-Ch. Kiss, Les actes unilatéraux dans la pratique française du droit international, rgdip, 1961, pp. 319–331. A.-Ch. Kiss, op. cit., p. 331.

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worth stressing that with respect to recognition and waiver one cannot even understand the primary statement of Kiss, according to which unilateral acts cannot create obligations for their authors. In fact Kiss is the only author known to me who distinguished ‘acte donné’ and ‘acte pris’ as separate types of acts. It is worthwhile to note that in the case concerning the denunciation of the treaty of November 2nd 1929 between China and Belgium the pcij referred to the fact, that the letter of the Belgian Government’s Agent to the Registrar of February 13th 1929, and the letter of the Registrar to the Belgian Government’s Agent of February 26th 1929, were duly communicated to the Chinese Government through the Chinese Legation at The Hague, which confined itself to an acknowledgment of receipt (à en accuser réception).72 The pcij noted in this context that [c]onsidering that the Chinese Government, the Respondent in the suit in question, has never taken any proceeding in the suit before the Court […] consequently, there is nothing to prevent the unilateral withdrawal of the suit by the Belgian Government, the Applicant in the case.73 Nothing suggests however that the reason for the pcij’s decision was the very acknowledgment of receipt. The latter would seem to have been a relatively unimportant element of the case. This institution could be found also in Art.59 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol i). It concerns nondefended localities. In para. 2 it provides for a declaration to this end, and para. 4 of the article provides that: The declaration made under paragraph 2 shall be addressed to the adverse Party and shall define and describe, as precisely as possible, the limits of the non-defended locality. The Party to the conflict to which the declaration is addressed shall acknowledge its receipt and shall treat the locality as a non-defended locality unless the conditions laid down in paragraph 2 are not in fact fulfilled, in which event it shall immediately so inform the Party making the declaration. Even if the conditions laid 72 Decision of the Tribunał of 25 May 1929, pcij Publications series A Nos. 18/19, p. 7. 73 Ibidem.

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down in paragraph 2 are not fulfilled, the locality shall continue to enjoy the protection provided by the other provisions of this Protocol and the other rules of international law applicable in armed conflict.74 Y. Takano also presents a broad list of unilateral acts.75 It comprises: declaration of the start of hostilities, information on them addressed to neutral states, declaration of blockade, recognition of states, governments and insurgents, occupation, occupation on the basis of the Protocol on Congo, incorporation of a failed state on the basis of customary law, as well as protest and waiver.76 It is however not clear whether the author is ready to see a unilateral act in every notification or information, or only in the above-mentioned documents concerning war and occupation of territory. In this context, O. Kimminich and S. Hobe list: declaration, protest, recognition, waiver, approval (Zustimmung),77 promise, negotiorum gestio (the conduct of affairs of another state without agency), reservation and objection.78 At the same time they distinguish an additional category of real (material) acts. They cite as examples of the latter occupation, annexation, derelictio and leaving of a territory without handing it to another state.79 W. Fiedler lists as examples of unilateral acts: recognition, protest, waiver, notification and ‘at times’ acquiescence and revocation.80 Interestingly enough, the author writes that it is considerably more difficult to classify those unilateral acts called declarations, assurances, promises, promesses unilatérales de garantie, promesses-confirmation or some other name.81 A very composed catalogue of unilateral acts can be found in the only Italian monograph of unilateral acts. G. Biscottini distinguished three categories of

74

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol i), 8 June 1977. The entire document accessible at: https://www.crc.org/ihl/INTRO/470 and was last accessed on 14 February 2015. 75 Y. Takano, Einführung in das Volkerrecht, Band 2, Köln, Bonn, München, 1984, p. 7. 76 Y. Takano, op. cit., p. 8. 77 As an example, the consent to icj jurisdiction may be invoked. 78 O. Kimminich, S. Hobe, Einführung in das Völkerrecht, Tübingen, Basel, 2000, pp. 196–200. 79 O. Kimminich, S. Hobe, op. cit., p. 200. 80 W. Fiedler, Encyclopedia…, p. 1018. 81 Ibidem.

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unilateral acts, namely: confirming acts (atti di accertamento),82 integrating acts (atti di integrazione),83 and acts by which the will had an autonomous function (atti in cui la volontà ha funzione autonoma).84 Notification85 and protest86 are examples of the first group. The second group comprises recognition,87 occupation of terra nullius and war occupation.88 Acts belonging to the third group are divided into: dispositive acts (atti di dispositione) (promise,89 offer,90 waiver,91 revocation (revoca)92), and acts leading to the acquisition of rights (atti di acquisizione).93 3.7

The Problem of the Catalogue of Unilateral Acts in the Works of the International Law Commission

During the works of the ilc on the topic of unilateral acts the special rapporteur has never tried to establish a relatively long (even if non-exhaustive) list of unilateral acts. The complex character of the question of types of acts was noted by the other members of the ilc. I. Brownlie was one of the first to refer to this aspect. During the discussion on the first report of the special rapporteur, Brownlie pointed out five elements.94 The first four were as follows: – ‘implied consent on the basis of conduct, including silence’, – opposability, – estoppel, – ‘declarations which were binding per se on the basis of good faith, as accepted by icj in the Nuclear Tests cases’. 82 83 84 85 86 87 88 89 90 91 92 93 94

G. Biscottini, Contributo alla teoria degli atti unilaterali nel diritto internazionale, Milano, 1951, pp. 36–65. Ibidem, pp. 66–152. Ibidem, pp. 153–177. Ibidem, op. cit., pp. 42–50. Ibidem, op. cit., pp. 56–58. Ibidem, op. cit., pp. 69–143. Ibidem, op. cit., pp. 148–152. Ibidem, op. cit., p. 155. Ibidem, op. cit., p. 163. Ibidem, op. cit., p. 167. Ibidem, op. cit., p. 174. Ibidem, p. 177. Summary records of the meetings of the fiftieth session, Yb. ILC, 1998, vol. i, 2524. meeting, p. 36, paras. 31–33.

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The last element referred to the Corfu Channel case, and in particular to what the Court called ‘the “attitude” of Albania – both its statements and its silences in the period after the mines had exploded’.95 This statement gave rise to an interesting discussion. In particular, ilc member G. Hafner said that all five institutions referred to by Mr. Brownlie were the result of “activities” or “attitudes” of States, rather than of “acts” of States as the term was usually understood.96 In fact, it is difficult to treat opposability as a type of act. ‘Declarations which were binding per se on the basis of good faith’ are certainly such acts, but they as a rule have their place in the classical catalogue of unilateral acts. On the other hand, the topic of silence or estoppel are two of the most important challenges for the doctrine of unilateral acts and require discussion. During the same session of the ilc, B. Simma proposed to divide unilateral acts of states into three categories.97 As the Yearbook of the ilc summed up: The first concerned acts to which international law attributed no special and uniform consequences other than those deriving from the specific situation. Warning shots fired by one vessel against another could, depending on the given situation, fall within the terms of a Security Council resolution or constitute a breach of Article 2, paragraph 4, of the Charter of the United Nations. […] The second category concerned unilateral acts to which international law itself attributed consequences. This covered, for instance, occupation of terra nullius, giving up territory, or a negotiorum gestio. The case of declarations was not so clear, although a declaration of war undeniably fell into that category. […] The third category related to unilateral acts which were deemed by the State from which they emanated to have the legal consequences desired by that State or intended to have such consequences.98 95 96 97 98

Summary records of the meetings of the fiftieth session, Yb. ILC, 1998, vol. i, 2524. M ­ eeting, p. 36, par. 33. Summary records of the meetings of the fiftieth session, Yb. ILC, 1998, vol. i, 2524. M ­ eeting, p. 36, par. 34. Summary records of the meetings of the fiftieth session, Yb. ILC, 1998, vol. i, 2525. ­Meeting, pp. 42–43, paras. 5 and 6. Summary records of the meetings of the fiftieth session, Yb. ILC, 1998, vol. i, 2525. ­Meeting, p. 42, par. 5.

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Simma suggested that the last category could be divided into two: – ‘unilateral acts which could be termed “dependent”, namely acts whose effects would depend on a corresponding act by one or more other States’ (offer and acceptance, accession, ratification, formulation of reservation and denunciation, and declarations made pursuant to Article 36, paragraph 2, of the Statute of icj) – ‘acts which, to produce their effects, did not require a response in the form of a corresponding act emanating from another State’99 (recognition, protest, renunciation of rights and unilateral promises). It is easy to see that the most important category was somehow reserved for either classical or non-autonomous acts. It is no wonder that the third of three main categories is based on a narrow definition of a unilateral act (or rather its modification, comprising non-autonomous acts). What is really important however are the remaining two main categories. Long catalogues of acts could be found in some (albeit rather few) replies sent by some governments to the questionnaire prepared by the Commission in 1999. For example, the government of Italy divided these acts into three groups. They were: (a) ‘Unilateral acts referring to the possibility of invoking a legal situation’ (recognition, protest and waiver); (b) ‘Unilateral acts that create legal obligations’ (promise); (c) ‘Unilateral acts required for the exercise of a sovereign right’ ­(delimitation of territorial waters or of an exclusive economic zone, attribution of nationality, registration of a vessel, declaration of war or neutrality).100 The Government of Salvador mentioned without attempting to classify them, the acts it considers most important: notification, recognition, protest, waiver, unilateral promise, declaration, appeal and resolution.101

99

Both citations on the basis of: Summary records of the meetings of the fiftieth session, Yb. ILC, 1998, vol. i, 2525. meeting, p. 43, par. 6. 100 4. report, p. 14, par. 63. 101 4. report, p. 14, par. 65.

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The special rapporteur also touched upon the topic when he wrote that: The diversity referred to earlier makes it impossible to draw up a restrictive list of unilateral acts from a material point of view, and this greatly complicates the grouping of rules. In addition to the classic acts already mentioned, there are unilateral declarations of neutrality and of war and negative security guarantees in the context of nuclear disarmament, and although they are different, they may resemble such classic acts as promise or waiver in the first case, recognition or promise in the second, and promise or waiver in the third.102 This is why it would be difficult to treat the special rapporteur, or the entire ilc, as uncritical proponents of the classical catalogue of unilateral acts. The fact is that the problem of types of acts was not given sufficiently serious attention during the entire nine-year period of work of the ilc on the topic. This failure had an evident influence on the actual failure of those works. 3.8

Notification – The Key to Problems with Unilateral Acts of State?

Notification has a special position in the discussion on unilateral acts. At the end of 19th and in the first half of the 20th centuries the doctrine treated notification as a separate type of unilateral act. It is present in all three great monographs of unilateral acts of states (by Pfluger, Biscottini and Suy). Hence a few words on notification as such are apropos. For A. Cassese, ‘Notification is an act by which a State makes other States cognizant of a certain action it has performed (…).’103 Jennings and Watts write simply that ‘[b]y notification states communicate to other states certain facts and events of legal importance.’104 Such brief descriptions have their merits. On the other hand Pfluger elaborated a definition according to which ‘notification of international law’ is ‘a unilateral declaration of will requiring that it be directed (richtungsbedürftige). By means of it a subject of international law informs one determined or a few determined subjects having a legal interest in it about events important from the legal point of view, legal effects or claims.’105 102 103 104 105

4. report, p. 15, par. 71. A. Cassese, International Law, Oxford 2005, p. 184. R. Jennings, A. Watts, op. cit., p. 1193. F. Pfluger, op. cit., p. 221.

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One can wonder how to guarantee that only legal elements are the object of notification, or how to guarantee that it is directed to subjects which not only have an interest, but also an interest important from the legal point of view. It seems that such a definition is detached to a large extent from notifications actually made in practice. In fact it is also a largely artificial definition. Definiendum is not ‘notification’, but ‘notification in international law.’ This makes such definitions hardly comparable. The problems with the very definition illustrate very well the wider problem with situating notification as a separate type of unilateral act of states in public international law. This problem is especially acute for lawyers adopting (unlike me) a narrow definition of a legal transaction (acte juridique, Rechtsgeschäft). But it is also a problem for those (like me) who adopt a much more liberal stance to unilateral acts. An element which makes the picture even more difficult is the wide scope of application of notification. For example Suy writes on notifications provided for in treaties and custom, and obligatory and facultative notification. There was never any doubt about the fact that notification may be a form in which other acts are adopted (performed). They may be those identified as unilateral legal transactions discussed in the other chapters of this work (promise, waiver, recognition, protest), as well as several acts from the field of law of treaties (notification of approval or the very deposit of ratification documents), the law dealing with territory (notification of occupation), law of war (notification of blockade) and many others. The doubts as to whether notification has the character of a legal act became wide-spread. Pfluger gave a positive answer to this question, but to a large extent this was the result of artificially setting the problem. In this sense saying that ‘a notification of international law’ is a legal transaction may be an equivalent of saying that notification as such is not necessarily such a legal act. However, even Pfluger had problems with indicating the legal effects of notification. On one hand, he was ready to describe it as a modification of the legal position of a state acquainted with a given situation.106 On the other hand he felt obliged to confess that it’s difficult to say much about the general effects of notification.107 It was Suy who examined the essence of notification in a very detailed way. The result of his examination was to deny it the character of a legal act. In his opinion notification is not a legal transaction of international law.108 106 F. Pfluger, op. cit., p. 228. 107 F. Pfluger, op. cit., p. 230. 108 E. Suy, op. cit., p. 107.

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He divided his conclusions into several. Firstly he denied the character of legal acts to notifications resulting from treaties. For him, they were at the most legal facts (faits juridiques subjectifs). All the same he pointed out the necessity of examining the legal effects of such acts a casu ad casum. Secondly he denied the character of legal transaction to facultative notification. In fact however his denial of this character was connected with confirmation that some notifications may all the same have legal effects. The previous subchapters referred to authors enumerating notification among unilateral acts of states in public international law. Perhaps its presence in such lists was the main reason for the not infrequent critical remarks. One of the was made by the special rapporteur in his fourth report, where he notes that: As indicated below, some authors rightly point out that the doctrine generally mentions recognition, protest, waiver and notification, a list which confuses form with content or substance with procedure.109 Nowadays the prevailing view is that notification cannot be treated as a type of an act. The doctrine seems to be very impressed by the thesis that any act may take a form of notification. That is why listing it among the acts is a mistake. It is difficult to argue with this as such. In fact the risk of ‘double counting’ is visible. In this sense it would be a mistake to classify a legal act of promise and a legal act of notification of this promise as separate acts. It would be a similar mistake to distinguish between a legal act of declaring a given diplomat as persona non grata and a legal act of notification of the declaration of the same diplomat as persona non grata. With respect to treaties the danger is even greater. There is a risk of triple counting. In this sense one can count a ‘legal act of ratification of a treaty’, a legal act of ‘deposit of the ratification document with a depository,’ and a legal act of ‘notification to the depository on ratification’. In fact the very deposit of the document is a notification and notification means in this case the sending of a document to the depository. What’s more, an international ratification includes the deposit of the document. In this respect the risk of misunderstandings is really great, and the elimination of notification from the classical catalogue performs a good service to the truth. That is why I propose a kind of Occam razor. It is to eliminate from our discussion all kinds of notification which are simply a form of other acts. This 109 4. report, p. 11, par. 50.

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saves me from saying that what is outside the scope of the present work are acts leading to bilateral or multilateral engagements as well as acts (including notifications) based on such bilateral or multilateral acts. However, the classical catalogue without notification is not necessarily better. In fact notification could have been treated as a safety valve for some acts which give rise to legal effects and are made by states unilaterally, at the same time being neither protest, waiver, promise nor recognition. This remodelling of the classical catalogue can be compared to repairing a big wheel and destroying a few small ones. In fact there is no way to come back to the previous situation. What must be checked is the completeness of the classical catalogue. Without notification it is more detached from the reality, while with notification it was manifestly incorrect. In fact the very statement that notification (in general) is not a type of unilateral act does not lead to the conclusion that a given subcategory of notification (notification of a given content) can never give rise to legal effects. That is why the discussion of several acts in Part 2 includes discussion of a few types of notification. One of the questions is whether the above-mentioned Occam razor is applicable to them; that is whether notification is not simply a form or an element of a larger whole. While one must count on this being the case in some instances, it would be naive to think that it will always be so. On the contrary, one must also count on notification as such not being a form or element of another act. Hence a few words must be said about the possible legal effects of the very fact of informing another state about a given fact or act. The basic effect of notification of a given fact is that this fact is thereafter known to the addressee of the notification. One can seriously doubt whether this is really a legal effect in the technical meaning of the term. The fact that another state knows that, for example, elections took place in a given state may have political, economic or social importance. Legal effects however can be hardly presumed, although they cannot be a priori excluded. In fact they may be present only in the face of a concrete legal norm to that effect. In the absence of such a norm, notification is deprived of legal effects. This is why, in my opinion, one must seriously take into account that there will be situations in which certain notifications are legal acts (transactions) of international law, and those in which they are not. In other words, the most important question in this respect is whether there is at least one legal norm of international law providing for a legal effect of notification itself. It would seem wise to assume the existence of such a norm. One can imagine an argument that it is not always necessary that a notification is given. What is necessary is that a given state obtains knowledge of a given act or fact. In my opinion this is a misguided argument. It does not

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matter that the same effect can stem from different sources. If the proper source is notification and it brings about legal effects, it must be treated as a legal act within the meaning of the present work. While this makes the picture more complicated, all the same all future conclusions must be supplemented with the statement that in certain cases notification may be in concreto a legal act. In this sense it would be confirmation of the words of Pfluger on (possible) modification of the legal position of a given state, and of Suy on the necessity to look for the legal effects of notification a casu ad casum. 3.9 Conclusions As can be seen, the question of types, or typology, of unilateral acts is an object of controversy. What can be done at this stage is just signal the existence of such controversy. The most important conclusion (or rather temporary conclusion, or assumption for further analysis) is that the classical catalogue is not a dogma. It cannot be uncritically accepted as the only, or even the main, topic of interest for authors writing on unilateral acts. The proffered proof for such an assertion should respond to two fundamental questions. The first is whether the classical catalogue is exhaustive. In other words, are the types of acts included into it necessarily different from the ones that are not included? The second question is whether the elements included are really unilateral acts. The aim of the entire Part 2 is to address the first question. An attempt to answer the second question is the main goal of Parts 3 and 4. What must be done first, however, is to discuss the grounds for the validity of unilateral acts.

chapter 4

Validity of Unilateral Acts 4.1

Introductory Remarks

The main topic of this chapter is the validity of unilateral acts. This is strictly connected with the question of the organs competent to make such acts, hence the latter subject will be also discussed here. Both of these elements found their place in the draft articles and general principles formulated by the special rapporteur. The latter also covered the topics of interpretation and revocability of acts, but it seems to be more practical to refer to those elements in the chapters devoted to different types of acts. J.-P. Jacqué rightly argues that there can be no theory of acts without the theory of validity (validité).1 There can be no doubt that unilateral acts may be valid or invalid. So, for example in the case of Eastern Greenland, Denmark demanded the pcij to declare that the promulgation of the declaration of occupation above mentioned and any steps taken in this connection by the Norwegian Government constitute a violation of the existing legal situation and are accordingly unlawful and invalid (illégales et non valables).2 The pcij used the same words to qualify the Norwegian occupation of July 10th, 1931 and any steps taken in this connection by the Norwegian Government.3 On the other hand, in the dispute between the uk and Iceland on fisheries jurisdiction, the icj did not speak about validity or invalidity of the establishment by Iceland of a 50-mile area of exclusive fisheries, but satisfied itself with the confirmation of the lack of its opposability to the uk.4 One may argue that not every act which is not opposable must be invalid, but every act which is invalid is not opposable. In fact the Court deciding a case may content itself 1 2 3 4

J.-P. Jacqué, Acte et norme en droit international public, rcadi, 1991, ii, t.227, p. 369. pcij Publications, series A/B, No.53, p. 24. Ibidem, p. 64. i.c.j. Reports 1974, p. 29.

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004274617_006

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with the question of opposability.5 On the other hand, the term ‘validity of claims’ was used by the icj in the ‘twin’ judgment in the dispute between Germany and Iceland.6 During the discussion on the fifth report B. Simma stressed the need to not attach excessive importance to the validity-opposability dichotomy. As the ilc Yearbook reported, B. Simma could not agree that the essential distinction between unilateral acts and sources of law was one of opposability versus validity. “Validity” was a word whose meaning differed from language to language, and the issue was, in his view, one of Begriffsjurisprudenz. He himself could see nothing wrong in describing a solemn promise made by a head of State in contravention of certain constitutional provisions as “invalid”.7 There can be no doubt that certain acts creating obligations for the authorstate may be invalid. For example, in the dispute between Nicaragua and Honduras Nicaragua claimed that modifications of the unilateral declaration of Honduras on the acceptance of the compulsory jurisdiction of the icj were invalid.8 Unfortunately, this aspect was not at the centre of interest of the authors of earlier monographs on unilateral acts. Only F. Pfluger devoted an important part of his book to the question of the validity of unilateral acts. However, the doctrine referred to that topic in a wider context – comprising all transactions of international law. 4.2

General Conditions of Validity and the Grounds of Invalidity

The doctrine emphasizes that every legal transaction of public international law (including unilateral acts) must fulfil certain conditions. J.-P. Jacqué9 distinguishes three groups of conditions: 5 In this case the reason for the lack of opposability of the establishment of a sphere of exclusive fisheries was based on treaty obligations of Iceland with respect to the uk. The same term could have been used with respect to nonconformity with general (customary) international law. 6 i.c.j. Reports 1973, p. 62. 7 Yb.ILC, 2002, vol. i, 2726. meeting, p. 102, para. 32. 8 Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, Judgment, i.c.j. Reports, 1988, p. 74. 9 J.-P. Jacqué, Eléments pour la théorie de l’acte juridique en droit international public, Paris, 1972, p. 72.

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– conditions concerning the author of an act; – conditions concerning the declaration of will; – conditions concerning the object and aim of an act. W. Góralczyk adopts a similar stance, but speaks of four conditions of validity of acts, as follows: (1) (2) (3) (4)

the capacity of a subject or subjects; a proper object; the will expressed in a proper way; the proper form.10

That is also how V.-D. Degan refers to the topic.11 On the other hand, Pfluger adopts another perspective, namely that of the grounds of invalidity of an act. He divides them into failures concerning the subject of an act, its object, declaration of will and form.12 The special rapporteur referred to conditions of validity of acts already in his second report. They were as follows: (1) ‘the act must be attributable to a subject of international law and the representative of the State concerned must have the capacity to represent it, that is, be qualified to engage the State at the international level’, (2) ‘the source of unilateral acts of States resides in the expression of will, which must be free of irregularities’, (3) ‘the expression of will must also be formulated in the proper manner’, (4) ‘legality of the object of an act’.13 10 11 12 13

W. Góralczyk, Prawo międzynarodowe publiczne w zarysie, Warszawa, 1989, p. 166. V.-D. Degan, Unilateral act as a source of particular international law, fyil, vol. v, 1994, pp. 187–188. F. Pfluger, Die einseitigen Rechtsgeschäfte im Völkerrecht, Zürich, 1936, pp.74–93. All citations taken verbatim from the 2. report. add., p.10, par. 111–114. A very similar list, though a little bit shorter (without the third element) can be found in: 5. Report., add.1, p.2, par. 85. The 9. report referred to all four criteria, which were somewhat expanded on. The special rapporteur wrote as follows: ‘The unilateral act must have been issued by a person with the capacity to formulate it; its content must be materially possible and not prohibited by a peremptory norm of general international law (jus cogens); and the intention expressed by the author of the unilateral act must correspond to the author’s true intention and must not be affected by defects or invalidating factors. 9. report, add.1, p.8, par. 16 In fact already in para. 17 (9. report, add.1, p.9) the special rapporteur came back to the elements in the shape adopted in the 5. report.

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Draft Article 7, devoted to the bases of invalidity of unilateral acts14 and proposed in the same report, referred to: error, fraudulent behaviour, corruption, coercion of a representative of a state, threat or use of force against the authorstate, conflict with a peremptory norm of international law, and clear violation of a norm of fundamental importance in the domestic law. There can be no doubt as regards the similarity of the above-delineated grounds of invalidity with those from the 1969 Vienna Convention on the Law of Treaties (vclt). In fact the special rapporteur seems to have seen no particular necessity to justify the application of several grounds of invalidity to unilateral acts . He wrote that Without doubt, the rules applicable to treaty acts are largely applicable to unilateral legal acts of States.15 During the debate on the third report the special rapporteur declared he was taking into consideration the critical views on the application of the vclt to unilateral acts.16 This declaration was without any practical importance, however. It is necessary to look at those grounds in a little more detail. The vclt identifies eight grounds of invalidity. Three of them are connected with so-called ‘absolute invalidity’. They are: coercion of a representative of a State (art.51 vclt), coercion of a State by the threat or use of force (art. 52 vclt), and conflict of a treaty with a peremptory norm of general international law (jus cogens), (art. 53 vclt). Five other grounds bring about so-called ‘relative invalidity’. They are: error (art. 48 vclt), fraud (art. 49 vclt), corruption of a representative (art. 50 vclt), violation of a provision of internal law regarding competence to conclude treaties (art. 46 vclt) and specific restrictions on authority to express the consent of a State for a treaty (art. 47 vclt). It’s easy to see that almost all grounds from the Vienna Convention were fully reflected in the draft article proposed by the special rapporteur. The only exceptions are the two last grounds. However, the ‘clear violation of a norm of

14 15

2. report, add., par. 109. 2. report, add., p. 12, par. 131. When discussing some of the grounds, the special rapporteur limited himself to references to discussions surrounding the works of the ilc on the Convention of the Law of Treaties. So as regards error – see 2. report, add., p. 13, par. 133; as regards fraud – see ibidem, par. 135; generally as to defects of declaration of will – see 5. report., add.1, p. 7, par. 106. 16 Yb.ILC, 2000, vol. i, 2628. meeting, p. 131, para. 13.

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fundamental importance of the domestic law’ suggested by the special rapporteur is a kind of equivalent. It would be worthwhile to examine the relationship of the grounds of invalidity specified by the special rapporteur to the general conditions of validity of acts – both in the doctrine and in the reports of the special rapporteur himself. This is the most easy to do with respect to conflict with a peremptory norm of general international law (jus cogens). This clearly refers to an irregularity concerning the object of an act (‘legality of the object of an act’ in the terminology of the special rapporteur). The ‘clear violation of a norm of fundamental importance of the domestic law’ suggested by the special rapporteur is a ground for invalidity which concerns the capacity of the subject or subjects (in the terminology of the special rapporteur this reflects the first general criterion encompassing both the possibility to attribute an act to a subject of international law and the capacity of a representative to represent a state). There is no doubt that some grounds for invalidity are connected with defects of an expression of will. W. Góralczyk associates that element with error, fraud, corruption, coercion of a representative of a state and coercion of a state.17 These are called ‘irregularities of a declaration of will’.18 J.-P. Jacqué19 also treats error, fraud and both kinds of coercion as such irregularities. Corruption was rather more overlooked than deliberately removed from this list. Thus one should assume that all five grounds of invalidity – error, fraud, corruption, coercion of a representative of a state and coercion of a state – are covered by the second criterion presented by the special rapporteur (freedom of the expression of will from irregularities) rather than the third one (formulation of the expression of will in the proper manner). This last element is connected with the form of an act. It is easy to see that none of the above-listed grounds of invalidity correspond to that general condition of validity. V.-D. Degan rightly notes that international law does not prescribe any special requirements as to the form of the majority of unilateral acts. He is willing to see exceptions in some transactions of the law of the sea.20 The catalogue of grounds of invalidity suggested by the special rapporteur was even expanded21 and is the longest known to me. The basic question is whether it reflects the customary norms of public international law. In fact it 17 W. Góralczyk, op.cit., p. 166. 18 F. Pfluger, Die einseitigen Rechtsgeschäfte im Völkerrecht, Zürich, 1936, pp. 79–92. 19 J.-P. Jacqué, Eléments…, pp. 131–141. 20 V.-D. Degan, op.cit., pp. 187–188. 21 Vide: infra.

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must be assumed that in certain situations acts are invalid. Confirmation of that fact does not require the invocation of tens or hundreds of instances of their actual application as well as several court or arbitral rulings referring to it expressis verbis. There is no justification why a given irregularity should lead to the invalidity of a treaty but not to the invalidity of a unilateral act creating obligations for its author. This does not mean, however, that these grounds must be exactly the same. It should be underlined however that there is a basic divergence of views in the doctrine on the grounds of invalidity of unilateral acts of states. One can even speak of a dichotomy of doctrinal positions in this respect. The first view was already presented. It refers to grounds of invalidity from the vclt – in a modified or unmodified version. The second view is presented by, e.g., D. Ruzié. He writes that a unilateral act of a state must be simply in conformity with international law.22 However, the conditions of validity of treaties provided for in the vclt, as well as the literature on the law of treaties and several reports and draft articles of the special rapporteur on unilateral acts of states referring to that Convention23 do not recognize such a requirement. In this respect the situation of the norms iuris cogentis and norms connected with the prohibition of coercion in international relations are different than that of all other norms of international law. It is worthwhile to recall in this context that D. Ruzié referred to delimitation of territorial sea as an example of unilateral acts of states. The special rapporteur, dealing with the same topic, had in mind rather a unilateral promise. One must seriously take into account the possibility that the objective differences among various types of unilateral acts will make it impossible to present a universal catalogue of grounds of their invalidity. Without prejudging here the legal status of the delimitation of territorial sea, one must accept that if such delimitation is a unilateral act (in the meaning adopted in this work), then the grounds of invalidity of at least one unilateral act will be nonconformity with international law, and not just the presence of one of the grounds identified in the draft articles by the special rapporteur. As was said by B. Simma during the debate on the third report, it was dangerous for the Commission to carry on discussing the applicability of the 1969 Vienna Convention without a clear idea as to which unilateral acts it had in mind.24 22 D. Ruzié, Droit international public, Paris, 1992, p. 51. 23 Vide: infra. 24 Yb.ILC, 2000, vol. i, 2629. meeting, p. 133, para. 37.

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What’s more, problems with the establishment of one common list of grounds of invalidity arise even if the analysis is limited to classical unilateral acts only. In his fifth report the special rapporteur expressed some doubts as to whether a common rule could be established as regards invalidity.25 He noted that it could look different with respect to promise or waiver on one hand, and protest on the other. With respect to the former it is the author who can invoke invalidity, while the invalidity of a protest would be (according to the special rapporteur) rather invoked by other states. In fact it is hard to imagine invoking the invalidity of a protest resulting from error or coercion, not because such situations are impossible but because protest can be always withdrawn. It is difficult to identify any unequivocal legal effects of protest which would be cured by invoking its invalidity. This is why (without prejudging the precise rules applicable to protest or acts other than classical ones) the present chapter must be limited to acts creating obligations for their authors. This means, above all, unilateral promises. The majority if not all conclusions could be extended to waiver and to a large extent to recognition as well. The specificity of the two last types of acts will be referred to however only in the chapters devoted to them.26 4.3

The Grounds of Invalidity in the Vienna Convention on the Law of Treaties and their Applicability to Unilateral Acts of States

Taking into consideration the above-mentioned obvious fact that in some situations acts are invalid, one must consider whether it is prima facie advisable to adhere strictly to the grounds of invalidity from the vclt. In the third report the special rapporteur referred to voices in favour of and against such a stricture.27 The rapporteur cited the opinion of a representative of Poland in the Sixth Committee of the General Assembly, according to which since the consent to be bound by a treaty and the consent to a unilateral commitment were both expressions of the will of State, it seemed logical that the same reasons for invalidity should apply to both types of statements.28

25 26 27 28

5. report, add.1, p.8, par. 110. See part iv. 3. report, p. 19, par. 134. 3. report, p.19, par. 135.

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It should be recalled that Mr. Economides, during the debate on the third report, said that (…) if unilateral acts could be revoked, it was in the interests of the State to use that method rather than invoke a cause of invalidity. The causes of invalidity should therefore essentially concern unilateral acts that were not revocable, in other words, those linking the State formulating the act to another entity.29 Similar (though less unambiguous) statements were made by Mr. Goco.30 All the same, the questions of revocability and validity are separate questions. Clearly an invocation of a ground of invalidity may resemble termination or revocation, but its nature is different. In particular, nobody can demand any termination period. Also, during the discussion on the fifth report, Mr Koskenniemi deplored ‘the unfortunate use of the term “validity” throughout article 5’.31 All the same the majority of authors speak in favour of the application of the grounds of invalidity in the vclt to unilateral acts. For example, W. Fiedler speaks unequivocally in favour of such an application.32 V.-D. Degan is also in favour of the application mutatis mutandis of arts. 46–53 of the vclt.33 W. Czapliński presents the same stance, especially with respect to the vclt provisions on error and fraud.34 Czapliński and A. Wyrozumska regard it useful to refer to the rules of the vclt to examine if a declaration of will is free from defects.35 They treat separately the question of competence of organs.36 I am unable to point out any court or arbitral ruling referring to the invalidity of a unilateral classical act. In fact, the drafters of the vclt were in the same situation, at least with respect to some of the grounds of invalidity. Actually, some of them stem from Roman law. In the ninth report the special rapporteur began to wonder if the grounds of invalidity proposed by him did not refer too 29 Yb.ILC, 2000, vol. i, 2630. meeting, p. 141, para. 16. 30 Yb.ILC, 2000, vol. i, 2630. meeting, p. 141, para. 7. 31 Yb.ILC, 2002, vol. i, 2725. meeting, p. 96, para. 38. 32 W. Fiedler, Zur Verbindlichkeit einseitiger Versprechen im Völkerrecht, gyil 1976, p. 59. 33 V.-D. Degan, op.cit., p. 188. 34 W. Czapliński, Akty jednostronne w prawie międzynarodowym, Sprawy Międzynarodowe 6/1988, p. 106. 35 W. Czapliński, A. Wyrozumska, Prawo międzynarodowe publiczne. Zagadnienia systemowe, Warszawa, 2004, p. 121. 36 Ibidem, p. 120.

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much to the grounds of invalidity worked out by private law, instead of using examples from international practice.37 But while precedents are missing, that does not mean that a given ground should be put into question. The basic question is different. It seems useful to adopt the grounds of the vclt as a point of departure. One can then think of their modification, and especially wonder if they should not be extended in order to protect the author-state to a higher extent. First of all it is necessary to examine if there is any sense in distinguishing the grounds of relative and absolute invalidity of unilateral acts of states. Within the framework of the law of treaties, grounds of relative invalidity may be invoked only by one party. Arts. 46–50 of the vclt contain the phrase ‘the State may invoke [ground x] as invalidating its consent to be bound by the treaty’, each time pointing to one party only. It can be: the state being in error; the state being the victim of a fraud or corruption. It can be also the state whose provision of internal law regarding the competence to conclude treaties was breached. Last but not least it can be the state whose representative exceeded specific restrictions on his or her authority to express the consent of a State for a treaty. Grounds of absolute invalidity are formulated in a different way. Arts. 52 and 53 vclt contain the phrase: ‘A treaty is void’. Art. 51 vclt, concerning coercion of a representative of a state, refers to the consent of a state to be bound by a treaty, but says that ‘it shall be without any legal effect’ and not that such lack could be invoked by one party. In bilateral treaties the invalidity of consent of one of the parties means the invalidity of the given treaty. One may wonder if there is any sense to introduce such a differentiation into the field of invalidity of unilateral acts (at least those creating obligations of the author-state)? If they create obligations only for the author, then differentiating between relative and absolute invalidity seems more than doubtful. Third states can accept, but do not have to accept, the benefits resulting from such an act. If they have doubts as regards the legality of an act, they can simply denounce the benefits to them which result from it. This is, however, only an apparent certainty. An act which is beneficial for one third state may be contrary to the interests of another third state. For example, the recognition of Kosovo evidently gives rise to obligations for the author-state, but from the perspective of Serbia is an unfriendly act. Similarly, a promise to close a given maritime area may be in the interests of some states and against the interests of others. From that perspective, one cannot argue that the differentiation between relative and absolute invalidity of unilateral acts is without sense. 37

9. report., add., p. 7, par. 13.

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Also, states other than the author-state may have an interest in confirmation of the invalidity of an act. The special rapporteur, in the draft principles presented in his ninth report, differentiated between two basic contexts. According to the draft principles – an act is invalid if formulated or performed as the result of the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations, or if it is contrary to (or conflicts with) a peremptory norm of general international law (jus cogens).38 With respect to the other grounds, the special rapporteur used the term ‘declaring invalid’ or ‘declaring invalidity’. Already in the fifth report the special rapporteur distinguished between relative and absolute invalidity.39 He treated as examples of the latter: coercion of a representative, coercion of a state, and conflict with jus cogens norms; that is, all the elements treated as such on the basis of the vclt. In consequence, it would have been more logical to for him to qualify an act resulting from the coercion of a representative as an invalid act and not one justifying a declaration of invalidity. In fact however, it is difficult to attach any decisive importance to the very usage of these terms. The ilc referred to this topic in a very indirect way. It did not introduce in its Guiding principles complex rules concerning the grounds of invalidity. An exception was made for cases of conflict with peremptory norms of international law (iuris cogentis). Principle 8 states that a unilateral act contrary to such norms is void. Within the framework of the law of treaties an additional characteristic of relative invalidity is the possibility of validation – that is, the loss of a right to invoke a ground for invalidating a treaty.40 In the fifth report the special rapporteur expressed himself in favour of validation of a unilateral act, both express as well as implied.41 He noted however that the validation of unilateral acts is different than the validation of treaties.42 In fact however, this aspect was not reflected in the definitive version of the draft articles, draft principles and the Guiding Principles as adopted. In my opinion there are no arguments for not applying, with respect to unilateral acts, an analogous solution to the one applicable with respect to treaties. On the other hand, the possibility of invoking relative invalidity by a state different than the author of an act (e.g. with respect to protest, which however 38 9.report, principle 7 (5) and (6). 39 5. report, add.1, p. 6, par. 99. 40 Art.45 vclt. 41 5. report, add.1, p. 8, par. 111. 42 5. report., add.1, p. 8, par. 110.

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is not the topic of the present chapter) would require a very good justification. I can see no special reasons for such a solution. 4.4

Certain Grounds of Invalidity and Unilateral Acts

4.4.1 Grounds of Invalidity Concerning the Will of a State The leading idea is that if a unilateral act creates obligations only for the author-state, then the author-state deserves to be protected to a higher extent than a party to a treaty. Such protection is extended by means of the domestic norms of many states concerning authors of donations. As they do not receive material compensation for their deed, they are more strongly protected than the parties to a contract of sale. However, the translation of this idea into precise rules is more than difficult and, so far at least, has largely been unsuccessful. Firstly, there is one ground for which there is clearly no need to extend protection. This relates to the coercion of a representative of a state. The vclt itself rules that such coercion leads to absolute invalidity of a treaty. One can hardly add anything to the protection resulting from that ground of invalidity as applied to a unilateral act. W. Czapliński and A. Wyrozumska claim that the invalidity of treaties resulting from coercion of a representative of a state is a well established principle of customary law.43 There are no reasons why it would not apply to and protect the author of a unilateral act. During the debate in the ilc Mr Tomka said: [t]he use of coercion on the person formulating the act, provided for in subparagraph (d) of new draft article 5, was a special case, since, in those circumstances, the person involved was not expressing the will of the State he was supposed to represent, but that of the State using coercion. Without a will, there was no legal act and, if there was no act, there was nothing to be invalidated. Whereas previous cases had been cases of negotium nullum, the case in question was one of non negotium.44 However, it may be necessary for a state to refer expressly to that element, which would in fact be identical or similar to invoking a ground of invalidity

43 W. Czapliński, A. Wyrozumska, op. cit., p. 499. 44 Yb.ILC, 2000, vol. i, 2630. meeting, p. 145, para. 56.

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(or voidance). One can suggest an Occam’s razor in this respect and call it as an instance of invalidity. In the first version of the present work I extended to fraud and corruption the remark concerning the lack of a possibility to strengthen the protection of the author-state of a unilateral act, as compared to the protection of a party to a treaty. I am not ready to repeat it now. As regards fraud and corruption, it is usually noted that they are rarely applied. This, however, does not give rise to any doubts as to principle.45 B. Simma, during the debate on the third report, very strongly supported the idea of fraud being a ground of invalidity.46 During the same debate Mr. Baena Soares devoted a longer passage to corruption. According to him, [t]he incorporation of corruption in subparagraph (c) was welcome. Corruption was being combated universally, by legal instruments such as the Inter-American Convention against Corruption.47 As the ilc Yearbook reports: He wondered, however, whether it was necessary to narrow down the possibility of corruption to “direct or indirect action by another State”. One could not rule out the possibility that the person formulating the unilateral act might be corrupted by another person or by an enterprise.48 There is actually some scope for extending the protection of the author-state. The ilc did not use this opportunity. The same applies to fraud. The possible extension would make it possible to invoke fraud from whatever source. All the same such remarks have rather the character of pure development of international law. Paradoxically enough, all three grounds – that is coercion of a representative of a state, fraud, and corruption – are connected with the very interesting problem of influence of third states on unilateral acts. This question has a more general scope, and the question of invalidity is just a fraction of it. The special rapporteur did not notice that aspect of the problem. In his third report he only referred to the fears of some states that a provision on fraud would 45 W. Czapliński, A. Wyrozumska, op. cit., p. 121. 46 Yb.ILC, 2000, vol. i, 2629. meeting, p. 134, para. 43. 47 Yb.ILC, 2000, vol. i, 2629. meeting, p. 137, para. 76. 48 Yb.ILC, 2000, vol. i, 2629. meeting, p. 137, para. 76.

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deprive them of traditional methods of diplomacy,49 although he did not seem to be very impressed by that argument.50 In fact however, the problem has to do with the very definition of a unilateral act. The question is – can one speak about a unilateral act in a situation in which fraud, coercion or corruption on the part of another state has taken place? Such an intensive influence of another state on the author-state would seem to exclude the unilateral character of a given act. In fact the real interest of a third state in a unilateral act being made/performed/issued by another state is not synonymous with a common transaction of two states. The three grounds of invalidity indicated here relate to the most repugnant examples of influence of a third state on the authorstate. It would be difficult to exclude a priori the possibility of such situations just on the basis of a sublime definition of a unilateral act. In any case, such a sublime definition of a unilateral act will not be adopted in this work. The remark concerning the lack of a possibility to strengthen the protection of the author-state of a unilateral act, as compared to the protection of a party to a treaty, does not apply to the next ground of invalidity, namely error. The question of error as a ground of invalidity used to be discussed mainly in the context of treaties.51 Art.48 vclt concerning error reads as follows: 1.

2. 3.

A State may invoke an error in a treaty as invalidating its consent to be bound by the treaty if the error relates to a fact or situation which was assumed by that State to exist at the time when the treaty was concluded and formed an essential basis of its consent to be bound by the treaty. Paragraph 1 shall not apply if the State in question contributed by its own conduct to the error or if the circumstances were such as to put that State on notice of a possible error. An error relating only to the wording of the text of a treaty does not affect its validity (…)

As is visible, this provision refers to four elements. An error must concern only facts, they must be important, an error cannot be obvious, and a state attempting to invoke error cannot have contributed to it by its own conduct. Error was invoked in the case of Mavrommatis Palestine concessions. The pcij ruled as follows:

49 50 51

3. report, p. 20, par. 142–143. 3. report, p. 20, par. 142–143. See e.g.: H.J. Kristjansson, Error in international agreements, Nordisk Tidsskrift Int. Ret, 1981, pp. 54–74.

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Even arguing – as does the British Government – from those principles which seem to be generally accepted in regard to contracts, and from the probable intentions of the Parties, the Court equally arrives at the conclusion that the Mavrommatis concessions must be regarded as valid. Since the identity of the person has never been in any doubt, the error can only relate to one of the attributes of the concessionnaire. The absolute nullity therefore of the concessions would appear to be excluded; their liability to annulment depends on the question whether Ottoman nationality was considered as a condition of the grant of the concessions. The Respondent has contended that certain circumstances militate in favour of this view – inter alia the express mention of the Ottoman nationality of the concessionnaire, the existence of clauses ensuring that the Company to be formed shall be Ottoman. The following circumstances should however be noted: The fact that the concessionnaire is under an obligation to form within a short period an Ottoman Company to work the concession renders his nationality of practically no importance, his technical abilities and financial connections being the essential points. Indeed, in the agreements relating to the Jaffa concessions, which were granted even after Turkey’s entry into the war, M. Mavrommatis’ nationality is not mentioned. Furthemore, one important consequence of Ottoman nationality, namely the jurisdiction of the Ottoman authorities and courts in the event of any possible dispute, is expressly stipulated in all the concessions, in those which mention M. Mavrommatis’ nationality as well as in those that do not; this jurisdiction does not therefore depend upon the description of the concessionnaire as an Ottoman subject.52 Already in the third report the special rapporteur wrote that: It was stated that an error of fact should be easier to correct than an error committed by a State in adopting the text of a treaty.53 He did not comment on that opinion. It would in fact be quite difficult to do so. One of the alternatives to the scope resulting from art. 48 vclt would relate to the ‘fact’ element and would suggest allowing one to invoke an error of law. In fact, probably no legal system would allow a subject such as a state to invoke 52 53

pcij Publications, series A no 5, p. 30. 3. report, p. 19, par. 138.

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an error of law. States have hundreds of qualified lawyers at their disposal and it would be a mockery to defend them against their own ignorance of the law. A serious argument against such a proposal can be found in a passage from the Preah Vihear case. The icj ruled as follows: It is an established rule of law that the plea of error cannot be allowed as an element vitiating consent if the party advancing it contributed by its own conduct to the error, or could have avoided it, or if the circumstances were such as to put that party on notice of a possible error. The Court considers that the character and qualifications of the persons who saw the Annex 1 map on the Siamese side would alone make it difficult for Thailand to plead error in law. These persons included the members of the very Commission of Delimitation within whose competence this sector of the frontier had lain. But even apart from this, the Court thinks that there were other circumstances relating to the Annex 1 map which make the plea of error difficult to receive.54 This passage relates as well to the elements mentioned in the second paragraph of art. 48 vclt. One can hardly speak about the possibility of effectively invoking obvious errors, or errors to which a given subject itself contributed. Decades before the codification of the law of treaties F. Pfluger wrote that error must be explainable (entschuldbar), that is that the diligence of competent organs would not have eliminated the error.55 This remark (evidently inspired by the doctrine of private law) remains valid till now. The third element has to do with the importance of an error. This means that it must have formed an essential basis of a state’s consent to be bound by an obligation, such that a state would not have undertaken such an obligation had it not been in error. An extension of that ground would perhaps lead to the possibility to invoke any erroneous imagination, especially concerning the gratitude of the beneficiary state. This in particular seems to be completely unacceptable. It would be a kind of paradox that an attempt to protect an author of a unilateral act would change the act into an invitation to negotiate. Such a premise would rather negate the very logic of unilateral acts. Nothing prevents the author-state of a unilateral act from giving it the character of an offer or indicating that the act may be revoked. An offer will obviously not be of a unilateral character. Thus there is hardly any scope for extending that aspect of an error as a ground of invalidity. 54 55

P. 26. F. Pfluger, Die einseitigen Rechtsgeschäfte im Völkerrecht, Zürich, 1936, p. 89.

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Taking the above into account it is little wonder that the special rapporteur, in the final draft of principles, inserted a provision concerning error56 which almost verbatim recited the two first paragraphs of art. 48 vclt. This position should be fully supported. The next ground for widening the scope of invalidity upon which one can wonder is the coercion of a state. One must recall that at the time of writing the first monograph on unilateral acts that ground gave rise to several questions and doubts.57 There is no room whatever for them nowadays. In a judgment in a dispute between Germany and Iceland concerning fisheries jurisdiction, the icj ruled: There can be little doubt, as is implied in the Charter of the United Nations and recognized in Article 52 of the Vienna Convention on the Law of Treaties, that under contemporary international law an agreement concluded under the threat or use of force is void.58 One should understand this as a reference to customary law, as art. 52 vclt was treated by the Court as a mere confirmation of that rule. This provision reads: A treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations. It should be noted that only the military aspect of the term ‘force’ is generally confirmed.59 As can be seen, this provision contains two exceptions. The first has to do with the kind of force, the second – with the relationship to the Charter of the United Nations. One can hardly imagine putting into doubt the second element. In fact it is strictly connected with the first. What must be excluded as a ground of invalidity is the use of military force in accordance with the principles of international law embodied in the Charter of the United Nations. Thus it would be impossible to invoke the invalidity (or voidance) of a unilateral act made by an aggressor state under the pressure of the victim-state and/or supporters 56 57 58 59

9.report, principles a 7 (1). F. Pfluger, op.cit., p. 89. i.c.j. Reports 1973, p.59. The Court at the same time pointed out that the burden of proof is on the state invoking that ground of invalidity. A general reference is not sufficient. W. Czapliński, A. Wyrozumska, op. cit., p. 372.

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of such a victim. In this aspect no deviation from the rules applicable to treaties is possible. The only aspect with respect to which one can discuss such possible deviation relates to the kind of force allowing a state to claim invalidity. In other words, one must consider the possibility of invoking invalidity because of the threat or use of force other than military force. What could be at stake here is an economic force (an embargo), or exercise of a political (other than military) power resulting from the control of energy resources or a transit location. There is no doubt that such activities can influence the will of an authorstate. Their influence with respect to the very possibility of designating an act as unilateral has already been mentioned. Leaving aside this theoretical paradox, one must conclude that no special imagination is necessary to envision a situation in which a unilateral waiver or recognition is given as a result of menace on the part of another state. For this reason one should stress that a proposal on widened protection in such a case would be understandable. No such proposal, however, was made by the special rapporteur. He also did not refer to any such proposal being made by any state, what suggests that no such proposal was floated at all. In the Polish legal literature this topic was especially important in the context of the waiver of war reparations’ claims. In 1953 a declaration to that effect was made by the Polish People’s Republic. J. Sandorski is of the opinion that that declaration may be treated as invalid because of the economic and political coercion of the usrr against Poland.60 One must confess that it is not easy to find a reason why this particular document, and not tens of others coming from the time of Stalinism or socialism, would be covered by invalidity on the grounds of coercion. All the same the unilateral character of an act seems to be an argument in favour of a more liberal attitude toward claims of invalidity of such an act.61 On the other hand the special rapporteur in his draft principles satisfied himself with adopting expressis verbis the wording from art. 52 vclt. This element does not have to be decisive, as the wording is quite general. Trying to be as objective as possible one must confess that the attitude of the special rapporteur is an argument for the homogenous treatment of unilateral acts and treaties in this respect. 60

61

Jan Sandorski, Zrzeczenie się w 1953 r. przez Polskę reparacji wobec Niemiec w świetle prawa międzynarodowego, in: W.M. Góralski (ed.), Problem reparacji, odszkodowań and świadczeń w stosunkach polsko-niemieckich 1944–2004, t. i, Studia, Warszawa, 2004, pp.146–150. In fact this author treats the respective document as a treaty. Of course, unless other unilateral or treaty-based obligations were incurred.

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4.4.2 Content of a Unilateral Act as a Ground of Its Invalidity The next ground of invalidity is concerned with the relationship of unilateral acts to norms of international law. Art. 53 vclt provides that: A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. Conflict with norms iuris dispositivi does not lead to the invalidity of treaties. The legal literature referred to norms of higher rank many years before the drafting of the vclt.62 I do not know any contemporary work on international law which would put into doubt the very existence of norms iuris cogentis. It seems logical that the same principle applies to unilateral acts. This was the stance of the special rapporteur, who copied the wording of art. 53 vclt.63 Also the ilc in its Guiding Principles inserted principle No 8, stating that A unilateral declaration which is in conflict with a peremptory norm of general international law is void. References to art. 53 vclt may be understood as confirmation that a unilateral act contrary to iuris cogentis norms is void (invalid).64 Probably everybody would agree with this conclusion. What’s more doubtful is whether a conflict with jus dispositivum norms leads to invalidity. A systemic attitude to this topic was presented by K. Skubiszewski. He wrote that: To be valid, any unilateral act of a State must conform to substantive rules of international law on the subject with which it deals. While two or more States can deviate from general international law and agree among themselves on some particular rules (unless the matter is governed by peremptory norms, jus cogens) no such departure is valid if operated by a unilateral act alone. The same is true of the relation between treaties and unilateral acts: the latter must comply with the treaty commitments of their authors. (…) Where the making of a unilateral act has been provided

62 63 64

A. von Verdross, Forbidden treaties in international law. Comments on Professor Garner’s Report on “The Law of Treaties”, ajil, 1937, p. 57. 3. report, p. 20, par. 152. See e.g.: W. Czapliński,, op.cit., p.106.

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for, or authorized by, custom or treaty, its validity will be assessed according to the enabling rule of law and the requirements it lays down.65 This view corresponds very well with the cited thesis of D. Ruzié, according to which a unilateral act must be in conformity with international law as such.66 As has been said, this statement is illustrated by and evidently inspired by acts which are neither classical nor even impose obligations on the authorstate. The author himself did not narrow its application to so-called heteronormative acts. All the more K. Skubiszewski does not introduce such a narrowing. In fact, the thesis according to which certain unilateral acts must, for their validity, be in conformance with norms iuris cogentis, as well as iuris dispositivis, does not give rise to any doubts. What is really important is the scope of that obligation – and especially the question whether it applies to classical acts giving rise to obligations for the author-state (assuming that these acts are really unilateral legal transactions). In fact, the present chapter is limited to them as such. An attempt to extend this thesis to all classical acts would mean that promise, recognition and waiver are valid if they are in accordance with: – all norms of general international law, – earlier obligations of the author of such an act. This problem became the object of an exchange of views in the ilc. In 1999 it discussed the second report of the special rapporteur. One of the ilc members, I.I. Lukashuk, underlined that a state cannot absolve itself of not only absolute norms, but also relative ones. Their elimination in relations with another state requires the consent of the latter.67 A. Pellet did not agree with this view. According to Pellet, an act being at odds with general international law (other than jus cogens) is not invalid, but simply may give rise to no effects, unless accepted by the addressee-state. He stressed that was at stake were the effects of an act rather than its validity.68 The argument of Lukashuk influenced the third report. The special rapporteur wrote that 65

K. Skubiszewski, Unilateral Acts of States, in: M. Bedjaoui (ed.), International Law: Achievements and Prospects, Paris 1991, p.230. 66 D. Ruzié, op.cit., p.51. 67 Yb.ILC, 1999, vol. i, p. 189. 68 Yb.ILC, 1999, vol. i, p. 189.

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[a]unilateral act that is not consistent with a norm of general international law can be declared invalid if it is not accepted by the State or States to which it is addressed. An important example that is worth considering is the unilateral act formulated by the United States of America in 1945, known as the Truman Proclamation, on the extension of the continental shelf.69 In fact, reference to the acceptance by a third state meant the introduction of a bilateral or multilateral element into the discussion on unilateral acts. What’s more, that element found no expression in either the draft articles, nor in the draft principles. One can be rather satisfied that there was no acceptance of the view according to which an act is invalid if it is contrary to ius dispositivum. But one cannot also accept the argument according to which every deviation from ius dispositivum – both in plus, as well in minus – requires the consent of a third state. In any case the author of a unilateral act cannot claim that the lack of an active approval of it by a third state means that no obligation could have emerged. Certainly the author of an act can include a provision to the contrary, but in that case it is simply making an offer and does not perform a true unilateral act. Similarly, a denial of an act by a beneficiary will, as a rule, have an influence on that act. This aspect of the topic will be discussed in the chapters on promise and waiver. It is beyond any doubt that the authors who insist on unilateral acts being in conformity with norms iuris dispositivi do not have in mind the ‘protection’ of a beneficiary from extra benefits over and above the rights resulting from general law. They are evidently frustrated by the danger of a state purporting to create new obligations which are irreconcilable with a previous obligation – resulting from general law or other sources (treaties, former unilateral acts, resolutions of international organizations). One can imagine a situation in which a state makes a unilateral declaration that it will not allow the passage through a given strait of ships other than its own or those of its neighbours. In effect, it purports to bind itself unilaterally with respect to the international community to breach the rights of its members. Is such an act invalid? 69

3. report, p.22, par. 164. In para. 166 the special rapporteur wrote. ‘It was not deemed appropriate to include a norm along these lines as a cause of invalidity because, in fact, such an act, which conflicts with a norm of general international law, is not invalid if the States concerned or affected agree that, while it is not consistent with existing general international law, it is part of the process of formulating a new customary norm, and that the norm was not rejected by States and did not give rise to protest.’

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Accepting the arguments of K. Skubiszewski, such an invalidity is in place. The main challenge here is the coherence of arguments used. One must notice namely that nobody would deny the validity of such an obligation had it taken the form of an international agreement. Is such a differentiation of unilateral acts reasonable and justifiable? Other than that, there is no doubt that a treaty is binding only in relations among those parties which expressis verbis agree on it. A unilateral act seems to bind the author state in relation to all states which did not make a protest, even if such states would not actually want or like such a right. The suggestion that such an act is invalid seems to act in favour of such states. Let us, however, consider another situation. Let’s say a state concludes a treaty which obliges it to hand over a given object to the second party to this treaty. Then it makes a unilateral act according to which the object is to be handed over to a third state. If the above-presented arguments of K. Skubiszewski are adopted, the second act would be invalid. What however, if the first state instead of making a unilateral act would conclude a treaty with this third state. As is known, this treaty would be valid. Each of these treaties would be res inter alios acta from the perspective of those states not participating in their conclusion. One can have doubts whether such a discrimination against a unilateral act is really justified in such a case. What’s more, let us assume that we have to do with two conflicting obligations resulting from two unilateral acts. If the second act is to be invalid, one has to do with a completely different solution of conflicts of obligations resulting from unilateral acts on the one hand, and obligations resulting from treaties on the other. What’s more, one has to do with a complete paradox if a unilateral act is previous to a treaty conflicting with it. That treaty would be valid. It seems to me that taking into account the lack of hierarchy of the sources of international law, one should aim at differentiating between rights resulting from treaties and those resulting from unilateral acts to the narrowest extent possible. I do not wish to claim that every unilateral act is a source of law, but this topic is less important from the perspective of the topic of unilateral acts. What really matters is that both unilateral acts and treaties give rise to international obligations. Claiming that any unilateral act contrary to any element of international law is invalid results in a radical discrimination against unilateral acts. For this reason, in my opinion one cannot defend this thesis, at least with respect to acts having determined beneficiaries. What remains to be discussed is the topic of unilateral acts irreconcilable with customary norms of international law. The voices suggesting the invalidity of such acts have already been referred to. Let us try now to establish

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the reasons behind such voices. It can be assumed that they are aimed at protection of the international community and its law. However, one the byproducts of such a view is the protection of the very author of an act, a protection which the latter, in my opinion, does not deserve. The result is that the author-state would be in a position to invoke invalidity of its own act vis-à-vis a third state. It would amount to a kind of ‘impunity’, which is less than acceptable. What would rather be welcome is a kind of punishment – consisting of irreconcilable obligations. The author would be bound with respect to the beneficiary of an act to perform the act, while it would be bound with respect to another state or the entire international community not to perform the act. In this situation it will incur international responsibility by both respecting and not respecting a unilateral act. In practice it would mean the necessity to compensate the beneficiary or ask for its grace to waive its rights. What must be stressed in this respect is that a unilateral act cannot create any obligations for third states (unless a positive norm of international law provides otherwise). This was also the conclusion of the ilc, which in principle 9 of its Guiding Principles stated that [n]o obligation may result for other States from the unilateral declaration of a State. However, the other State or States concerned may incur obligations in relation to such a unilateral declaration to the extent that they clearly accepted such a declaration. In consequence, an act being at odds with norms iuris dispositivi is valid, but is not effective to the extent to which it attempts to impose obligations on other states. It is fully effective within the scope in which it gives rights to such other states. The arguments presented by K. Skubiszewski seem to have had some influence upon the fifth report. The special rapporteur referred to relationship of unilateral acts to earlier obligations of the author state.70 But his draft principles and the document adopted by the ilc refer only to conflicts with jus cogens. In my opinion this was a wise decision. In the third report the special rapporteur added one additional ground of invalidity; namely a conflict of a unilateral act with a decision of the un Security Council.71 The initiative for that additional ground came from J.

70 71

5. report, add.1, p. 2, par. 85. Art. 5 pkt. 7, 3. report, p. 22, par. 167.

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Dugard.72 Its inclusion was supported by Poland in the vith Committee.73 The rapporteur did not specifically justify that proposal. He limited himself to a statement according to which [c]learly, the special nature of unilateral acts and the evolution of international relations and international law open up the possibility of including a clause not provided for in the corresponding article of the Vienna Convention of 1969, such as one concerning the infringement of a decision of the Security Council by a unilateral act, a question that will be addressed below.74 Equally interesting, if not even more interesting, is the example given in this context by J. Dugard. According to it, recognition effected in breach of a resolution of the un Security Council is invalid.75 One can however have some doubts in this regard. It is not in conformity with the principle of good faith that a given state incurs an obligation and subsequently neglects it and/or denies a fact which it has recognized. One cannot ignore the fact that a treaty concluded with the beneficiary of recognition would not be invalid even if it were contrary to the un Charter. Manifestly, if the two interested states would be members of the un they would have to take into account Art.103 of the un Charter and tolerate the situation in which the other party to the treaty will invoke un sc resolution as a grounds of denial of behaviour prescribed in a treaty. However, the multiplication of grounds of invalidity may lead to a situation in which states would be able to make several declarations and obtain several benefits in connection with them, knowing that the obligations are null and void. That is why one must appreciate the fact that this ground was not reflected in the draft principles presented by the special rapporteur. One can hardly help feeling that had the drafters of the un Charter wanted to establish a new ground of invalidity, they would have done it in Art.103 of the un Charter. Equally, it is questionable on what grounds a treaty contrary to the un Charter would remain valid while a unilateral act would be invalid. This is why the idea of adding a new ground for invalidity, namely conflict with a un sc decision, was not supported. In particular B. Simma, during the debate on the third report, noted that such an sc decision would prevail, but that 72 73 74 75

3. report, p. 21, par. 156, footnote 75. 3. report, p. 21, par. 156, footnote 76. 3. report, p. 19, par. 136. 3. report, p. 21, par. 156.

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such prevalence did not necessarily imply that the legal act was to be invalid.76 He was supported by Mr Tomka.77 The question of invalidity of acts because of their conflict with municipal law is strictly connected with the topic of competence to perform such acts. Thus these two questions will be discussed together. 4.5

Organs Issuing Unilateral Acts of States

4.5.1 Introductory Remarks The question of organs whose acts are attributed to states was not overlooked in the doctrine dealing with unilateral acts. It would be difficult, however, to claim that in was at the very centre of its attention. On the other hand, it was at the centre of the ilc’s attention during its works on unilateral acts of states. It seems to be useful to look at both the doctrinal observations on the topic as well as the views of the special rapporteur and the ilc on it. Then it will remain to determine what their relationship is to actual norms of international law. The remarks which follow will be limited to classical unilateral acts creating obligations for their authors, as was similarly done with respect to the question of validity. The chapter on protest will dwell even more on the organs making protests; all the same when discussing domestic provisions a few references will be made to it. The competence to perform acts other than classical ones will not be discussed. The search for such acts is the aim of the entire Part 2. The competence of organs to perform several unilateral acts, or acts similar to them, is very well regulated, e.g. as regards the law of treaties or diplomatic law. As regards acts which do not take the form of a declaration of will it is difficult to speak about the competence of organs in the strict meaning of the term. In my opinion, the examination of such acts belongs to specific branches of international law and thus will not be made here. Hence the conclusions concerning competence to perform classical acts have either a very small or even no influence on the competence to perform acts other than classical ones.

76 Yb.ILC, 2000, vol. i, 2629. meeting, p. 134, para. 46. 77 Yb.ILC, 2000, vol. i, 2629. meeting, p. 134, para. 52.

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Organs Competent to Make Unilateral Acts of States in the Light of the of International Law Doctrine and the Case-law The author of the first monograph on unilateral acts, F. Pfluger, writes that competences to perform unilateral acts are regulated by municipal (domestic) law.78 However the development of international case-law could encourage the doctrine to make much more bold hypotheses. One of the most important statements of the World Court (then the pcij) was made in the case of the Eastern Greenland. In concerned a declaration of the Norwegian Minister of Foreign Affairs made in reply to a question of a Danish diplomat. The pcij ruled:

4.5.2

The Court considers it beyond all dispute that a reply of this nature given by the Minister for Foreign Affairs on behalf of his Government in response to a request by the diplomatic representative of a foreign Power, in regard to a question falling within his province, is binding upon the country to which the Minister belongs.79 Two cases against France (one initiated by Australia and the other brought by New Zealand) dealing with nuclear tests prima facie allowed for making some conclusions on the competence of more than one organ. What became the object of attention of the icj in these cases were declarations of the President of France, the French Embassy in Wellington, the Minister of Foreign affairs and the Minister of Defence.80 There is no unanimity as to the list of organs competent to perform unilateral acts. K. Skubiszewski presents a relatively long list in this respect.81 General power is to belong to the Head of a State, the Head of a government, the government itself, and the Minister of Foreign Affairs. In his opinion, diplomatic representatives may make them within the limits of their tasks and functions.82 Also, heads of technical departments of governments may make such acts ‘in the external relations covering their respective fields’, as well as military commanders with respect to an adversary.83 78 79 80 81 82 83

F. Pfluger, op. cit., p. 41. At p.71 of the judgment. i.c.j. Reports 1974, pp. 265–266. K. Skubiszewski, op. cit., p. 230. K. Skubiszewski, op. cit., p. 230. See the enitire list in: K. Skubiszewski, op. cit., p. 230.

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It is not difficult to see that this attitude had a large influence on the works of the ilc. Organs Competent to Make Unilateral Acts of States in Light of the Works of the ilc The special rapporteur, in his second report, proposed art. 4, entitled ‘Representatives of a State for the purpose of formulating unilateral acts’.84 It was composed of three paragraphs. The first provided that:

4.5.3

Heads of State, Heads of Government and Ministers for Foreign Affairs are considered as representatives of the State for the purpose of formulating unilateral acts on its behalf. The second paragraph stated that: A person is also considered as representing a State for the purpose of formulating unilateral acts on its behalf if it appears from the practice of the States concerned or from other circumstances that their intention was to consider that person as representing the State for such purposes. Lastly, the third paragraph read: Heads of diplomatic missions to the accrediting State and the representatives accredited by that State to an international conference or to an international organization or one of its organs are also considered as representatives of the State in relation to the jurisdiction of that conference, organization or organ. Already in the next, third report, the special rapporteur modified this article, removing the last paragraph from it completely.85 This could have been related to a specific case invoked by Mr. Kateka, one of the ilc members. He reported on a situation in which a head of delegation at an international conference had made a commitment which subsequently had been considered not to be binding on the Government he represented.86 A second reason could have been a fear that declarations made in the context of ongoing negotiations of new treaties

84 85 86

2. report, add., p.3, par. 71. 3. report, p. 17, par. 115. 3. report, p. 15, par. 99.

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might be treated as binding.87 This aspect extends far beyond the topic of organs competent to make binding declarations in the name of states, but it had an influence on the works of the ilc in the latter aspect as well. Thirdly, categories of persons invoked in paragraph 3 could (but not necessarily had to) be in concreto covered by paragraph 2 of this article. In the Sixth Committee some states called for limiting the competent organs to just heads of states or governments, ministers for foreign affairs or expressly empowered officials.88 In the fifth report the special rapporteur wrote that while it was possible to add to the persons qualified to act on behalf of the State, it should be approached restrictively.89 A quite extravagant position was presented by A. Pellet during the discussion on the fifth report. As the ilc Yearbook summed it up, his position was that: (…) article 46 of the 1969 Vienna Convention dealt with the provisions of internal law regarding competence to conclude treaties, but he was convinced that there were no such provisions regarding competence to formulate unilateral acts. Any State official, from the most ordinary police officer to the President of the Republic, could bind the State in such matters.90 This statement raised an immediate response on the part of B. Simma. His position was that The problem seemed to stem from Mr. Pellet’s use of the word engager. It was true that, in the broadest sense, any act of a State organ could entail the responsibility of the State: if a police officer beat a foreign diplomat to a pulp, his State would be engagé. On the other hand, if a German police officer were to make a promise that Germany would never acquire nuclear weapons, the German State would clearly not be engagé. What the Special Rapporteur had in mind in article 5 (h) was the contractual or

87 3. report, p. 15, par. 102. 88 3. report, p. 16, par. 106. 89 5. report, add.1, p. 4, par. 91. 90 Yb.ILC, 2002, vol. i, 2726. meeting, p. 100, para. 20.

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unilateral engagement of the State as a result of its statements, rather than as a result of acts entailing State responsibility.91 This topic became the object of separate points in the draft principles prepared by the special rapporteur92 as well as in the definitive version of the Guiding Principles adopted by the ilc.93 Draft Principle No 3 proposed by the special rapporteur stated as follows: 1. 2.

By virtue of their office, heads of State, heads of Government and ministers for foreign affairs are considered to represent their State and to have the capacity to formulate unilateral acts on its behalf. In addition to the persons mentioned in the previous paragraph, other persons may be considered able to formulate unilateral acts on behalf of the State if that may be inferred from the practice followed in that regard by the formulating State and from the circumstances in which the act was formulated.

However, the ilc adopted the following Principle No 4 in its Guiding Principles: A unilateral declaration binds the State internationally only if it is made by an authority vested with the power to do so. By virtue of their functions, heads of State, heads of Government and ministers for foreign affairs have the capacity to formulate such declarations. Other persons representing the State in specified areas may be authorized to bind it, through their declarations, in areas falling within their competence. The comparison of the proposed draft and the text adopted by the ilc induces some remarks. Firstly, the special rapporteur referred to unilateral acts in general, while the ilc limited itself only to declarations creating obligations for the author-states. The attitude of the Commission is much more realistic. This means however that, e.g., protest is not covered by the Guiding Principles. At the same time, comparisons of the Guiding Principles with their draft is hardly possible. In fact it is only possible to the extent covered by the former. Secondly, however, the attitude of the ilc to the competence of heads of states, governments and ministers for foreign affairs is unexpectedly more 91 Yb.ILC, 2002, vol. i, 2726. meeting, p. 102, para. 33. 92 9. report, p. 2. 93 Report ilc of 2006 r., at p. 372.

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strict as compared to that of the draft presented by the special rapporteur. The statement in the draft, according to which a given person or organ ‘is considered to represent the State and to have the capacity to formulate unilateral acts on its behalf’ leaves some room for manoeuvre. It represents a kind of presumption, which may be denied.94 Denial seems rather impossible in the situation in which a document expressly provides that a given organ ‘has the capacity to formulate such declarations’, as was done in the Guiding Principles. The draft principle manifestly resembles art.7 (2) vclt, according to which: In virtue of their functions and without having to produce full powers, the following are considered as representing their State: (a) 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; (b) heads of diplomatic missions, for the purpose of adopting the text of a treaty between the accrediting State and the State to which they are accredited; (c) representatives accredited by States to an international conference or to an international organization or one of its organs, for the purpose of adopting the text of a treaty in that conference, organization or organ. The presence of such a provision in the vclt could be treated as having been an incentive to insert a similar one in the draft Guiding Principles. In fact however, despite the similarities of the draft principles to art. 7 (2) vclt, differences were also inevitable. The more important treaties are subject to ratification, while others are usually subject to approval, with these two processes usually being very strictly regulated in the domestic law. What’s more, art. 7(2) (b) and (c) vclt concern only initial steps of the process leading to the conclusion of a treaty – namely the adoption of the text of a treaty. The path from the adoption of the text to its becoming definitively binding on a state as a treaty is very long and uncertain.95 In fact the attitude of the special rapporteur and the ilc raises a set of very interesting doctrinal questions. They are connected with the position of three

94 95

This view was expressed in the ilc, see report of the ilc for 2000, Yb.ILC, 2000, vol. ii, part Two, p. 95, para. 570. This element was referred to expressly by the special rapporteur. See: 2. report, add, p. 3, par. 72.

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state organs – Head of a State, Head of a government, and Minister for Foreign Affairs. They require separate discussion. The Position of a Head of State, Head of a Government and Minister of Foreign/International Affairs The doctrine of international law attaches great importance to three state organs – Head of a State, Head of a government and Minister for Foreign affairs.96 What attracts immediate attention are the immunities of these persons and the scope of their rights with respect to diplomacy or treaties. The attention of the present work, however, will be limited only to the question of state obligations resulting from unilateral declarations of these organs. The vast majority of writers speak in favour of treating declarations emanating from any of these organs as declarations of their respective states. So, for example, R. Jennings and A. Watts write that

4.5.4

[t]he Head of a State is competent in international law to act for his state in its international intercourse and all his legally relevant international acts are attributable to his state. This competence, ius representationis omnimodae, comprises in substance chiefly: reception and dispatch of diplomatic agents and consuls, conclusion of treaties, declaration of war, and conclusion of peace.97 What is really striking is the very term ‘competent in international law’. As will be shown, this is connected with fundamental questions concerning the relationship between international law and domestic law. On the other hand, the same authors indicate that there has been a tendency in many (but not all) states for the Head of State to assume a formal constitutional role, and for the substantive government of the state to be in the hands of a government with its own head (…).98 Also in the Polish literature W. Góralczyk writes that [t]raditionally Heads of states are regarded as empowered to represent their states in international relations (ius representationis omnimodae), 96 Vide: infra. 97 R. Jennings, A. Watts, Oppenheim’s International Law, ninth edition, vol. i, London, New York, 1997, 1034. 98 R. Jennings, A. Watts, op. cit., p. 1033.

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and every act of the Head of a state is treated as an expression of the will of a state and gives rise to determined legal effects.99 He also notes that at present in the practice of many states the functions and competences of Heads of states are very limited, especially in the internal sphere. This applies to a lesser extent to international relations.100 In the Nuclear Tests case, the icj had no doubt about the rank and importance of the statements of the French president, as it ruled that: Of the statements by the French Government now before the Court, the most essential are clearly those made by the President of the Republic. There can be no doubt, in view of his functions, that his public communications or statements, oral or written, as Head of State, are in international relations acts of the French State.101 Even fuller unanimity is visible as regards the attribution of declarations made by Ministers for Foreign affairs on behalf of their state.102 R. Jennings and A. Watts, writing about a Minister for Foreign Affairs, state that his statements may, in proper cases, be binding on his state.103 They invoke in this respect the passage from the famous Eastern Greenland case,104 previously cited. The most important fragment rules that: a reply of this nature given by the Minister for Foreign Affairs on behalf of his Government in response to a request by the diplomatic representative of a foreign Power, in regard to a question falling within his province, is binding upon the country to which the Minister belongs.105

99 W. Góralczyk, op. cit., p. 165. 100 Ibidem. 101 i.c.j. Reports, 1974, p. 269, par. 49 (Australia v. France). 102 W. Czapliński, A. Wyrozumska, op. cit., p. 219; W. Góralczyk, op. cit., p. 165. 103 R. Jennings, A. Watts, op. cit., p. 1045. 104 pcij Publications, series A/B, No.43, p. 71. 105 At p. 71 of the judgment.

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However once again one must emphasize two important restrictions, easily overlooked or likely to be overlooked. The first is the reference to the Minister acting ‘on behalf of his Government’. The second element is the reference to the Minister acting ‘within the scope of its competence’. Neither of these elements was precisely defined by the Court. One can thus wonder when it can be said that a Minister for Foreign Affairs is acting on behalf of his government and when not. One can hardly expect any statement of the Minister to be preceded by a formal resolution of a government. Similarly, it is quite difficult to determine in very precise terms the scope of competence of the Foreign Minister. In fact, one can expect statements on the entire spectrum of matters connected with international relations from such a Minister. The judgment in the case of the Eastern Greenland served as a basis for K. Zenmanek’s radical concept. He denies that the requirements of domestic law concerning competence to make treaties, as well as of art. 46 vclt, are applicable to unilateral acts.106 The main argument is the above-mentioned judgment. Zemanek notes that the judgment concerns renunciation of the Norwegian claim to sovereignty over an area for which the Norwegian Constitution required a decision of a Council of Ministers.107 This is, however, less than obvious. The analyses conducted in Part 4 of this work indicate that waiver is not necessarily such a unique type of act as it may seem to be. It may consist of a waiver of immunity of an interpreter of an embassy, or waiver of claims to territory. The latter may be in the nature, for example, of the claims of Ukraine to the Crimea or in the nature of claims to restore the power of the Teutonic Order in Malbork or of the Pope in Florence. On the basis of the probable competence of the Minister to effect some waivers we cannot make conclusions as regards waiver in general. Waiver may result from recognition or from some other acts. One can guess that the argument of Zemanek is that, inasmuch as waiver is an extremely important and far-reaching act, the competence to effect a waiver may prejudge the competence to make less far-reaching acts. For this reason one should ask first of all whether international law could really be a source of such competence of Ministers of Foreign Affairs. The pcij itself was more careful in its ruling. It underlined the character of the Minister as a representative of his/her 106 K. Zemanek, Unilateral Legal Acts Revisited, W: K. Wellens (ed.), International Law: Theory and Practice, 1998, pp. 213–214. 107 K. Zemanek, op. cit., p. 214.

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government – so at least as its member giving effect to the policy of the government. What must be stressed is that the government of Norway did not put into doubt that very act. Perhaps nobody would be ready to defend the thesis according to which the Minister of Foreign Affairs of Poland could (depending on his mood) give Warsaw to Russia or the usa, or that the us Secretary of State could do the same with respect to Washington d.c. or New York. There is no doubt that it is much more difficult in this respect to formulate technical definitions and rigid rules than decide on a case-by-case basis whether a given statement of a given minister gives rise to obligations. Hence a minister evidently acting against the will of his or her government is hardly likely to oblige the state. However, the latter will have to expressly reject the declarations of such a minister. Similarly, at least very large scepticism is recommended with respect to promises formulated by such a minister as regards future court rulings (not accompanied by a promise to amend legislation). In any case all the elements of a given case will have to be taken into consideration. This remark in fact applies to all three main organs acting in the foreign relations of a state. In the cases of France’s nuclear tests, no declarations of the Prime Minister (Head of government, not being a head of a state) were invoked. It seems obvious however that the analogy to the solution chosen in the Vienna Convention is recommended. It suggests that the Prime Minister’s position is equivalent to that of the Head of a State. R. Jennings and A. Watts underlined the difference between them when they wrote that the Head of government ‘does not represent the international persona of the state in the way in which the Head of State does.’108 This does not, however, diminish the value of statements made by Heads of governments. The most important question is whether it is really international law that includes a competence rule? Is it not rather an object of regulation of domestic law? In 1999, during the works on the second report of the special rapporteur, G. Hafner, one of the ilc members, expressed doubts as regards the correctness of the draft article 4 concerning that topic. As the Yearbook noted: He had doubts about the correctness of draft article 4. In the view of some States, article 7 of the 1969 Vienna Convention, which had served as a model, did not establish a clear-cut rule but only a presumption, a presumptio juris rather than a presumptio juris ac de jure. That presumption was rebuttable through article 46 of the Convention.109

108 R. Jennings, A. Watts, op. cit., p. 1033. 109 Yb.ILC, 1999, vol. i, p. 205, par. 34.

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One should agree with that view. In fact it takes the issue of competence to formulate unilateral acts out of international law and situates it in the domain of domestic law. The stance that international law may act as a direct source of competence of certain organs must be viewed with great suspicion. This is why the authors referring to ‘attribution’ instead of ‘competence’ are rather more right. F. Villagrán Kramer110 rightly notes that the topic of attribution is well examined in the field of rules of international responsibility of states, but is much less discussed in the context of unilateral acts of states. Villagrán Kramer writes that as internationally wrongful acts lead to international responsibility of states (engages l’Etat), if they are attributed to them (imputables ou attribuables), so too unilateral acts engage states and the effects of such acts are binding for them, if they are attributable to them.111 So it must be said that international law adopts certain presumptions which author-states and their organs must take into account. At the same time, other states must take into account the possibility of such presumptions being rebutted. This means that a state may invoke grounds of invalidity connected with breaches of domestic law. Hence they must be dealt with now. 4.6

Invalidity Connected with Breaches of Municipal (Domestic) Law

The view of K. Zemanek denying any influence of domestic law upon the competence to formulate unilateral acts was already cited. This view cannot be accepted however. During the works of the ilc there were no doubts that certain breaches of domestic law may lead to the invalidity of an act. K. Skubiszewski speaks in favour of the right to invoke invalidity of unilateral acts where the violation of the domestic law was manifest and concerned a rule of fundamental importance.112

110 F. Villagrán Kramer, Les actes unilatéraux dans le cadre de la jurisprudence internationale, in: International Law on the Eve of the Twenty-first Century. Views from the International Law Commission, un New York 1997, p. 149. 111 F. Villagrán Kramer, op.cit., p. 149. 112 K. Skubiszewski, op.cit., p. 230.

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As was already noted, the special rapporteur in his second report referred to a ‘clear violation of a norm of fundamental importance of the domestic law’ as one of the grounds of invalidity of a unilateral act.113 In the draft principles presented in the ninth report the special rapporteur divided that ground into two separate ones. Draft Principle 5 concerned the invalidity of an act formulated by a person not qualified to do so. According to it, [a] unilateral act formulated by a person not authorized or qualified to do so may be declared invalid, without prejudice to the possibility that the State from which the act was issued may confirm it in accordance with guiding principle 4. Draft principle 6 concerned the invalidity of a unilateral act that conflicts with a norm of fundamental importance to the domestic law of the State formulating it. It states that [a] State that has formulated a unilateral act may not invoke as grounds for invalidity the fact that the act conflicts with its domestic law, unless it conflicts with a norm of fundamental importance to its domestic law and the contradiction is manifest.114 The special rapporteur seemed to be afraid that the previous formulation might be interpreted as giving priority to domestic law over commitments under international law, and this would be unacceptable.115 It referred simply to invalidity of acts made in clear violation of a norm of fundamental importance of the domestic law. What seemed especially dangerous for the special rapporteur was the risk of unilateral acts having to be examined as to conformity with substantive domestic rules. In fact however, if the aim of this formulation was to eliminate that risk, it seems that the aim was not realized. It is difficult to get rid of the feeling that the attention of the special rapporteur was especially focused on constructing a rule similar to that of art.

113 2. report, add., p. 9. par. 109. 114 9. report (which contains only the text of the draft general principles), see also: 9. report, add.1, p. 14, par. 30. 115 9. report, add.1, p.12, par. 28.

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46 vclt – as regards structure and style, but not with respect to content as such. Art. 46 vclt provides that 1.

2.

A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance. A violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith.

A natural question is whether it would not be reasonable to simply apply art. 46 vclt per analogiam to unilateral acts (or more precisely that group of them which is of interest to us in the present chapter). This would mean first of all that the invocation of a breach of domestic provisions is possible, but only in exceptional circumstances. Secondly, it would be possible only with respect to obvious breaches of competence rules. Thirdly, it would not be possible with respect to rules other than fundamental. In fact, however, an attempt to apply art.46 vclt per analogiam would have been probably very difficult because of the shape of the domestic laws of many states. K. Skubiszewski rightly notes that it is very rarely indeed that such a delegated power is being conferred for the purpose of a unilateral action, and that the addressee of the act cannot be expected to inquire too deeply into matters of internal powers and domestic law whenever circumstances point to the competence of the organ in a particular area.116 How should the last statement be understood? One can imagine the following argument: Insofar as domestic law is unclear on that topic, third states deserve special protection. However, one can defend the contrary thesis as well. The subject deserving of protection is the state, the official of which made a given declaration. Each of these two contrary theses carries its own risks. 116 Both citations on the basis of: K. Skubiszewski, op. cit., p. 230.

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Before making a choice between them, a little more must be said about domestic provisions as such. Only competence provisions will be referred to. 4.7

Survey of Domestic Provisions Dealing with Competence to Make Unilateral Acts

4.7.1 The Role of the Analyses of Domestic Provisions It seems useful to look at the provisions of several states in order to see how complicated the decisions on the competence to formulate unilateral acts of states may be. At the very beginning it must be stressed, however, that the present chapter does not aspire to be an exhaustive survey of all domestic provisions important from the perspective of unilateral acts of states. Only some states and only some provisions were selected, and only for reasons of illustration. This inclusion of references to domestic provisions is all the more necessary as, to my knowledge, almost no other author has ventured to make such a survey. I. Breutz is an exception in this respect. In her monograph concerning protest she analyses German legal provisions, searching them in order to determine which organs are competent to make protests.117 Such an attitude seems to be very useful and worthy of being continued and extended – both to other types of acts as well as to other states. 4.7.2 Domestic Provisions Concerning Unilateral Acts as Such Initially, in writing this present subchapter my main aim was to find provisions dealing expressly with unilateral acts as such, or at least the most important classical ones. I must confess my failure in this respect. It turned out to be impossible to find a provision which referred expressis verbis to unilateral promise or waiver. Recognition is an exception. What deserves mention in this respect is one of the provisions of the 2014 Constitution of Ukraine.118 Art.106 (4) thereof provides that the President of Ukraine makes decisions on the recognition of third states. This transaction previously required countersignature under the 1996

117 I. Breutz, Der Protest im Völkerrecht, Berlin 1997, p. 50ff. 118 http://libr.sejm.gov.pl/tek01/txt/konst/Ukraina2014.pdf. Consulted on 24 July, 2014. The translation (from Polish) is provided by the author. The citations of all other constitutions are made on the basis of the cited web pages. The reason for the exception in the case of the Ukrainian constitution is the fact that the translation on the official website is less than satisfactory.

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Constitution, and now it seems not to require it. In this sense the power of recognition can be seen as an exclusive prerogative of the President of Ukraine. However, some other provisions seem to be very promising. One of them is to be found in the Constitution of Sweden,119 which is composed of several acts. One of them is the Instrument of Government. Its Chapter 10 is devoted to international relations. Articles 1–4 thereof regulate the procedure for conclusion of treaties. Art. 5 of Chapter 10 provides that The rules laid down in Articles 1 to 4 apply in a similar manner to the commitment of the Realm to an international obligation in a form other than an agreement, and to the denunciation of an international agreement or obligation. An obligation resulting from unilateral acts is manifestly an example of an ‘obligation in a form other than an agreement’. The rules to which art. 5 makes reference provide first of all that Agreements with other states or with international organisations are concluded by the Government.120 Article 3 of Chapter 10 provides that some agreements may be concluded only with the approval of the Riksdag. This is compulsory if: – the agreement requires the amendment or abrogation of an act of law or the enactment of a new act of law; or if it otherwise concerns a matter to be decided by the Riksdag. – the agreement is of major significance. In this second case the Government may, however, act without obtaining the Riksdag’s approval if the interests of the Realm so require. In such a case the Government shall instead confer with the Advisory Council on Foreign Affairs before concluding the agreement. 119 Accessible on the website http://www.riksdagen.se/en/Documents-and-laws/Laws/ The-Constitution/. Consulted on 24 July, 2014. One should add that the several acts which together form this Constitution have separate dates. The Instrument of Government act was adopted in 1974. What’s more, the sequence of numbering of articles is effected separately in each chapter of this act. 120 Vide art. 1 of chapter 10. Art. 2 provides that ‘The Government may instruct an administrative authority to conclude an international agreement in a matter in which the agreement does not require the participation of the Riksdag or the Advisory Council on Foreign Affairs’.

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One should also note art. 8 of Chapter 9 in this context. The second part of this article provides that [t]he Government may not take up loans or otherwise assume financial obligations on behalf of the State unless authorised by the Riksdag. This must be manifestly treated as lex specialis with respect to the provisions of Chapter 10. It is worth stressing that none of the provisions dealing with the Head of the State can be deemed to suggest even the slightest argument for speaking about the competence of the King to formulate unilateral acts. Thus as a rule the incurrence of international obligations by Sweden is a competence of the government, but in important matters requires the approval of the Riksdag. Manifestly promise, waiver and acts of recognition which have to do with important rights, rights regulated by statutes and financial obligations, require such approval. Evidently it is not required in the case of protests. What’s more, it would be difficult to require a formal resolution of government for every declaration giving rise to legal effects. Domestic Provisions Giving the Head of a State the Right to Conduct Foreign Policy A good example of such a solution can be found in the 1993 Constitution of the Russian Federation.121 Art. 80 (1) of the Constitution provides that:

4.7.3

The President of the Russian Federation shall be the Head of the State. Par. 3 provides that: According to the Constitution of the Russian Federation and the federal laws, the President of the Russian Federation shall determine the guidelines of the internal and foreign policies of the State. Par. 4 provides that: As the Head of State the President of the Russian Federation represents the Russian Federation within the country and in international relations. In addition, Art. 86 of the Constitution provides that: 121 http://www.constitution.ru/en/10003000-01.htm, Consulted on 24 July, 2014.

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The President of the Russian Federation shall: a. b.

govern the foreign policy of the Russian Federation; hold negotiations and sign international treaties and agreements of the Russian Federation; c. sign ratification instruments; d. receive credentials and letters of recall of diplomatic representatives accredited to him. The first two points are of special importance. In the light of the above-cited provisions there can be no doubts that acts of recognition, promise, protest or waiver performed by the Russian President will be the acts of Russia. The reasons for the strength of this argument are not only these provisions themselves, but also the lack of any others which would cast any doubt as regards the autonomy of the President to make such acts. Paradoxically enough, the shape of these provisions may give rise to doubts whether other organs can incur obligations for Russia. One can expect and assume that they do so with the consent of the President. Domestic Provisions Concerning the Head of State and the Powers of a Legislature Usually the Head of a state does not have such extensive powers as the President of Russia. The Constitution of Croatia122 can serve here as an example.123 Its Art. 94 provides that

4.7.4

The President of the Republic of Croatia is the head of state. The President of the Republic shall represent the Republic at home and abroad, be responsible for abiding by the Constitution, and ensure the continuance and unity of the Republic and the regular functioning of government. One can ask whether this is a competence norm in the technical meaning of the term. Art. 132 of the Constitution provides that International agreements shall, on behalf of the Republic of Croatia, be concluded by the President of the Republic, but may also be concluded, in conformity with law, by the Government of the Republic of Croatia.

122 Adopted in 1990, amended several times. 123 http://www.constitution.org/cons/croatia.htm; Consulted on 24 July, 2014.

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It’s clear that the competence of both organs to make agreements extends to unilateral declarations as well. The competence of the Government finds additional justification in Art. 107 of the Constitution, which provides that: The Government of the Republic of Croatia shall exercise executive powers in conformity with the Constitution and law. Lodging protests is clearly an example of executive power. As regards unilateral acts giving rise to obligations for the author-state there is a very strong temptation to apply, by analogy, the provisions on international agreements. As Mr Gaja said during the debate on the third report: It should therefore first be established whether there were constitutional rules applicable to unilateral acts and, if not, to what extent the constitutional rules applicable to treaties could be applied by analogy, under constitutional law, to some of the unilateral acts being dealt with by the Commission.124 This explains why such great importance must be attributed to Art. 133 of the Constitution of Croatia. According to it, international agreements which entail the passage or amendment of laws, international agreements of a military and political nature, and international agreements which financially commit the Republic shall be subject to ratification by the Croatian Parliament. International Agreements which grant international organizations or alliances powers derived from the Constitution of the Republic of Croatia, shall be subject to ratification by the Croatian Parliament by a two-thirds majority vote of all representatives. Another important provision in this respect is Art. 8 of the Constitution, which provides that the borders of the Republic of Croatia may only be altered by decision of the Croatian Parliament. This why on one hand Croatia would have a great problem with denying possible declarations made by the President or the Government, while on the 124 Yb.ILC, 2000, vol. i, 2628. meeting, p. 126, para. 23.

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other hand they must take care not to encroach upon the powers of the Parliament. Also the Constitution of the usa125 does not refer expressly to any classical unilateral acts (promise, waiver, recognition and protest). If the abstract question on the competence to perform such acts is considered, two provisions are of utmost importance. The first is Article i Section 1, according to which [a]ll legislative Powers herein granted shall be vested in a Congress of the United States (…). The second is Article ii Section 1, which provides that [t]he executive Power shall be vested in a President of the United States of America. The fundamental question is thus whether the formulation of unilateral acts is a part of executive or legislative power. This question is not easy, however unpleasant this can be for the admirers of the us Constitution. It is much easier to answer it with respect to individual types of acts, especially protest. Protest does not resemble a legislative act, especially from the domestic law perspective. As regards other classical acts, a general answer seems to be rather impossible. Let us consider waiver for example. Waiver of the immunity of an American diplomat in Chile is clearly an executive act. But can waiver of sovereignty over New York or Washington d.c. be qualified in the same way? This seems more than doubtful. This is why it may be useful to make reference to the norms concerning competence to conclude international agreements, as was done with respect to several other constitutions. The second clause of the second Section of Article ii of the us Constitution provides that the President shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur. An attempt to apply this provision mutatis mutandis to all unilateral acts would clearly paralyse all activity of the usa in international relations, and there is manifestly no such necessity. If the us President may conclude

125 http://www.senate.gov/civics/constitution_item/constitution.htm; Consulted on 24 July, 2014.

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administrative agreements,126 all the more he can do so with respect to unilateral acts. In fact they are not treaties in the formal meaning of the term. At the same time there is no doubt, however, that if the President were to incur very far-reaching obligations by the means of a unilateral act he must take into account that he (or she) would face claims of violating the above-cited provision of the us Constitution. D.L. Larson cites the words of E.S. Corwin that the Constitution is an invitation to struggle (…) for the privilege of directing American foreign policy.127 To a large extent a preference for the President’s role is visible. H. Jefferson Powell distinguishes in this context five general categories of powers. They are: the powers of recognition, negotiation, treaty-making, international advocacy and national security.128 Of utmost importance is the power of recognition. It is believed to be an autonomous power of the President.129 The other powers are also, however, of great significance. The power of treaty-making has already been mentioned. The majority of communications could be associated either with it or with the power of international advocacy. The power of the president to make protests and other acts which do not give rise to obligations raises no doubts. All the same as regards the incurrence of obligations, the importance of the matter and the presence of a Congressional competence may make the picture of the mutual relations between the two branches of Government completely illegible for foreigners. One should also keep in mind Article i Section  8 of the us Constitution, which reserves to Congress the competence [t]o borrow Money on the credit of the United States. One can wonder if this provision should not be applied to promises of a financial nature. Their result is basically the emergence of a debt of the usa. As the same applies to treaties giving rise to debts, the interpretation adopted with

126 See: D.L. Larson, The Constitution and u.s. Foreign Policy: The President, the Congress, and the People, The Fletcher Forum of World Affairs, 2008, p. 145. 127 D.L. Larson, op.cit., p .144. 128 H. Jefferson Powell, The President’s Authority over Foreign Affairs: An Executive Branch Perspective, The George Washington Law Review, 1999, p .555. 129 H. Jefferson Powell, op.cit., p. 556.

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respect to them would seem to be optimal with respect to obligations resulting from unilateral promises. The 1999 Constitution of the Swiss Confederation130 contains quite precise provisions with respect to foreign policy.131 Art. 184 par. 1 of the Swiss Constitution provides that [t]he Federal Council is responsible for foreign relations, subject to the right of participation of the Federal Assembly; it represents Switzerland abroad. Art.166 (1) of the Constitution provides however that [t]he Federal Assembly shall participate in shaping foreign policy and supervise the maintenance of foreign relations. The second paragraph provides that the Federal Assembly shall approve international treaties, with the exception of those that are concluded by the Federal Council under a statutory provision or an international treaty. The end result is quite complicated. There is no doubt that declarations formulated by the Federal Council will be treated as declarations of Switzerland. When formulating them, however, the Federal Council must take into account the powers of the Federal Assembly. One can hardly imagine the latter demanding its approval for all protests or acts of recognition of states or governments, all the more if the latter is not declared expressis verbis. Also, waiver of immunity of a given diplomat would easily fall outside the scope of involvement of the Federal Assembly. However, when making promises in very important matters, the Federal Council will probably take care not to encroach upon the powers of the Federal Assembly. It is obviously not my intention to advise Swiss lawyers on the interpretation of Swiss law or to offer guidance on possible future disputes between the Federal Council and of the Federal Assembly. Foreseeing such disputes is, however, a part of the study of law. Probably the main argument of the Federal Council would refer to the fact that unilateral acts are not treaties, hence the application of the constitutional provisions dealing with 130 http://www.admin.ch/ch/e/rs/1/101.en.pdf. Consulted on 24 July, 2014. 131 It should be added that Art.54 (1) of the Constitution provides that ‘Foreign relations are the responsibility of the Confederation’.

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the latter is not necessary. The possible counterargument of the Federal Assembly would probably refer to the similarity of effects of treaties and unilateral acts of states. It is difficult to predict which solution would be adopted in an individual case. What is quite unique in the Swiss constitution is the wide scope of the involvement of the Federal Assembly in the treaty-making processes. In fact only two categories of treaties are excluded – those provided for expressly in statutes and in treaties. The latter are especially important from the perspective of the present work. The relevant provision excludes treaties provided for in other treaties from the requirement of parliamentary approval. This means that mutatis mutandis unilateral acts sensu largo provided for in a treaty may be formulated freely by the Federal Council. Domestic Provisions Concerning the Head of State and the Powers of a Government An important part of the constitutional norms relevant to the present work consists of provisions dealing with the Head of a state and designating him/ her as the highest representative of the State in international relations. Such provisions seem to leave no doubts as regards the competence of the Head of a state to speak in its name. In fact however, what is beyond doubt is that the statements of the President made on the international plane are binding for a given state. This does not mean, however, that the President has competence to shape them according to his will. In this respect a reference must be made to the Polish Constitution of 1997.132 Its Art. 126 (1) provides that 4.7.5

the President of the Republic of Poland shall be the supreme representative of the Republic of Poland and the guarantor of the continuity of State authority. This does not mean however that he can determine the content of unilateral acts at his will. Art. 144 of the Constitution lists the types of acts of the President which do not need the signature of the Prime Minister (the so-called countersignature). Formulation of unilateral acts is not mentioned in this provision (nor in the entire text of the Constitution in fact). What’s more, Art. 146 (1) of the Constitution gives the Council of Ministers the right to conduct the internal affairs and foreign policy of the Republic of Poland. 132 http://www.sejm.gov.pl/prawo/konst/angielski/kon1.htm. Consulted on 24 July, 2014.

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Paragraph 2 of that article provides that the Council of Ministers shall conduct the affairs of State not reserved to other State organs or local government. In consequence, the Polish President would be taking a great risk if he/she attempted to declare important unilateral binding acts without the previous consent of the Council of Ministers. On the other hand, he or she is not expected to limit the topics of his conversations with his foreign partners just to the weather. What he can do is avoid making binding statements, water them down, and make more precise his constitutional position (as initiator, supporter, influential policy-maker, or the yes-or-no decision-maker of the last instance in some matters). On the other hand, nobody can readily assume that every statement of the Polish President should be situated among those from the cases in Eastern Greenland or the Nuclear Tests. It should be added that the government may decide not to put into doubt a declaration made by the President. This could be due to an agreement with the President him/herself, the latter being rather the messenger than the real author of an act, or in a situation whereby the government would take upon itself the already-made act. While the latter cannot be excluded, it also should not be assumed, as it may give rise to constitutional responsibility of the President. When considering the formulation of an act, the President should take into account the powers of the Parliament. Art. 89 (1) of the Constitution lists matters of agreements which require a previous statutory consent. As was said in the previous subchapter, one cannot seriously contemplate the automatic application of that provision to any and all unilateral acts, but neither should one ignore the fact that an argument can be made according to which the most important and formalistic unilateral acts can be formulated only upon the fulfilment of the requirements of such provisions. Similar provisions could be found in the 1996 Constitution of Ukraine.133 Its Art.102 reads that The President of Ukraine is the Head of the State and speaks in its name. The more precise competencies are regulated in an enumerative fashion in Art.106 of the Constitution. Two paragraphs from this list are of special importance. Paragraph 3 provides that the President represents the State in international 133 http://libr.sejm.gov.pl/tek01/txt/konst/Ukraina2014.pdf. Consulted on 24 July, 2014. The translation from Polish was done, exceptionally, by me (see footnote 119).

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relations, directs the foreign policy of the state, conducts negotiations and concludes international agreements of Ukraine. Point 4, concerning recognition, has already been mentioned in this chapter. Interestingly, the last section of Art. 106 lists acts of the President which require countersignature of the Prime Minister of Ukraine and the minister responsible for the act and its execution. Until February 2014 acts issued on the basis of Art. 106 (3) and (4) were covered by this requirement, however since February 2014 this requirement no longer applies. This does not mean that the Ukrainian government would not be in a position to formulate such acts itself. Art. 116 (1) of the Constitution of Ukraine provides that the government (the Cabinet of Ministers) conducts the internal and foreign policy of the State. In fact only the recognition of states would be covered by the exclusive competence of the President. The executive organs in Ukraine must also take into account Art. 85 (32), according to which the Supreme Council (the Parliament) must express statutory consent for the binding force of international agreements of Ukraine and their termination. As has been said several times, the very fact that unilateral acts may give rise to the same results as treaties would speak in favour of the application per analogiam of the same requirement to the former, or at least to some of them. What’s more, Art. 85 (14) of the Constitution provides that the Supreme Council is to approve decisions on the grant by Ukraine of credits and economic aid for other states and international organizations, as well as on taking by Ukraine of credits not provided for in the state budget from other states, banks and international organizations. On the other hand it is difficult to treat Art. 85 (5) of the Constitution as a competence provision empowering the Ukrainian Supreme Council to formulate unilateral acts. It gives it only the power to determine the principles of domestic and foreign policy. The 1953 Constitutional Act of Denmark134 refers in several provisions to the King. According to section 3 134 http://www.thedanishparliament.dk/Publications/My_Constitutional_Act_with _explanations.aspx; Consulted on 24 July, 2014.

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executive authority shall be vested in the King, and according to section 12 [s]ubject to the limitations laid down in this Constitutional Act, the King shall have supreme authority in all the affairs of the Realm, and shall exercise such supreme authority through the Ministers. Section 19 (1) provides that [t]he King shall act on behalf of the Realm in international affairs, but, except with the consent of the Folketing, the King shall not undertake any act whereby the territory of the Realm shall be increased or reduced, nor shall he enter into any obligation the fulfilment of which requires the concurrence of the Folketing or which is otherwise of major importance; nor shall the King, except with the consent of the Folketing, denounce any international treaty entered into with the consent of the Folketing. There is no doubt that Folketing may demand its consent for unilateral acts by the King aimed at achieving the effects listed in the cited provision. What is more complicated is the mutual relationship between or among several executive organs in Denmark. Section 14 provides that [t]he signature of the King to resolutions relating to legislation and government shall make such resolutions valid, provided that the signature of the King is accompanied by the signature or signatures of one or more Ministers. A Minister who has signed a resolution shall be responsible for the resolution. In this sense one cannot expect that acts can be formulated independently by the King, although this does not mean that every act requires the consent of the King. The 1992 Constitution of the Czech Republic135 belongs to the group of constitutional acts which attributes to the Head of State the function of representing the state in foreign relations. Art. 54 (1) of the Constitution reads only that [t]he President of the Republic is the Head of state. 135 http://www.usoud.cz/fileadmin/user_upload/Tiskova_mluvci/Ustava_EN_ve_zneni_ zak_c._98-2013.pdf; Consulted on 24 July, 2014.

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‘Representing the state externally’ is one of the functions of the President provided for in Art. 63 (1) (a) of the Constitution. In consequence, there is no doubt that unilateral acts formulated by the Czech President would be attributed to the Czech Republic. However, Art. 63 (3) of the Constitution provides that [i]n order to be valid, decisions of the President of the Republic issued pursuant to paragraphs 1 and 2 require the countersignature of the Prime Minister or a member of the government designated by him. This requirement certainly covers all kinds of decisions relating to ‘representing the state externally’. There is no doubt that a formal declaration of recognition is an example of an act which, if made by the President, requires the approval of the Prime Minister. Of course, it may happen that the President of the Czech Republic shakes the hand of a person claiming to be a Head of unrecognized state or unrecognized Head of a recognized state, giving the partner the feeling of being thereby recognized. There is no problem if the government affirms that interpretation. The government can, however, also specify that the hand-shake was just an act of courtesy and not a form of recognition. There can be no doubt that the government itself may formulate unilateral acts. This is so despite the very sparse constitutional regulation of the position of the government. In fact the only pertinent provision of the Constitution is Art. 67 (1), which limits itself to stating that The government is the highest body of executive power. Some complications may arise connected with the fact that, according to Art. 63 (1) (b), the President negotiates and ratifies international treaties; he may delegate the negotiation of international treaties to the government or, with its consent, to individual members thereof. One can imagine an argument to the effect that, if the government needs Presidential permission for negotiating treaties, a similar permission is required for unilateral acts. In fact, however, such a conclusion seems to go too far. In the formulation of unilateral acts the government and the President must take into consideration a few elements. The first is set out in Art. 49 of the Constitution, which reads that

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[t]he assent of both chambers of Parliament is required for the ratification of treaties: (a) affecting the rights or duties of persons; (b) of alliance, peace, or other political nature; (c) by which the Czech Republic becomes a member of an international organization; (d) of a general economic nature; (e) concerning additional matters, the regulation of which is reserved to statute. As has been pointed out several times in the present chapter, such provisions seem to call for application mutatis mutandis to at least some unilateral acts. One should reserve, however, that it is rather impossible to apply the provision on political treaties to every unilateral act having political importance. The second provision that must be kept in mind is Art. 11 of the Constitution, which provides that: The territory of the Czech Republic forms an indivisible whole, the borders of which may be altered only by constitutional act. The Constitution of Germany136 also contains several provisions which are important from the perspective of the present book. Art. 32 (1) of the Constitution provides that: Relations with foreign states shall be conducted by the Federation. But paragraph 3 of that article also provides that: Insofar as the Länder have power to legislate, they may conclude treaties with foreign states with the consent of the Federal Government. One can wonder if this provision could also be applied to unilateral acts. Even if so, the formulation of such an act would be dependent upon the individual consent of the Federal Government. It should be noted that Art. 73 paragraph 1 lists foreign affairs among the matters under the exclusive legislative power of the Federation.

136 http://www.gesetze-im-internet.de/englisch_gg/basic_law_for_the_federal_republic_of_ germany.pdf; Consulted on 24 July, 2014.

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The second important provision of the German Constitution is contained in Art. 59, which regulates the position of the Federal President. According to Art. 59 (1), The Federal President shall represent the Federation for the purposes of international law. He shall conclude treaties with foreign states on behalf of the Federation. He shall accredit and receive envoys. Art. 58 of the Constitution provides that: Orders and directions of the Federal President shall require for their validity the countersignature of the Federal Chancellor or of the competent Federal Minister.137 For this reason one should rather exclude the situation whereby the President himself creates obligations of the state. He needs the consent of the Head or designated member of the government. The second paragraph of Art. 59 provides for several kinds of treaties requiring parliamentary approval, as follows: Treaties that regulate the political relations of the Federation or relate to subjects of federal legislation shall require the consent or participation, in the form of a federal law, of the bodies responsible in such a case for the enactment of federal law. In the case of executive agreements the provisions concerning the federal administration shall apply mutatis mutandis. One can only repeat the suggestion to apply this requirement mutatis mutandis to unilateral acts, or at least to some of them. The German Constitution does not say anything about the creation of international obligations by the government. This does not mean however that the government does not have that competence. This is another evidence of how risky the literal interpretation of Constitutional texts can be. This concerns especially the formulation of such day-to-day acts as protests and waivers of diplomatic immunities.

137 This provision shall not apply to the appointment or dismissal of the Federal Chancellor, the dissolution of the Bundestag under Article 63, or a request made under paragraph (3) of Article 69.

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4.7.6 Summary It is impossible to summarize the constitutions of all states of the world in the present chapter. In fact any such examination should go behind the constitutional texts (if they are present at all in given state) and take into consideration statutes, customs and case-law.138 Suffice to say here that I do not know of any constitution which regulates the competences of the Minister for Foreign Affairs. On the other hand, a number of constitutions refer expressly to the Head of a state as the representative of the state. This results in a distorted picture of reality. Taking as a point of departure the literal reading of the constitutional texts one should treat any statement of a Minister of Foreign/International Affairs with great suspicion, and conversely any declaration of a Head of state with great trust. In practice however the opposite is true. The Minister for Foreign Affairs is called upon to conduct relations with other states. One of his tasks is to react to demands, questions, and suggestions of other states. One should take into account that many of his statements will have the form of more or less precise indications on the future conduct of the state. Obviously the most important declarations require the consent of the government, the Head of the state or maybe even the parliament. However, an expectation that every binding statement requires such a procedure would result in a complete paralysis of this important state organ. One can hardly avoid the truism (political rather than legal) that a good Minister for Foreign Affairs is one who can intuit and observe the boundary between a breach of domestic law by an unreasonable incurrence of new obligations on one hand, and complete helplessness on the other. The latter would mean that a Minister would have to wait for a resolution of the government for his or her every statement. It would be an excellent way to marginalize a state, despite the unquestionable humoristic value of the very presence of such a minister. Importantly however, the presence in a Constitution of a provision according to which the Head of a state is the highest representative in international relations is not equal to a confirmation of his position as the decision-maker. As has been pointed out several times, such a provision is not always a competence provision in the technical meaning of the term. Special scepticism and care should be applied with respect to the Constitutions of monarchies. A statement according to which the executive power belongs to the King may mean that he makes no decisions and formulates no acts; both being made by ministers – in consultation with the Head of the state or even without consulting him/her. 138 H. Jefferson Powell, op.cit., p. 535.

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I do not aspire to present myself as an expert of every constitution, including those cited in the present chapter. The task of this chapter is to show how complicated the question of organs competent to formulate unilateral acts is. As a rule unilateral acts are not mentioned in any, or hardly any, of the constitutions known to me. On the other hand there has to be an organ competent to formulate them. Unilateral acts are just one of tens of thousands of matters which take place and function despite their not being mentioned in the constitution. Their legal position in the domestic law of a given state could be interpreted, more easily or less easily, from more general provisions or rules of the law. This is anything but a simple task, even for specialists in the constitutional law of their own state. As a rule unilateral acts are formulated by the executive, and the precise limitations on the respective powers of many executive organs are only partially laid out in the text of many constitutions. The constitution seems to be important for an examination whether an executive needs to refer to some other organ(s) with respect to unilateral acts which have the most significant legal effects. As was said by Mr. Herdocia Sacasa during the debate on the third report, in a democracy, unilateral acts did not necessarily have to be ratified by national parliaments. The unilateral acts covered by the study were acts which had been formulated in some cases by the executive and could have an impact on legislative acts or on coordination between the different branches of government.139 A case invoked by B. Simma during the discussions on the fifth report offers a good illustration of the practical problems. It concerned the refusal by Germany to extradite an alleged leader of an Islamist movement without a binding promise that, if convicted, the person would not be subject to the death penalty.140 There was a disagreement on which Turkish organ was competent to make such a promise – Turkey maintained that it was Parliament, while Germany considered that only the Turkish Government itself was so empowered.141 Another example was supplemented by the special rapporteur himself. It concerned recognition of Belize by Guatemala. The respective act of the 139 Yb.ILC, 2000, vol. i, 2628. meeting, p. 126, para. 18. 140 Yb.ILC, 2002, vol. i, 2722. meeting, p. 75, para. 51. 141 Yb.ILC, 2002, vol. i, 2722. meeting, p. 75, para. 51.

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President of Guatemala was challenged in the Constitutional Court. It affirmed the validity of the act, assuming however that it was not of a definitive nature. Therefore the President of Guatemala referred the matter to the Congress (parliament), which gave its approval.142 A. Pellet was entirely right when he said, during the discussion on the sixth report, that [i]t was far from certain that legal authority to recognize was identical to legal authority to promise, or that legal authority to recognize a State was the same as legal authority to recognize the applicability of a rule.143 This is very important from the perspective of the present work. If an attempt is made to apply art. 46 vclt to unilateral acts, a fundamental problem with invoking invalidity emerges. As has been said, one of the conditions for invoking art. 46 vclt is the manifest character of the violation of a provision of domestic law. As has been shown, one can encounter problems with finding provisions relating unequivocally to unilateral acts, so designating their violation as ‘manifest’ is a mission impossible in the great majority of cases. This is why one should approve of the fact that the special rapporteur decided to deviate from the wording of art. 46 vclt in his draft articles. In the opinion of the special rapporteur an author-state can invoke any norms concerning competence. However this solution is also connected with risks. The unclear character of the norms of states leads to the fact that the author-state may have a very wide discretion in calling into question its own unilateral acts if the solution proposed by the special rapporteur is approved. As has been shown, all or almost all constitutions are silent on the competences of Ministers for Foreign Affairs, hence from the theoretical point of view almost any declaration of such Ministers could be called into question by the Foreign Minister’s own state as having been not compatible with its constitution. The establishment of customary norms in this respect is also very difficult. However, some proposals as to their shape must be disqualified a priori. First of all, one must exclude the right of the author-state to question any unilateral declaration because of the lack of a constitutional provision dealing expressly with the formulation of such declarations. Such a right would be manifestly at odds with the principle of good faith. While taking into consideration the differences between unilateral acts and treaties, one must also refer to their 142 Yb.ILC, 2003, vol. i, 2770. meeting, p. 137, para. 29. 143 Yb.ILC, 2003, vol. i, 2770. meeting, p. 138, para. 37.

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similarities. The former aspect excludes the application of art. 46 vclt to unilateral acts, while the latter however speak against the adoption of some of the principles proposed by the special rapporteur. In my opinion, declarations of a Head of a state, Head of a government or Minister for Foreign Affairs are attributable directly to a state. If one of those organs breaches its domestic law in making such a declaration, the competent organ of a state should make it clear forthwith that the declaration made should not be perceived as an act giving rise to obligations of the state. In the absence of such a clarification, the declaration gives rise to such obligations. Such disqualification of a statement made by an allegedly incompetent organ should take place without delay upon the receipt of knowledge thereof by the competent organ(s). In the case of public statements it should take place immediately or at least within a very short time. One cannot demand a rigorously formalistic method for disqualifying such statements. Taking into consideration the dignity of the states and their organs, one can expect rather subtle suggestions referring to domestic procedures or the political character of the statements made. These principles could be extended to declarations made by ‘technical’ ministers and by diplomatic representatives vis-à-vis the receiving state. It is also difficult to accept the suggestion of the special rapporteur according to which the author-state can invoke conflict with domestic norms other than those concerning competences. In this sense a state which makes a binding promise to abolish capital punishment in its criminal code would be in a position to later disqualify its promise because…the domestic law provides for such a punishment. Such a highly unwelcome if not absurd proposal would put into doubt both the sense and the binding force of obligations resulting from unilateral acts. 4.8 Conclusions The doctrinal suggestions to apply the principles of the vclt to unilateral acts turned out to be well justified overall, albeit with some exceptions. They must be limited however to acts creating obligations. Non-classical acts must first of all be in conformity with precise norms of international law. This does not mean that the fact of formulating them under coercion or in error does not affect them, but the practical effects of that confirmation are less than might be expected. The examination of acts other than classical ones will be the topic of the next Part of the present work.

Part 2 Search for Unilateral Acts. Survey of Fields and Topics of International Law

∵

Introduction to Part 2 One of the basic tasks of the present work is to examine the comprehensiveness of various lists of unilateral acts proposed in the doctrine. The most popular list, comprising four types of acts (promise, protest, recognition and waiver) cannot be adopted a priori as the only one. The same applies to its modifications, or to those lists which are a little longer and usually presented without any special justification. There can be no doubt that the only reasonable way of checking a list’s comprehensiveness (or not) is to confront the general definition (or idea) of a unilateral act of state in public international law with selected acts, activities, documents, legal transactions, declarations, behaviours and events analysed by the doctrine in different branches of international law. Unless such an act, action, document etc. is evidently bilateral/ multilateral or is deprived of legal effects, it must be examined to determine whether it is a unilateral act of a state within the meaning adopted in this book. At the same time it is obvious that any such attempt is connected with a serious risk of overseeing one or more important acts, or even one or more important branches of international law. Although international law is not limitless, the attempts to describe it in an exhaustive way often come dangerously close to descriptions of limitless objects. In addition, the very division of it into branches is more or less a matter of convention. For some scholars air law or space law are separate branches, while for others they are just parts of one wider branch connected with space and territories. These ‘branches’ are often suggested for convenience and didactical purposes. In this respect international law can hardly compete with domestic law and its three basic divisions – criminal, civil and administrative. One cannot find anything of that kind in public international law. In addition, the emergence of a new ‘branch’ of international law may be due to the presence of a substantial number of international agreements on a particular topic. One can hardly expect that this criterion will be of special importance in a monograph on unilateral acts of states. There is also a group of items which are presented separately from all branches of international law (like custom). However, awareness of all the risks connected with a survey of different branches of international law cannot lead to abandoning the attempt altogether. My intention herein is to refer to as many different acts, actions or activities as possible, while being aware that a careful reader may be in a position to suggest some new and additional ones.

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The aims of this approach are several. The first has already been mentioned – to make a list of the types of unilateral acts which would be as complete and reliable as possible. The second aim is not less important. It relates to the determination of the legal nature of those acts, behaviours, activities etc., which are, or may seem to be, similar to unilateral acts. It may turn out that their effects are identical to those of some acts which are commonly recognized as unilateral legal acts of international law. In such a situation it may also turn out that either both of or neither of them is a true unilateral act within the meaning of the present book. Here it is apropos to make the reservation that it is not the task of the present publication to work out a completely new system of facts and acts producing effects in the field of international law. The aim is rather to search for the place for unilateral acts in the system already worked out by the doctrine of international law. Its achievements were presented in Chapter 21 and must be treated as a point of reference. Classical acts (meaning those acts present in the classical list of unilateral acts), i.e. promise, waiver, protest or recognition, are not going to be discussed in this part of the book. In fact they can be examined in the context of norms dealing with territory, war, diplomacy or individuals as well as any other branch of international law. As was already said, this very fact justifies the success and popularity of the classical list, and perhaps allows it to overcome all arguments pointing out its inadequacies. Nevertheless, the aim of this present part is to present the gaps in the classical catalogue. Parts 3 and 4 will be entirely devoted to classical acts. This gives rise to a fundamental methodological dilemma, namely whether every confirmed type of unilateral act deserves the same attention. The attitude of the authors of other monographs may be instructive. For example E. Suy decided to analyse all unilateral acts one by one in separate chapters, although he did not go outside the scope of the classical list (devoting one chapter to notification). The attitude of F. Pfluger might be even more instructive. He also devoted separate chapters to all unilateral acts, as determined by him. What’s more, he did so with respect to a non-classical one, namely occupation. As can be seen, one should ask in this place how to approach the topic. If, for example, the existence of two non-classical acts is confirmed, should two separate chapters be devoted to them? Should the same be done if twenty or even 80 such additional acts are established? Perhaps that would be the proper approach. All unilateral acts should be treated in the same way. However, at the present stage of the study of unilateral acts it would seem sufficient to identify acts other than the classical ones, or at least analyse different activities taken 1 See in particular subchapter 2.2.

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within the framework of several branches of international law from the perspective of whether they qualify as unilateral acts in public international law. As a rule, these branches and the activities themselves are well known. They do not require a detailed analyses in a monograph of unilateral acts of states. What is necessary is to either acknowledge them as unilateral acts of states in public international law, or deny them that qualification. The branches of international law discussed in this part will not include the principles and norms connected with subjects of international law. These relate to the question of recognition, therefore many elements connected with subjects of international law will be presented in the chapters devoted to recognition in Part 4. Treaties related to the subjectivity of international organizations and some territorial subjects are obviously outside the scope of interest here. What may seem more interesting are acts which are seemingly connected with the establishment of new states, i.e. declarations of independence. Such acts escape classification as such, however. They are neither necessary for the emergence of a state nor sufficient for it. If such an act contains, for example, a promise to respect treaties or recognition of another state, it is interesting from the perspective of this work as any other example of promise or recognition. Also the rules of state responsibility or succession are not going to be discussed here. The analysis contained in the present Part 2 concentrates on the norms connected with territory (Chapter 6), individuals (Chapter 7), diplomacy (Chapter 8) and war (Chapter 9). Paradoxically enough, or at least seemingly paradoxically, I start with the law of treaties (Chapter 5). It is manifestly an area in which the probability of finding a unilateral act sensu stricto seems small to none. But various acts and activities connected with treaties are effected by states individually. Some of them may be qualified as unilateral acts, but with the qualification sensu largo – as opposed to sensu stricto. In my opinion, the study of unilateral acts sensu stricto presupposes a deep understanding of acts which are made unilaterally by states and are connected with treaties. Hence an understanding of unilateralism requires that attention be paid to what is, by definition, not unilateral or at least not truly unilateral. As a treaty is assumed be an antitype of a unilateral act, the doctrine seldom considers it necessary to examine why this is so. Yet the answer may be useful, especially for the borderline cases in which qualifying a given act as unilateral, or not, is more than difficult.

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Individual Actions of States Regulated by the Law of Treaties and the Notion of Unilateral Acts of States 5.1

Non-Autonomous Acts Connected with Treaties

As was described in part 1, unilateral acts sensu stricto are, as a group, presented as in some ways even an antitype, of another group, that is unilateral acts sensu largo. In fact the latter term is a group category comprising both unilateral acts sensu stricto, as well as other acts performed/formulated by states individually. The contra-distinction exists between just the two last groups. For reasons of simplicity, statements according to which a given transaction is a unilateral act sensu largo must be read as an indication that this transaction does not possess the characteristics of a unilateral act sensu stricto. In the overwhelming majority of cases the reason will be the lack of autonomy of a given act. Hence it is mainly the autonomy (or the lack thereof) that is the centre of our interest in the present chapter. It is useful to take a brief look at examples of non-autonomous acts presented in the legal literature. W. Czapliński lists in this context: accession to a treaty, termination of a treaty; unilateral denunciation of a treaty or modification of its effects in connection with a fundamental change of circumstances (rebus sic stantibus), reservations to a treaty, and interpretative declarations.1 Góralczyk concentrates on declarations made by one state, the effects of which are determined by a treaty itself.2 Clearly the most famous example thereof is a declaration on acceptance of the compulsory jurisdiction of the icj.3 N. Quoc Dinh also lists in this context reservation, termination of and accession to a treaty.4 K. Skubiszewski (without referring to the term ‘unilateral acts sensu largo’) identifies such unilateral acts connected with the law of treaties 1 W. Czapliński, Akty jednostronne w prawie międzynarodowym, Sprawy Międzynarodowe 6/1988, p. 99. 2 W. Góralczyk, Prawo międzynarodowe publiczne w zarysie, Warszawa 1989, pp. 168–169. 3 W. Góralczyk, op. cit., p. 169. W. Czapliński, A. Wyrozumska, Prawo międzynarodowe publiczne. Zagadnienia systemowe, Warszawa 1999, p. 95. 4 N. Quoc Dinh, P. Daillier, A. Pellet, Droit international public, Paris, 1994, pp. 355–356 (Cited hereafter as: N. Quoc Dinh, op. cit.), see also: W. Czapliński, A. Wyrozumska, op. cit., Warszawa, 1999, p. 95.

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as signature, ratification, acceptance, approval, accession, reservation, withdrawal, suspension and objection to reservation.5 An analogous list suggested by J. Charpentier comprises: ratification, reservation and accession.6 On the other hand the monograph of E. Suy refers to accession, offer and its acceptance.7 In an article written in English 40 years after publication of his monograph, Suy modified his position as regards the qualification of reservation, interpretative declarations, and termination of a treaty not provided for expressis verbis in its provisions.8 Both the original as well as the revised views of this author will be referred to when analysing the pertinent types of acts. An entire list of non-autonomous acts could be found in the first report of the special rapporteur. He includes: – acts which, although apparently unilateral, constitute a bilateral or multilateral treaty relationship, such as offer and acceptance; – acts which, although formally unilateral, do not create a new legal relationship but are associated or linked with a pre-existing treaty or customary legal norm; – acts by which States accept the jurisdiction of the International Court of Justice, pursuant to Article 36 of the Court’s Statute.9 Quite an extravagant idea of autonomy was presented by A. Pellet during the discussions on the third report. According to him [a] unilateral act could not produce effects unless some form of authorization to do so existed under general international law. The authorization could be specific, for example where States were authorized to fix unilaterally the extent of their territorial waters within a limit of twelve nautical miles from the baseline. Or it could be more general, as States were on the whole authorized to unilaterally enter into commitments 5 K. Skubiszewski, Unilateral Acts of States, in: M. Bedjaoui (ed.), International Law: Achievements and Prospects, Paris 1991, p. 233. In another place Skubiszewski writes that on ratification that ‘its essential function goes beyond unilateralism as it concerns a treaty’, vide: ibidem, p. 223. 6 J. Charpentier, Engagements unilatéraux et des engagements conventionnels: différences et convergences, in: J. Makarczyk (ed.), Theory of International Law at the Threshold of the 21st Century. Essays in honour of Krzysztof Skubiszewski, the Hague, London, Boston 1996, p. 371. 7 E. Suy, Les actes juridiques unilatéraux en droit international public, Paris 1962, p. 114. 8 E. Suy, Some unfinished new thoughts on unilateral acts of states as a source of international law, Journal for Juridical Science – Tydskrif vir Regswetenskap 3/2001, pp. 5–6. 9 1. report, p. 7, par. 22–24.

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limiting their sovereign authority. But unilateral acts were never autonomous. Acts that had no basis in international law were invalid. It was a matter not of definition but of validity or lawfulness.10 In this sense an autonomous act would be one not provided for by law. This idea of autonomy cannot be adopted in the present work. Although one cannot argue that all non-autonomous unilateral acts are those connected with treaties, the latter manifestly form the most important subgroup of non-autonomous acts. While at the present stage of the analysis it cannot be assumed that every act connected with the law of treaties is nonautonomous by definition, nonetheless one must reckon with that possibility. All the same, it seems useful to extend the analysis to the widest scope of acts and activities connected with the law of treaties as possible. They will be analysed mainly from the perspective of their unilateral and autonomous character. An exhaustive analysis of such acts belonging to the sphere of the law of treaties is neither useful nor possible in a monograph of unilateral acts. What will be interesting for the topic of unilateral acts is the similarity of acts from the sphere of the law of treaties to unilateral acts sensu stricto, to acts which are evidently non-autonomous, and to a lesser extent – to acts which are bilateral or multilateral by their nature or even acts of domestic law. The aim will be to verify the list of non-autonomous acts and an attempt to analyse the essence of autonomy and, conversely, the lack of autonomy. Acts discussed in the present chapter will not include treaties themselves, nor offer and its acceptance as acts which together form a treaty. These will be referred to in Part 3. Acts connected with treaties have seldom been analyzed from the perspective of their unilateral or autonomous character. Even if such acts were classified at all, the criterion applied was something other than their unilateral or autonomous character. V.-D. Degan is an exception in this respect.11 He distinguishes two basic groups of unilateral acts connected with treaties, as follows: – unilateral acts within the treaty-making and treaty-executing process, – unilateral acts provided for by treaties. The first group is divided into five subgroups. They are of primary importance from the perspective of the present work. The first subgroup covers signature, 10 Yb.ILC, 2000, vol. i, 2629. meeting, p. 136, para. 65. 11 V.-D. Degan, Unilateral act as a source of particular international law, The Finnish Yearbook of International Law, vol. v, 1994, pp. 179–183.

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ratification, acceptance and approval of a treaty. With respect to them Degan writes that they are unilateral only in form. They are necessary corollaries of its conclusion and entry into force. If other party or parties do not produce the same or similar acts, these acts remain without legal effects.12 The second subgroup contains an offer to conclude an agreement, a reservation, an interpretative declaration or an act of denunciation or of withdrawal from a treaty. Degan notes that they have equally no effects if not consented to by other negotiating States or parties. However, if a right to make reservation, or of unilateral denunciation, or of withdrawal from a treaty, is provided in its text, these unilateral acts have immediate effect, subject only to the fulfilment of the conditions that may be provided in the treaty. They are then an autonomous act, but based on the respective treaty provisions.13 The third subgroup included acceptance of an offer. The fourth subgroup covered acts in which the interpretation of consensus seems to be rather a legal fiction.14 Within this subgroup Degan includes ‘accession by a State to a treaty open to it’, ‘consent of a State to be bound by a part of a treaty’ and ‘accession to optional protocols to a treaty by its actual parties’.15 The last category covers acts in which one is not able to find even a fiction of an agreement.16 An example of this is the convalidation of a treaty which should otherwise be void or terminated. Some of the statements cited above will be referred to when discussing the various types of acts.

12 13 14 15 16

V.-D. Degan, op. cit., p. 179. V.-D. Degan, op. cit., p. 179. V.-D. Degan, op. cit., p. 180. All citations on based on: V.-D. Degan, op. cit., p. 180. V.-D. Degan, op. cit., p. 180.

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On the other hand, V.-D. Degan refers to unilateral acts provided for by treaties. He writes that besides unilateral acts or actions within the treaty making or treaty executing process, some treaties expressly provide the right of some or of all its parties, or even of third international persons, to produce some kinds of unilateral acts or regulations.17 He writes about three such situations. The first has to do with peace treaties which usually authorize their victorious parties unilaterally to decide which of pre-war bilateral treaties will be kept in force or be revived, and which will be abrogated.18 The second is Art. 94(3) of the 1977 First Additional Protocol to the four 1949 Geneva conventions, and the third one is Art. 21 of the un Law of the Sea Convention (dealing with the adoption by coastal states of laws and regulations relating to innocent passage through their territorial sea).19 It is difficult to understand how the two first acts differ from other facultative acts provided for in treaty provisions, while the last example in fact differs from the first two because of its reference to domestic provisions.20 The famous work of N. Quoc Dinh presents an extremely wide list of acts connected with treaties. Besides the ones already mentioned (acts ‘the competence to perform which is provided for by a treaty’21), he refers to acts ‘of taking notice of’ treaties concluded by other states, acts confirming the ‘objective character’ of certain treaties or acts replacing treaties.22 Such acts are not going to be discussed in the present chapter. Some pertinent remarks in Parts iii and iv (especially dealing with recognition) will refer to some of them. One can wonder if the analysis which follows is not affected too much by the vclt. It would be a great paradox if the doctrine of unilateral acts would be to a large extent affected by a multilateral act on treaties. It is beyond any doubt that the vclt influenced the very tenor of the doctrine of the law of treaties. 17 18 19 20 21 22

V.-D. Degan, op. cit., p. 182. V.-D. Degan, op. cit., p. 182. V.-D. Degan, op. cit., pp. 182–183. V.-D. Degan himself rewers to that element, op. cit., p. 183. N. Quoc Dinh, op. cit., p. 355. Ibidem, p. 356.

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It is perceived as a codification of international customary law. 70 years ago states had beyond doubt a completely incomparable level of certainly and security as regards the legal effects of their acts and activities. This refers also to such acts as declaring a treaty invalid or making a reservation.23 While this element is to a large extent outside the scope of this work, it should however be noted and treated as an element of the ‘legal environment’ in which every author finds him- or herself. 5.2

Activities Connected with the Entry into Force of a Treaty

5.2.1 Introductory Remarks It seems useful to start the analysis with activities connected with the conclusion and the entry into force of a treaty. Q. Wright24 distinguishes four steps in the conclusion of a treaty. They are namely: signature, ratification, exchange of ratifications, and putting into force.25 The latter is to comprise all acts such as publication, assent of the legislature26 or even passage of enabling acts and promulgation of executive ordinances necessary to give the instrument legal effectiveness, not only as between the two states, but also as to all private individuals and administrative and judicial officers deriving rights or duties from it.27 According to Wright the three first steps lead to the conclusion of a treaty (abgeschlossen). On the other hand, according to him the last element leads to its entry into force (vollziehbar). In fact the last element has to do rather with the effectiveness of a treaty in the domestic legal order than with its binding

23

24 25 26

27

It is worthwhile to note that even in 1950 the special rapporteur of the ilc, J.L. Brierly, wrote in his first report on the law of treaties thate: ‘The acceptance of a treaty subject to a reservation is ineffective unless or until every State or international organization whose consent is requisite to the effectiveness of that reservation has consented thereto.’ 1. report on the law of treaties, Yearbook ilc, 1950, vol. ii, pp. 238–242, citation on the basis of the First report on the law and practice relating to reservations to treaties. Invoking Kaufmann in this respect. Q. Wright, The legal nature of treaties, ajil, 1916, p. 710. For a survey of the practice of the us Senate in the consent for ratification of treaties, see: K.C. Kennedy, Conditional Approval of Treaties By the u.s. Senate, Loy.L.A. Int’l and Comp.L.J., 1996–97, pp. 89–172. Q. Wright, op.cit., p. 710.

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force in light of international law. For this reason it will not be discussed in this place. V-D. Degan writes that [i]t should be stressed that every treaty making process is composed of acts which are essentially unilateral. Exceptions to this are: the negotiating process itself with drafting of the text of the treaty if being couched in a single document and exchange of instruments of ratification of a bilateral treaty.28 The very use of the term ‘act’ is easily understandable. For example, H. Blix uses that notion with respect to ratification as well as exchange of documents of ratification.29 J.L. Kunz goes so far as to claim that the validity of the norms of a treaty is dependent on a ‘norm-creating act’ and keeping it in force on the absence of a ‘norm-abolishing fact’.30 A. Aust writes that [t]o consent to be bound is therefore the most significant act which a state can take in relation to a treaty.31 It must be stressed that one cannot seriously consider negotiations as having a unilateral character. They are by definition bilateral or multilateral. This is all the more important as any party to negotiations formulates its own statements. There is no problem with calling them unilateral. In fact however their value lies in their effects in persuading the other parties to a particular formulation of a treaty – and that is a bilateral or multilateral act. It should be noted that the diversity of strength of the negotiating powers may cause someone to describe some negotiations as unilateral. This is, however, nothing more than a political evaluation, fully permissible and understandable due to the very wide scope of the meaning of the adjective ‘unilateral’. Such an evaluation has, however, no relevance to the topic of the present work. Signature is absent in the majority of lists of non-autonomous acts presented in the doctrine. One can assume that this is due to the fact that as a rule signature is made by a few states at the same time. This is however not an absolute requirement, as signature may be extended over time. In that situation it resembles other acts, which are going to be discussed, especially ratification. 28 29 30 31

V.-D. Degan, op.cit., p. 179. H. Blix, The requirement of ratification, byil, 1953, p. 356. J.L. Kunz, The meaning and the range of the norm pacta sunt servanda, ajil, 1945, p. 190. A. Aust, Modern Treaty Law and Practice, Cambridge 2000, p. 75.

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One should note that V.-D. Degan includes signature in his list of unilateral acts sensu largo.32 Even if so, not every example of signature could be treated as such an act. One can hardly overcome the feeling that the main risk for an author writing on this aspect of the topic is that he or she may become a hostage to certain technicalities. These technicalities are present in many treaties. For example, it would be absurd to speak about the more or less unilateral character of signature as depending on whether signatures take place on the same day or over some small intervals. The second risk has to do with attempts to make these technicalities hostage to a doctrine of unilateral acts of states. It would be a complete intrusion on the part of this doctrine to dictate to states how they should proceed when concluding treaties. For example, let us imagine a situation in which a text of a bilateral treaty is signed by one state and sent to another. The latter signs it and gives it back after twenty years. It would be a complete misunderstanding to argue that inasmuch as the first signature took place twenty years before the second one, both must be treated as unilateral acts. What’s more – both have legal effects. The effect of the first signature is to allow for the entry into force of the agreement upon the second signature, and the effect of the latter is to bring about this entry into force. The question whether a treaty is in existence is a problem for the law of treaties only. Ratification and Exchange of Ratification Documents/Depositing them with a Depository The majority of authors writing on non-autonomous acts do not list ratification among them. J. Charpentier33 and V.-D. Degan34 are the two exceptions known to me. W. Góralczyk writes that ratification is the ‘approval of a treaty by a competent state organ’ meaning a ‘definitive expression of a consent to a treaty.’35 E. Nys writes that

5.2.2

ratification is an approval (l’approbation) [of a treaty] by a competent constitutional organ.36 32 33 34 35 36

V.-D. Degan, op. cit., p. 179, see also: K. Skubiszewski, op.cit., p. 233. J. Charpentier, op. cit., p. 371. V.-D. Degan, op. cit., p. 179. W. Góralczyk, op. cit., p. 75. For a very similar definition, see: Ch. Rousseau, Droit international public, Paris, 1970, t. i, p. 88. E. Nys, Le droit international. Les principes, les théories, les faits, Bruxelles, Paris, 1906, t. iii, p. 32.

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W. Czapliński and A. Wyrozumska write that it is ‘the most solemn means of expressing a consent for a treaty’ and an ‘act as a rule performed by the head of a state.’37 The written and formal character of that act is emphasized.38 As was already said, there can be no doubt that ratification can be and is an act. Already in 1880 G. Jellinek used the term ‘act’ both with respect to ratification and to a denial thereof.39 Ratification is called an act in the contemporary legal literature40 and in the case-law of the icj. In the famous Ambatielos case the icj ruled that ratification is not a mere formality, but an act of vital importance.41 The very notion ‘act of ratification’ may however be a subject of misunderstanding. This term may be identified with the document in which ratification is expressed, the document which is subsequently exchanged or deposited with a depositary. For example, E. Nys writes, that an [a]ct of ratification is a document confirming the fact of approval [of a treaty] being made (…).42 This tendency to reserve the term ‘act of ratification’ for a document rather than a transaction may be stronger or weaker, depending on the language. In this work the former will be called a ‘document of ratification’, not because calling it as an act would be a mistake, but just for the sake of clarity. It seems obvious prima facie that ratification is performed by every state separately. Taking this as a measure, it is possible to call ratification a unilateral act.43 Also prima facie one can treat it as obvious that it is not an autonomous unilateral act. However, such prima facie conclusions are quite risky if not preceded by an analysis of the essence of ratification. The question is whether one should refer to two separate acts – that is the ratification on one hand, and the exchange of documents of ratification (or their deposit with the depositary) on the other; or whether they are elements of the same transaction. If the former is true and 37 38 39 40 41 42 43

W. Czapliński, A. Wyrozumska, op.cit., 1999, p. 48. S. Bastid, Les traités dans la vie internationale, Paris, 1986, pp. 41–42. G. Jellinek, Die rechtliche Natur der Staatenverträge, Wien 1880, p. 55. S. Bastid, op.cit., pp. 39–42; W. Czapliński, A. Wyrozumska, op.cit., p. 48. Ambatielos case (jurisdiction), i.c.j. Reports 1952, p. 43. E. Nys, op.cit., iii tom, p. 32. A. Ross calls ratification a unilateral treaty declaration. See: A. Ross, A Textbook of International Law. General Part, London, New York, Toronto 1947, p. 212. Evidently there can be no discussion of unilateral acts sensu strict. A. Ross neither does not discuss unilateral acts in his work nor does he even use such a notion.

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two acts are in place, it is necessary to consider with respect to each of them whether it really deserves the notion of a transaction (act) of international law, and if so – whether or not it is unilateral. If on the contrary ratification in fact includes two elements (proper ratification and exchange of documents), then analysis of the nature of such a transaction makes sense only if it takes into consideration the combined nature of such an act. The above-cited prima facie conclusions presenting ratification as a unilateral act sensu largo seem to be based on the assumption that ratification is a transaction separate from the exchange of documents of ratification (or their deposit with the depositary). Such an assumption may turn out to be illfounded however. This aspect was not present in the doctrinal discussions. The doctrine was, however, fully aware of the dualistic character of ratification More than 50 years ago H. Blix differentiated between international ratification – effected by the executive (usually the head of a state) and constitutional ratification (performed by the legislature).44 While this differentiation was not generally accepted, it indirectly points out the essence of another important differentiation – namely reference to the sphere of domestic law on the one hand and international law on the other. Already in 1932 K. Strupp wrote that, as regards the competent organs and procedure of ratification, international law referred to domestic law.45 E. Nys wrote that international law does not prescribe any precise form of ratification (…). This matter belongs to the sphere of domestic law (droit politique).46 ‘This matter’ manifestly refers to the procedure and form of ratification and not the ratification as such, nor its effects in the sphere of international law. It is particularly domestic law which determines which organ is competent to ratify and whether the cooperation of other organs is necessary. For this reason one cannot agree with J. Hatschek, who claims that ratification always requires countersignature.47 The latter may be required in the light of domestic laws of some or many states, but it cannot be claimed that the reason therefore is international law.

44 45 46 47

H. Blix, op.cit., p. 352. K. Strupp, Grundzüge des positiven Völkerrechts, Bonn und Köln 1932, pp. 174–175. E. Nys, op. cit., t. iii, p. 32. J. Hatschek, Völkerrecht als System rechtlich bedeutsamer Staatsakte, Leipzig 1923, p. 231.

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The domestic character of the rules on the procedure to be followed is, however, just the tip of the iceberg. What is really important from the perspective of the present work is the qualification of ratification and/or of its elements to either international or domestic law. Ch. Rousseau writes that ratification takes the form of a document of ratification (lettres de ratification) repeating the text of a treaty and promising to respect it. This instrument has only a domestic character, but the exchange of ratifications (l’échange des ratifications), and by multilateral treaties – deposit of ratification – takes the form of a signature of a protocol (procès-verbal) and leads to binding a state by a treaty.48 W. Góralczyk goes so far as to write that ratification is an act of domestic law and does not produce direct effects in the sphere of international law. Such effects are produced only by the exchange or deposit of documents of ratification.49 M. Frankowska writes that the procedure of ratification is composed of two steps: the first one takes place in the sphere of domestic law and leads to the decision of the head of a state on the ratification of a treaty.50 The second one is the exchange of documents of ratification or their deposit with the depositary.51 Interestingly enough, Frankowska writes that it is only the second act which is ratification sensu stricto and produces effects in the sphere of international law.52 It is true however that the second act is impossible without the first one. A. McNair cites four meanings of the term ‘ratification’. The only one referring to the term ‘act’ is just ‘the act of the appropriate organ of the State (…), which

48 Ch. Rousseau, op. cit., t. I, p. 90. 49 W. Góralczyk, op. cit., p. 77. 50 M. Frankowska, Prawo traktatów, Warszawa, 1997, p. 82. 51 Ibidem. 52 Ibidem.

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signifies the willingness of the State to be bound by a treaty’, that is ‘ratification in the constitutional sense.’53 The other meaning is the international procedure whereby a treaty enters into force, namely the formal exchange or deposit of the instruments of ratification.54 Art.2 (1) (b) vclt defines ratification as55 the international act so named whereby a State establishes on the international plane its consent to be bound by a treaty. As a consequence, the very act of signature of a document of ratification does not amount to ratification within the meaning of the vclt. However, I do not think it proper to limit the meaning of ratification in international law to the very exchange of documents of ratification (or their deposit with the depositary) only. It does not seem that such identification was the aim of the authors distinguishing between the domestic and international aspect of ratification. In fact the international act requires the performance of a domestic act and the production of a document. It is thus a part of an international act (transaction) of ratification. This means that it is a combined act, consisting of two elements: ratification under domestic law as well as exchange of documents of ratification (or their deposit with the depositary). The fact that ratification in this meaning is an act of international law is beyond any doubt and does not require any comment. What remains to be confirmed (or not) is the unilateral character of that act. In the case of confirmation of this element, its autonomy (or the absence thereof) will need to be examined. Paradoxically enough it seems useful to refer to autonomy already in this context. One must exclude beforehand the argument according to which ratification lacks autonomy because its effects are dependent on another act, namely the exchange of documents of ratification (or their deposit with the depositary). Inasmuch as ratification is comprised of two elements, their number itself cannot be a decisive argument. On the other hand, ratification is unilateral if both its elements are themselves unilateral. This creates an unexpected problem. It is much easier to prove the unilateral character of the domestic act of ratification alone. One cannot overcome the impression that the cited authors who characterised ratification as a unilateral 53 54 55

A. McNair, op.cit., p. 129. A. McNair, op.cit., p. 129. As well as three other types of acts: acceptance, approval and accession.

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act sensu largo had in mind this internal dimension of ratification. The fact, for example, that a binding ratified German-Polish treaty was ratified separately by Poland on one day and by Germany on another may induce one to see ratification as unilateral act. In my opinion however such a picture is the result of misunderstanding. The main (though evidently not the only) reason is that the second element of ratification could hardly be assimilated into a unilateral act. This refers above all to the exchange of documents of ratification. It does not resemble a unilateral act even in the slightest extent. It is by definition a transaction of two subjects.56 In consequence the ratification of a bilateral treaty is by definition a bilateral act. In my opinion, calling it a unilateral act sensu largo is a mistake. It is much more difficult to make such an evaluation with respect to ratification which includes the deposit of the document of ratification with a depositary. One can argue that if, for example, the usa sends its document of ratification to the un Secretary General as a depositary, a unilateral act of the usa is in place. One can also however find at least one argument to the contrary. This would refer to the fact that the deposit of the document of ratification is a legal transaction requiring the cooperation of two persons – the ratifying state and the depository. The depository could be a state or another person. This element does not seem to be very important for making differentiations, although the presence of a state seems to introduce a state-to-state element into the transaction. On the other hand the presence of a physical person does not change this element too much, as being a depository is not an individual characteristic but a function resulting from an agreement, that is from a multilateral (state-to-state) act. On the other hand, if one goes so far as to exclude the unilateral character of all declarations addressed to other subjects of international law, there would be no unilateral acts whatsoever. For this reason no special importance will be attributed to this element. By keeping in mind an intuitive, common sense idea of unilateralism, one can argue that the less is the similarity between the deposit of a document of ratification with the depositary on one hand, and the exchange of documents of ratification on the other, the greater would be the readiness to see a unilateral act in the former. Of course it must be kept in mind that what is at stake is the presence of a unilateral act sensu largo only. One can find several reasons for this.

56

One can easily imagine such an exchange involving more than two parties. There is no norm of international law which would prohibit states concluding, for example, a threeparty closed treaty to exchange their respective documents of ratification; it is rather the practical elements that decide that the institution of depositary is used in multilateral treaties.

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Firstly, there can be no ratification without a treaty, which is an act which by definition is not unilateral. Ratification is always relative to a treaty. Secondly, ratification of a multilateral treaty (that is ratification via domestic law and the deposit of the ratification document with the depositary) effected by one state only does not necessarily lead to the entry into force of a given agreement. This effect will take place only if a sufficient number of ratifications take place. There can be no treaty binding one state only. This does not mean, however, that such ratification does not have any results. A state may not simply withdraw its ratification or declare it as non-binding unless one of the grounds of invalidity is in place. The first (and probably the next few) ratifications have effects other than the automatic entry into force of a treaty. On the other hand, the ratifications above the minimum prescribed by a treaty have just that effect with respect to a ratifying state. This is one more differentiating element, demonstrating how difficult it is to measure the autonomy and unilateral character of one and the same type of transaction. To summarize, one must view the results obtained as a little bit paradoxical. The most obvious paradox is the fact that while international ratification connected with the exchange of documents of ratification cannot be qualified as a unilateral act sensu largo, at the same time one cannot deny the latter qualification to ratification involving the deposit of the ratification document with the depository. 5.2.3 Approval of a Treaty and Notification Thereof M. Frankowska defines approval of a treaty as an act of a state in the sphere of international law expressing its consent for a treaty. Approval is effected without the participation of the head of a state by a government, prime minister or minister.57 At the outset it must be noted that only two authors known to me mention approval of a treaty among unilateral acts sensu largo.58 It is difficult to attach any special importance to that circumstance, however. In fact, the majority of the previous remarks concerning ratification as such can be applied to approval as well, and there is no necessity to repeat them in this place. H. Blix writes that states slightly distinguish between ratification and approval.59 Though they are separate, from the perspective of the present work the differences between 57 58 59

M. Frankowska, op. cit., p. 85. V.-D. Degan, op. cit., p. 179. K. Skubiszewski, op. cit., p. 233. H. Blix, op. cit., p. 364.

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them are not important. In contrast, the similarities between them are very important. If ratification is a unilateral act, approval is also unilateral. If ratification is an act of domestic law, the same can be said about approval. If the answers to the preceding questions are negative with respect to ratification, they are also negative with respect to approval. The same applies to the relationship between ratification and the exchange of documents of ratification (the deposit of the ratification document with the depository) and approval and notification of the fulfilment of requirements of domestic law necessary for the entry of a treaty into force.60 In fact, however, there are some technical differences. In treaty practice there are no simultaneous exchanges of notifications of approval, although they are not prohibited. There is a strong feeling that it is not the task of the doctrine of unilateral acts to dictate to states how they should arrange the technicalities connected with the entry into force of treaties concluded by them. Viewed in this light, the strong reliance of the present conclusions on just technicalities should be treated as a warning. There is no problem to say that the procedures for concluding a bilateral or multilateral act might allow to speak about unilateralism to a greater or lesser extent depending on elements of secondary importance. The problem is whether this does not prove the futile character of such discussions. It must be stressed that the parties to a treaty may decide on a new means of expressing consent, one which involves neither ratification nor approval. So for example H. Blix writes that [t]he consensus between the parties to a draft agreement may also be established and evidenced by proclamations, by publication, by an exchange of telegrams, or of notes (…).61 Such activities presuppose the will of the states and even if they are not approval in the technical meaning of the term, the majority if not all of our remarks concerning approval can be applied to them. 5.2.4 Accession to an Agreement Accession to a treaty is rightly defined as ‘one of the forms of expressing consent for a treaty’.62 W. Czapliński and A. Wyrozumska write that 60 61 62

For reasons of simplicity it will be called notification of approval. H. Blix, op. cit., pp. 357–358. M. Frankowska, op. cit., p. 90.

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in its classical form accession is a peculiar form of expressing consent to be bound by a treaty effected by a state which did not participate in negotiating the treaty, that is after negotiations. It can precede the entry into force of a treaty (when the state’s signature is no longer possible) or take place after the entry into force of a treaty. It takes place with one act, by a single declaration of will.63 At the outset it must be noted that not everything that is called ‘accession’ fulfils the conditions present in the above-cited definition. For example, in this context one can cite the accession of a new state to the European Union. It is accession only to the organisation. In fact, from the perspective of the law of treaties a new treaty requiring ratification is necessary. One of the elements of that treaty is accession to the founding treaties (Treaty on the European Union, Treaty on the Functioning of the European Union and Treaty on the European Atomic Energy Community). However, from the technical point of view the accession is not a means of expressing consent to a treaty. The previous remarks concerning signature, ratification and approval are fully pertinent to it. The doctrine distinguishes several kinds of accession, but reference is usually made to two. In German they are called Akzession and Adhäsion. K. Strupp explains that the former means accession to a treaty in its entirety, while the second – to just to some provisions of a treaty.64 In German both are also called Beitritt.65 J. Gilas distinguishes three notions: approbation, adhesion and accession.66 The first is merely a positive evaluation of a treaty, without incurring any formal obligations. The second is described as a formal declaration according to which a state fully supports a treaty and will formally apply it. Only the third type – accession – leads to a state becoming a party to a given treaty.67 On the other hand F. Berber writes that the distinction between accession and adhesion has become obliterated in practice.68 In fact, however, everything depends on the respective definitions. J. Gilas writes that the contemporary law of treaties refers only to accession.69 63 W. Czapliński, A. Wyrozumska, op. cit., 1999, p. 49. 64 K. Strupp, op. cit., pp. 177–178. See also: E. von Ullmann, Völkerrecht, Tübingen, 1908, p. 273. 65 K. Strupp, op. cit., pp. 177–178. 66 J. Gilas, Prawo międzynarodowe, Toruń, 1995, p. 93. 67 Ibidem. 68 F. Berber, Lehrbuch des Völkerrechts. Erster Band. Allgemeines Friedensrecht, München und Berlin, 1960, i, p. 432. 69 J. Gilas, op. cit., p. 93.

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One can have serious doubts about the correctness of that statement. Neither approbation nor adhesion are prohibited, and their legal effects (if any) would not be affected by the lack of reference to them in the vclt. It must be stressed that these two institutions are not examples of accession and do not lead to a state becoming a party to a treaty. That is why only accession in the technical meaning of the term will be discussed here. K. Strupp writes that, from the legal point of view, accession (Beitritt) means the conclusion of a treaty with the original parties, which have made a proper offer via the insertion into the treaty of an accession clause.70 Such a description does not explain the nature of accession, which is other than the first one. At the moment of the second and following accessions the parties to a treaty are not only the founders of a treaty. It would be more proper to say that accession is a mode of becoming a party to a multilateral act for those states which were not signatories to this act. This definition may turn out to be too rigid and once again depends on the technicalities of conclusion of a given treaty. As was said, they should not determine the doctrine of unilateral acts, nor should the latter attempt to decide on them. The possibility of accession could be provided expressly, or it could be inferred from a given treaty. The vclt places accession together with ratification, acceptance and approval in the same definition, which was cited in the subchapter on ratification.71 It must be noted, however, that accession is present in the lists of unilateral acts sensu largo (lacking autonomy because of their connection with treaties) to a much greater extent than any of the other transactions discussed hitherto.72 One can wonder about the reasons for this. In my opinion one of them concerns the real and/or apparent differences from elements which are non-unilateral by definition, i.e. negotiations, the typical (simultaneous) signature of a bilateral treaty contained in one document, and ratification of a bilateral treaty (in the meaning presented above). The extreme view of V.-D. Degan on accession has already been invoked. In his opinion it seems to be a fiction to see consensus in ‘accession by a State to a treaty open to it’, ‘consent of a State to be bound by a part of a treaty’ and ‘accession to optional protocols to a treaty by its actual parties.’73 One can wonder about the precise conclusions which derive from this argument. In this sense accession seems to be more unilateral than many other acts. Degan does not, however, specify whether it deserves to be included in the notion of a unilateral act sensu stricto. 70 71 72 73

K. Strupp, op. cit., p. 178. Art.2 (1) (c) of the vclt. So: W. Czapliński, op. cit., p. 99, J. Charpentier, op.cit., p. 371, E. Suy, Les actes…, p. 114. V.-D. Degan, op.cit., p. 180.

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Applying the above-cited test of autonomy (or its lack) to accession, it must firstly be stressed that accession is always relative vis-à-vis a treaty. As a rule accession concerns a treaty already in force. One can, however, encounter accession to a treaty which is waiting for its entry into force. Such accession is similar to ratification or approval. Is this kind of accession less autonomous? Despite the great attachment I place on theoretical considerations, I feel rather helpless as regards this question. What’s more, accession is possible only when a treaty allows for it or the parties agree on it. This element is also present in ratification and approval, but evidently attracts less interest inasmuch as the latter two acts are preconditions for the very entry into force of a treaty, either at all or for a given state. Taking into consideration that characteristic of accession it is difficult not to see its similarity to so-called facultative acts.74 Accession may be treated as a facultative act provided for expressly by a provision of a treaty, or a facultative act based on the parties’ interpretation of the provisions of that treaty. As facultative acts are treated as symbols of unilateral acts sensu largo, there is no wonder that there is a tendency to situate accession in this category. The third and perhaps most important argument on the lack of autonomy of accession points out the fact that it leads to the acceding state becoming a party to a treaty, i.e. to an act which is not unilateral by definition. One cannot deny however that accession resembles a typical unilateral act sensu largo and could be so qualified. 5.3 Reservation The next act presented by the doctrine of non-autonomous unilateral acts is reservation.75 An argument in favour of treating it as a unilateral act can be found in Art.2 (1) d) of the vclt. It defines reservation as a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State. R. Szafarz attempted to make this definition more complete. According to her, reservation is 74 75

See: Chapter 2. W. Czapliński, op.cit., p. 99; J. Charpentier, op.cit., p. 371.

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a formal statement, however phrased or named, made unilaterally by a subject disposing of ius contrahendi in the field of international law, when initialling, signing ad referendum, signing, or depositing a document of ratification, acceptance, approval, accession, succession, extension or prolongation of the legal force of a multilateral treaty, whereby it purports – directly or by means of specific interpretation – to exclude, limit, modify or extend the legal effects of certain provisions of the treaty in their application to that subject, part of its territory or territory subordinated to it.76 Reservations and interpretative declarations became the object of the works of the ilc almost at the same time as unilateral acts of states. The effect of this work was the issuance of the 2011 Guide to Practice on Reservations to Treaties and the huge, almost 600-page commentary to it.77 These will be referred to as the Guide and commentary respectively. Point 1(1)(1) of the Guide defines reservation: “Reservation” means a unilateral statement, however phrased or named, made by a State or an international organization when signing, ratifying, formally confirming, accepting, approving or acceding to a treaty, or by a State when making a notification of succession to a treaty, whereby the State or organization purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State or to that international organization. Paradoxically enough, at the very outset it must be asked whether reservation could be called an act at all. Let us imagine that it is placed into a document of ratification. Is it not a part of another transaction, namely ratification? In this context one can see the importance of the differentiation between an act understood as a transaction and an act understood as the instrument in which it is expressed. Reservation is an institution with such a strong identity that it would seem to be a complete misunderstanding to make its existence dependent on the formal fact of being expressed in a document separate from the one expressing the consent for a treaty. For this reason reservation cannot be

76 77

R. Szafarz, Zastrzeżenia do umów wielostronnych (Reservations in Multi-lateral Treaties), Warszawa 1974, p. 51. Both available in document A/66/10/Add.1, Report of the International Law Commission for 2011, General Assembly Official Records, sixty-sixth session, Supplement No 10.

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denied the character of an act of international law, independently of the form of expressing it. One cannot exclude the possibility of a few states making one common reservation. Point 1.1.5 of the Guide states apodictically that [t]he joint formulation of a reservation by several States or international organizations does not affect the unilateral character of that reservation. Such a formulation seems a little artificial, and only reservations formulated by a single state will be discussed here. R. Szafarz, when analyzing the legal nature of reservation, stresses that its unilateral character could be discussed with respect to two dimensions: (1) the unilateral formulation of the text of the declaration and transmission thereof by an individual state; (2) a declaration giving rise to legal effects automatically on its formulation.78 She is ready to attribute only the first characteristic to reservation, as reservation gives rise to legal effects only on its express or tacit acceptance by a requisite number of the parties to a treaty.79 The doctrine, however, observes that states making reservations usually achieve their goals – irrespective of the reaction of other states.80 This may be true to some extent, though the reactions of other states are important from the legal, technical point of view. It is also emphasized that “incompatible” reservations do not nullify the act of ratification of the reserving state and are instead subject (just like admissible reservations) to the rules on acceptance or rejection contained in Article 20 of the Vienna Convention.81 78 79 80

81

R. Szafarz, op.cit., pp. 18–19. R. Szafarz, op.cit., p. 19. J. Klabbers, Accepting the Unacceptable? A New Nordic Approach to Reservations to Multilateral Treaties, Nordic Journal of International Law, 2000, p. 179. This Nordic approach was aimed at preventing such effectiveness of reservations. It states that the author of a reservation cannot benefit from it. Notabene the effectiveness of the latter declarations (the main instrument of the Nordic approach) is at least doubtful. M. Coccia, A Controversial Declaration on the u.n. Convention Against Torture, ejil, 1990, p. 325.

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It would be difficult to deny that reservation is included in the notion of a unilateral act. The only question is whether it should be accompanied with a ‘sensu largo’ or perhaps even ‘sensu stricto’ designation. To this end the question of autonomy is of utmost importance. On the surface it seems obvious that reservation is not an autonomous act. However, if one looks at the literature and at the act itself, this conclusion may turn out to be less obvious. The attitude of E. Suy is of interest in this regard. In his monograph he did not treat reservation as a true unilateral act. Forty years later he expressed his doubts as regards the true nature of reservation.82 In fact he referred to reservations not provided for by a treaty. He wrote that: The treaty itself, which is silent on the possibility of reservations, does not intervene in determining the effects of the reservation.83 In fact there is no necessity for a treaty to specify these effects as they are determined by customary law. All the same it is easier to rebut this argument than to answer the fundamental question on the autonomy (or lack of autonomy) of reservations. The doubts of Suy may, however, serve as an illustration of the problems. In fact they are theoretical, semantic problems, or ones connected with classification. Hence it may be useful to analyze different characteristics of a given transaction which may speak for or against its autonomous character. First of all, a reservation is always connected with a given treaty. The former is impossible without the latter. This element, which points to the lack of autonomy, was present in all the hitherto discussed transactions and will be present in all that are still going to be discussed in this chapter. A criterion which seems to put all elements on the outside is itself doubtful. One cannot however disqualify it – it may be so that the lack of autonomy, or in other words the lack of a true unilateral character of transactions in the law of treaties – is an objective truth. In this sense the common sense and first sight evaluation of these transactions would reflect the truth. It would mean that the search for unilateral acts in this area of the law is a waste of time. In order to better analyze this element three different situations should be examined: – a treaty that prohibits reservations; – a treaty that determines matters which can be the subject of reservations; – a treaty neither prohibits reservations, nor determines matters which can be the subject of reservations. 82 E. Suy, Some unfinished…, p. 5. 83 Ibidem.

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In the first case, the legal evaluation of a reservation is unequivocal. Such a reservation is illegal, i.e. without force or effect, and as such is outside the scope of our interest in the present work. The only interesting question in such a situation is whether a state formulating such a reservation is a party to the treaty at all. This topic however belongs to the scholarship on the law of treaties and will not be discussed in the present work. In the second case, a reservation which is expressly provided for by a treaty cannot be qualified otherwise than as a facultative act provided for by a treaty. In this situation a multilateral act84 refers expressis verbis to an act of an individual state and where necessary determines its effects. This is why it is difficult to agree with V.-D. Degan, who writes that a reservation provided for in the text of a treaty is an ‘autonomous act but based on the respective treaty provisions.’85 Such a description would only make sense if a very specific understanding of the term ‘autonomy’ is adopted. A completely different situation occurs when a treaty neither prohibits reservations, nor lists allowable reservations in any exhaustive way.86 Can a reservation in such a case be called a facultative act? Some hesitation would seem appropriate in using that term with respect to reservations of that kind. Citing the above-presented view of V.-D. Degan, one can consider searching for an autonomous act in this area. On the other hand one can argue that a reservation may be made if it is not prohibited by a treaty, either directly or indirectly (taking into account the customary norm prohibiting reservations incompatible with the object and purpose of a treaty). What can be said is simply that the dependence of some reservations on the treaty is larger in some cases than others. Reservation, however, differs in a fundamental way from ratification, approval and accession. While the latter three are forms of expression of consent to a treaty, reservation is prima facie aimed at something else. It would be difficult to call it a contrary aim – in that situation a given state would simply not become a party to the treaty.87 All the same, looking from the perspective 84 85 86

87

It is assumed that reservations cannot be made to bilateral treaties. V.-D. Degan, op.cit., p. 180. One must remember that even if a treaty does not prohibit reservations, it does not mean that any and every reservation may be made. A general limitation results from customary law and is connected with the prohibition of making reservations incompatible with the object and purpose of a treaty. One may ask whether the very fact that a given state is not a party to a treaty can be called as an act. In my opinion, it is neither necessary nor proper to use this term in that context. On the other hand, an express refusal to ratify or accede to a treaty could prima facie be called an act. It is difficult however to attribute any precise legal effects to such an act.

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of a concrete provision of a treaty, it is difficult not to observe that a reservation purporting to exclude the legal effect of a provision resembles an act which we could call a contesting act. It is more difficult to qualify a reservation purporting to modify the legal effect of a treaty provision. Can it also be called a contesting act? To some extent that description may by proper. If, for example, a modification consists of limiting the extent of a duty resulting from a given provision of a treaty, in fact one has to do with a partial exclusion of the provision. It can be said that the difference between an excluding and modifying reservation is not only determined by the aim of reservation, but by the shape of the provision of a treaty. If a treaty contains a few separate provisions on a topic and only one provision is contested by a state-party, it will probably make an excluding reservation. If however a treaty regulates the same topic with one provision only, the state might seek to achieve the same aim by making a modifying reservation. This modification will lie in a narrowing the application of the provision. However, it is not always the case that a modifying reservation consists of excluding one or more elements of a given provision of a treaty. The qualification of reservation as a unilateral act sensu stricto seems to be one of those theoretical and unsolvable questions. Both answers – positive and negative – could be defended. Both could also be criticized. In my opinion the arguments against such qualification are numerous. First of all, reservation is not only unthinkable without a treaty, it is also inconceivable without becoming a party to a treaty. What’s more, it is often the price which other parties are willing to pay for having a given state within a treaty relationship. Last but not least, the element of reaction of other states must be taken into consideration. For these reasons I believe reservation should be treated as a unilateral act sensu largo only. At this point it is precisely the positive or negative reactions of other states to a reservation that deserve attention. 5.4

Express Acceptance of a Reservation

A positive reaction to a reservation means its acceptance. For reasons of clarity, express and tacit acceptance should be distinguished. The express acceptance of a reservation (in this subchapter called simply acceptance) is clearly an act of international law. Even if the scope of that notion is limited to declarations only, acceptance would still find its place in that definition. As a rule it is expressed by an individual state, although there are no obstacles to it being a common declaration of a few states. The latter possibility does not change or

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affect the qualification of acceptance of reservation as effected individually by one state. Also the lack of autonomy of an act of express acceptance of reservation is beyond any doubt. There could be no acceptance of a reservation without the reservation itself. And inasmuch as reservation is impossible without a treaty, a logical conclusion is that acceptance of a reservation is impossible without a treaty also. So for the emergence of an act of acceptance two acts are necessary, one of them being always non-unilateral by definition. There are also important interrelationships along the lines of acceptance – reservation and acceptance – treaty. Acceptance (as opposed to objection) is a positive reaction to a reservation. A relationship of concordance exists between reservation and acceptance. As the former is a measure contesting or modifying a treaty, one can argue that acceptance also has this nature. This logical conclusion may however be risky as regards acts which have the character of reaction. A state accepting a reservation has no influence upon the state making a reservation in the sense that it can neither force the author to withdraw the reservation nor preserve relations with that state according to the treaty in its original version. The choice is only among express acceptance, silence, ordinary objection and qualified objection. It should be emphasized that in the case of acceptance of a reservation, a treaty (…) will bind the parties in a version resulting from the reservation.88 Taking into consideration the above-mentioned limited scope of possible reactions and even more limited scope of their effects, one can claim that the excluding or modifying effect is an expression of the will of both states – the author state making the reservation and the state giving its acceptance. In effect two declarations of will coexist. They resemble to a high extent an offer and acceptance. An interesting question concerns qualification of the relationship between the two above-mentioned states. In other words – does a reservation and its acceptance form a treaty? If yes, is it a treaty within a treaty or maybe an annex to a treaty? For sure it is a change resulting from two concordant declarations of will. If all such phenomena are defined as a treaty, then it follows that the presence of a treaty must be confirmed. However, the possibility of withdrawing a reservation, confirmed in Art. 22 vclt, may be an obstacle to acceptance of this qualification. This qualification, however, is a task for the doctrine of 88

M. Frankowska, op.cit., p. 94.

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the law of treaties and does not have to be resolved as such in a monograph on unilateral acts. What is important here is the fact that the relationship is manifestly either bilateral or multilateral. This is why there could be obstacles to seeing a state’s acceptance of a reservation as a unilateral act, even in the sense of unilateral acts sensu largo. This is to a large extent a question of terminology. If an act effected by one state is qualified as a unilateral act sensu largo there is no possibility to deny that notion to the acceptance of reservations. If however elements of bilateral or multilateral arrangements are going to be excluded from the notion of unilateral acts, then acceptance of a reservation should be excluded as well. 5.5

Tacit Acceptance of a Reservation

Art. 20 (5) of the vclt was already cited. It provides that a reservation is considered to have been accepted by a State if it shall have raised no objection to the reservation by the end of a period of twelve months after it was notified of the reservation or by the date on which it expressed its consent to be bound by the treaty, whichever is later. This provision of the convention as such is beyond the scope of interest in the present work. It must be assumed however that to some extent (not necessarily with respect to the number of months and the exact day) it reflects, or at least may reflect, a customary rule interpreting the silence of a stateparty (other than the author of a reservation) as its acceptance of a reservation. This makes it necessary to consider the character of tacit acceptance. In this respect the major doubt is whether such a tacit acceptance can be called an act. In fact this is a small aspect of the fundamental problem dealing with relationship of silence to acts. The very choice of words used in formulating the notion of tacit acceptance could give rise to doubts. Namely, is silence an act in itself, and may an act be formulated in a tacit fashion? The first question – whether silence could be an act, may be presented as a question of a partly philosophical and partly semantic nature. It seeks to discover whether it is not a self-contradiction to designate something which is a lack of an act as an act. This is an important perspective and point of reference for legal concepts. My preference is for the second formulation, however, i.e. that an act can be formulated in a tacit way.

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One can consider the situation of two states confronted with a reservation to a treaty formulated by another party to the given treaty. One of those states decides to declare an express acceptance of this reservation. The other state wants to do the same but does not see any sense in making a declaration, taking into consideration the fact that its silence will bring about the same effect. In that situation it can be said that a given state wants to achieve a given effect, which is attained by passive behaviour. One can however also imagine a completely different situation whereby a state, for whatever reason, is not aware that by remaining silent it will lose its right to object. Such a passive behaviour does not resemble an act at all. One can wonder however if that latter state would not be in a better position if it were established that an act took place. International law give some possibilities for calling an act into question. The competing view, i.e. that no act has taken place, could, taking into consideration the lapse of time, turn out to be more rigid that the fiction of an act taking place in connection with passive behaviour. Passive behaviour may be the basis for international responsibility, which is then called an internationally wrongful act. One can wonder if the fact of being contrary to law should actually ennoble passivity in such a way that then and only then it deserves the notion of an ‘act’? It is difficult not to consider at least the hypothesis according to which, the more precise is the character of norms attaching legal effects to passive behaviour, the greater is the probability of calling it an ‘act’. If the norm of the vclt concerning tacit acceptance of a reservation is a codification of customary law, then it becomes completely understandable to speak about an ‘act of silence’ or ‘an act of tacit acceptance’ of a reservation. If the solution from Art. 20 (5) vclt is however alien to customary law, then the solution adopted by the convention would lie outside the scope of interest of the present work. It may also be that to some extent the vclt codifies customary law, and to some extent it develops it. In that situation the first prong of the process would fall within the scope of interest of the present work. In the latter situation some conclusions concerning the express acceptance of a reservation would apply to its tacit acceptance as well. There can be no doubt that such an act lacks autonomy, for the same reasons elaborated with respect to express acceptance, i.e. the inherent connection with two other acts, that is reservation (directly) and treaty (indirectly). One must refer however to one additional element. If instead of ‘acceptance’ of a reservation one speaks of ‘recognition’ of a reservation, there would be probably no problem with finding proponents of the unilateral character of such an act. This risk exists. In my opinion it would result from the stereotype concerning recognition as such rather than the tacit acceptance of a reservation.

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At the same time it is difficult to call such a tacit acceptance a declaration of will. If somebody would attempt to see a treaty or a quasi-treaty between the author of a reservation and a state tacitly accepting it, it would have to be a tacit treaty. As was said however, describing the relationship between the two above-mentioned states gives rise to important problems. It should be pointed out that this is the first of several tacit acts to be discussed in the present work. They will be met again both in this Part as well as in Part 4 – especially in the chapters on recognition. 5.6

Objections to Reservations

An objection to a reservation is the next type of act to be discussed. Art.21(3) of the vclt provides that: When a State objecting to a reservation has not opposed the entry into force of the treaty between itself and the reserving State, the provisions to which the reservation relates do not apply as between the two States to the extent of the reservation. Thus according to this provision one can distinguish between two kinds of objections – one which prevents the entry into force of a treaty between the interested parties (the author-state of a reservation and the author-state of an objection), and one which does not prevent the treaty from being in force. The former type can be called a qualified objection and the latter type an ordinary objection. From the perspective of the present work this differentiation is not very important and the remarks to follow will concern both types of objections. At the same time there could be some doubts as regards the very scope of the term ‘objection’. In particular one can question whether a declaration of one state that a reservation of another is illegal should be qualified as an objection.89 However in my opinion it should be so qualified. The vclt does not define objection, probably assuming that it is selfexplanatory. It introduces the requirement that it be in written form (as well as the reservation itself).90 However Point 2.6.1 of the Practical Guide presents the following definition:

89 90

The practice of making such declarations is described in J. Klabbers, op.cit., p. 184. Art.33 (1) vclt.

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“Objection” means a unilateral statement, however phrased or named, made by a State or an international organization in response to a reservation formulated by another State or international organization, whereby the former State or organization purports to preclude the reservation from having its intended effects or otherwise opposes the reservation. An objection to a reservation is clearly an act of international law. Even if somebody limits the scope of that notion to declarations only, an objection would still find its place in that definition. As a rule it is expressed by an individual state, though there are no obstacles to making it in a common declaration of a few states. Point 2.6.4 of the Practical Guide states that [t]he joint formulation of an objection by several States or international organizations does not affect the unilateral character of that objection. Once again I must express my critical assessment of such an unjustified widening of the term ‘unilateral’. Hence the following remarks will refer to objections effected individually by one state. The qualification of such objection as a unilateral act seems to be a most proper one. If the criterion of a unilateral act sensu stricto is autonomy, that is independence from other acts, an objection clearly does not fulfil that criterion. Also in this case there are prima facie reasons for this conclusion. As was shown with respect to acceptance of a reservation, one must start with the observation that an objection is by definition a reply to a reservation. There could be no objection without a reservation. This does not mean that in the practice there cannot emerge a formulation ‘I object…’ in other situations. In particular a protest may contain such words. However if it is addressed to a situation other than the lodging of a reservation to a treaty by a party thereto, it will not be an objection in the technical meaning of the term. It should be noted that the comparison of objection and protest gives rise to another question. Why should protest be treated as an autonomous act and objection not? An objection, while being by definition a reaction, is not a positive reaction. On the contrary, it is an opposition, a negative reaction. Hence the fact that an objection will always be in relation to another act does not decide the question whether it is an autonomous act. This element of relationship should simply be taken into consideration. As there could be no objection without a reservation and there could be no reservation without a treaty, logically there could be no objection without a treaty. As was said, it would be difficult to find in this chapter any act which would not be connected with a treaty.

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It seems to be difficult however to find other elements pointing toward the lack of autonomy of an objection. In fact, it may be argued that inasmuch as an objection is directed against a reservation, and a reservation is directed against (at least some part of) a treaty, there is a relationship of concordance between an objection and a treaty. It is true that the results of an objection do not include the preservation of the entire text of the treaty between the two interested actors (the author-state of a reservation and the author-state of an objection). What is more, a qualified objection even excludes the treaty relationship between these two states in its entirety. Those two elements do not change the fact that an objection is strongly involved in support of the original wording of a given treaty. Hence it would seem proper to accept the argument that an objection is so strictly connected with a treaty that it does not belong in the notion of a truly unilateral act (sensu stricto). On the other hand, it fully falls within the notion of a unilateral act sensu largo. 5.7

Declarations made on Acceptance of Treaties

The fact that reservations and acts connected with them are included in the present analysis makes it necessary and convenient to consider another type of act, namely declarations made by states to treaties. Their qualification depends on the level of their emancipation ( i.e. whether they form a sufficiently emancipated type of declaration, requiring a definition of its own), unilateral means of formulation, legal effects and dependence on treaties (or independence from them). The question of identification/definition of declarations requires special attention. The vclt is silent on declarations to treaties. The topic is also absent in the older literature. Hence the question of their very identity cannot be omitted. One may need to use Occam’s Razor to prevent a proliferation of elements which are simply different names for other objects. In this situation one could entertain the suspicion that declarations are ‘hidden reservations’. In fact however, declarations are present in the contemporary teaching of the law of treaties. Sometimes a treaty prohibits reservations, but gives a general right to make declarations. A good example is the un Convention on the Law of the Sea.91 Its Art. 309 provides that

91 Available at the website http://www.un.org/depts/los/convention_agreements/texts/ unclos/unclos_e.pdf, accessed on 1 April 2015. See also: Y.-H. Song, op.cit., p. 261; W. Czapliński, A. Wyrozumska, op.cit., p. 55.

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No reservations or exceptions may be made to this Convention unless expressly permitted by other articles of this Convention. Then Art. 310 adds that: Article 309 does not preclude a State, when signing, ratifying or acceding to this Convention, from making declarations or statements, however phrased or named, with a view, inter alia, to the harmonization of its laws and regulations with the provisions of this Convention, provided that such declarations or statements do not purport to exclude or to modify the legal effect of the provisions of this Convention in their application to that State. Based on the foregoing it must be assumed that not every declaration is automatically a reservation. On the contrary, taking as a point of reference the Practical Guide, one must assume not only the existence of interpretative declarations but also of other statements being neither reservations nor interpretative declarations. Point 1.2 of the Practical Guide reads that “Interpretative declaration” means a unilateral statement, however phrased or named, made by a State or an international organization, whereby that State or that organization purports to specify or clarify the meaning or scope of a treaty or of certain of its provisions. Interpretative declarations were referred to by the special rapporteur when presenting his fourth report. According to him [i]nterpretative declarations were indisputably unilateral acts from a formal standpoint. They were generally linked to a pre-existing text connected with a previous manifestation of will and logically came within the framework of treaty relations. The situation was, however, different in the case of interpretative declarations that went beyond the stipulations of the treaty and became independent acts under which the State could accept international obligations.92 As regards the question of their unilateral character, one must repeat that it may certainly happen that a few state join together to make a common declaration. Point 1.2.1 of the Practical Guide provides that 92 Yb.ILC, 2001, vol. i, 2693. meeting, p. 175, para. 31.

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The joint formulation of an interpretative declaration by several States or international organizations does not affect the unilateral character of that interpretative declaration. In my opinion there is no special need to pretend to see a unilateral act (even in the sensu largo meaning) in such a declaration. This element does not influence, however, the qualification of a declaration made individually by one state. It is much more difficult to deal with the legal effects of a declaration. If the existence of such effects cannot be confirmed, the only logical conclusion would be to deny interpretative declarations the qualification of a legal act (legal transaction). Hence it is worthwhile to have a look at some definitions of declarations. S.K.N. Blay and B.M. Tsamenyi define a declaration and write that: A declaration is a statement issued by a State when ratifying, signing or acceding to a treaty. As a general rule, a State can make a declaration so far as the declaration does not purport to alter the legal relationship between the parties as established under the treaty. Where the declaration alters the relationship, it becomes a reservation; thus every reservation is indeed a declaration but not every declaration is a reservation.93 If one accepts this explanation one can argue that a declaration does not give rise to legal effects. In that situation an analysis of its autonomy or the lack thereof is irrelevant. Such a reasoning (which may be convincing from the theoretical point of view), would overlook the practical importance of several declarations actually made.94 K.C. Kennedy writes that: Declarations are unilateral interpretations of treaty text that narrow the scope of u.s. obligations under the treaty.95 93

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S.K.N. Blay, B.M. Tsamenyi, Reservations and Declarations Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, International Journal of Refugee Law, 1990, p. 529. An example may be a declaration inserted by the gdr in its instrument of ratification of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; see: M. Coccia, op.cit., pp. 314–327. This author refers the positions of several states which regarded the declaration not to be a reservation and not required any reaction, ibidem, p. 318. Interestingly enough, another author defending the admissibility of such a declaration treats it as a reservation; see: M. Mohr, The German Democratic Republic’s Declaration on the Anti-Torture Convention and its Consequences: an Attempt at Evaluation, ejil, 1990, pp. 328–335; see in particular: pp. 333–335. K.C. Kennedy, op.cit., p. 106.

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Though this author writes expressis verbis about declarations formulated by the u.s. Senate while expressing its consent for ratification of a treaty by the President, if they are repeated by the latter when ratifying a treaty it is difficult to expect that they will be neutral towards the treaty. Similarly, during the dispute between Nicaragua and Honduras, the latter attempted to present a declaration which in fact limited the extent of the clause on the jurisdiction of the icj as a mere interpretative declaration.96 Honduras failed in this argument. The underlying assumption is probably that an interpretative declaration cannot be as strong as a reservation. The question is how weak it should be. A mere declaration on how a given state is going to interpret a given treaty does not have to be a reservation. It also does not have to be neutral towards a given treaty.97 It should be noted that the special rapporteur on the topic of reservations to multilateral treaties emphasized that the legal effects of declarations remain unclear.98 In the Polish literature W. Czapliński and A. Wyrozumska declared that the goal of a declaration is not to modify the effects of a provision of a treaty, but its more precise formulation, but that in practice the differences between declarations and reservations are blurred, as certain states use declarations to circumvent legal restraints connected with reservations.99 This differentiation between declaration and reservation is probably the most difficult problem in this area. However, from the perspective of the present work it is less important. What is important is to decide whether it  is possible to have a declaration which is not a reservation and still 96 97

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Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, Judgment, i.c.j. Reports, 1988, p. 86. See, e.g., the us declarations to the un Convention on the Law of the Sea: Y.-H. Song, Declarations and Statements with Respect to the 1982 unclos: Potential Legal Disputes between the United States and China after u.s. Accession to the Convention, Ocean Development & International Law, 2005, pp. 265–266. It would be difficult to treat them as reservations. 1. report on reservations, Yearbook ilc, 1995, vol.ii (1), p. 147, par.129. W. Czapliński, A. Wyrozumska, op. cit., 1999, p. 55. The authors have not overtaken this statement in the 2004 edition of their work.

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­ roduces legal effects. It suffices to say that it is impossible to give an p unequivocal negative answer to this question. In fact, following the presentation of the Practical Guide such doubts may seem to be outdated. The Guide assumes both the legal effect of interpretative declarations as well as their differentiation from reservations. Point 1.3 of the Practical Guide is devoted to the distinction between reservations and interpretative declarations. According to it [t]he character of a unilateral statement as a reservation or as an interpretative declaration is determined by the legal effect that its author purports to produce. A separate place among declarations is reserved for those that are provided for by a treaty itself. S.K.N. Blay and B.M. Tsamenyi call them ‘optional declarations’.100 It is difficult not to observe that such a declaration is almost a symbol of a facultative or obligatory act. They are not very similar to declarations which are not provided for by a treaty. This is a proof that the complicated life of international law and international relations is immune to attempts to force it into rigid theoretical notions. The qualification of an interpretative declaration must start with the obvious statement that there could be no interpretative declaration without a treaty. While this is the most stable element of all the acts discussed in this chapter, nevertheless this way of argumentation may give rise to doubts. One can argue that what is really important is the fact of one state making a declaration. The fact that it concerns a treaty may be treated as an element of secondary importance. In the third chapter several authors were cited who listed declaration as a separate type of unilateral act. Treating an interpretative declaration as a subtype of a unilateral act called ‘declaration’, however attractive it may seem, is nonetheless misguided. The very notion ‘declaration’ has several meanings. It may be a name of a treaty, a unilateral act sensu stricto, an obligatory or facultative act provided for in a treaty, or made to it even in the absence of any express provision with regard thereto. The use of the term ‘declaration’ has no special informative value, and it is usually an abbreviation requiring clarification. On the other hand, as was said, interpretative declarations form a sufficiently emancipated type of declaration, requiring a definition of their own. The above-mentioned statement on the dependence of an interpretative declaration on a treaty may be even strengthened. There could be no 100 S.K.N. Blay, B.M. Tsamenyi, op. cit., p. 530.

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interpretative declaration without the author-state undertaking activities aimed at becoming a party to a given treaty (that is signature, ratification, approval or accession). These activities may be successful or not (e.g. as a result of the objections of other states or an express provision in a treaty prohibiting reservations or declarations), hence it cannot be said that no state can issue an interpretative declaration without being a party to a given treaty. All the same the dependence of an interpretative declaration on a treaty is far-reaching and cannot be treated as a mere coincidence. This is why there is no paradox in the position that a protest against a treaty can be treated as a true unilateral act while an interpretative declaration cannot be so treated. This dependence is beyond any doubt when a declaration to a treaty is provided for expressly. Is it not sufficient for the autonomy of a declaration, however, that a treaty merely does not prohibit it. When discussing such questions it is difficult to abstain from comparisons of interpretative declarations with reservations. While there is a fundamental difference between an interpretative declaration and an excluding reservation, it is difficult to say the same about a modifying reservation. In any case a declaration is aimed at protection of the interests of the author state in connection with possibly becoming a party to a treaty. Thus despite the differences there are also some similarities between interpretative declarations and reservations, while there is a fundamental difference between such acts and ratification or approval. Clearly the interest protected by an interpretative declaration is autonomous. The fact that the same cannot be said about an entire type of act as such may have to do with several elements. In addition to those presented above, another can be added, to wit: If a reservation is not an autonomous act, and it goes further than an interpretative declaration, then it follows that the latter also cannot be treated as an autonomous act. However, one can however try to reverse that reasoning and in my opinion, the most unfortunate argument would be the following: inasmuch as the vclt mentions reservations and is silent on interpretative declarations, the latter are autonomous or at least have more autonomy than reservations. In fact it was not the vclt that introduced the notion of ‘reservation’. It reflected a customary institution, adding many new elements to it, while interpretative declarations are a part of the practice at the turn of the 20th and 21st centuries. At the same time it is difficult not to observe that interpretative declarations have largely escaped classification. This may be due to their being an extrasystemic element. One can wonder whether an interpretative declaration should not have been attributed autonomy because of that fact. In truth however it was easier to share a feeling in this respect than to include in a closed

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system of unilateral acts. This was just the position that I took in my first (Polish) version of the present monograph. After the 2011 Practical Guide was issued my readiness to see interpretative declarations as an extra-systemic element is much smaller. This is why I can see more arguments against than in favour of treating interpretative declarations as unilateral acts sensu stricto. Clearly there are no obstacles to treating it as an example of a unilateral act sensu largo. 5.8

Unilateral Declaration on Acceptance of the Compulsory Jurisdiction of the icj

One must confess that a unilateral declaration on acceptance of the compulsory jurisdiction of the icj has attracted a disproportionate amount of attention on the part of authors dealing with unilateral acts. As a rule it is emphasized that this declaration is not a unilateral act sensu stricto.101 It has become almost a symbol of a non-autonomous unilateral acts (unilateral acts sensu largo), as well as of a facultative act. Such an attitude may give rise to a feeling that a unilateral declaration on acceptance of the compulsory jurisdiction of the icj occupies a special position. If it really does occupy such a position, this is due to its practical importance (not relevant as such for the present monograph), and not because of any inherent, constitutional or constructional reasons which would somehow distinguish that act from other unilateral acts sensu largo. For this reason a large part of the monograph of E. Suy, framed as a dispute with M. Maus, could be viewed with some criticism as a waste of time and energy.102 Maus based his arguments on the passage from the pcij judgment in the case of phosphates in Morocco.103 According to it a unilateral declaration on the acceptance of the compulsory jurisdiction of the pcij was a unilateral act. The same notion may be used with respect to very numerous acts made on the basis of treaties and in connection with their conclusion and/or termination. The term ‘unilateral’ is neither ‘prohibited’ nor even ‘strictly regulated’, as was shown in Chapter 1. Every act performed or formulated by a single state may be called unilateral. This does not change the fact that the nature of such acts may be different. 101 W. Góralczyk, op.cit., p. 169. W. Czapliński, A. Wyrozumska, op.cit., p. 95, N. Quoc Dinh, op.cit., pp. 355–356. 102 E. Suy, Les actes…, p. 142. 103 pcij Publications, series A/B, no 74, pp. 23–24, citation on the basis of: E. Suy, Les actes…, p. 142.

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In this sense the differentiation between autonomous and non-autonomous acts is the greatest achievement of the 20th century scholarship on unilateral acts of states. It also confirms the need for a systemic rather than ad hoc analysis of unilateral acts sensu largo. Firstly, a unilateral declaration on acceptance of the compulsory jurisdiction of the icj is an act usually formulated by one state individually. There is no obstacle however to a few states making such a declaration together. In a dispute between Nicaragua and Honduras, the latter claimed that Art. xxxi of the Pact of Bogota was a collective declaration provided for in Art. 36(2) of the Statute of the icj. Honduras attempted to persuade the Court of its interpretation, according to which the consent of a state-party to the Pact may be withdrawn unilaterally. The icj emphasized that withdrawal or modification of a consent may take place only in accordance with the Pact itself.104 What is of greatest interest for our purposes, the icj did not exclude the very possibility of making collective declarations on the basis of Art. 36 (2) of the icj Statute. However my further remarks will be limited to declarations made by one state only. A unilateral declaration on acceptance of the compulsory jurisdiction of the icj in the above-presented meaning is an act which is not only effected (performed) by one state (or in other words attributed to one state only), but is also unilaterally formulated. Certainly, its aim and object (the jurisdiction of the icj) provide some kind of framework, but the latter is very wide and very different shapes of declarations are possible. S. Rosenne calls such declarations ‘unilateral acts, the product of unilateral drafting of the individual States’.105 R. Szafarz writes that the doctrine usually emphasizes that these declarations are unilateral in form, but through Art. 36(2) of the Statute of the icj are contractual in nature, that is they create a quasi-treaty situation and from that point of view may be compared to an act of accession to a treaty.106

104 Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, Judgment, i.c.j. Reports, 1988, p. 84. 105 S. Rosenne, The Law and Practice of the International Court, Dordrecht, Boston, Lancaster 1985, p. 385. 106 R. Szafarz, Obowiązkowa jurysdykcja Międzynarodowego Trybunału Sprawiedliwości (Compulsory Jurisdiction of the International Court of Justice), Wrocław, Warszawa, Kraków, 1991, pp. 81–82.

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R. Szafarz herself calls this declaration as an ‘act of accession to a facultative obligation’ provided for in Art. 36(2).107 As was said, references to an act’s unilateral character may refer to a sensu largo understanding of the term only. Following the pattern adopted in this chapter, one should ask about the reasons for the lack of autonomy of such acts. One can start with the truism that there can be no unilateral declaration on acceptance of the compulsory jurisdiction of the icj without a treaty, that is, the Statute of the icj. This truism can have two meanings. Firstly, the Statute of the icj calls into existence the Court. Without the latter one cannot even imagine a declaration concerning its jurisdiction. Despite being a truism, this argument is more risky than it might look at first glance. If one were to apply this criterion too strictly, the result would put into doubt the unilateral character of any unilateral declaration addressed to…whatever organ or organisation (which are by definition created by treaties). There is more sense in the second meaning of the above-presented argument. It would point mainly to the fact that a declaration on the acceptance of the jurisdiction of the icj is an act provided for in Art. 36(2) of the Statute of the icj. So it is a facultative act provided for in a multilateral act. This element seems to unequivocally exclude any possibility to treat a unilateral declaration on the acceptance of the compulsory jurisdiction of the icj as a unilateral act sensu sticto. The most authoritative description of this declaration is a passage from the icj judgment itself in the dispute between Spain and Canada on fisheries. The icj ruled as follows: A declaration of acceptance of the compulsory jurisdiction of the Court, whether there are specified limits set to that acceptance or not, is a unilateral act of State sovereignty. At the same time, it establishes a consensual bond and the potential for a jurisdictional link with the other States which have made declarations pursuant to Article 36, paragraph 2, of the Statute, and “makes a standing offer to the other States party to the Statute which have not yet deposited a declaration of acceptance” (…). The régime relating to the interpretation of declarations made under Article 36 of the Statute is not identical with that established for the interpretation of treaties by the Vienna Convention on the Law of Treaties (ibid., p. 293, para. 30). Spain has suggested in its pleadings that “[t]his does not mean that the legal rules and the art of interpreting declarations (and reservations) do not coincide with those 107 R. Szafarz, Obowiązkowa jurysdykcja…, p. 82.

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governing the interpretation of treaties.” The Court observes that the provisions of that Convention may only apply analogously to the extent compatible with the sui generis character of the unilateral acceptance of the Court’s jurisdiction.108 The authors dealing with a unilateral declaration on acceptance of the compulsory jurisdiction of the icj analyse its effects and try to find in them the answer to the question whether the act gives rise to a treaty relationship or not. S. Rosenne devotes a longer passage to that element; he points out differences between the declaration and a treaty.109 This fact is not put into question, but it cannot predetermine the classification of a declaration within the categories of unilateral acts – sensu stricto and sensu largo. S. Rosenne cites several rulings of the icj and the pcij referring to the ‘contractual relation’ resulting from the two declarations read together.110 In fact, what is important from the point of view of the present work is a negative qualification. In this sense the relationship between two states-parties to a dispute heard by the icj on the basis of two declarations made on the basis of Art. 36(2) of the Statute does not result from the coincidence of two unilateral acts sensu stricto. This conclusion is due to the fact that such jurisdiction was not only referred to, but actually defined (constructed ex nihilo) by a multilateral treaty. This fact is quite important. From the theoretical point of view one can wonder whether it would have been possible to make a unilateral act sensu stricto concerning the acceptance of the jurisdiction of the icj had the Statute not expressly provided for that possibility. While this question is of a purely hypothetical nature and will not be dwelt on, it is, however, connected with a real problem; namely whether it is possible to make a declaration with the exclusion of reciprocity. S. Rosenne refers to the evolution of the case-law of the icj as going in the direction of taking into consideration the lack of reciprocity upon request only. One can wonder whether a state can waive this argument? If so, the contractual element would no longer be present. All the same the fact of being an act provided for by Art. 36(2) would still be applicable.

108 Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, i.c.j. Reports 1998, p. 453. 109 S. Rosenne, op. cit., pp. 410–411. 110 S. Rosenne, op. cit., pp. 409–410.

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Termination of a Treaty

Qualification of the act of termination of treaties is a true challenge from the perspective of the subject of the present work. There is some diversity in the terminology used for an act or acts connected with the termination of treaties. V.-D. Degan uses the terms ‘unilateral denunciation or withdrawal from a treaty’.111 W. Czapliński separately mentions termination, unilateral withdrawal from a treaty, and change of obligations resulting from a fundamental change of circumstances (rebus sic stantibus).112 It is beyond doubt that this list is not exhaustive. W. Góralczyk uses the notion ‘termination’ for cases provided for in a treaty (expressis verbis or implicite), and ‘withdrawing from a treaty’ for cases which are not provided for in a treaty.113 I.M. Sinclair uses the terms ‘denunciation’ and ‘withdrawal’ (with respect to termination provided for expressly in a treaty, or even one not provided for expressly but possible to be interpreted on the basis of the treaty) on the one hand, and termination or suspension on the other. He is not very consequent, as the word ‘termination’ seems to be also used as a general term denoting all ways of putting an end to the binding force of a treaty for a state.114 Another proof of inconsequence is the fact that an act taken in connection with a fundamental breach of a treaty by one party is called ‘unilateral denunciation or termination’.115 It is difficult to attribute mutually exclusive meanings to each of those terms. M. Frankowska, author of a Polish monograph on termination, distinguishes two meanings of the term. She writes: In the wide meaning termination is identified with a unilateral declaration of a state aimed at putting an end to a treaty or to the participation of that state in a treaty. In the narrow meaning (…) it means a declaration to that end but only when made on the basis of a right to terminate the treaty.116 111 V.-D. Degan, op. cit., p. 180. 112 W. Czapliński, op. cit., p. 99. 113 W. Góralczyk, op. cit., pp. 84–87. Similarly: W. Czapliński, A. Wyrozumska, op. cit., p. 378 et. seq. 114 I.M. Sinclair, The Vienna Convention on the Law of Treaties, Manchester, Dobbs Ferry, 1973, p. 101. 115 I.M. Sinclair, op. cit., p. 103. 116 M. Frankowska, Wypowiedzenie umowy międzynarodowej (Termination of International Treaties), Wrocław, Warszawa, Kraków, Gdańsk, 1976, p. 15.

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From the point of view of the present work the most important fact is that all types of termination, withdrawal and so on are presented as unilateral acts.117 Usually termination is listed among other acts connected with treaties.118 It was in the context of termination of a treaty not provided for expressis verbis by a treaty that E. Suy modified his earlier view excluding a priori the autonomy of that act.119 As was already said, V.-D. Degan compared denunciation or withdrawal from a treaty to such acts as an offer to conclude an agreement, a reservation, and an interpretative declaration. Degan writes that if a right to make a reservation, or of unilateral denunciation, or of withdrawal from a treaty, is provided in its text, these unilateral acts have immediate effect, subject only to the fulfilment of conditions that can be provided in it. They are then autonomous acts, but based on the respective treaty provisions.120 As was noted, such a meaning of the term autonomy is quite peculiar. One can get the impression that Degan understands, under this term, that the effectiveness of such termination is not dependent on any activity of another state. Such a lack of dependence is however very relative and this relativity is beyond any doubt as regards termination provided for by a provision of a treaty. In fact the activity of another state or other states takes place in the form of a consent to a termination clause in a treaty. As has been mentioned, a treaty may provide for termination or it may not. Let us start with the former. It is difficult not to call it a facultative act effected on the basis of an express provision of a treaty, and such an act seems to take its legal force from the fact of being expressly provided for in 117 What’s more, they may be analysed both in light of international law as well as domestic law. The latter element is not of decisive importance, but may influence the identification of a given transaction as a separate act. On domestic law competence to terminate a treaty, see: C.J. Hill, Unilateral Presidential Treaty Termination Power by Default: An Analysis of Goldwater v. Carter, Texas International Law Journal. 1980, pp. 317–378. P. Reuter writes in the context of rebus sic stantibus of a unilateral right to recognize a treaty as extinct and the right of other parties not to recognize it, P. Reuter, Introduction au droit des traités, Paris, 1972, p. 182. 118 W. Czapliński, op. cit., p. 99; N. Quoc Dinh, op. cit., pp. 355–356; W. Czapliński, A. Wyrozumska, op.cit., p. 95; K. Skubiszewski, op. cit., p. 233. 119 E. Suy, Some unfinished…, pp. 5–6. 120 V.-D. Degan, op. cit., p. 180.

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the treaty. There is no doubt that such an act is not autonomous and cannot be called a unilateral act sensu stricto. This is not only because the act cannot be imagined without a treaty. It is literally identified by a treaty and regulated by it. Its peculiarity lies in the fact that this act leads to the end of the legal existence of a treaty – either in whole or from the perspective of the author-state. It is difficult to get rid of the feeling that the criterion of being linked to a treaty is hardly satisfactory. The picture obtained by it is of little value. The above critical remarks can be applied all the more to termination which is not provided for expressis verbis by the provisions of a treaty. Such termination could be connected with peculiar circumstances (rebus sic stantibus, violation of a treaty by the other party, impossibility to perform etc.), but may also be based on the conviction of a party that the termination of a treaty is possible, even though the treaty itself is silent on it. Both possibilities involve interesting legal questions. As regards the second possibility (which can be called with some risk an ‘implied right’ to terminate), two situations are possible. One of them is that the author-state of the termination is mistaken as to its right and in fact commits a violation of international law. Otherwise, if the author-state is not mistaken (or if the other party does not challenge the legality of the termination) then the act of termination resembles to some extent termination expressly provided for in a treaty. It, however, is considerably detached from the treaty. At the same time this points out the inadequacy of the terminology used to describe legal transactions of international law. Termination connected with extraordinary situations is detached from a treaty to an even greater extent. The only connection is the same one mentioned many times above – that the termination of a treaty is always connected with a treaty and is impossible without it. What’s more, some of these grounds were put into doubt not long ago.121 This concerns above of all termination of a treaty based on its violation by another party.122 It is difficult not to see that in a situation in which states are engaged in a dispute over the right to

121 K.A. Greenberg, Hong Kong’s Future: Can the People’s Republic of China Invalidate the Treaty of Nanking as an Unequal Treaty?, Fordham International Law Journal, 1983–84, p. 540. 122 See: J.W. Garner, V. Jobst iii, The Unilateral Denunciation of Treaties by One Party Because of Alleged Non-Performance by Another Party or Parties, ajil, 1935, pp. 569–585. The impulse for this text was the termination by Germany (under Adolph Hitler) of the Versailles Treaty’s limitations on the German army and the prohibition of air forces.

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terminate a treaty, there may be s strong temptation to call such an act as autonomous.123 Similar doubts can arise in the context of unilateral declarations concerning the invalidity of a treaty. Though it may seem that absolute invalidity is objective and invoking it is just a formality,124 in fact such declarations can give rise to fundamental disputes between the parties to a given treaty.125 5.10

Facultative and Obligatory Acts – in General

The remarks in the present chapter have referred several times to facultative acts, while obligatory acts were not mentioned. Both require some more general remarks. It is a somewhat risky decision to finish rather than start this chapter with such an evaluation, but there is more than one reason for this decision. Firstly, reference to facultative and obligatory acts was already made in Chapter 2. They were presented as examples of acts which are similar to unilateral acts, acts which are not true unilateral acts, or at least acts which must be differentiated from unilateral acts sensu stricto. Secondly, while the prima facie understanding of the term ‘facultative/obligatory act’ would not seem to require very specific definition, in fact it is easier to present examples of facultative acts than to create such a technical definition. The unilateral declaration on the acceptance of the compulsory jurisdiction of the icj is perhaps the most significant example. It is no wonder that what is in the middle of the discussion are the facultative clauses of treaties – that is, treaty provisions which make it possible for a state to make a given declaration. The far-reaching legal effects of some declarations of that kind are beyond any doubt. In this sense declarations made on the basis of Art. 36 (2) of the Statute of the icj are an ideal example. The result is the grant of jurisdiction to an international

123 Examples of such disputes are presented in: J.W. Garner, V. Jobst iii, op.cit., pp. 581–584. 124 It is worthwhile to note that even before the acceptance of the vclt a view was defended, according to which a treaty contrary to jus cogens norms is void, and not only voidable, see: A. von Verdross, Forbidden treaties in international law. Comments on Professor Garner’s Report on “The Law of Treaties”, ajil, 1937, p. 573. Here it is noted only that the acceptance of this thesis is not unproblematic. This statement could be shared even nowadays. 125 On the doubts as to possibility of invalidating of the 1842 Nanking Treaty (on the cessation of one third of Hongkong to the uk) as an unequal treaty, see: K.A. Greenberg, op.cit., pp. 534–560. This argument was invoked by China during negotiations with the uk.

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court. A similar solution can be found in Art. 41 of the Covenant of Civil and Political Rights.126 Its para. 1 provides: A State Party to the present Covenant may at any time declare under this article that it recognizes the competence of the Committee to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under the present Covenant. Communications under this article may be received and considered only if submitted by a State Party which has made a declaration recognizing in regard to itself the competence of the Committee. No communication shall be received by the Committee if it concerns a State Party which has not made such a declaration. It is a special challenge to qualify references to state activities in treaties aspiring to codify international law. For example, Art. 8 (2) of the 1961 Vienna Convention on Diplomatic Relations provides that [m]embers of the diplomatic staff of the mission may not be appointed from among persons having the nationality of the receiving State, except with the consent of that State which may be withdrawn at any time. Its para 3 provides that: The receiving State may reserve the same right with regard to nationals of a third State who are not also nationals of the sending State. The question arises: Can both kinds of consent, as well as the very legal requirement of consent mentioned in para. 3, be qualified as facultative acts? If so, it could be proof of an almost all-embracing nature of the notion ‘facultative act’. What’s more, as any agreement as a rule regulates the rights and duties of parties, and these rights and duties may relate to acts (in the broad meaning of the term), there is a risk of calling the first group of acts facultative and the second group as obligatory. This would be manifestly too extravagant an extension of the term, clearly not related to the presumed intentions of the authors who invented the term ‘facultative unilateral acts’. 126 https://treaties.un.org/doc/Publication/UNTS/Volume%20999/volume-999-I-14668English.pdf, accessed on 30 March 2015.

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The elimination of such elements does not pose a special problem. It suffices to say that the definition of facultative declarations is limited to declarations made by one state in the context of a given treaty, on the basis of one of its provisions and influencing the scope of rights and duties elaborated under that treaty. The problem is that all of the acts discussed in this present chapter would thus be covered. This relates to signature, ratification, accession, reservation, termination and so on. I do not wish to say that reservation or termination are possible only if provided for expressly. The problem is that when they so provided for, they unexpectedly fit the definition of facultative acts and even facultative declarations. This is why acts based on provisions such as Art.36 (2) of the icj Statute could be called ‘facultative declarations in the proper meaning of the term’. The same applies to obligatory declarations. Both could be and actually are clearly treated as acts which by definition are not true unilateral acts, while at the same time on the contrary they are treated as models of unilateral acts sensu largo. 5.11 Conclusions V.-D.Degan, summing up his analysis of acts connected with treaties, notes that they reveal the relative nature of differentiating unilateral acts from treaties.127 One can fully agree with this opinion. The analysis of acts effected on the basis of the law of treaties (or perhaps more generally, having reference to treaties) turns out to be quite a cruel test for the concept of unilateralism (understood as the unilateral character of a given act). If an assumption is made that no act connected with a treaty (or presupposed by participation in a treaty or taking steps to this effect) can be treated as autonomous, then the result of the study is predetermined at the outset. If such an apodictic assumption is not adopted, a person writing on the topic seems to be forced to make arbitrary judgments. Their value for other branches of international law, which are going to be examined in the search of unilateral acts, is rather small. The most comfortable solution for someone writing on unilateral acts of states would be to avoid the problem of their relationship with treaties. This solution is, however, unacceptable. It is difficult to overlook the fact that facultative and obligatory acts (in the proper meaning of the terms) can be seen as a clue to the complexity of the topic. Though effected unilaterally, they are not 127 V.-D. Degan, op.cit., p. 182.

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true unilateral acts. Pointing out their true nature was a great achievement of the legal theory. It was a kind of warning. According to it, the existence of unilateral facultative and obligatory acts is not an argument for the existence and binding force of true unilateral acts, in particular promise. Even if the latter is/are confirmed, it is improper to make suggestions on its/their legal effects on the basis of unilateral facultative and obligatory acts. This achievement can hardly be overestimated. However, it does not change the fact that the relationship of various acts from the field of the law of treaties to the notion of unilateral act is much more complicated. The conclusions are numerous. There are some acts which are manifestly not unilateral at all. There are some acts which could be qualified as unilateral, but only in the sensu largo dimension. With respect to some of them an attempt may be made to deny them this notion. In the first version of the present work I went so far as to apply this terminological operation to acts expressing consent for a treaty. Benefitting from five years of reflection I am no longer ready to repeat this suggestion. If the discussion of unilateral acts is a description, there is no sense to ‘improve’ the described object. On the contrary, it seems useful to point out that, for example, if a body like the ilc one day issues a general guide on unilateral acts, the chances are good that it will cover such acts as ratification of a multilateral treaty or accession to it. There are also acts with respect to which there is a possibility to search for unilateral acts sensu stricto. To this end a few conditions must be fulfilled. First, a given act must not be expressly provided for by a treaty. Second, it cannot amount to an expression of consent. Third, it would be very doubtful to use this notion with respect to acts which make it materially possible to enter into a treaty relationship. This is why I am against such a qualification of reservations or interpretative declarations. Only the termination of a treaty not provided for by its provisions could be seriously discussed in this context.

chapter 6

Unilateral Acts and Territory 6.1

Introductory Remarks

Initially I considered reserving separate chapters devoted to the search for unilateral acts of states in such areas of international law as air law, space law, the law of the sea, general rules on state territory, as well as rules on its acquisition or loss. It would be futile, however, to discuss in detail specific facultative or obligatory acts provided for in many treaties concerning the first three topics (as well as maritime law). A reference to the preceding chapter would seem sufficient. The only aspect of the law of the sea which deserves attention in the present work has to do with acts which concern the sovereignty or jurisdiction of coastal states with respect to selected maritime areas.1 These acts are similar to those dealing with the establishment of state sovereignty over land areas. Hence it seems useful to discuss them in one common chapter. 6.2

The Rules on Acquisition of Territory and Unilateral Acts of States

Acts connected with territory were mentioned by a relatively large number of authors dealing with unilateral acts.2 These acts did not escape the attention of the ilc members either. During the discussion of the first report of the special rapporteur on unilateral acts of states, Mr. Economides, an ilc member, proposed that: Certain categories of unilateral acts must be excluded from the scope of the study. One of them was unilateral acts (sic!) designed solely for domestic impact and which had no effect at the international level. Some unilateral acts that had an effect at the international level should also be excluded. Such acts were those whereby a State exercised powers conferred under international law, for example in relation to the territorial sea, the contiguous zone or the exclusive economic zone.3 1 For more on them – see: infra. 2 See: Chapter 3. 3 Summary records of the meetings of the fiftieth session, Yb.ILC, 1998, vol. i, 2524. meeting, p. 38, par. 57.

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004274617_009

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He did not explain the reasons for this suggestion. One can guess that his assumption was that the legal nature of these acts is the same as the nature of classical acts, or at least very similar to the them. In consequence, they required expressis verbis exclusion from the proposed codification. On the other hand B. Simma distinguished three categories of acts. As the ilc Yearbook summed up his position: The second category concerned unilateral acts to which international law itself attributed consequences. It covered, for instance, occupation of terra nullius, giving up territory or a negotiorum gestio. He distinguished them from unilateral acts which were deemed by the State from which they emanated to have the legal consequences desired by that State or intended to have such consequences.4 He also did not supply any special justification for his conclusion, treating it rather as self-explanatory. What is really self-explanatory is that the analyses of unilateral acts cannot take place without discussing acts connected with territory. G. Venturini is the only author known to me who refers in a complex way to acts of acquisition of sovereignty in the context of unilateral acts. He places acts of acquisition of territorial sovereignty among ‘unilateral acts sensu stricto’.5 It must be recalled, however, that he understands that notion differently than the majority of authors writing on unilateral acts of states. In particular he excludes the possibility of qualifying acts connected with territory to the most important category of ‘legal transactions of international law’. In Venturini’s opinion, two elements speak in favour of this approach.6 First of all, acts connected with the acquisition of territory are not declarations of will, but are based on material activities (actions or activités matérielles). Secondly, they are not performed by organs competent to represent states in international relations. Venturini also argues that inasmuch as such acts are not declarations of will, the problem of their validity does not emerge.7 4 Summary records of the meetings of the fiftieth session, Yb.ILC, 1998, vol. i, 2525. meeting, p. 42, par. 5; See also p. 43 par. 6. 5 G. Venturini, La portée et les effets juridiques des attitudes et des actes unilatéraux des États, rcadi, 1964-ii (t.112), p. 436ff. 6 G. Venturini, op. cit., p. 436. 7 G. Venturini, op. cit., pp. 436–437.

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These remarks are far from being obvious. Firstly, it is less than certain that acts based on material activities must be denied a priori the character of legal transactions of international law. It must be remembered that the domestic laws of many states provide for various real or material transactions (that is, transactions which require some physical element instead of or in addition to a mere declaration). One must deal with the possibility of their presence in the field of international law as well. It is difficult to insert a categorical denial of that possibility within the very definition of a unilateral act of state in international law. Similar remarks can be made with respect to the topic of the organs competent to perform unilateral acts of states in international law. It is less than certain that organs perceived as competent to represent states in international relations do not participate in transactions concerned with territory. What’s more, it is not clear why they need to participate in them directly. This is not the first nor the last area in which the chicken and egg dilemma is visible. Namely, is it so that ‘proper’ organs are determined beforehand and only their acts are to be taken into consideration, or maybe the opposite? If the latter, then unilateral transactions of international law are identified beforehand. Only then can something be said about the organs which produced them. This way of proceeding seems more appropriate to me. Last but not least, it is very difficult to accept the thesis according to which the acquisition of territory cannot be examined as to its validity.8 Both the cited remark of B. Simma, as well as the thesis of G. Venturini are based on a very specific and narrow definition of a legal transaction of international law. As was already said, this definition will not be adopted in this work. On the contrary, an attempt will be made to establish the existence of the greatest amount of acts (activities) of states, effected by them as a rule individually and giving rise to legal effects in the field of international law. There is no other choice but to check the several means of acquisition of territory one by one with respect to whether they are unilateral acts. At this point a reference must be made to two transactions connected with acquisition of territory which should be excluded from the further analyses. The first of them is cession. It will be understood as the transfer of sovereignty over a given territory from one state to another.9 It should be stressed that 8 Vide: infra. 9 P.K. Menon, The Acquisition of Territory in International Law: a Traditional Perspective, Korean Journal of Comparative Law, 1994, p. 150. J. Gilas defines it as a conventional transfer of territorial sovereignty; see: J. Gilas, Prawo międzynarodowe, Toruń 1995, p. 196. W. Góralczyk defines it as the giving up by one state of a part of its territory to another state; see: W. Góralczyk, Prawo międzynarodowe publiczne w zarysie, Warszawa, 1989, p. 190.

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cession may only result from an international agreement.10 P.K. Menon writes that: It is a bilateral transaction, whereas the modes of acquisition of territory by occupation and prescription are unilateral.11 Hence it should not be surprising that it is not necessary to include it in a work on unilateral acts of states in public international law. The second transaction which must be omitted herein is subjugation.12 Though at the time when it was legal it could perhaps have been an interesting example from the perspective of unilateral acts of states, the prohibition of the use of force has made it a historical example only.13 6.3

Is Occupation a Unilateral Act of State?

P.K. Menon’s opinion concerning the unilateral character of occupation of terra nullius has already been invoked.14 P.-M. Dupuy also speaks in this context about the ‘unilateral behaviour of the revindicating state’, though he refers to the acquiescence of other states as well.15 The latter does not change the unilateral character of occupation as such. This element seems to be obvious. 10

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W. Góralczyk, op. cit., p. 190; W. Czapliński, A. Wyrozumska, Prawo międzynarodowe publiczne. Zagadnienia systemowe, Warszawa, 2004, p. 283; J. Gilas, op. cit., p. 196; P.K. Menon, op. cit., p. 150; R. Jennings, A. Watts, Oppenheim’s International Law, ninth edition, vol. i, London, New York, 1996, p. 680. P.K. Menon, op. cit., p. 150. On the bilateral character of cession, see also: W. Czapliński, A. Wyrozumska, op. cit, p. 283. In my opinion, however, there is no obstacle for cession to be provided in a multilateral treaty. J. Gilas uses the term ‘debellatio’, see: J. Gilas, op. cit., p. 197. W. Góralczyk refers in this context jointly to subjugation and annexation, see: W. Góralczyk, op. cit., p. 193. However, the word ‘annexation’ has wider scope of application and may apply to territory acquired by the means of occupation. R. Jennings and A. Watts underline, however, that conquest not followed by annexation was not a means of acquisition of sovereignty. The combination of the two elements is called by them as subjugation. See: R. Jennings, A. Watts, op. cit., p. 699. W. Czapliński, A. Wyrozumska, op. cit., p. 290; J. Gilas, op. cit., p. 197, R. Jennings, A. Watts, op. cit., pp. 699 and 702–705. On this element see: G. Schwarzenberger, Title to Territory: Response to a Challenge, ajil, 1957, p. 314. P.-M. Dupuy, Droit international public, Paris, 2000, p. 37.

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In addition, there are no obstacles to using the term ‘act’ with respect to occupation. The arbitral award in the famous Island of Palmas case referred expressly to this element. It stated, inter alia, that: Titles of acquisition of territorial sovereignty in present-day international law are either based on an act of effective apprehension, such as occupation or conquest, or, like cession, presuppose that the ceding and the cessionary Powers or at least one of them, have the faculty of effectively disposing of the ceded territory16 (emphasis added). The icj, in its Advisory Opinion on Western Sahara, ruled as follows: (…) it was a cardinal condition of a valid “occupation” that the territory should be terra nullius – a territory belonging to no one – at the time of the act alleged to constitute the “occupation” (cf. Legal Status of Eastern Greenland, p.c.i.j., Series A/B, No. 53, pp. 44 f. and 63 f.). In the view of the Court, therefore, a determination that Western Sahara was a “terra nullius” at the time of its colonization by Spain would have been possible only if it were established that at that time the territory belonged to no one, in the sense that it was then open to acquisition through the legal process of “occupation”.17 (emphasis added). As is visible, the icj saw no problem with referring to the same phenomenon as an act and a process at one and the same time. The cited judgment in the Eastern Greenland case referred to the Norwegian declaration of occupation of Greenland. There the pcij ruled that the declaration of occupation promulgated by the Norwegian Government on July 10th, 1931, and any steps taken in this respect by that Government, constitute a violation of the existing legal situation and are accordingly unlawful and invalid.18 Hence the afore-cited views on the impossibility of treating occupation as invalid are not convincing.

16 17 18

Island of Palmas case, p. 8. i.c.j. Reports, 1975, p. 39. Eastern Greenland case, p. 75.

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It is not surprising that several authors writing on occupation define it as an act. For example, R. Jennings and A. Watts write that occupation is the act of appropriation by a state by which it intentionally acquires a sovereignty over such territory as is at the time not under the sovereignty of another state.19 It is worthwhile to note that other authors do not take a position on the character of occupation.20 For this reason the nature of that institution should be looked at in more detail. It is usually stressed that two elements must be present for the existence of occupation. According to W. Czapliński and A. Wyrozumska: For the acquisition of territory two elements are important: animus occupandi – intention or will to act as a sovereign (…) and permanent and peaceful extension and execution of sovereignty over a territory.21 Their view is a confirmation of the view of E. Vattel, who declared in 1796 that: All mankind have an equal right to the things that have not yet fallen into the possession of any one; and these things belong to the first possessor. When therefore a nation finds a country uninhabited and without a master, it may lawfully take possession of it: and after it has sufficiently made known its will in this respect it cannot be deprived of it by another. Thus navigators going on the discovery, furnished with a commission from their sovereign, and meeting with islands, or other desert countries, have taken possession of them in the name of their nation: and this title has been commonly respected, provided it was soon after followed by a real possession.22 In consequence: The law of nations then only acknowledges the property and sovereignty of a nation over uninhabited countries, of which they shall really, and in 19 20 21 22

R. Jennings, A. Watts, op. cit., p. 686. M.N. Shaw, International Law, Cambridge 2008, p. 491. W. Czapliński, A. Wyrozumska, op. cit., p. 286. M. de Vattel, The Law of Nations: or, Principles of the Law of Nature; Applied to the Conduct and Affairs of Nations and Sovereigns, New York 1796, p. 159.

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fact, take possession, in which they shall form settlements, or of which they shall make actual use.23 W. Góralczyk writes that the essence of the effectiveness of an occupation was the actual taking of a given area into power (possession), treating it as a part of its territory and the execution of sovereign power over that area.24 T.J. Lawrence uses slightly different terms with respect to constitutive elements of occupation. They are: annexation and settlement.25 Lawrence expressly defines annexation26 as an act and writes that: By the formal act of annexation the annexing state notifies its intention of henceforth regarding the annexed territory as a part of its dominions; and by the patent fact of settlement it takes actual physical possession of the territory and retains a hold upon it. The formalities accompanying annexation are not prescribed by International Law. In modern times it is usual to hoist the national flag and read a proclamation setting forth the intention of the government to take the territory in question as its own; but any ceremony of clear import done on the spot in a public manner is sufficient. It must, however, be an undoubted act of the central government speaking on behalf of the state.27

23 24 25 26

27

M. de Vattel, op. cit., p. 160. W. Góralczyk, op. cit, p. 190. T.J. Lawrence, The Principles of International Law, London, 1925, p. 149. What is outside the scope of our interest are examples of ‘annexation’ concerning territories which are not terra nullius. Among them one may cite the Indonesian annexation of Eastern Timor in 1975 and 1976 and the 2014 Russian ‘annexation’ of Crimea. It would be a mistake to limit the word ‘annexation’ to unilateral acts. This name could refer to the effect of a treaty leading to the extinction of one of the parties. A. Bergin, The AustralianIndonesian Timor Gap Maritime Boundary Agreement, International Journal of Estuarine and Coastal Law, 1990, p. 384. For an example of such a treaty, see: B.W. Morse, K.A. Hamid, American Annexation of Hawaii: an Example of the Unequal Treaty Doctrine, Connecticut Journal of International Law, 1990, pp. 407–456. The circumstances of its conclusion are more than doubtful and nowadays would lead to its invalidity. T.J. Lawrence, op. cit., p. 149.

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One can wonder whether annexation, understood in that way, is not simply an act of symbolic occupation. A very similar presentation of the conditions of occupation is made by Ch. Fenwick,28 who in particular writes that: In addition to a formal expression of the intention of a state to take possession of unappropriated territory, there must be an actual settlement upon the land if the inchoate title conferred by discovery is to be made final and definitive so as to secure the respect of other states.29 R. Jennings and A. Watts write that possession and administration are the two essential facts that constitute an effective occupation.30 Possession (or taking into possession) is deemed to encompass corpus and animus.31 The former means that a state ‘should take the territory under its sway’. Animus means ‘intention of acquiring sovereignty over it’. Jennings and Watts note that taking into possession normally involves a settlement on the territory, accompanied by some formal act which announces both that the territory has been taken possession of and that the possessor intends to keep it under its sovereignty.32 The second element of occupation – administration – means that: After having taken possession of a territory, the possessor must establish some kind of administration thereon which shows that the territory is really governed by the new possessor. If, within a reasonable time after the act of taking possession, the possessor does not establish some responsible authority which exercises governing functions, there is then no effective occupation, since in fact no sovereignty is exercised by any state over the territory.33 28 Ch. Fenwick, International Law, New York and London, 1948, pp. 345–346. 29 Ch. Fenwick, op. cit., p. 346. 30 R. Jennings, A. Watts, op. cit., p. 688. 31 R. Jennings, A. Watts, op. cit., p. 689. 32 Ibidem. 33 Ibidem.

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The next question is whether it might not be the case that occupation is connected with some acts, but is not itself an act. The fragments cited above reveal a natural tendency to use the term ‘act’ with respect to the very taking into possession of a given land and possibly other declarations and transactions surrounding it. With some simplification they may be reduced to the question of an act of symbolic occupation. This will be the object of attention in the next subchapter. However, symbolic occupation is not the only ‘act’ identified in this area. In addition to it, acts of power with respect to a given territory must be taken into consideration. They may be situated either within the field of domestic law only or within both international and domestic law. These acts are going to be discussed in one of the following subchapters. What must be asked here is whether their very presence, or in particular their multiplicity, are not an obstacle to calling occupation an act? In my opinion those elements should not be treated as such obstacles. The very possibility of dividing a given act into parts (stages, steps) is present in many acts. It is a principle of both bilateral or multilateral acts. In addition there is no obstacle to making a unilateral promise or waiver by the means of several declarations of will. It is beyond any doubt that there is a fundamental difference between promises or waivers on one hand, and occupation on the other. The latter cannot be effected by means of a verbal communiqué. What remains to be determined is whether these differences are great enough to exclude the qualification of occupation as a legal act (i.e. an international law transaction). To this end another aspect must be taken into consideration, namely the time framework of the occupation. J. Gilas writes, that already in ancient times it was accepted that land territory not belonging to any states could be appropriated by means of long-time occupation.34 One should ask how long this period should be in order for the acquisition of sovereignty to take place. In other words, the question is finding the precise time when the acquisition of sovereignty by means of occupation takes place. Leaving aside the fact that there are no longer terra nullius in existence,35 the last question is of fundamental importance from the perspective of the present work. If occupation is the result of process lasting some years or even decades, then the ability to call it an act seems very limited. Such occupation 34 35

J. Gilas, op. cit., p. 194. These rules, however still have some possible applications today. See: M.M. Dingley, Eruptions in International Law: Emerging Volcanic Islands and the Law of Territorial Acquisition, 11 Cornell Int’l L.J. 1978, p. 128 ff.

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would be very similar to acquisition by prescription. The only difference would be the status of the territory being appropriated by means of occupation on the one hand (terra nullius)36 and prescription (territory formally belonging to another state) on the other. However, if occupation does not require a long time, then calling it an act seems reasonable. There is no unanimity with regard to this question. On the one hand R. Jennings, comparing occupation and acquisition by prescription, writes that [o]ccupation can only apply to territory that is res nullius; it is in all cases lawful in origin, and the mere passage of time has no place in it, provided only that the apprehension of the territorial sovereignty is effective.37 On the other hand Ch. Fenwick writes, that [c]onsiderable time was allowed to elapse between the formal act of annexation and the actual establishment of military garrisons and colonies.38 This time is not determined unequivocally and very different lengths have been applicable in the past.39 Several other doubts are present in this area as well. They have to do with a few elements. Firstly, territory is one of the elements of statehood. That is why the generally recognized means of acquisition of territory cannot be applied to some kind of ‘territorial point of departure’ of a given state. As R. Jennings writes: It follows that when a new State is recognized by other States, the recognition includes an acknowledgement of the State’s title to its territory; for Statehood is inseparable from the notion of State territory. (…).40 36 37 38 39

40

This similarity is referred to by I. Brownlie; see I. Brownlie, Principles of Public International Law, Oxford, 1990, p. 139. R.Y. Jennings, The Acquisition of Territory in International Law, Manchester, New York, 1963, p. 23. Ch. Fenwick, op. cit., p. 346. A. Wyrozumska cites authors referring to such differing lengths as one year on one hand and 40 years on the other; see: A. Wyrozumska, Ewolucja statusu prawnego Antarktyki a państwa trzecie, Łódź 1995, p. 39. R.Y. Jennings, op. cit., p. 7. He makes the reservation, however, that it is not so that the recognition of a new state ‘necessarily commits the recognizing State with respect to

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This element influences more the scope of application of occupation than its nature. Secondly, it would be difficult to demand proof of a formal annexation and occupation from a state which, hundreds of years ago, adopted a method of slight movements to extend its control over islands, groups of rocks situated a few miles from the coast, or entered a proximate territory on the continent. These cases constitute a process similar to acquisition by prescription.41 It is worthwhile in this context to note the American position in the dispute concerning the territorial shape of British Honduras (present-day Belize). The Americans underlined that the British expansion took place largely after the 1809 treaty of alliance between Great Britain and Spain and – being encroachment rather than true conquest – was illegal.42 This view (formulated notabene at a time when subjugation was legal and acquisition by prescription only weakly founded) can have no application to the legality of encroaching on terra nullius. In fact such cases concern historical events and times during which the notions of state and territory were very different from the present ones. An equally difficult problem has to do with attempts to gain access to the acts and forms of conduct undertaken in those times. In any case the method of small steps could indicate that a given state is so strong (or so isolated) that it did not have to take into account competition or reactions on the part of other states, or so weak that it did not want to attract their attention. Besides, slow territorial expansion (especially on the continent) was more similar to subjugation than occupation. What’s more, several areas could have become the object of state activities and public acts, which could be treated as a surrogate for a formal act of annexation. D.E. Salom, while

41

42

possibly outstanding disputes concerning the precise delimitation of frontiers, or even with respect to considerable areas of territory over which title may be disputed’; vide: Ibidem. However, it is impossible to recognize a new state and claim that its entire territory belongs to another state. A good illustration here is supplied by the arguments concerning the basis of Korea’s sovereignty over Dokdo island. See: B.J. Lee, “Title to Dokdo” in International Law, Korean Journal of Comparative Law, 1974, pp. 90–94. While the author refers to proofs of Korea’s power over the island, none of them consist of acts of taking into possession. It is difficult to speak about the latter, as the first cited proof goes back to…the year 512. Some arguments of Korea are examples of exercise of power. They resemble the proofs cited in the case of Minquiers and Ecrehos. W.M. Clegern, New Light on the Belize Dispute, ajil, 1958, p. 283.

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analysing the legal situation of the Island of Wrangel, notes that the only surrogate of formal annexation on the part of Russia was the 1916 proclamation of the sector theory. When in 1921 Americans settled on the island, their colony was removed by the ussr in 1924, and this removal was not protested immediately by the usa.43 This example can prove that it requires a high level of idealization to believe that any occupation will take place on the basis of an individual act. It is a fact, however, that the usa did not decide to annex the island. It remains to be decided whether they accepted the rights of Soviet Russia/ussr or took into account its power. In any case all these elements can have only very small, if any, influence on the institution of occupation in contemporary international law. It is a great paradox that it is very precise while it has almost no chance of being applied in practice. Thirdly, a very peculiar context usually accompanies court and arbitral proceedings in disputes concerning title to territory. As a rule the task of such court or arbitrator(s) is not to identify in detail the method of acquisition of a given territory, but rather to answer the question, which of two or more adversaries is the sovereign over this territory (with due respect for the rights of other states not participating in the proceedings). It is possible that one state was formerly the sovereign, but no longer is. It may also be that it is not certain whether it ever really was such a sovereign, but even had it been one in the past, for sure it no longer is at present. It is evident that what is frustrating for authors writing on this topic is the fact that, when deciding individual cases the, courts/arbitrators have often attached equal importance to – besides the legal prerequisites of occupation – the fact whether there exist, or not, competing claims of other states.44 M. Shaw comments on the important discrepancy between theory and practice as regards the relationship between occupation and acquisition by prescription, noting that although distinct in theory, in practice these concepts are often indistinct since sovereignty over an area may lapse and give rise to doubts whether an abandonment has taken place.45 43

44 45

D.E. Salom, The United States Claim to Wrangel Island: the Dormancy Should End, California Western International Law Journal, 1981, pp. 142–145. In light of such an abundance of events, there is no wonder that the author writes that: ‘The United States and Soviet claims will then be evaluated for their strengths and weaknesses under international law.’ Ibidem, p. 145. R. Jennings, A. Watts, op. cit., p. 691, J. Symonides, op. cit., p. 114. The latter author refers to the Eastern Greenland case. M. Shaw, op. cit., p. 505.

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He notes also that most cases do not fall into such clear theoretical categories as occupation or prescription.46 Shaw invokes the approach of de Visscher, who defended the concept of ‘historical consolidation’ as a means of acquisition of territory and parts of the sea.47 This reflects ‘a complex of interests and relations resulting in the acquisition of territory.’48 The description of occupation by P.K. Menon is characteristic. According to him [a]nother requirement is that the display of sovereignty must exist up to the critical date.49 One can see a certain tendency to treat international jurisprudence as inserting some additional elements into occupation as such.50 In my opinion this is not right. What is at stake rather is whether the subsequent behaviour of a sovereign and of other states may have an influence on the status of a given territory. Thus it can be argued that occupation is extended over time, but as a rule not in such a way which would put into question the possibility of calling it an act. It is not my intention to ‘improve’ the realities. No attempt is made here to argue that any occupation effected within the last 500 years actually deserves the notion of an act. Such a proof is not a precondition of a qualification of the ‘transaction of occupation’. It is not so that the latter can be qualified as a legal act if each and every appropriation of terra nullius could be easily so qualified. That is why what is interesting here is occupation as a part of contemporary law. There is no doubt that occupation gives rise to legal effects. The main (if not the only one) is the acquisition of territory (i.e. of sovereignty over a given territory). In consequence one must confirm the presence of the three criteria indicated in chapter two: an act, its unilateral character, and the presence of its 46 47 48 49 50

M. Shaw, op. cit., p. 505. M. Shaw, op. cit., pp. 507–508. M. Shaw, op. cit., p. 507. P.K. Menon, op. cit., p. 141. M. Dingley does this in presenting the cases of Island of Palmas, Clipperton, Eastern Greenland and Minquiers and Ecrehos. See: M. Dingley, op. cit., pp. 124–128.

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legal effects. There is no possibility to deny occupation the categorization of a unilateral act (legal act, juridical act, legal transaction) of international law. Verzijl expressly calls it a ‘unilateral juridical act’.51 However, it has so many distinct characteristics, compared to classical acts, that one can to some extent understand those authors who distinguished occupation from other acts. Occupation can be accompanied by important declarations and other transactions; or more precisely they may be ‘elements’ of occupation. Hence they need to be dwelt on in more detail. 6.4

Act of Symbolic Occupation

As has been noted, the symbolic taking a territory into possession is called an act even more frequently than occupation itself.52 One can wonder whether it is not now an act of historical importance only. For example J. Gilas writes that as a piece of historical information one can say that occupation was initiated by an act of occupation.53 All the same such a conclusion as well as similar ones, can be associated with the fact that at present occupation of terra nullius is practically impossible because of the lack of any such lands. There is no doubt that if or once they emerge, the procedure to be followed is that of occupation. Thus one can say that an act of symbolic taking into possession of a territory is an element of equal historical importance as occupation itself. Hence there are no reasons for omitting the act of symbolic occupation from the present analysis. Some doubts may arise concerning what may be understood under the notion of a symbolic occupation. There is no doubt that the raising of a flag on an appropriated territory is an example of such occupation. But would a mere declaration be sufficient? In my opinion these two elements should be treated together. What is really at stake are certain words and signs connected with a 51 52

53

J.H.W. Verzijl, International Law in Historical Perspective, part. iii State Territory, Leyden 1970, p. 349. Seet: J. Spiropoulos, Traité théorique et pratique du droit international public, Paris, 1933, p. 177; F. von Liszt, Das Völkerrecht systematisch dargestellt, zwölfte Auflage bearbeitet von M. Fleischmann, Berlin, 1925, p. 136. The latter uses the term ‘symbolische Handlungen’. T.J. Lawrence writes on ‘some formal act of taking possession’ as opposed to mere discovery. See: T.J. Lawrence, op. cit., p. 147. One can only wonder if it is precisely symbolic occupation that should be such an act, or whether it would be rather minimum minimorum. J. Gilas, op. cit., p. 195.

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declaration of will to extend state sovereignty over a given area which does not belong to any state. Thus further remarks concerning symbolic occupation should be treated as applicable to verbal declarations on occupation of terra nullius as well as the raising of a flag. M. Shaw writes about the ‘symbolic act of taking possession’ and shows that it can take the shape of ‘the raising of flags or by solemn proclamations or by more sophisticated ritual expressions.’54 I. Browlie also defines symbolic annexation as a declaration or other act of sovereignty or an act of private persons, duly authorized, or subsequently ratified by a state, intended to provide unequivocal evidence of the acquisition of sovereignty over a parcel of territory or an island.55 As in the case of occupation as such, the unilateral character of symbolic occupation does not give rise to any doubts. There is also no chance to persuade anybody that symbolically taking a territory into possession is not an act. The very notion ‘act’ is broad enough that any attempt to deny it to an act of symbolic occupation would require an especially good justification. I am not ready to do so; on the contrary I have seen no argument aspiring even to present such a justification. Hence the only way to argue that symbolic occupation lies outside the scope of the present work would be to put into doubt its legal effects. One can imagine first of all an argument according to which at the first moment of effecting symbolic occupation it was done intuitively, without precise legal effects. However, a similar origin could be traced by many if not all institutions of international law. If customary international law is a result of repeated types of behaviour and common views on certain matters, one can always attempt to trace every institution of that law back to the time when it was treated as facultative and not obligatory, or when the effects of a given behaviour were not yet certain. Another possible argument would be that occupation is possible without an act of symbolic taking into possession. I. Brownlie rightly notes that there is no magic in the formal declaration of sovereignty by a government, whether or not this is preceded, accompanied by or followed by a formal ceremony in the vicinity concerned.56 54 55 56

M. Shaw, op. cit., p. 504. I. Brownlie, op. cit., p. 148. I. Brownlie, op. cit., p. 148.

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Nonetheless the legal effects of an act of symbolic occupation are not dependent upon it being compulsory for every occupation. It is sufficient to prove that it gives rise to legal effects when made. These effects require a few words of explanation, as a third possible argument could refer to them. It would say that while an act of symbolic occupation is an act, at present does not give rise to legal effects as such. In consequence it is not an international transaction. One should point out, however, that the doctrine is ready to confirm such legal effects of symbolic annexation in exceptional situations, i.e. when occupation concerns uninhabited territories.57 A passage from the arbitral award in the dispute between France and Mexico concerning Clipperton island is of particular importance here: If a territory, by virtue of the fact that it was completely uninhabited is, from the first moment when the occupying State makes its appearance there, at the absolute and undisputed disposition of that State, from that moment the taking of possession must be considered as accomplished, and the occupation is thereby complete.58 On the other hand, M. Shaw draws the conclusion that, with respect to some territories, the occupation must be a ‘little more than symbolic.’59 How should these statements be understood? Two interpretations are possible. The first would say that symbolic occupation as a rule is not a legal act (transaction), though exceptions may take place and then it must be qualified as such a transaction. The second interpretation would say that as such symbolic occupation is not in and of itself a legal act (transaction). What is an act (transaction) is occupation as such, which in some cases may be reduced to symbolic occupation only. In my opinion the first interpretation is more proper. What’s more, even if it is established that symbolic occupation does not lead to the acquisition of sovereignty that does not mean that it does not give rise to any legal effects. It seems to be clear that in a situation where one state tries to take over a territory directly after symbolic occupation is effected by another state, and before the actual establishment of a permanent administration by the latter state, the former state would be in violation of international law. I. Brownlie writes that 57 58 59

I. Brownlie, op. cit., p. 149. Cited on the basis of: P.K. Menon, op. cit., p. 140. M. Shaw, op. cit., p. 512.

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[i]t has been stated that ‘a prior State act of formal annexation cannot after a long interval prevail against an actual and continuous display of sovereignty by another State’. With respect it is thought that formal annexation creates something more than “inchoate title” and that the competitor can only succeed, if at all, on the basis of prescription or acquiescence.60 The thesis referring to inchoate title is widespread. Usually it is attributed to discovery as such. Symbolic occupation was believed to be a sufficient method of acquiring sovereignty in 16th to 18th centuries. As it is no longer so considered, it gives less than sovereignty but probably more than mere inchoate title. This element proves that there is a considerable self-sufficiency in the act of symbolic occupation. It does not go so far as to be a separate means of acquisition of territorial sovereignty,61 with the possible exception of uninhabited and inhospitable areas. However other legal effects are sufficient to qualify symbolic occupation as a legal transaction of international law. 6.5

Notification of Occupation

The next element which requires attention is notification of occupation. Authors listing it among unilateral acts sensu stricto were cited in Chapter 3. At the very beginning one must exclude the description according to which occupation as such is not a unilateral act of state, while notification of occupation is such an act. As was already said, such an attitude to a possible plurality of acts is not based on sound grounds. It is possible than an act consists of other acts or is accompanied by them. This clearly may complicate the task of a lawyer describing them, but the only possible and sound reaction is to deepen the analysis instead of artificially narrowing it by adopting an either-or principle. In the first place nobody can adopt such a principle without proof, and secondly it is completely unacceptable as regards the present case. As was done with respect to other acts discussed in this chapter, there can be no doubts as to the unilateral character of notification. There is also no doubt that it must be described as an act. One can only question whether this act produces legal effects. This question has a broader scope. Namely, it has to do with the legal effects of notification as such. It is worthwhile to recall that at the end of 19th and in 60 61

I. Brownlie, op. cit., p. 148. Leaving aside the areas which are uninhabited or hardly accessible.

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the first half of the 20th centuries the doctrine treated notification as a separate type of unilateral act. Nowadays the prevailing view is that notification cannot be treated as a type of an act.62 However, as was said in chapter 3, the very statement that notification (in general) is not a type of unilateral act does not lead to the conclusion that a given subcategory of notification (notification of a given content) can never give rise to legal effects. The basic effect of notification of a given fact is that this fact is thereafter known to the addressee of the note. One can seriously doubt whether this is really a legal effect in the technical meaning of the term. This very knowledge is rather a certain fact or circumstance. It does not mean that it must be deprived of legal importance. The legal effects however can be hardly presumed, although they cannot be a priori excluded. All the same they may be present only in the face of a concrete legal norm to that effect. In the absence of such a norm, notification is deprived of legal effects. As was said in chapter 3, one must seriously count with the diversity among different notifications as regards their legal importance. It means that one has to be prepared for the existence of notifications being and the ones not being legal transactions. In other words, the most important question in this respect is whether there is at least one legal norm of international law providing for a legal effect of notification of occupation. It must be stressed that notification of occupation became the object of attention of specialists in international law as a result of the 1885 Berlin Act. The matter which was at the very centre of discussion was whether notification is an obligatory element and condition for the validity of occupation as such. The negative opinion given to this question prevailed. So for example J. Spiropoulos, among others, writes that notification is not a general condition of validity of occupation.63 On the other hand, the provisions of the Berlin Act were binding only for the parties and only in relation to the acquisition of territory on the African coast.64 It is also emphasized that Berlin Act did not turn into customary law.65 It was abrogated by a treaty of September 10, 1919, whereby the convention of Saint-Germain did not repeat the requirement of notification, though it overtook the basic provisions of the Berlin Act.66 Therefore one must stress that notification is not a precondition of effective occupation. Hence I. Brownlie writes that 62 63 64 65 66

See: Chapter 3. J. Spiropoulos, op. cit., p. 177. J. Spiropoulos, op. cit., p. 177. F. von Liszt, op. cit., p. 136. L. le Fur, Précis de droit international public, Paris, 1939, p. 416.

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notice of a territorial claim or an intention to extend sovereignty to other governments constitutes evidence of occupation, but is not a condition for its acquisition.67 Had notification turned out to be a precondition for effective occupation, the main problem from the point of view of the present book would have been the origin of that requirement. It would be namely a treaty, that is an act which is not unilateral by definition. However, taking into consideration the above-mentioned course of events this problem does not have to be dwelt on here. However, the influence of such notifications on the resolution of possible future disputes over territory is beyond any doubt. A state which is aware of the fact that another state has declared its occupation of a given territory and does not take any measures to defend its own possible rights must count on such silence being treated as acquiescence or tacit recognition of the sovereignty of the state declaring occupation. One can argue that what is really important is the awareness of the other state(s), while it is not important what constitutes the source of that information. It could be a note or some other source. If such argument is to designed prove that the notice of occupation is not a legal (juridical) act (i.e. an act giving rise to legal effects), it cannot be accepted. The reason was already referred to when discussing the topic of symbolic occupation. In order to put into question the presence of a legal act it is not sufficient to prove that the same effect can result from other acts or even facts. It is necessary to prove that a given act as such is deprived of legal effects. One can, however, wonder seriously whether an act consisting of transmission of information has legal effects only when it is really the first source of that information. Otherwise the effects would have already been present. This argument may lead to a conclusion that, at the most, some notifications are not legal acts. It does not justify the conclusion that no notification of occupation may be a legal act. In consequence it can be said that notification of occupation is a unilateral legal transaction (act) if it is the first source of knowledge of another state about a given act of occupation.

67

I. Brownlie, op. cit., pp. 144–145; Brownlie stresses that ‘[n]otice was not regarded as necessary in the Island of Palmas or Clipperton Island cases’; see: I. Brownlie, op. cit., p. 145 footnote 24.

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Acts of Power Connected with Occupation and Unilateral Acts of States

Symbolic occupation and notification of occupation are not the only acts discussed in the context of the wider topic of occupation. The effectiveness of occupation requires an interested state to use and show its power. P.-M. Dupuy writes in this context on acts of sovereignty (actes de souveraineté);68 I. Brownlie on acts of administration;69 M. Shaw on sovereign acts.70 In light of the aim of the present work, the question is whether each or any of these acts could be qualified as a unilateral act within the meaning adopted in this work. They may embrace the establishment of administration, enactment of laws concerning a newly acquired territory, and acts of application of the law. Examples of such acts could be, e.g., an official visit by high state officials to a given territory indicating that the latter is treated as belonging to the given state. Mention must also be made of declarations made by occupying states in order to rebut a presumption of derelictio (abandonment).71 Ch. Fenwick rightly calls these acts forms of settlement, and writes that [t]he particular form which the settlement must take to keep alive the title asserted by the state was obviously in the early days a matter too dependent upon local conditions to make possible the development of a definitive rule.72 Effective power over a territory may take different forms. The very fact of their connection with domestic law does not prejudge their relationship to international law. For example, by prohibiting entry onto a given area, a state makes use of its power over this area. From the point of view of international law this is a fact of importance. It may be that a state uses its domestic norms to this end, or it may be the other way round – that domestic provisions are missing or may even be broken by state organs. Thus any attempt to throw all elements which are ‘uncomfortable’ for a specialist of international law into the sphere of domestic law must be undertaken very cautiously. 68 69 70 71

72

P.-M. Dupuy, op. cit., 2000, p. 35. I. Brownlie, op. cit., p. 138. M. Shaw, op. cit., p. 507. With respect to such a declaration left by the British on the Falkland Islands in 1774., see: J.M. Lindsey, Conquest: A Legal and Historical Analysis of the Root of United Kingdom Title in the Falkland Islands, Texas International Law Journal, 1983, p. 19. Ch. Fenwick, op. cit., p. 346.

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It may also be that some of these activities take the form of bilateral acts. A given state may show its sovereignty over an area by concluding treaties with neighbours concerning the given territory. One should be careful not to presume that acts of sovereignty over a given area must be unilateral acts or acts similar to them. As in any other area, bilateral and multilateral acts may emerge. For the reasons already referred to, these latter types of acts are outside the scope of interest of the present work. I can see no possibility to deny the notion of acts to these behaviours, but in this area the choice of basic terms is important. Even though there can be no particular hesitation to call these elements acts, the same cannot be said about the term ‘transaction’. As has been said, the basic term chosen in the present work is ‘an act’. There is also no problem to designate as unilateral those acts which are not bilateral or multilateral. What remains to be determined is the legal character of these acts, i.e. whether they give rise to legal effects in the sphere of international law. It seems undeniable that, had these acts and activities been deprived of any legal importance, they would have had no influence upon the acquisition of sovereignty by means of occupation. Inasmuch as they have had this influence, prima facie it cannot be denied that they have an effect. In this area the importance of the choice of definition of a unilateral legal act in international law becomes visible. The choice of a narrow definition of a unilateral act73 would evidently throw such acts outside the scope of the present book. As is known, this definition puts emphasis on the act being oriented toward achieving a given effect and the effect being in concordance with the intention of the acting state. As has been said, I am not ready to adopt this narrow definition. There is nothing in the notion ‘unilateral legal act’ that would oblige us to understand it in such a narrow way. Any legal effect would be sufficient for confirmation of the presence of a legal act. All the same the question of legal effects is more problematic and requires more attention. Let us imagine that a given state administers some territories by, inter alia, issuing construction permits (permission to construct a building). The same legal provision may be applied in three situations. The first concerns an area within the power of a given state since its emergence (some 1000 years ago). The second may concern an area acquired by means of occupation, while the third may concern an area believed to be the subject of acquisition by prescription. Can it be said that as regards the first situation the aim of the state activity is the management of space, but as regards the remaining two the 73

Vide: Chapter 2.

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aim is the acquisition of sovereignty? One can hardly avoid the feeling that if it were not for the peculiar status of a territory, nobody would even think about associating international law with construction permits. What’s more, as M. Shaw rightly notes the majority of disputes concerning territory have to do with sovereign acts effected by more than one state.74 In consequence it can be hardly assumed that a single act leads to the acquisition of sovereignty. Such acts may take place in different contexts and in different places. If, for example, a warship stops a civil seagoing vessel on the high sea a similar display of power takes place. It does not lead to acquisition of sovereignty, however. This lack of self-sufficiency leads to the conclusion that it cannot be said that every and each sovereign act or act of power is a legal act in the meaning adopted in this work. If they are to be assessed as a group, the most proper description in my opinion is to look at them as elements of an act of occupation of terra nullius or of prescription. 6.7

Prescription and Unilateral Acts of States

The next topic which must be referred to is whether acquisitive prescription is a unilateral act in the meaning adopted in the present work. Before an attempt is made to answer this question, it must be examined whether such prescription has any locus standi in international law. In several works on international law75 it was neither expressly mentioned nor expressly excluded, although F. von Liszt denies that acquisition by prescription is a means of acquisition of sovereignty.76 In fact, the denial of acquisition by prescription in general would not only mean the denial of the entire case-law of international courts and arbitrators,77 but above all the rehabilitation of titles to territory from hundreds or even thousands of years ago, or at least the necessity to search for other grounds to deny those titles. Maybe those other grounds and justifications would have been better, but it is not the task of the present monograph to decide on that. 74 75 76 77

M. Shaw, op. cit., p. 510. Some manuals are silent on prescription when discussing means of acquisition of territory. See: W. Góralczyk, op. cit., p. 188. F. von Liszt, op. cit., p. 137. Ch. Fenwick attributes this view to F. von Martens and E. von Ullmann. See: Ch. Fenwick, op. cit., p. 356, footnote 69. For a survey of this jurisprudence, see: Y.Z. Blum, Historic Titles in International Law, the Hague, 1965, pp. 20–29. This survey covers the Eastern Greenland and Norwegian fisheries cases.

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It seems more realistic and practical to assume the presence of the institution of acquisitive prescription in positive international law and attempt to answer the question whether it is a unilateral transaction of international law. In order to grasp the ontological nature of acquisition by prescription it is worthwhile to look at some definitions thereof presented in the legal literature. R. Jennings and A. Watts define prescription as the acquisition of sovereignty over a territory through continuous and undisturbed exercise of sovereignty over it during such a period as is necessary to create, under the influence of historical development, the general conviction that the present condition of things is in conformity with international order.78 Ch. Fenwick writes that prescription in international law may be defined as the acquisition of territory by an adverse holding continued through a long term of years.79 W. Czapliński and A. Wyrozumska define acquisition by prescription as an institution creating good title to territory based on effective exercise of control over a territory of another state.80 The conditions for it are the lapse of time (not precisely determined) and lack of protest of the former sovereign.81 Turning to the ontological status of acquisition by prescription, it must be described as an effect in the form of acquisition of sovereignty. This effect is attributed to certain activities, however. It is the activities rather than the effects as such that must be examined from the perspective of unilateral acts of states in public international law.

78

R. Jennings, A. Watts, op. cit., p. 706. This definition may be criticised. It refers to sovereignty twice – once as the object to be acquired as a result of acquisition by prescription, and secondly – to the object of execution. In fact this has more to do with the fact that the word ‘sovereignty’ has more than one meaning. Exercise of sovereignty may be understood as behaviour typical for a true sovereign. 79 Ch. Fenwick, op. cit, p. 356. 80 W. Czaplinski and A. Wyrozumska, op. cit, p. 289. 81 Ibidem.

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These activities consist of exercising power (sovereignty) over a certain territory. There is little wonder that prescription is compared to occupation.82 Such comparisons take account of some differences, but pay attention at similarities as well. For example Ch. Fenwick writes that a new sovereign may be unaware of the title of the predecessor and effect acquisition by prescription in good faith. It may effect it in bad faith as well however, but [i]n both cases the good title is acquired on the ground of a presumed abandonment of the territory by the original owner, so that the rules relating to prescription are closely related to those governing “occupation”.83 R. Jennings refers to these differences and then concludes that: (…) it is also true that occupation and prescription have much in common. They are both ultimate rationalisations of existing effective possession and control. Moreover, the differences between them must frequently be blurred when they are seen in the context of facts and allegations of a particular case, and for the purposes of decisions in a particular case, the result may be the same whether an existing and established sovereignty was originally grounded in an occupation, or has developed by reason of immemorial possession or an adverse possession. It is not surprising, therefore, if tribunals do not always indicate very clearly on which ground they are proceeding.84 This fact, however, may be of less importance than it may seem at first glance. It has been emphasized several times that the same effect may result from different acts or facts. The identity of result does not invalidate the differences among the acts or facts. For this reason the differences between occupation and prescription must be emphasized. Firstly, prescription assumes the fact of holding power over a given territory for a longer time. As was said, this element puts into question the very possibility of speaking about a single act. An intuitive understanding of this notion assumes a conciseness in time of the elements of what is called an ‘act’. If this time is spread over 70 or 100 years, it is difficult to speak about an act. On the contrary, it is rather an entire process.85 82 Ibidem. 83 Ch. Fenwick op. cit., p. 356. 84 R.Y. Jennings, op. cit., p. 23. 85 The term ‘historical consolidation’ used by the icj in the Norwegian fisheries case is very pertinent here. The same applies to the remark of G. Schwarzenberger calling it as a ‘process’, see: G. Schwarzenberger, op. cit., p. 311.

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There is no doubt however that its composite components are acts of sovereignty (sovereign acts), as discussed before. They are a proof of sovereignty – both by occupation, as well as by prescription. The only difference in my opinion is that these acts together form an act by occupation, while they form something that is not an act in the case of acquisition by prescription. The qualification of sovereign acts as such was made earlier. According to it, such acts are not transactions or even legal acts in the meaning adopted in the present work, as it is impossible to attribute legal effects to any such acts considered separately. One must however hesitate to accept that conclusion. On the contrary, if one compares acts of states with acts of men one can probably count on the argument that, just as the criminal laws of many states provide for a permanent crime (permanent criminal act), so too state activities extended over time can be treated as one act. There is no doubt that a certain extension is possible. If however one proposes to treat entire processes lasting 100 years or more as acts, then why not treat as an act the creation of a new customary norm lasting 1000 years? The notion of ‘act’ is wide and flexible, but in my opinion it has to have limits. The most important of them is the one taken from common sense. It is a second property of acquisition by prescription that influences its definitive qualification. This concerns namely the behaviour of other states, and in particular the former sovereign of a given territory. As a consequence, acquisition by prescription is the effect of an entire set of circumstances. Only a part of them is formed by the sovereign acts of the acquiring state; the remainder are the acceptance, or at least acquiescence, of other states. As a consequence neither prescription as a legal concept nor its factual grounds can be reduced to the activity (course of conduct) of one state. Hence there can be no doubt that acquisition by prescription is neither itself a unilateral legal act (transaction) nor the result of such an act. This qualification is descriptive only. It has no practical consequences. Nothing is taken from the nature of prescription if it is denied the nature of a legal act. A positive qualification would give it nothing extra, either. 6.8

Accretion and Unilateral Acts of States

Accretion as a means of acquisition of territory could be viewed as the result of natural event and omitted in the present work. Such an approach, however, would be the result of a simplified picture of accretion as a legal institution. It is rightly pointed out that

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state territory may be enlarged by the means of construction of ports, breakwaters, dams or drainage of parts of maritime areas.86 In such a situation it is human activity which brings about territorial change. One can wonder whether this fact is sufficient to call such activities acts of states, and if so – whether they are legal acts of international law. Territorial changes of the kind discussed here may be results of activities of a given state or private persons – both human beings and legal persons. There are no special reasons to deny the former the qualification of acts of a given state, while such a qualification with respect to the activities of individuals and legal entities is more difficult. It may be however that such changes are subject to the consent of a given state. A consent is clearly an act of a state, however difficult it may be to attribute to it automatic effects in the field of territorial sovereignty. It may happen that a consent has been given but no works are effected and consequently no territorial modifications are in place, while on the other hand works effected by private persons could hardly be attributed to a state. The number of thorny issues is much bigger. One can imagine that one state takes advantage of changes of a coastline while another state does not. The former would modify its baselines, the latter would not. It may also be that the changes are so small that they do not justify modifications of the baselines on a map of a given scale, or that a given state does not determine its baselines at all. If such a state decides to introduce them, what is in place is rather an act (transaction) of establishment of new maritime areas rather than accretion. One cannot exclude, however, a situation whereby a modification of a coastline will be treated as a modification of a baseline without the need for any additional statement of a state. One can conclude that certain cases of accretion are acts of international law effected by states, and here I mean the change of a coastline effected by a state and connected with modification of baselines. Other cases of modifications of a coastline may justify state acts on changes of baselines, even if the changes of the coast were not effected by the state. The former (that is the changes of baselines) can be rightly qualified as state acts, even though the changes of the coast(s) as such do not have this character. If the changes do not need and are not accompanied by state acts, one must conclude that any territorial changes which take place are not because of any state act. 86

W. Góralczyk, op. cit., p. 190.

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Derelictio and Unilateral Acts of States

Qualification of occupation as a unilateral act in public international law in effect prejudges the same conclusion as regards the inverse of occupation, namely waiver of sovereignty by means of derelictio. The latter may be seen as a qualified type of waiver and discussed together with it. That is how this topic was approached by the author of the first monograph of unilateral acts.87 Derelictio is defined as an abandonment of territory.88 It is effected by a  hitherto territorial sovereign. It is beyond any doubt an act of a state. It has a very precisely defined effect, namely that an abandoned territory becomes a terra nullius and may be acquired by any other state by the means of occupation. In the light of the award on Clipperton island, derelictio cannot be presumed.89 A precise intention is necessary. Derelictio is a so-called ‘real act’. A mere declaration would not be sufficient for derelictio. Actual leaving of the territory is necessary. One can wonder how to treat a declaration on waiver of a territory not accompanied by its actual leaving. In my opinion no waiver would be in place. It is difficult to speak about a breach of an international obligation, unless a state really obliged itself to effect a derelictio. However, it is difficult to argue that a mere declaration of waiver of a territory gives other states any claims to the given territory. Such claims would clearly not be stronger than the right of the hitherto sovereign to remain on it as long as it seemed convenient. 6.10

Delimitation and Demarcation and Unilateral Acts of States

Delimitation and demarcation are as a rule effected by the means (or on the basis) of instruments which are not unilateral. These are treaties and international judgments (as regards delimitation) and acts of mixed demarcation commissions (as concerns demarcation).90 For obvious reasons these elements are not within the scope of interest of the present work. The only question which is interesting in this context is whether it is possible for a state to effect delimitation or demarcation by means of a unilateral act of international law. 87 88 89 90

F. Pfluger, op. cit. See also: W. Czapliński, A. Wyrozumska, op. cit., p. 226. I. Brownlie, op. cit., p. 145. On the terminology used, see: R. Jennings, A. Watts, op. cit., p. 662.

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The absence of a bilateral delimitation may induce a state to determine for itself the scope of its territorial power. One can however seriously question whether such a unilateral determination could be rightly called a delimitation. What could be at stake could be the production by one state (without any participation or agreement of another neighbouring state) of its official map indicating a boundary which is not the object of any treaty or is determined by such a treaty in a general or ambiguous way. It is certain that a unilateral determination of this kind could not as such create obligations for other states. However, as regards poorly populated areas or areas inhabited by migrating people, the drawing of a line on an official map could be the main point of reference to determine the boundary if a dispute in this area emerges and is presented for decision to an independent judge or arbitrator. Hence a lack of reaction of one state to an official map made by another state and indicating the course of a boundary between them may weaken the legal position of the non-reacting state. However, it would not be possible to speak about an automatic effect stemming from a unilateral delimitation (in other words – the presentation of such a line on an official map). This automatic effect is as a rule a precondition of an act of international law. What is at stake in such situations is the interplay of the level of interest in a territory by two states. One is making a claim, while the other may be expected to recognize or acquiesce in that claim, or not. While these elements are of interest and relevant from the legal point of view, this does not change the production of a map into a transaction of international law automatically giving rise to legal effects. Demarcation (real determination of a boundary-line on the spot) gives rise to an analogous question, namely whether – despite it being as a rule a bilateral or multilateral act (or an object or effect of such acts) – it may, however rarely, be a unilateral act. In practice one could ask whether a unilateral erection of physical indications of a boundary, barriers, fences and so on by one state is a legal transaction of international law. Beyond any doubt such activities could be qualified as sovereign acts in the meaning presented above, but they do not lead automatically to new obligations of other states. However they may have influence on the consolidation of title of a given state to a territory closed off by such barriers or other indications. A much more difficult question is whether such unilateral delimitation or demarcation can be a source of obligations for its author, in the sense that it could be treated as a waiver of areas which were not included into its ‘own’ territory. At the first sight a positive answer to this would seem proper. Upon further examination, however, it is not so obvious. There is no presumption of limitations of rights in international law and in particular there is no presumption of waiver. If however

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a state does not treat a certain area as belonging to itself, it weakens its legal position. The definitive decision (if any) will depend on the comparison of the level of activity of a given state on a given territory with the level of activity of its neighbour. In particular it must be stressed that neither the presentation of a boundary on a map nor the introduction of controls, barriers, fences and so on at a given line must be treated as waiver of areas lying outside that line. An automatic adoption of a contrary conclusion would create an incentive for making excessive claims. A state which indicated a boundary on a map may, after some time, argue that it acted in error. Similarly a state which erected barriers may argue that they were put on its own territory and not on the boundary. Of course, if a state expressis verbis declares that a certain shape of a line indicated on a map or of marks on land (or water) is a definitive shape of its boundary, then one may speak of a waiver of claims to areas lying on the other side of such a line. In consequence, leaving aside a situation in which they amount to waiver, both a unilateral delimitation as well as demarcation in the above-presented meaning are not transactions of international law. One cannot exclude that in some situations they may give rise to legal effects, but in this respect their situation is comparable to one of other sovereign acts connected with power over territory. 6.11

The Law of the Sea and Unilateral Acts of States

The present subchapter is aimed at examining the relationship of acts creating several maritime areas to unilateral acts. In fact all maritime areas are of interest here with the exception of high seas, as the latter ex lege extend over the boundaries of areas under the jurisdiction of coastal states. The area of the continental shelf is of interest here. In principle, the only matter which needs to be discussed is whether the establishment of any maritime area or of a continental shelf is a unilateral legal act. What is at stake are acts of establishment of internal waters, archipelago waters, territorial seas, contiguous zones, zones of exclusive fisheries, exclusive economic zones and continental shelves. For reasons of simplicity they will be referred to collectively as maritime areas or simply areas. The first problem which must be considered is whether a given area needs establishment for its existence. Doubts as to that necessity concern first of all territorial seas. In the dispute between the uk and Norway on fisheries, Judge A. McNair issued a dissenting opinion, in which he wrote as follows: To every State whose land territory is at any place washed by the sea, international law attaches a corresponding portion of maritime territory consisting

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of what the law calls territorial waters (and in some cases national waters in addition). International law does not say to a State: “You are entitled to claim territorial waters if you want them.” No maritime State can refuse them. International law imposes upon a maritime State certain obligations and confers upon it certain rights arising out of the sovereignty which it exercises over its maritime territory. The possession of this territory is not optional, not dependent upon the will of the State, but compulsory.91 R. Jennings and A. Watts cite this position without commenting on it. One can hardly avoid the impression that they agree with it, especially with the thesis on the existence of obligations of a coastal state on its territorial sea. That is why they emphasize the obligation of the coastal state to give appropriate publicity to any dangers to navigation, of which it has knowledge within its territorial sea.92 This topic did not attract special interest in the doctrine. In particular the doctrine is not ready to put it in an ‘either – or’ context. Hence W. Góralczyk, for example, writes on territorial sea mainly in the context of its establishment by a given coastal state, at the same time referring to the reaction of other states. The latter can either protest or recognize (acquiesce in) these claims.93 One must be aware, however, that these words were written at a time of a fundamental change of law, or more precisely the actual collapse of the hitherto law of the sea. What’s more, it was less than clear that those norms were already formed. One could have counted on numerous provisions of the un Convention on the Law of the Sea (the 1982 Montego Bay Convention, or in abbreviation unclos) becoming outdated, as well as several norms of the 1958 Geneva conventions. Nevertheless the presence of the unclos gives present-day writers an undeserved advantage over their predecessors who described the law of the sea 20–30 years ago. Interestingly enough, the unclos several times uses the word ‘establishment’ with respect to several maritime areas. For example Art. 3 unclos provides that: Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention. 91 92 93

i.c.j. Reports, 1951, p. 160. R. Jennings, A. Watts, op. cit., p. 615. W. Góralczyk, op. cit., pp. 219–220.

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Differentiation between the words ‘establish’ and ‘determine’ probably has no great significance, as Art. 8 unclos uses the terms ‘the establishment of a straight baseline’. It is in the latter context that the unclos uses the terms ‘establishment’ or ‘drawing’, e.g. Art. 47 (1) unclos provides that: An archipelagic State may draw straight archipelagic baselines. In contrast, the unclos does not use the term ‘establishment of contiguous zone’. Art. 33 unclos – the only provision of the convention dealing with it – indicates what kinds of activities a coastal state may take ‘[i]n a zone contiguous to its territorial sea, described as the contiguous zone’. Similarly, the unclos only defines exclusive economic zone (Art. 55 unclos), the rights of the coastal state in it (Art. 56 unclos) and its width (Art. 57 unclos). In contrast, provisions dealing with shelf refer to the establishment of certain elements, but only in relation to the shelf extending outside 200 nm from the baselines. So Art. 76 (4) unclos provides: For the purposes of this Convention, the coastal State shall establish the outer edge of the continental margin wherever the margin extends beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured, (…). Art. 76 (7) provides that: The coastal State shall delineate the outer limits of its continental shelf, where that shelf extends beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured, by straight lines not exceeding 60 nautical miles in length, connecting fixed points, defined by coordinates of latitude and longitude. M.S. McDougal and W.T. Burke, in their epoch work written after the 1958 codification of the law of the sea, adopted a peculiar perspective when describing several maritime areas. At the beginning of their work they present the law of the sea as the result of the clashing of claims of coastal states and interests of the entire international community.94 It is no wonder that the authors write on claims to internal waters, to territorial sea, to a given boundary between internal waters and territorial sea; claims to determine the width of territorial sea, 94

M.S. McDougal, W.T. Burke, The Public Order of the Oceans. A Contemporary International Law of the Sea, New Haven, London, 1962, pp. 1–2.

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to exercise sovereignty on the high sea adjacent to territorial sea, and to common use of and competences on the high sea.95 The same perspective could be traced in the statement made by France during the works on the conventions of the law of the sea (signed in Geneva in 1958), according to which a state may claim (prétendre), that it established 12-mile territorial sea, but this determination has no effect erga omnes and does not create international law.96 One can only wonder, whether such ‘claims’ could be compared to claims for damages or claims for recovery of an object. There is no doubt that in practice states determine their respective territorial seas, in particular their baselines and width. There are no special obstacles to calling such an establishment (determination) an act. That is how it was referred to by the icj in the case of the fisheries dispute between the uk v. Norway, in which it ruled as follows: The delimitation of sea areas has always an international aspect; it cannot be dependent merely upon the will of the coastal State as expressed in its municipal law. Although it is true that the act of delimitation is necessarily a unilateral act, because only the coastal State is competent to undertake it, the validity of the delimitation with regard to other States depends upon international law.97 In this context ‘delimitation’ was understood as determination of the external edge of a territorial sea.98 As is visible, the cited judgment refers at the same time to domestic law and to a unilateral act. Usually there is no doubt as regards the unilateral character of establishment by a given state of a given maritime area. The fact of its being couched in an act of domestic law cannot be treated as a reason to automatically exclude it from the scope of the present work. The only remaining question is whether it deserves the notion of a legal act (legal transaction). In order to give a positive answer to this question, it is necessary to identify at least one legal effect in the sphere of international law. In my opinion, it is not difficult to find such an effect. What precisely results from the establishment of a certain area? There is no doubt that a state which has established a 3-mile territorial sea cannot 95 96 97 98

M.S. McDougal, W.T. Burke, op. cit., pp. 29–35. A.-Ch. Kiss, Les actes unilatéraux dans la pratique française du droit international, rgdip, 1961, pp. 318–319. i.c.j. Reports, 1951, p. 132. W. Góralczyk, op. cit., p. 220.

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behave as if its territorial sea reached 4 or 5 miles from the baseline. This has an influence on both its rights as well as its obligations. The establishment of an area of a given width means that the latter is opposable not only to other states (if in conformity with international law), but also to the author-state. These remarks are made on the assumption that states have territorial seas without the necessity of their establishment. In contrast, other maritime areas do not come into existence if not established. For this reason a state may only claim rights connected with a contiguous zone, exclusive economic zone or zone of exclusive fisheries after they have been established. At the same time one cannot expect that such an establishment, once effected, will be kept intact for hundreds of years. A state which has established a 3-mile territorial sea may extend it to 12 nautical miles – at one time or in stages. This remark applies to acts of establishment of other maritime areas and shelf. Special difficulties are connected with the establishment of the legal status of events leading a given state to obtain rights to historical waters. V.K. Johnston refers to the term ‘occupation’ to justify the sovereignty of a coastal state to such waters.99 In fact however, it more resembles acquisition by prescription because of the requirement of exercising state power over certain waters for a long period.100 This similarity has its limits, as prescription could be used to acquire the land of another state, which does not apply to historical waters. It is a fact that as a rule states effect such transactions by the means of adoption of domestic acts (statutes or regulations). It is difficult to argue, however, that this is a strict requirement of international law. The latter is not formalistic. This is why it would be impossible to prove that international law makes the establishment of maritime areas dependent on the adoption of a given domestic provision. It is rather domestic law that is decisive in this respect. It usually adopts a relatively narrow set of legal sources. Lack of such acts on the establishment of a given area may mean that, for example, no domestic laws would be applied with respect to a given area. It goes without saying that the technicalities of domestic law as such are not and cannot be decisive in a monograph of unilateral acts of states in international law.

99 V.K. Johnston, Canada’s Title to Hudson Bay and Hudson Strait, 15 BYbIL 1934, p. 20. 100 As regards Hudson Bay, Canada could have invoked the power exercised by the Hudson Bay Company since 1670; the rights of the latter were ceded to the British Crown and the latter ceded them to Canada. See: V.K. Johnston, op. cit., p. 5 et. seq.

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6.12 Conclusions In conclusion it can be said that the following acts concerning territory could be qualified as legal acts of international law: – – – – –

occupation of terra nullius, derelictio, symbolic occupation, notification on occupation (in some cases), establishment of maritime areas.

In addition, some similarity to acts of international law can be seen in certain forms of exercising power over territory. However, they will not be qualified as such legal acts as it is impossible to attribute legal effects to each and every such act treated in isolation.

chapter 7

Norms of International Law Dealing with Possible Unilateral Acts of States Pertaining to Individuals 7.1

Introductory Remarks

Almost every manual of international law contains a chapter (some longer, some shorter) on individuals.1 It is difficult to speak in this respect about a fully developed branch of public international law. What is at stake is rather a set of topics comprising nationality and statelessness, the problem of refugees, treatment of foreigners, asylum, extradition, and human rights. In fact only the latter deserve the notion of a separate subsection of international law; the rest are at most groups of norms of international law, or even just problems which must be resolved within the doctrine of public international law. All the same it seems worthwhile to examine the possibility of finding unilateral transactions of international law in this area. Discussions on these problems refer to treaty norms (and as such are outside the scope of this work), customary norms, norms of domestic law, or just certain actions and behaviours of states. What is of utmost importance is the relationship between unilateral acts of states in public international law and acts of domestic law. This may be seen as fragment of the problem of the relationship between domestic law and international law generally. In particular, references to domestic law in this chapter are connected with nationality.2 This aspect differentiates the problems discussed in the present chapter from the ones dwelt on in the remaining chapters of Part 2. At the outset it should be noted that there is no problem with choosing ‘candidates’ for unilateral acts in this context. The doctrine refers expressly to several types of transactions and activities of states, such as the issuance of a visa, granting of asylum or deportation. The problems which may arise are not connected with the unilateral character of these transactions, but rather with their effects in the field of international law. 1 Vide: infra. 2 M.N. Shaw puts it as follows: ‘Since the concept of nationality provides the link between the individual and the benefits of international law, it is worth pointing to some of the basic ideas associated with the concept, particularly with regard to its acquisition’, M.N. Shaw, International Law, Cambridge 2008, p. 661. © koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004274617_010

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Hence it seems logical to start the analyses with several problems connected with nationality. 7.2

Nationality and Unilateral Acts of States

7.2.1 Nationality in the Literature on Unilateral Acts of States There are no acts connected with nationality in the classical catalogue of unilateral acts. Authors who go beyond the classical catalogue insert some such acts into their lists, or at least point out the similarity of some acts connected with nationality to unilateral acts in the proper meaning of the term.3 In the Polish legal literature W. Góralczyk distinguishes a category of acts which are at the same time internal/domestic and international in character. They include ‘acts concerning the nationality of men (human beings), vessels, aircraft and so on’.4 He does not clarify their relationship to unilateral acts. W. Czapliński and A. Wyrozumska go further.5 According to them, determination of the rules on acquisition of nationality of a given state constitutes one of the so-called mixed acts. They have the character of internal and international law at the same time. They are discretionary acts of states resulting from their sovereignty; these acts are tolerated (or allowed) by international law. Their effectiveness in international law depends on whether they are in conformity with the rules of that law.6 According to Czapliński and Wyrozumska, mixed acts form one of the subcategories of unilateral acts sensu largo. Also P.-M. Dupuy distinguishes a group of acts connected with the execution of sovereign rights as a subcategory of unilateral acts,7 namely ‘unilateral acts performed by a state in its domestic law to use powers attributed to it by international law.’8 Among those acts Dupuy lists the granting (l’attribution) of nationality.9 3 See: Chapter 3. 4 W. Góralczyk, Prawo międzynarodowe publiczne w zarysie, Warszawa 1989, p. 168. 5 W. Czapliński, A. Wyrozumska, Prawo międzynarodowe publiczne. Zagadnienia systemowe, Warszawa 2004, p. 116. 6 W. Czapliński, A. Wyrozumska, op. cit., p. 116. 7 P.-M. Dupuy, Droit international public, Paris, 1993, p. 250. 8 P.-M. Dupuy, op. cit., p. 252. 9 P.-M. Dupuy, op. cit., p. 252.

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Before undertaking a more detailed analysis of this topic one must take a closer look at the legal nature of nationality. 7.2.2 Legal Nature of Nationality It is beyond any doubt that nationality as such is not an act. Defining it is very difficult, however. M. Shaw writes that there is no coherent, accepted definition of nationality in international law, only conflicting descriptions under the different municipal laws of states.10 Even defining it on the basis of the domestic law of a given state may be extremely difficult.11 This does not mean, however, that international law doctrine does not attempt to create such definitions. W. Ramus writes that the dispute in this area is of a theoretical character. The task is to decide whether nationality is a legal bond between an individual and a given state, a legal status or characteristic of an individual, or one of the elements of this legal status.12 In the work of R. Jennings and A. Watts one finds a definition presenting nationality as a certain property (characteristic) of an individual. They write that the nationality of an individual is his quality of being a subject of a certain state.13 In the famous Nottebohm judgment the icj ruled as follows: (…) According to the practice of States, to arbitral and judicial decisions and to the opinions of writers, nationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties.14 10 11 12 13 14

M. Shaw, International Law, Cambridge 2008, p. 660. W. Ramus, Pojęcie obywatelstwa, Państwo i Prawo, nr 6/1977, p. 36. W. Ramus, op. cit., p. 40. R. Jennings, A.Watts, Oppenheim’s International Law, ninth edition, vol. i, London, New York 1996, p. 851. Nottebohm Case (second phase), i.c.j. Reports 1955, p. 23.

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This special bond leads to the duty of loyalty to this state and its personal jurisdiction.15 It is not my task in this chapter to present and defend the perfect definition of nationality. What is of decisive importance from the perspective of a monograph on unilateral acts, however, is to resolve the dilemma whether nationality is an institution of domestic law or international law. There are divergent views on this topic in the doctrine. W. Czapliński divides them into three main groups of views and their proponents.16 The first group consists of authors, one of whom is A. Makarov,17 for whom nationality is exclusively an institution of domestic law. The authors belonging to the second group believe that nationality is an institution of international law. This view is defended by, inter alia, W. Wengler.18 The third – and prevailing – view points out the dualistic character of nationality. This view is expressed by A. Verdross19 and P.-M. Dupuy.20 W. Czapliński writes that one should agree with the description according to which nationality is an institution of the domestic law of the several states, having notwithstanding some effects of an international character.21 The view on the domestic nature of nationality was presented in an even stronger form in the work of Czapliński and A. Wyrozumska. They write that nationality is an institution of domestic law of the several states (…) genetically connected with a state. This means that nationality emerges when a state comes into existence and is not dependent upon the adoption of a law on nationality; the collapse of a state means that its nationality becomes extinct as well.22 Interestingly enough, these remarks coexist with the above-cited ones pointing out the mixed nature of the norms dealing with nationality. Hence it is 15 16 17 18 19 20 21 22

W. Góralczyk, op. cit., p. 260. P.-M. Dupuy, op. cit., p. 51. W. Czapliński, Obywatelstwo w procesie normalizacji stosunków rfn-prl i rfn-nrd, Poznań 1990, pp. 14–15. W. Czapliński, op. cit., p. 15, footnote 1. W. Wengler, Betrachtungen zum Begriff der Staatsangehörigkeit, w: Festschrift für W. Schätzel, 1960, p. 547, citation on the basis of: W. Czapliński, op. cit., p. 15. W. Czapliński, op. cit., p. 15, footnote 4. P.-M. Dupuy, op. cit., p. 51. W. Czapliński, op. cit., p. 16. W. Czapliński, A. Wyrozumska, op. cit., pp. 189–190.

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difficult to make precise conclusions on the basis of statements with such a high level of abstraction. The monograph of E. Suy also refers to nationality. According to him, the grant of nationality is not a unilateral act of international law (understood as acte juridique, that is as a legal transaction), but an act of domestic law only. However, by its nature it affects international relations.23 In fact, Suy uses a very narrow definition of unilateral acts in international law which, as has been said, will not be adopted in this book. Thus it seems useful to check if one can find any acts (activities, transactions etc.) connected with nationality which are at least similar to the acts discussed in the present work. 7.2.3 Legal Effects of Acts Connected with the Acquisition of Nationality If nationality as such (the fact of an individual having a given nationality) in not an act, then attention must be paid to all forms of activities of states, or even events, giving rise to visible effects in the sphere of nationality. There is no doubt that the most notable event from this perspective is the acquisition of nationality by an individual, hence one must look in more detail at the modes of acquisition of nationality. They are divided into two groups: primary and secondary.24 Primary acquisition of nationality applies to persons who become nationals of a given state at the moment of its coming into existence,25 while secondary acquisition applies to persons who become nationals during the time of existence of a given state.26 Several authors indicate several modes of the latter type of acquisition. For example, W. Góralczyk lists in this context: birth, naturalization, marriage of a women with a national of a given state, adoption, option and repatriation.27 R. Jennings and A. Watts mention in this context: birth, naturalization, redintegration, annexation and cession.28 It is not my goal to work out a perfect set of modes of acquisition. In fact it would be a kind of mission impossible inasmuch as those modes differ from one state to another.29 What is important here is to assess which elements listed above, or elements similar to them, could be called acts. It is worthwhile to invoke here another passage from the famous Nottebohm judgment of the icj. It stated that: 23 24 25 26 27 28 29

E. Suy, Les actes juridiques unilatéraux en droit international public, Paris 1962, p. 24. W. Czapliński, A. Wyrozumska, op. cit., p. 190. W. Czapliński, A. Wyrozumska, op. cit., p. 190. W. Czapliński, A. Wyrozumska, op. cit., p. 190. W. Góralczyk, op. cit., p. 261. R. Jennings, A. Watts, op. cit., p. 869. J. Gilas, op. cit., p. 263.

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(…) nationality (…) may be said to constitute the juridical expression of the fact that the individual upon whom it is conferred, either directly by the law or as the result of an act of the authorities, is in fact more closely connected with the population of the State conferring nationality than with that of any other State. Conferred by a State, it only entitles that State to exercise protection vis-à-vis another State, if it constitutes a translation into juridical terms of the individual’s connection with the State which has made him its national.30 What is of the utmost importance here is the first sentence. The term ‘act’ as used therein refers to naturalization. Hence it would seem prima facie to be interesting from the present perspective. It seems to be situated completely outside the notion of automatic acquisition of nationality on the basis of a statute. The radical character of this proposition makes it necessary to carefully double-check it. The fundamental question is whether one can treat the law (statute, act of Parliament) on nationality as an act in the meaning of the present work. There is hardly any area in which the wide character of the very word ‘act’ (as well as its ambiguity) is of such great importance. The doctrinal views associating unilateral acts with acts on nationality were already referred to. They seem to refer to domestic provisions on nationality. This seems to be the understanding of the term ‘granting’ (l’attribution) of nationality used by P.-M. Dupuy.31 Finding the answer is anything but easy. One must be aware that the same result may be achieved by different means. As regards nationality, a state may gain 10,000 new citizens by issuing 10,000 individual decisions, but also by adopting a new law. Perhaps everybody would be ready to acknowledge the presence of acts of a state when the first method is applied, but this readiness is manifestly reduced with respect to the second method of acquisition. One can hardly overcome the feeling that the choice of the means of granting nationality (which is fully regulated by domestic law) should not have such a strong influence as to qualify the first method as the one which involves acts, and the second as not involving acts. It is unquestionable that the word ‘act’ is broad enough to embrace legislative acts, and in addition there is no reason why the term ‘authorities’ used by the icj in the cited passage should not refer to the legislator as well. Secondly, naturalization as a rule also takes place on the basis of a statute. The respective scopes of application of statutes and administrative acts in fact partly coincide, as administrative authorities act on 30 31

Nottebohm Case (second phase), i.c.j. Reports 1955, p. 23. P.-M. Dupuy, op. cit., p. 252.

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the basis of statutes (often the same which are the basis of acquisition of nationality by birth). One can hardly avoid the feeling that the very term ‘act’ assumes some kind of definiteness, i.e. a relative32 independence from other events which are outside the scope of the will of the actor-state. Such definitive character is visible as regards issuing a declaration on waiver, recognition or protest, the establishment of the width of territorial sea or contiguous zone, or declaring a diplomat as persona non grata. However, it is difficult to compare them with the legal provisions of a statute of a given state, according to which the nationality of a state is obtained by a person born from parents having the nationality of that state, or by a person born on its territory. These kinds of acts have future legal effects, i.e. they are present at the moment of the birth of an individual, and not at the moment of the entry into force of an act. It seems useful to make reference to various classifications of events, relevant from the perspective of international law, already cited in the second chapter.33 They referred to the birth of a child as a legally relevant natural event, that is a natural event giving rise to legal effects in the sphere of international law. In fact this description is based on a kind of simplification. The effects in the field of international law can be attributed only to such birth which is treated by the domestic law of at least one state as a basis for obtaining nationality. The brief overview of the above-presented modes of acquisition of nationality leaves no doubt that the majority of them cannot even be compared to acts in the meaning of the present work. Annexation and cession are transactions which are discussed in the chapter on territory. The birth of an individual is a natural event. The doctrine sometimes uses the term ‘automatic naturalization’. R. Jennings and A. Watts use this term with respect to the acquisition of nationality ‘as a result of marriage to a national, legitimation or adoption of children by parents who are nationals, acquisition of its nationality by the parents of infant children, the exercise of an option to acquire nationality, acquisition of domicile in the naturalising state, appointment as a government official’.34 The majority of the listed elements are evidently acts of individuals, not of states. The exception is ‘acquisition of its nationality by the parents of infant children’ which could be compared to acquisition by birth. As regards the other elements it must be said that acts of individuals are not sufficient for the acquisition of nationality unless they are provided for in domestic rules which 32 33 34

As there is no obstacle to make a conditional act. See: subchapter 2.2. R. Jennings, AWatts, op. cit, p. 872ff.

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attach this effect to them. The latter provisions, however, would give rise to no legal effects in the absence of additional elements in the form of acts (activities) of individuals. Such a definitive character seems to be present in naturalization. In practice, however, the requirement of the consent of the interested person could give rise to some doubts as regards this character of naturalization. This consent of an individual for the acquisition of nationality could be treated as a condition which is necessary, though not sufficient, for naturalization. As an individual usually has no valid claim for nationality there is little wonder that the element of a state act is at the centre of our interest. It manifestly has effects in the field of international law. The major effect is that a given person obtains the nationality of a given state. This effect involves a kind of simplification as well. As the Nottebohm case indicates, it may happen that the fact of obtaining nationality may be non-opposable to other states. In fact, as regards persons with dual or multiple nationality, the acquisition of nationality is by definition not opposable to any mother-state. In all cases other than these two categories, the effect in the field of international law is beyond any doubt. Clearly individual naturalization is not the only kind of act having these characteristics. These characteristics are present in all situations of granting nationality to closed groups of people by statute – either within the framework of primary or secondary acquisition of nationality. The first is quite normal from a comparative perspective, though exceptional35 from the perspective of the history of a given state. The second situation is a kind of group naturalization, which could be treated with suspicion. It is interesting for the present work, however, only to the extent to which it is not contrary to international law.36 What is important is that the effect takes place ex lege and is independent of either any additional act of a state (individual act), or on any other additional events (i.e. dependent on or independent of the will of a given person). In summary, one can make a serious attempt to confirm or exclude the character of unilateral acts of states with respect to a small fraction of modes of 35 36

In fact impossible for states having uninterrupted existence for hundreds of years. R. Jennings and A. Watts write that ‘[s]uch involuntary or collective naturalization has sometimes given rise to controversy, but provided that it reflects a sufficient connection with the naturalising state it may not be contrary to international law – and certainly not if the person concerned has in some way consented’, see: R. Jennings, A. Watts, op. cit., p. 874. They stress however that the question of not being contrary to international law is distinct from whether the nationality ‘purportedly accorded will be acknowledged in other states’, vide: ibidem.

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acquisition of nationality. They are namely: individual naturalization, group naturalization, and primary acquisition of nationality. These will be discussed after a similar search and examination below of the modes of loss of nationality. 7.2.4 Loss of Nationality and Unilateral Acts of States Loss of nationality is the next element deserving of special attention. It is also a change of status, and inasmuch as neither that status (national-foreigner) nor the change itself is an act as such, what must be analysed in detail are the reasons for such loss. W. Góralczyk writes that ‘loss of nationality as well as its acquisition as such is regulated by the domestic laws of different states and their authorities. The role of international law (of international agreements) is reduced to elimination or limitation of the number of cases in which the loss of the previous nationality leads to statelessness’.37 However, international law doctrine does refer to the grounds for loss of nationality. R. Jennings and A. Watts list in this context release, deprivation, expiration, renunciation and substitution.38 W. Góralczyk refers to release from nationality, deprivation of nationality, option and marriage (in fact only for women).39 As in the previous subchapter, the basic question for our purposes is whether one can qualify any of these grounds as a unilateral act of a state in the meaning adopted in the present book. Also the methodology applied in the last subchapter makes it possible to foresee to a large extent the conclusions regarding loss of nationality. Prima facie a special role could be attributed to the institution of deprivation of nationality. At the very beginning it must be noted that this institution is connected with serious dangers for individuals and has been abused in the past to individuals’ detriment. It should also be stressed that the arbitrary deprivation of nationality is prohibited.40 One can easily understand why states introduce limitations or prohibitions with respect to it. For example, Art. 12 (2) of the 1992 Constitution of the Czech Republic41 provides that: 37 38 39 40 41

W. Góralczyk, op. cit., p. 263. R. Jennings, A. Watts, op. cit., p. 877. W. Góralczyk, op. cit., p. 263. See, e.g., Art.15 (2) of the Universal Declaration of Human Rights; see also: R. Jennings, A. Watts, op. cit., p. 878. http://www.usoud.cz/fileadmin/user_upload/Tiskova_mluvci/Ustava_EN_ve_zneni_ zak_c._98-2013.pdf; Accessed on 24 July, 2014.

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No person may be deprived of his citizenship against his will. Also, Art. 9 of the Constitution of Croatia provides: (…) No citizen of the Republic of Croatia shall be exiled from the Republic or be deprived of citizenship, and may not be extradited to another state.42 Such a high standard is not universally adopted. All the same the following remarks should be treated not as a defence of that legal institution, but rather as an attempt to consider its legal nature in the wider context of events relevant from the perspective of international law. In practice there were and still are examples of deprivation of nationality by means of both individual acts as well as general ones. The first situation clearly resembles unilateral acts and is prima facie interesting from the point of view of the topic of this book. It involves an act of one state which gives rise to legal effects in the sphere of international law. The effect (or one of the effects) is that, e.g., a state empowered to exercise the rights to diplomatic protection with respect to a given person is no longer so empowered because of the loss by that person of the nationality of that state. What’s more, this effect is the same as if a state had waived its right to diplomatic protection with respect to that person. Deprivation of nationality by a means of a general act is much more difficult to qualify in the terminology adopted in the present work. One must distinguish between situations in which the very entry into force of a general act leads automatically to the loss by a given person or persons of his/her/their nationality, and situations in which a general act determines the conditions of loss of nationality for the future. The first type of act resembles an act which is the reverse of a grant of naturalization. The second one could be perceived as the reverse of acquisition of nationality as a result of certain behaviour of an individual. Examples of behaviours and events which may lead to such loss of nationality include: acquisition of nationality of another state, taking up a military service in a foreign army, and commission of a crime (of course only if a domestic provision ascribes this effect to specific crimes). In such situations it is difficult to speak about any similarity to an act of a state in international law. The ‘last word’ belongs to the individual. Such acts are evidently outside the scope of interest of the present work. 42

http://www.constitution.org/cons/croatia.htm; Accessed on 24 July, 2014.

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There is no doubt that the latter does not cover such acts as renunciation, marriage or option if they are the grounds for the loss of nationality. When they are in place the activity of states is limited to making general provisions. What is decisive is not an act of a state, but of an individual. The activity of the state lacks the definitive character which can be attributed to naturalization. It is much more difficult to qualify the institution of release from nationality, and its general qualification seems rather impossible. The very name does not allow to specify the effects of this transaction. One can imagine two situations. In the first situation a release means that a given person automatically and independently of his or her will loses the nationality of a given state. In the second case the release does not give rise to such an effect. Only the first solution resembles deprivation of nationality and deserves the name ‘act’. The second solution to a high extent resembles option – effects flow from a certain activity of an individual. Such a release from nationality evidently is not a unilateral act of a state. In summary, one must observe that only deprivation of nationality is prima facie similar to unilateral acts of states. This is so both when it concerns a given person as well as when it concerns a wider category of persons. In this second case however the similarity to unilateral acts of states is present only when the loss of nationality results automatically from the entry into force of a legal act, and not from certain activities of individuals. Any definitive qualification of these transactions requires a careful examination of whether they are really transactions of international law or of domestic law. This evaluation will be effected jointly for both acts connected with the acquisition as well as the loss of nationality. Naturalization and Deprivation of Nationality – Acts of Municipal or International Law? The necessity to distinguish acts of domestic law from those of international law has already been referred to in Chapter 2. This of course means that there is a danger of mixing these two kinds of acts. It is difficult not to see that this danger is the largest in the present field under review. Promise, recognition, declaration of a member of a diplomatic mission as persona non grata or occupation of terra nullius are transactions defined on the level of international law. Transactions concerning nationality are fundamentally different in this respect. A state which outlaws deprivation of nationality of its citizens would never accept the thesis that international law ascribes an act of deprivation of nationality as a part of its positive law. Such a thesis would be absurd. The doctrine of international law merely describes (or rather attempts to describe) solutions adopted by the domestic laws of several states. So one may ask: What

7.2.5

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is the role of international law? Perhaps it ‘allows’ such solutions, but in a different way than it ‘allows’ a state to establish exclusive economic zone or conclude treaties? Perhaps it attaches legal effects to some solutions adopted by states and events to which state law ascribes the acquisition or loss of nationality? This does not mean however that the latter would be devoid of legal force without this international law element. That is why the very presence of ‘some role’ of international law is not a positive answer with respect to the legal nature of the acts of interest here. In the advisory opinion on Nationality Decrees issued in Tunis and Morocco, the pcij ruled: Thus, in the present state of international law, questions of nationality are, in the opinion of the Court, in principle within this reserved domain.43 The ‘in principle’ reservation is necessary, as states may incur some treaty obligations in this area as in any other. It may be quite strange to qualify acts effected in the ‘reserved domain’ as transactions of international law. International law neither calls them into existence nor is a guarantee of their existence (leaving aside the fact that it does not prohibit them). It is beyond any doubt that these transactions resemble acts of international law in the meaning suggested in Chapter 2. The main sources of similarity are: – the fact of activity of one state only; – the presence of effects in the field of international law; and – the relative conciseness of the state’s behaviour, which justifies calling it an act. The last elements have to do with what was called the ‘definitive character of an act’. It is useful to ask, however, if this definitive character could be really situated within the framework of public international law. One can have very serious doubts in this regard. An impressive argument arises when one considers the possibility of declaring void or revoking an act of naturalization. These are clearly governed by domestic law. If an individual obtained nationality on the basis of false documents or false testimony, domestic law may provide that that person was never a national of that state. It would be absurd to allow other states to interfere into such decisions, and a completely specious argument to say that by granting its nationality to a given person a state introduced a 43

pcij Publications, Series B, no. 4, p. 24.

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­ odification in the sphere of international law, hence giving other states a say m in the matter of possible reversal of the previous decision. Thus there is a nearly all-embracing dependence on domestic law of the acts under consideration. If domestic law prescribes strict conditions for obtaining nationality, acts of naturalisation are rare; if domestic law outlaws acts of deprivation of nationality, they are non-existent. International law does not intervene in these elements, at least not more than in the case of other matters that may be of interest to it but effected by the means of domestic law. This is why, in my opinion, decisive importance should be attributed to this element with regard to the non-qualification of the above-mentioned transactions connected with the acquisition or loss of nationality as transactions of international law. In Chapter 2 I spoke against the possibility of automatic exclusion of all acts of domestic law from the scope of interest of the present work, and this general conclusion seems justified. It cannot however dissuade one from attempts to establish the true nature of a given act. On the contrary, such attempts are an aim of this study. They may end with decision to include or to exclude a given act within the notion of unilateral acts of states in public international law. The character of the acts connected with nationality speaks in favour of excluding them. Such a decision in a theoretical study is in and of itself not easy, but trying to translate it into the language of a possible codification of international law is even more difficult. What could be suggested for future codifiers is to exclude such acts expressly from the scope of their drafts. 7.3

Expulsion or Deportation of a Foreigner and Unilateral Acts of States

The next element connected with individuals and discussed in the doctrine of international law is expulsion or deportation of a foreigner. Interestingly enough, W. Góralczyk does not define ‘expulsion of a foreigner’. He seems to treat this notion as self-explanatory. On the other hand, deportation is defined as a compulsory taking of a foreigner to the border of a state.44 For our purposes it is necessary to examine whether these two elements are legal acts (transactions) within the meaning adopted in the present work. Both expulsion and deportation are clearly attributable to a state. What’s more, they are forms of activity of state organs. I cannot envision the possibility of limiting the definition of unilateral act of a state in international law to acts of the 44

W. Góralczyk, op. cit., p. 267.

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highest state organs which are customarily active in international relations. It would be difficult to treat this element as decisive. In this place once again the very wide meaning of the term ‘act’ is visible. There is also no doubt, that these acts are effected as a rule by one state, so calling them unilateral also seems to be quite logical. Of course, a state may conclude a treaty referring to expulsion or deportation, but this does not mean however that they are dependent on the existence of a treaty. On the contrary, it is rather limitations placed on the right to use expulsion or deportation which may result from a treaty, not the very right to effect them. What’s more, it cannot seriously be argued that it is international law that ‘empowers’ states to apply deportation or expulsion to foreigners. One can say that international law does not prohibit states from applying these two acts, and it is the state itself which decides whom to tolerate on its territory and whom not. Contemporary international law introduces an exception as regards the treatment of nationals of a state – it cannot expel them. What’s more, while one cannot seriously think about a treaty or a binding promise without international law, expulsion or deportation could function without either. There is no doubt that these two acts at least can have the character of transactions of domestic law. As was said in Chapter 2 and in the previous subchapter, this element in and of itself does not make it impossible to situate them in the framework of international law as well. Any definitive evaluation has to take into consideration the transactions as such and their effects in the field of international law. Let us start with their effects. In fact it is difficult to identify any such effects. Neither deportation nor expulsion can be treated as acts giving rise to new obligations like promise or a treaty. No state may seriously make a claim in a situation in which another state takes a decision to expel a given person, but later decides to tolerate the presence of that person in its territory. It is also difficult to treat these two kinds of acts as transactions which dispose of rights of the author-state in the sphere of international law. If one would like to find the most appropriate general category for these acts, the term ‘acts of power effected on the territory of a given state’ would seem to be the best. The German term Hoheitsakten adequately reflects their nature. Such acts can be hardly compared to acts giving rise to new obligations in the field of international law. One cannot prohibit any author from distinguishing a separate category comprised of acts of power effected by a state on its territory, nor can one prohibit someone from calling them unilateral acts. The aim of Chapter 1 was to demonstrate that the term ‘unilateral act’ is wide enough to encompass several acts of domestic law as well. What one must demand of any such author is to be consequent. If the expulsion of a foreigner is to be called a unilateral act of a

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state in international law, the same qualification should be used with respect to a refusal to expel or a decision to allow a foreigner to enter a state’s territory. The same is true with respect to permission to reside or work in a state, as well as refusals of such permission. In fact one can wonder why this list should be limited to acts dealing with foreigners. They are acts in the same sense as any administrative decision whatsoever. The administrative law of any state could provide numerous examples, such as construction permits, concessions for a given establishment, a licence to sell alcohol etc. This chapter is not the best place to discuss all these acts. Acts of power are one of the most important challenges for the study of unilateral acts of states. It is not my intention to deny them any legal effects. However, I am not able to attribute any such legal effects in the field of international law to expulsion and deportation, hence they must be denied the qualification of unilateral acts of states in public international law. The same (negative) qualification should, in my opinion, be applied with respect to the closing of a border by a state.45 It could be only discussed from the perspective of its being in conformity with international law or not in conformity with international law. If the first is true, one can identify no effects in the field of international law resulting from that act. 7.4

Asylum and Unilateral Acts of States

Asylum is another element, discussed in works on international law, which is promising from the perspective of the present work. The term ‘asylum’ is widely used but seldom defined. According to the definition of the 1950 Bath session of the Institute of International Law, asylum is ‘the protection which a State grants on its territory, or in some other place under the control of certain of its organs, to a person who comes to seek it’.46 W. Góralczyk also defines asylum as granting protection (that is the right of entry and settlement) to a foreigner prosecuted in his or her mother country or in a third state for the commission of a political crime or

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46

On the closing of the border by Turkey to Kurdish refugees in 1991, see: G.S. Goodwin-Gill, Asylum: The Law and Politics of Change, International Journal of Refugee Law, 1/1995, pp. 5–6. M.G. Kaladharan Nayar, The Right of Asylum in International Law: Its Status and Prospects, St. Louis University Law Journal 1972–1973, p. 21.

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­persecuted for other political reasons.47 Some authors could be assumed to have adopted the same definition. For example H.A. Amankwah writes that ‘[t]he competence of states to extend protection to an alien who is the object of political persecution in his national state has long been recognized in international law. (…) This phenomenon has been referred to as political asylum.’48 What is in the centre of interest in the doctrine is ‘the right to asylum’,49 although in fact this element is not important from the perspective of the present work. What really matters here is whether the grant of asylum is a unilateral act of state in public international law. L.C. Green writes that ‘[t]erritorial and diplomatic asylum have also presented problems to the legal advisers of foreign offices.’50 Although this remark did not address the qualification of a grant of asylum, it could be extended to that aspect as well. For reasons of simplicity the following remarks will address territorial asylum above all. The institution of asylum is sometimes differentiated from the topic of treatment of refugee. Being a refugee is a certain objective status. In this sense recognition of a given person as refugee (recognition of the status of refugee) it is not identical to the granting of asylum.51 As L.C. Green puts it: ‘The Convention on Refugees does not attempt to place any obligation upon the parties to grant the right of asylum, but merely stipulates the treatment to be enjoyed by refugees once asylum has been granted.’52 S.K.N. Blay and B.M. Tsamenyi maintain that the 1951 Geneva Convention does not guarantee refugees the right to asylum.53

47 48 49 50 51

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W. Góralczyk, op. cit., p. 271. H.A. Amankwah, The Dikko Affair and Asylum in International Law, U. Ghana L.J. 1982–1985, p. 65. H.A. Amankwah, op. cit., p.66ff.; R. Jennings, A. Watts, op. cit., p.901 et. seq.; R. Boed, op. cit., p.1 et. seq. L.C. Green, The Right Of Asylum In International Law, University of Malaya Law Review 1961, p. 233. G.S. Goodwin-Gill writes that the Geneva convention grants the right to seek asylum, but does not guarantee it will be granted. See: G.S. Goodwin-Gill, op. cit., p.1. See also: R. Boed, op. cit., p. 9. L.C. Green, op. cit., p. 240. S.K.N. Blay, B.M. Tsamenyi, Reservations and Declarations Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, International Journal of Refugee Law, 1990, p. 532. On the relationship of non-refoulement and asylum, vide: G.S. Goodwin-Gill, op. cit., p. 8.

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It is underlined that as a rule (that is unless otherwise regulated in a treaty binding on a state), the decision whether to grant asylum belongs to the reserved domain of a state.54 Domestic legal provisions may strengthen this differentiation even more. A good example is the Polish law of 13 June 2003 on the protection of foreigners on the territory of the Republic of Poland.55 According to its terms a grant of asylum by Poland is an act of domestic law regulated by Arts. 90–96 of the 2003 statute. According to Art. 90(1) a foreigner may be granted asylum in Poland if he/she applies for it, asylum is necessary for providing him/her protection, and it is in interest of Poland. All three conditions must be fulfilled concurrently. Art. 91(1) of the same statute provides that a foreigner may be deprived of asylum if: (1) the reasons for which it was granted are no longer in existence; (2) a foreigner acts contrary to defence and security of the Polish state or contrary to the public security or order. It is worthwhile particularly to examine the first condition. It means that asylum may be withdrawn if it is no longer in the interest of the state. Hence this institution is fully dependent upon the political will of the state. In this respect it may be confronted with the treatment of refugees – which is subject to separate regulations than asylum as such. The tendency to treat asylum and matters connected with refugees separately is very strong in the Polish legal literature. So for example W. Czapliński and A. Wyrozumska emphasize that the Geneva convention and New York Protocol ‘regulate (…) only the legal situation of refugees, leaving aside asylum procedures.’56 This relationship is more complicated, however. The term ‘asylum’ is widely used in the context of treatment of refugees.57 It is said, e.g., that ‘International 54 55 56 57

W. Góralczyk, op. cit., p. 271. Consolidated version in: Dz. U. 2012 pos. 680. W. Czapliński, A. Wyrozumska, op. cit., 1999, 176. See e.g.: D. Anker, Determining Asylum Claims in the United States. Summary Report of an Empirical Study of the Adjudication of Asylum Claims before the Immigration Court, International Journal of Refugee Law, 2/1990, p.253. This author presents the 1980 us Refugee Act as the first legal act introducing statutory asylum procedures for aliens in the usa. See also: J.C. Hathaway, The meaning of Repatriation, International Journal of Refugee Law, 4/1997, p. 551.

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refugee law is a mechanism whereby States deal with persons seeking asylum within their borders.’58 Also, the domestic law of a given state may make the grant of political asylum dependent on the applicant having the status of a refugee.59 One can see also joint references to refugees and asylum seekers.60 R. Boed writes that ‘[a]lthough non-refoulement is not as sweeping as the right of asylum, it provides an asylum-seeker with at least a temporary refuge and thus partial or de facto asylum.’61 Therefore despite the fact that it is impossible to precisely identify two elements – treatment of refugees and grant of asylum, it is equally impossible to construct a ‘Chinese wall’ between them. Asylum will be treated therefore not as a separate transaction but as a practical solution involving the actual protection of a given foreigner. It is no wonder that what is meant by the ‘European asylum policy’ are common rules on…refugees rather than political asylum. This is not a very optimistic scenario from the perspective of an attempt to qualify asylum as a separate (possibly unilateral) transaction of international law. All the same such a task must be taken up. One of the best references to the essence of the notion of asylum is the one by M.G. Kaladharan Nayar. He writes that: The concept of asylum in international law involves three elements: first, admission of persons seeking asylum; secondly, shelter, which is more than mere temporary refuge; and lastly, a degree of active protection on the part of the authorities in control of the territory of asylum. The grant of asylum is not an instantaneous act which terminates with the admission of a refugee at a given moment. Any grant of asylum results in, and logically implies, a state of protection. The grant of asylum continues as long as this state of protection is provided. It is an active, not a passive process, and includes not only the grant to refugees of admission by 58 59

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K. Darling, Protection of Stateless Persons in International Asylum and Refugee Law, 21 Int’l J. Refugee L. 2009, p. 742. With respect to the American law of 1980, see: P.M. Martin, Temporary Protected Status and the Legacy of Santos-Gomez, George Washington Journal of International Law and Economics, 1991–1992, p. 232; B. Nylund, op. cit., p. 89. See: R. Marx, Non-Refoulement, Access to Procedures and Responsibility for Determining Refugee Claims, International Journal of Refugee Law, 3/1995, p. 384. R. Boed, The State of the Right of Asylum in International Law, Duke Journal of Comparative & International Law, 1994–1995, p. 16.

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states into territory, but also protection against return or expulsion to a country where life or freedom is threatened.62 B. Wierzbicki also underlines that granting asylum is something more than just the right of entry and settlement to a foreigner.63 One of the elements mentioned by M.G. Kaladharan Nayar seems on its face to undermine to the very idea of viewing the grant of asylum as an act. However, the very fact of asylum being extended over time does not disqualify it from a wide category of acts. This conclusion seems especially justified in a comparative perspective, that is in the light of other acts discussed in other chapters of the present part of this work. There is no requirement for any act to be an ‘instantaneous act’. In fact, the identification of many acts requires some kind of idealization, which may be necessary to see unity in facts composed of several elements. Hence it seems logical to check whether this idealization does not deviate the very nature of an act. A grant of asylum is manifestly a kind of activity attributed to a state. It seems that prima facie there are no reasons why this activity could not be called an act. As this act is performed by one state only, there are also no reasons to deny a priori the possibility of it fitting within the notion of a unilateral act. Certain problems could concern the level of emancipation (or separation from other elements) of a grant of asylum. This emancipation is typical for the great majority of legal transactions, both of domestic law as well as international law. For purposes of comparison it may be useful to ask if one can call asylum (or the granting of asylum) an institution of domestic law.64 This question is by no means an easy one.65 The answer depends on the provisions of the domestic law of a given state. Laws of some states refer to the institution of asylum (or the granting of asylum), while the provisions of others do not provide for such an institution. On the other hand, one can argue that asylum would have been discussed in manuals of international law even had it not been regulated by the law of any state. This may lead to a hypothesis according 62 63 64

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M.G. Kaladharan Nayar, op. cit., p. 20. B. Wierzbicki, O azylach i ekstradycji przestępców, Warszawa 1982, p. 21. It is worthwhile to note that some analyses of asylum limit themselves to the presentation of domestic law only; see: D. Anker, op. cit., pp. 252–264. This element cannot be attributed decisive importance. Risks connected with the relationship between domestic law and international law (although in a slightly different context) are presented in: J. Crawford, P. Hyndman, Three Heresies in the Application of the Refugee Convention, International Journal of Refugee Law, 1/1989, pp. 155–156.

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to which the granting of asylum is, or at least may be, just an objective fact. If so, one would be able to say that admiral Horthy obtained asylum in Portugal, while Saddam Hussein did not obtain it in Syria. If one understands asylum that way it does not have to be qualified as an institution of law (not only international law, but of law in general). This makes it more difficult to tackle the question of the relationship of asylum to unilateral transactions of international law. If asylum is only a certain objective state of affairs (the fact that a given person is present in a territory of one state even though another demands the handing over of that person), then the granting of asylum is not a legal transaction of international law. As with any other state of affairs, it could be referred or not referred to by any international agreement. The latter could make this state of affairs obligatory or prohibited – conditionally or unconditionally. It would be difficult, however, to treat this element as important from the perspective of distinguishing asylum from other states of affairs, situations, or events. On the other hand, the problems associated with qualification of asylum as a transaction of domestic law may – paradoxically enough – speak in favour of qualifying it as a transaction of international law. To this end one would need, however, to confirm at least one, relatively precise, legal effect of the granting of asylum. It is evident that a state granting asylum has no obligation to maintain it for an unlimited time, hence this is certainly not a legal effect of granting asylum. Thus one must look for another obligation. In order to find such possible effects it seems useful to compare two situations – a grant of asylum and a promise to grant asylum. What prima facie gives rise to objections is a situation in which a state promises to grant asylum, but immediately or in a short period of time thereafter hands over a given person to a state in which his/her life will be in danger. One must wonder whether these objections are only of moral nature, or may be of a legal nature as well. There are several reasons why one can see legal obstacles however. Of course, there is a prohibition against such a handing over with respect to a refugee. Thus my remarks at this point relate only to asylum granted to a person who is not a refugee. Also, in this respect some legal arguments could be made. The handing over of an ‘invited’ person must be seen as contrary to the principle of good faith. If the state demanding a given person does not have an independent judiciary and fair legal system, the handing over of a person may be doubtful from the perspective of the right to life and the right to fair trial. Because of this, a promise to grant asylum seems to give rise to effects which would be absent in the lack of such a promise. On the other hand, a state which hands over a person despite an earlier promise to give him/her asylum would probably argue that as a given person is not a refugee and is demanded by his

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or her mother state, there is no subject of international law which could invoke rights resulting from a promise. The state would be interested in confirmation that a promise to grant asylum is not a transaction aimed at effects under ­international law erga omnes, but is a binding act of domestic law, or even a non-binding communication of domestic importance only. Taking into consideration the connection between a promise and a decision of a given person to move to the state which made the promise, as well as the relationship of such a situation to a fundamental right to life, it seems to me that such a promise is or at least could be a transaction of international law giving rise to effects erga omnes. The question emerges whether a state which does not promise but simply grants asylum does not incur a similar obligation. The principle a minori ad maius suggests that grant of asylum is more than just a promise to grant it. One can assume that at least in some situations legal effects will be present. A few preconditions must be fulfilled to this end, however. The grant of asylum must be the reason for the entry of a given person to the territory of a given state. A situation in which an individual himself/herself decides to move to a given state without any incentive of asylum can hardly give rise to the argument of a lack of good faith. The number of problems and obstacles is much larger however. They have a lot to do with the very ambiguity of the terms ‘asylum’ and ‘grant of asylum’. It may happen that a state gives asylum to an individual, but only thereafter does the fact of that person’s commission of a crime become known to the state. It may be also that what is called ‘asylum’ takes place without the participation of state organs, i.e. an individual simply stays and feels secure in a state which does not care about that person. In such a situation the case for calling it asylum must be deemed weak. It may be that the domestic law very precisely regulates the procedure for granting asylum, i.e. it is inserted fully within the framework of domestic law. This means that even a positive decision is not a guarantee of the future status of the foreigner – as was presented above with respect to the Polish statute. For these reasons there seems to be no chance to prove that every case of asylum is a transaction of international law. As B. Wierzbicki writes ‘the norms of international law define directly neither territorial asylum nor diplomatic asylum.’66 It is difficult to find a transaction of international law in an area which is not even defined by international law. That is why with respect to asylum any effects of international law could be seriously searched for only in quite 66

B. Wierzbicki, O azylach…, p. 19.

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­ eculiar situations, in which several elements are present at the same time. p They consist of state activity (a promise or a declaration granting asylum) and its specific influence on that person, i.e. the state activity being the basis of an individual’s decision, triggering some modifications in the sphere of legal effects. It could be seen as a subcategory of international promise or a situation giving rise to legitimate expectations. However, confirmation that a promise actually took place in concreto, and that it is a promise of international law, may be difficult or even very difficult. For the above reasons one must conclude that territorial asylum (granting of territorial asylum) as a rule cannot be treated as a transaction of international law within the meaning adopted in this work. Paradoxically enough, the establishment of legal effects seems to be easier with respect to diplomatic asylum. This effect is that a territorial state can no longer exercise its power over the person who was granted such asylum. However, this conclusion too may give rise to several doubts. The first would refer to the illegality of granting such asylum. A monograph of unilateral acts of states is not the best place to decide on the legality or illegality of diplomatic asylum. Suffice to say that insofar as diplomatic asylum is illegal it is outside the scope of interest of the present book. In other words, the remarks that follow are based on assumption that there is some possibility (even if slight) of diplomatic asylum being not in conflict with international law. The second counterargument would be that the effects are connected with the very entry of a given person into the embassy (or other diplomatic mission) grounds. In this sense it is an activity of an individual that gives rise to legal effects. This argument has some merits, although its value should not be exaggerated. It is very useful however for keeping another ‘unwelcome’ act outside the ambit of interest of works dealing with unilateral acts of states. This does a good service to the self-confidence of those writing about unilateral acts of states, but a bad service to the truth. The weakness of this argument is that it overlooks the difference between the situation of a person invading an embassy or diplomatic mission, and a person invited to it or expressly granted diplomatic asylum. I have referred several times to the paradigm of not improving realities. There is no reason to pretend that states and individuals will act in such a way so as to satisfy the author of a simplified vision of unilateral and non-unilateral state activities. In consequence, one can imagine several scenarios connected with diplomatic asylum. Let us imagine that on 3 June a given state declares that diplomatic asylum will be granted to persons X and Y. Person X does not make it to the embassy. It is impossible to find any legal effects of such grant of asylum (other than the possible presence of a promise). Person Y enters the embassy on 5 July. His or

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her entry is the direct source of modification of the powers of the receiving state. It is also difficult to see any legal effects of the grant of diplomatic asylum as such. On the other hand, let’s assume that person Z enters the mission without the permission of the ambassador. The ambassador demands the removal of that person on 5 July, but on 6 July changes his or her mind and grants diplomatic asylum. I am ready to attribute legal effects to such a transaction, and as a consequence find the presence of a unilateral act of a state in public international law. On the other hand, there are similar situations in which the element of state activity is absent, or at least less visible. There may be doubts as to presence of a unilateral act of a state in such situations, or there even may be no doubt at all that there is no such act (in other words – no act is taken, or even if taken it does not give rise to legal effects). As complicated as it is, this description seems to reflect more the true nature of various events which are interesting from the perspective of international law than their ‘improved’ artificial versions. 7.5

Refugees and Unilateral Acts of States

In our discussion on asylum the problem of refugees was referred to. The doctrine has the tendency to speak in this context about the presence of an act, namely the recognition of a refugee or recognition of a person as a refugee. In fact this is the only element which needs to be analysed here. It must be asked whether such a transaction really exists, and if so, whether it is a transaction of international law. D. Kennedy writes that: Discussion of the protection due refugees sounds legal and international: one speaks of “rights” and “duties” triggered by international recognition of one’s refugee status. The perquisites of being a refugee are legal claims which derive from recognition of a legal status. (…) By contrast, the perquisites of the asylee are diverse and depend upon the particular constellation of municipal prerogatives which conspired to grant asylum. (…) To define asylum has been to describe a condition of little uniformity while to discuss refugee status has been to elaborate a body of international norms.67 67

D. Kennedy, International Refugee Protection, Human Rights Quarterly, 1986, p. 39.

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B. Wierzbicki calls the recognition of a refugee an ‘identification act’.68 Though it can be prima facie associated with a transaction of international recognition as such,69 in fact its nature as a separate transaction of international law is much more doubtful. It is frequently underlined that: The 1951 Convention and the 1967 Protocol consider a person a refugee for their purposes who satisfies the criteria laid down in article 1, but they do not establish any particular procedure for recognition of refugees. It is thus left to each contracting State to establish the procedure that it considers the most appropriate. (…) Indeed, the procedures for recognition of refugees differ from country to country.70 B. Wierzbicki notes that neither the 1951 Geneva Convention nor the 1967 Protocol or the Statute of the unhcr ‘determine the procedure for deciding whether a given person is a refugee or not.’71 It can be added that they do not determine the type of act which would be used to confirm the fact of a given person having been given refugee status. The very lack of treaty regulation in this area is not so important from the perspective of a monograph of unilateral acts. The topic of refugees cannot be reduced to their status resulting from treaties. This is because of the presence of customary norms of international law in this area. One of them is in particular the principle of non-refoulement.72 It is sometimes underlined that the status of a refugee is dependent on the situation in the state of origin, which is why it is not necessarily stable. J.C.  Hathaway writes that ‘[t]he absence of a duty to grant permanent residence to refugees was critical to the successful negotiation of the Refugee Convention.’73 The question is whether recognition of a given person as a refugee gives as such rise to any obligations. The main challenge in this respect seems to be connected with the view according to which the status of a refugee is independent of recognition. The latter has, according to the cited view, only 68 69 70 71 72 73

B. Wierzbicki, Sytuacja prawna…, p. 62ff. Discussed in part iv. B. Nylund, op. cit., p. 87. B. Wierzbicki, Sytuacja prawna uchodźcy w systemie międzynarodowej ochrony praw człowieka, Białystok 1993, p. 60. W. Czapliński, A. Wyrozumska, op. cit., p. 176. J.C. Hathaway, The Meaning of Repatriation, International Journal of Refugee Law, 4/1997, p. 551.

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a declarative character.74 As will be shown in Part 4, some authors would be ready to treat this characteristic (if confirmed) as excluding the possibility of finding in this field any transaction of international law. This way of reasoning will not, however, be adopted in the present work. This is why it seems to be more useful to examine whether recognition as a refugee gives rise to any obligations in international relations. First of all, recognition of someone as a refugee does not give rise to any obligations of other states. Unless otherwise provided for in a treaty, each state confronted with that dilemma can itself assess whether a given person is a refugee or not, independently of the decision of another state.75 The decision with respect to rights is much more difficult. Let us imagine two states. Each of them transmits an individual to a state perceived as not respecting human rights. The first one transmits a person who had been recognized by it as a refugee, and the second state transmits a person which was wrongly not recognized as a refugee. From the theoretical point of view both states infringe the customary norm of non-refoulement. In this respect their situation is objectively the same. One may wonder whether such a view (correct as such) should not be supplemented by a more realistic and less idealistic element. According to it, the situation of the first state is worse. This does not mean that it must stick to its former decision for tens or hundreds of years. All the same one can defend the duty of such state to show that the qualification of a given person as a refugee was wrong or is no longer appropriate due to change of circumstances in the state demanding the return or delivery of a person. Such a vision would insert the recognition of refugee status among other types of international acts. One can wonder, however, if this vision reflects the reality. B. Nylund uses the word ‘recognition’ of refugee status interchangeably with ‘determination’ of refugee status.76 She underlines that ‘[d]etermination of refugee status is therefore merely of a declaratory nature. But at some stage a determination of a person’s status as a refugee is necessary in order that a refugee may avail himself of the rights and the protection afforded to refugees.’77 P. Weis also writes that ‘[t]he formal recognition of refugee character is of a declaratory nature. Whether a person is a refugee depends on his fulfilling the 74 75 76 77

This is the view of Grahl-Madsen discussed in: B. Wierzbicki, Sytuacja prawna…, pp. 62–63. B. Wierzbicki, Sytuacja prawna…, pp. 63–64. B. Nylund, Refugee Recognition Under the United States Refugee Act of 1980, Nordisk Tidsskrift Int’l Ret 1984, p. 87. B. Nylund, op. cit., p. 86.

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conditions of the definition. For the determination of refugee status, the term “eligibility determination” has become accepted.’78 Weis uses the term ‘recognition’ several times. It is always made in the context of domestic laws of a given state.79 This perspective seems proper. However, speaking about recognition as a wholly internal transaction is a little bit risky. Recognition of a refugee is no more and no less international or internal as any assessment made by a state as to the application of a given set of rules of international law to a given person. It is difficult not to see that recognition of a refugee has a great potential of turning into a transaction of international law in the future. So, for example, D. Kennedy writes that: When asked what responses should be made to the plight of refugees, the u.n.h.c.r. advocated that national governments adhere to the 1951 Convention definition of refugee and to the “recognition” of u.n.h.c.r. certified “refugee status.”80 Also B. Wierzbicki argues that the recognition of some person as a refugee has constitutive character, as it is a precondition of having the rights of a refugee.81 One can have the impression, however, that this effect could be situated mainly if not exclusively within the framework of domestic law. Extradition or expelling a refugee to a state in which his/her life would be in peril is contrary to law not because of that person having been recognized as a refugee, but because of the objective fact of being a refugee. In consequence, in my opinion it is difficult to speak about the presence in public international law of a separate transaction of recognition of a person as a refugee. 7.6

Visas and Unilateral Acts of States

The next element discussed in the works on international law in this context are visas. W. Góralczyk writes that ‘a visa is an note in a passport or 78 79 80 81

P. Weis, The Development of Refugee Law, Mich. ybi Legal Stud. 1982, p. 38. P. Weis, op. cit., p. 34 et. seq. In the context of Greek law, see: M. Stavropoulou, Refugee Law in Greece, International Journal of Refugee Law, 1994, p. 57. D. Kennedy, op. cit., p. 5. B. Wierzbicki, Sytuacja prawna…, p. 63.

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other travel document, confirming the grant of permission to cross the border of a state and stay or transit through its territory. Some states treat visas, however, only as a non-binding promise (promesse) to allow entry to its territory.’82 In fact a visa is a kind of document. What is interesting for the present work is the very grant of a visa (and by analogy its withdrawal), which is certainly an act of a state. There is no doubt that the grant of a visa, or its withdrawal, are legal transactions of domestic law. There is also no doubt that they may be the object of a treaty,83 but this element could be hardly treated as the most important for the very essence of the legal institution. In any case, it is not a transaction created by international agreements. It results from the right of a state to decide who can enter its territory. It is important to remember that a state may make this decision by different means – autonomously or on the basis of a treaty. So, for example, a state may, by a means of a domestic statute, release nationals of another state of the requirement to have a visa, or even a passport, to cross the border into that state. As a rule visas have an individual character, but if a given state would prefer to grant group visas, international law would not prohibit such a grant. The general character of the term ‘unilateral act’ allows us to apply it prima facie with respect to the grant of a visa. It is however more than doubtful if it is possible to identify any legal effects in a form of rights or obligations in inter-state relations. The presence of the latter would probably require the existence of a legal norm of international law, according to which a state which issued a visa is under an obligation to allow the holder of this visa into its territory. This effect is clearly excluded with respect to states which treat a visa as a non-binding promise. However, even if a visa gives the right of entry to the territory of a state, it is difficult to situate this right in the inter-state perspective. It is rather the right of an individual, and not his or her mother state. The traditional approach to subjects of international law would suggest that this right is not a right of international law, but of domestic law only. Nothing suggests that any state of the world treats its visa decisions as a transaction giving rise to obligations towards the mother state of the holder, and even less so to the entire international community. Therefore one cannot treat the granting of a visa as a transaction of international law. If visas are of interest to specialists in international law, it is because they are forms of activity of a subject of international law (a state) with respect to 82 83

W. Góralczyk, op. cit., p. 269. W. Góralczyk, op. cit., p. 269.

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foreigners, that is persons under the power of another subject of international law. They are acts of power resulting from a state’s sovereignty over a given territory, concerning foreigners, but above all relating to domestic matters (movement of persons on the territory of a state). Therefore they are acts of permission. In this sense they resemble asylum. There are however no grounds to treat them as unilateral transactions of states in public international law within the present work. 7.7

Passports and Unilateral Acts of States

Somewhat pro forma, a few remarks must be devoted to passports, or more precisely to the act of issuing of a passport. This is another topic discussed in the sections of manuals of international law devoted to individuals. Once again one cannot avoid the remark that the term ‘unilateral act’ is sufficiently broad to encompass that kind of activity. The issuance of a passport is evidently an act, and as it is effected as a rule by one state, calling it unilateral is fully acceptable. However, as in the previous subchapter one may have problems with finding effects of that act in the field of international law. A passport is of importance mainly for the national using it. While the state issuing passports may also receive many benefits – connected with the foreign trips and stays of its nationals – nonetheless it is impossible to treat those benefits as legal effects (in the field of international law) of the act of issuing of a passport as such. That is why it is difficult even to attempt to identify any such effects. For sure, a state which does not issue passports to its nationals violates human rights, and therefore international law. The very confirmation, however, that a certain activity of a state is relevant from the perspective of law does not mean that this activity is a legal transaction of international law. Violation of the law would be the same if a state issues passports but does not allow its nationals to cross borders with them. The act of issuing a passport in and of itself does not have to be of decisive importance. All the more one cannot see in such an act the characteristics of a unilateral legal act (transaction) of international law. One can wonder whether this evaluation is not influenced by the fact that what is at stake in the issuing of passports is the relationship between a state and its nationals only. As is visible from the reasoning above, the latter element does not play any special role in determining that the issuance of a passport does not have the character of an act of international law.

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Extradition and Unilateral Acts of States

This chapter cannot omit the issue of the relationship between extradition and unilateral acts of states. W. Góralczyk defines extradition as the ‘surrender to another state of a person demanded by that state on the charge of committing a crime.’84 In addition to being charged with a crime, one must add a second possible ground for extradition, i.e. the necessity of executing on a judgment already issued.85 Extradition is an instrument of legal assistance.86 To begin with, extradition can clearly be called an act, and even a transaction. As was done with respect to other acts discussed in this part, one should examine the element of the unilateral character of extradition, as well as the dilemma whether it is an institution of domestic law or of international law. With respect to the latter, it will be necessary to refer to the legal effects in the field of international law of extradition (if any). Contrary to all the other institutions connected with individuals and discussed in this chapter, extradition gives rise in particular to doubts as regards its unilateral character. Some authors refer in their definitions of extradition to its lack of a unilateral character. So, for example, Ch. Fenwick presents extradition as the ‘surrender, in compliance with a formal demand, and in accordance with the conditions attached to the general obligation assumed in a treaty agreement.’87 The reasons for denying extradition a unilateral character are numerous. Firstly, in the great majority of cases extradition takes place on the basis of an international agreement. If a treaty introduces an obligation to extradite, such extradition is an obligatory act provided for by an act which is not unilateral, but bilateral or multilateral. At the most it could be a non-autonomous unilateral act, and not a true unilateral act in the proper meaning of the term. Treaties are rightly presented as the main source of regulations on extradition. Such references also hint at a lack of customary norms in this area.88 Ch. Fenwick writes that ‘[s]ince extradition is effected as the result of the provisions of treaties entered into by the nations two by two, it is impossible to formulate any general rule of international law on the subject.’89 84 85 86 87 88 89

W. Góralczyk, op. cit., p. 270. W. Graf Vitzthum (Hrsg), Völkerrecht, Berlin, New York, 1997, p. 260. W. Graf Vitzthum (Hrsg), op. cit., p. 260. Ch. Fenwick, op. cit., p. 330. P.-M. Dupuy, op. cit., p. 62. Ch. Fenwick, op. cit., p. 331.

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It would be a mistake however to identify extradition with treaties in an absolute way. Extradition is possible without a treaty and (despite the low probability), this fact itself suffices to justify the presence of extradition in the present chapter.90 P.-M. Dupuy writes that ‘the law on extradition cannot be reduced to international agreements only’ and refers to the domestic laws of states.91 One can only wonder whether another reference is not necessary – namely to unilateral acts of states (other than domestic statutes on extradition). Such extradition without a treaty seems to presuppose a demand of another state. However one may ask whether the coexistence of the demand and extradition does not introduce the element of an interrelationship, excluding a priori the possibility of calling even non-obligatory extradition as a unilateral act. Let us limit this question by asking if one can establish a treaty relationship in such situations. If extradition is decided on by the executive organs, attempts to see a treaty in the relationship between the demanding and the extraditing state have some chance for success. The coexistence of two communications – ‘Surrender person X’ and ‘We are surrendering person X’ – to a high extent resembles a treaty. However, as regards extradition an additional element plays an important role. In fact the law of the state which is the addressee of the demand decides on the form of decision concerning extradition. The demanding state must count on the fact that in the majority of states both administrative as well as court decisions are subject to an appeal. Thus a positive decision at a given date does not guarantee that extradition will take place. What’s more, when a decision is made by a court such extradition could not be compared to a treaty at all. If there is no treaty in a given situation of extradition, then can one look for a unilateral act in this area? One must come back to the importance of the demand of another state for the qualification of extradition. This is neither the first nor the last situation of demand and reaction in which the unilateral character of the act needs to be examined. A state asked to stop nuclear tests may clearly make a unilateral declaration to this effect. The demand can be treated as an incentive or a motive, but of a political nature, not determining the very legal classification of the transaction. The same cannot be said however about 90

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Ch. Fenwick notes that ‘The earlier treaties provided chiefly for the surrender of political fugitives; but by the time Vattel published his treatise in 1758, ordinary criminals were also surrendered upon specific demand.’ See: Ch. Fenwick, op. cit., p. 330. P.-M. Dupuy, op. cit., pp. 62–63.

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transactions which by definition comprise a demand and a positive or negative response. They include demand for and grant of agrément or exequatur. In my opinion extradition on demand is another example of a transaction which is not unilateral by definition. Let us imagine, however, a completely hypothetical situation in which extradition takes place before a demand for it is made. Could one attribute a unilateral character to at least that type of extradition? In my opinion the answer is negative. It must be underlined that extradition consists of two elements. One of them is the decision on extradition, and the other is the physical handing over of an individual. It is the second element which comprises another reason for doubt as to possibility of calling extradition a unilateral act. One must assume that extradition requires not only the giving up, but also the physical handing over of a person. Even the word extradition (ex-tradition) points at the element of ‘tradition’ (traditio), i.e. a physical handing over. In effect extradition is a real act requiring the active cooperation of two states, and for this reason it should be denied a unilateral character by definition. In this respect it is similar to the cession of territory, which by definition requires the consent of both parties. For the above reasons, in my opinion no example of extradition could be qualified as a unilateral act. One should add that this conclusion is formulated on the most general level of abstraction. In concreto the great majority of examples of extraditions rest on more than one element requiring or assuming the cooperation of two states. Some of them were already mentioned, such as an extradition treaty, extradition request, and practical cooperation in the physical handing over of the extradited person. Others not mentioned are also important. They include numerous letters determining the details of the procedure, guarantees that the judgment will be served in the extraditing state; guarantee that the extradited persons will not be judged for other crimes, and so on. Taking these elements into consideration, one can see that there is no need to search for the legal effects of extradition in the context of this work. However, in order to complete this short overview I do feel obliged to acknowledge that extradition is a real act, connected with the power of a state over an individual. In fact one can relatively easily identify at least one legal effect in the field of international law on the part of the extraditing state. Namely, it deprives itself of its control over the extradited person. In this respect extradition could be compared to waiver. What’s more, a state extraditing a given person in connection with certain proceedings loses the right to deny the fact that such proceedings have taken or are taking place. A state which extradites a person cannot perform a simple actus contrarius which would be effective in such a way that the extradited person had to be returned. All these effects narrow the

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scope of the rights of the extraditing state. It is easy to see that in this respect extradition is similar to classical unilateral acts (waiver, recognition and promise). However, this clearly does not turn extradition into a unilateral act. 7.9 Conclusions This survey of unilateral transactions (with the exception of extradition) effected by states and concerning individuals makes it possible to conclude that only some acts connected with the acquisition or loss of nationality are similar to unilateral legal transactions of states in international law. However, a closer analysis suggests that the former belong to the sphere of domestic law, although they have effects in the field of international law. Paradoxically enough, a much greater similarity to unilateral acts of states are revealed by the acts of granting asylum (or at least some examples of a grant of asylum) and recognition as a refugee. The latter must be denied the qualification as a unilateral transaction of international law, however. Asylum could be qualified in such a way only if several preconditions are fulfilled. These refer to a grant of territorial asylum connected with incentives for an individual to make use of it, as well as some examples of diplomatic asylum. A proponent of the narrow understanding of unilateral transactions of states in international law would probably argue that the legal effects of these transactions are not covered by the will of the author-state. In my opinion, however, there are no grounds for making such a distinction. A state inviting an individual to use its territorial asylum must count on the fact that the scope of its rights will diminish. On the other hand, the legal effect connected with diplomatic asylum lies in the diminishing of the rights of the territorial state, not the author-state. In fact it is difficult to establish the will of the territorial state as to that legal effect. This is why I do not find it useful to insert that requirement into the definition of a unilateral act of state in international law. It is a challenge to apply the grounds of invalidity to such acts – either those recognized by the special rapporteur or in the form of a general requirement of conformity with international law. In fact these grounds seem to be completely inadequate as regards territorial asylum. This does not mean however that a grant of asylum cannot be contrary to international law. Rather, while it gives rise to state responsibility it is difficult to speak about invalidity as such. One cannot exclude situations in which the will of a state granting asylum was improperly influenced. In such a situation the granting state may discontinue the asylum, although some arguments referring to validity cannot be a priori excluded.

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Diplomacy and Unilateral Acts of States 8.1

Introductory Remarks

Diplomatic law is the next area which requires examination from the standpoint of unilateral acts. It must be said at outset, however, that in this field disputes may concern even the very choice and naming of acts (events, activities and so on), which is connected with the examination into their unilateral or non-unilateral character. This may seem strange, inasmuch as diplomatic law as such is well-developed. One can hardly imagine a general work on public international law which would omit that branch of law, and in fact it is the object of several monographs.1 All the same it would be difficult to say that the doctrine has worked out the terminology which would automatically and unequivocally determine the list and precise names of acts to be discussed in this context. In this respect diplomatic law is much different than the law of treaties or the rules of acquisition of territory. On the basis of them the identification of acts (activities) to be discussed was almost automatic. In the field of diplomatic law this can be done only to a limited extent. So there is no doubt that transactions such as giving agrément or declaration of a diplomat as a persona non grata require examination in the present chapter. At the same time one can wonder if there is any sense in speaking about such acts as the establishment of diplomatic relations or the sending or receiving of a diplomat. A positive answer to these questions is a precondition to examining whether such activities are unilateral acts or not. This chapter is aimed at addressing these and similar questions. My intention is to include as many acts and activities as possible in my examination. It is commonly believed that diplomatic law was codified by the 1961 Vienna Convention on Diplomatic Relations, and obviously numerous references will be made to it. At first glance it may seem a kind of paradox that a multilateral act is given such importance in a work on unilateral acts of states, but in fact the assumption is made that the acts and activities provided for in the 1961 Vienna Convention may be taken not only by its parties, but also by states which are not parties to it. That is why it is difficult to speak about them as facultative acts in the technical meaning of the term, that is, as acts the very 1 Vide: infra.

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004274617_011

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existence (possibility) of which is dependent upon their author(s) having the status of a party to a given treaty. As has been said – the codification of custom, and the influence of codification on the future perception of this custom are separate, albeit intertwined, elements of the legal environment which are inescapable for any author writing on international law nowadays. General references to the ‘convention’ should be understood in this present chapter as referring to the 1961 Vienna convention. There is no doubt that the act which seems to be the most important in this context is a waiver of diplomatic immunity. However, for a variety of reasons I have made a deliberate decision to discuss this in Part 4, in the chapter devoted to waiver. All remaining acts from the field of diplomatic law are going to be discussed here. It can also be assumed beforehand that many conclusions reached on the basis of diplomatic law are applicable to analogous transactions of consular law. 8.2

Initiation of Diplomatic Relations and Unilateral Acts of States

E. Denza underscores that the Vienna convention does not define the term ‘diplomatic relations’.2 J. Sutor defines diplomatic relations as the ‘official, friendly relations between subjects of international law established voluntarily on the basis of agreement between two states which have recognized each other. Such relations are realized in the name of these states by special organs and officials which form a separate public service, belonging to the central administration of a state.’3 The ontological nature of diplomatic relations is certainly different from that of acts. It is not the task of this book to define the legal nature of these relations. However, what is really interesting from the perspective of the present work is the act of establishment of such relations. The Vienna convention on diplomatic relations refers to that element in Art. 2, which provides that ‘the establishment of diplomatic relations between States and of permanent diplomatic missions takes place by mutual consent.’ One should pay attention to the differentiation of two elements – namely the establishment of diplomatic relations between states on one hand, and the establishment of permanent diplomatic missions on the other. For now let us concentrate on the first element. 2 E. Denza, Diplomatic Law. Commentary on the Vienna Convention on Diplomatic Relations, Oxford, New York 2008, p. 24. 3 J. Sutor, Prawo dyplomatyczne i konsularne, Warszawa 1988, p. 62.

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It is important to note that the convention does not refer to an international agreement as the basis of diplomatic relations. N. Quoc Dinh notes that the form of expressing consent to that end may be more or less solemn ( joint communiqué, treaty of friendship and so on).4 R. Jennings and A. Watts write that: The establishment of diplomatic relations between two states – either for the first time (as where a new state attains independence) or after a breach of relations which previously existed – usually takes place as a result of a simple announcement to that effect once the states concerned have agreed to take that step, without the need for any formal agreement.5 They note, however, that in situations of ‘outstanding matters in dispute (…) the establishment of diplomatic may be more formally agreed upon as part of whatever settlement of those matters there may be.’6 J. Sutor associates it mainly with an agreement in writing.7 An important and interesting question is whether a joint communiqué or other declaration (being or not being an international agreement) is sufficient to create diplomatic relations. G.H. Hackworth cites the letter of the us Secretary of State Kellogg to the high representative of the usa in Turkey, Mr.  Bristol, of 1 February, 1927. The us Secretary of State indicated that the establishment of diplomatic relations does not result from the exchange of notes but from the handing over of credentials, preceded by the obtaining of agrément.8 It is less than certain that the interpretation adopted by secretary Kellogg was right. E. Denza underlies the above-mentioned differentiation of the establishment of diplomatic relations between States on the one hand, and the establishment of permanent diplomatic missions on the other. He observes that as a rule permission for the latter is not denied in the presence of the former, but it may happen that owing to economic reasons states may not want to establish permanent missions.9 In this situation the presence of diplomatic relations becomes detached from the presence of permanent missions. 4 N. Quoc Dinh, P. Daillier, A. Pellet, Droit international public, Paris 1994, (hereafter invoked as: N. Quoc Dinh, op. cit.), pp. 711–712. 5 R. Jennings, A. Watts, Oppenheim’s International Law, ninth edition, vol. i, London, New York 1997, p. 1058. 6 R. Jennings, A. Watts, op. cit., p. 1058. 7 J. Sutor, op. cit., p. 67. 8 G.H. Hackworth, Digest of International Law, Washington, 1940, vol. i, p. 173. 9 E. Denza, op. cit., p. 33.

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J. Sutor writes that the establishment of diplomatic relations makes it possible to establish ‘diplomatic missions or consular offices, or the performance of diplomatic or consular functions even without the establishment of such missions or offices.’10 It is not difficult to see that this fragment is in direct opposition to the earlier-presented definition of diplomatic relations suggested by the same author. In fact, logically speaking one would ask who could conduct such functions in the absence of the mission? In fact, however, logic is not the best friend when trying to grasp dynamic processes such as the preparation of a permanent mission after the establishment of diplomatic relations. During that interim period temporary officials will take on functions in order to prepare the normal functioning of a future mission. Their activities will probably comprise the purchase or hiring of buildings, their preparation for their future functions, protection, employment of temporary staff, and so on. If an international agreement is the basis for the establishment of diplomatic relations, one can prima facie exclude it from the scope of interest of the present work, as in such a case what is at stake is manifestly a bilateral act. Questions and doubts may arise concerning the other means of establishing diplomatic relations. One can wonder whether the lack of ‘formal agreement’ may mean the lack of an agreement at all, or may mean an agreement which is informal. The question naturally arises: If there is no agreement, is there any obligation whatsoever? Let us consider the following reasoning: ‘If in a given case a new obligation emerges and it does not result from customary norms, resolutions of international organizations or general principles of law, one must conclude that it results either from an international agreement or from a unilateral act.’ Let us for the moment accept that reasoning. In that situation must one conclude that if the establishment of diplomatic relations takes the form of a joint communiqué and creates international obligations, and a joint communiqué is not an agreement, then what is in place are…two unilateral acts? In fact, however, this conclusion is absolutely unacceptable. Once again one must stress that if a reasoning which prima facie seems to be logical forces one to see a unilateral act in a transaction performed by common agreement of two or more states, then one must deny that reasoning any special justification. In fact it is a reasoning ad absurdum. What is at stake in the above case is more the definition of an international agreement than the definition of a unilateral act. In consequence, if a definition of an international agreement is too narrow to cover joint communiqués or other forms of cooperation of two states, one should think about the 10

J. Sutor, op. cit., pp. 67–68.

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e­ stablishment of an additional category – something between a unilateral act and an agreement, or maybe between a treaty and a political agreement. It is rather the second aspect that we are dealing with here. However, the creation of such an additional category, or arguments denying its necessity, is not the task of the present book. It suffices to say that the establishment of diplomatic relations cannot be the result of a unilateral act. The same conclusion must be drawn with respect to the establishment of consular relations or the establishment of permanent diplomatic missions. 8.3

Is the Sending of a Diplomat a Unilateral Act of a State?

The next issue that must be discussed in this chapter is whether the sending of a diplomat to another state is a unilateral act. This subchapter will limit itself to the sending of officials to diplomatic missions in cases where the previous consent of the receiving state is not required. The sending of a member to a mission which requires such a previous consent is dealt with in the next subchapter. The very understanding of the term ‘sending of a member of a diplomatic mission’ may give rise to doubts. Such doubts are completely absent in situations in which a sending state appoints a given person as a member of the mission and the given person actually goes to the receiving state, but how does one qualify a situation in which a new member of a mission is already present in the receiving state at the moment of his/her nomination? The use of the term ‘sending’ seems dubious in that situation. On the other hand, one can imagine a situation in which an official act appointing a given person as a member of a mission is made, or a contract with that person is signed, but for whatever reasons that person does not take over his/her position in the receiving state. Clearly such a situation does not give rise to any legal effects in the sphere of international law. For these reasons the term ‘sending a member of a mission’ will mean the actual engagement by a sending state of a person in its mission in a receiving state, and when necessary will encompass the voyage of that person to the receiving state. First of all one must establish whether such a sending could be called an ‘act’. Paradoxically enough, if it were so confirmed, the identification of its legal effects would be quite easy. First of all they would refer to the privileges and immunities granted to members of diplomatic missions. The qualification of the very element of the ‘act’ is however much more difficult. Several sources of doubts in this respect could be found. They are reflected in the doubts as to the

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precise date of such a ‘sending of a given person to a diplomatic mission’. The following components could be taken into consideration: the day of the signing of the act of appointment of a diplomat; the day of signing a contract with him/her; the day indicated in the contract or act of appointment; the moment of leaving the country of departure; the moment of the crossing of the border into the receiving state; or last but not least the moment of the taking up by a given person of his or her duties in the mission. In fact the temporal scope of the most important aspect of the appointment, that is of the granting of privileges and immunities to a member of a mission, is precisely regulated. According to Art. 39 (1) of the 1961 Convention: Every person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving State on proceeding to take up his post or if already in its territory from the moment when his appointment is notified to the Ministry for Foreign Affairs or such other ministry as may be agreed. The doctrine does not reveal any particular readiness to treat the sending of a diplomat as an act. If any acts are discussed in this context at all it is rather the act of appointment. L. Dembinski writes that ‘the act of appointment, which is within the internal competence of any subject of international law, creates a legal relationship between that subject and the appointee.’11 Also the authors of the manual of W. Graf Vitzthum underline that ‘members of diplomatic ­missions are appointed at will by the sending state.’12 N. Quoc Dinh (and the editors of his work) emphasize the unilateral character of the appointment of members of missions other than the head of the mission.13 It is difficult not to see the act of appointment as an act of an internal nature. This very element does not have to be decisive however. As has been said several times, certain acts may have an internal and international character at one and the same time. However, in this case it is difficult to see any international effects created by the very signature of the act of appointment. If it is not followed by the other activities mentioned in Art. 39 of the 1961 Convention, no such effects could be established. In particular one cannot attribute legal 11 12

13

L. Dembinski, External Missions of States and International Organizations, Dordrecht, Boston, Lancaster 1988, p. 101. W. Graf Vitzthum (Hrsg), Völkerrecht, Berlin, New York, 1997, p. 199. It is difficult to agree with the view presented in that work according to which states request agrément for all members of a mission; see: ibidem. N. Quoc Dinh, op. cit., p. 714.

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effects to the very signature of the act of appointment or a contract with a member of a mission. Toutes proportions gardées, they can be compared to the signature by a competent organ of an act of ratification which is later neither exchanged nor deposited with the depositary, but just put into a safe. It would not give rise to any effects in the field of international law. In fact the sending of a diplomat is usually a combination of more than one element. One of them is attributable to a state – it is the very appointment of a given person in the technical meaning of the term. The second is the physical fact of the appointed diplomat rendering himself to the receiving state. The very act of the sending state itself seems not to be sufficient. The situation of persons already being in the territory of the receiving state seems to be particular in this respect. The internal act of appointment is however also not sufficient. The above-mentioned Art. 39 (1) of the 1961 Convention refers to ‘the notification of the appointment sent to the Ministry for Foreign Affairs or such other ministry as may be agreed’. In this respect a reference to two state acts is present. What’s more, the second of them seems to be a purely international act. In fact however, the situation is even more complicated. While the initial moment of the application of the diplomatic privileges and immunities is an important element in determining the precise moment of an act connected with the appointment of a member to a mission, the importance of this initial moment cannot however be exaggerated to the very point of absurdity. It is not so that the very crossing of a border is more important than the actual taking up of duties in a mission. A situation in which a given person is appointed, makes a trip to the receiving state, and takes the next plane back to his home certainly cannot be treated as a description of the act of sending of a diplomat or another member to a mission. Thus the sending of a member on a diplomatic mission is in fact a mixture of activities. Some of them are performed by the sending state, and some by the individual. This last element leads to the fact that the sending of a diplomat (or another member on a mission) is not similar to protest, waiver, recognition or promise. The latter acts are by definition performed by a declaration, or at least a declaration would be sufficient for the presence of an act. Clearly this is not the case for the sending of a diplomat. The main issue is whether such a similarity is a precondition for the existence of a legal act. In the first part of the book I expressed myself in favour of the thesis according to which legal acts may have different characteristics in many respects. This is why the term ‘act’ is sometimes based on some simplifications and idealizations. They allow for treating more complicated fragments of reality as single items. The only question is how far such simplifications and i­ dealizations

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can go. In my opinion they may go as far as they do not deviate from the very essence of a given act. What is of special importance is the very possibility of attributing it to a state as such. There is no doubt as regards the existence of a state element in the sending of a diplomat or member to a mission. Though not sufficient in itself, it is clearly of utmost importance. A given person is a member of a mission if a sending state wants him or her to be and for as long as the sending state so wishes. Thus in my opinion the above-mentioned simplification connected with the very use of the term ‘sending of a diplomat’ is justified. What is also justified is the attribution of that act (or action) to the sending state. The confirmation of the presence of an act in this case is more difficult than the attribution of a unilateral character to that act (once established). In fact only two elements could give rise to doubts in this respect. Firstly, this act is by definition performed in relation to a concrete foreign state. Secondly, performance of the act is possible only if the two states have diplomatic relations. The first circumstance, however, is of no importance. Many unilateral acts sensu stricto are made with respect to another individual state. The second circumstance demonstrates the specific character of diplomatic law. Some acts or activities which may be called unilateral are (or must be) preceded by bilateral acts. The decision whether this is sufficient to deny the term ‘unilateral’ to such acts or activities is anything but easy and must be done a casu ad casum. In fact some activities connected with diplomatic law are clearly bilateral. These include the establishment of permanent missions. Also the appointment of the head of a mission is dependent on the consent of the receiving state. But the appointment (understood as sending) of other members of a mission is governed by other rules and it would seem to be a mistake to overlook that difference among various acts and activities of diplomatic law. Certainly, the receiving state can influence the presence of any person in the mission, or more precisely the privileges and immunities of that person. Namely, it can declare a member of a mission to be a persona non grata14 or not acceptable.15 The fact that this right is manifestly of a horizontal character seems to be not sufficient to serve as a basis of differentiation. In my opinion it is not a decisive argument to deny the unilateral character of the sending of a member of a mission.

14 15

Art. 9(1) of the 1961 Convention. As regards diplomats, see: W. Góralczyk, Prawo międzynarodowe publiczne w zarysie, Warszawa 1989, p. 285. Art. 9(1) of the 1961 Convention. As regards other members of a mission, see: W. Góralczyk, op. cit., p. 285.

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In this context one cannot avoid comparisons to the previous discussions in this work on acts connected with treaties. The fact of their being connected with a treaty (an act which is by definition not unilateral) seems to cut off any discussion on their status as unilateral acts sensu stricto. One can wonder if diplomatic law is not similar in this regard to the law of treaties. It is clearly based on the interaction of two states – the sending one and the receiving one. Given that situation, any search for unilateral acts sensu stricto would seem to be futile. In fact the main dilemma in this respect is what should be treated as decisive. Is it the similarity of diplomatic law to the law of treaties, or maybe the dissimilarity among certain activities of diplomatic law? Some of the latter are clearly consensual, while others are not. In my opinion one should refer to the characteristics of the transactions as such. Thus one cannot exclude a priori the existence of unilateral acts sensu stricto in the field of diplomatic law. If the term sensu stricto is to be applied to the unilateral character rather than to the remaining elements of an act, then the sending of a diplomat must be called as such an act. If one has doubts about that characterization they would only be due to the fact of the act of state being very strictly connected with an activity of an individual. The same conclusion can be extended to all members of a diplomatic mission. In fact the same problem could be discussed on the basis of consular law and norms of international law concerning special missions. Sending of a person to a mission could be deemed to be a concrete and individual act insofar as it concerns a specific individual. Reference was already made to the privileges and immunities of members of a mission. The application of these privileges and immunities is of particular importance in this respect. They give rise to the rights and duties of states rather than the rights of individuals. Thus what is beyond any doubt is both their legal character and the fact of being governed by international law. The fact is, however, that they may obscure the essence of the act of sending a diplomat or member to a mission. What is the most important is that the latter act gives the sending state the possibility to fulfil diplomatic functions in the receiving state. One can wonder whether it is a right in the strict sense of the word? Even if no, one could not accept the argument which would equate the legal significance of the act with the grant of privileges and immunities. In fact the individual character of the act reflects to the highest extent its legal essence. In my opinion, this essence lies in the endowment of an official character to a given individual. Its counterpart is the duty of the sending state connected with its responsibility for a given individual.

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That is why in my opinion the sending of a member of diplomatic mission must be called as a unilateral act of state in public international law. The above-mentioned unilateral character is not present in the situation in which consent of a receiving state is necessary. Acts connected with such nominations require more attention in my analysis, which is why they are dealt with in the following subchapters. 8.4 Is Agrément a Unilateral Act of a State? As a rule agrément is granted at the request of a sending state. This request is sometimes called demande d’agréation. It is worthwhile to examine whether either or both elements could be qualified as unilateral acts. It seems useful to start with an examination of the nature of agrément as such. Even though a negative answer to the question formulated in the title of this subchapter seems to be all but certain, still it is worthwhile to look at the precise reasons for this and examine the essence of agrément. The conclusions drawn may be useful for other acts, the qualification of which is less obvious. Agrément is defined as ‘a prior consent of a receiving state to accept certain categories of diplomatic representatives of a sending state.’16 Sometimes agrément is differentiated from approbation, the first term being reserved for the consent for the person as the head of a mission (with the exception of chargé d’affaires ad interim). The second term would apply to military attachés.17 It is stressed that approbation may be requested, but does not have to be.18 In fact the 1961 Vienna Convention mentions the requirement of consent of a receiving state with respect to military, naval or air attachés (facultative),19 nationals of the receiving state (obligatory),20 or of third states not being nationals of the sending state.21 Some states make such a requirement with respect to deputy military attachés.22 It should be noted that my remarks concerning the grant of agrément will also be applicable to the consent of a receiving state for the appointment of persons other than just heads of missions. 16 17 18 19 20 21 22

J. Sutor, op. cit., pp. 118–119. J. Sutor, op. cit., p. 119. J. Sutor, op. cit., p. 119. Art. 7 of the 1961 Convention. Art. 8(2) of the 1961 Convention. Art. 8(3) of the 1961 Convention. J. Sutor, op. cit., p. 119.

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The lack of any similarity of agrément to unilateral acts is obvious. For example, J. Sutor writes that: The institution of agrément is composed of two basic elements: the first of them is a request of the sending state to the receiving state whether a person designated for the post of a head of a mission is “welcome” (…) This is the so-called demande d’agréation. (…) The second element is the grant of agrément by the receiving state, that is the expression of a prior consent for the candidate.23 A basic dilemma in this respect is whether agrément should be analysed together with the request for agrément, or independently of it. In fact both approaches are acceptable, so long as the conclusions made within their framework do not collide with each other. Manifestly a grant of agrément is an act of one state only. It is however effected only within a consensual framework, i.e. as a reply to a question concerning an individual person. One may ask whether exceptions to this are possible – agrément being given without a request.24 Even if there is such a possibility it belongs rather to the sphere of pure hypothesis and can be put aside in the further discussions. In consequence it seems obvious that agrément is not an autonomous unilateral act. One can discuss, however, whether it should be qualified as a nonautonomous unilateral act or rather as an element of a bilateral transaction. In fact this question is of a purely academic character and depends just on the definition of a unilateral act sensu largo. One can claim that granting agrément is a non-autonomous unilateral act, if the acceptance of a offer is also such an act. The formulation of any different conclusions as regards these two situations would seem to be completely unacceptable. Previously I excluded the presence of a unilateral transaction sensu largo with respect to both these transactions. Nowadays I am not ready to repeat this statement. In fact the 23 24

J. Sutor, op. cit., p. 119. Such an exceptional situation, i.e. giving agrément without a request would in fact amount to a receiving state influencing a sending state as regards persons suggested to be the head of a mission. It is difficult to reconcile this with the principle of sovereign equality of states. One can imagine, however, a situation whereby a given state wants to honour a given group of people (e.g. the Polish Solidarity leaders, or the signatories of Charter 77) and goes as far as to declare that it approves their eventual appointment without a separate request for agrément. But this would be risky for both the sending as well as the receiving state.

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reply is given by one state, so calling it as a unilateral transaction sensu largo seems justified. The legal effects of granting agrément may prima facie give rise to doubts. A state may grant agrément to a given person and later delay the ceremony of presenting his or her credentials in such a way that a given person will not be able to act as head of a mission. It may also declare the holder of agrément as a perona non grata. While the grant of agrément is a compulsory condition for becoming a head of a mission, as mentioned it may turn out to be insufficient to achieve that aim. Having in mind this circumstance, one cannot deny the legal effect of a grant of agrément. It gives the requesting state the right to appoint a given person as a head of mission. In fact the request for agrément and the grant of it create a legal relationship between the two states. The main question is how to qualify that kind of relationship. One can wonder in particular whether it should be qualified as an international agreement. It is understandable that specialists in the law of treaties will not be very happy with the inclusion of such elements into the scope of their study. Even so however, they cannot try to throw them into the field of unilateral acts. In consequence one may have to do with elements which are neither treaties nor unilateral acts. This serves as proof that the terminology of international law is too poor to accommodate such elements. One cannot exclude that someday a proposal will be made to introduce an additional phenomenon, e.g. a quasi-agreement. The author of a study of unilateral acts under international law does not, however, need to feel obliged to work out such terminology. It is sufficient to point out such a need. 8.5

Is a Request for Agrément a Unilateral Act of a State?

As shown above, the fact that agrément is not true (sensu stricto) unilateral act is beyond any doubt. It is necessary to make such a qualification as regards a request for agrément. In fact it is an address by one state to another to perform a given transaction. Such an address clearly has an official, i.e. state, character. There are no obstacles to calling it an ‘act’. Such an act would fit into a wider category of demands, applications, questions, proposals and addresses made by one state to other states. The legal effects of a demand for agrément are connected with the fact that the addressee state can make a positive or negative answer, or not answer at all, it being understood that the lack of reply is a negative answer. As a consequence the request is an element of the procedure for appointment of a head of a mission.

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The demand is made by one state only, hence the notion ‘unilateral’ seems proper. The doubts are attributable to a feeling that both the demand and the answer of the receiving state should be treated as dual elements of one act. It cannot be denied that a demand is oriented toward a positive answer. It presupposes such an act from the receiving state. In that respect the situation is similar to an offer to conclude an international agreement. An offer is an act. It can be accepted and become a part of an international agreement, or it may be denied and cease to produce the legal effects which were present at the moment of its issuance. Analogously, a request for agrément is an act made by one state with the aim of obtaining an act (what’s more – an act of a precise content) of another state. In the situation in which that requested act takes place – that is agrément is given – a bilateral transaction is in place. The only question is whether this element must prejudge the qualification of a request for agrément as such a bilateral act. It cannot be overlooked that responses to a demand may be different. Negative reactions of the addressee – denial or silence – also have legal effects. They consist in the fact that the requesting state cannot appoint as a head of a mission that person who was not granted agrément. This effect results from the coexistence of two elements – the request for agrément and the reaction of the addressee state. This is why a request for agrément is not a unilateral act sensu stricto, analogously as an offer is denied that character. It always relies on a certain relationship to another act of the addressee-state. The only remaining choice is between the qualification of request for agrément as a unilateral act sensu largo, or as an act which by definition in not unilateral. In this respect it must be asked whether it would make any sense to argue that a request for agrément is a unilateral act when it is denied, either expressis verbis or implicitly, and becomes an element of a bilateral transaction when accepted. In my opinion, such a description would be artificial. It would make the qualification of one and the same act different on the basis of elements which are external to it. That is why I see no special obstacles to calling a request for agrément as a unilateral act sensu largo. The same description could be extended to a request for exequatur. The next question is whether an appointment of a head of mission, preceded by a grant of agrément, is a unilateral act. Clearly it is not an autonomous act. It is completely dependent on two previous acts – the request for agrément and the grant of it, and together these manifestly form a bilateral relationship. However, as the appointment is effected by one state it is difficult to deny it the character of a unilateral act sensu largo. As was said, the appointment as such is an internal act. If a transaction of international law is to be found here it is rather the equivalent of the sending of a diplomat. In this sense

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further references to ‘appointment of a head of a mission’ should be read as ‘sending of that person’ – that is, an appointment of domestic law connected with his/her actual presence in the receiving state. One can ask whether it should be identified with the taking up of the duties by a given person. If fact such an identification cannot be made because of the relationship of the latter with two elements which are discussed in the next subchapter. 8.6

Are Credentials and Accreditation Unilateral Acts of States

The search for unilateral acts cannot omit the question of the legal nature of credentials. R. Jennings and A. Watts write that by the means of letters of credence ‘the Head of State accredits a permanent ambassador or minister to a foreign state’.25 L. Dembinski writes that ‘[t]he credentials, also called letters of credence, are a traditional form of full powers, addressed by the head of the accrediting State to his counterpart in the receiving State.’26 Such a description could be found in the work of B. Sen.27 In fact one has to do with credentials by all kinds of heads of diplomatic missions (including nuncios, internuncios, envoys or chargés d’affaires; in the latter case the emitting person is not the head of a state, but the minister of foreign affairs). The authors dealing with diplomatic law do not feel the need to analyse the legal nature of credentials, concentrating instead on the necessity of having them, the procedure connected with their production and presentation,28 and their content.29 What is interesting for the present work however is precisely the neglected element, i.e. the legal nature of credentials, especially in the context of the question posed in the title of the present subchapter. First of all one must reckon with the fact that credentials form a kind of document. One can imagine a situation in which credentials are signed and later changed or destroyed by the competent organs of a sending state. Such credentials do not produce any legal effects on the international plane and ­cannot be treated as a legal transaction. When discussing the legal nature of 25 26 27 28 29

R. Jennings, A. Watts, op. cit., p. 1062. L. Dembinski, op. cit., p. 133. B. Sen, A Diplomat’s Handbook of International Law and Practice, Dordrecht, Boston, London, 1988, p. 50. As to the practice of presenting envoys with a sealed letter of credence and an open copy, see: R. Jennings, A. Watts, op. cit., p. 1062. B. Sen, op. cit., p. 50. According to him ‘[t]he credentials in all cases must, however, contain a clause asking that credit be given to all that the diplomatic agent may say in the name of his sovereign or the government (…)’, ibidem.

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c­ redentials, one assumes in fact that the proper document was not only made but also presented to the head of a receiving state.30 That presentation is a part of the accreditation of a given person by the head of the receiving state. Its legal nature must be also discussed in the present subchapter. There is no need to say that such a conclusion can be made only a posteriori. This would cast into doubt the very sense of discussing the production of credentials. Nevertheless, in my opinion their legal nature deserves to be discussed. This is not the first time in which the present work has faced the need to distinguish between an act understood as transaction on the one hand, and an act understood as a document on the other. One may ask at this point whether only acts understood as transactions are of interest in the present work? In my opinion, a positive answer should be given to this question. A reference to the subchapter on ratification in Chapter 5 should be made here. What was of interest there was the transaction of ratification and not the document confirming it. It seems that one should treat credentials in analogous way. In consequence, the proper question is whether the production of credentials and their presentation are unilateral acts. There is no doubt that the production of credentials is a state transaction and there are no reasons which would prohibit calling it an act. There is also no doubt that credentials are made by one state only. What should be stressed however is that credentials may be produced only with respect to a person who obtained agrément. I have already qualified the latter as a unilateral act sensu largo. The latter qualification was also applied by me to the appointment of a head of a mission. In my opinion, the production of credentials cannot be qualified otherwise than the latter act. These two elements are very strictly connected with each other. The next transaction which requires attention is the reception of the head of a mission. By ‘reception’31 one should understand a transaction (or a group of transactions) connected with the presentation and acceptance of credentials. It is also called the ‘presentation of credentials’.32 30

31 32

In practice the original letter of credence is handed physically to the head of a state during the ceremony. A copy is sent to the Ministry beforehand (R. Jennings, A. Watts, op. cit., p. 1062). One can ask whether it would not be proper to speak about two acts involved in the sending of letters of credence. If however the original is not handed over for some reason, it is difficult to attribute any special importance to the act of sending a copy to the Ministry. This nomenclature is used in: R. Jennings, A. Watts, op. cit., p. 1064. L. Dembinski, op. cit., p. 133, see also: B. Sen, op. cit., p. 50.

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The very nomenclature says a lot, as the same institution could be looked at from the perspective of either the receiving state (reception) or the sending state (presentation). This perfectly reflects the bilateral nature of the transaction. It requires the cooperation of two states – the receiving state and the sending one. The receiving state cannot accept credentials other than the ones officially presented to it, and a sending state cannot present them otherwise than with the cooperation of the receiving state. Therefore there is not the slightest argument which could be used to give the presentation of credentials the character of even a unilateral act sensu largo, and it must be deemed by definition a bilateral transaction. One must note, however, that some authors prefer in this context to refer to the ‘taking up’ of the functions of a head of a mission.33 In fact this is the term used by Art. 13 of the 1961 Convention. It is more difficult to determine its nature. It is rather a description of a certain fact, presupposing several acts of a different nature. As ‘taking up’ is ‘considered’ to be coincident with the presentation of credentials, the afore-discussed qualification of the presentation of credentials should be extended to it. 8.7

Recall of a Member of a Mission by a Sending State

The discussion on unilateral acts cannot leave aside the topic of the termination of the function of a diplomatic agent. In fact, this aspect seems very promising from the perspective of the topic of the present work. Let us start with the termination of that function by the sending state. This is manifestly an act of internal law. As has been said several times, that element cannot be treated as decisive as regards whether a given act should be considered to be one belonging to international law as well. Proving such a character in the case of termination is not difficult, as termination clearly has effects in the sphere of international law. This is especially visible with respect to the head of a mission. A given person no longer represents a sending state. The effects are also present however in the case of other diplomats. They lose their privileges and immunities. In fact one cannot limit that effect to diplomats only, as it is present with respect to all other members of the mission, at least those entitled to privileges and immunities. It is obvious that the decision regarding the termination of functions of a member of a mission is made individually by a sending state, hence there is no obstacle to calling it unilateral. 33

I. Brownlie, op. cit., p. 350.

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Certainly an author accustomed to the classical catalogue of unilateral acts would be unhappy with such a multiplication of such acts. That is why it is useful to consider a priori arguments which would be probably used to put into doubt granting such a character to the termination of the function of a member of a diplomatic mission. The first of these arguments could refer to the fact that the act in question is provided for in the 1961 Vienna convention. Hence it could be called a facultative act provided for by an international agreement. This argument is not very pertinent. The convention did not introduce that type of act, and the possibility of making it is not dependent on being a party to the convention. There is no possibility to either reduce this act to a facultative act or even to compare it to such acts. Secondly, some authors exclude autonomy to all transactions performed on the basis of customary norms. However, waiver, recognition, protest and promise are also effected on the basis of customary norms. Hence the fact of being based on customary norms cannot form a decisive criterion for the qualification of termination in this respect. The third element was already discussed in the subchapter devoted to the sending of members of a diplomatic mission without the prior consent of a receiving state. Before a member of a mission can be recalled, several transactions which are evidently not unilateral must have taken place. As was already demonstrated, I am not ready to attach a decisive role to this element. In consequence, there are no grounds to question the characterization of termination of the function of a member of a diplomatic mission as a unilateral act sensu stricto. The same conclusion certainly applies to the termination of a function of a member of a consular office. A different character must be attributed to a temporary recall of a head of a mission. N. Quoc Dinh rightly calls it a significant act, as a rule resulting from the worsening of relations between the sending state and the receiving one.34 However, its importance could be situated rather in the field of politics than law. Though the very notion ‘unilateral act’ is wide enough to cover the temporary recall of a head of a mission by a sending state, there is a fundamental problem with finding legal effects in such an act, so it is difficult to treat it as a legal transaction of international law. It is difficult to treat the fact that the duties of a head of a mission are conducted by another person as such an effect. This is rather a rudimentary fact connected with the absence of the head of a mission. In fact, the negative assessment in this regard is connected with the fact that the scope of privileges and immunities of the diplomatic 34

N. Quoc Dinh, op. cit., p. 714.

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staff on the one hand and of the head of a mission on the other are practically identical. If the former were narrower than the latter, then the temporary recall of the head of a mission would mean widening of the scope of immunities of the person replacing the head of a mission, which could be sufficient to see a legal transaction in this act. This is however only a hypothetical situation. As the law stands now, one should deny the character of a legal transaction to a temporary recall of the head of a diplomatic mission. 8.8

Declaration of a Member of a Mission as persona non grata or as a Not Acceptable Person

The next act that requires attention is performed by a receiving state. Namely, it can declare a foreign diplomat as a persona non grata or another member of a mission as not acceptable. Sometimes the terms ‘expelling an ambassador’ or ‘demand of the return of an ambassador to the sending state’ are used.35 In fact they may reflect the way in which a receiving state formulates its demands to the sending state. In this respect the choice of terminology is an open question, and the very term non grata does not have to be used in concreto. From the legal point of view all demands of this type will be treated as a declaration of persona non grata (with respect to the head of a mission and other members of the diplomatic staff of a mission) or not acceptable person (with respect to other members of the staff of a mission). The authors of the manual of W. Graf Vitzthum rightly present these declarations and demands of a receiving state as a sanction (Sanktionsmöglichkeit).36 They are clearly state declarations. There is not even the slightest obstacle to calling them state acts, hence the classification of them as legal transactions depends on the confirmation of their legal effects. In fact there is no problem to find such effects. It is the loss by a given person of diplomatic privileges and immunities. In the previous subchapter possible counter-arguments regarding such a qualification of several transactions in the field of diplomatic law were alluded to. They may also be referred to with respect to a declaration of someone as 35

36

See: M. Deszczyński, R. Kupiecki, T. Moszczyński, Historia polityczna świata. Kalendarium wydarzeń 1945–1994, Warszawa, bdw, p. 368, on the demand of New Zealand of 24 January 1980 to the ambassador of the ussr and the Soviet reply of 29 January 1980. W. Graf Vitzthum (Hrsg), op. cit., p. 200. The authors of this work are wrong, however, when they write that it is the only sanction. One cannot forget about the possibility of severance of diplomatic relations.

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persona non grata (or not acceptable person) but as in the previous subchapter I am not ready to treat them as decisive. However, with respect to a declaration of someone as a persona non grata or a not acceptable person another important counter-argument emerges. This has to do with the fact that a diplomat declared as persona non grata or another member of mission’s staff declared as a not acceptable person has some time before leaving the receiving state. During this time he/she still has privileges and immunities. One can probably argue that the precise effects of the act of declaring a diplomat as persona non grata (or of another member of a staff of a mission as a not acceptable person) are dependent not only on the declaration of the receiving state as such, but also on the behaviour of the individual concerned. If the latter leaves the receiving state within a reasonable time, no actual loss of immunities would be established, hence there would be an apparent lack of effect. The adjective ‘apparent’ must be emphasized. The passive behaviour of an interested person does not block the effects of such a declaration, hence the latter are attributable to the receiving state and to the receiving state only. If the same person comes back later to the receiving state, the lack of his/her immunity will be beyond any doubt. That is why one cannot deny legal effects to a declaration of someone as a persona non grata or as a not acceptable person. What occurs is just the temporal delay of the most drastic effect – that is the possibility of treating a member of a diplomatic mission in the same way as any other person under the jurisdiction of a state. In consequence one must conclude that a declaration of someone as persona non grata or as a not acceptable person is an example of a unilateral act sensu stricto. The above conclusions certainly apply also to a declaration of a member of a consular office as a not acceptable person. 8.9

Severance of Diplomatic Relations

Severance of diplomatic relations is the most obvious candidate for being treated as a unilateral act.37 It is also so defined by several authors. For example L. Dembinski writes that ‘[t]he severance of diplomatic relations is a unilateral act by which a State withdraws its diplomatic mission accredited to another State and requests that State to do the same.’38 P.-M. Dupuy also defines it as a 37

38

The examples of that transaction are numerous. So e.g. on 22 January 1980 the Republic of Central Africa severed diplomatic relations with the usrr, vide: M. Deszczyński, R. Kupiecki, T. Moszczyński, op. cit., p. 368. L. Dembinski, op. cit., p. 91.

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unilateral and discretionary act (acte discrétionnaire pris par une décision unilatérale).39 E. Denza writes that: Breach therefore takes place normally in consequence of a unilateral act – even though it frequently follows a sequence of reciprocal or retaliatory moves between two States to downgrade their relations or a collective political decision by a number of States against another State whose conduct is regarded as unacceptable.40 What is usually underlined is the fundamental political importance of that act,41 which in fact is not actually important here. The identification of legal effects however seems not difficult. They are connected with the termination of diplomatic privileges and immunities (or more precisely – of the privileges and immunities of the members of a diplomatic mission). Hence the remarks of the preceding two subchapters apply. Such an identification of legal effects may give rise to doubts however. It seems to overlook the very essence of the breaking off of diplomatic relations. By definition it leads to the termination of such relations. It is difficult to call it a legal effect in the technical meaning of the term. E. Denza writes that in certain situations a breach of diplomatic relations ‘is only partially real’.42 The determination of the legal nature of diplomatic relations is not the task of this work. It should be rather the task for the doctrine of diplomatic law. All the same one can assume that the more legal the essence of diplomatic relations is, the greater is the chance of treating their breach as a legal transaction. In consequence, the breaking off diplomatic relations could be qualified as a unilateral act sensu stricto. The same may also be said about the breaking off of consular relations. 8.10 Conclusions In summary, one can confirm the presence of unilateral acts sensu stricto in the field of diplomatic law. They are connected with the termination of a function of a given person in a diplomatic mission by a sending state and with 39 40 41 42

P.-M. Dupuy, Droit international public, Paris, 1993, p. 44. Similarly: N. Quoc Dinh, op. cit., p. 713. E. Denza, op. cit., p. 485. N. Quoc Dinh, op. cit., p. 713. E. Denza, op. cit., pp. 485–486.

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a­ nomalies in relations, in the macro scale (breaking off diplomatic relations) or the micro scale (declaration of a member of a mission as persona non grata or not acceptable). Despite some doubts, I am ready to see a unilateral act sensu stricto in the sending of a member of a mission not requiring the previous consent of a receiving state. The same can be said about analogous transactions of consular law. One can note (not without some sarcasm) that what is necessary before such unilateral acts can emerge is one or more bilateral act (establishment of relations, accreditation) or at least acts which are not unilateral sensu stricto (request for agrément). Hence it is little wonder that the doctrine dealing with unilateral acts has not searched for them in diplomatic law, and probably would not be happy to find them there. Their presence is however an objective fact, which should be rather reckoned with than ignored. In fact their presence is the result of a most peculiar coincidence of elements. First of all, the position of the organs of one state (the sending state) in the territory of another (the receiving state) results in a special interrelation between these states. Some matters require strict cooperation between them, while others are made by one state only. The separate character of the latter is especially visible in contrast with the former. That is why the use of the term ‘unilateral acts’ for the acts performed by one state only seems quite justified. Secondly, the influence of such acts on privileges and immunities makes the establishment of legal effects of such acts relatively easy. This is another particular coincidence. There are many other fields and branches of law containing acts which seem to have as strong a force as the ones from the diplomatic law; yet what is missing in the former are precise legal effects, hence qualifying them as legal transactions is much more difficult, if not impossible. On the other hand, the above-presented transactions from the field of diplomatic law contain no obstacles to such a qualification. As has been said, it is not my ambition in this work to refer to every single unilateral act of state. On the contrary, my task is to show both how difficult and how easy it is to find them. They are not exceptional. That is why any attempt to produce a document referring to unilateral acts in general must take into consideration their great number, and indeed the actual impossibility of identifying all such acts. Hence any attempts to describe such open categories are less than serious. What is even less serious is pretending that there is a common legal regime of such acts.

chapter 9

Norms Connected with the Use of Force and Unilateral Acts of States 9.1

Introductory Remarks

I’ve already referred to catalogues of unilateral acts (legal transactions of international law) as comprising certain acts connected with the use of force.1 E. von Waldkich could serve as an extreme in this respect. His presentation (one of the first in history) of unilateral acts of states in international law limits itself to two examples of such acts: declaration of war and declaration of neutrality.2 Obviously both are related to a use of force. One cannot get rid of the impression that while the earlier legal literature paid almost no attention to unilateral acts taken together (as a group category), some unilateral acts connected with war were at the very centre of attention. This relates first of all to declarations of war, and to a lesser extent to declarations of neutrality.3 Hence there can be no doubt about the need to extend the search for unilateral acts of states to the norms connected with the use of force (i.e. ius contra bellum and ius in bello). From the outset it must be stressed that the present chapter is not aimed at questioning or weakening the prohibition of the use of force. No sentence and no word of the present work has this intention. If the un Charter is not dwelt upon, it is mainly due to its multilateral character. The present remarks are also not aimed to revive the old terminology – referring mainly to war instead of armed conflict. The relationship between war sensu stricto and an armed conflict is less important for the present work. The remarks concerning war will be applied (at least to certain extent) to an armed conflict and even to examples of the use of force which are qualified neither as war nor as an armed conflict. 9.2

War and Unilateral Acts of States

The very question whether war is a unilateral act within the understanding adopted in this work might seem to be odd. It is obvious that the ontological 1 Vide: Chapter 3. 2 E. von Waldkirch, Das Völkerrecht in seinen Grundzügen dargestellt, Basel, 1926, p. 215. 3 Vide: infra.

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status of war is different and one cannot even see the slightest similarity between war and a unilateral act. T. Funck-Brentano and A. Sorel, for example, call war a ‘political act’.4 Even in trying to adopt that terminology it is obvious that war is not an act of one state, but of at least two. In addition the essence of a war could be hardly expressed in one word, and if so it is doubtful that the word ‘act’ would really be the proper one. However, it is worthwhile here to cite an original opinion of J. Hatschek. He defines war as a ‘sum of transactions of international law and, what’s more, unilateral legal transactions (einseitigen Rechtsgeschäften)’.5 A sum of unilateral transactions does not have to be itself a unilateral transaction. In addition, it’s very difficult to understand Hatschek’s opinion – both when analysed in abstracto as well as in the context of other views of that author. Interestingly enough, he excludes the thesis according to which war is legal relationship (Rechtszustand) between enemies. According to him, it is only such a relationship between the belligerent states and neutrals.6 In fact this would suggest the impossibility of the very existence of humanitarian law, which rests on the premise that some legal rules bind the parties to a conflict in their mutual relations. That is why the conception of J. Hatschek must be approached with the utmost scepticism. Other authors have attempted to define war as well. Some definitions seem to be of importance for the present work.7 One should add that it is easier to find such attempts in the older literature, which is why references to works from the end of the 19th century and the beginning of the 20th century will dominate here. For example, E. von Waldkirch writes that war is not only a factual relationship, as it is regulated by many norms of international law.8 On the other hand, according to him calling war a legal proceeding (Rechtsverfahren) or process of international law (der völkerrechtliche Prozess)

4 T. Funck-Brentano, A. Sorel, Précis du droit des gens, Paris, 1887, p. 233. 5 J. Hatschek, Völkerrecht als System rechtlich bedeutsamer Staatsakte, Leipzig 1923, p. 290. Hatschek disputes the view of Pufendorf and Kant, for whom war is a treaty, that is a bilateral legal relationship. 6 J. Hatschek, op. cit., p. 288. 7 What remains outside the scope of our interest is whether a war without actual fighting is possible. This question is answered in a positive way, see e.g.: S. Hurwitz, Was Denmark at War?, Nordisk Tidsskrift Int. Ret, 1945, p. 51. Another aspect outside the scope of our interest here is the understanding of the word ‘war’ in the domestic law of a given state. For more on the combination of these two perspectives (of international and of domestic law), see: G.G. Phillimore, What is a State of War in Law, J. Soc. Comp. Legis, 1902, pp. 128–134. 8 E. von Waldkirch, p. 335.

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also does not reflect its true nature very well.9 T.J. Lawrence defines war as ‘a contest carried on by public force between states, or between states and communities having with regard to the contest the rights of states, the parties to it having the intention of ending peaceful relations and substituting them with those of hostility, with all the legal incidents thereof.’10 T.J. Lawrence polemicizes with H. Grotius, according to whom war was a condition. Lawrence stresses that ‘[w]ar is a contest, not a condition; and moreover it is restricted to contests carried on under state authority, directly or indirectly given.’11 T. Funck-Brentano and A. Sorel define war as a political act by which states, not being able to agree on what they perceive as their rights, duties and interests, engage in a military conflict in the belief that the stronger one will be in a position to enforce its will against the weaker one.12 E. von Ullmann defines war as the taking up of military activities by one or more states against each other, those activities affecting the independence and even the territorial integrity of the losing state.13 E. von Ullmann underlines that within the framework of international law of civilized states, war has the character of a legal relationship (Rechtsverhältniss), while not being a legal measure (Rechtsmittel) in the technical meaning of the term.14 The famous work of Oppenheim/ Lauterpacht defines war as ‘a fact recognized, and with regard to many points regulated by, but not established by, International Law.’15 The interrelationship of war with state activities and with international law does not automatically lead to confirmation of the status of war as a legal act, and all the more as a legal transaction. It is either a relationship or a set of events. They could be connected with acts but could be hardly reduced to them. If a war is a relationship, it is by definition not an act. It is worthwhile to add that such a relationship assumes the existence of more than one party. If a war is a set of facts/events, as a rule they are numerous and attributable to more than one state. For this reason it is difficult to see any similarity between war or armed conflicts to unilateral acts of states. 9 10 11 12 13 14 15

So: E. von Waldkirch, p. 335. T.J. Lawrence, The Principles of International Law, London, 1925, p. 309. T.J. Lawrence, op. cit., p. 309. T. Funck-Brentano, A. Sorel, op. cit., p. 233. E. von Ullmann, Völkerrecht, Tübingen, 1908, pp. 464–465. E. von Ullmann, op. cit., pp. 465–466. L. Oppenheim, International Law. A Treatise. Eighth edition edited by H. Lauterpacht, London, New York, Toronto 1955, (hereafter cited as Oppenheim 8), vol. ii, p. 202.

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The last element to be examined here has to do with the time factor. Both war and armed conflicts are as a rule extended over time. The greatest challenge is the extent to which they can differ in this respect. A war can last 100 years, one year, or just a few hours or even a half an hour. It is a great semantic problem to try to call an act something that lasts for years. Paradoxically, this is much easier with a pointed attack – e.g. an air raid against an atomic installation of a foreign state (assuming that such a raid is not always an internationally wrongful act). As a result, the second question becomes how to divide examples of the use of force into those which are, and those which are not, acts. In fact what seems to be apt for being called an ‘act’ would be just one armed activity of one state. If a conflict could be reduced to such a single activity, then by the way of coincidence it seems it could be called an act. This coincidence has a dual aspect. If there is one concise event in time, the term ‘act’ seems to be useful. As the act comes from one state, the notion ‘unilateral’ may appear to be a proper description. In other situations, however, the use of that term is rather excluded. Acts of war and unfriendly acts will be discussed in the context of several of the following subchapters. In consequence, if a war or a conflict cannot be treated as an act as such, maybe this term is a proper one for the very start of a war (armed conflict) or some other element connected with it, in particular a declaration of war. This topic is thus examined below. 9.3

Declaration of War and Unilateral Acts of States

9.3.1 Definition of a Declaration of War This part of the analysis will limit itself to the institution called a declaration of war,16 déclaration de guerre,17 Kriegserklärung.18 One should note at the outset that some variation as regards the terminology is visible.19 16

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Ch. Ch. Hyde, International Law Chiefly as Interpreted and Applied by the United States, Boston, 1947, vol. iii, p. 1694; T.J. Lawrence, op. cit., p. 321, Ch. Fenwick, International Law, New York and London, 1948, pp. 552–554. See: T. Funck-Brentano, A. Sorel, op. cit., p. 241ff.; L. le Fur, Précis de droit international public, Paris, 1939, p. 548, J. Spiropoulos, Traité théorique et pratique du droit international public, Paris, 1933, p. 355. J. Hatschek, op. cit., p. 291 et. seq. E. von Ullmann, op. cit., p. 472. E.g. E. von Ullmann writes on Kriegserklärung, Kriegs­ verkündigung and Ultimatum. E. Nys uses the term ‘notification de la guerre’; see: E. Nys, Le droit international. Les principes, les theories, les faits, Bruxelles, Paris, 1906, t. iii, p. 118ff.

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One cannot pretend that a declaration of war is at the very centre of interest of lawyers dealing with the use of force. What is really important is whether there has been the use of force, an armed attack, a breach of peace, or an act of aggression. If the answer is ‘yes’, then main task is to determine to whom any of those elements should be attributed. All the same, one cannot speak about a complete desuetudo of a declaration of war. Declarations of war are rare, but are sometimes made,20 and what is even more important here – can be made. It cannot be said that the fact of making such a declaration is by definition an internationally wrongful act. Of course it may be so, but this aspect of a declaration of war is not the topic of the present monograph. What is clear is that a state which is a victim of an armed attack may make a declaration of war to the state-author of such an attack. For this reason the legal nature of a declaration of war must be dwelt on. By definition a declaration of war is a type of declaration, that is, a communication. Ch. Ch. Hyde writes that a declaration of war ‘is a formal announcement of one power to another that a state of war exists or is about to exist between them.’21 T.J. Lawrence writes that ‘[a] declaration of war is a formal notification on the part of a state that it considers itself at war with another state to which such notification is sent.’22 Such references to the ‘formal’ character of a declaration may give rise to doubts. It is usually claimed that as a rule international law does not require a specific form for its transactions. Even if exceptions are possible, it was consistently claimed in the earlier literature that no special form is necessary for a declaration of war.23 E. Nys writes pithily that the old ‘theatrical’ forms of declaration of war are a subject of desuetudo.24 For example, in 1965 Pakistan declared war to India by a means of a radio communiqué.25 20

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As examples one may cite the declarations addressed to Israel by Egypt and Syria in 1948, and by Kuwait, Sudan, Iraq and Algeria in 1967. Another declaration worth citing is the one made by Pakistan to India in 1965. See: P.M. Norton, Between the Ideology and the Reality: The Shadow of the Law of Neutrality, Harvard International Law Journal, 1976, pp. 258 and 262. Ch. Ch. Hyde, op. cit., vol. iii, pp. 1694–1695. Hyde notes that ‘a declaration of war might not, however, mark the beginning of a war’, ibidem, p. 1695. This means that a war may start before a declaration is made. T.J. Lawrence, op. cit., p. 332. Similarly: Ch. G. Fenwick, op. cit., p. 552. See e.g.: T. Funck-Brentano and A. Sorel, op. cit., p. 243. F. Despagnet, Cours de droit international public, Paris 1910, p. 813; J. Spiropoulos, op. cit., p. 355; similarly L. le Fur, op. cit., p. 549. E. Nys, op. cit., t. iii, p. 127. P.M. Norton, op. cit., p. 262, footnote 50.

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9.3.2 Declaration of War as a Legal Transaction (Legal Act) There is no doubt that a declaration of war as a subcategory of declarations could be easily situated into the category of acts. For this reason there seems to be no need to cite authors who have defined it as a kind of act.26 What’s more, even if the present study of unilateral acts was reduced to unilateral declarations only, a declaration of war would easily find its place in such a narrow group of acts. What is decisive then in terms of our definition of unilateral acts of states is whether that act has any legal effects in the field of international law. The fact that a declaration of war is not devoid of such effects can be easily confirmed if one takes a look at situations in which such a declaration was not made. For example, in 1945 S. Hurwitz wondered whether Denmark had been in state of war with Germany in 1940 and during the wwii subsequent years.27 The source of doubt was that the Danish government did not make a declaration of war, but rather made a protest at the time, taking into consideration the fact of German occupation. A declaration of war would clearly not leave any room for doubt in this respect, but this does not mean that the will to fight could not be expressed by other means.28 J. Spiropoulos unequivocally argues that a declaration of war is a unilateral legal act (acte juridique unilatéral).29 In fact, it is present in the lists of unilateral acts (unilateral legal transactions) presented by several authors, especially in the earlier legal literature. However, G. Venturini is the only author known to me who not only listed a declaration of war among unilateral acts (unilateral legal transactions) but went as far as to justify that qualification. He identifies the legal effect of a declaration of war as consisting in the emergence of a state of war between the author-state and the addressee state.30 The decisive element according to him is that even a ‘paper’ declaration of war leads to that effect.31 Venturini seems to be almost embarrassed by the fact that the same effect can result from the actual start of hostilities.32 This element, however, does not have to be treated as decisive. 26 27 28 29 30 31 32

E.g. F. Despagnet wrote on declarations of war and other equivalent acts; see: F. Despagnet, op. cit., p. 816. S. Hurwitz, op. cit., pp. 49–60, see in particular pp. 49–50. S. Hurwitz interprets the subsequent events in Denmark as de facto entry into war against Germany, see: ibidem, p. 59. J. Spiropoulos, op. cit., p. 355. G. Venturini, La portée et les effets juridiques des attitudes et des actes unilatéraux des États, rcadi, 1964-ii (t. 112), p. 423. G. Venturini, op. cit., p. 423. G. Venturini, op. cit., p. 423.

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Whether the actual start of hostilities has or does not have the same effect does not change the evaluation of a declaration of war as such. As has been repeated several times in this work, the same effect could result from many different causes, some of them being legal transactions and some of them not. All the same, the identity of effects does not deprive the former of their status. In fact, the effectiveness of a ‘paper’ declaration of war is of the utmost importance. At this point I limit my interest to an unconditional declaration of war. The topic of ultimatum is discussed in subchapter 9.3.4. F. Despagnet wrote that ‘if a war is started without a previous declaration or is declared by an organ which is not empowered by the constitution of a state to make such declarations, the attacked state may recognize this aggression as lying outside the scope of the law of nations and fight it as a normal robbery.’33 In fact, this view is no longer acceptable, as the rules of humanitarian law are binding even with respect to an aggressor. Some authors have tried to situate the effects of a declaration of war into a wider perspective. So for example F. Despagnet distinguishes between effects for individuals, for belligerent states, and for third states.34 L. le Fur also dwells on the effects of a declaration of war – dividing them into effects for the nationals of an unfriendly state, for their property, for their contracts and for treaties.35 In fact these are rather the effects of a war as such, since they would be present even in the absence of a declaration of war in a situation of an actual start of hostilities.36 As was said however, decisive importance will not be attached to this element. In fact, it is difficult to find a common denominator for these effects. They are not always present in all contemporary conflicts. Generally speaking they are connected with various prohibitions or restrictions placed on the contacts of persons with the nationality of the enemy state. The qualification of a declaration of war is not dependent upon confirmation of the existence any of them in fact. The objective existence of a state of war is sufficient of itself to justify that qualification. One should underline the visible lack of automatism of a declaration of war, in the sense that the state-addressee of a declaration of war can recognize 33 34 35 36

F. Despagnet, op. cit., p. 820. F. Despagnet, op. cit., p. 821ff. L. le Fur, op. cit., pp. 549–550. This is why, for example, H. Bonfils writes in common on the effects of declarations of war or the actual start of war activities. See: H. Bonfils, Manuel de droit international public (Droit des gens), septième édition par P. Fauchille, Paris, 1914, p. 740 et. seq.

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that it is in a state of war with the author-state, or not. However, that element is also not very important for our purposes. In fact the beneficiary of a promise or a waiver may also invoke it or not. That is why one can speak rather about an apparent lack of automatism. An automatism is, however, present in the sense that making a declaration of war empowers the addressee-state to take activities which (at least in some situations) it would not be able to take in the absence of such a declaration. In this sense the author state must count on far-reaching consequences of its declaration. G. Venturini situates a declaration of war in the same subcategory in which he puts waiver, recognition, termination of a treaty and revocation.37 It is at the very hardcore of unilateral acts (understood as ‘declarations of will’). It is difficult not to observe that the contemporary doctrine hardly refers to declarations of war when dealing with unilateral acts of states. Y. Takano is an exception in that regard, as he treats as examples of unilateral acts both declarations on the start of hostilities and information addressed by belligerent(s) to neutral states on hostilities taking place.38 While he is isolated in this respect, the silence of the majority of the authors can be hardly treated as a deliberate decision. It is more likely an omission deprived of any special importance for the topic under discussion. An author wanting to justify his or her silence as a deliberate decision to question the character of a declaration of war as a legal transaction would likely refer to the argument that the effects of a declaration of war are not covered by the will of the author state. In my opinion such an argument is not pertinent, or at least not always pertinent. It is difficult to imagine that lawyers have instruments to establish which effects are ‘wanted’ or ‘not wanted’ by the author-state. It is even more difficult to adopt a priori the conclusion that a state making a declaration of war wants to make it, but does not want its effects. An attacked state, or a state wanting to use the right to collective self-defence, may make a decision whether to make such a declaration or not. It is difficult to adopt a common universal description of such situations, however. This is one of the reasons why I deliberately do not adopt the ‘narrow definition’ of a unilateral legal transaction of international law which refers to the relationship between the legal effect and the will of a given state. In my opinion any legal effect in the field of international law is sufficient. This criterion is manifestly present in a declaration of war.

37 38

G. Venturini, op. cit., pp. 414–427. Y. Takano, Einfuhrung in das Volkerrecht, Band 2, Köln, Bonn, München, 1984, p. 7.

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9.3.3 Is an Actual Start of Hostilities a Unilateral Act of a State? As the actual start of hostilities leads (or may lead) to the same effects as a declaration of war, it is useful to examine the former before analysing ultimatums. Not surprisingly, the basic question is whether an actual start of hostilities could be treated as a unilateral act in the meaning adopted in this work. What is of interest here is only such a start of hostilities which is not contrary to international law. Contemporary international law imposes very far-reaching restrictions with respect to the legal possibilities to use force.39 It is difficult to speak about an actual start of hostilities on the part of a state which was the victim of an armed attack. It is obvious that rather this attack should be treated as such a start. To the extent it is (often if not usually) contrary to international law, it remains outside the scope of interest of the present work. In fact the determination of the scope of a right to start hostilities is not the task of a monograph on unilateral acts of states. However, even a very narrow scope of such a possibility would be sufficient to justify the question formulated in the subtitle of the present subchapter. Collective self-defence seems to be the most promising situation in which hostile acts are taken by a state which is neither the author of an armed attack, nor its victim. Hence, while the ­previous subchapter was devoted to the situation in which an actual start of hostilities is preceded by a declaration of war, the present one has to deal with situations in which a state commences hostilities without making such a declaration. Authors who use the narrow definition of an international legal act and insist that only declarations of will deserve the notion of an act would seemingly have no problem with unequivocally excluding the actual start of hostilities from the scope of unilateral acts of states. Nevertheless, one may ponder whether an actual start of hostilities could not be treated as a declaration of will. Interestingly, G. Venturini presents the actual start of hostilities as an implied declaration of war.40 It is not likely that he is using the term ‘implied’ or ‘implicit declaration’ in the strict, technical meaning of the term. Such a presentation of the actual start of hostilities would deprive declarations of war of all practical importance. It would seem difficult to see a declaration in a situation in which there is none, and a possible breach of international law may have to do with the…lack of that declaration. The law employs many fictions, but that one would seem to go too far. 39 40

See: art. 2 (4) and art. 51 of the un Charter. G. Venturini, op. cit., p. 426.

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If an actual start of hostilities is not an implied declaration of war in the technical meaning of the term, there is still some room for wondering whether it is not an implied declaration in some other meaning of the term. An actual start of hostilities is clearly an expression of will in the sense that, a state actually starts hostilities only if that is its intent. In my opinion however, it would be an extreme and unreasonable extension of the term ‘declaration’. It would equate every purposeful activity, that is an activity conducted according to the will of a given state, with a declaration. It is difficult to deny that undertaking military activities is rather an antithesis of a declaration of will. In fact, in the first part of this work I expressed myself against the narrowing of the term ‘unilateral legal act of a state in public international law’ to oral or written declarations. What’s more, the very term ‘act’ seems sufficiently broad to cover the actual start of hostilities. The latter is evidently one of a several ways to start a military conflict. It is difficult not to see that the qualification of it as an act is a challenge for international law doctrine. The presence of the requisite elements of a unilateral act of state in public international law must be verified. First of all, the actual start of hostilities is an activity which is by definition relatively concise in time, hence there are no obstacles to calling it an act. However, calling such an act a transaction may be difficult. Authors using the latter term will have no problem with eliminating the start of hostilities from the scope of their study. This is why the very choice of the basic notion is so important. The lack of willingness to include an actual start of hostilities in the list of unilateral legal acts could be easily explained also by the desire not to ‘ennoble’ acts connected with the use of force. However that desire, though understandable from psychological point of view, cannot have decisive importance for legal doctrine. Secondly, the actual start of hostilities may be an act performed by one state. Of course it may happen that two or more states attack a third. In the latter case one may have to do with a parallel or concerted action. I have no problem with calling parallel acts as unilateral. I feel some problem as regards concerted action and therefore it is not discussed here. Thirdly, the actual start of hostilities gives rise to legal effects. The latter are namely the same as those which were identified in the preceding subchapter as brought about by a declaration of war. If the latter was treated as an example of unilateral legal acts, the same qualification must be made for a legal actual start of hostilities, i.e. one which is not contrary to international law. It is little wonder that the doctrine is ready to speak in this context about acts, as well as unilateral acts. Thus Oppenheim writes:

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Unilateral acts of force performed by one State against another without a previous declaration of war may be a cause of the outbreak of war, but are not war in themselves, so long as they are not answered by similar hostile acts by the other side, or at least by a declaration of another side that it considers them to be acts of war.41 Interestingly enough, these formulations seem on the surface to exclude the possibility of attributing to such acts the character of acts of international law. This is not so however. The lack of automatism mentioned by Oppenheim/ Lauterpacht was discussed in the previous subchapter with respect to a declaration of war. Many statements on declaration of war are also directly applicable to the act presently under discussion. The peculiarity hinted by Oppenheim/ Lauterpacht is, however, only an apparent lack of automatism, or rather there is an area in which the lack of automatism is visible and an area in which it is not. The use of force undertaken in conformity with international law makes the author-state a party to a conflict. It is a challenge for the doctrine of ius ad bellum to work out a perfect presentation of the mutual rights and duties of a state entering a conflict and a belligerent against which its acts are directed. The present work does not aspire to elaborate that doctrine. It suffices to say that one can hardly imagine that the addressee of such acts is under a duty to tolerate the acts of force. It can take counter-measures against them. The most important element is that the addressee state may tolerate such acts, or may respond to them. This must be qualified as a modification in the field of international law, and therefore a legal effect, hence making it sufficient to enable one to speak about the presence of an act of international law. This reference to another state may seem to be another challenge to the unilateral characterization of an act. As was said before, this element alone doesn’t change the fact that an act is performed by one state and may deserve the notion of a unilateral act. What may be a more serious challenge is the duty to notify the un on the use of self-defence, provided for in Art. 51 of the un Charter. Such a notification is clearly an obligatory act provided for by a multilateral agreement. This raises the question whether it deprives the act under discussion of its unilateral character. In my opinion it does not. The use of force is unilateral as such, even though it is connected with a duty to notify the un and the latter duty stems from a multilateral treaty. For these reasons the actual start of hostilities which (and only those which) are in conformity with international law must be treated as a unilateral legal act of states in public international law. 41

Oppenheim 8, pp. 202–203.

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9.3.4 Ultimatums and Unilateral Acts of States The first question which needs to be discussed is obviously the definition of an ultimatum and the determination of its relationship to a declaration of war. The doctrine sometimes differentiates between two kinds of ultimatums. The first contains a conditional declaration of war, and the second does not contain one.42 Only the former can be viewed as a transaction giving rise to legal effects (other than the possibility of a breach of law because of the very formulation of an ultimatum). The second one does not give rise to such effects by itself; it is only a claim.43 N. Hill notes that such a claim may be followed by a separate declaration of war.44 Thus the following remarks will be limited to an ultimatum containing a conditional declaration of war. It should be noted that some authors reserve the term ‘ultimatum’ only for those containing a conditional declaration of war. Suffice to say that the classical definition of an ultimatum states that it is: a diplomatic note formulated in such a clear and decisive way as possible and concluded with demand for a clear answer, usually indicating a deadline for that answer and reservation that an ambiguous answer will mean that the addressee state wants a war.45 Such a definition of ultimatum is contained in the iii Hague Convention of 1907. An interesting element has to do with the legal effects of an ultimatum. One can doubt whether they are automatic. In particular, the author of ultimatum may take no measures after the lapse of a deadline provided for in the ultimatum, and the addressee state may ignore it completely. This may be true with respect to an unconditional declaration of war as well, which an addressee may ignore if it so desires. In this respect the difference between a conditional and unconditional declaration of war is not that large. On the other hand, the author of an ultimatum risks a lot in a situation in which the addressee-state treats it seriously. It has happened in the past that the addressee of an ultimatum responded that it would be regarded as a

42 43 44 45

On the kinds of ultimatum, see: N. Hill, Was There an Ultimatum Before Pearl Harbour, ajil, 1948, pp. 355–367. N. Hill, op. cit., p. 358. N. Hill, op. cit., p. 358. F. Despagnet, op. cit., p. 813; J. Spiropoulos, op. cit., p. 355.

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declaration of war.46 Nowadays such a response would seem to be more than doubtful. In fact its analysis from the perspective of a study of unilateral acts is of relatively little importance. What really matters is its qualification in the categories of ius ad bellum. The study of the latter is not my task in this work, however. What is important for the present work is to establish the very probability of a given type of act being performed in conformity of law – no matter whether this probability is 100% or 0.0001%. Only if the probability is 0% would I be ready to give up on an attempt to define the nature of such an act. Otherwise such an attempt seems necessary. In my opinion an interpretation according to which an addressee of an ultimatum could feel itself in a state of war with the author state cannot be excluded, although does not have to be treated as the norm. All the same an ultimatum effected in the first (quite exceptional) situation has its own potential of giving rise to legal effects. However, the element of such an ultimatum’s unilateral character is especially doubtful. By definition an ultimatum refers to the behaviour of another state, and also by definition the behaviour of the addressee state influences the legal effects of the ultimatum. In fact it is a conditional transaction, the appropriate condition being the behaviour of the addressee-state. Clearly an ultimatum cannot be treated as an autonomous act. At the most it could be treated as an example of a unilateral act sensu largo. The number of legal aspects connected with an ultimatum is much larger. First of all, an ultimatum is not an obligation to attack an addressee-state in the event of denial of the demand formulated in the ultimatum. One can wonder however if an ultimatum does not give rise to an obligation not to attack the addressee state in the event it fulfils the condition contained in the ultimatum. If this were the case, such an obligation would not result from unilateral acts in the strict meaning of the term. At the same time it would be difficult to speak about international agreement in this area. This can be seen as yet another proof of the insufficiency of the two alternatives: “unilateral obligation” vs “treaty obligation”. On the other hand it is not clear that such an obligation can be actually confirmed. One can argue that the right to use force stems from other norms. It is difficult to accept that this right is narrowed by the formulation of an ultimatum. What would stop a state from formulating a new ultimatum after a few months, or even after a few days? That is why I am not ready to see such an obligation not to attack on the part of the author-state in this case.

46

This was the case in the 1898 reply of Spain to the us ultimatum, which did not contain a conditional declaration of war. See: N. Hill, op. cit., p. 359.

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Acts Connected with the Conduct of Hostilities and Unilateral Acts of States

There is hardly any branch of international law which would demonstrate to a comparable degree the importance of the choice of terminology than that concerning the conduct of hostilities. It is very important whether a given author has the aim of discussing unilateral acts important from the perspective of international law, unilateral legal acts, or unilateral transactions of international law. The choice of the first option would throw several activities connected with the conduct of war into the centre of interest of a given author. A short look at the provisions of the Hague regulations47 allows us to distinguish such activities as: attacks and bombardments (Art. 25), choice of means of injuring the enemy (Art. 22), ruses of war (Art. 24), employment of measures necessary for obtaining information about the enemy and the country (Art. 24), siege (Art. 27), destruction or seizure of the property of the enemy when required by the necessities of war (Art. 23 (g)), use of certain weapons (Art. 23 (a) and (e)), use of a flag of truce, national flag, military insignia and uniforms (Art. 23(f)), punishment of a spy (Art. 30), taking of prisoners of war, and others. The lack of similarity of such acts and activities to legal transactions such as promise or waiver is so vast that many authors would be ready to tacitly avoid any reference to the very possibility or necessity of considering their relationship to the category of unilateral acts of states. In fact there is no doubt that the above acts were not, are not and will not be included in works on unilateral acts of states in public international law. The problem however is determining the reason for their exclusion, and whether the doctrine is consequent in this respect. At the beginning one must observe that many such acts or activities have a real character. They may consist of a single factual act or refer to entire sets of factual activities. I cannot say that their real character is an element which would by definition disqualify such acts and activities from the very notion of unilateral acts in the meaning adopted in the present work. That is why the argument referring to their real character cannot be of decisive importance in the attempts to qualify such acts. What’s more, the acts and activities

47

The regulations form an annex to iv 1907 Hague Convention, signed on 18 October 1907. Available at the webpage: www.opbw.org/int_inst/sec_docs/1907HC-TEXT consulted on 13 May, 2015.

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connected with warfare comprise not only real acts and activities. Some of them consist of declarations only. What seems to be decisive for the qualification of these acts and activities has to do with their legal effects. I am not in a position to establish any such legal effects whatsoever. Their relationship with public international law is limited to the examination of their legality (i.e. conformity with law). So, for example, one can have to do with a legal or illegal bombing, some weapons may be legal or illegal, etc. That is why these acts and activities cannot be qualified as legal transactions giving rise to legal effects (both in the narrow meaning of the term adopted by some authors, as well as in a wider meaning adopted in this work). For this reason such acts are outside the scope of this work. 9.5

War Occupation and Unilateral Acts of States

It seems to be obvious that war occupation is not an act. Art. 42 of the Hague regulations provides that: Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised. In this light occupation is rather a certain state of affairs than an act. It is, however, connected with several acts of administration with respect to an occupied territory. The Hague regulations refer to the following acts: measures to restore and ensure public order and safety (Art. 43), collection of taxes, dues and tolls (Art. 48), other money contributions (Art. 49), requisitions in kind (Arts. 52, 53, 54), administration and use of public buildings and other public immovable property (Art. 55). Obviously the question of interest here is whether these actions can be qualified as unilateral acts of states in public international law. Ch. G. Fenwick writes that ‘the army of occupation was held to exercise temporary legal authority based upon the actual fact of possessing control over a territory.’48 Numerous acts carried out by an occupant could be classified as acts of power. They are manifestly acts, but could be hardly qualified as legal acts (or transactions) of international law. Hundreds or even thousands of such acts are performed on the territory of a given state every day and nobody would ponder whether they are international law as such or are interesting for the 48

Ch. G. Fenwick, op. cit., p. 568.

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doctrine of international law (the latter being evidently wider than the former). However, the analogous acts of an occupant are inherently interesting for international law mainly because they are effected on a foreign territory. However, such interest is not in and of itself sufficient to qualify them as legal acts within the meaning adopted in the present work (not to mention the narrower notion of ‘acte juridique’). As was the case with the above-mentioned acts of war, the main perspective of the relationship of various acts of an occupant with international law is reduced to the question of their conformity with the latter. Among the acts of an occupant special attention should be devoted to those connected with interference into property rights. In contrast to acts of war, it is not entirely clear that their relationship to international law can be reduced to their conformity or lack of conformity with the international law. Some acts clearly bring about changes in the legal status of different objects. In fact, similar modifications in the sphere of property are connected with some acts effected on the sea. This is especially true in the case of a war blockade. I do not want to assert that they are necessarily the same, but it may be useful to postpone the conclusions with respect to changes in property relations resulting from acts of an occupant until we take up the qualification of blockade itself and acts resulting from it. 9.6

War Blockade

The obvious question underlying the present subchapter is whether a blockade could be qualified as a unilateral act. By the term ‘blockade’ I refer to ‘closing access to ports and coasts of an enemy by the naval forces of a party to a conflict.’49 Interestingly, M. Bothe expressed doubts whether such an institution is still in existence, as it has not been used since the second World War. However he answered the question positively, relying on the lack of opinio iuris as regards its extinction as an institution.50 It is beyond any doubt that it underwent important transformations and that the behaviour of states during both world wars was treated as contrary to, or at least doubtful with respect to, its conformity

49 50

W. Góralczyk, op. cit., p. 425. M. Bothe, Neutrality in Naval Warfare. What is Left of Traditional International Law, w: A.J.M. Delissen, G.J. Tanja, Humanitarian Law of Armed Conflict. Challenges Ahead. Essays in Honour of Frits Kalshoven, pp. 397 and 398.

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with traditional international law.51 In the context of the latter Commander’s Handbook on the Law of Naval Operations observes that: Notwithstanding this trend in belligerent practices (during general war) away from the establishment of blockades that conform to the traditional rules, blockade continues to be a useful means to regulate the competing interests of belligerents and neutrals in a more limited armed conflict. The experience of the United States during the Vietnam Conflict provides a case in point.52 It is not my goal to establish the conditions for the establishment of a blockade in 2015 a.d. The generally accepted conditions of establishment53 and execution of a blockade will be accepted as a point of reference. It is obvious that the establishment, maintenance and subsequent cancellation of a blockade can be effected by one state. Hence it is difficult to exclude the possibility of qualifying those activities as ‘unilateral acts’ within the wide meaning of the term. One should keep in mind that a blockade can also be established by a few states in common. What’s more, it may happen that the establishment of such a blockade is provided for in a treaty. This fact should not, however, be assigned too much importance. In any case, it cannot determine the qualification of a blockade established by one state in the absence of any express treaty obligation to this effect. The following remarks will be limited to such examples of blockade. What still needs to be determined is whether one can speak at all about the existence of a unilateral legal act (legal transaction) within the meaning adopted in this work. In other words, is it possible to imagine at least some examples of establishment of a blockade which could be so qualified? As was said at the beginning, I feel obliged to eliminate from the scope of this study all acts which do not give rise to any legal effects in the field of international law, or which are just breaches of international law and consequently give rise to legal effects only in the form of international responsibility. 51

As to the practice of the allies during the World War i, see: H.W. Malkin, Blockade in Modern Conditions, BYbIL, 1922–23, pp. 87–98. He treats the illegality of German naval activities as an obvious fact, not requiring any comment; vide: p. 87. This author expresses himself in favour of flexibility, as the requirements of blockade must take into consideration new methods of warfare; see: p. 96. 52 Commander’s Handbook on the Law of Naval Operations, Int’l L. Stud. Ser. us Naval War Col. 1999, pp. 393–394. 53 Vide: infra.

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The doctrine to a greater extent concentrates on the conditions of a legal blockade than on the qualification of such a blockade as an act and on comparison of it with other acts. Generally speaking, the conditions of legality of a blockade are effectiveness (or reality) and notification to interested parties.54 The issue of the effectiveness of a blockade does not need to be carefully analysed in this book. On the other hand, notification both deserves and needs a careful examination. It is no coincidence that notification (in general) was for decades treated as one of the classic types of unilateral acts.55 What is the most important from the perspective of the present work is that international law attributes legal effects to a blockade established in accordance with its provisions. In the absence of a blockade belligerent states can confiscate neutral property only if it is war contraband. If a blockade is established, the state establishing it may confiscate ships violating the blockade as well as the cargo on such a ship.56 What’s more, the very references to the validity of a blockade form an important argument for treating it as a kind of act (legal transactions). So, for example, the usa regarded a blockade established by emperor Maximilian as invalid.57 This is why the establishment of a maritime blockade can be qualified as a unilateral act of a state giving rise to legal effects of international law. Hence it is not surprising that the declaration of a blockade is present in the list of unilateral acts presented by Y. Takano.58 If some doubts can emerge as to the qualification of the establishment of a blockade they are due to other elements. The first has to do with the fact that the establishment of an effective blockade is so-called ‘real transaction’. It differs from such transactions as making a unilateral declaration of promise or a waiver. Secondly, as with every ‘real act’, so too the establishment of a blockade could be divided into several acts, activities, steps and stages. If the establishment of a blockade is a unilateral act, why not call the act of sending of a ship to this blockade a unilateral act? Why should one deny the same qualification to the sending of an airplane to it? If so, why not call different stages of the trip of the ship sent for a blockade as separate unilateral acts. If it arrives at the 100th mile, then the 99th mile, then the 98th mile from the coast, does not the traversal of every such mile deserve to be called a unilateral act of a state? This 54 55 56 57 58

F. Despagnet, op. cit., p. 984, W. Góralczyk, op. cit., p. 425. Vide: Chapter 3. So: J. Gilas, op. cit., p. 346, W. Góralczyk, op. cit., pp. 425–426. F. Despagnet, op. cit., p. 988. Y. Takano, op. cit., p. 7.

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argument turns out to be even weaker than it seems at first glance. Legal effects are connected with the existence of a certain state of affairs provided for by a norm of international law as such. They are not connected with activities which are not sufficient for the existence of this state of affairs, or which exceed the minimum required by law. In this context the fact of sending of a given ship or airplane has as such no automatic legal effect. By analogy, the weakening of a blockade which does not deprive it of the required effectiveness also has no legal effect. The same applies to the strengthening of a blockade which was already effective. These are all just factual events. The third argument which can emerge would refer to the existence of certain elements accompanying the establishment of a blockade. Some of them resemble unilateral acts of states more than blockade itself. The first of them is the notification of blockade. It deserves to be discussed separately. The second element has to do with acts and activities taken within the framework of an existing blockade. Their number is very large. Examples include warning ships approaching a blockade, chasing a ship attempting to or having broken a blockade, giving an exceptional consent for entering a port which is subject to a blockade, or arrest of a ship. The latter is evidently the most important. It has to do with the fundamental question of how to qualify a ruling on the confiscation of a ship and its cargo. This will be discussed in the next subchapter. With reference to all those activities associated with arrest and confiscation, one can say that they are expressions of state power in a specific place (outside the territory of a given state) and time (during an armed conflict). There are no problems with calling them acts or even unilateral acts. There is also no problem to associate them with legal acts. They are namely acts which are the means of effecting or enforcing the legal act of the establishment of a blockade. What is problematic is to attribute legal effects to each and every of such acts. In particular, there are no arguments which would oblige to treat an act of a state consisting of a shot to a ship attempting to break a blockade as a unilateral legal act, while denying that qualification to other shots of the warships of another state. Both are acts, but rather not legal acts within the meaning adopted in this work. As was said earlier, notification of a blockade is of special importance from the perspective of this book. The law codified in the London Declaration distinguishes notification from declaration of the establishment of a blockade as such. D.P. Myers rightly notes that notification is a natural concomitant of declaration.59 Notification which is not connected with an effective blockade has 59

D.P. Myers, The Legal Bases of the Rules of Blockade in the Declaration of London, ajil 1910, p. 581.

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no legal effects. The same applies to a blockade which is effective but not notified. This is why notification must be denied a separate character. It is an element of a larger whole. It really resembles to a great extent typical acts in the form of a declaration of will. This element cannot be decisive, however. That is why what can be called an act is the establishment of a blockade (comprising its actual organization and notification of it). Another act which may be connected with blockade is permission to enter a blocked port. As a rule it will be given at the request of the captain of a given ship, but this cannot be generalized. It is possible that such permission is granted in a general way – to all ships or to ships of a certain category. How is one to qualify such permission(s)? One can imagine two competing lines of argument. The first would suggest that permission to enter a blocked port should be treated as any other permission. If other permissions are not qualified as unilateral acts (transactions) of international law, neither should be permission to enter a blocked port. The other line of argument would suggest that a declaration allowing a ship to enter a blocked port is a declaration giving rise to an obligation. If so, it is at the same time an act, a unilateral act and a transaction giving rise to a new obligation. It could be compared to waiver of the right to stop (with the use of force) and confiscate a ship entering or leaving a blockaded port. I opt for the second interpretation. The first one is useful more for discovering the true nature of other kinds of permissions and permits rather than for denying the true character to an act of permission to enter a blockaded port. A similar qualification should be applied to acts which could be seen as acti contrarii to the act of establishment of a blockade, that is suspension or cancellation of a blockade.60 9.7

Measures Taken with Respect to Foreign Ships and Unilateral Acts of States

The issue of confiscation of a ship breaking a blockade must be discussed in the wider context of activities taken against enemy property or property which serves the enemy. Authors of works on international law concentrate on such acts as: seizure (saisi), confiscation and sequestration. They are effected with respect to enemy ships, as well as neutral ones if they carry contraband or break a blockade.61

60 61

F. Despagnet, op. cit., p. 1006. W. Góralczyk, op. cit., p. 425.

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There is no doubt that they are activities of states. The very notion of acts could be hardly denied to them. In addition, the legal effects of such acts are beyond any doubt. The ship in question becomes the property of another state. What’s more, the designation ‘legal act’ or ‘legal transaction’ could be hardly denied to such acts. Even if one adopts the narrow definition of a legal transaction (acte juridique), that is concordance of the effects with the will of an acting state, it would be difficult not to see such concordance as regards the act of confiscation of a ship. It is known that confiscations are effected by prize-courts. Their acts would escape the notion of a unilateral act of state only if a given author inserts a requirement that such act must be effected by the executive only or by the highest organs of the executive. I have a problem with such a criterion. It seems better to confess that the notion of a unilateral legal act (legal transaction) of international law is wide enough to accommodate acts performed by other organs as well. The legal effects of acts of confiscation require more analysis. One can wonder on what basis the acquisition of sovereignty over an island (like the acquisition by Norway of sovereignty over Jan Mayen island) should be treated as a legal transaction of international law and acquisition of the ownership of a ship as a result of confiscation not be so treated. This argument may however be reversed. If the confiscation of a ship is a unilateral act of international law, should the confiscation of drugs from a diplomatic pouch not be given the same qualification. If so, why not so qualify the confiscation of goods brought in illegally by foreigners. The answer would be that the effects of such latter acts of confiscation are rather situated within the domain of domestic law. The international elements present in the acts which were cited above make it difficult to qualify them as purely domestic ones. Confiscation and similar acts performed at the sea involve even more such international elements. The confiscating state acts outside its territory and often acts with respect to persons who are neither its nationals nor the nationals of the enemy state. At the same time, the qualification of enemy acts as transactions of international law would be a mistake. They are performed on the basis of domestic law, according to domestic procedures and produce effects above all within the sphere of domestic law. International law is in fact the point of departure for the assessment of their legality. As was said several times, this is not sufficient to qualify such acts or activities as a unilateral legal act (transaction) of international law in the meaning adopted in the present work. 9.8

Acts Connected with Neutrality

There can be no doubt, that the most important act connected with neutrality is a declaration of neutrality. References to this act as an example of unilateral acts of states in public international law can be found in the works of

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P. Guggenheim,62 P.-M. Dupuy,63 P. Vellas64 and others. Hence the topic of neutrality65 must be included in the present analysis. It is difficult to speak about act(s) connected with neutrality without reference to neutrality as such. The very idea of neutrality has undergone important and somewhat contradictory changes.66 On one hand the 20th century witnessed the codification of the law of neutrality, while on the other it was the time when it was put into question. Q. Wright indicates that at the end of the First World War and at the beginning of the League of Nations there were doubts whether an obligation to keep strict neutrality still had locus standi in international law.67 Ch. G. Fenwick stated that ‘The Charter of the United Nations, in condemning recourse to war, condemned with it the status of neutrality.’68 P.M. Norton even wrote that ‘[t]o declare neutrality may to some extent legitimize the legal status of the conflict and impede its potential resolution by the appropriate international bodies.’69 J.F. Lalive observed that: (…) considering in abstracto a system in which war is unlawful and exposes the offender to sanctions from other states, it may be said that collective security and neutrality are incompatible: ‘the more there is of the one, the less there is of the other’.70 In consequence he stated: The general obligations incurred by Member States under the terms of this Article may seem clearly to denote a departure from the idea of traditional neutrality.71 62 63 64 65

66 67 68 69 70 71

P. Guggenheim, Traité de Droit international public. Avec mention de la pratique internationale et suisse, Genève, t. I, 1953, pp. 147–148. P. -M. Dupuy, op. cit., p. 252. P. Vellas, Droit international public. Institutions internationales, Paris 1970, p. 202. Only neutrality with respect to a given armed conflict is of interest here. For a definition of such neutrality as non-participation in war – see e.g. Q. Wright, The Present Status of Neutrality, ajil, 1940, p. 392. See: J. Lobel, op. cit., pp. 6–11. Q. Wright, op. cit., p. 391. Wright speaks about death as well as resurrection of the rules of neutrality in the years 1918–1939; ibidem, p. 392. Ch. G. Fenwick, Foreign Policy and International Law, Dobbs Ferry, New York 1968, p. 128. P.M. Norton, op. cit., p. 252. J.F. Lalive, International Organization and Neutrality, Brit. Y.B. Int’l L. 1947, p. 72. J.F. Lalive, op. cit., p. 78.

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It is usually emphasized that invoking neutrality with respect to unsc resolutions is excluded.72 This element is now beyond any doubt. The question is whether there is an obligation of positive law to treat belligerents on the same footing despite the strong conviction that only one of them is an aggressor. Just the contrary was provided for in the 1934 Budapest Articles of Interpretation (Articles) of the Pact of Paris adopted at the ila conference. According to them: In the event of a violation of the Pact by a resort to armed force or war by one signatory State against another, the other States may, without thereby committing a breach of the Pact or of any rule of International Law, do all or any of the following things: (a) Refuse to admit the exercise by the State violating the Pact of belligerent rights, such as visit and search, blockade, etc; (b) Decline to observe towards the State violating the Pact the duties prescribed by International Law, apart from the Pact, for a neutral in relation to a belligerent; (c) Supply the State attacked with financial or material assistance, including munitions of war; (d) Assist with armed forces the State attacked.73 As G.K. Walker wrote that ‘[b]esides self-defence, under the Articles states can adopt non-belligerency status and decline to observe neutrality toward a Pact violator. States can supply a state that is a target of a Pact violator with “financial or material assistance, including munitions of war.”’74 This remark is even more valid today. The doctrine frequently stresses that according to Art. 51 of the un Charter any behaviour is possible in the event of an act of aggression – starting from strict neutrality to offering assistance to the victim of the aggression.75 The next problem with the application of the rules of neutrality has to do with situations in which none of the parties recognizes that it is a party to a war.76 72 73 74 75

76

H.J. Taubenfeld, International Actions and Neutrality, Am. J. Int’l L. 1953, p. 393. E. Chadwick, Neutrality Revised?, Nottingham L.J. 2013, p. 41. G.K. Walker, Information Warfare and Neutrality, Vanderbilt Journal of Transnational Law 2000, pp. 1113–1114. G.K. Walker, pp. 1115. D. Schindler, Transformations in the Law of Neutrality Since 1945, in: A.J.M. Delissen, G.J. Tanja, Humanitarian Law of Armed Conflict. Challenges Ahead. Essays in Honour of Frits Kalshoven, p. 373. P.M. Norton, op. cit., p. 255.

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It is a paradox that assertions of the obsolescence of the right to neutrality coexist with those affirming the right to invoke ‘neutral rights’. M.W. Janis cites such invocations from the time of Iraq-Iran war or the Falklands War.77 Various voices on the applicability of the traditional rules on neutrality can also be heard. For example, McCoubrey and N.D. White express themselves in favour of the objective application of the set of rules on neutrality.78 They divide those rules into: the general duty of non-involvement, the particular rules on land, sea and air warfare, liability for damage to neutral property, and liability for breaches of neutrality.79 In principle this was the position of China during the Korean war, when it referred to the 1907 convention.80 Interestingly enough (and surprisingly in the light of the above-cited opinion of the same author), G.K. Walker speaks in favour of the objective application of several rules of neutrality, especially those concerning land warfare.81 In another place he stresses that ‘[i]t is clear from the foregoing that, both in theory and in practice, there was room left for neutrality within the two international organizations that have existed since 1919.’82 It is sometimes said that ‘[u]nder traditional customary law, any country may refrain from participating in an armed conflict or war by declaring neutrality or otherwise assuming neutral status.’83 As G.K. Walker puts it: Despite the commentators’ position, the record of armed conflicts since World War ii has been that if the confrontation is of any length, states may declare and practice strict neutrality, declare neutrality and act as non-belligerents, or do nothing, perhaps ignoring (or being unaware of) the situation.84 The Commander’s Handbook on the Law of Naval Operations underlines that:

77 78 79 80 81 82 83 84

M.W. Janis, Chapter vi Neutrality, 64 Int’l L. Stud. Ser. us Naval War Col. 1991, p. 150 (as to the first) and p. 155 (footnote 55) as to the second. H. McCoubrey, N.D. White, International Law and Armed Conflict, Aldershot 1992, p. 297. H. McCoubrey, N.D. White, op. cit., p. 297. H.J. Taubenfeld, op. cit., pp. 392–393. G.K. Walker, p. 1144. J.F. Lalive, op. cit., p. 74. On the same conclusion as regards the League of Nations see: H.J. Taubenfeld, op. cit., p. 379. Commander’s Handbook on the Law of Naval Operations, Int’l L. Stud. Ser. us Naval War Col. 1999, p. 367. See also: G.K. Walker, p. 1143. G.K. Walker, p. 1121.

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Although it is usual, on the outbreak of armed conflict, for non-­ participating nations to issue proclamations of neutrality, a special declaration by non-participating nations of their intention to adopt a neutral status is not required.85 What is the most important from the perspective of the present work is the fact that declarations of neutrality have been made in connection with contemporary conflicts. D. Schindler cites such declarations made during the Korean war, the 1973 Yom Kippur war and Iraq-Iran war.86 P.M. Norton notes that in the face of the oil embargo used by the Arab states the practice of proclaiming neutrality has even intensified since 1967.87 For this reason the problem of possible legal effects of such declarations is even more important today. The very identity of the act in question may give rise to doubts. As the famous manual of Oppenheim/Lauterpacht puts it: Neutrality being an attitude of States creating rights and duties, active measures on the part of a neutral State are required for the purpose of preventing its officials and subjects from committing acts incompatible with its duty of impartiality. The pronouncement by which a neutral State orders its organs and subjects to comply with the attitude of impartiality adopted by itself is called a ‘declaration of neutrality’, in a special sense of the term. Such a declaration must not, however, be confounded with manifestoes by the belligerents proclaiming to neutrals the rights and duties devolving upon them through neutrality, or with the assertions made by neutrals to belligerents or urbi et orbi that they will remain neutral, although such pronouncements and assertions are often also called declarations of neutrality.88 Precisely what is meant by those authors writing on unilateral acts and citing a ‘declaration of neutrality’ as such an act may raise questions. Namely, are they using the first or the second meaning? It is difficult not to presume that the second meaning more resembles international acts. The first one is rather an act of domestic law. However, what if its publicity is sufficiently wide to make it known that the state has adopted the 85 86 87 88

Commander’s Handbook on the Law of Naval Operations, Int’l L. Stud. Ser. us Naval War Col. 1999, p. 367, footnote 11. D. Schindler, op. cit., pp. 368–369. P.M. Norton, op. cit., p. 260. Oppenheim 8, pp. 667–668.

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position of neutrality. To demand another separate act would seem to be an attempt to impose a highly formalistic requirement on states, and it would not be possible to defend its presence in public international law. The OppenheimLauterpacht manual refers to such a declaration made by Cuba on 1 September, 1939, stating that ‘the universal principles of International Law impose upon non-belligerent States the obligation of declaring their neutrality.’89 At the same time however, Lauterpacht rightly criticised this formulation, pointing to several states which refrained from issuing a ‘proclamation of neutrality’.90 It was also asserted that ‘[i]n a war not conducted at sea, proclamations of neutrality are not common and belligerents may for reasons of policy not exert their full belligerent rights.’91 A brief examination of the history of neutrality reveals the relative importance of domestic laws in this respect. E. Atwater, describing the 1935 and 1936 us acts on neutrality, wrote that: Although both of the above acts were termed “Neutrality Acts”, they were not designed to safeguard or perpetuate the system of neutral rights which existed before and during the World War. Rather they were designed to restrict our concept of neutral rights in the belief that we might thereby be in a better position to stay out of any foreign war that should develop. The issue, in reality, was not that of neutrality, but rather that of staying out of war. The legislation might more accurately have been described as “Embargo Legislation.”92 He summed up the 1937 act as follows: Although the Act is popularly called a Neutrality Act – Senator Pitman called it the Peace Act of 1937, and numerous provisions have no relation to neutrality, but purport to constitute an attempt to avoid American entanglement by removing the opportunity or the temptation to injure American life or property. American citizens may still freely travel on non-belligerent vessels in the war zones, where, however, they should be deemed to assume all the risks.93 89 90 91 92 93

Oppenheim 8, p. 668, footnote 1. Oppenheim 8, p. 668, footnote 1. E. Borchard, Neutrality, Yale L.J. 1938–1939, p. 51. E. Atwater, Neutrality Revision Before Congress, International Law and Relations 1936– 1937 vol. vi, no 7, p. 3. E. Borchard, op. cit., pp. 49–50.

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G.B. Davis wrote on the obligations of neutrality as follows: With respect to the performance of some of these duties the state itself is specially charged, as the acts are of such a character that no authority save that of the government is able to comply with the requirements of the Law of Nations in that regard; other neutral duties relate to the acts of individuals which, if injurious to the interests of belligerents, are prevented by the belligerents themselves, as will presently appear, or by the adoption by the neutrals of certain regulations which are calculated to prevent violations of neutrality duties by their citizens or subjects.94 Proclamations on neutrality made by the us presidents could also be treated as examples of domestic law instruments.95 On the other hand, a good example of an act of the second type is the Turkish declaration of neutrality of 10 December, 1941.96 The note on it sent to the us Department of State limited itself to stating that ‘the Government of the Republic has decided to extend the neutrality of Turkey to the new conflict which has just broken out.’ Interestingly enough, one year earlier, in January 1940, the Turkish Foreign Minister declared: ‘We are not neutral; we are simply not in the war.’97 There could be a temptation on the part of an author writing on unilateral acts of states to insert the first group of acts (statutes, proclamations) entirely into the sphere of domestic law and try to present only declarations as true international acts. This however would not reflect reality. It would diminish the practical importance of proclamations and create an artificial position for declarations (in line with of the above-presented and criticised argument of Cuba). It is visible that proclamations have not been perceived as strictly acts of domestic interest. As long ago as in 1899 J. Macdonell noted the irritation of the usa with Germany for making no such proclamation during the 94

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G.B. Davis, Neutrality, Can. L. Times 1914, p. 1193. On the Brasilian rules: F.A. de Carvalho, The Neutrality Of Brazil, Brit. Y.B. Int’l L. 125 1920–1921, p. 125 et. seq. See also: J. Lobel, The Rise and Decline of the Neutrality Act: Sovereignty and Congressional War Powers in the United States Foreign Policy, Harvard International Law Journal, 1983, pp. 1–71. For more on these declarations, see: J. Simsarian, American Neutrality, National Lawyers Guild Quarterly 1939–1940, pp. 194ff. On the 1914 us proclamation of neutrality, see: Int’l Conciliation 1928–1929, pp. 391ff. Int’l L. Stud. Ser. us Naval War Col. 1941, p. 82. Int’l L. Stud. Ser. us Naval War Col. 1939, p. 54. Citing the New York Times of January 27, 1940.

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American-Spanish war.98 One of his conclusions was that: ‘On the whole, the proclamations show a gradual approach to a uniform neutrality law, conceived on the lines which America and England first struck.’99 One can wonder whether the importance of domestic provisions (acts, proclamations) is sufficient to qualify them as transactions of international law. Their substance was rather connected with their practical dimension. They were obligatory for individuals and made known to other states the scope of activities prohibited to them in connection with a war between other states and the neutrality of the proclaiming state. It should be stressed that the picture is complicated by the fact that neither the 1907 Hague Conventions v100 nor xiii101 refer to declarations as such. As regards proclamations and similar documents, Art. 27 of the Hague Convention xiii is of special importance. It provides that: The Contracting Powers shall communicate to each other in due course all laws, proclamations, and other enactments regulating in their respective countries the status of belligerent war-ships in their ports and waters, by means of a communication addressed to the Government of the Netherlands, and forwarded immediately by that Government to the other Contracting Powers. Paradoxically enough, the objective application and unquestioned nature of the typical and traditional rules of neutrality law (that is before the 1928 Paris Treaty) could have led to denying the status of transactions of international law to acts (of whatever type) relating to neutrality declarations. They may have looked like a confirmation of an objective set of rules. In fact, however, the importance of declaring neutrality was much larger, as state’s declaring itself as neutral formed a kind of option or choice of the state. It could have chosen the status of either belligerent or of a neutral state. In fact silence was deemed to be the latter, as well as of course an explicit declaration of neutrality. 98 J. Macdonell, Some Notes on Neutrality, J. Soc. Comp. Legis. 1899, pp. 67–68. 99 J. Macdonell, op. cit., p. 69. 100 Convention (v) respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land. The Hague, 18 October 1907, available on the website: https://www.icrc.org/ ihl/INTRO/200?OpenDocument, accessed on 16 May, 2015. 101 Convention (xiii) concerning the Rights and Duties of Neutral Powers in Naval War. The Hague, 18 October 1907; available at the website: https://www.icrc.org/applic/ihl/ihl.nsf/ Treaty.xsp?documentId=06A47A50FE7412AFC12563CD002D6877&action=openDocum ent, accessed on 16 May, 2015.

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As was said several times however, the fact that a given effect may stem from different sources does not mean that they must be treated identically. The choice of neutrality was effected by means of domestic acts, declarations to other states, or both. Today a declaration of neutrality seems to lead to even more visible effects. It is a deliberate choice of a state to trigger the application of traditional rules on neutrality (possibly with some modifications). As it is connected with the above-mentioned several obligations of a neutral state, it could be compared to promise. That is why I cannot see any possibility to deny the nature of a unilateral legal transaction to such an act. In my opinion it may be effected both by the means of an act of domestic law as well as a declaration addressed to other states. In that situation references to the 1907 Hague Conventions v and xiii are inevitable. As with any reference to a treaty, this one must also be treated with suspicion in the context of a study of unilateral acts of states – not as regards the legal effects as such (which are not put into question), but as regards the true nature of an act which is connected with a multilateral treaty. To the extent to which a declaration of neutrality would trigger a set of treaty obligations as such it would go outside the scope of interest of the present work. The assumption is made here, however, that at least some obligations provided for in the v Hague Convention were – at least before the emergence of the general prohibition of the use of force – independent of the status of a state as party to that convention. H. McCoubrey and N.D. White express themselves in favour of the thesis according to which the provisions of the 1907 Hague Convention v and xiii are a codification of customary law.102 This observation must be viewed, however, within the context of the observations concerning the weakening of the rules of neutrality in the face of the fundamental changes of ius ad bellum. There can be no doubt that such a declaration is binding only for the author state, and that there is no obligation to maintain that declaration for a specified or unlimited period of time.103 The Second World War provides a good example of a state which declared neutrality at the beginning and subsequently entered into war, i.e. the usa invoked their rules on neutrality after 1 and 3 September 1939 and declared neutrality with respect to the German 102 H. McCoubrey, N.D. White, op. cit., p. 297; see also M.S. McDougal, F.P. Feliciano, The International Law of War. Transnational Coercion and World Public Order, Dordrecht, Boston, London 1994, p. 403. 103 G.K. Walker, p. 1143.

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invasions into Norway, Belgium, the Netherlands and Luxemburg, but subsequently participated in the war and the liberation of the latter states.104 9.9

The End of War or Hostilities and Unilateral Acts of States

As has been shown, the beginning of a state of war or of an armed conflict may result from an act of one state. Hence the analogous question must be addressed to the end of such a state of war or of a conflict: Is it possible to find any unilateral acts of states in this respect? The doctrine distinguishes between the end of a state of war and the end of war activities.105 An armistice, capitulatory armistice and/or the actual extinction of war activities are cited as examples of the latter.106 Armistices are evidently non-unilateral transactions. They are effected by the means of agreements with the participation of two parties to a given conflict (each of the parties being composed of one or several states). One can wonder about the status of the last element, namely the actual extinction of war activities. It is difficult however to call it an act. It is rather a certain state of affairs comprising the behaviour of a few parties. What’s more, confirmation of this fact may be established only post factum. In addition it may happen that the fighting ceases for some time and later is resumed. More promising from the perspective of the present work are the typologies of the end of the state of war. These comprise: peace treaty, unilateral declaration, and the establishment of peaceful relationships de facto.107 The first element is by definition an international agreement and hence outside the scope of interest of the present work. Similarly, the establishment of peaceful relationships presumes a concordant course of conduct of two or more parties (states). Leaving aside the problem with the establishment whether we are dealing with act or a set of acts or facts, the lack of its/their unilateral character is beyond any doubt. Hence for obvious reasons the reference to a unilateral declaration is that which is of utmost importance for the present work. If this declaration really brings a state of war to the end, legal effects should be attributed to it. As it emanates from a state and is unilateral, it would thus be one of the acts which fall within the topic of the present work.

104 105 106 107

Q. Wright, op. cit., p. 406. W. Góralczyk, Prawo międzynarodowe publiczne w zarysie, Warszawa, 1989, pp. 428–429. W. Góralczyk, op. cit. p. 429. W. Góralczyk, op. cit., p. 429.

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There remain however very serious doubts whether a unilateral declaration on the end of a state of war could be really described and qualified in the way presented above. One state cannot itself bring about an end to a state of war. The consent of another state is necessary. This consent may be express or tacit. In the lack of such consent, it must be presumed that the state of war is still in place. Hence, notwithstanding its very promising name, a unilateral act declaring the end of a state of war cannot be viewed as a unilateral legal transaction within the meaning adopted in this work. It is a special category of offer, although this may be not visible when the act is formulated as a ‘recognition of the state of war as terminated’. However, one can imagine an argument that what is in place in such an instance is a unilateral declaration and recognition (perceived as unilateral act), so excluding it from the list of true unilateral acts of international law would be a mistake. As will be shown in Part 4, such an argument is based on a misunderstanding of recognition, however. 9.10 Conclusions In conclusion one must classify the following as true unilateral legal acts of states in public international law: – declaration of war; – the establishment of a maritime blockade (as well as its suspension and termination); – permission to enter (leave) a blockaded port; – declaration of neutrality; – de facto start of war activities.

Part 3 Creation of Obligations by the Means of Unilateral Declarations. The Problem of Unilateral Promises

∵

Introduction to Part 3 The topic of this part of the present work is the creation of obligations by means of a unilateral declaration of will. From the point of view of a manual of international law (a work attempting to present public international law in its entirety) the issue of the binding force of unilateral declarations seems to be one of three basic elements connected with unilateral acts. The first two are a definition of, and a list of, unilateral acts. These dominated Part 1 of the present book as well. The aspect interesting here (the binding force of unilateral declarations) is usually associated with unilateral promise. In fact it cannot be reduced to it alone. Also other acts may be unilateral, have the character of a declaration and be of such a nature that the basic question concerning them may be whether they bind the author of the declaration. One can refer in this context to express recognition, express waiver or declaration of neutrality. The latter was discussed in the previous part. Waiver and recognition are connected with an entire list of legal problems specific for them. They will be discussed in Part 4. On the other hand, one can hardly extract the problem of the binding force of promise(s) from the wider problem of incurring obligations by means of unilateral declarations. Otherwise it would be necessary to repeat the same statements when discussing both elements. There can be no doubt that promise has a special position among unilateral acts. In the opinion of A. Cassese ‘promise is the only unilateral transaction giving rise to international obligations proper, that is, establishing a new rule binding the promising State towards one or more other States.’1 E. Suy and N. Angelet write that in contrast to promise, other unilateral acts (in particular recognition, waiver and protest) are connected with existing legal and factual situations.2 One cannot overlook the fact that promise occupied a special position in the ilc works on codification of the norms of international law concerning unilateral acts. In the fifth report the special rapporteur wrote that: ‘It has been suggested that promises might be studied as unilateral acts for which specific rules could be elaborated to regulate their functioning.’3 In my opinion this statement could be read as an expression of scepticism as to the possibility to regulate such complex matters like recognition, protest or waiver in the draft articles. Yet it seems that if anything could have been regulated in the draft articles, it would have been promise. This is true despite 1 A. Cassese, International Law, Oxford 2005, p. 185. 2 E. Suy, N. Angelet, Rechtsgeschäfte, einseitige; in: I. Seidl-Hohenveldern, Lexikon des Rechts; Völkerrecht, Neuwied, Kriftel, 2001, p. 320. 3 5. report, add. 2, p. 2, par. 149. © koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004274617_013

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two complicating facts. The first is that the principle acta sunt servanda advocated by the special rapporteur would apply not only to promise but to other types of acts as well (though almost certainly not to protest). The second is that some rules proposed in the draft articles could have application to those other acts, although the question still remains as to the extent of their application, both in general and with respect to specific types of acts. The binding force of unilateral declarations is not only a topic of great theoretical importance, it also has a significant practical dimension. Two aspects thereof need to be mentioned. The first is how to distinguish a unilateral promise from a mere political act which does not lead to legal obligations. This is a very practical problem. The second one is connected with distinguishing binding unilateral acts from treaties, i.e. from bilateral or multilateral acts. The latter problem puts us back into the sphere of theory once again, despite its practical dimension. This mix of theory and practice will be visible in two chapters included in the present part. The first one deals with the very possibility of creating obligations by means of unilateral declarations. The second one presents promise as a separate type of unilateral acts of states in public international law.

chapter 10

Is it Possible to Create Obligations by the Means of Unilateral Declarations? 10.1

Voices Questioning the Legal Effect of Unilateral Declarations

One cannot get rid of a feeling that promise, despite being the most ‘pure’ type of unilateral act, used to be contested. Even today it is treated with some reserve and scepticism.1 The event usually associated with the denial of binding force of a unilateral promise is an 1889 arbitral award concerning Lamu island. It was made by a single arbitrator, Baron Lambermont, in a dispute between Germany and the United Kingdom.2 One of the elements discussed was an oral declaration of the Sultan of Zanzibar concerning concessions for the collection of taxes in the islands of Manda Bay. On 10 December, 1887, according to the report of the German consul-general, Sultan Sayd Bargash declared the he was ready to grant a concession for the German company Witu under the condition of concluding an agreement with the German East Africa Company. The arbitrator ruled that the declaration of the Sultan expressed an intention (intention) to conclude an agreement but ‘for transforming this intention in a unilateral promise of a conventional force (une promesse unilatérale valant convention) the concordance of wills should manifest itself in a form of an express promise of one of the parties accepted by another; this concordance referring to all important elements of the object of the convention.’3 Hence the arbitrator ruled that only a concordance of the wills of two parties may have led to the emergence of an international obligation. The cited passage does not amount to an express denial of unilateral acts. It does not say that in order to be binding a unilateral promise must be turned into a treaty. In fact the term ‘unilateral promise’ used by the arbitrator is a ‘treaty stipulation by which one party gives a given right to another party’. It is 1 See: J.P. Jacqué, A propos de la promesse unilatérale, in: D. Bardonnet (ed. ): Mélanges offerts à Paul Reuter. Le droit international, unité et diversité, Paris, 1981, p. 327. 2 Text of the arbitral award: rdilc, 1890, pp. 351–358. Now published also in: riaa xxviii, pp. 237–248. For more on this ruling, see: E. Suy, Les actes juridiques unilatéraux en droit international public, Paris, 1962, p. 128. 3 rdilc, 1890, p. 354; riaa xxviii, p. 243.

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also difficult to see an intention on the part of the Sultan to make a unilateral binding promise. He expressly referred to an agreement with the German company. What’s more, even nowadays a declaration saying ‘we are ready to give a concession’ could be hardly looked at as a source of obligations. The evaluation of any declaration of that type can be made only in concreto. In abstracto a negative presumption may suggest itself. Besides, the arbitrator expressed his negative stance to oral declarations. Nowadays it could be understood as scepticism towards oral unilateral declarations as well as oral agreements. This stance was immediately approved by a commentator, G. Rolin-Jaequemyns. His only reservation was that besides treaties in writing, also oral agreements could be trusted if they are accompanied by a solemn ceremony.4 This attitude – both of the arbitrator as well as the commentator – expressed scepticism as to the value of words given by rulers of states which were not treated as civilized (G. Rolin-Jaequemyns called them ‘semi-barbarian’). It is difficult to evaluate this position. It was certainly a form of paternalism which is unacceptable nowadays. On the other hand it was also a form of protecting the interests of weaker states. The next element visible in the award and commentary was the lack of confidence as regards the reliability of testimony of the parties to the dispute on the oral declarations of semi-barbarian states, as well as their translation into European languages. Both the lack of trust in oral treaties or oral declarations, as well as problems with determining their content in the original language, may be treated as elements of the past in light of today’s overarching forms of recording images and signals. However, the lack of trust of the arbitrator toward unilateral declarations was beyond any doubt and can be treated as an argument against the binding force of unilateral promises. In the first chapter I cited the passage from H. Grotius dealing with acceptatio. According to it: ‘In order that a promise may transfer a right, the acceptance of it is no less necessary than when a transfer of ownership is made; yet in this case also it is understood that a preceding request continues, and has the force of an acceptance.’5

4 G. Rolin-Jaequemyns, Allemagne et Angleterre. – Ile de Lamu. – Sentence arbitrale du baron Lambermont, rdilc, 1890, pp. 350–351. 5 De Jure Belli Ac Pacis Libri Tres, by Hugo Grotius, Volume Two, translation of Book i by Francis W. Kelsey with the collaboration of Arthur E.R. Boak, Henry A. Sanders, Jesse S. Reeves and Herbert F. Wright and an introduction by James Brown Scott. Oxford: At The Clarendon Press, London: Humphrey Milford 1925, p. 338.

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It is worthwhile to note that the first monograph of unilateral acts did not refer to promise. It was even after the publication of the monograph of E. Suy that P. Vellas put into doubt the binding force of unilateral promises, emphasizing that they need an express or implied acceptance.6 P. Vellas referred in this context to both H. Grotius and the arbitral award in the case of Lamu island.7 H. Accioly is also cited among the authors denying the binding force of unilateral promises.8 Slightly earlier R. Quadri wrote that: (…) the problem of the binding force of a promise as a unilateral act was always solved in the negative by international practice, supported unequivocally by the doctrine. It was not put into doubt by the cited authors until recent times. Nobody was also in the position to point out even one precedent predating the establishment of the League of Nations.9 In the fourth report the special rapporteur, referring expressly to the abovecited statements Quadri, writes that: ‘The study of promises in the doctrine, in contrast to other so-called “classic” material acts, is much more recent (…)’10 S. Carbone posits three reasons for denying the binding force of a unilateral promise. They are: the fact that international law is conceived of as being based on agreements; the lack of reference in Art. 38 of the Statute of the icj to unilateral acts;11 and the cautious approach of domestic laws toward unilateral acts as opposed to contracts.12 V.D. Degan on the other hand refers to both reasons and aspects of the topic together. He reduces them to four elements: (1) (2) (3) (4)

The fact that such obligations rarely take place; The attitude of H. Grotuis to promises; The attitude of contemporary authors to them; The problem of revocability of a unilateral promise.13

6 7 8

P. Vellas, Droit international public. Institutions internationales, Paris 1970, p. 204. P. Vellas, op. cit., p. 204. H. Accioly, Tratado de direito internacional publico, vol. i, Rio de Janeiro, 1956, p. 541, cited on the basis of: V.D. Degan, Unilateral act as a source of particular international law, fyil, 1994, p. 190, footnote 87. R. Quadri, Cours général de droit international public, rcadi iii 1964, p. 364. 4. report , p. 18, par. 80. See also: R. Quadri, op. cit., p. 370. S. Carbone, Promise in International Law: A Confirmation of its Binding Force, IYb.il, vol. i, 1975, p. 167; see also arguments presented in: J.P. Jacqué, A propos…, p. 328. V.D. Degan, Sources of International Law, the Hague, Boston, London, 1997, pp. 188–192.

9 10 11 12 13

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Possibility to Create Obligations Unilaterally in the Context of the Doctrine on Sources of Public International Law and the Legal Foundations of the Binding Effect of Treaties

General statements concerning the sources of international law may be perceived as putting into doubt the binding force of unilateral promises. The second edition of the work of L. Oppenheim points at treaties as the only form in which states may create international law by means of a deliberate act.14 J.L. Kunz also wrote apodictically that international law may be created either by means of treaties or custom.15 What’s more, the author did not differentiate between treaties-contracts and law-making treaties.16 In the famous case of Lotus the pcij ruled as follows: International law governs (régit) relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims. Restrictions upon the independence of States cannot therefore be presumed.17 One can wonder whether this statement should be read as an argument against the binding force of at least some unilateral acts. The binding force of such an act as recognition clearly flows from customary law. The same could be said about many other acts. This is why a general and narrow catalogues of sources of international law may have little or no importance to the question of the binding force of unilateral promises. One can opt for a very narrow list of the former and still defend the latter. On the other hand, one cannot identify the apparent ‘overlooking’ of unilateral promises with an express denial of their binding force. The latter cannot be presumed. Taking this into account, in order to test the true position of unilateral promises in international law it is necessary to look for other points of reference than the catalogues of sources of international law. One such promising new area has to do with the discussion on the basis for the binding force of 14 15 16 17

L. Oppenheim, International Law (2d ed. ), Vol. i, p. 23, cited in: G.A. Finch, The Sources of Modern International Law, Washington, 1937, p. 59, footnote 2. J.L. Kunz, The meaning and the range of the norm pacta sunt servanda, ajil, 1945, p. 181. J.L. Kunz, op. cit. p. 182. pcij Publications, series A, No 10, p. 18.

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international agreements. The grounds identified by the doctrine could serve either to confirm the binding force of unilateral promises, or on the contrary to deny it. A passage from the work of J. de Louter would rather be classified as the latter position. He declared that: ‘It is true that a declaration of will (déclaration de volonté) does not oblige to anything itself and would not be able to (ne saurait) limit the freedom of will in the situation of a change of that will. When however the declaration is made in order to obtain, and actually does obtain, the trust of another party, which then makes its own declaration of will, the concurrent declaration (déclaration concordante) creates a legal bond, which is a foundation of a peaceful community among people and states.’18 Seen in this light, a unilateral promise seems to be the antithesis of a treaty, and thereby the antithesis of a binding act. However, the opposite conclusion could be inferred from the similarly general arguments of G. Jellinek presented in his epoch monograph on the legal nature of international agreements. While analysing whether states may create law for themselves in foreign relations, the author refers to an argument according to which self-limitation is possible from the logical point of view.19 It would be an abuse however to claim that this self-limitation must result from a unilateral act of international law. This notion is not even used in Jellinek’s work. What is at stake is self-limitation resulting from domestic law only.20 All the same, such a justification of the binding force of treaties makes it easier to accept the binding force of a unilateral promise, if one applies the reasoning by analogy. Jellinek stresses that international obligations are created by the will of states. Therefore he blames the defenders of the theory of the law of nature, who mixed sovereignty with illicit wilfulness (Willkür).21 He argues on the contrary that Wollen (expressed in the domestic law) means a limitation of

18 19 20

21

J. de Louter, Le droit international public positif, Oxford, Londres, Édimbourg, New-York, Toronto, Melbourne, Bombay 1920, p. 470. G. Jellinek, Die rechtliche Natur der Staatenverträge, Wien 1880, pp. 7 and 16. He notes that it is irreconcilable with an unlimited liberty or discretion. In the further part of his analyses (p. 19 et. seq.) Jellinek demonstrates that despite the contrary opinions of many authors, domestic law created by one state is binding for this state. Jellinek does not analyse any states other than the ones based on law (Rechtsstaat). He rightly notes (at p. 20) that the very idea of state Rechtsstaat is inextricably connected with its law. It is difficult to overcome the feeling that the law which emerged in Germany 50 years after publication of his book was the most cruel test for his words. G. Jellinek, op. cit., p. 18. In his opinion, the essence of sovereignty is Selbstherrlichkeit, that is the fact of creating law for oneself.

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Willen.22 Wollen can be understood as will expressed in the obligation actually incurred, while Willen, on the other hand, could be construed as the actual expectations and aims of states. Jellinek tries to find the basis (grounds) for the binding force of obligations. In his opinion, it is to be found in the very conviction of states as to the binding force of their expressions of will. It is owing to this that the will of states leads to their obligations, i.e. to the fact of being bound to some conduct. What’s more, this conviction cannot be defined any further.23 This means that it is a so-called primary notion. It can be used for defining other elements, but it cannot be defined as such (though of course it can be paraphrased). In fact, this kind of reasoning belongs rather to the field of philosophy than law.24 It is nonetheless important from the present perspective. If the will is the basis for the binding force of treaties, one can reasonably ask if it can be the basis of a binding force of unilateral promises? One more passage from the work of Jellinek is also important here. He states that ‘the ethical obligation to respect somebody’s word is the foundation of the most important guarantees of the community of international law (Verkehrslebens). As any guarantees of any rights, the former has an extra-legal nature. A state which would not recognize its will as giving rise to obligations in its relations with other states, and which would treat obligations resulting from its word as non-existent, in fact recognizes itself as excluded from the international community.’25 It is difficult not to see that such a justification fits both treaties as well as unilateral acts. One can only be left to doubt whether Jellinek himself would have treated his statements as important for the topic of unilateral acts in public international law, a topic which as such is not even mentioned expressis verbis in his book.

22 23 24

25

G. Jellinek op. cit., p. 36. G. Jellinek, op. cit., p. 17. For illustrative purposes one can recall that G. Jellinek argues with the authors according to whom a state can have only rights but no obligations vis-à-vis individuals. Such a view is attributed to Hobbes, Bodin and Rousseau. Jellinek (op. cit., pp. 10–12) notes that even the absolutists looked for some element limiting the power of a state; for Bodin this limitation lied in the law of God (G. Jellinek, op. cit., p. 13). Jellinek points at the private law in the framework of which a state may effectively bind itself. He notes also that the essence of the ethics and religion is to impose limitations upon oneself. G. Jellinek, op. cit., pp. 57–58.

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The views of Jellinek were overtaken by E. von Ullmann.26 He wrote that: This characteristic confirmation of the will of a state is based (as was already said) on the recognition of the needs of mutual contacts of states and recognition of the legal personality of the latter. There are also real conditions of life, the conscience of which justifies the need to limit the scope of freedom of activities of an individual state and is a motive of practical formation of the will of a state (Motive des praktischen Verhaltens des Wilens erzeugt). This process – important from the point of view of psychology and ethics – is repeated in any case in which states bind their will unilaterally or on a mutual basis (einseitig oder gegenseitig).27 Not surprisingly, what is the most interesting for the present work is the reference to a state unilaterally binding itself. Von Ullmann (similarly as Jellinek) does not actually devote a single word to unilateral acts of international law in the other parts of his book. The fragment cited above is part of a passage devoted to treaties, and is preceded (once again as in Jellinek’s book) by a remark concerning self-limitation on the grounds of internal law. Hence it is more realistic to assume that what von Ullmann had in mind when writing on states unilaterally binding themselves were not unilateral acts in the technical meaning of the term, but treaties imposing obligations on one party only. It is worth noting that in the further parts of his book von Ullmann uses the term ‘unilateral’ with reference to instruments which clearly belong to the law of treaties. So for example he writes on unilateral and reciprocal alliances28 or unilateral guarantees.29 Interestingly enough, von Ullmann refers in this part of his analyses dealing with international law to…the abdication of Napoleon.30 This act clearly was of a unilateral character, though it may be qualified above all as a part of domestic law. Other justifications (or maybe explanations) of the binding force of international agreements also cannot be deemed to be arguments against the binding force of unilateral promises. The exception is J. Hatschek. He emphasizes that the justification of the binding force of treaties must be situated only within international law. It is easy to agree with him as to that matter, but it is much 26 27 28 29 30

E. von Ullmann, Völkerrecht, Tübingen, 1908, p. 249ff. In practice it is a summing-up of the above-referred work of G. Jellinek. E. von Ullmann, op. cit., p. 250. E. von Ullmann, op. cit., p. 276. E. von Ullmann, op. cit., p. 278. E. von Ullmann, op. cit., p. 263, footnote 1.

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more difficult to agree with that part of his arguments in which he presents an act of ratification as an explanation.31 While it would rather speak against the binding force of unilateral promises, it would act as well against treaties other than those ratified. J. de Louter argues that the basis of the binding force of treaties should be seen in the international legal community (communauté juridique internationale).32 It is difficult to even imagine a contemporary author referring to the elements presented by the classical authors as the basis for the binding force of treaties. J. de Louter divided them into a few groups. They referred to: (1) the law of nature and the principle pacta sunt servanda contained in it (Grotius), (2) morality or religion obliging one to keep one’s promises (Vattel), (3) morality and justice (Fiore), (4) usefulness of the norm that agreements must be respected (Bentham).33 None of these justifications speak against the thesis according to which unilateral promises are binding. V.D. Degan writes that the main agency of the conclusion and operation of treaties is the concordance of wills of two or more international legal persons, aimed at the creation of legal effects in the field of international law.34 On its face such an argument could be seen as a voice against unilateral acts. However the same author justifies the binding force of a unilateral act by reference to the will of one state to give rise to legal effects in the sphere of international law.35 It is easy to conclude that the non-unilateral (that is bilateral or multilateral) character of treaties, as opposed to unilateral acts, is nowadays not treated as the decisive element for the binding force of a declaration of will. This may serve as a warning against too literal a reading of the older texts on treaties. This relates first of all to those fragments which, if read literally, would suggest a denial of the force of unilateral promises. Such a denial cannot be implied.

31 32 33 34 35

J. Hatschek, Völkerrecht als System rechtlich bedeutsamer Staatsakte, Leipzig 1923, pp. 228–230. J. de Louter, op. cit., tom i, p. 470. J. de Louter, op. cit., tom i, pp. 469–470. V.D. Degan, Sources…, p. 9. V.D. Degan, Sources…, p. 9.

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Unilateral Promises and Pactum in Favorem Tertii

10.3.1 Introductory Remarks One of the questions which cannot be omitted in the analysis of the binding force of unilateral promises (or more generally, unilateral declarations) is the relationship of such promises and declarations to pactum in favorem tertii. The phenomena of pactum in favorem tertii and pactum in onus tertii36 form perhaps the most important part of the law of treaties from the point of view of the study of unilateral acts. In fact they raise more than one interesting aspect. Worthy of special attention is the principle pacta tertiis nec nocent nec prosunt, the exceptions to it, the legal nature of the consent of a third state, the legal nature of the relationship between a third state and the parties to a treaty, and last but not least, the comparison of pactum in favorem tertii to a unilateral act. W. Góralczyk also identifies two other matters worth discussing. The first is whether a third state has a duty to accept a benefit. The second element is whether a third state can enforce the rights provided for in a treaty to which it is not a party.37 This last element is very important from the point of view of the present work and must be discussed in more detail. There is no possibility to exhaust here all the legal problems connected with the institution of pactum in favorem tertii. Its connections with unilateral acts are numerous and have already attracted attention in the literature on international law. So for example a group of authors treat pactum in favorem tertii as a unilateral act.38 I have already indicated however that a treaty on the one hand and a unilateral act on the other are two distinct phenomena. What I can propose in this respect is a rule of reason according to which, if the assumptions adopted by a given author and his or her logical (at least apparently logical) reasoning induces such an author to see a unilateral act in a treaty, such conclusion should be simply denied without any additional justification. The analyses presented in Part 2 revealed the existence of situations in which a simple choice between the notions of ‘unilateral act sensu stricto’, ‘­unilateral act sensu largo’, and ‘treaty’ seems to be insufficient. One cannot 36 37 38

J. Gilas notes that a given treaty may be at the same time in favorem and in onus of a given third state; J. Gilas, Prawo międzynarodowe, Toruń 1995, pp. 93–94. W. Góralczyk, Prawo międzynarodowe publiczne w zarysie, Warszawa 1989, p. 89. J.P. Jacqué, A propos…, 330 et. seq.; W. Czapliński, Akty jednostronne w prawie międzynarodowym, Sprawy Międzynarodowe 6/1988, p. 106.

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exclude that pactum in favorem tertii is another situation of that kind. As was said in Chapter 1, the term ‘unilateral’ belongs among the terms of everyday common language and, as many such terms, is ambiguous. If one can speak of ‘unilateral treaties’, can an author calling pactum in favorem tertii a unilateral act really be blamed? Even if he/she cannot be blamed as such, that element of common everyday language must be somehow restricted, in the sense that a treaty by definition cannot be qualified as a unilateral act. 10.3.2 Requirement of Consent of a Third State The principle pacta tertiis nec nocent nec prosunt is of primary importance for the topic of unilateral acts. It means that treaties create neither rights nor duties for third states without the consent of the latter. The vclt allows for implied consent as regards rights. On the other hand it provides a requirement of consent in writing as regards obligations. I will limit myself here to the creation of rights for third states, as only in such cases can one look for the possible similarities of pactum in favorem tertii to a unilateral promise. The basic question that must be asked, and (possibly) answered in this book is the following: If treaties cannot create rights for third states without their consent, can unilateral acts create such rights for third states (i.e. states other than the author of the promise) without their consent? A negative answer to this question seems to be only logical. The principle of the sovereign equality of states seems to be irreconcilable with the possibility of any state becoming a subject of any right without its consent. This principle would seem to exclude unilateral acts creating obligations, not to mention such acts attempting to create rights for the author-state. One could at the most speak of apparently unilateral obligations (that is obligations apparently resulting from unilateral acts). Because of the requirement of consent, every such act would have to contain a consensual element. What’s more, the co-existence of pactum in favorem tertii and the consent of a third state is qualified by some authors as a treaty. Already after the signature of the vclt, P. Reuter wrote that: ‘[A]s regards the creation of rights, two theories emerged: the theory of collateral agreement (l’accord collateral) and the theory of provision to the benefit of a third state (stipulation pour autrui). Within the framework of the latter a third state would acquire rights directly and independently of any acceptance whatever.’39

39

P. Reuter, Introduction au droit des traités, Paris, 1972, p. 117. On this discrepancy of views, see also: I.M. Sinclair, The Vienna Convention on the Law of Treaties, Manchester, Dobbs

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It is difficult not to see that the vclt does not seem reconcilable with the latter concept, as it refers to the consent of a third state (even if a tacit or implied consent). P. Reuter himself is ready, however, to see a practical solution in the vclt, reconcilable with both theories.40 Though it must be stressed that the practical importance of that dispute is not great,41 from the perspective of a work on the theory of law, the dispute is of fundamental importance. One of the proponents of the concept of accord collateral is P.M. Dupuy.42 One should include among the proponents W. Czapliński and A. Wyrozumska as well. They write that: [T]he essence of the adopted solution is that the obligations created have a contractual character. A third state does not become a party to a treaty stipulating its rights or obligations (it cannot change or modify the treaty); a treaty is – as the ilc puts it – ‘a legal basis’ of obligations between the parties to the treaty on one hand and a third state on the other. What is created thereby is (according to the Commission) a “parallel treaty”.43 In fact the notion of ‘consent’ exceeds to a large extent the scope of treaties. S. Bastid points out this element, writing that the principle of consent ‘transcends the scope of treaties sensu stricto’, and that the ‘consent expressed by a state at the request on another state binds the former in all circumstances, even if no formal treaty is concluded.’44 It is difficult to see a treaty in every case in which one can establish the presence of a consent. In particular nobody goes as far as to see a formal expression of consent by a beneficiary third state to the rights provided for in a treaty as making it a party to that treaty. It is true however that the behaviour of the beneficiary of a unilateral act has influence on its effectiveness. An analogous topic is faced both when discussing promise, as well as waiver.

40 41 42

43 44

Ferry, 1973, p. 77; R. Jennings, A. Watts, Oppenheim’s International Law, ninth edition, vol. i, London, New York, 1996, pp. 1262–1263. P. Reuter, Introduction…, p. 118. R. Jennings, A. Watts, op. cit., pp. 1262–1263. P.M. Dupuy, Droit international public, Paris, 2000, pp. 280–281. See also N. Quoc Dinh, P.  Daillier, A. Pellet, Droit international public, Paris, 1994, p. 240; hereinafter cited as: N. Quoc Dinh: op. cit. W. Czapliński, A. Wyrozumska, Prawo międzynarodowe publiczne. Zagadnienia systemowe, Warszawa 2004, p. 481. S. Bastid, Les traités dans la vie internationale, Paris, 1986, p. 115.

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10.3.3 Possibility of Claiming Rights by a Third State An aspect which is even more difficult is whether a third state may effectively demand the benefits provided for in a pactum in favorem tertii. Ch. Rousseau takes a negative stance to this question.45 He points out examples in the negative, among them the 1856 treaty on the guarantee of independence of Turkey. Turkey, as a third state, was not believed to have the right to itself invoke the treaty.46 In the Polish legal literature W. Góralczyk presents a similar view, writing that: ‘[I]t seems that a third state is not allowed to demand the benefit provided for in a treaty, if the parties have not given it this benefit themselves. The obligation is in fact only between the parties to a treaty, and as long as a third state does not enter into possession of its rights, the parties to a treaty may cancel or modify a provision to its benefit.’47 Such an attitude may give rise to doubts. It seems self-contradictory to say that someone has a right but cannot enforce it. It is worthwhile to invoke the passage from the judgment of the pcij in the case of free zones of Upper Savoy and the district of Gex. The pcij stated that: It cannot be lightly presumed that stipulations favourable to a third State have been adopted with the object of creating an actual right in its favour. There is however nothing to prevent the will of sovereign States from having this object and this effect. The question of the existence of a right acquired under an instrument drawn between other States is therefore one to be decided in each particular case: it must be ascertained whether the States which have stipulated in favour of a third State meant to create for that State an actual right which the latter has accepted as such.48 A book on unilateral acts does not have to unequivocally decide this dilemma, but it must treat the following question: If the afore-cited descriptions of Ch. Rousseau and W. Góralczyk were a true picture of the essence of pactum in favorem tertii, would unilateral promises be possible at all? In my opinion they would be possible all the same. A treaty is first of all concluded by and between (among) the parties. Their will decides on the existence of a treaty. A state may conclude a treaty for the benefit of a third state, but it may also make a unilateral promise, having in mind the separate character of the two legal regimes. 45 46 47 48

Ch. Rousseau, Droit international public, Paris, 1970, t. i, p. 190. Ch. Rousseau, op. cit., t. i, p. 190. W. Góralczyk, op. cit, p. 90. pcij Publications, series A/B, No 46, pp. 147–148.

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Each of them is connected with its own risks and benefits. If a unilateral declaration is made, a probable dispute will concern whether it is binding or not, while the binding character of treaties is beyond any doubt. What’s more, as a rule one of the parties to a treaty is interested not only from the legal but also from the material point of view in the enforcement of a treaty to the benefit of a third state. That is why the other party or parties to that treaty, which may be less interested in the benefit, must count on pressure from the former. A treaty usually provides the means for putting an end to its binding force, and the lack of any such provision to this end may (although it does not have to) mean a prohibition of unilateral termination. A third state may feel more comfortable in the case in which it does not take the benefit immediately. As regards a unilateral promise, the rules concerning its termination are much less clear. That is why the binding force of a unilateral promise does not have to be and is not held hostage to the legal construction of pactum in favorem tertii. On the other hand the latter does not serve as an argument for acceptance of the former. The present views on unilateral declarations (and unilateral ­promises in particular) are to a great extent under the influence of the jurisprudence of international courts and the fact of states making unilateral declarations aimed at the production of legal effects. It is not difficult to see the presence of two discourses on these two matters. Authors writing on unilateral declarations try to speak in the language of the 1974 Nuclear Tests ruling,49 while the style of the vclt is different. One can say that the 1969 vclt cannot be blamed for not overseeing a 1974 icj judgment. The differences in language refer unfortunately to fundamental notions for the study of unilateral acts. The differences in styles cannot be overestimated however. The vclt was not aimed at the elimination of unilateral declarations. It cannot be treated as the Holy Scripture. The same must be said about some elements of the 1974 judgment. 10.4

Legal Effect of a Declaration made by a Single State in the Light of the Case-law and Practice

10.4.1 First Rulings of pcij and icj on Unilateral Declarations One of the first cases in which one can find a reference to declarations made by one state was the judgment of the pcij in the case of the Mavrommatis 49 See: infra.

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Jerusalem concessions.50 The agent of the British government argued in this case as follows: We have received from M. Rutenberg what we regard as an unequivocal disclaimer of any intention to ask us to expropriate M. Mavrommatis. We have accepted that unequivocal statement, and we have declared (…) that His Majesty’s Government are ready and willing to carry out in regard to both M. Mavrommatis’ Jerusalem concessions, if, contrary to the British contention, they are held to be valid, whatever obligations under the Lausanne Protocol the Court may decide to be applicable now. That explicit declaration I, as such authorized representative of H.M. Government, and a member of it, here repeat that we intend to carry out whatever obligation, if any, the Court says are imposed upon us by the terms of the Lausanne Protocol. That being so, there can be no question of our acting on any request to expropriate M. Mavrommatis. If M. Rutenberg was so – I do not like to use the term dishonest – so unreasonable, now as to ask to expropriate him after declaring that he has no such intention, we should not act upon that request.51 One should add that the case concerned concessions for the public distribution of electric power and for electric tramways and for the construction and exploitation of the works necessary for the supply of drinking water in Jerusalem52 (at that time belonging to the Ottoman Empire). These concessions had been given to Mr. Mavrommatis before the First World War. After the war an analogous concession was given to one Mr. Rutenberg. The latter concession provided that: ‘In the event of there being any valid pre-existing concession covering the whole or any part of the present concession’, Mr. Rutenberg could demand either the annulment of the previous concession or demand compensation. The cited declaration referred to the fact of Mr. Rutenberg not demanding the annulment of the concession of Mr. Mavrommatis. What is the most important for the present work is the evaluation of the declaration of the British representative made by the pcij. It is quite short. The pcij ruled simply that:

50 51 52

pcij Publications, series A, no 5, p. 21. Ibidem, p. 37. As well as in Jaffa, but the latter concessions were however not within the jurisdiction of the Court.

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After this statement, the binding character of which is beyond ­question, the Court considers that henceforward it is quite impossible that the British or Palestine Governments should consent to comply with a request for the expropriation of M. Mavrommatis’ Jerusalem concession.53 One cannot find any hesitation as regards the binding force of the declaration in question. The very interpretation of this declaration is, however, much more difficult. What was actually promised by the representative of the uk? One of the elements of his declaration was the statement according to which the uk would accept the obligations indicated in the judgment of the Court. One can doubt whether that part of a declaration is a true obligation. The second element contained in the first sentence is only of informative value, referring to the declaration of a private person (i.e. Mr. Rutenberg). In the opinion of the representative of the British government, this declaration was definitive and affects the behaviour of the government vis-à-vis Mr. Mavrommatis. It is difficult, however, to see in this behaviour any obligation on the part of a state. The third element is a promise that if Mr. Rutenberg changes his mind, the British government will not agree on the annulment of the concession of Mr. Mavrommatis. This last element may really be qualified as a unilateral obligation. What is the most striking is that a unilateral declaration of a binding character was not treated as any peculiar event. One can say that expecting or demanding a treaty in this respect would be an absurd. The pcij did not seem to cross any Rubicon whatsoever. It treated as obvious both the unilateral character of the declaration, as well as its binding force. It is beyond any dispute that parties to proceedings before international courts and arbitrators make several declarations. In the case of Mavrommatis the Greek government limited itself to calling the statements made as having been made too late.54 Their unilateral character did not seem to attract any attention – it was simply obvious. The topic of legal effects of declarations made before international courts was also present in the case of certain German interests in the Polish Upper Silesia.55 There the pcij ruled:

53 54 55

Ibidem, p. 37. Ibidem, at p. 40. Case concerning certain German interests in Polish Upper Silesia (the Merits), pcij Reports 1926, serie A, No 7.

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The representative before the Court of the respondent Party [Poland – ps] in addition to the declarations above mentioned regarding the intention of his Government not to expropriate certain parts of the estates in respect of which notice had been given, has made other similar declarations which will be dealt with later; the Court can be in no doubt as to the binding character of all these declarations.56 There is also no doubt that such declarations are not of a treaty nature. The legal literature has highly evaluated the importance of these judgments. A. Rubin writes that: ‘There appears to be general agreement that a declaration made before an international tribunal by a party is binding on that party.’57 However, he has serious doubts as to the qualification of such declarations, stating that: But such declarations can hardly be classed as “unilateral” in the sense of the Nuclear Tests cases. Such declarations are made in a context of multilateral formality and the integrity of the tribunal is involved directly.58 K. Skubiszewski shares his doubts as to the use of the term ‘unilateral’ as regards declarations made before the Court in litigation between states.59 Clearly the very existence of an international court is the result of a multilateral act. Also its jurisdiction in concreto must result from either a multilateral or bilateral act, or a unilateral act provided for in a multilateral treaty (therefore clearly being non-autonomous) or forum prorogatum (which as such deserves separate analysis as to its unilateral or non-unilateral character). This element is not sufficient however to transform every declaration made before an international court into a treaty. But one may ask – can one exclude any possibility of making true unilateral declarations in a forum of an international organization strictly based on the fact that the latter needs a treaty for its existence? If such a possibility is not excluded, why should one adopt such a way of reasoning with respect to international courts? The declarations cited were neither called treaties, nor perceived as treaties by the interested states. They were not even similar to treaties. In fact nobody tried to compare them to treaties nor found any consensual element in them. 56 57 58 59

Ibidem, at p. 13. A. Rubin, The International Legal Effects of Unilateral Declarations, ajil, 1/1977, p. 3. A. Rubin, op. cit., p. 3. K. Skubiszewski, Unilateral Acts of States, in: M. Bedjaoui (ed.), International Law: Achievements and Prospects, Paris 1991, p. 223; see also: pp. 231–232.

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W. Fielder notes that in the judgments mentioned above, in contrast to the judgment in the case of Eastern Greenland, the pcij did not use the term ‘promesse’.60 It is difficult to understand why this should affect the unilateral character of declarations in question, however. 10.4.2 The Importance of the pcij Ruling in the Case of Eastern Greenland The judgment of the pcij in the case of the Eastern Greenland61 may be seen as one of the most important statements on the binding force of unilateral declarations (or in other words concerning declarations of one state which cannot be prima facie qualified as an element of a treaty). In fact however, when discussing the case the interest of those authors dealing with unilateral acts is limited to the so-called ‘Ihlen declaration’. This was a declaration made by the Minister for Foreign Affairs of Norway in response to a request of the Danish diplomatic representative (with the rank of minister) in Christiania. The latter was instructed that a Committee had just been constituted at the Peace Conference “for the purpose of considering the claims that may be put forward by different countries to Spitzbergen”, and that the Danish Government would be prepared to renew before this Committee the unofficial assurance already given (on April 2nd, 1919) to the Norwegian Government, according to which Denmark, having no special interests at stake in Spitzbergen, would raise no objection to Norway’s claims.62 At the same time the Danish diplomat was instructed to point out ‘that the Danish Government had been anxious for some years past to obtain the recognition by all the interested Powers of Denmark’s sovereignty over the whole of Greenland, and that she intended to place that question before the abovementioned Committee’; and further that the Danish Government felt confident that the extension of its political and economic interests to the whole of Greenland ‘would not encounter any difficulties on the part of the Norwegian Government.’63

60 61 62 63

W. Fiedler, Zur Verbindlichkeit einseitiger Versprechen im Völkerrecht, gyil 1976, p. 40. pcij Publications, series A/B, No. 43, pp. 22–75. Hereafter cited as: Eastern Greenland case. This matter did not become the object of the works of the peace conference, a fact which is, however, only of slight importance for the present work. Both citations – Eastern Greenland case, p. 36.

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An exchange between the Danish diplomat and the Norwegian Minister for Foreign Affairs took place on 14 July, 1919. On this date Minister Ihlen stated merely that ‘the question would be considered.’64 On 22 July, 1919 Minister Ihlen was reported to have said that ‘the Norwegian Government would not make any difficulties in the settlement of this question.’65 The fact of the declaration being made was not put into doubt by Norway. According to the report made by the Danish Minister to his own Government, M. Ihlen’s words were that ‘the plans of the Royal [Danish] Government respecting Danish sovereignty over the whole of Greenland…would meet with no difficulties on the part of Norway.’66 Despite the unquestionable fact of an oral declaration having been made (even in the version conceded by Norway), when Denmark in 1920 asked Norway for a written declaration in the same matter,67 Norway refused, and on 10 July, 1931 (after several years of negotiations and disputes on the legal status of Eastern Greenland) Norway declared it would proceed to occupy Eastern Greenland as terra nullius.68 The evaluation of the respective rights and obligations of Denmark and Norway connected with Greenland was the object of the judgment of the pcij. The effect of Minister Ihlen’s declaration was an element of this evaluation. It was neither the only one nor even the most important one. It is worth noting that the pcij referred to Minister Ihlen’s declaration only after already ruling that Denmark had title to sovereignty over all of Greenland,69 pointing out that Norway had recognized that sovereignty on more than one occasion.70 In fact the observations on Minister Ihlen’s declaration formed the fourth ground of the judgment pointing out the Danish sovereignty and the illegality of the Norwegian declaration on occupation of Eastern Greenland. All the same the remarks on Minister Ihlen’s declaration deserve special attention here. In referring to the very essence of the declaration, the pcij noted that it was not established that the declaration and the request of the Danish minister ‘would have created a bilateral engagement.’71 64 Ibidem. 65 This wording was reported by Mr. Ihlen himself. 66 Eastern Greenland case, p. 36. 67 As well as a few other states. 68 Eastern Greenland case, p. 43. 69 As a result of sovereign acts from the period 1814–1931, Eastern Greenland case, p. 64. 70 Already in 1819 (see: p. 68) and in treaties from the 1920s, vide: Eastern Greenland case, p. 69. 71 Eastern Greenland case, p. 70.

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The pcij evidently did not see any problem in this, as it ruled that: The Court considers it beyond all dispute that a reply of this nature given by the Minister for Foreign Affairs on behalf of his Government in response to a request by the diplomatic representative of a foreign Power, in regard to a question falling within his province, is binding upon the country to which the Minister belongs.72 This statement requires examination. Some doubts may arise due to the context of ‘a reply in response to a request by the diplomatic representative of a foreign Power.’ This is connected with the presence of two subjects of international law, hence one may wonder whether a declaration made in other circumstances would have given rise to the same effects. It is useful to refer in this context to the arguments presented by Norway during the proceedings. Interestingly enough no argument of Norway referred to the unilateral character of the declaration as a reason for its lack of legal effect. As the Court put it: Norway has objected that the Danish Government’s intention to extend the monopoly régime to the whole of Greenland was not mentioned in the Danish request of July 14th, 1919, as is alleged to have been done at a later date in the communications addressed to the interested Powers in 1920 and 1921; and it is argued that if the Norwegian Government had been warned of this intention, the declaration of the Minister for Foreign Affairs would have been in the negative; and that, in consequence, the declaration, though unconditional and definitive in form, cannot be relied on against Norway.73 The pcij was not convinced by this argument. It ruled that: It seems difficult to believe that Norway could not have foreseen the extension of the monopoly, in view of the fact that the United States of America, which had received in 1915 a request similar to that made to Norway on July 14th, 1919, had understood perfectly well that the Danish plans in regard to the uncolonized parts of Greenland involved an extension of the monopoly regime – although this was not mentioned in the Danish request at Washington – and had for that very reason at first 72 Eastern Greenland case, p. 71. 73 Ibidem.

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demanded the maintenance of the “open door”. It is all the more difficult for the Court to accept the Norwegian argument on this point because the monopoly, in Greenland, is an institution which traces its origin to the Dano-Norwegian administration in the xviiith century.74 It is difficult not to see that the Norwegian arguments do not act against, but rather in favour of, the thesis on the binding character of unilateral declarations. It is also worthwhile to point out the words of the above-cited passage which indicate Norway itself conceded that Minister Ihlen’s declaration was ‘unconditional and definitive in form’. The same words were used by the Court in the next passage of the judgment. According to it: From the foregoing, it results that the Court is unable to regard the Ihlen declaration of July 22nd, 1919, otherwise than as unconditional and definitive.75 Such a laconic style seems surprising. One may rightly get the feeling that confirmation of an ‘unconditional and definitive character’ is a kind of legal qualification. A little more light is shed by the next passage of the judgment. In it the pcij analysed the subsequent behaviour of Norway, including its refusal to give a written confirmation of Ihlen’s declaration and an express declaration made by the next Minister of Foreign Affairs, Minister Ræstad, of 20 July 1921. According to Minister Ræstad, Norway did not and would not recognize such an extension of the Danish sovereignty over Greenland, which would be connected with the extension of the Danish “monopoly” over access to Greenland. The Court ruled that: What the Court cannot regard as being in accordance with the undertaking (l’engagement) of July 22, 1919, is the endeavour to replace an unconditional and definitive undertaking by one which was subject to reservations; and what it is even more difficult for the Court to admit is that, notwithstanding the undertaking of July 22, 1919, by which she promised to refrain from making difficulties in the settlement of the Greenland question, Norway should have stipulated that “Eastern Greenland must be Norwegian”.76 74 Ibidem. 75 Eastern Greenland case, p. 72. 76 Eastern Greenland case, pp. 72–73.

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As is visible, the unconditional and definitive character of the undertaking(s) was clearly associated with the necessity to respect them. In its conclusion the Court confirmed that ‘as a result of the undertaking involved in the Ihlen declaration of July 22, 1919, Norway is under an obligation to refrain from contesting Danish sovereignty over Greenland as a whole, and a fortiori to refrain from occupying a part of Greenland.’77 It was already early on in the legal literature that the proper object of the judgment was identified as a unilateral oral declaration, not a treaty.78 At the same time, A. Rubin was sceptical about the possibility of treating the Eastern Greenland case as a precedent for the Nuclear Tests case.79 Also W. Fielder, while noting the use by the pcij of the word ‘promesse’, has doubts as to the importance of the unilateral or non-unilateral character of the act for the very judgment.80 On the other hand, J.P. Jacqué speaks in favour of the unilateral character of the Ihlen declaration.81 He writes that ‘nothing in the text of the judgment allows us to speak about the existence of a treaty. All the same the subsequent Danish acceptance can transform a declaration into a treaty’.82 It is a fact that the Danish diplomat induced Minister Ihlen to make a declaration. He did not, however, make any formal iunctim between his answer and the future behaviour of Denmark with respect to Spitzbergen. This is why the Ihlen declaration should be treated as a unilateral act. 10.4.3 Unilateral Declarations Concerning South West Africa The next interesting statement of the World Court is to be found in the icj’s advisory opinion on the international status of South West Africa. It concerned, inter alia, declarations made by the Union of South Africa. These declarations were made on 9 April 1946 in the Assembly of the League of Nations, as well as in documents of 14 October, 1946, 4 November, 1946, and 23 July, 1947 addressed to the un Secretary General and the Fourth Committee of the un General Assembly.83 The icj ruled that:

77 78 79 80 81 82 83

Eastern Greenland case, p. 73. J.W. Garner, The international binding force of unilateral oral declarations, ajil 1933, pp. 494–495. A. Rubin, op. cit., pp. 4–5. W. Fielder, op. cit., p. 41. J.P. Jacqué, A propos…, pp. 254–255. J.P. Jacqué, A propos…, p. 255. i.c.j. Reports, 1950, p. 135, see also: A. Rubin, op. cit., p. 4.

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These declarations constitute recognition by the Union Government of the continuance of its obligations under the Mandate and not a mere indication of the future conduct of that Government.84 It thereby confirmed the binding force of declarations made by one state. It is worth noting that the icj referred to recognition, and even a person very sceptical as regards the binding force of unilateral promises would be not ready to put into doubt the binding force of unilateral recognition. These declarations were referred to briefly in the South Western Africa ­cases.85 The Court limited itself to the statement that: The Court can equally not read the unilateral declarations, or statements of intention as they have been called, which were made by the various mandatories on the occasion of the dissolution of the League, expressing their willingness to continue to be guided by the mandates in their administration of the territories concerned, as conferring on the members of the League individually any new legal rights or interests of a kind they did not previously possess.86 In fact the entire judgment (notabene very controversial) concentrated on the issue of those rights which could, and which could not, be enforced individually by the members of the League against the mandatory. This question is not very interesting for the topic of the present work. What is important is that the icj did not consider disqualifying such declarations just because of their unilateral character. What’s more, it referred to controversies as regards their qualification. The dilemma – unilateral declarations or statements of intention – could be understood as unilateral (binding) declarations vs. (nonbinding) statements of intention. The icj did not resolve that dispute itself, but this is not the most important element. The very lack of exclusion in abstracto of such binding force constitutes an important argument in favour of the thesis that unilateral declarations may create obligations in international law. In the same case the icj referred to the United Kingdom Government’s assurances given to the Council of the League of Nations ‘that the general pattern’ of the contents of its treaties with Iraq ‘would be the same as for the other

84 Advisory opinion, p. 135, cited on the basis of: A. Rubin, op. cit., p. 4. 85 i.c.j. Reports 1966, p. 36. 86 Ibidem.

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mandates.’87 The icj did not analyse these assurances. In the given context the only element which was discussed was the fact of them having been addressed to the League of Nations and not its members. This element is not very important from the present perspective. What must be stressed however is that the icj did not refer to the unilateral or non-unilateral character of these declarations. This might mean that (as in the previous judgments) their possibly unilateral character was not seen as a source of automatic lack of legal force. In fact, however, the icj did not express itself on whether the assurances were binding or not. 10.4.4 Unilateral Declarations made in Practice before the Ruling on Nuclear Tests There is no doubt that the icj judgment in the case of Nuclear Tests offered the opportunity for the World Court to make its most important statements on unilateral acts as such, and on promise in particular. In the light of the preceding remarks this judgment cannot be seen as deus ex machina. It was rather a confirmation of a longer line of judgments. Or perhaps it could be compared to stating expressly what had earlier been rather implied and hinted at. The judgment itself was preceded by the development of several elements connected with the state practice on unilateral promises. It must be said that unilateral statements as such were nothing extraordinary. That is why there is no need to refer to such acts as declarations on recognition or (much more seldom) on waiver. Some such elements predated the judgments already discussed. On 28 February 1922 the uk made a declaration on Egypt.88 While to a large extent it amounted to a declaration on recognition and at the same time on the creation of a new state from its own colony,89 it is worthwhile to cite its Point 2, which read that: So soon as the Government of His Highness shall pass an Act of Indemnity with application to all inhabitants of Egypt, martial law as proclaimed on the 2nd November, 1914 shall be withdrawn. 87 88 89

Ibidem, p. 27. Text on the basis of http://en. wikipedia. org/wiki/Unilateral_Declaration_of_Egyptian _Independence, consulted on 13 October, 2014. The preamble stated, inter alia, that: ‘Whereas His Majesty’s Government, in accordance with their declared intentions, desire forthwith to recognise Egypt as an independent sovereign State;’ Point 1 of the Declaration declared that: ‘The British Protectorate over Egypt is terminated, and Egypt is declared to be an independent sovereign State.’

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At the same time it reserved several matters90 ‘to the discretion of His Majesty’s Government until such time as it may be possible by free discussion and friendly accommodation on both sides to conclude agreements in regard thereto between His Majesty’s Government and the Government of Egypt.’ It also reserved that: Pending the conclusion of such agreements, the status quo in all these matters shall remain intact. This last element could be hardly called a promise. In 1924 the government of Romania refused to make an assurance of compensation for American nationals in cases of expropriation.91 It expected instead the conclusion of a special agreement to this end.92 It is visible that both the Americans and the Romanians saw value in a unilateral act, what was missing for the latter was quid pro quo rather than legal force. Also international guarantees given by Germany to several states before World War ii were qualified as unilateral acts.93 A very important argument in favour of the binding force of such unilateral declarations could be found in the Charter of the International Military Tribunal and the definition of crimes against peace included in its Art. 6. It defined those crimes as the ‘planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances (emphasis added), or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.’ Of course the most important element is the reference to assurances. The act of indictment (in appendix C) identified several declarations made by Germany. They were: German Assurance given on 21 May 1935 that the Inviolability and Integrity of the Federal State of Austria Would Be Recognized; German Assurances given on 30 January 1937, 28 April 1939, 26 August 1939, and 6 October 1939 To Respect the Neutrality and Territorial Inviolability of the Netherlands; 90

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They included: the security of the communications of the British Empire in Egypt; the defence of Egypt against all foreign aggression or interference, direct or indirect; the protection of foreign interests in Egypt and the protection of minorities; the Soudan. G.H. Hackworth, Digest of International Law, Washington, 1940, vol. i, p. 21. Ibidem. The author cites the view of Secretary of State Hughes to the American chargé d’affaires ad interim, pointing out that the right to compensation results from general principles. This element is of secondary importance here. E. Suy, op. cit., p. 131.

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German Assurances given on 30 January 1937, 13 October 1937, 28 April 1939, 26 August 1939, and 6 October 1939 To Respect the Neutrality and Territorial Integrity and Inviolability of Belgium; German Assurances given on 11 March 1938 and 26 September 1938 to Czechoslovakia; Solemn Assurances of Germany given on 3 September 1939, 28 April 1939, and 6 October 1939 Not to Violate the Independence or Sovereignty of the Kingdom of Norway; German Assurances given on 28 April 1939 and 28 August 1939 To Respect the Neutrality and Territorial Inviolability of Luxembourg; German Assurance given on 6 October 1939 To Respect The Neutrality and Territorial Integrity of Yugoslavia.94 A. Rubin depreciates the importance of these declarations, both for the indictment and the judgment of the International Military Court.95 In fact, after having analysed several treaties, the Court ruled as follows: The Tribunal does not find it necessary to consider any of the other treaties referred to in the Appendix, or the repeated agreements and assurances of her peaceful intentions entered into by Germany.96 It is difficult, however, to speak about responsibility for a breach of political declarations. Also the very formulation “entered into” speaks in favour of binding force. It is rather difficult to use this phrase with respect to non-binding promises. Though this last element could be hardly seen as being of decisive importance, it is simply the next argument which confirmed rather than weakened the thesis on the binding force of unilateral promises. On 24 April 1957 Egypt made a declaration concerning the Suez Channel.97 It is frequently referred to in the works on unilateral acts.98 Egypt itself called it an international instrument.99 It indicated that the declaration confirmed the 1888 Constantinople Convention and was in conformity with it. Besides the above-mentioned confirmation of the 1888 Convention, the declaration 94

Cited according to: www.yale.edu/lawweb/avalon/imt/proc/judviol.htm ‘1996 The Avalon Project: Judgment: Violations of International Treaties.’ See also: E. Suy, op. cit., pp. 131–132. 95 A. Rubin, op. cit., p. 4. 96 Fragment cited on the basis of www. yale. edu/lawweb/avalon/imt/proc/judviol. htm. 97 unts, 1957, p. 299; accessible at the website: http://untreaty.un. org/unts/1_60000/8/ 32/00015583.pdf. consulted on 15 August, 2008. 98 Vide: infra. 99 See: point 10 of the declaration.

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referred to such matters as freedom of navigation in the channel, its management, fees and other financial regulations, prohibition of discrimination, and dispute settlement. There could be no doubt as to the binding force of these provisions as well as their non-conventional character. A. Rubin (having in mind the declarations referred to by the pcij) called Egypt’s declaration the only unilateral declaration clearly analogous to the acts referred to in the Nuclear Tests case and predating them.100 Also K. Skubiszewski noted that neither the material link with a treaty, nor the fact of being called an ‘international instrument’ could deprive that act of its unilateral character.101 E. Suy concedes that the 1957 declaration actually created international obligations, but that the part invoking the 1888 Convention was a recognition or confirmation of obligations already binding the author-state. In consequence, according to Suy, in that part of the declaration only an apparent obligation is in place.102 His assessment however could not affect the provisions which did not refer to the Convention. One should stress that Egypt complied with a number of formalities in order to express its will of making a binding act. First of all it made sure the act was published in the United Nations Treaty Series, although at the same time nontreaty character of the declaration was expressly emphasized. This is why the arguments stressing the connection of the declaration with a treaty have a fundamental weakness. As a matter of fact they are true – there is a connection. But as regards the hinted qualification suggesting that a unilateral declaration referring to treaties is of a treaty nature, it is completely unacceptable. What is unacceptable to an even greater extent would be a proposition that a unilateral declaration is binding only if it refers to a treaty. A state may be a party to a treaty, and a state may (as is known nowadays) make a unilateral declaration. The latter can be very detailed or can refer to some other instruments, including treaties. This latter element does not give the author-state the character of a party to a treaty and does not change a unilateral declaration into a new treaty. While a declaration referring to treaties can be binding, it is almost impossible to suggest a rule which would make its binding nature dependent on the very reference to a treaty. 10.4.5 The Importance of the Judgments on Nuclear Tests No judgment of the icj is more associated with unilateral acts than judgment (actually twin judgments) in two cases: Australia v. France and New Zealand 100 A. Rubin, op. cit., p. 3. 101 K. Skubiszewski, op. cit., p. 225. 102 E. Suy, op. cit., pp. 140–141.

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v. France. They were decided on 20 December, 1974. They are usually referred to as judgment in the Nuclear Tests cases.103 It is difficult to imagine any text on unilateral acts which would not refer to this judgment.104 In fact it gave the icj the opportunity to refer to the entire spectrum of aspects connected with unilateral acts – starting with the competence of organs, through their form, the basis of their binding force as well as the rules of their interpretation. These conclusions will be discussed in separate subchapters devoted to these various legal aspects connected with unilateral acts – especially with promises. In this place a few words on the more general context giving rise to these conclusions are appropriate. On 9 May 1973 Australia instituted ‘proceedings against France in respect of a dispute concerning the holding of atmospheric tests of nuclear weapons by the French Government in the Pacific Ocean.’ She asked the Court to ‘adjudge and declare that (…) the carrying out of further atmospheric nuclear weapon tests in the South Pacific Ocean is not consistent with applicable rules of international law’ and to order that the French Republic shall not carry out any such further tests.105 Only the first of these demands is of interest here.106 France put into doubt the competence of the icj to decide the case. It participated neither in the written phase of the proceedings, nor in the oral one.107 This is why it is impossible to cite even the slightest hint of the French argument on the essence of several declarations made by various French organs in the question of nuclear tests, and their influence on the judgments of the icj. The Court did not decide the case(s) on the merits. It ruled only (by a vote of 9 to 6) that it ‘finds that the claim of Australia no longer has any object (est désormais sans objet) and that the Court is therefore not called upon to give a decision thereon (il n’y a dès lors pas lieu à statuer).’108

103 Nuclear Tests (Australia v. France), Judgment of 20 December 1974, i.c.j. Reports 1974, p. 253. Hereafter cited as the Nuclear Tests case. 104 Or to only one of them, as they are almost identical. 105 Nuclear Tests case, at p. 256. 106 On 22 June 1973 acting on the basis of art. 41 the the Statute of the icj, the Court issued an order stating, inter alia, that ‘the French Government should avoid nuclear tests causing the deposit of radio-active fall-out on Australian territory.’ Nuclear Tests (Australia v. France), Interim Protection Order of 22 June 1973, i.c.j. Reports 1973, p. 106. This Order ceased to be operative upon the delivery of the judgment, and the provisional measures lapsed at the same time; vide: Nuclear Tests case, p. 272, par. 61. 107 With the exception of a letter of 16 May 1973 in which France limited herself to invoking the complete lack of the jurisdiction of the Court. See: Nuclear Tests case, pp. 256–257. 108 Nuclear Tests case, p. 272.

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This decision was motivated by the conclusion of the Court that there was no longer any dispute between the parties.109 The icj noted that: While judicial settlement may provide a path to international harmony in circumstances of conflict, it is no less true that the needless continuance of litigation is an obstacle to such harmony.110 The Court took the view that: Australia has recognized the possibility of the dispute being resolved by a unilateral declaration (…) on the part of France.111 According to the Court, France had made such a declaration (in fact it took the form of several declarations by several French organs). The Court noted the fact that Australia was not satisfied with these declarations, but reserved for itself the autonomous evaluation thereof.112 In effect the icj ruled that: France has undertaken the obligation to hold no further nuclear tests in the atmosphere (de ne plus procéder à des essais nucléaires) in the South Pacific.113 It is worth focusing attention on the last element, that is the content of the obligation of France, and comparing it with the content of the Australian demand. What the icj was to declare as inconsistent with international law was the carrying out of further atmospheric nuclear weapons tests in the South Pacific Ocean. In French this read ‘la poursuite des essais atmosphériques d’armes nucléaires’.114 It is more than doubtful whether the object of the claim and the object of France’s unilateral obligations actually coincided. A more detailed analysis of these French declarations will be made in the next chapter. Here I concentrate on the icj’s views on the essence and legal force of unilateral declarations (in particular promises). In the Nuclear Tests case these views were quite unequivocally expressed. The icj ruled: 109 110 111 112 113 114

Nuclear Tests case, p. 271, par. 57. Nuclear Tests case, p. 271, par. 58. Nuclear Tests case, p. 268, par. 48. Nuclear Tests case, pp. 268–269, par. 48. Nuclear Tests case, p. 270, par. 52. Nuclear Tests case, p. 256.

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It is well recognized that declarations made by way of unilateral acts, concerning legal or factual situations, may have the effect of creating legal obligations. Declarations of this kind may be, and often are, very specific. When it is the intention of the State making the declaration that it should become bound according to its terms, that intention confers on the declaration the character of a legal undertaking, the State being thenceforth legally required to follow a course of conduct consistent with the declaration. An undertaking of this kind, if given publicly, and with an intent to be bound, even though not made within the context of international negotiations, is binding. In these circumstances, nothing in the nature of a quid pro quo nor any subsequent acceptance of the declaration, nor even any reply or reaction from other States, is required for the declaration to take effect, since such a requirement would be inconsistent with the strictly unilateral nature of the juridical act (l’acte juridique) by which the pronouncement by the state was made.115 10.4.6 The Evaluation of the Ruling on Nuclear Tests For a very long and comprehensive assessment of the judgment reference may be made to a monograph by Eckart.116 Still a few remarks must be made here, however. A very critical evaluation of the Nuclear Tests judgments was presented by A. Rubin. He rightly criticizes the icj to have paid no attention to the fact that: (…) in the only recent precedent, the Egyptian declaration of 1957, France had publicly taken the position that a unilateral declaration was not binding on the declarant and that it could be revoked by the declarant. There is no evidence that this position, which might even be considered a unilateral declaration by France taking a firm position on a matter of law and with an intent to be bound, was ever modified by France.117 Rubin considered this is all the more true because Egypt took care to formalize its act to a much greater extent.118 He also points to the wording of the statements in question, observing that: ‘France’s choice of means to deliver its statements does not evidence the intent to be bound. The only statement 115 Nuclear Tests case, p. 267, par. 43. 116 Ch. Eckart, op. cit., pp. 123–137. 117 A. Rubin, op. cit., p. 26. 118 Ibidem.

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made in diplomatic correspondence was the carefully qualified statement (number two in the listing above) to New Zealand which quoted a previous policy statement that indicated a present, but not a future, intent (number one) and added a qualification (“in the normal course of events”).’119 Fiedler also emphasizes the general language of the declarations in question.120 It is difficult to argue with the critical or very critical assessment of the motives of the icj. Rubin rightly points to the fact that the icj failed to decide a real dispute before it and preferred to rely on a doubtful principle.121 S. Carbone also writes that criticism may be addressed to the judgment for two reasons, as follows: This applies, firstly, to that part of the judgment in which the effects of a voluntary undertaking are held as equivalent to those of a judicial decision, secondly to that part in which the interpretation given to New Zealand’s application was stretched so as to maintain that the French unilateral assurances fully met the applicant’s request (…).122 On the other hand W. Czapliński and A. Wyrozumska comment on the judgment with visible approval.123 J.P. Jacqué poses the interesting question of who was the beneficiary of the declaration (or declarations) made in the name of France.124 Jacqué criticizes the icj for not having taken into consideration the fact that the declarations were made during the proceedings (though certainly not before the court). According to him, it would be justified to claim that the adversaries of France – that is New Zealand and Australia – were such addressees. One should observe however that the declarations do not contain such a limitation. 10.4.7 The Ruling in the Boundary Dispute between Burkina Faso and Mali – A Step Backwards? The next opportunity for the icj to refer to the topic of unilateral acts of states was offered by a boundary dispute between Burkina Faso and Mali.125 In this 119 120 121 122 123 124 125

A. Rubin, op. cit., p. 27. W. Fielder, op. cit., p. 36. A. Rubin, op. cit., p. 29. S. Carbone, op. cit., p. 166. W. Czapliński, A. Wyrozumska, op. cit., p. 119. J.P. Jacqué, op. cit., p. 342. icj Reports 1986, p. 554 et. seq. Hereinafter cited as Burkina Faso-Mali.

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case Burkina Faso invoked a statement of the head of state of Mali. It was made on 11 April 1975 during an interview with the France-Presse agency. The passage of concern was as follows: Mali extends over 1,240,000 square kilometres, and we cannot justify fighting for a scrap of territory 150 kilometres long. Even if the Organization of African Unity Commission decides objectively that the frontier line passes through Bamako, my Government will comply with the decision.126 The basic question was whether this declaration was binding or not. Even the possible confirmation of the legal force of the declaration would not, however, mean its automatic application as the Commission of the Organization of African Unity which was mentioned in the declaration had not issued any document127 concerning the border between Burkina Faso and Mali.128 In fact, the icj could have ignored the question of the legal force of unilateral acts. To the contrary however, the Court decided to devote a long passage to unilateral acts of states in international law. It could be viewed as a revision of the views it presented in the Nuclear Tests judgments. While stressing the fact that the intention of the author of a declaration is decisive for the legal force of unilateral declarations, the icj ruled as follows: In order to assess the intentions of the author of a unilateral act, account must be taken of all the factual circumstances in which the act occurred. For example, in the Nuclear Tests cases, the Court took the view that since the applicant States were not the only ones concerned about the possible continuance of atmospheric testing by the French Government, that Government’s unilateral declarations had “conveyed to the world at large, including the Applicant, its intention effectively to terminate these tests” (i.c.j. Reports 1974, p. 269, para. 51; p. 474, para. 53). In the particular circumstances of those cases, the French Government could not express an intention to be bound otherwise than by unilateral declarations. It is difficult to see how it could have accepted the terms of a negotiated solution with each of the applicants without thereby jeopardizing its contention that its conduct was lawful. The circumstances of the present case are radically different. Here, 126 Burkina Faso – Mali, p. 571, par. 36. 127 In fact it issued neither a decision binding per se, nor even a mere recommendation. 128 Burkina Faso – Mali, p. 572, par. 38.

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there was nothing to hinder the Parties from manifesting an intention to accept the binding character of the conclusions of the Organization of African Unity Mediation Commission by the normal method: a formal agreement on the basis of reciprocity. Since no agreement of this kind was concluded between the Parties, the Chamber finds that there are no grounds to interpret the declaration made by Mali’s head of State on 11 April 1975 as a unilateral act with legal implications in regard to the present case.129 The issue of interpretation of the individual declaration made by the head of state of Mali is of less importance in this place. What is much more important are the remarks of the icj with a wider application. A few elements from the judgment require comment. The first one is a reference to the Nuclear Tests cases. The case Burkina Faso v. Mali cannot be seen as a denial of the possibility of incurring obligations by means of unilateral acts. Nobody can see in it a return to the Lamu award. Such a return is hardly possible and one cannot realistically expect it. Another aspect of the reference to the 1974 Nuclear Tests judgments is of special importance here as well. It refers to ‘conveying to the world at large, including the Applicant, the intention effectively to terminate the tests.’ Nothing in the judgments in Nuclear Tests cases seemed to indicate that the icj in any way differentiated between declarations to all the world as opposed to declarations addressed to one state only. The other side of the same coin is the remark of the icj that a ‘formal agreement on the basis of reciprocity’ was ‘the normal method’ of regulating bilateral relationships. In consequence, regulation by the means of a unilateral act (or more precisely – by means of a binding declaration or promise) is exceptional. The icj’s unwillingness to qualify the above-presented statement of the head of state of Mali as a source of legal obligations is easily understandable. It is difficult to argue that Burkina Faso acted in good faith when attempting to attribute that character to it. On the contrary, it seemed much like an attempt to ‘search for’ promise-like expressions of other states instead of concluding treaties with them based on mutual concessions and benefits. The presentation of the former as a binding unilateral act of another state was probably intended to make it possible to get a benefit without any quid pro quo. In this sense – somewhat paradoxically – the 1986 judgment could be seen as an attempt to eliminate attempts to gain practical benefits from the judgments in the Nuclear Tests case. In this sense the carefulness of the Court is fully j­ ustified. 129 Burkina Faso – Mali, p. 574, par. 40.

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It is difficult however to say the same about the arguments used. They are manifestly too broad and disproportional to the task of disqualifying a curious statement (if not just a joke) of a statesman. The confirmation that ‘[i]n order to assess the intentions of the author of a unilateral act, account must be taken of all the factual circumstances in which the act occurred’ does not and cannot give rise to any reservations. One cannot avoid, however, the fundamental question whether the icj finds it useful and possible to distinguish situations in which unilateral acts can be made and those in which they cannot be made. The former would apply to situations concerning a larger number of states or in which important reasons speak against the conclusion of a treaty in a given case. In my opinion, such a differentiation cannot be made. Let us ask first of all whether such a serious reason can consist of ‘preserving face’, or in other words the lack of necessity to revise a previous position of the author of an act. If so, then it must be said that such criterion would be hardly acceptable as a legal, objective common denominator of situations allowing for unilateral acts instead of treaties. Such a reason concerns only the author-state and is highly subjective. Secondly, let us imagine that a unilateral declaration takes the form of a recognition. Can one imagine the icj disqualifying it because of the…lack of a treaty? In my opinion, such a situation is hardly imaginable. This puts to the fore the questions whether and why promise should be treated differently. It is possible therefore that the icj was itself frightened with the possible effects of its own judgments in the Nuclear Tests cases. This may explain why the 1986 judgment has the tenor of hesitation and lack of trust toward rather than affirmation of unilateral promises. As was said, the judgments in the Nuclear Tests cases deserved criticism, but not because of their affirmation of the binding force of unilateral promises as such. In this respect it was a continuation of the earlier case-law of the pcij and the icj itself. The judgment in the case Burkina Faso v. Mali is too insignificant to put into doubt this case-law. 10.5

The Doctrinal Views

Rubin writes apodictically that ‘[i]t may be concluded that the state practice prior to the Judgment in the Nuclear Tests cases reveals no consensus supporting a rule asserting an international obligation to be created by a unilateral declaration uttered publicly and with an intent to be bound, in the absence of additional factors such as a negotiating context, an affirmative reaction from

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other states, a tribunal to receive the declaration officially, or a supporting preexisting obligation.’130 He refers several times to possibility to revoke such a declaration.131 Those two elements (though strictly interrelated) are not identical. The very possibility to revoke a promise is not equal to its not being of binding force. Only the latter element is of importance here. Interestingly enough, W. Czapliński and A. Wyrozumska, despite listing promise among unilateral acts, concede that ‘taking into consideration the lack of certainty in international law as regards the consequences and the binding force of unilateral acts, it is easy to explain the tendency to search for contractual relations, synallagmatic obligations. There are attempts to widen the concept of treaty in order to encompass even loose mutual relations between states, instead of founding them on the binding force of unilateral obligations. What’s more, the legal effectiveness of unilateral acts may be taken into consideration only in the event of a lack of treaties between the parties. This flows from the logic of the catalogue in Art. 38 of the Statute of the icj.’132 Also J.P. Jacqué writes (in the context of the dispute over the qualification of the Ihlen declaration) that voices putting into doubt the unilateral character of that declaration ‘reflected the fears of a part of the doctrine, which regarded the binding force of unilateral promise as uncertain. It was better to refer to a treaty promise, the binding force of which did not give rise to any doubts because of the principle pacta sunt servanda’.133 In many cases the attempts to present unilateral declarations as treaties are so awkward and unconvincing that they can themselves serve as the best argument for the binding force of unilateral promises.134 W. Fielder even expressed his hope that the judgments of the icj in the Nuclear Tests cases would put an end to such attempts to present unilateral declarations as tacit treaties.135 To some extent this hope actually materialized and the 1974 judgments ­dissuaded many authors from openly putting into doubt the binding force of 130 131 132 133

A. Rubin, op. cit., p. 7. A. Rubin, op. cit., p. 24. W. Czapliński, A. Wyrozumska, op. cit., p. 118. J.P. Jacqué, Eléments pour la théorie de l’acte juridique en droit international public, Paris, 1972, p. 255. Also G. Venturini observes that unilateral promise was put into doubt and elements of an offer by another party were intensively sought after, G. Venturini, op. cit., p. 400. 134 See the critical assessment of arguments of R. Quadri by J.P. Jacqué, Eléments…, p. 250. They relate first of all to several declarations made by Germany before World War ii. As to the latter, see also: V.D. Degan, op. cit., p. 199. 135 W. Fielder, op. cit., p. 49, footnote 69.

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unilateral promises. All the same, some hesitation or scepticism is visible. For example the famous book by G. Dahm, J. Delbrück and R. Wolfrum emphasizes that there remains a controversy as regards the position of promise among unilateral acts and that for a long time there was no certainty whether one had to do with an independent unilateral act, or maybe with an activity lying on the basis of a treaty and therefore requiring acceptance.136 It is difficult to treat these statements however as an overt denial of the binding force of promise.137 V.D. Degan writes directly that ‘[t]here have always been doubts about the very existence, or at least the legal effects of these kinds of unilateral commitments. These doubts did not entirely disappear even after the issuance by the Hague Court of its 1974 Judgment in the Nuclear Tests cases.’138 All the same the prevailing view consists of a positive answer to the question.139 W. Fielder, having reference to the scepticism of states vis-à-vis unilateral promises, writes that: [T]o the extent to which this scepticism results from general experiences with unilateral promises (Verheissungen) and the lack of respect for them, this scepticism may be easily understood. It does not justify, however, the definitive evaluation of unilateral obligations incurred in practice as such.140 Sometimes the very ambiguity of the term ‘promise’ may be the cause of general embarrassment in this area. The English term ‘promise’ is wider that its equivalents in other languages, including my own. The former is harder to reduce to a type of legal transaction. Different languages reveal scepticism to promises. Common sense suggests that one should exercise caution with respect to the value of promises of politicians. The Polish language contains a proverb, impossible to translate verbatim, to the effect that promises are fairytales and no reasonable man can believe them.141 A special website 136 G. Dahm, Völkerrecht, 2. völlig neu bearbeitete Auflage von: J. Delbrück, R. Wolfrum, Berlin 2002, Band I/3, p. 771 (hereafter cited as G. Dahm, op. cit.). Also E. Suy and N. Angelet write that ‘it is disputed whether a promise without acceptance is valid (gültig). The dominating view is that it is valid’; see: E. Suy, N. Angelet, Rechtsgeschäfte, einseitige; in: I. Seidl-Hohenveldern, Lexikon des Rechts; Völkerrecht, Neuwied, Kriftel, 2001, p. 320. 137 G. Dahm, op. cit., B. I/3, pp. 771–773. 138 V.D. Degan, Unilateral…, p. 188. 139 A. Verdross, B. Simma, Universelles Völkerrecht. Theorie und Praxis, Berlin, 1984, p. 430. 140 W. Fielder, op. cit, p. 49. 141 In fact – the believer is called as stupid.

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devoted to proverbs142 contains about 23 proverbs referring to promises. Although not all of them are as sceptical as the Polish one referred to above, the one of Napoleon i (‘If you wish to be a success in the world, promise everything, deliver nothing.’) and two of Machiavelli (‘A promise given was a necessity in the past: a word broken is a necessity in the present.’; and ‘A prince never lacks legitimate reasons to break his promise.’) express similar scepticism. Equally sceptical is the German proverb ‘Nothing weighs less than a promise.’; as well as Ovid’s ‘Everyone’s a millionaire where promises are concerned.’ At the same time, there is a visible tension between the knowledge of realities and expectations. The latter speak in favour of keeping promises. That is why the prince mentioned by Machiavelli needs some legitimate reasons to break a promise. If it were worth nothing by definition what would be the sense of looking for reasons to break it? I would be ready (as any lawyer) to turn a blind eye and deaf ear to this commonsense aspect of the topic, were this commonsense understanding of promise not present in works on international law. For example B.S. Murty, while identifying different tools of diplomacy, lists threats and bluffs (not of interest here) as well as ‘commitment’ and ‘promise’.143 He understands them in a very specific way. He writes that: ‘A commitment may be stated to be a communication to the other party that the first would not go beyond a certain point in responding to the other party’s demands’.144 Such a commitment clearly gives rise to no obligations of international law. The same is true for his understanding of the term ‘promise’ as well. He writes namely that: ‘Promises affect expectations depending upon what is promised and whether they are credible. A promise is more than a commitment to make a concession; it involves an affirmation that the commitment will be kept, and thereby the reputation for keeping the word is made a matter at stake.’145 It was rather this general meaning of the word ‘promise’ that was used by the pcij in its advisory opinion on access to, or anchorage in the port of Danzig of Polish war vessels. It declared that: ‘The promise to Poland at the time of the peace settlement after the war of 1914–1918 of a free and secure access to the sea is a matter of history of 142 http://en.proverbia.net/citastema.asp?tematica=958&page=1, 2 and 3 consulted on 24 June 2015. All cited proverbs are taken from this source. 143 B.S. Murty, The International Law of Diplomacy. The Diplomatic Instrument and World Public Order, New Haven, Dordrecht, Boston, London, 1989, pp. 94–95. 144 B.S. Murty, op. cit., p. 94. 145 B.S. Murty, op. cit., p. 94.

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which the Court is prepared to take notice, but no materials and no reasons have been submitted to it for assuming that the contents of Section xi of Part 3 of the Treaty of Versailles, as carried into effect by the Convention concluded in pursuance of Article 104 of that Treaty, do not constitute a complete fulfilment of the promise. The Court is not prepared to adopt the view that the text of the Treaty of Versailles can be enlarged by reading into it stipulations which are said to result from the proclaimed intentions of the authors of the Treaty, but for which no provision is made in the text itself.’146 It is difficult not to see that both commitment and promise are inherent elements in the negotiation of any treaty. The former cannot be reduced to the elements of the latter. As will be shown in the next chapter, distinguishing promises as unilateral sources of rights and obligations of international law from merely political (non-binding) declarations is one of the most challenging tasks for the authors dealing with unilateral acts. It would be a mistake to argue that it is only because of the icj that promise is included in the majority of catalogues of unilateral acts presented by the doctrine. As was said, the possibility of incurring obligations by the means of unilateral declarations was underscored already prior to the icj’s judgment in the Nuclear Test cases. Already in relatively early writings one can find references to declarations of one state giving rise to rights or obligations of international law. Various editions of the manual of L. Oppenheim referred to unilateral transactions as various and differently defined in positive international law as declaration of belligerents as to contraband, and declaration of neutrality.147 In fact this was not an exhaustive catalogue. Though it did not refer to promise as such, the elements cited were all sources of obligations of the author-state and for sure were not treaties.148 Among the monographs on unilateral acts, special attention should be paid to the long and very interesting chapter in the book of E. Suy, written more than twelve years before the icj judgment in the Nuclear Test cases. Also J.P. Jacqué, in his monograph of legal transactions of international law, wrote that there were no serious reasons for 146 pcij Publications, Series A/B, No 43, s. 144. 147 L. Oppenheim, International Law. A Treatise. Vol. i – Peace, Third edition edited by R.F. Roxburgh, London, New York, Bombay, Calcutta, Madras, 1920, p. 649; L. Oppenheim, International Law. A Treatise. Vol. i – Peace, Fourth edition edited by A.D. McNair, London, New York, Toronto, 1928, p. 696; L. Oppenheim, International Law. A Treatise. Vol. i – Peace, Eighth edition edited by H. Lauterpacht, London, New York, Toronto, 1955, p. 872. 148 If a state had not declared fuel as contraband, they could not have qualified it so. If a neutral state made a statement on its neutrality, it had to respect it.

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putting into doubt the binding force of unilateral promises.149 Hence it is ­difficult to agree with A. Verdorss and B. Simma when they write that Bosco was the first author speaking in favour of both the unilateral and binding character of promise.150 There can be little wonder that promise is mentioned as a type of unilateral act in the majority of general works on international law.151 However it should be noted that one can find such lists which do not include promise. They can be found in the books of G. Schwarzenberger and E.D. Brown,152 or of R. Bierzanek and J. Symonides.153 This fact however is not equal to an express denial of the binding force of unilateral promise. This is especially the case when a given author does not see the necessity of introducing the notion ‘promise’, but uses a wider notion of ‘unilateral declaration’.154 On the other hand O. Kimminich and S. Hobe distinguish between declaration (Erklärung) on the one hand, and write that promise (Versprechen) is an act partly (teilweise) included into unilateral acts.155 The most interesting conclusions of these two authors refer only to declaration. Other authors however rightly identify promise with acts which are discussed in the Nuclear Tests case.156 Lack of confidence in obligations not included in treaties could be seen as a kind of atavism. It sticks in the minds of statesmen and their legal advisors. As regards the latter a kind of parallel thinking is present. In the sphere of theory they accept the binding force of promises, while at the same time they consider them a very weak guarantee of rights and interests in practice. This assessment may be a result of a mistaken perspective. The assessment whether a given promise made with respect to another state is binding or not is made on the grounds of law. The assessment whether it will be kept relates 149 J.P. Jacqué, Eléments…, p. 256. 150 Bosco, Il fondamento giuridico del valore obbligatorio del diritto internazionele, Rivista di diritto pubblico 1968 p. 662ff.; cited on the basis of: A. Verdross, B. Simma, op. cit., p. 429, footnote 26. 151 W. Czapliński, AWyrozumska, op. cit., p. 113.; W. Góralczyk, op. cit., p. 170; K. Doehring, Völkerrecht. Ein Lehrbuch, Heidelberg, 2004, pp. 143–144; W. Levi, Contemporary International Law. A Concise Introduction, Boulder, San Francisco, Oxford, 1991, p. 200; G. Dahm, op. cit., p. 771 et. seq. 152 G. Schwarzenberger, E.D. Brown, A Manual of International Law, Estate, Milton near Abingdon, Oxon, 1976, p. 140. 153 R. Bierzanek, J. Symonides, Prawo międzynarodowe publiczne, Warszawa, 1994, pp. 100–101. 154 See for example M. Virally, The Sources of International Law, in: M. Sørensen, Manual of Public International Law, London, Melbourne, Toronto, New York, 1968, pp. 155–156. 155 O. Kimminich, S. Hobe, Einführung in das Völkerrecht, Tübingen, Basel, 2000, pp. 196–197. 156 J.M. Arbour, Droit international public, Cowansville (Québec), 1997, p. 128.

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to facts. It is rather an attempt to predict the future. In this respect it could be compared to the assessments made before the Second World War whether the Briand-Kellog Pact would be respected and would prevent the outbreak of war. The pessimistic assessment made, among others, by Marshall Piłsudski in Poland was not based on the lack of qualification of the Pact as a treaty, but on the suspicion that this treaty would be broken in the future. In terms of public opinion breaking a unilateral promise is much easier than breaking a treaty. The claims that a promise has been broken are also more rare. All the same they are present. The best proof of this is the act of indictment from the Nuremberg Tribunal.157 What’s more, an assessment by a state of the effects of its own promises may be more important. Even if a state is not ready to believe in the promises of others, it cannot count on its own unilateral obligations being treated as legal nihilum. The best proof is the care with which states avoid making binding declarations. Had they regarded them as words of no value, they would probably not have much reason to be so careful. As proof of this one can consider the reply given on 18 October 1944 in the House of Commons by the British Undersecretary of State of the Foreign Office. He was asked whether he could give assurance that the inhabitants of Dodecanese will be treated as Greeks and allies, and not as Italians. Undersecretary of State replied that the post-war status of the islands could not be prejudged at that moment.158 The possibility of incurring obligations by means of unilateral declarations (or more generally – by a means of a declaration of one state) is today unquestioned. The ilc Guiding Principle 1 stresses that: Declarations publicly made and manifesting the will to be bound may have the effect of creating legal obligations. When the conditions for this are met, the binding character of such declarations is based on good faith; interested States may then take them into consideration and rely on them; such States are entitled to require that such obligations be respected. Point 2 adds that: Any State possesses capacity to undertake legal obligations through unilateral declarations. 157 Vide: supra. 158 M.M. Whiteman, Digest of International Law, vol. 3, p. 114.

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Point 3 provides that: To determine the legal effects of such declarations, it is necessary to take account of their content, of all the factual circumstances in which they were made, and of the reactions to which they gave rise. Point 4 deals with organs regarded as competent. It was referred to in detail in Chapter 4 and will not be repeated here. The same applies to point 8 dealing with declarations conflicting with norms ius cogens. The other points refer to the form, effects, revocability and attitude of other states to binding declarations. These matters are going to be discussed in the next chapter with respect to promise, and in Part iv with respect to recognition and waiver. In fact the only type of unilateral declarations requiring confirmation of their possible binding force were promises. No doubts were entertained in this regard with respect to such acts as recognition and waiver. That is why the justification of the binding force of promise will have to be supplemented by some remarks contained in the next chapter.

chapter 11

The Nature and Characteristics of Unilateral Promise 11.1

Definition of Promise

W. Góralczyk defines promise as a ‘unilaterally accepted obligation with respect to one or more subjects of international law.’1 W. Czapliński and A.  Wyrozumska write that promise/guarantee is an ‘act, which creates new rights for the benefit of third parties.’2 These definitions are manifestly too broad. For A. Cassese, ‘[p]romise is a unilateral declaration by which a State undertakes to behave in a certain manner.’3 Almost the same definition is presented by E. Suy and N. Angelet.4 V.D. Degan writes that ‘promise is a kind of act by which a State (or other international person), unilaterally assumes on its charge new legal obligations in regard to another State, group of States, or erga omnes.’5 In the fourth report the following definition of promise was suggested: A promise is a unilateral declaration whereby a State undertakes to adopt certain conduct towards another State or States, without subjecting this conduct to any kind of quid pro quo by the beneficiary of the promise.6 J. Charpentier associates promise with the will of a subject of international law to act in a certain way. Interestingly enough, he considers acceptance of compulsory jurisdiction of the icj as a qualified kind of promise.7 1 W. Góralczyk, Prawo międzynarodowe publiczne w zarysie, Warszawa, 1989, p. 170. 2 W. Czapliński, A. Wyrozumska, Prawo międzynarodowe publiczne. Zagadnienia systemowe, Warszawa, 1999, p. 93. 3 A. Cassese, International Law, Oxford 2005, p. 185. 4 E. Suy, N. Angelet, Rechtsgeschäfte, einseitige; in: I. Seidl-Hohenveldern, Lexikon des Rechts; Völkerrecht, Neuwied, Kriftel, 2001, p. 320. 5 V.D. Degan, Unilateral act as a source of particular international law, fyil, 1994, p. 188. 6 4. report , p. 18, par. 79. 7 J. Charpentier, Engagements unilatéraux et des engagements conventionnels: différences et convergences, in: J. Makarczyk (ed.), Theory of International Law at the Threshold of the 21st Century. Essays in honour of Krzysztof Skubiszewski, the Hague, London, Boston, 1996, p. 368.

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004274617_015

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Also W. Levi defines promise as ‘a declaration in which the maker commits itself to another subject to a specific action.’8 This definition seems to reflect the essence of promise and will be accepted in the present analyses. One should only reserve that it would be a mistake to see in the very differences of the wording of the definitions true substantive differences. W. Fielder wonders if the very term Versprechen by definition refers to a binding act. That is why he claims that the doctrine dealing with promise in fact moves within terminological uncertainties.9 This element was referred to in the previous chapter. That is why it must be reserved that if Versprechen is considered as a broader term comprising both binding and non-binding acts, I am going to deal with the former, and not the latter. Hence the term promise will be reserved for binding acts only, unless expressly provided otherwise. This should not be taken to mean that distinguishing between binding or non-binding declarations is easy in practice, nor that such distinguishing does not touch upon important theoretical problems. It is just the opposite as regards both elements. I will come back to that aspect several times in the further discussions. 11.2

Promise and International Agreements

The next question which must be asked is whether promise is unilateral by definition. Is it not so that elements of a treaty could be also labelled as promises? The answer to this question also depends on the terminology chosen. If a given author does not a priori limit the definition of promise to unilateral declarations, it is obvious that promises could be either unilateral or non-­unilateral. In particular they may be parts of a treaty. Thus E. Suy opts for the adoption of a broad definition of the term ‘promise’, covering both unilateral as well as non-unilateral acts.10 It is difficult to dispute such a statement. The word ‘promise’ is too wide to limit its meaning a priori to unilateral acts only. That is why one can say that a promise to abstain from the use of arms against another state may take the form of a provision in a treaty, or a declaration of one state made either at the request of or without the request of another state. 8

9 10

W. Levi, Contemporary International Law. A Concise Introduction, Boulder, San Francisco, Oxford, 1991, p. 200. An identical effect is referred to by other authors as well; e.g. G. Dahm, Völkerrecht, 2. völlig neu bearbeitete Auflage von; J. Delbrück, R. Wolfrum, Berlin 2002, Band I/3, p. 771; J.M. Arbour, Droit international public, Cowansville (Québec), 1997, p. 128. W. Fiedler, Zur Verbindlichkeit einseitiger Versprechen im Völkerrecht, gyil, 1976, p. 45. E. Suy, Les actes juridiques unilatéraux en droit international public, Paris, 1962, p. 111.

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It is a part of a wider phenomenon. This is visible with respect to several types of unilateral acts. So too waiver may result from a unilateral act or a treaty. The same applies to recognition. It would be strange to assume that promise is any different in this respect. That is why I am not ready to assume that promise is by definition a unilateral act. E. Suy writes that some treaties contain promises sensu stricto. As an example he cites the Japanese-Soviet declaration of 19 October, 1956, according to which the ussr obliged itself to support the candidacy of Japan.11 One may wonder if it is justified to distinguish such treaty promises sensu stricto from others. Is it so that a treaty provision ‘we will support your candidacy’ is promise, but a treaty provision ‘we will annul and/or not introduce capital punishment’ is not a promise? In my opinion both are treaty promises. E. Suy rightly underlines that promise included in a treaty does not lose its conventional character.12 This element is one of the most important aspects of the wider topic of the relationship between unilateral acts and treaties. It seems reasonable to look for other aspects of this relationship as well. This will be done after the presentation of several properties of unilateral promises as such. 11.3

Legal Effects of a Promise

The legal effects are in the very centre of study of several legal acts. The most general reference to legal effects of a promise refers to the emergence of a given duty of the author-state and a corresponding right(s) for another state or other states.13 The case-law of international courts refers to more precisely defined effects of different declarations. So for example in the Eastern Greenland case the pcij ruled that as a result of the undertaking involved in the Ihlen declaration of July 22nd, 1919, Norway is under an obligation to refrain from contesting Danish sovereignty over Greenland as a whole, and a fortiori to refrain from occupying a part of Greenland.14 In the Nuclear Tests case the icj defined the legal effects of the obligation as follows: 11 12 13 14

E. Suy, op. cit., p. 112. E. Suy, op. cit., p. 113. So e.g.: J.M. Arbour, op. cit., p. 128. pcij Publications, series A/B, No. 43, p. 73; hereafter cited as the Eastern Greenland case.

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When it is the intention of the State making the declaration that it should become bound according to its terms, that intention confers on the declaration the character of a legal undertaking, the State being thenceforth legally required to follow a course of conduct consistent with the declaration.15 The Court added that: interested States may take cognizance (tenir compte) of unilateral declarations and place confidence in them (tabler sur elles), and are entitled to require that the obligation thus created be respected.16 There can be little wonder that promise is compared to and confronted with other types of acts in search of similarities and differences. For example A. Rubin compares promise and recognition and writes that ‘recognition is normally conceived to bear some relationship to a perceived state of facts and does not involve an expression of intention to which the “recognizing” state can be said to be bound.’17 This statement by Rubin may give rise to serious doubts. One should ask in particular whether it is aimed at denial of the legal force of recognition. If so, nobody would be ready to accept it. The intention of the author was probably different. One can guess that he wished to say that recognition as a rule does not create its object ex nihilo. It will be necessary to speak about possible exceptions when discussing recognition. Point 1 of the Guiding Principles states, inter alia, that: (…) the binding character of such declarations is based on good faith; interested States may then take them into consideration and rely on them; such States are entitled to require that such obligations be respected. W. Levi differentiates ‘promise’ from ‘declaration’. He writes that ‘the former always involves an obligation. When states announce that they are planning to devote 1 percent of their gross national income to foreign aid, this is a declaration with no particular obligation toward any particular state or group of states.

15 16 17

i.c.j. Reports 1974, p. 267, par. 43, hereafter cited as the Nuclear Tests case. The Nuclear Tests case, p. 268, par. 46. A. Rubin, The International Legal Effects of Unilateral Declarations, ajil, 1/1977, p. 5.

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When a state declares that it will donate 1 million dollars to another specified state in foreign aid, it is making a legally binding promise.’18 Such a description can be adopted only if one assumes that ‘declaration’ ex definitione is non-binding. Such an assumption will not be adopted in the present work. This seems all the more reasonable as W. Levi himself defines promise as a kind of declaration.19 11.4

Preconditions of a Unilateral Promise in the Meaning of Public International Law

11.4.1 Preliminary Remarks E. Suy identifies two prerequisites of the binding force of international promise. They are: the will to make a promise (la volonté de promettre) and its public character (publicité).20 Also M. Virally writes that ‘if a unilateral declaration was made in circumstances indicating that the author wanted to be bound by it and allowing to take into consideration an offer made (sic!), such declaration may lead directly to the emergence of a legal obligation.’21 Point 1 of the Guiding Principles states, inter alia, that: Declarations publicly made and manifesting the will to be bound may have the effect of creating legal obligations. When the conditions for this are met, the binding character of such declarations is based on good faith (…) Those two elements were referred to by the icj in the Nuclear Tests cases. In a fragment already cited in this work in extenso, the icj ruled as follows: An undertaking of this kind, if given publicly, and with an intent to be bound, even though not made within the context of international negotiations, is binding. In these circumstances, nothing in the nature of a quid pro quo nor any subsequent acceptance of the declaration, nor even 18 19 20 21

W. Levi, op. cit., p. 200. W. Levi, op. cit., p. 200. E. Suy, op. cit., p. 149. M. Virally, op. cit., pp. 155–156. The very use of the term ‘offer’ does not have to prejudge the consensual character of the legal relationship created. One should count with the fact of gradual formation of the terminology used in this area. Nowadays a given author would opt for other words, reserving term ‘offer’ for acts looking for acceptance in the technical meaning of the term.

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any reply or reaction from other States, is required for the declaration to take effect, since such a requirement would be inconsistent with the strictly unilateral nature of the juridical act (l’acte juridique) by which the pronouncement by the state was made.22 One can treat this as the most authoritative statement concerning unilateral promises, the conditions of their existence in the sphere of law, and elements which are not such preconditions though had been believed or suspected to be so. The circumstances of the Nuclear Tests cases unfortunately make it impossible to trace the influence (if any) of the doctrinal views on the judgment of the Court. It would have been especially interesting to check this with respect to the monograph of E. Suy – published twelve years before the judgment, and the monograph of transactions of international law by J.P. Jacqué published a little later. As was said, France had not presented its views during the proceedings. In any case, the fact of the icj not expressing itself on the legality of the French nuclear tests (a fact as such beneficial to France) did not result from any arguments made by France concerning the character of its declarations. Unfortunately, the icj has the custom of not citing doctrinal publications, even if it owes them inspiration for its judgments. Also other authors identify the two above-mentioned conditions of the existence of a promise.23 One can be hardly astonished by this if one takes into consideration the unequivocal statement of the icj. It should be stressed that the doctrine was to first to refer to them. The basic difference and challenge has to do with the mutual relationship between the words ‘will’ (mentioned by both E. Suy and the Guiding Principles) and ‘intention’ (used by the icj). Both elements – the will (or intention) as well as the public character of a promise – must be discussed. I start here with the latter, according to the principle of beginning with the most concrete and precise elements and moving to those that are more theoretical. 11.4.2 Public Character of a Promise, form of a Promise The reference to the public character of promise has to do with the form of promises, hence both problems should be addressed in this place. In the judgment in the Nuclear Tests case the icj ruled as follows: With regard to the question of form, it should be observed that this is not a domain in which international law imposes any special or strict requirements. Whether a statement is made orally or in writing makes no 22 23

The Nuclear Tests case, p. 267, par. 43. M.N. Shaw, International Law, Cambridge 2008, p. 104.

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essential difference, for such statements made in particular circumstances may create commitments in international law, which does not require that they should be couched in written form.24 Point 5 of the Guiding Principles states that: Unilateral declarations may be formulated orally or in writing. Point 6 thereof adds that: Unilateral declarations may be addressed to the international community as a whole, to one or several States or to other entities. It is worth noting that already in 1926 E. von Waldkirch, writing generally on unilateral acts, stated that ‘they need receiving (empfangsbedürftig sind) in this sense that the addressee-subject must know their content.’25 E. Suy puts it more precisely, that promise does not need acceptance but it is required that its content arrives to the beneficiary (and in this sense it is ‘soumis à réception’).26 In fact references to the public character of promise may be misleading. The topic was actively debated during the works of the ilc. When discussing the third report, Mr. Herdocia Sacasa welcomed the replacing the term ‘publicly’ with the term ‘known to’.27 Just the opposite view was presented by Mr. Gaja, who feared that: ‘That wording was misleading because it could give the impression that the knowledge might have been acquired, for example, through espionage or the activities of intelligence services.’28 What is really at stake is the necessity of making the beneficiary conscious of the fact that a promise is being made.29 M. Shaw rightly refers to this element as ‘element of publicity or notoriety.’30 A new obligation takes effect either if the promise is made in public or if it is sent to the beneficiary. The majority of the doctrine accepts the thesis on the free choice of form of promises. W. Góralczyk writes that ‘[t]here are no strict requirements as regards the form of promise. As it flows from the case-law of the icj, it may be even oral.’31 24 25 26 27 28 29 30 31

The Nuclear Tests case, p. 267, par. 45. E. von Waldkirch, Das Völkerrecht in seinen Grundzügen dargestellt, Basel, 1926, p. 215. E. Suy, op. cit., p. 150. Yb.ILC, 2000, vol. i, 2628. meeting, p. 125, para. 17. Yb.ILC, 2000, vol. i, 2628. meeting, p. 126, para. 21. E. Suy, op. cit., p. 150. M.N. Shaw, op. cit., p. 122. W. Góralczyk, op. cit., p. 170.

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Some doubts and hesitation are however visible in this area. The monograph of E. Suy disputes the view presented by de Nova that a promise had to be sent officially.32 Even after the judgment in the Nuclear Tests cases W. Fiedler expressed his doubt as to sufficiency of oral declarations for creating obligations.33 This view (unequivocally contrary to the Nuclear Tests judgments) can be hardly accepted. Contemporary modes of dissemination of information paradoxically enough make access to (at least some) oral declarations easier than to several written ones. If the former is made in public, it can be recorded and transmitted and any interested person may become acquainted with it. On the contrary, diplomatic notes are usually accessible only for a small group of people. Having said that, it’s necessary to acknowledge that such a note can usually be made public and an oral declaration may be made in a top secret face-to-face meeting between two statesmen. W. Fiedler seems to see a problem also in cases in which declarations are transmitted in ways other than through diplomatic channels.34 In this aspect he is going against not only the entire case-law of the icj, but even earlier doctrinal views. E. Suy indicates that a promise may take different forms – including a public debate, a statement in parliament or using the forum of an international organization.35 As is known, what was at stake in the Eastern Greenland case was a non-public declaration of a Minister for Foreign Affairs made (after a few days’ delay) in response to a question of a diplomatic representative of another state. In the Nuclear Tests cases the following acts were at stake: – the communiqué issued by the Office of the President of the French Republic on 8 June 1974;36 – a Note of 11 June 1974 from the French Embassy in Canberra to the Australian Department of Foreign Affairs (with a copy of the communiqué);37 – a Note of the French Embassy in Wellington to the New Zealand Ministry of Foreign Affairs of 10 June 1974;38 – a statement made by the President of the Republic on 25 July at a press conference;39 32 33 34 35 36 37 38 39

E. Suy, op. cit., p. 150. W. Fiedler, op. cit., p. 65. W. Fiedler, op. cit., p. 66. E. Suy, op. cit., p. 150. The Nuclear Tests case, p. 265, par. 34. Par. 34. Par. 35. The Nuclear Tests case, p. 266, par. 37.

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– a statement of the Minister of Defence in the course of an interview on French television on 16 August 1974;40 – the address of the French Minister for Foreign Affairs to the United Nations General Assembly on 25 September 1974;41 and – a statement of the Minister of Defence at a press conference on 11 October 1974.42 Their more detailed analysis will be made in the subchapter on interpretation of promises, and it is impossible to discuss here whether any of the above concrete statements of French officials would have been sufficient to bring about a new obligation. The only question which can and really has to be answered is whether any of the above forms would be by definition not proper for the creation of a legal obligation. An unequivocally negative answer to this question is dictated not only by the case-law of the icj, but first of all by the principle of freedom of choice of form in international law. In practice the only form leaving space for any doubts are statements at press conferences. To some extent this also relates to statements made before or within domestic organs, especially parliaments.43 Nowadays however a positive stance toward such a possibility is usually taken.44 In this context it must be asked if silence may be treated as a declaration of will. One can easily imagine a superpower ‘inviting’ its weaker neighbour to make a declaration and ‘making it easier for them’ by adding that silence will be qualified as a consent or a declaration of a given content. In my opinion, there can be no doubt that such an ‘invitation’ has no legal effect with respect to another state. In consequence a silence could mean a consent to making a promise only if a given state had accepted it expressis verbis beforehand, or when it results from a special norm of international law. In such situations however a coexistence of acts of at least two states must take place, hence there is no possibility of effecting a true unilateral promise by silence only. 40 41 42 43

44

The Nuclear Tests case, p. 266, par. 38. The Nuclear Tests case, p. 266, par. 39. The Nuclear Tests case, p. 266, par. 40. This is how A. Ch. Kiss presented the matter, see: A. Ch. Kiss, op. cit., p. 319. One can however wonder if the defect present in the examples given by him is the lack of appropriate form or just the preliminary character of declarations made, having rather the character of a proposal (made by Australia in 1950 with respect to a pact of states having interests in Asia) (see: p. 319) or just information on plans (with respect to the Marshall plan), (p. 320). E. Suy notes that the guarantee of inviolability of Austria was made by Germany on 21 May 1935 by the means of a declaration of the Chancellor in the Reichstag. See: E. Suy, op. cit., p. 132.

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In fact this is the only narrowing element of the criterion of ‘publicity’ of a promise. As a promise may take all forms, it is difficult to find any other narrowing factors. Of course a ‘promise’ which exists only in the minds of the responsible organs of a state, in a draft or in a safe of the Ministry of the state contemplating it is not public. In fact neither is it a promise nor a declaration. That is why if one would wish to search for any narrowing element, it must be connected with the intention (will) to be bound. 11.4.3 The Intention (will) to be Bound The icj ruled in the Nuclear Tests cases that: When it is the intention of the State making the declaration that it should become bound according to its terms, that intention confers on the declaration the character of a legal undertaking, the State being thenceforth legally required to follow a course of conduct consistent with the declaration.45 The basic requirement of the presence of intention was also emphasized in the judgment in Burkina Faso v. Mali case. In this case the icj repeated the abovecited passage from the Nuclear Tests cases, supplementing it with the short word ‘only’. The respective fragment of the judgment rules that: Such declarations “concerning legal or factual situations” may indeed “have the effect of creating legal obligations” for the State on whose behalf they are made, as the Court observed in the Nuclear Tests cases (i.c.j. Reports 1974, pp. 267, 472). But the Court also made clear in those cases that it is only “when it is the intention of the State making the declaration that it should become bound according to its terms” that “that intention confers on the declaration the character of a legal undertaking” (ibid.). Thus it all depends on the intention of the State in question, and the Court emphasized that it is for the Court to “form its own view of the meaning and scope intended by the author of a unilateral declaration which may create a legal obligation” (ibid., pp. 269, 474).46 One small word can obviously make a huge difference. In fact the word ‘only’ shifts the accent to a considerable degree. One cannot avoid the question whether it is possible that out of two identically worded declarations only 45 46

The Nuclear Tests case, p. 267, par. 43. icj Reports 1986, p. 573, par. 39, hereafter cited as Burkina Faso v. Mali case.

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one will be qualified as binding, it being deemed that only one reflects an intention to be bound. Lack of intention or doubt as to intention could mean than another identical declaration does not give rise to any legal duty. The judgments in Nuclear Tests cases did not provide an unequivocal answer to this question. In the light of the judgment in the Burkina Faso v. Mali case one can accept the possibility of such differentiation of the effects of two identically worded acts. This is hardly satisfactory. It is difficult to escape the feeling that the best proof of an intention to incur a new obligation is the wording of a respective declaration. If it speaks in a categorical way about the future or even the present activities, or lack of an activity, it seems to be sufficient to find a new obligation. The Burkina Faso v. Mali judgment seems to shift this accent to include outside circumstances, beyond the very wording of a declaration. The icj devoted a longer fragment to the topic of intention in its judgment in the Burkina Faso v. Mali case. It reads as follows: In order to assess the intentions of the author of a unilateral act, account must be taken of all the factual circumstances in which the act occurred. For example, in the Nuclear Tests cases, the Court took the view that since the applicant States were not the only ones concerned at the possible continuance of atmospheric testing by the French Government, that Government’s unilateral declarations had “conveyed to the world at large, including the Applicant, its intention effectively to terminate these tests” (i.c.j. Reports 1974, p. 269, para. 51; p. 474, para. 53). In the particular circumstances of those cases, the French Government could not express an intention to be bound otherwise than by unilateral declarations. It is difficult to see how it could have accepted the terms of a negotiated solution with each of the applicants without thereby jeopardizing its contention that its conduct was lawful. The circumstances of the present case are radically different. Here, there was nothing to hinder the Parties from manifesting an intention to accept the binding character of the conclusions of the Organization of African Unity Mediation Commission by the normal method: a formal agreement on the basis of reciprocity. Since no agreement of this kind was concluded between the Parties, the Chamber finds that there are no grounds to interpret the declaration made by Mali’s head of State on 11 April 1975 as a unilateral act with legal implications in regard to the present case.47 47

Burkina Faso v. Mali case, p. 574, par. 40.

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In the light of this fragment one can have doubts whether the icj still insists on the presence of only two conditions of the existence of a promise. A third condition is visible. This would be the lack of possibility of expressing the will in another (‘more normal’) way. This criterion in practice would exclude the possibility of making promises in bilateral relations. In other words, it would make it possible for the author-state to neglect its categorically and unequivocally formulated declarations concerning its future behaviour. Apparently the Court took into account the unwelcome effects of the Nuclear Tests judgments. They could have encouraged states to see promises in several declarations made by other states. It would be a paradox however if an institution protecting good faith were allowed to evolve into its contradiction. It is difficult to see conformity with good faith of a situation in which a given state ‘hunts’ for declarations of other states, giving nothing in exchange. One can guess that the icj in the Burkina Faso v. Mali case wanted to prevent or stop such an attitude or practice. On the other hand, such a third criterion would also be incompatible with the principle of good faith in some cases. Even if the icj wanted to introduce such a third precondition of the binding force of a promise, one can say that such a proposal has not been accepted so far. This element must be looked at from the theoretical perspective. The first aspect to be tackled is the choice of the basic term. The case-law of the icj refers to ‘intention’. This term is used by the contemporary legal literature48 and the special rapporteur.49 On the other hand the term used in the older literature referred to the ‘will’ of a state. This is also the term chosen in the Guiding Principles. One can wonder if it just a question of word choice or a fundamental and objective difference. The notion of the will of the author-state would unify unilateral acts with other sources of obligations of international law. There is no doubt that intention is a kind of will. In this sense every intention is an example of will, but the reverse is not true. Clearly not every kind of will can be seen as an intention. The fears as to the use of the term ‘intention’ were visible at the time of works of the ilc. When discussing the third report, Mr. Pambou-Tchivounda said: (…) “the intention of producing legal effects” (…) could be described as tendentious. Intention was a tendency, a viewpoint. To draw up a definition on the basis of a viewpoint did not seem adequate because the rule thus obtained would be merely indicative rather than peremptory.50 48 49 50

M.N. Shaw, op. cit., p. 122. See e.g.: 2. report , add. 1, p. 11. Yb.ILC, 2000, vol. i, 2628. meeting, p. 127, para. 28.

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Mr. Goco also stated that he ‘did not see how intention could be determined until the stage of arbitration had been reached.’51 Mr. Rao pointed out that: the legal effect produced by an act did not necessarily, or always, indicate the original intention of the State formulating the act. A State was a political entity whose intentions could be equivocal or unequivocal, depending on the context. In his view, the criterion of the effect actually produced had always to be assessed in order to determine the nature of the intention. A contextual examination of policy considerations played a very important role in assessing the intention underlying an act. An inductive approach taking account of policy considerations was called for.52 This lack of trust in an intention is part of a wider phenomenon. The best proof is a fragment of the judgment of the icj in the case Qatar v. Bahrain concerning maritime delimitation. Bahrain maintained that the signatories of the Minutes had not had intention to make an agreement. The answer of the icj was as follows: The Court does not find it necessary to consider what might have been the intentions of the Foreign Minister of Bahrain or, for that matter, those of the Foreign Minister of Qatar. The two Ministers signed a text recording commitments accepted by their Governments, some of which were to be given immediate application. Having signed such a text, the Foreign Minister of Bahrain is not in a position subsequently to say that he intended to subscribe only to a “statement recording a political understanding”, and not to an international agreement.53 On the other hand, the attitude of the icj toward intention is completely different as regards, for example, declarations on the acceptance of compulsory jurisdiction of the icj. One can see this in several judgments. Intention was referred to in the Anglo-Iranian Oil Company case. The Court was asked by the uk to base its jurisdiction on the literal interpretation of the Iranian declaration. The Court responded that: (…) the Court cannot base itself on a purely grammatical interpretation of the text. It must seek the interpretation which is in harmony with a 51 52 53

Yb.ILC, 2000, vol. i, 2628. meeting, p. 128, para. 36. Yb.ILC, 2000, vol. i, 2629. meeting, p. 138, para. 79. Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Jurisdic­ tion und Admissibility, Judgment, i.c.j. Report. 1994, pp. 121–122.

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natural and reasonable way of reading the text, having due regard to the intention of the Government of Iran at the time when it accepted the compulsory jurisdiction of the Court.54 The Court decided that the restrictive formulations of the Iranian declaration were decisive for the establishment of its intention at the moment of its acceptance of the jurisdiction of the icj. In consequence it ruled as follows: It is reasonable to assume, therefore, that when the Government of Iran was about to accept the compulsory jurisdiction of the Court, it desired to exclude from that jurisdiction all disputes which might relate to the application of the capitulatory treaties, and the Declaration was drafted on the basis of this desire.55 In the Fisheries Jurisdiction case (Spain v. Canada) the icj ruled that The contra proferentem rule may have a role to play in the interpretation of contractual provisions. However, it follows from the foregoing analysis that the rule has no role to play in this case in interpreting the reservation contained in the unilateral declaration made by Canada under Article 36, paragraph 2, of the Statute.56 This element was also present in the Aegean Sea Continental Shelf case. The icj summed up the arguments of Greece on that question with the words that: it [Greece – P. S.] invokes the jurisprudence of this Court and the Permanent Court concerning the interpretation of unilateral declarations of acceptance of the Court’s jurisdiction (…). According to this jurisprudence it is indeed clear that in interpreting reservation (b) regard must be paid to the intention of the Greek Government at the time when it deposited its instrument of accession to the General Act; and it was with that jurisprudence in mind that the Court asked the Greek Government to furnish it with any available evidence of explanations of the instrument of accession given at that time.57 54 55 56 57

P. 106. i.c.j. Reports, 1952, p. 107. Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, i.c.j. Reports 1998, pp. 454–455, par. 51. Aegean Sea Continental Shelf, Judgment, i.c.j. Reports 1978, p. 29, par. 69.

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The special rapporteur, when trying to define ‘intention’, referred to a fragment of the Dictionary of international terminology by J. Basdevant to conclude that: The intention to make an engagement must be clear and unequivocal, and must also be formulated, as we shall see, in the proper manner. Intention is a term “dont il est fait usage à propos de l’interprétation des actes juridiques et qui désigne ce que l’auteur ou les auteurs d’un acte ont eu réellement en vue de convenir, de faire, d’obtenir ou d’éviter, que cela soit révélé par l’acte lui-même ou par d’autres éléments” (which is used in connection with the interpretation of legal acts and which designates what the author or authors of an act really intended to agree on, do, obtain or avoid, whether this is shown by the act itself or by other factors.).58 As is visible there is no possibility to detach the term ‘intention’ from the term ‘will’ or either or both of them from the interpretation of acts. It was mainly in this context that the problem of will was discussed. The debate in the ilc on this matter culminated in 2001 when the fourth report of the special rapporteur was under discussion. The main points of reference were two terms: ‘declared will’ and ‘true will’. Mr Momtaz expressed himself in favour of true will, confessing that the majority of opinions took the other side.59 The use of ‘declared will’ was defended by Mr Elaraby.60 There was also a feeling that the establishment of true will may be very difficult. Hence Mr Kamto asked ‘how a distinction was to be drawn between a State’s declared will and its true will if access to the preparatory work was so difficult. It was normally through the preparatory work that a State’s intentions were determined.’61 Access to travaux préparatoires was a problem for other members as well. Mr Pellet noted that: In the case of treaties it was difficult to judge the exact role of preparatory work in the interpretation and the impossibility of access to some such work often meant that in practice it had to be disregarded. That was even more true with regard to unilateral acts, not only because the preparatory 58 59 60 61

2. report , add. 1, p. 11, par. 125. It makes reference to: Dictionnaire de la terminologie internationale de Jules Badesvant (Paris, Recueil Sirey, 1960), p. 341. Yb.ILC, 2001, vol. i, 2695. meeting, p. 188, para. 23. Yb.ILC, 2001, vol. i, 2695. meeting, p. 189, para. 27. Yb.ILC, 2001, vol. i, 2695. meeting, p. 188, para. 24.

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work did not always exist, or was not accessible, but also and chiefly because when it was accessible it was unequally accessible. In the case of treaties all the States which took part in their negotiation or adoption had an equal opportunity to have recourse to the preparatory work, but that was not the case with the preparatory work of a unilateral act, which only the author and not the addressee could in general know about. If one insisted on the role of preparatory work, one was introducing an inequality in the event of divergent interpretation between author and addressee.62 Also Mr Gaja devoted a long passage to this matter. The ilc Yearbook summed up his statement as follows: In the Fisheries Jurisdiction case, icj had held that “due regard” should be given to intention for the purposes of interpretation of a unilateral act, but that was not the same as saying that a unilateral act should be interpreted in the light of intention, as the Special Rapporteur proposed to do in article (a), paragraph 1. The draft article was somewhat contradictory in that it posed intention as a primary criterion yet placed among the supplementary means of interpretation the main ways in which intention could be ascertained, namely, preparatory work and the circumstances at the time of the act’s formulation. He would hesitate to give paramount importance to intention and agreed with the Court that, while due regard should be given to it, unilateral acts did not have to be interpreted in the light of intention. The intention of an author was difficult to deduce from objective elements. In the event of a dispute, a State was likely to give selective evidence of what its intention had been. States other than the author of the unilateral act were entitled to rely on the act in many situations, for instance in order to carry out a certain action for which consent was required. It was therefore necessary to reconcile the importance to be given to intention with the need to protect other States.63 All the same an error of perspective may equally be attributed to the alternative: declared will and access to the travaux préparatoires. As Mr Simma stated: Comparison of the true will of the State with its declared will was far more important for unilateral acts than for international treaties, and the 62 63

Yb.ILC, 2001, vol. i, 2695. meeting, pp. 186–187, para. 6. Yb.ILC, 2001, vol. i, 2695. meeting, p. 187, para. 14.

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preparatory work alone would not suffice for that purpose. The whole context must be taken into account; for instance, what degree of pressure had been exercised on a State to induce it to make a unilateral statement or promise? The circumstances of the formulation of the act was a much broader notion than the preparatory work and that was really what had to be taken into account.64 Both the will of a state, as its intention, can be established on the basis of external elements and not sensu stricto psychological ones. One can also find some expressions of fear with respect to the decisive role of the will (or intention) of a state. For example J. Leutert confronts the will (which he associates with theories of voluntarism) on one hand and the protection of trust (or protection of legitimate expectations) on the other.65 He himself declares against referring to will as the main element. However, if one does not refer to the will of the author-state, how can one distinguish between expressions of wishful thinking and benevolence on one hand and declarations giving rise to legal obligations on the other. Some reservations concerning the will are perhaps an expression of a wider paradigm of thinking about the law. Notabene the attitude of the doctrine to the will to some extent addresses those fears and distrust. What is underlined is that the will is to concern the very incurrence of an obligation. What is not important from the perspective of international law is the actual will to respect the promise.66 However, even if that element is taken into consideration some doubts remain. It is obvious at the same time that the phenomenon of will cannot be reduced to promise, or even unilateral acts. It is one of the fundamental phenomena present in the law as such, and international law in particular. The case-law of the icj gives us some idea of how to establish intention. In the Fisheries Jurisdiction (Spain v. Canada) case the icj stated as follows: The intention of a reserving State may be deduced not only from the text of the relevant clause, but also from the context in which the clause is to be read, and an examination of evidence regarding the circumstances of its preparation and the purposes intended to be served.67 64 Yb.ILC, 2001, vol. i, 2695. meeting, p. 189, para. 26. 65 J. Leutert, Einseitige Erklärungen im Völkerrecht. Ein Beitrag zur Lehre vom Vertrauensschutz, Diessenhofen, 1979, p. 28. 66 E. Suy, op. cit., p. 149. 67 Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, i.c.j. Reports 1998, p. 454, par. 49.

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There can be no doubt that this passage could be all the more applicable to obligations which are unilateral sensu stricto. In the cited case the icj took into consideration ministerial declarations, parliamentary debates, legislative proposals and press communiqués. What’s more, as the new declaration differed from the previous one, their comparison was the basic means of determining the intention.68 The most obvious example of the antithesis of an intention to incur a unilateral obligation is a declaration made in the context of negotiating of a treaty. No reasonable person can see an intention to be bound by it outside a treaty framework. The pcij in the Chorzow factory case ruled that: The Court cannot take into account declarations, admissions or proposals which the Parties may have made during direct negotiations between themselves, when such negotiations have not led to a complete agreement.69 It is also difficult to speak about any intention to be bound in a situation in which a state declares a behaviour which is below the standard level required by law. The same is true with respect to any unfriendly demonstrations. For example in the fisheries jurisdiction case (Germany v. Iceland), Iceland declared that it would not nominate an agent in the case.70 This decision was motivated by the alleged lack of jurisdiction of the icj. It would be difficult to conclude that the aim of that declaration was to create a legal obligation to abstain from nominating such an agent. However what is much more difficult is to distinguish between nonbinding political declarations (not connected with negotiations) and legally binding promises connected with benefits for other states (all or some). The special rapporteur in his second report pointed to two functions of the intention of an author-state.71 Firstly it is very important for the interpretation of an act.72 Secondly, it is a condition for the very existence of an act.73 M. Shaw also stresses that ‘intention may be ascertained by way of interpretation of the act, and the principle of good faith plays a crucial role.’74 68 69 70 71 72 73 74

Ibidem, p. 26, par. 49 and 50. pcij Publications, series A – No. 17, p. 51. i.c.j. Reports 1973, p. 53. 2. report , add. 1, p. 11, par. 121et. seq. 2. report , add. 1, p. 11, par. 121. 2. report , add. 1, p. 11, par. 122. M.N. Shaw, op. cit., p. 122.

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It is clear that the private intention of a given official has no importance. In the third report the special rapporteur underlined how difficult it was to establish intention of an author of an act.75 He also invoked one of the statements from the un ga vi Committee, according to which ‘States might perform unilateral acts without realizing their intention.’76 This view was heavily opposed to by the special rapporteur.77 According to him: An act cannot be defined as a unilateral act, within the present meaning, if the State does not understand that it assumes a legal commitment in formulating it. If the State does not understand that it has assumed such a commitment, the act is more like a conduct or attitude which, although it may produce legal effects, cannot be considered a legal act in the strict meaning of the term.78 However, the cited representative from the vi Committee seems to have had in mind another situation. It was rather the one in which a competent representative of a state makes categorically formulated declarations as to the future behaviour of his/her state without taking care about the consequences. This could be compared to a careless signing of a treaty, although the level of conscience as to the consequences of the latter is much larger. Secondly, domestic law systems are almost always framed in such a way as to make it impossible for one state official to bind a state by a treaty. Thirdly, state officials are ­politicians and have a tendency to make declarations. The law has nothing against the picture of foreign relations whereby a president makes a declaration and the Minister of Justice explains two minutes later that it was not a promise in the meaning of the Nuclear Tests cases. Such a picture however is hardly acceptable from the perspective of politics and the dignity of states, and above all from the commonsense perspective. It may be interesting to look at the problem of intention in the wider context of treaties, extending upon the above-presented passage from the case Qatar v. Bahrain. Is there any sense in looking for an ‘intention’ to conclude a treaty? Usually this element is beyond doubt. In this sense the distrust is not against intention as such (as a theoretical justification) but against attempts to invoke a dubious lack of intention despite the fact of clear conclusion of a 75 76 77 78

3. report , p. 7, par. 34. 3. report . , p. 7, par. 34. 3. report , p. 7, paras. 34–35. 3. report , p. 7, par. 35.

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treaty. The will and intention are frequently referred to in a more general theoretical context. K. Widdows writes that: [S]ome of the writers speak of the need for intention by the parties to create rights and/or obligations between them or to annul or modify once already existing. Others add to these the alternative requirement of the agreement with intent to establish relations or to produce effects, in international law (‘between the parties’ must always be implied in these formulations), and yet others speak of intention to create an obligation, or indeed omit, as did the International Law Commission in its final draft, reference to intention altogether.79 Despite the latter stance of the ilc, Widdows himself speaks in favour of a definition of a treaty referring to the term ‘intention’.80 One should, however, add two additional elements. Firstly, in cases of bilateral or multilateral documents which do not provide unequivocally for their conventional (treaty) character, reference to the will or intention to conclude a treaty will be necessary. Secondly, unilateral acts which provide expressis v­ erbis for their binding force do not need such a reference to will or intention. Their legal force is as obvious as is that of a typical treaty. In other words, their intention is obvious. The special rapporteur in his second report underlined that: It should also be noted that lack of clarity does not signify lack of intention, a point that is directly related to the degree of obligation, if that term is acceptable.81 It is worth noting, however, that in the preceding paragraph he seemed to have argued something else, writing that: ‘The intention to make an engagement must be clear and unequivocal.’82 This however is only an apparent contradiction. One cannot confuse the unclear character of an intention with an unclear object of a declaration. It would be difficult to accept the thesis according to which only obligations of result or very precisely formulated obligations of conduct may be objects of unilateral promise. One cannot forget that nobody

79 80 81 82

K. Widdows, What is an agreement in international law, byil, 1979, p. 120. K. Widdows, op. cit., pp. 120–121. 2. report , 1 add. , p. 12, par. 126. 2. report , 1 add. , p. 12, par. 125.

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would question the legal character of other obligations if provided for by an international agreement. It is to a high extent a question of degree. The ilc Guiding Principle 7 states, inter alia, that A unilateral declaration entails obligations for the formulating State only if it is stated in clear and specific terms. On the other hand, the very use of the term ‘intention’ in a given unilateral declaration does not automatically strengthen it. A good example are the declarations on torture and other inhumane treatment.83 The model declaration suggested in the un ga Resolution 32/64 of 8 December 1977 stated, inter alia, that: The Government of…hereby declares its intention (…) to comply with the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment (…).84 The un Secretariat treated such declarations as an expression of good faith of the Governments and their moral commitment, but not as a binding act.85 It is sometimes stressed that the legal force of a promise is not dependent on the beneficiary trusting that this promise will be respected.86 S. Carbone however presents a contrary view on this question. He writes that ‘international law requires the promisee to show (not his consent even be it tacit) but merely his expectation and factors giving rise to this expectation which, together with the promisor’s intention of being legally bound, are the only relevant evidence of a situation protected, in the interests of the promise, by international law.’87 One can wonder, however, if this condition does not go even further than the requirement of a tacit consent. ‘Expectation’ may be seen as a belief that a promise will be respected. One can hardly insist on that element even with respect to treaties. S. Carbone himself is not very consequent, as he writes further that: 83 84 85 86 87

Ch. Eckart, op. cit., p. 140. Ch. Eckart, op. cit., p. 140. Ch. Eckart, op. cit., p. 141. W. Fiedler, op. cit., p. 67. S. Carbone, Promise in International Law: A Confirmation of its Binding Force, IYb. IL, 1975, p. 168.

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(…) according to the judgment under consideration, an obligation on the part of the promisor State can be said to exist only if there is, not exclusively his consent to be bound, but rather a set of circumstances under which the promissory unilateral declaration is such as to raise a founded expectation that the promisor State will behave according to certain standards.88 Reasonableness of expectation that a promise will be respected is not the same as actual trust in its being respected. The first element has an objective character, while the second one is highly individualized and subjective (not to say ‘psychological’). In fact the first element refers rather to the establishment of intention – it may allow for objectively assessing whether a given statement may be seen as a source of a legal duty. The second element refers to the beneficiary. Though it is denied that the trust of a beneficiary is a constitutive element of a promise, this does not mean that the beneficiary has no influence on a promise. This is discussed below in the next subchapter. 11.5

Legal Effects of the Lack of Interest of a Beneficiary of a Promise

In the Nuclear Tests cases the icj referred to the position of a beneficiary of a promise. The respective passage of the judgment reads: In these circumstances, nothing in the nature of a quid pro quo nor any subsequent acceptance of the declaration, nor even any reply or reaction from other States, is required for the declaration to take effect, since such a requirement would be inconsistent with the strictly unilateral nature of the juridical act (l’acte juridique) by which the pronouncement by the state was made.89 Therefore it expressed itself against the thesis which would make the validity of a promise dependent on acceptance. While the lack of such dependence is not put into doubt nowadays, it does not exhaust the problem of the relationship of a beneficiary to a promise. What must be discussed as well is a situation in which a beneficiary rejects obtainment of the rights stemming from a promise. E. Suy expresses an opinion, that if a beneficiary-state expressly or impliedly rejects a promise, it cannot invoke 88 89

S. Carbone, op. cit., p. 169. The Nuclear Tests case, p. 267, par. 43.

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it later.90 Suy goes to lenghts to distinguish that aspect from the requirement of acceptance, underlining that a promise does not require the latter.91 The decisive criterion is to be a moment of emergence of an obligation. In the opinion of Suy a new obligation comes into existence at the moment in which information about the promise is received by a beneficiary. The act of the beneficiary is only an acte cognitif, un acte de constatation de droit.92 However it is difficult to accept the thesis according to which a state may become a subject of a right of international law against its own will. What’s more, there is no justification why a unilateral promise should be regulated by a rule contrary to the one governing a pactum in favorem tertii. The literature rightly points to the fact that beneficiary does not have to accept the benefit which is provided for in a promise.93 There is no doubt that the author-state of a promise giving rise to erga omnes obligations or obligations with respect to a few states is not released from its obligation because of the opposition of one state only. One must wonder however whether the author-state is released from its obligation with respect to the opposing state. In my opinion it is. Any other answer would be self-contradictory – a beneficiary state would make impossible the creation of a right and subsequently try to take advantage of it. A. Rubin rightly suggests that ‘it would be a violation of the principle of good faith for any state that had publicly refused to grant legal effect to the Egyptian declaration to now change its position.’94 Rejection of a promise must be distinguished from its critical assessment as insufficient. The special rapporteur invokes the declarations made by China, Russia and the usa on 5 April 1995 and by France and the uk on 6 April 1995. Each of them undertook ‘not to use nuclear weapons against non-­nuclear-weapon States parties to the Treaty on the Non-Proliferation of Nuclear Weapons, with a number of conditions limiting the scope of the declarations.’ As the special rapporteur writes further: While the nuclear-weapon States considered such acts as binding, credible and reliable, the non-aligned countries belonging to the Group of 21 at the Conference considered that such acts or declarations did not engage the countries making them and therefore did not have a legal 90 91 92 93 94

E. Suy, op. cit., p. 150. E. Suy, op. cit., pp. 150–151. E. Suy, op. cit., p. 151. W. Fiedler, op. cit., p. 57. A. Rubin, op. cit., p. 7.

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character. In this respect, the representative of Indonesia, speaking on behalf of the Group of Non-Aligned Countries, stated on 11 April 1995 in New York that such acts did not satisfy the long-standing demands of the non-aligned countries, it being understood, as the representative of the Islamic Republic of Iran indicated on that same date, that such guarantees must take the form of a negotiated and legally binding international instrument. The non-aligned countries members of the Group of 21 in the Conference on Disarmament continue to hold this view.95 Only adoption of the principle summus ius summa iniuria would ‘justify’ the following reasoning: as Iran and other states of the Group of 21 questioned the obligation of the usa and other atomic powers, the members of the group waived their rights stemming from the respective declarations or prevented those declaration from becoming binding with respect to them. 11.6

The Legal Foundation of the Binding Force of a Promise

A problem which has attracted much attention in the legal literature is the legal basis for the binding force of unilateral promises. It is difficult not to see that one can distinguish several levels on which this aspect is, and can be, discussed. The first level deals with problems of a fundamental nature, concerning the very essence of international law. The second level is much more practical. Discussion on this level will search for a precise norm justifying the binding force of promises. It is on the first level that one can situate the analyses of E. Suy. He denies at the outset that the theory of self-limitation may explain the binding force of unilateral promise. According to him, the latter must flow from international law as such.96 The search for such concrete norm or principle is the essence of this second level. E. Suy excludes the principle pacta sunt servanda as such a justification.97 In his opinion, besides that rule there is a customary norm according to which a unilateral promise is binding. To this end it must fulfil some conditions which were already discussed (will (intention) of the author-state and public character).98 In Suy’s opinion, what speaks in favour of the existence of that 95 96 97 98

Both citation on the basis of: 2. report , p. 5, footnote 10. E. Suy, op. cit., p. 148. E. Suy, op. cit., p. 149. E. Suy, op. cit., p. 151.

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norm is the principle of good faith.99 One can observe that Suy in a genius fashion foreshadowed the development of the future case-law of the icj (if not paved its way). In the Nuclear Tests judgment icj referred to that element in the following words: One of the basic principles governing the creation and performance of legal obligations, whatever their source, is the principle of good faith. Trust and confidence are inherent in international co-operation, in particular in an age when this co-operation in many fields is becoming increasingly essential. Just as the very rule of pacta sunt servanda in the law of treaties is based on good faith, so also is the binding character of an international obligation assumed by unilateral declaration. Thus interested States may take cognizance of unilateral declarations and place confidence in them, and are entitled to require that the obligation thus created be respected.100 This reasoning is often referred to in the legal literature.101 J.M. Arbour writes that the basis of the binding force of a promise is ‘at the general level the principle of good faith and need for security in international relations.’102 G. Venturini writes, that ‘waiver, recognition and analogous institutions find their legal foundation in the general principles of the international legal order. They are the attributive principles concerning – respectively – the right to dispose of one’s rights and the right to bind oneself (pouvoir de s’obliger).’103 There is no doubt that promise is one of the elements included in the above list of acts. However the reports of the special rapporteur are not very apodictic as to this element. In the ninth report one can find the following statement: Views have been expressed in the literature to the effect that the principle of good faith creates a need to ensure compliance with unilateral 99 100 101 102 103

E. Suy, op. cit., p. 151. The Nuclear Tests case, p. 268, par. 46. W. Góralczyk, op. cit., p. 170. J.M. Arbour, op. cit., p. 128. G. Venturini, La portée et les effets juridiques des attitudes et des actes unilatéraux des États, rcadi, 1964-ii (t. 112), p. 405. Venturini distinguishes another group of acts, comprising termination of a treaty because of its breach by another party or a fundamental change of circumstances warranting revocation (révocation), or warning. Their grounds are to be found in general principles of law – proper also for domestic systems of law of civilized nations.

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commitments. This principle, in turn, reflects the moral obligation to honour one’s promises or, alternatively, the social requirement of ensuring the stability of international relations, and is achieved through the sincerity of the declaring State or the expectation created among third parties that the unilateral act will be observed.104 One should stress that several legal principles find their source in moral norms and social needs. The latter norms and needs however are not sufficient per se to confirm the existence of a given legal norm. It must be emphasized as well that several customary norms are simply identical to some general principles. This is of great importance in the discussion of the binding force of unilateral promises. References to the principle of good faith are predominant in this discussion. They may be unsatisfactory, even dangerous, for those authors who do not recognize general principles of law as sources of international law. Such authors will insist on the confirmation or denial of customary norms. This desire, on the other hand, may be completely not understandable for authors who treat general principles of law as a source of international law. For such persons the confirmation of a principle may mean the end of any necessity to look further for the justification of the binding force of a promise. Eckart treats the principle of good faith rather as a ‘background principle’ which ‘does not by itself and directly give rise to legal obligations proper’.105 There is therefore no doubt that a principle ‘a state is under a duty to respect a unilateral promise (waiver, recognition etc.)’ means a prohibition against putting into doubt its unilateral act of a given type. In my opinion one can defend the existence of such a general norm only if one can confirm its customary character. I have not encountered any attempt to argue that the principle pacta sunt servanda is a customary norm, while the principle acta sunt servanda (possibly with some clarification or narrowing down) gives rise to precise obligations, but only in the character of a general principle of law recognized by civilized nations. Civilized nations adopt very different solutions in this area. For example Polish law requires a notary act for a donation (unless the donation has already been executed).106 Other legal orders are also suspicious with respect to unilateral transactions or transactions which are not unilateral as such but give benefits only to one party. Also the declarations of several state officials are not necessarily attributed a legal value in domestic legal orders. A state with a 104 9. report , add. 1, p. 7, par. 12. 105 Ch. Eckart, op. cit., p. 178. 106 Art. 890 § 1 of the Polish Civil Code.

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written constitution may have (as Poland) a closed catalogue of sources of law. A promise made by a minister or even the President is not listed among them. The protection of persons undertaking activities on the basis of such promises is one of the most difficult and still unresolved matters of domestic law. As Eckart writes: (…) general principles of law derived from municipal systems are of no avail as support as a comparable unilaterally obliging mechanism is scarcely present in national legal systems.107 The only principle of law discussed in this context is the principle of good faith (bona fides). It could be at the most reconstructed in a normative way as the obligation to ‘behave in accordance with good faith’. From such a principle one could at the most infer the following conclusion – ‘keep your promise when it is proper (justified) in concreto’ but not ‘keep your promise because you have made it with an intention to be bound (unless one of a few grounds of invalidity is applicable)’. There is no doubt that the principle of good faith plays a most important role in the discussion on unilateral acts in general, and promise in particular. And while there is no possibility to exhaust that issue in this book, a few words must be said about this principle all the same. On the one hand its presence in law and in international law is beyond any doubt. The conviction that not every act in international relations is allowed could be seen as an inevitable element of civilisation. The best proof thereof is the emergence and development of the law of armed conflicts. What is equally obvious on the other hand, however, is a never-ending competition between states. They want to know the situation of other states, and break their ciphers and codes. Every state aims to gain advantage in such areas as trade, industry, technological development, education, science, sport etc. One can wonder how to reconcile the benevolent principle of good faith with a natural self-preservation instinct. This is the task for monographs on good faith rather than the ones on unilateral acts of states. Sometimes the principle of good faith is presented as an alternative to the principle of will. On the grounds of the Nuclear Tests judgments one can have serious doubts as regards such a relationship between the two principles. The icj refers to both. W. Fielder rightly argues that the binding force of unilateral promises cannot be identified with the Nuclear Tests judgment.108 He also heavily criticised 107 Ch. Eckart, op.cit., p. 178. 108 W. Fielder, op. cit., p. 35.

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the attempts of authors writing on the topic of such binding force.109 In his opinion: ‘[T]he authors seem to need no other support in this area. The certitude with which many authors treat the binding force of unilateral declarations as obvious is often based on abstract and logical conclusions (Schlußfolgerungen). At the same time the legal basis of that binding force is not analysed in depth.’110 S. Carbone writes in this context on ‘authors who largely by means of abstract, theoretical and not very convincing reasoning, went as far as to propose changing the classical rule of international law “pacta sunt servanda”, into “promissio est obligando” or “promissio est servanda”.’111 All the same the reference to a general principle should not be seen as a denial of the existence of a customary norm on the binding force of unilateral declarations. Eckart puts into doubt the existence of such a customary norm on promises. In his opinion there is no sufficient practice of states but just the case-law of the courts.112 In fact entire Chapter 10 was devoted to dwell on the existence of such a norm of general law. The answer was positive, though not without some hesitation. If Eckart is right both Chapters 10 and 11 are devoid of purpose and object. I can fully share the sense of irritation or embarrassment by the excessive dependence of the views on promise upon the case-law of the icj. This is all the more as the judgments in the Nuclear Tests cases may give rise to serious doubts. The relate first of all to the avoidance of decision on the demands made by Australia and New Zealand. Secondly they relate to the interpretation of the French statements.113 I would not be able to extend this criticism to the fact that the icj did not exclude the possibility of promises giving rise to international obligations. The situation in this respect may be looked at as a challenge to the doctrine dealing with sources of public international law. The belief that the case-law is neutral with respect to legal norms is an idealistic one. In fact however, the respect for a word given, i.e. the idea that promises should be kept, is the kind 109 W. Fielder, op. cit., p. 35. 110 W. Fielder, op. cit., p. 35. 111 S. Carbone, op. cit., p. 167. 112 Ch. Eckart, op. Cit., pp. 177–178. 113 See: infra.

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of ideal very easily transformable into a legal norm. Examples of breaking the word actually given are repeated and commented on for centuries. A good example is the one of the 1415 execution of Jan (John) Hus, despite the safeconduct granted him by the then Roman King Sigismund. Respect for the word given is also remembered for centuries. A good example is the admiration of the Sultan Saladin famous for his respect for his promises. One can agree with Eckart only if one insists on the very technical way of creation of international customary norms. In fact however many customary norms would have problems with fulfilling the requirements indicated by the pcij in the famous Lotus case. If one compares the norms on: the inviolability of diplomats, the voidance of treaties resulting from corruption, the sovereignty of states in the air space and the lack of such sovereignty in the outer space, one can see fundamental differences as regards the formation of a given norm. In my opinion, we are in face of such a norm as regards the possibility of creating obligations of international law by means of unilateral declarations. 11.7

Interpretation of Unilateral Promises

11.7.1 General Rules Judgments directly concerning unilateral acts sensu stricto have referred mainly to the principle of narrow interpretation. Important as it is however, this principle does not exhaust entirely to question of interpretation of unilateral acts. It seems useful to refer to the general principle of interpretation formulated by the icj in cases concerning unilateral acts sensu largo, i.e. mainly declarations on the acceptance of compulsory jurisdiction of the icj. What was of interest in these judgments were the positive statements contained in declarations, as well as the reservations (or exclusions) provided for in them. For example in the Anglo-Iranian Oil Company case the icj stated that: This Declaration must be interpreted as it stands, having regard to the words actually used.114 The first part of the notion (‘interpreted as it stands’) was also repeated by the icj in the case of Norwegian loans 114 i.c.j. Reports, 1952, p. 105.

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Every reservation must be given effect “as it stands”.115 In the Fisheries jurisdiction case (Spain v. Canada) the Court summed up the above-mentioned case-la, and concluded that: Therefore, declarations and reservations are to be read as a whole.116 According to the judgment in the Anglo-Iranian Oil company: [T]he Court cannot base itself on a purely grammatical interpretation of the text. It must seek the interpretation which is in harmony with a natural and reasonable way of reading the text, having due regard to the intention of the Government of Iran at the time when it accepted the compulsory jurisdiction of the Court.117 Interpretation must clearly take into consideration the intention of the authorstate. Proof of this may be found in another fragment of the icj judgment from the above-mentioned Spanish-Canadian dispute: The Court will thus interpret the relevant words of a declaration, including a reservation contained therein, in a natural and reasonable way, having due regard to the intention of the State concerned at the time when it accepted the compulsory jurisdiction of the Court. The intention of a reserving State may be deduced not only from the text of the relevant clause, but also from the context in which the clause is to be read, and an examination of evidence regarding the circumstances of its preparation and the purposes intended to be served.118 These rules could be applied with respect to interpretation of unilateral promises. It is instructive to recall in this context the Aegean Sea Continental Shelf case. There the Court had to interpret a reservation contained in a Greek declaration. It excluded from the jurisdiction of the icj ‘disputes concerning questions which by international law are solely within the domestic jurisdiction of 115 Certain Norwegian Loans, Judgment, i.c.j. Reports 1957. p. 27, i.c.j. Reports, 1957, p. 27. 116 Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, i.c.j. Reports 1998, p. 454. 117 Anglo-Iranian Oil Company, i.c.j. Reports, 1952, p. 104. 118 Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, i.c.j. Reports 1998, p. 454.

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States, and in particular disputes relating to the territorial status of Greece, including disputes relating to its rights of sovereignty over its ports and lines of communication.’ A purely grammatical interpretation would suggest that the icj is deprived of jurisdiction only if cases concerning territory would have actually fallen within domestic jurisdiction. This was the interpretation suggested by Greece. The icj was of the opinion that the intention of Greece at the moment of making a declaration was to exclude the jurisdiction of the Court in all disputes connected with territory (including shelf).119 A narrow interpretation of promises was advocated expressis verbis by the icj in the Nuclear Tests cases. The justification was short: When States make statements by which their freedom of action is to be limited, a restrictive interpretation is called for.120 In the Burkina Faso v. Mali case the chamber of the icj added another interpretive principle: The Chamber considers that it has a duty to show even greater caution when it is a question of a unilateral declaration not directed to any particular recipient.121 The ilc Guiding Principle No 7 states that: A unilateral declaration entails obligations for the formulating State only if it is stated in clear and specific terms. In the case of doubt as to the scope of the obligations resulting from such a declaration, such obligations must be interpreted in a restrictive manner. In interpreting the content of such obligations, weight shall be given first and foremost to the text of the declaration, together with the context and the circumstances in which it was formulated. It is possible to verify whether the pcij and the icj has actually kept to this line of interpretation, but before that one must ask how to understand these interpretative principles. From the theoretical point of view one can distinguish 119 i.c.j. Reports 1978, pp. 21–22. The icj pointed out that the interpretation suggested by Greece was not the only proper one, Ibidem, p. 22 et. seq. 120 The Nuclear Tests case, p. 267, par. 44. 121 Case Burkina Faso p. Mali, p. 574, par. 39.

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between the qualification of a given declaration as a binding act on the one hand, and its interpretation in the narrow meaning of the term on the other. The latter would mean the choice of one of several competing meanings of a given act. This differentiation is, however, artificial and cannot be accepted. Interpretation is applied with respect to a number of oral statements and documents not only in order to establish their meaning, but also (or rather first of all) to establish their legal character. That is why the basic aim of interpretation is to find out whether a given act gives rise to any obligations of international law, or not. The references to the necessity of narrow interpretation should be applied to that topic as well. This means that one should first assume that a given statement is not a binding promise. The thesis on the necessity of a narrow interpretation of unilateral declarations (and promises in particular) may be challenged in light of the pcij judgment in the Eastern Greenland case. As is known, the Danish question was whether the extension of its political and economic interests to the whole of Greenland “would not encounter any difficulties on the part of the Norwegian Government”. The reply of the Norwegian Minister for Foreign Affairs, Mr. Ihlen, was that ‘the Norwegian Government would not make any difficulties in the settlement of this question.’122 The effects of that declaration have been referred to in this work at several occasions. What is interesting in this place are the fragments of the judgment in which the pcij referred to the topic of its interpretation. For example the pcij excluded the possibility of qualifying the Ihlen declaration as recognition. The pcij ruled as follows: A careful examination of the words used and of the circumstances in which they were used, as well as of the subsequent developments, shows that M. Ihlen cannot have meant (ne peut avoir eu l’intention) to be giving then and there a definitive recognition of Danish sovereignty over Greenland, and shows also that he cannot have been understood by the Danish Government at the time as having done so.123 As is visible, the pcij’s interpretation of the act covered the examination of the wording used as well as the circumstances in which a given declaration was made. After having disqualified the Ihlen declaration as recognition, the pcij commenced to examine: 122 This version was inserted into a report by Mr Ihlen himself. 123 The Eastern Greenland case, p. 69.

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whether the Ihlen declaration – even if not constituting a definitive recognition of Danish sovereignty – did not constitute an engagement obliging Norway to refrain from occupying any part of Greenland.124 As is known, a positive answer was given to this question. One must however pay attention to the fact that both the question of the Danish diplomat, as well as the answer of Minister Ihlen were relatively general. Drawing unequivocal conclusions on their basis was less than obvious. The very phrases ‘make no difficulties’ or the words ‘settlement of the Greenland matter’ could have more resembled a pactum de contrahendo rather than a definitive decision affirming Danish sovereignty over all of Greenland. The Court ruled as follows: The Court is unable to read into the words of the Ihlen declaration “in the settlement of this question” (i.e. the Greenland question) a condition which would render the promise to refrain from making any difficulties inoperative should a settlement not be reached. The promise was unconditional and definitive.125 As can be seen, the interpretation adopted by the Court was not a narrow one. However the case of the Eastern Greenland is of limited value in this respect. In fact the pcij established at least three other bases of the Danish sovereignty over the entirety of Greenland. This fact could have encouraged the pcij to a more broader interpretation of Ihlen’s declaration. 11.7.2 Interpretation of Declarations in the Nuclear Tests Cases In the cases of the French Nuclear Tests in the Pacific the Court referred to several French public oral declarations and to one diplomatic document. Taking into consideration great importance of the 1974 judgments it is worthwhile to discuss these acts in detail. In fact six declarations must be analysed. The first was the communiqué issued by the Office of the President of the French Republic on 8 June 1974. It informed the public about the publication of the Decree reintroducing the security measures in the South Pacific nuclear test zone. It included the following statement: 124 The Eastern Greenland case, p. 69. 125 In this respect the pcij invoked a dispatch from the Danish Minister at Christiania to the Danish Minister for Foreign Affairs of November 8, 1919 reporting that the Norwegian Minister for Foreign Affairs had told the Danish Minister at Christiania on November 7, 1919, that “it was a pleasure to Norway to recognize Danish sovereignty over Greenland”; The Eastern Greenland case, p. 73.

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The Office of the President of the Republic takes this opportunity of stating that in view of the stage reached in carrying out the French nuclear defence programme France will be in a position to pass on to the stage of underground explosions as soon as the series of tests planned for this summer is completed.126 Does this statement create an obligation? One can have very serious doubts about that. It is a very long way from the statement that ‘we are in a position to do something according to a method different than the one applied hitherto’ to a statement ‘we oblige unconditionally and forever to do this according to this new method.’ As a rule states care about their mutual relations. Australia – the only state-continent of the world – is a serious partner (especially from the perspective of the French overseas territories). It is also obvious that conducting nuclear tests, which affect to a greater extent the interests of other states than the author-state, may give rise to serious crises in relations. There is little wonder that the author-state is ready to calm down the irritation and concerns of other states and their societies. The promising references to technical possibilities offer a good means of calming down such irritation. This does not mean however that they are binding. The second declaration was contained in a Note sent on 10 June 1974 by the French Embassy in Wellington to the New Zealand Ministry of Foreign Affairs.127 This note contained the following statement: France, at the point which has been reached in the execution of its programme of defence by nuclear means, will be in a position to move to the stage of underground tests, as soon as the test series planned for this summer is completed. Thus the atmospheric tests which are soon to be carried out will, in the normal course of events, be the last of this type.128 Referring more generally to the content of the note, one must observe that the first sentence in fact repeats a fragment of the earlier declaration of the Office 126 The Nuclear Tests case, p. 265, par. 34. 127 The Nuclear Tests case, p. 265, par. 35. 128 The first question deserving attention is whether Australia can invoke a note addressed to another state. I have very serious doubts as to such a possibility. The icj was careful in this respect, limiting itself to statement that it ‘cannot fail to take note of a reference to a document made by counsel at a public hearing in the proceedings, parallel to this case, instituted by New Zealand against France on 9 May 1973.’, The Nuclear Tests case, p. 265, par. 35.

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of the President of the French Republic. In this respect it is sufficient to refer to the earlier remarks on that part of the declaration. What deserves attention here is the second sentence. There is no doubt that it could have been formulated more carefully. The author could have said that ‘Thus the atmospheric tests which are soon to be carried out have the chance, in the normal course of events, to be (or ‘probably will be’) the last of this type’. Such a formulation would have made it possible to claim that the tests could have been the last, but in fact they did not turn out to be the last. All the same, the declaration in its final form did actually contain some safeguards. Above all this concerns the phrase ‘in the normal course of events’. This element will be discussed following the presentation of the remaining declarations, which in some fashion refer to it. The third declaration was a statement of the President of France made on 25 July 1974 at a press conference. The President referred to the declaration of the Prime Minister made in the National Assembly introducing the Government’s programme. The Prime Minister had indicated that French nuclear testing would continue. The President added that: I had myself made it clear that this round of atmospheric tests would be the last.129 This statement most resembles an international obligation. The President used a quite apodictic formulation. The main phrase read out of context could be seen as conditional, but this is an apparent effect, a by-product of English grammar. In French the respective phrase was: J’avait moi-même precisé que cette campagne d’expérces atmosphériques serait le dernière.130 The fourth declaration was a statement made by the French Minister of Defence on 16 August 1974 in the course of an interview on French television. The Minister said that the French Government had done its best to ensure that the 1974 nuclear tests would be the last atmospheric tests.131 It is difficult to qualify this statement as a self-sufficient source of obligation. It is rather information on the efforts of the state and its plans. It is impossible to see an obligation in a

129 The Nuclear Tests case, p. 266, par. 37. 130 Ibidem. 131 The Nuclear Tests case, p. 266, par. 38.

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statement of that kind. Such a phraseology evidently refers to the lack of an intention to bind a state. The fifth declaration was made on 25 September 1974 by the French Minister for Foreign Affairs, addressing the United Nations General Assembly. The Minister said that: We have now reached a stage in our nuclear technology that makes it possible for us to continue our programme by underground testing, and we have taken steps to do so as early as next year.132 Also this statement can hardly be treated as a source of obligations. As with the previous one, it is rather information on the state’s previous activities and its plans for the future. It does not contain any unequivocal declaration to the end that no further tests would be conducted in the atmosphere. The last declaration cited in the Nuclear Tests cases seems to be the most important. It is worthwhile to cite the entire passage of the icj judgment: On 11 October 1974, the Minister of Defence held a press conference during which he stated twice, in almost identical terms, that there would not be any atmospheric tests in 1975 and that France was ready to proceed to underground tests. When the comment was made that he had not added “in the normal course of events”, he agreed that he had not. This latter point is relevant in view of the passage from the Note of 10 June 1974 from the French Embassy in Wellington to the Ministry of Foreign Affairs of New Zealand, quoted in paragraph 35 above, to the effect that the atmospheric tests contemplated “will, in the normal course of events, be the last of this type”. The Minister also mentioned that, whether or not other governments had been officially advised of the decision, they could become aware of it through the press and by reading the communiqués issued by the Office of the President of the Republic.133 Assuming that the Minister of Defence has the competence to bind his or her state and that statements from a press conference are as valid as official statements of the head of a state or a proclamation in a form of a separate document, one should say that the wording used by the minister is assertive enough to create a new obligation. Its scope, however, might be more modest than one could expect. The statement concerned only the activity of France in 1975. One 132 The Nuclear Tests case, p. 266, par. 39. 133 The Nuclear Tests case, p. 266, par. 40.

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can ask whether a statement according to which something will not be done in a given year and that a new method will be applied in the following years is really an unequivocal obligation concerning this future period? In my opinion, if this declaration were the only one, there would be several arguments in favour of watering down this obligation. I decided to cite in extenso the French declarations which became the subject of the Nuclear Tests cases, as it constituted the only chance to check if the icj really applies a narrow interpretation of unilateral declarations creating obligations for their authors. The icj summed them up together in the following words: In view of the foregoing, the Court finds that France made public its intention to cease the conduct of atmospheric nuclear tests following the conclusion of the 1974 series of tests. The Court must in particular take into consideration the President’s statement of 25 July 1974 (paragraph 37 above) followed by the Defence Minister’s statement on 11 October 1974 (paragraph 40). These reveal that the official statements made on behalf of France concerning future nuclear testing are not subject to whatever proviso, if any, was implied by the expression “in the normal course of events [normalement]”.134 The above-cited part of the judgment means that out of the above-presented statements, it was the third and the sixth which were treated as the most important by the Court. As was said, only they were precise as to the future course of conduct of France. One should pay attention to the words ‘in particular’ used by the Court. It is beyond doubt that it could have and actually did refer to the wider context comprising all six declarations. This should not be taken to mean that every one of them would have been treated as binding if it had been issued alone. All the same one cannot overlook that the Nuclear Tests cases are not the best illustration of a narrow interpretation of unilateral declarations. 11.8

Revocability of Unilateral Promises

One of the basic challenges before the theory of unilateral acts is whether a unilateral promise may be revoked unilaterally. It is beyond any doubt that international life evolves and it is difficult to expect that every promise will be kept for a thousand or even a hundred years. On the other hand, complete and 134 The Nuclear Tests case, p. 267, par. 41.

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full freedom to revoke a promise would put into doubt the very binding force of such a promise. An important argument in favour of the irrevocability of (at least some) promises is the judgment in the Eastern Greenland case. As was said the pcij on several occasions underlined the ‘unconditional and definitive’ character of the Norwegian obligation.135 It was the basis for its definitive conclusion on the legal effects of that declaration. According to the pcij: As a result of the undertaking involved in the Ihlen declaration of July 22nd, 1919, Norway is under an obligation to refrain from contesting Danish sovereignty over Greenland as a whole, and a fortiori to refrain from occupying a part of Greenland.136 In fact Norway attempted to replace that act with another one. Two years after the Ihlen declaration (on July 20, 1921) the new Minister for Foreign Affairs of Norway, Mr. Ræstad: informed the Danish Minister at Christiania, unofficially, (…) that “the Norwegian Government has not recognized and cannot consent to recognize an extension of Danish sovereignty over Greenland which would involve a corresponding extension of the Danish monopoly, since the result would be the extinction of the economic activities, and particularly the hunting and fishing operations hitherto pursued without hindrance by Norwegians in the parts of Greenland and in the Greenland waters in question”.137 As was said, the pcij ruled that: What the Court cannot regard as being in accordance with the undertaking (l’engagement) of July 22nd, 1919 is the endeavour to replace an unconditional and definitive undertaking by one which was subject to reservations.138 This fragment is an important argument in favour of the irrevocability of unilateral promises. While in fact no formal revocation of the former act was done, 135 136 137 138

The Eastern Greenland case, pp. 71–73. The Eastern Greenland case, p. 73. The Eastern Greenland case, p. 72. The Eastern Greenland case, p. 72.

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there are no grounds to believe that such a formal act would have been treated in a different way. The above-cited statement of the pcij does not prejudge that the pcij would have had the same relationship to: – a declaration issued directly after the Ihlen declaration, in which the government of Norway denied the Ihlen declaration; – a declaration issued, for example 70 years after the Ihlen declaration in a hypothetical situation in which Denmark had ceased its factual and legal activity with respect to Greenland. One should however reserve that the first of these examples does not concern revocation in the technical meaning of the term, but rather an invocation of a ground of invalidity. Had the domestic law of a given state expressly provided for a competence of the Minister for Foreign Affairs to dispose of the state’s territory (a solution probably not adopted in any state), any and all claims of invalidity would have been excluded. In other cases however one must take into account such a possibility. This is especially true since good faith could not serve as an argument against such a possibility. J.P. Jacqué treats it as obvious that it is illegal to revoke a unilateral promise in a situation of estoppel. This would mean that a promise is irrevocable only if another subject has already taken some activities on the basis of the promise, and its revocation would lead to a hardship for or operate to the detriment of that subject.139 W. Czapliński and A. Wyrozumska write on irrevocability of a promise ‘if it gives a right for a third state.’140 However, as the creation of rights for other states is an inherent element (part of the definition) of promise, this means that every promise would be irrevocable. These apodictic statements are in evident conflict with the earlier legal literature and the practice of France. It is difficult not to invoke in this context the declaration of France made on 26 April 1957 in the Security Council. It concerned the declaration of Egypt on the Suez Channel. According to France: [A] unilateral declaration, even if registered, cannot…be anything more than a unilateral act, and we must draw the conclusion from these findings that just as the Declaration was issued unilaterally, it can be amended or annulled in the same manner.141 139 J.P. Jacqué, Eléments…, p. 256. 140 W. Czapliński, A. Wyrozumska, op. cit., p. 93. 141 11 scor (776th mtg) para. 59 (1957); French text in A. Rubin, op. cit., p. 7, the official English translation – Ibidem, footnote 19. See also: F. Villagrán Kramer, Les actes unilatéraux dans

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It is quite characteristic that the French government did not try to argue that the declaration was deprived of binding force. It simply argued that such a declaration could be revoked at any time. W. Fiedler writes that ‘as long as a unilateral obligation will be perceived as one resulting only from the will of a single state, one can easily assume the freedom to revoke such an obligation. This view isolates a single declaration of will and cannot be defended any longer. It was therefore denied in connection with the development of international law’.142 Fiedler wonders how to reconcile the binding force of a unilateral promise with the possibility to revoke it at will.143 In conclusion he writes that the possibility to revoke a unilateral act must flow from the very formulation of the act in question.144 At the same time, Fiedler points out the merely relative stability of unilateral binding declarations. He writes, that ‘[i]f a state obliges itself to cease certain tests detrimental for the environment, the resulting obligation does not last forever. Subsequent codifications, technical or scientific changes may influence the temporal scope of an obligation.’145 A. Rubin is also in favour of revocability of unilateral promises. He rightly argues that ‘[t]here is no apparent reason why obligations assumed by unilateral declaration should be harder to terminate than obligations assumed by a treaty.’146 Rubin definitively writes that ‘it is difficult to understand why the principle of “good faith” should inhibit that revocation’.147 According to him ‘the sole legal question would seem to be a mere technical one, of whether an express revocation should be required prior to a state’s acting in a manner inconsistent with its unilateral declaration, or whether the inconsistent action implying revocation should be conceived to be sufficient to satisfy the legal requirements, if any, flowing from the general obligation of good faith.’148 Rubin himself is of the opinion, that unless a situation of estoppel is in place ‘it is difficult to understand how an international claim should arise from a state’s acting inconsistently with its prior unilateral declaration of intention, even without an express revocation.’149

142 143 144 145 146 147 148 149

le cadre de la jurisprudence internationale, in: International Law on the Eve of the Twentyfirst Century. Views from the International Law Commission, un New York 1997,, p. 158. W. Fiedler, op. cit., p. 58. W. Fiedler, op. cit., p. 58. W. Fiedler, op. cit., p. 58. W. Fiedler, op. cit., s. 63. A. Rubin, op. cit., p. 10. A. Rubin, op. cit., p. 10. Rubin, op. cit., p. 11. A. Rubin, op. cit., p. 11.

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F. Villagrán Kramer also treats as the point of departure of his analyses the thesis on the revocability of the legal transactions (actes juridiques).150 He addresses that remark first of all to treaties.151 In referring to unilateral acts, Kramer underlines that states do not aim at the absolute stability of factual or legal situations, nor of legal or political relationships.152 In conclusion Kramer opts for the revocability of unilateral acts, although they cannot be revoked in an arbitrary way.153 In his opinion, the boundary between legal and illegal revocation will be determined by such principles or phenomena as venire contra factum proprium and estoppel.154 W. Czapliński also opted in his earlier text on unilateral acts for the revocability of promises. He wrote as follows: ‘The principles of the law of treaties should be applied mutatis mutandis to the revocability of rights resulting from unilateral acts. There is no doubt as to the applicability of the principle rebus sic stantibus. There are, however, doubts as regards the competence of a state to unilateral termination of rights granted to another subject by means of a unilateral act, especially if the latter has been accepted by the addressees. In that doctrinal dispute, one should support the authors speaking in favour of such possibility by analogy to the termination of treaties.’155 S. Carbone writes that the limits within which a promise may be revoked ‘cannot be fixed a priori or in general terms, but rather in relation to each individual case. Special regard must be given to the exact content of the promisor’s undertaking, to all the circumstances under which it came into being and how far these have changed when the problem of revocation is raised, and to the promisee’s expectations brought about by these circumstances as well as to the promisor’s behaviour.’156 According to him a promise may be revoked, but not arbitrarily. At the same time he speaks in favour of applying by analogy the rules of the law of treaties concerning termination of treaties.157 Also A. Pellet opts for the revocability of promise invoking the same principle which applies to treaties.158 I. Browlie 150 F. Villagrán Kramer, op. cit., p. 157. 151 The main point of reference here concerns treaties. This point of reference is risky (even leaving aside the fact that this author puts grounds of invalidity of treaties in the same category). 152 F. Villagrán Kramer, op. cit., p. 157; he refers to exceptions here as well. 153 F. Villagrán Kramer, op. cit., p. 159. 154 F. Villagrán Kramer, op. cit., p. 159. 155 W. Czapliński, Akty jednostronne w prawie międzynarodowym, Sprawy Międzynarodowe 6/1988, p. 107. 156 S. Carbone, op. cit., p. 172. 157 S. Carbone, op. cit., p. 172. 158 A. Pellet, Droit international public, Paris, 1981, p. 27.

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refers in this regard to the provisions of an act itself.159 The problem is that acts are usually silent in that respect. During the works of the ilc on the eighth report, Mr Economides said that: Any unilateral act could be freely revoked by its author, save for two exceptions: when the unilateral act itself stipulated that it could not be revoked and when, after the addressee had accepted it, the unilateral act became a conventional act, which was then governed by the law of treaties.160 One can have serious doubts as to the possibility of automatic translation of a unilateral declaration into a treaty. Interestingly enough, one can find several authors who modified their earlier stances with respect to the topic of revocability. J.P. Jacqué switched from the denial of such revocability to arrive at its confirmation. The fragment of the icj judgments in the Nuclear Tests cases becomes, paradoxically enough, an argument for some revocability of unilateral promises.161 Inasmuch the icj underlines that states cannot revoke promises in an arbitrary way, revocation which is not arbitrary may be defended. J.P. Jacqué refers in this respect to the abuse of rights162 and the rules applicable to treaties.163 In particular impossibility to perform and a fundamental change of circumstances are applicable.164 Point 10 of the Guiding Principles adopts a somewhat equivocal solution. According to it: A unilateral declaration that has created legal obligations for the State making the declaration cannot be revoked arbitrarily. In assessing whether a revocation would be arbitrary, consideration should be given to: i. Any specific terms of the declaration relating to revocation; ii. The extent to which those to whom the obligations are owed have relied on such obligations iii. The extent to which there has been a fundamental change in the circumstances.

159 160 161 162 163 164

I. Browlie, op. cit., p. 638. Yb.ILC, 2005, vol. i, 2855. meeting, p. 173, para. 22. J.P. Jacqué, A propos…, p. 343. Jacqué, A propos…, p. 343. Jacqué, A propos…, p. 344. Jacqué, A propos…, p. 343.

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This can be hardly treated as codification of international law. It is rather an indication as to its future development. As Eckart writes: ‘(…) when depicting the law on promises, the ice we are moving upon becomes as its thinnest when addressing the power of a state to revoke its obligations assumed by its unilateral pledge.’165 In consequence, it must be accepted that the complete freedom to revoke a promise would put into doubt its binding force. That is why one can hardly accept such a reference. On the other hand the application of the principle rebus sic stantibus does not give rise to any doubts. There are no logical reasons which would stop anybody from having recourse to impossibility as well. The same applies to sanctions in cases of breaches on the part of a beneficiary. There is no sufficient practice, but analogy to domestic legal transactions would suggest the right of the author of a promise to terminate or suspend it in the situation of the beneficiary violating international law with respect to the author-state. 11.9

Apparent Promises

The next matter to be mentioned has to do with so-called ‘apparent promises’. This notion was invented by E. Suy. He writes that some acts similar to or even sometimes treated as ideal examples of promises are in fact not promises. The reason is that they merely recognize or repeat previous obligations.166 E. Suy calls them as les déclarations de volonté pseudo-promissoires.167 A good example is the declaration made by the uk in the Mavrommatis case. It read that the British government would approve the judgment of the Court.168 This was called by Suy a pseudo-obligation; in fact it is a repetition of an existing obligation and adds nothing to it.169 Other examples according to Suy are the declarations made by the Union of South Africa in the case of South-Western Africa. One can wonder why E. Suy excludes the existence of a real obligation in this latter case. His decisive argument was that what was at stake in this case was recognition giving rise to estoppel.170 This led him to an almost automatic 165 166 167 168 169 170

Ch. Eckart, op. cit., p. 275. E. Suy, op. cit., pp. 135–136. E. Suy, op. cit., p. 135. pcij Publications, series A, No 5. E. Suy, op. cit., p. 130. The author calls this declaration as promesse-confirmation. E. Suy, op. cit., p. 139.

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conclusion – inasmuch recognition of a competence (in this case that of the un) did not create it but merely confirmed it, there must be a fundamental difference in relation to promise, which itself is a basis of an international obligation.171 However it is worthwhile to consider whether the repetition of an earlier obligation really adds no additional value. Particularly pertinent is this regard is the judgment of the icj in the Nicaragua case. The icj found itself not competent to decide the case on the basis of a multilateral treaty, but competent however to decide on the basis of analogous (or even identical) norms of customary law.172 An analogous situation may refer to whatever source of an obligation and a subsequent unilateral promise repeating it. This is why the latter may turn out to be of importance from the legal point of view. Also V.D. Degan writes that ‘the existence and even more often the scope of pre-existing obligations are not always certain. And it can happen that a unilateral declaration of this kind goes even beyond these obligations already in force.’173 E. Suy would probably have replied that if a subsequent promise exceeds the scope of the former one, then a new obligation is in place. Such a situation would not give rise to an apparent promise. In fact, however, the problem of apparent promises is a fragment of a wider topic. It relates to what kind of legal effects are necessary and sufficient to speak about a legal transaction. This problem will be faced as well when discussing other acts, especially recognition. Such analyses will be made in the following chapters. As was said, from the perspective of the present work any legal effect of an act whatsoever would be sufficient to qualify it is a legal act. That is why a repetition of a former act would be denied that character only if definitely excluded any such effect. 11.10

Necessity to Distinguish between Unilateral Promises and Elements of Treaties

If an abstract question were asked about the antithesis of a unilateral act, the majority (if not all) persons dealing with international law would probably point to a treaty. Despite that (or maybe because of it) treaties occupy a crucially important position in discussions on unilateral acts.

171 E. Suy, op. cit., p. 139. 172 icj Reports, 1984, pp. 424–425, par. 73. 173 V.D. Degan, op. cit., pp. 194–195.

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As was already said, it may happen that a given document or oral declaration is qualified by some commentators as a unilateral act sensu stricto, and by others as a non-autonomous unilateral act (unilateral act sensu largo), or even an element of a treaty. Hence for some authors Ihlen’s declaration was a unilateral act, and for others it was an element of a treaty.174 Discussions on the status of individual acts may seem to be marginal and fragmentary contributions to science, not worth dwelling on in a work on the theory of international law. What’s more, one can imagine an argument that it’s not important whether in the case of Eastern Greenland a treaty or a unilateral act was in place. What is important is that Norway incurred an obligation towards Denmark. Such a statement can, however, only be made from the contemporary perspective, when the possibility of unilateral declarations having legal force does not give rise to serious doubts. This level of certainty is to a large extent the result of the case-law of the pcij and the icj. That is why attempts to label unilateral acts as treaties in fact weaken the force of the argument on the binding force of unilateral promise. In this sense discussions on several declarations are no longer fragmentary contributions to science, but indirectly influence the very core of the study of unilateral acts in general and promise in particular. These discussions are all the more important as even today the qualification of the nature of a given declaration is important. If it is qualified as a part of a treaty, the rules of the law of treaties apply to it. In the majority of cases they will be the ones codified in the vclt, though the latter clearly elaborated on many customary norms of the law of treaties.175 With respect to unilateral acts only poorly developed customary norms and general principles of law will be applied. One must seriously take into account that they may suggest (or at least allow) different answers to identical questions than the well-developed and codified law of treaties in many cases, albeit not in all of them. The situation in which one declaration is qualified as a unilateral act by one group of authors, and as a treaty (or element of a treaty) by another group of authors, is the best illustration that the boundary between unilateral acts and treaties requires the attention of both those authors dealing with the former as well as with the latter. This is neither the first nor the last opportunity to refer to a peculiar challenge for the doctrine of international law. Namely there is a 174 See: chapter 10. 175 See e.g. the position of the Austrian Foreign Ministry denying the character of codification of customary law to the vclt concerning termination of treaties in case of their material breach of another party; H. Neuhold, W. Hummer, Ch. Schreuer, Österreichisches Handbuch des Völkerrechts, 2 Materialienteil, Wien, 1991, p. 78.

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danger that a given binding act will be qualified neither as an element of a treaty, nor as a resolution nor as a unilateral act (even in its sensu largo meaning). One can hardly escape the feeling that every binding act should be qualified either as a unilateral act (sensu stricto or sensu largo), or a treaty or a resolution. If that turns out to be impossible, perhaps a fourth category is necessary. In this context it is worthwhile to recall the words of A. -Ch. Kiss, who writes that: ‘In reality the borders between treaty (traité), plurilateral act (acte plurilatéral) and unilateral act (acte unilatéral), which interests us, are far from being very precisely delimited.’176 One can guess that the mysterious ‘plurilateral act’ could be this additional category. It is not my task to study it in detail in this work, however one should be aware of the problem underlying the search for its presence. In effect, there are more problems connected with the relationship between unilateral promises and bilateral (multilateral) acts. The practical one is connected with distinguishing binding from non-binding acts. This is all the more difficult as one may have to do with acts which resemble treaties but are not, and because of that are attempted to be qualified as unilateral acts. In practice the binding vs. nonbinding dilemma is inextricably mixed with the unilateral vs. non-unilateral dilemma. So it is more a bundle of problems than a single one. E. Suy proposed an entire system for distinguishing unilateral acts from treaties. The point of departure for him was a situation in which one state (let’s call it state A) incurs an obligation on the condition that another state (state B) also assumes an obligation to perform a given behaviour. According to Suy the acts in question are unilateral in form, but are not unilateral acts sensu stricto in the technical meaning of the term. In Suy’s opinion the declaration of state B is not a unilateral declaration of will, but an acceptance of an offer or ‘acceptance of a promise’ (sic!).177 At the same time, the declaration of state A gives rise to no legal effects if not accepted by state B.178 One can agree with E. Suy as regards the qualification of the declaration of state A. However, the evaluation of the declaration of state B (the addressee of an offer) is much more difficult. It is not certain that the very fact that state A incurred a conditional obligation makes it impossible for state B to undertake a truly unilateral obligation. Let us imagine that State X incurs an obligation on the condition that State Y promises to abolish capital punishment. If State Y 176 A. -Ch. Kiss, Les actes unilatéraux dans la pratique française du droit international, rgdip, 1961, p. 323. 177 E. Suy, op. cit., p. 114. 178 Ibidem.

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makes such a promise after five years, without referring to the declaration of State X, in my opinion State Y incurs a truly unilateral obligation. It seems that such a qualification can only be made on a case-by-case basis. The last aspect of the scheme presented by E. Suy has to do with declarations made at the request of another state. According to Suy, such a declaration is not unilateral and what is in place is an international agreement.179 I have very serious doubts as regards that element. It is at least doubtful that every exchange of declarations – request and positive reply – must lead to an international agreement. The very fact that two declarations could hypothetically create a treaty does not mean that every such exchange always leads to one. This is especially true in situations in which neither of the involved states is ready to confirm the existence of such a treaty. The topic is quite complicated, and a reference to the history may be helpful. E. Nys recalls that in ancient Rome treaties were concluded by the exchange of a request (question) and reply.180 If one applies this to contemporary international law, the notion of international agreement would be unexpectedly broad. One can understand the readiness of certain authors to defend the existence of treaties in situations whereby the most spectacular element is a declaration of will made by one state, but some activity is visible on the side of another state as well. This relates in particular to Ihlen’s declaration. This example could be a warning however. Neither Norway nor Denmark seemed to perceive that a new treaty was concluded. They neither informed their respective societies on the existence of such a treaty, nor agreed on its contents remaining a secret. What’s more, neither of the interested states applied its domestic procedures on the conclusion of treaties. Though none of these elements are absolutely required for the presence of a treaty (especially one in a less solemn form), it is still difficult to see a treaty in Ihlen’s declaration. One must keep in mind that unilateral acts do not have to take the form of promise. There seems to be no justification to apply different criteria of the unilateral character of a promise on one hand and to the remaining acts on the other. If in the case of Greenland Denmark had asked for recognition and recognition had been given, would it have been a unilateral recognition? If Denmark had applied for a waiver of claims and waiver had been made, would it have been a unilateral waiver? The doctrine seems to be more ready to assume the unilateral character of recognition and waiver than of promise. This leads to a kind of prejudice with respect to unilateral promises. 179 E. Suy, op. cit., p. 114. 180 E. Nys, op. cit., iii tom, p. 26.

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Perhaps it is inevitable to some extent, but one must be aware of the important choices made by the interested states. It is clear that a state may opt for a unilateral act rather than a treaty because the former is easier to interpret to its own benefit and withdraw from. On the other hand a state may prefer to be bound by a treaty instead of a unilateral act creating an erga omnes obligation. A requirement of the consent of the other party for the possible modification or cancellation of a treaty in practice ends the entire discussion. As regards a unilateral act the number of interested states may be much larger. If they are also more influential, then the withdrawal of a promise may be costly. What’s more, the position of a state which requested the author-state to make a promise does not have to be different from the legal point of view. Hence in my opinion, just as in international law one cannot easily assume the existence of a legal obligation, so too if the latter is actually confirmed one cannot easily assume the existence of an international agreement. In any case the fact of making a promise at the request of another state is not sufficient to deny the unilateral character of such a transaction. Sometimes the level of arrangements is of such intensity that it is difficult to speak about unilateral character at all. A good example is offered by the letter of N. Khrushchev to President J.F. Kennedy of 27 October, 1962. The following passage could be found in it: This is why I make this proposal: We agree to remove those weapons from Cuba which you regard as offensive weapons. We agree to do this and to state this commitment in the United Nations. Your representative will make a statement to the effect that the United States, on its part, bearing in mind the anxiety and concern of the Soviet state, will evacuate its analogous weapons from Turkey. Let us reach an understanding on what time you and we need to put this into effect.181 In the same letter N. Khrushchev proposed: We, having assumed this commitment in order to give satisfaction and hope to the peoples of Cuba and Turkey and to increase their confidence in their security, will make a statement in the Security Council to the effect that the Soviet Government gives a solemn pledge to respect the integrity of the frontiers and sovereignty of Turkey, not to intervene in its domestic affairs, not to invade Turkey, not to make available its territory as a place d’armes for such invasion, and also will restrain those 181 Documents on American Foreign Relations 1962, New York, 1963, p. 394.

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who would think of launching an aggression against Turkey either from Soviet territory or from the territory of other states bordering on Turkey.182 He proposed that the usa make the same statement in the Security Council with respect to Cuba.183 There is no doubt, that the above-mentioned statements are the best proof of the binding force of a declaration of one state. One can wonder whether such declaration is an element of an international agreement or a unilateral act. In this case the Soviet proposal envisaged the Soviet consent to a declaration in exchange for the usa making another declaration. That is why it was either an international agreement or another type of concerted act, but not a truly unilateral one. 11.11

Unilateral Declarations in Practice

11.11.1 Introductory Remarks Actual state practice provides a large number of declarations of states concerning their present and future behaviour. Usually they are so general that it is difficult to confirm the intention of the author-state to incur a new obligation. The search for that intention is all the more difficult as what one can have access to are often just reports on such declarations. The majority of them come from the reviews of the practice of Revue Général de Droit International Public. A big part of them were used in the seventh and (to a lesser extent) the eighth report of the special rapporteur. I will refer to them many times here. It is difficult to close one’s eyes to one unpleasant fact surrounding the ilc’s works on unilateral acts. States were asked to provide the ilc with acts issued by them. Their ‘replies’ were often either a lack of any reaction or replies which were of no importance from the perspective of the binding force of a unilateral promise. They referred to such acts as protests or recognition. The binding force of the latter and possibility of distinguishing both from other acts are beyond any doubt. Practical problems emerge by assertive statements concerning the author-state’s own activity which neither expressly confirm nor expressly deny their binding force.

182 Documents on American Foreign Relations 1962, New York, 1963, p. 394. 183 Ibidem.

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11.11.2 Examples of Undoubted Promises Despite my efforts I was unable to find very many declarations which would undoubtedly be qualified as unilateral promises. One such positive example is a Canadian declaration concerning extradition.184 The direct reason for the declaration was a request by the usa. They asked Canada for assurance that they would not demand the surrender of persons invited by the un and coming to the usa on the basis and for the duration of that invitation. The usa was anxious to obtain such an assurance because of the usa-Canada extradition treaty. Such an assurance was granted by the Canadian Secretary of State for Foreign Affairs.185 It is not difficult to see possible points of contention which could be mentioned by those persons critical of the classification of such an assurance as a true unilateral act. First of all, the very term ‘assurance’ may be associated with political obligations. This conclusion may be more or less convincing depending on the language used. In fact, however, there is nothing in the very word what would justify absolutely reserving it to acts giving rise to no legal obligations. What’s more, the declaration in question entered into a sphere regulated by a treaty, that is by international law. It is also a fact that both parties attached great importance to it. In addition, Canada must have taken into account that in the event it made an extradition request to the usa the latter could have invoked the Canadian assurance in a given situation. Any possible dispute would have been one of international law. This would not have been possible had a merely political declaration been at stake. The second source of doubts is connected with the presence of a request. To some extent it is a question of the definition of a unilateral act. If a given author denies the name of ‘unilateral acts’ to declarations made by one state at the request of another, certainly the Canadian assurance is not such an act. In my opinion however there are no grounds for such a general exclusion, and the cited assurance is the best illustration of that fact. One can compare two acts. One of them is bilateral (a treaty on extradition). Another one (the assurance) is of a clearly different nature, and in my opinion should be called a unilateral act. Interesting examples of unilateral binding declarations are also presented by Ch. Eckart in his marvellous chapter on the history of promises.186 One can wonder if another example could be the above-mentioned declarations made by China, Russia and the usa on 5 April 1995 and by France and the 184 On the basis of: Canadian Yearbook of International Law, 1965, pp. 335–336. 185 Unfortunately, neither the day of the American request not the one of the Canadian reply is given. One can only assume that the exchange of statements took place in 1965. 186 Ch. Eckart, op. cit., pp. 80–175.

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uk on 6 April 1995. Each of them undertook ‘not to use nuclear weapons against non-nuclear-weapon States parties to the Treaty on the NonProliferation of Nuclear Weapons, with a number of conditions limiting the scope of the declarations.’187 Some of those declarations were made within and some outside the conference on disarmament. The special rapporteur cites differing assessments of these declarations. Some assessments spoke about the binding force of the declarations, while others denied that they had such a force. While I can only present my opinion on the basis of reports, I am in favour of treating such declarations as ones creating obligations of international law. Matters connected with weapons and weapons-tests have frequently been the object of unilateral declarations. In 1958 the usa offered ‘to withhold further testing of atomic and hydrogen weapons for 1-year period from the beginning of the negotiations, unless testing is continued by the Soviet Union.’ In the face of tests having been conducted by the ussr during that period, the usa declared that: ‘This action of the Soviet Union relieves the United States from any obligation under its offer to suspend nuclear weapons tests.’188 It is clear from the above that the United States perceived its act as a source of international obligations. It is impossible to treat it as a unilateral act however. Shortly thereafter, on 26 August 1959 the usa announced a voluntary suspension of atomic and hydrogen weapons tests until 31 December, 1959.189 One can wonder whether this statement was of an obligatory or only informative nature. While its obligatory nature seems doubtful, today it is easy to claim post factum that it was a binding unilateral promise. Such an interpretation finds support in the next declaration of the us President of 29 December 1959. It recalled that the usa’s voluntary moratorium would expire on 31 December 1959, then added that: ‘Although we consider ourselves free to resume nuclear weapons testing, we shall not resume nuclear weapons tests without announcing our intention in advance of any resumption.’190 This does not prejudge the answer to a more important question. What would the usa have been allowed to do had the Soviets undertaken nuclear tests. In other words – would the Americans have been allowed to take up such tests before the end of 1959? It is especially interesting whether the principle rebus sic stantibus could have been invoked. The short time period of the declaration’s 187 2. report , p. 5, footnote 10. 188 Documents on American Foreign Relations 1959, New York, 1960, p. 332. 189 Ibidem. 190 Ibidem, p. 333.

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force speaks against such a reference. The same must be said about the fact of the Soviets being interested in such tests and the Americans being aware of that interest. The very fact that the most important judgment of the icj concerning unilateral acts dealt with nuclear tests is sufficient to justify a more careful look at some other declarations to that end. In July 1992 the administration of President Bush (Sr.) issued a declaration that the United States would conduct no more than six tests per year during the next five years, and that these tests would serve to keep the capabilities of the existing weapons and not to develop or produce new ones.191 It is worth noting that the Congress played a hand in this declaration, having imposed a nine-month moratorium on such tests. In the period July 1993 – September 1996 a limited number of tests were to be conducted, and after September 1996 they were to be discontinued if no other state had engaged in such tests. A statute concerning these matters was signed by the us President on 2 October 1992.192 In addition, President Clinton in July 1993 declared a fifteen-month moratorium on such tests. All the same in the context of the Chinese plans to conduct nuclear tests, the us President warned that the American moratorium for nuclear tests would not apply in the case of another state conducting such tests,193 hence it is beyond any doubt that the author of the declaration regarded it as subject to revocation in case of certain new events. On 1 August 2004 in Warsaw, on the occasion of the 60th anniversary of the Warsaw Uprising, Chancellor Gerhardt Schroeder issued a historic statement. It read as follows: We, the Germans, have a full awareness of the facts regarding who generated the War and who its first victims were. That is why, today, there can no longer be any place for compensation claims from Germany that distort history. Property issues associated with World War ii are, for the two governments, not an issue in German-Polish relations. Neither the Federal Government nor other influential political forces in Germany will support such individual claims, should such claims be filed. The Federal Government will also take such a stance before the international tribunals.194 191 192 193 194

Chronique des faits internationaux, rgdip 1/94, p. 158. Chronique des faits internationaux, rgdip 1/94, pp. 158–159. Chronique des faits internationaux, rgdip 1/94, p. 137. Translation on the basis of: P. Saganek, Unilateral Acts in Polish-German Relations, Pol. Yb.IL 2009, pp. 87–88.

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This declaration became to object of my article and a reference may be made to it.195 Suffice to say that the binding force of the statement was not doubted and additionally confirmed by the states themselves. 11.11.3 International Promise or Information on Domestic Law? There are many times in which it is doubtful whether a given statement is a promise or merely information on domestic law. A good example concerns the declarations on privileges of the un in Switzerland. They were the object of several declarations. As the special rapporteur summed it up: In the course of negotiations aimed at settling the question of the legal status that Switzerland would grant to United Nations employees, Mr. Perréard, a member of the Council of State of the Canton of Geneva, stated that the Geneva authorities were “prepared to grant the United Nations the benefit of the same exemptions and the same privileges as had previously been granted to other international institutions.”196 Similar words were used in an official statement released to the press by the head of the Federal Political Department following a meeting with the Secretary-General of the United Nations, Trygve Lie. It stated that the Swiss authorities were “prepared to grant the United Nations and its employees treatment at least as favourable as the treatment granted any other international organization on Swiss territory.” This statement was subsequently reiterated by the Swiss Federal Council in its message to the Federal Assembly on 28 July 1955, thereby granting the United Nations the benefit of this “mostfavoured-organization clause.”197 The special rapporteur notes that: The issue arose again when the taxation authorities of the Canton of Geneva tried to compel a United Nations staff member to pay alimony, whereupon the United Nations Office at Geneva cited the above-­ mentioned statements, which were nothing more nor less than unilateral acts formulated by the Swiss Confederation.198 The official confirmation of that nature was a matter of great importance, with the special rapporteur noting that: 195 196 197 198

Ibidem, pp. 85–113. All citations on the basis of: 7. report , p. 9. All citations on the basis of: 7. report , p. 9. All citations on the basis of: 7. report , p. 9.

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This is the conclusion that emerges from the note issued by the Public International Law Directorate of the Swiss Federal Political Department on 2 April 1979, which acknowledged that the declaration made on 5 August 1946 had created an obligation. That declaration by the head of the Federal Political Department granted the United Nations the benefit of the most-favoured-organization clause.199 An element which could have given rise to doubts was the quite careful wording of the first two Swiss declarations. In addition the third one was not even addressed to other states, but was an internal legal opinion of one state organ addressed to another. The very words ‘we are prepared to (do this or that)’ do not as a rule give rise to new obligations. On the contrary the path from preparedness or readiness to the actual grant or performance of something may be long and uncertain. It is quite natural, almost intuitive, to expect another declaration which would create a new obligation in an unequivocal way, such as e.g. ‘we promise to exempt you from taxes’, ‘we shall not tax you’, ‘we exempt you from taxes’ or something similar. On the other hand the self-evaluation by Switzerland should be deemed of decisive importance. If the author-state says that it is bound by its own act, it is difficult not to agree. The possible revocability of such an act is another matter. Nothing suggests that such an act must be kept in place forever. A similar method was used by Switzerland with respect to privileges of the members of the International Law Commission. The Government of Switzerland transmitted the following decision in a communiqué addressed to the un Secretary-General: On the proposal from the Federal Political Department, the Federal Council decided on 9 May 1979 to accord, by analogy, to the members of the International Law Commission, for the duration of the Commission’s sessions in Geneva the privileges and immunities to which the Judges of the International Court of Justice are entitled while present in Switzerland. These are the privileges and immunities enjoyed by the heads of mission accredited to the international organizations in Geneva. The members of the International Law Commission will be entitled to a special red identity card.200 199 See: 7. report , p. 9. 200 Document published in: The Work of the International Law Commission, 5th edition, United Nations, p. 164. See also: Yearbook of the International Law Commission, 1979, vol. ii (Part Two), document A/34/10, paras. 11–13.

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A few elements speak in favour of the binding force of this declaration. The first is the fact of officially sending the document to the un Secretary General. This is persuasive proof that regulation was treated as element exceeding purely domestic law. Also the wording of the document allows one to attribute a binding character to it in the sphere of international law. Nonetheless some doubts could be raised. One could have the impression that such a document is a customary notification of domestic regulations. However, the document refers neither to a statute nor to a regulation, and in fact is rather a decision on the grant of privileges and immunities made unilaterally on the plane of international law. Such a document resembles a dispositive transaction. This means that it goes further than a mere obligation to grant something but is a transaction actually granting privileges and immunities. It might be noted that such a grant could have taken the form of a promise not to collect taxes, followed by the actual lack of their collection. The next declaration cited by the special rapporteur as a promise in international law is the ‘announcement by the Australian authorities on 8 December 1989 that Chinese citizens who had entered the country unlawfully following repressive measures in China the previous month would not be expelled.’201 The special rapporteur himself expresses some doubts about how to qualify this declaration. He writes that: This case is perhaps unclear in that, while an obligation was assumed vis-à-vis individuals who had left the People’s Republic of China, no such obligation was assumed vis-à-vis third States.202 In my opinion, however the special rapporteur contradicts himself. It is highly doubtful to treat an act giving rise to no new rights of subjects of international law, but only of individuals, as a transaction of international law. It is worth pointing out that Australia referred to its future course of conduct and seems to have ‘bound its hands’. It must have taken account of the fact that any breach of that declaration would have encountered strong criticism. It is less than clear however that any such breach would be a violation of international law, or that Australia really had the intention to incur an obligation erga omnes. That is why it is difficult to accept the thesis that the intention of Australia was to incur any obligation of international law. It would be probably easier to accept such a thesis if it were possible to unequivocally find a beneficiary of the promise which was a subject of international law. It is difficult to 201 7. report , pp. 10–11, footnote 30. 202 7. report , p. 11, footnote 30.

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treat the Chinese authorities as such a beneficiary, as they would rather insist on the surrender rather than granting asylum to the individuals identified. It should be recalled that the same problem was faced when discussing acts connected with asylum in Part 2 of the present work. The readiness to easily attribute legal force to many declarations of the above type may have to do with an ‘error of perspective’ of international lawyers. It’s natural for specialists of international law to look at any such statement from the perspective of that law. In reality the actual author of a given statement (a statesman) may be astonished if confronted with that perspective. In fact statements, speeches, promises and so on are the main tools of communication with people. Let us imagine that a statesman of a Eastern European state publicly declares to effect reprivatisation. After three years he says that no reprivatisation will take place. Let us imagine that another state counts on this reprivatisation benefiting its nationals as well. Can this state claim a breach of a unilateral promise and demand damages in the amount equal to…the expected reprivatisation sums? It would be rather absurd to engage in this kind of thinking. This is also an additional illustration of the importance attached to the intention of a state-author. Such case-studies illustrate how much care is necessary on the part of persons engaged in qualifications of that kind. Despite the remarks on the freedom of choice as to the form of unilateral declarations, in concreto the form can be vitally important. The closer is the involvement in or connection with diplomacy or international relations in general, the greater is the probability that a given declaration may be a promise of international law. In this sense the form can, but does not have to be, important. It must be treated as one of many elements to be taken into consideration. Another is the subject-matter of a statement. The greater the involvement in or association of a declaration with internal matters, the lesser should be the readiness to qualify it as a transaction of international law. Having said that, this does not change the former remarks that such transactions could take the form of declarations at press conferences and in national parliaments. The special rapporteur also invokes ‘the promise made to the United States by the Government of New Zealand in 1982, confirming that American nuclearpowered warships would be allowed to enter New Zealand ports.’203 One can wonder if this was really a promise. Even if so, it is difficult to believe that the withdrawal of it would really depend on any special circumstances, such as the principle rebus sic stantibus. It is easier to defend the view that it was rather a communiqué concerning the present situation, without 203 7. report , p. 11, footnote 32.

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incurring unequivocal obligations for the future. An alternative interpretation could suggest that it gave rise to an obligation, but could be modified if a reasonable time for reaction was left for the American ships. 11.11.4 International Promise or Information on Activities Taken? The special rapporteur also qualified as a promise (or at least an act giving rise to obligations of the legal nature): [T]he announcement by the Ministry of Foreign Affairs of Thailand concerning the establishment of a refuge area between the borders of Cambodia and Thailand (4 April 1980) to enable Cambodians fleeing from fighting, hunger and the pro-Vietnamese regime in Phnom Penh to find safety, food and medical assistance without having to enter Thailand.204 One can wonder seriously whether declarations of this type can be understood as promises. Read literally the one cited above could be treated as well as information on activities already undertaken or to be undertaken in the future. Once again this points out the critical importance of determining the intention of the state making a declaration. It is very probable that the intention of Thailand was the establishment of a refuge area at the border with Cambodia and the intention of the declaration was to bring this message to the public. Can it be easily assumed that it had the intention to incur an autonomous obligation in this field? It is difficult not to see that the Thai declaration could well have been motivated rather with the will to defend its own interests and avoid an uncontrolled inflow of refugees, rather than the will to give the aid to the Cambodians. All the more the wording chosen could have left doubts as to the stability of the refuge area and its accessibility. It is possible that one had to do with unilateral conduct rather than a unilateral act. The former may give benefits for third states but does not guarantee the preservation of that benefit. The special rapporteur also devotes attention to several declarations made in connection with natural disasters. He refers in particular to ‘the resolution adopted by the Spanish Council of Ministers on 13 November 1998 approving an initial allocation of 18,192 million pesetas as emergency assistance following the devastation caused by Hurricane Mitch.’205 What is the most important from the present perspective is whether any new obligation was put into place here. A few additional questions emerge. Is it really so that a state which says ‘we oblige ourselves to give such and such an amount’ 204 7. report , p. 10, see also: rgdip vol. 84, (1980), p. 1081. 205 7. report , p. 11, footnote 29.

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does more than a state which simply gives that amount. It would seem to be a paradox if a statement ‘we promise to give some money’ was treated as something more than a statement ‘we are giving some money’. The problem however is more complicated. Firstly if a state promises to give something and later gives it, it is easy to assume that an international obligation was incurred and fulfilled. In fact, the actual making of the payment or other performance makes the qualification of the previous declaration a somehow theoretical if not purely academic exercise. As was said several times, work on the group category of unilateral acts requires posing and answering some theoretical questions. This is why it must be pointed that there is no logical necessity for every declaration which was respected to have been a legal act. It is possible that a state made a political statement and kept its word. It is also possible that a state simply adopted a domestic act without incurring any obligations in the field of international law. A state which takes certain activities benefiting other states may relatively easily claim that it acts without any earlier obligation, ex gratia. What’s more, the same wording of a domestic document and a declaration addressed to another state may be interpreted in different ways. The former will be read in the light of domestic law, especially the budgetary regulations. They will decide what ‘approving an initial allocation’ of a given amount of money means. It may turn out to be less than expected. For example the budgetary regulations may provide for special procedures and their application may lead to no payment or payment of an amount less than ‘approved initially’. On the other hand, sometimes states are so precise that one can have no doubts as to the binding force of their declaration. It is worthwhile to cite a message released on 23 March 2003 by the Embassy of Ireland in Washington from the Irish Secretary of State. It was worded as follows: I have today announced that the Government is putting aside €5 million in humanitarian assistance for the alleviation of suffering of innocent Iraqi civilians. This funding will be distributed to our partner ngos and International Agencies who have the capacity to respond effectively to the current crisis.206 11.11.5 Declarations Connected with International Debts and Development Aid Similar problems may be connected with declarations associated with transactions involving disposal of rights. The special rapporteur invokes a declaration 206 http://www.foreignaffairs.gov.ie, press Section; 7. report , p. 11, footnote 29.

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of the President of the Spanish Government, who announced a three-year moratorium on debt repayments by the four countries that had been hit by hurricane Mitch.207 The nature of a moratorium is an interesting question. One can qualify it as a promise not to demand repayment. It could also be seen as a part waiver – of the right to demand payment during moratorium and possibly the payment of interest for that time. Examples of debt reduction go even further. The special rapporteur referred to the announcement of President Chirac who, during the course of a visit to Central America, announced that ‘France would write off a total of 739 million francs in bilateral debt that had been incurred by Guatemala, Honduras, Nicaragua, and El Salvador for development aid, inasmuch as those countries had been devastated by Hurricane Mitch, and also promised to negotiate a reduction in their commercial debt at the next meeting of the Paris Club.’208 Another document cited by the special rapporteur was the following declaration made on 4 April 2000 by the Spanish Head of Government: I should also like to inform you that I have announced that $200 million of official development assistance to the main Sub-Saharan African countries is being written off. That is to say, Spain is announcing the cancellation of $200 million worth of sub-Saharan African countries’ indebtedness to our country.’209 What deserves attention is the lack of a precise indication of specific states and the amounts of debt reduction due to each of them. While the statement of Chirac named the states interested and each of them could expect a reduction, it is difficult to say the same about the Spanish declaration. Also in this context an inevitable question arises: Was the intention of France and Spain respectively to incur a legal obligation of international law or simply to transmit to the public a message on internal measures or generous activities beneficial for other states? As mentioned, it is difficult to speak about obligations in a specific and determined amount vis-à-vis a concrete state. On the other hand, it would be also difficult for the authors of such declarations to say that their scope of freedom was unlimited. A situation whereby France would demand back the previous amounts from all four mentioned states of

207 R. E. D. I. , vol. 51 (1999), p. 497, 7. report , p. 11, footnote 29. 208 7. report , p. 12, footnote 36, see: rgdip, vol. 103 (1999) p. 195. 209 7. report , pp. 12–13, footnote 36.

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Central America would seem to be contrary to international law. The same must be said about the Spanish declaration. The next area distinguished by the special rapporteur was connected with development aid. He cites the following examples: – Royal Executive Order No. 1/2001 of 19 January 2001 (published in the 20 January 2001 issue of B. O. E.) approving a loan guarantee to the Argentine Republic and giving the Council of Ministers broader authority to approve operations to be financed from the Development Assistance Fund established by Spain as a tool aimed at helping Argentina cope with its economic crisis;210 – the statement issued on 31 October 2002 by the Japanese Ministry of Foreign Affairs concerning the assistance that Japan was about to make available to Palestine for the implementation of legislative and other reforms;211 – the Japanese decision to extend a new assistance package of more than a total of about $136 million (about 16,700 million yen) utilizing Grant Aid Cooperation and other forms of assistance to support the Transitional Administration of Afghanistan, headed by President Hamid Karzai, and to promote the peace and reconstruction process in the country.212 A few details concerning the latter can be of interest. Japan announced at the International Conference on Reconstruction Assistance to Afghanistan (Tokyo Conference) that it would provide up to $500 million over two and a half years, of which up to $250 million would be provided in the first year. With this package, Japan’s assistance for recovery and reconstruction amounted to about $282 million, thereby attaining the commitment for the first year that Japan announced at the Tokyo Conference. Combining humanitarian, recovery, and reconstruction assistance, the total since the terrorist attacks in September 2001 amounted to about $375 million. A lot suggests that this statement was treated as giving rise to an obligation. Perhaps the most persuasive proof is that such declarations are treated very seriously by their authors. In conclusion, it is difficult not to see how cumbersome and complicated it can be to qualify the multitude of statements made in practice. This may be seen as a ‘cold shower’ for those who maintain a cheerful attitude toward the theory of unilateral promises. This however does not change the fact that unilateral promises may be the basis of rights and obligations of international law. 210 7. report , p. 13, footnote 37. 211 7. report , p. 13, footnote 37. 212 Ibidem.

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Legal Problems of Recognition 12.1

Introductory Remarks

As has already been noted, recognition is present in the lists of unilateral acts suggested by multiple authors.1 All the same, in my opinion a critical analysis is required to examine whether recognition is really a legal transaction, and analogously whether it is a type of unilateral act. The attempt to answer these two questions is the aim of the present chapter as well as the next two. It must be noted at the outset that the recognition of states, governments, belligerency and insurgents has become the object of a truly immense literature. These will be referred to as classical objects of recognition. The latter notion may be extended to recognition of a nation fighting for independence or recognition of territorial changes.2 The vastness of the legal literature on them reflects the large number of important legal questions. What’s more, there are several other questions which should be answered but are almost never asked. It should also be noted at the outset that the discussions on various aspects (objects, applications etc.) of recognition do not produce a holistic picture of recognition as such. E. Suy referred to this problem by making the following cynical observations: [D]espite a huge number of works on recognition, the latter remains a great secret (la grande inconnu) of international law; 1 Vide: Chapter 4. In fact recognition is often just mentioned in a part or chapter devoted to unilateral acts, but discussed in some other places. This element has to do with the systematic arrangement of a given book and the necessity to decide on the proportions devoted to several elements. So for example W. Levi writes, that recognition is a unilateral transaction dealt with in his book in connection with new states and new governments, but it can be applied to many other situations. See: W. Levi, Contemporary International Law. A Concise Introduction, Boulder, San Francisco, Oxford, 1991, p. 199. Such a way of presentation can be found in many publications, both earlier and later. See e.g: L. Oppenheim, International Law. A Treatise. Vol. i – Peace, Third edition edited by R.F. Roxburgh, London, New York, Bombay, Calcutta, Madras 1920, (cited as Oppenheim 3), pp. 648–651; W. Góralczyk, Prawo międzynarodowe publiczne in zarysie, Warszawa 1989, pp. 169–170, and many others. 2 F. Pfluger, op. cit., p. 153 et. seq. He calls the recognition of states, governments, belligerency, insurgents and nations fighting for liberation as recognition par excellence. The latter notion was taken from Kunz.

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and: [T]he true nature of recognition was deviated from ( faussée) by the authors of works devoted to the main aspects of the application of recognition. Such authors rather try to build a system based on political considerations than to discover the true nature of an act of recognition.3 It seems apt to ask whether, if such deviation from the true nature of recognition really takes place, it is not due to other reasons than the fact of recognition being connected with politics. In other words, is it so that those different ‘recognitions’ (of states, governments, territorial changes and so on) are really components (examples, designates) of one great transaction of recognition (recognition in general)? This is probably what is on the mind of authors writing on unilateral acts of states. It is thus worthwhile to look at how this topic was tackled by the authors of monographs of unilateral acts. 12.2

Recognition in Monographs of Unilateral Acts

It is obvious that the framework, i.e. of discussing recognition as a chapter or part of a work on unilateral acts of states, imposes important limitations with respect to the space to be devoted to the topic. An author of a monograph on recognition may devote all his or her attention to this topic. On the other hand, an author of a monograph of unilateral acts must treat it as an important element of the study of unilateral acts, but not necessarily even the most important one. It is just one of several discussed in a given work. What’s more, a situation in which an author writing on unilateral acts would favour one type of act over another could give rise to suspicion and/or dissatisfaction. What remains for such an author is either to limit the scope of his or her interest and eliminate entire areas and problems connected with recognition from his/her analysis, or adopt a more general perspective. The second approach was adopted by E. Suy in his chapter devoted to recognition. He concentrated his attention on three topics: unilateral act of recognition as such (that is as a unilateral declaration of will), the object of an act of 3 Both citations are taken from: E. Suy, Les actes juridiques unilatéraux en droit international public, Paris 1962, p. 189. One can only regret that E. Suy does not identify such authors. J.-P. Jacqué writes that recognition is an act which is the most intensively studied and the least known (le plus étudié et le mieux connu). See: J.-P. Jacqué, Eléments pour la théorie de l’acte juridique en droit international public, Paris 1972, p. 337.

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recognition, and the effects of recognition.4 Although this trio of topics in fact covers a wide spectrum, Suy decided to adopt a relatively general perspective, especially with respect to the objects of recognition. This attitude was explained after the above-cited critical evaluation of usefulness of the works devoted to recognition for grasping its essence. He wrote that ‘…I think that it is impossible to construct an acceptable general theory of recognition on the basis of these applications (sur ces applications).’5 By ‘these applications’ he clearly meant the different objects of recognition, i.e. recognition of a state, a government, and so on. This is why he declared that a general definition of recognition ‘remains isolated and has no relationship to definitions of the recognition of a state and so on.’6 The latter statement gives rise to very serious doubts. If it is true that it is impossible to build a theory which would be able to embrace these examples (types, subcategories or simply applications) of recognition, one of two answers must be true. Either the recognition of a state, government etc. are not examples (types, subcategories or simply applications) of the legal institution of recognition, or there is no such legal institution of recognition whatever. As to the first possibility, I feel obliged to say that I cannot cite any author who would attempt to deny the character of recognition to the recognition of a state, of a government and so on. Such a venture would seem absurd. If there is a legal transaction of recognition in international law, then the recognition of a state, of a government, of belligerency etc. are examples of that institution. That is why it makes no sense to assume that there is a legal institution of recognition, but the recognition of classical objects has nothing to do with such a legal institution. At the same time one cannot exclude that further analyses may reveal that the recognition of one object has a slightly or completely different nature than the recognition of another one. One cannot however make this assumption a priori. As to the second option, i.e. that there is no such legal institution of recognition, were I to adopt this thesis I would be forced to end my discussion on recognition already in this place. If there is no such institution, all the more it cannot be an act (transaction) of international law or a unilateral act (transaction) of international law. It suffices to point out that E. Suy himself opts neither for the first nor for the second answer. This suggests that his statement on the lack of usefulness of conclusions on the recognition of a state, government etc. for the definition of recognition (recognition in general) clearly goes too 4 E. Suy, op. cit., p. 191. 5 E. Suy, op. cit., p. 189. 6 E. Suy, op. cit., p. 190.

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far. In my opinion it was meant to justify, or at least explain, the scarce references to conclusions about recognition formulated in the context of actual recognitions of a state, government etc. If this is so, then two observations are apt. Firstly, the aim itself is not worth defence. Secondly, the means applied to defend it are not proportional to the goal. Certainly an author dealing with the recognition of a state or of insurgents may work out a more sophisticated definition of such recognition. He may point to elements which are present only in that object of recognition, but not in others.7 The same applies with respect to conditions, legal effects, revocability etc. But does this lead to the conclusion that such a definition and other conclusions are not important from the perspective of the present work? I would say that on the contrary; it is only within a more general perspective of a work on recognition or (to a smaller extent) of a work on unilateral acts like the present publication that one can compare different objects of recognition and confront them with the general definition thereof. It is worthwhile to note that F. Pfluger adopted a different attitude in this respect. After discussions on recognition in general he inserted subchapters devoted to recognition of a state, of government, of belligerency, of insurgents, and of a nation fighting for freedom.8 That part of his discussions was preceded by a remark that, inasmuch as these matters had been the object of many works, he would concentrate on their unilateral character.9 In my opinion Pluger’s approach seems more proper. One cannot however lose sight of the obvious fact that any attempt to summarize tens of thousands of pages of works written on recognition and to mention thousands of acts of recognition would be ruinous for the structure of any work on unilateral acts of states. My limitations in this regard become clear if it is kept in mind that one of the recent ‘great’ monographs on recognition10 took the shape of a 700-page book, while such topics as recognition of state as well as recognition of government clearly deserve separate books. Owing to space limitations I cannot afford to dwell on all aspects of such fascinating topics as the historical beginnings of recognition, the legal effects, forms and concrete examples of recognition of states, governments, belligerency or insurgents, as well as the 7

8 9 10

For example Ch. Fenwick is very critical of authors, who discuss the recognition of states and the recognition of governments in common, Ch. Fenwick, International Law, New York, London 1948, p. 157. In his opinion they should be studied separately. F. Pfluger, Die einseitigen Rechtsgeschäfte im Völkerrecht, Zürich 1936, p. 153ff. F. Pfluger, op. cit., p. 153. J. Verhoeven, La reconnaissance internationale dans la pratique contemporaine, Paris 1975.

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prohibition of recognition of illegal situations – in general or as applied to such cases as illegal annexation by Russia of the Crimea in 2014.11 All the same one cannot refrain from attempting to grasp the essence of recognition. It would be very sad if the only message of this book with respect to recognition would be a confirmation that it may be unilateral. It would be the best proof of the uselessness of the very discussion on unilateral acts of states. If declaration of war or request for agrément were discussed in some detail, all the more the analysis of recognition must be undertaken as well. It will be a longer analysis because the essence of recognition both needs and deserves it. 12.3

Several Ways of Understanding the Term “Recognition” in the International Case-Law

12.3.1 Introductory Remarks The aim of this detailed subchapter is to identify the largest possible number of contexts in which the notion ‘recognition’ emerges. To this end I decided to examine the judgments and advisory opinions of the pcij and the icj as well as (to a limited extent) arbitral rulings. Here I do not eliminate such uses of the terms ‘recognition’ and ‘recognize’, which other lawyers would be ready to ignore, overlook (a really ‘scientific’ attitude!) or disqualify as not pertinent for semantic reasons. Such an evaluation is possible, but makes sense only after and not before the analysis. This examination seems useful if one takes into consideration the fact that no other author (at least known to me) has made such an experiment. Two assumptions underlie this venture. The first one is that if a state declares that it recognizes something, then recognition is at stake. Such a declaration is not a precondition of recognition. It may take place without a declaration. On the other hand, the latter is sufficient for the emergence of recognition. What’s more, such declarations are relatively tangible elements. In this respect they may be opposed to sophisticated, abstract concepts or definitions of recognition. The latter are sometimes referred to by authors who a few pages further behave as if they…did not remember their own definitions.12 If a declaration may be such a useful point of departure, one must be prepared for situations which may seem absurd. Let us imagine that on 1 October 2011 Poland declares that it recognizes the usa as a state. Can it be said that no 11 12

Though that was my initial idea when starting the present work. Vide: infra.

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recognition was given? In my opinion we cannot make such a claim. Manifestly it was given. It is not the task of lawyers to argue with objective facts. Of course, a lawyer has a lot to add to such a situation. First of all he can say that the 2011 recognition is not what is usually meant by ‘recognition of a state’. He can add that Poland is younger than the usa and it is the latter who recognized the former. He can definitely add that the term ‘recognition of a state’ is a kind of abbreviation – in fact what is meant is the first recognition of a new state by another state – usually (though not compulsorily) an older one. The lawyer could say that the 2011 recognition is devoid of legal effects, unless they emerge due to intertemporal rules.13 Last but not least he can say that such ‘recognition’ is not a legal transaction or even that it is not ‘recognition’ in the meaning adopted in his work. What he cannot claim is that 2011 declaration is not ­recognition in general (that is taking into consideration all possible meanings of the term). I can easily imagine some disgust or irritation at this kind of reasoning. It seems to reduce the topic of recognition to ad absurdum. This is not necessarily so however. In fact lawyers seem to believe that recognition is a term introduced into life by and through international law only, while the truth is that the contrary may be true. Recognition is a notion understandable on common sense grounds. It has, or at least must have, some meaning, though its precise description in concreto may be very difficult if at all possible. The context of unilateral acts of states has some drawbacks for the discussion of recognition. It also has, however, some added value. One of these additional merits is the possibility to compare recognition with other acts. In this context comparisons with waiver are of value. Can one say, for example, that every example of waiver by a state is really an international transaction? Let us imagine that Poland waives its rights to Greenland or Socotra? Is this a legal transaction? What rights are terminated by such waiver? There is no doubt that no rights are actually terminated, so at least this type of waiver is not a legal transaction. Why should one assume that such a similar example is not possible with respect to recognition? This question is especially pressing in situations of the emergence of a new type or a new object of recognition. We could go back to the moment in which 13

What is meant here is a situation analogous to the one from the famous Nicaragua case. The exclusion of the jurisdiction of the icj as regards the prohibition of the use of force stemming from the un Charter happened not no apply to the analogous prohibition as a part of customary law. In other words, it may turn out that the first recognition is excluded from the scope of jurisdiction of a given court or arbitrator, but its conformations (repetitions or simply continuation) is not.

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the first instance of recognition of insurgents took place. The same reference can be made to a situation in which recognition of a nation or of an army is granted for the first time. Lawyers ask questions about the legal effects of such recognition. The question is perfect, but it may be premature. It should be preceded by another one. Namely, one should ask if such instances of recognition must give rise to legal effects? What is really important here is a more general topic. If there are some instances of recognition which do not produce legal effects, this means that one cannot insert the element of legal effects into the definition of recognition. I do not wish to assume that there must be instances of recognition which do not give rise to legal effects. I simply do not wish to assume that every instance must give rise to them. The second assumption is that one cannot a priori disqualify any particular references to ‘recognition’ or ‘recognizing’. I am fully aware of the paradoxes connected with this statement. Why should ‘recognition of foreign judgments’ be at the centre of my interest and the enforcement of these judgments not? Why should ‘recognition of companies’ be of interest here and ‘registration of foreign branches’ not? Certainly, the method adopted here is risky. However, it is still more risky to disqualify other kinds (objects) of recognition before analysing them. Below, the statements of courts or arbitrators referring to recognition have been divided into different groups. They should not be treated, however, as exhaustive and a full classification. This list may be supplemented with whatever statement of a state, an international organization, arbitrator or an international court in which words ‘recognize’ or ‘recognition’ emerge. 12.3.2 Recognition Regulated by Domestic Law In many cases it is difficult to situate ‘recognition’ otherwise than in the framework of domestic law. The term ‘recognition’ was present in the British mandate with respect to Palestine. According to its Art. 4: An appropriate Jewish agency shall be recognised as a public body for the purpose of advising and co-operating with the Administration of Palestine in such economic, social and other matters as may affect the establishment of the Jewish national home and the interests of the Jewish population in Palestine, and, subject always to the control of the Administration, to assist and take part in the development of the country. “The Zionist organisation…shall be recognised as such agency.” (…).14 14

pcij Publications, Series A, No 2, p. 21.

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Also the pcij used the term ‘recognition’ in its advisory opinion no 17 concerning the Greek-Bulgarian communities. It ruled as follows: The question whether, according to local law, a community was or was not recognized as a juridical person, may be of some importance from the point of view of the form which its possession of property took. But the situation of fact is not thereby altered and there is nothing in the provisions of the Convention respecting the property “belonging to communities” to indicate that only those communities which have been accorded special legal recognition by the local legislation are meant.15 In its advisory opinion No 15 concerning the jurisdiction of the Courts of Danzig16 the pcij several times used the term ‘recognition’, with reference to different matters. They were: – a duty of the Polish Railways Administration to recognize and execute judgments given by the Danzig Courts on pecuniary claims based on the Beamtenabkommen, in conformity with the first part of the Decision of April 8th, 1927;17 – Poland’s obligation to recognize the jurisdiction of the Danzig tribunals for pecuniary claims against the Polish Railway Administration:18 – the Polish obligation of recognition and execution of judgments given by Danzig Courts.19 The pcij summed up this last element in the following words: Judgments which are given within the limits of jurisdiction thus determined and which are not in conflict with other rules of law internationally binding upon Danzig in her relations with Poland are lawful, and must be recognized by the latter. The recognition and execution of judgments given by Danzig Courts is the corollary of the recognition of their jurisdiction by Poland in accordance with General Haking’s Decision.20

15 16 17 18 19 20

pcij Publications, Series B, No 17, p. 22. See also pp. 22–25 and pp. 28–29. pcij Publications, Series B, No 15, pp. 23–25. Ibidem, p. 23. Ibidem, p. 24. Ibidem, p. 25. Ibidem, p. 25.

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12.3.3 Recognition as Respecting Something in Concreto In many cases international courts use the term ‘recognition’ in the meaning of respecting somebody’s rights or ‘treating something in a given way’. For example, in the case of the SS “Wimbledon” the court used the term recognition with respect to Germany recognizing the right of a ship to pass through the Kiel Canal.21 In this context ‘recognition’ meant treatment of a ship in accordance with an international agreement. Also in the case of the Mavrommatis concession the pcij spoke several times about the uk denying recognition of the concessions belonging to Mavrommatis.22 In the advisory opinion No 6 of the pcij on certain questions relating to settlers of German origin in the territory ceded by Germany to Poland, several references were made to the duty of Poland to recognize the several rights of the settlers of German origin.23 This terminology was also used by the Polish government. It spoke about the non-recognition of title to land. The Court did not seem to be in any way embarrassed by the multiplicity and diversity of elements referred to as ‘recognition’. The pcij limited itself to reporting the wording used by Poland and assessing the Polish behaviour as to whether it was in conformity with the Minorities Treaty. In fact, the ‘recognition of title’ would have meant an abstention from putting it into question.24 Also the advisory opinion No 7 on the acquisition of Polish nationality is of importance here. During the proceedings preceding the issuance of the opinion, Poland argued that it was allowed ‘not to recognise these persons as Polish nationals, if their parents were not habitually resident in the above-mentioned territory both on the date of birth of the person concerned and on the date of the entry into force of the above-mentioned Treaty, namely January 10th 1920. It is consequently maintained that these persons cannot legally enjoy the guarantees granted by the Treaty.’25 The pcij did not agree with that interpretation. As regards the use of the term ‘recognition’, however, the Court itself neither used the term nor referred to the Polish way of using it. This topic seems not to have attracted the Court’s attention in any way. 21 22 23 24

25

pcij Publications, Series A, No 1, p. 31. pcij Publications, Series A, No 2, p. 7. pcij Publications, Series B, No 6, p. 35, 37 i 41. See page 35 on which the pcij ruled as follows: ‘This recognition of title implies the admission that, after Auflassung, legal ownership was vested in the holder of the Rentengut, so that the ownership of Prussia having ceased to exist, such ownership could not pass to Poland under Article 256 of the Peace Treaty.’ pcij Publications, Series B, No 7, p. 7.

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On the other hand in the advisory opinion No 10 on exchange of Greek and Turkish populations the pcij found that ‘if a person is recognized to be exempt from exchange under the terms of the Convention of 1923, he clearly remains subject to Turkish law in regard to all matters save those connected with the question of liability to exchange.’26 This way of understanding is present also in international agreements. For example Art. 8(3) of the Montreal Convention reads that: Contracting States which do not make extradition conditional on the existence of a treaty shall recognize the offences [regulated in the Convention] as extraditable offences between themselves subject to the conditions provided by the law of the requested State.27 As is visible, in this context the term ‘recognition’ may refer to the recognition of domestic law. One can seriously wonder whether the grant of a given kind of treatment in concreto may give rise to a more general recognition of a given matter – be it strictly legal or a question of fact. In other words, is it so that by making an individual decision in a given matter state organs create a precedent that is determine somebody’s right or status? This is another question that cannot be answered with one general response – be it positive or negative. 12.3.4 Recognition by a Court Perhaps the most frequent context, and the least promising from the perspective of this book, is the recognition of something by the court itself. Both the icj and the pcij phrased numerous judgments that way, although it should be noted that the parties also did not hesitate to ask the court to ‘recognize’ various facts and rights. For example, in the case concerning the Right of Passage over Indian Territory, Portugal requested the icj ‘[t]o recognize and declare that Portugal is the holder or beneficiary of a right of passage between its territory of Damão (littoral Damgo) and its enclaved territories of Dadra and Nagar-Aveli, and between each of the latter (…).’28 The second part of the application asked the Court ‘[t]o recognize and declare that India has prevented and continues to prevent the exercise of the 26 27 28

pcij Publications, Series B, No 10, p. 21. Convention for the suppression of unlawful acts against the safety of civil aviation, signed at Montreal, on 23 September 1971 (Montreal convention 1971). Case concerning Right of Passage over Indian Territory (Merits), Judgment of 12 April 1960: i.c.j. Reports 1960, p. 9.

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right in question, thus committing an offence to the detriment of Portuguese sovereignty over the enclaves of Dadra and Nagar-Aveli and violating its international obligations deriving from the above-mentioned sources and from any others, particularly treaties, which may be applicable.’29 Interestingly enough, the phrase ‘recognize and declare’ was replaced with ‘adjudge and declare’ in the Portuguese memorial.30 It would be idealistic to search for any deeper justification for this, as in the submissions of Portugal one can read that: ‘Whereas the claim of the Portuguese Government is designed to secure: I. Recognition of the right possessed by Portugal to pass over Indian territory to the extent necessary for the exercise of its sovereignty over the enclaves of Dadra and Nagar-Aveli; 2. A finding of India’s failure to respect the obligation binding upon it as the result of that right.’31 In its advisory opinion No 11 concerning the Polish postal service in Danzig the pcij had to decide whether the letter of the High Commissioner of 6 January 1923 was a decision or an authentic interpretation of a decision. The Court excluded the first option and with respect to the second held as follows: Now, a so-called authentic interpretation of a judicial decision is in effect a new decision; therefore, the Court is unable to recognize that the letter of the High Commissioner of January 6th, 1923 constituted an interpretation of this kind, as understood by Danzig. It merely expressed the personal opinion of General Haking, an opinion which, as the Court has already stated, cannot alter the proper meaning of a decision.32 In this sense the term ‘recognition’ could be treated as a synonymous to ‘acceptance’ or ‘understanding of something in a given way’. In the case of the free zones of the Upper Savoy and the district of Gex, the pcij ruled (with reference to the Court itself) that ‘the Court has recognized that the stipulations which created the free zones conferred on Switzerland a right to these zones, and that, as between France and Switzerland, Article 435, paragraph 2, of the Treaty of Versailles with its Annexes has not abrogated the stipulations in question and is not intended necessarily to lead to their abrogation.’33 29 30 31 32 33

Ibidem, p. 9. Right of passage, p. 10. Right of passage, p. 10. pcij Publications, Series B, No 11, p. 31. pcij Publications, Series A/B, No 46, (hereafter cited as free zones judgment), p. 151.

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In the same case the pcij issued an order which stated that ‘the Court, after deliberation, has recognized that the Court as then constituted must continue to deal with the case of the free zones.’34 In the lighthouses case between France and Greece the pcij ruled that: ‘In regard to the validity of the concessionary contract, that question has to be considered from the standpoint of Ottoman law; and from that standpoint the Court has already recognized that the ratification of the decree law empowering the Government to enter into the contract was not necessary to render the latter valid.’35 In the Mavrommatis Palestine concessions case the pcij, again with reference to itself, stated that: ‘It recognises, in fact, that before a dispute can be made the subject of an action at law, its subject matter should have been clearly defined by means of diplomatic negotiations.’36 Such ‘recognition’ means simply taking something into consideration and no more. In the advisory opinion on the Reparation for injuries suffered in the service of the United Nations, the icj defined the notion of an international personality. It found that: ‘This is no doubt a doctrinal expression, which has sometimes given rise to controversy. But it will be used here to mean that if the Organization is recognized as having that personality, it is an entity capable of availing itself of obligations incumbent upon its Members.’37 The Court then replied to itself: ‘Thus, the rule of the nationality of claims affords no reason against recognizing that the Organization has the right to bring a claim for the damage referred to in Question 1 (b). On the contrary, the principle underlying this rule leads to the recognition of this capacity as belonging to the Organization, when the Organization invokes, as the ground of its claim, a breach of an obligation towards itself. (…)’38 A little bit different sense of the term ‘recognition’ can be found in another passage of the advisory opinion on the Polish postal service in Danzig, which reads: ‘It has also been urged that recognition of Poland’s claims would result in a serious loss to the revenue of the Free City of Danzig.’39 Here recognition means agreeing with somebody or something or accepting somebody’s arguments. 34 35 36 37 38 39

Free zones judgment, p. 110. pcij Publications, Series A/B, No 62, p. 26. pcij Publications, Series A, No 2, p. 15. Reparation for injuries suffered in the service of the United Nations, Advisory Opinion: i.c.j. Reports 1949, p. 178. Ibidem, p. 182. pcij Publications, Series B, No 11, p. 40.

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Similarly, the judgment in the case on fisheries jurisdiction contains a statement of the icj that ‘due recognition must be given to the rights of both Parties.’40 This could be understood as ‘taking into consideration’ rather than ‘accepting as granted’. Recognition of something by an international court clearly is not a unilateral act of a state. It is rather the result of the process of thinking and interpretation of the law (including its general principles). The word ‘recognize’ used in this context could be replaced with words ‘establish’, ‘determine’. One can still wonder however if a state cannot itself effect such a kind of recognition. This would mean the right to change its mind in the future. While I can acknowledge important reasons to doubt the complete freedom of states to change their mind in areas regulated by international law, all the same I would be ready to leave some scope for states to modify their views. However they must be careful when formulating their views and must take into account the restrictive attitude of international courts towards a state changing its mind. 12.3.5 Recognition in International Agreements or Resolutions It may happen that a given document could be described as recognizing something. For example, in the advisory opinion on the question of Jaworzina (on the Polish-Czechoslovakian frontier) the pcij noted that the resolution of the Supreme Council of the League of Nations ‘declares the necessity for a speedy settlement of the dispute and recognizes that it has been shown to be impossible to obtain the desired result, either by means of a plebiscite or by recourse to arbitration.’41 Such ‘recognition’ is prima facie very similar to the one discussed in the preceding subchapter. The only difference concerns the recognizing subject. In the preceding subchapter it was a court, while in the present one it is an organ of an international organization. There is no doubt that it must be treated as a recognition, but the question is whether it must constitute an obligation. I cannot give a general positive answer to that question. Another illustration could be found in the arguments in the proceedings leading to the pcij advisory opinion on the access to or anchorage in the port of Danzig of Polish war vessels. Poland argued that the resolution of the Council of the League of Nations of 22 June 1921 meant that the Council ‘recognized that the Polish Government was specially fitted to be entrusted with the

40 41

i.c.j. Reports 1974, p. 31. pcij Publications, Series B, No 8, p. 24.

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duty of ensuring, if circumstances required it, the defence of Danzig.’42 The Polish government spoke of ‘the Council’s acceptance and recognition of (…) principles’ connected with access and anchorage of the Polish war vessels in Gdansk.43 The pcij did not accept the Polish argument and ruled as follows: The result is that neither the Treaty of Versailles nor the Convention of Paris, either by the terms of the provisions they contain, or by necessary implication, confer on Poland the right she is now claiming.44 The term ‘recognition’ was used also in the un ga resolution of 18 April 1946.45 In Para. 3 it declared as follows: [the un ga] ‘Recognizes that, on the termination of the League’s existence, its functions with respect to the mandated territories will come to an end, but notes that Chapters 11, 12 and 13 of the Charter of the United Nations embody principles corresponding to those declared in Article 22 of the Covenant of the League.’46 On the other hand in the case of Fisheries Jurisdiction (United Kingdom v. Iceland),47 the icj referred to the resolution adopted at the 1958 Conference concerning the situation of countries or territories whose people are overwhelmingly dependent upon coastal fisheries for their livelihood or economic development. This resolution after ‘recognizing that such situations call for exceptional measures befitting particular needs’, recommended that: (…) where, for the purpose of conservation, it becomes necessary to limit the total catch of a stock or stocks of fish in an area of the high seas adjacent to the territorial sea of a coastal State, any other States fishing in that area should collaborate with the coastal State to secure just treatment of such situation, by establishing agreed measures which shall recognize any preferential requirements of the coastal State resulting from its dependence upon the fishery concerned while having regard to the interests of the other States.48 42 43 44 45 46 47 48

pcij Publications, Series A/B, No 43, p. 144. pcij Publications, Series A/B, No 43, p. 144. Ibidem, p. 145, see also p. 147. South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment of 21 December 1962: i.c.j. Report; 1962, p. 319. i.c.j. Reports 1962, p. 340. Fisheries Jurisdiction (United Kingdom v. Iceland), Merits, Judgment, i.c.j. Reports 1974, p. 3. Both citations on the basis of: i.c.j. Reports 1974, p. 25.

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Does such ‘recognition’ have the same legal nature as the recognition of Kosovo by Poland? Much suggests that their legal nature is different. ‘Recognition of the situation of dependence of states upon fishery’ means simply acknowledging it. Drawing more practical conclusions from such general ideas may lead to disappointment on the part of the interested subjects. A slightly different character may be attributed to treaties using the term ‘recognition’. For example, Article i of the Minorities Treaty provided as follows: Poland undertakes that the stipulations contained in Articles 2 to 8 shall be recognized as “fundamental laws” and that no law, regulation or official action shall conflict or interfere with or prevail over them.49 The advisory opinion No 15 concerning the jurisdiction of courts in Gdansk50 referred to the decisions of General Haking, the High Commissioner of the League of Nations concerning railways. The pcij referred to them as follows: The Decisions in question, against which the two Governments, by an “arrangement” made at Geneva on September 23rd, 1921, undertook not to appeal, were recognized in a memorandum (Niederschrift) signed on December 1st, 1921 by the representatives of the Free City and of the Polish State Railways Administration, as entering into full effect on that date, together with the Arrangement of September 23rd, 1921 and the Agreement of October 22nd of that year.51 Such ‘recognition’ is simply a decision concerning the date of the entry into force of given acts. If the term ‘recognition’ was preferred in this context the reason could have been the fact that the respective decisions were binding. That is why the parties did not create new obligations ex nihilo. Another important passage comes from the judgment in the case of the S.S. Wimbledon, where the court found that: ‘The right of the Empire to defend herself against her enemies by refusing to allow their vessels to pass through the canal is therefore proclaimed and recognised’ by the Treaty of Versailles.52 49

50

51 52

Advisory opinion given by the Court on September 10th 1923 on certain questions relating to settlers of German origin in the territory ceded by Germany to Poland, pcij Publications, Series B, No 6, p. 20. Jurisdiction of the courts of Danzig (pecuniary claims of Danzig railway officials who have passed into the Polish service, against the Polish railways administration), pcij Publications, Series B, No 15. pcij Publications, Series B, No 15, p. 10, see also na p. 21. The p. S. “Wimbledon”. pcij Publications, Series A, No 1, p. 23.

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In fact this meant that an international agreement (the Treaty of Versailles) did not oblige Germany to allow passage through the Kiel Canal of ships of enemy states. Such recognition may cover not only matters expressis verbis mentioned in a treaty, but also assumed by it as present or existing. In the advisory opinion No 17 concerning the Greco-Bulgarian communities the pcij analysed the Greco-Bulgarian convention of the exchange of populations. The interesting part from the perspective of this work is the following: The existence of communities is a question of fact; it is not a question of law. In actual fact the communities ordinarily possessed property. The Convention itself recognizes this by referring expressly to the property, movable or immovable, “belonging to communities”. It is this situation of fact which the Convention has in mind.53 In the South West Africa Cases the icj utilised the term ‘recognition’ when describing the system of mandates. The respective fragment is as follows: The essential principles of the Mandates System consist chiefly in the recognition of certain rights of the peoples of the underdeveloped territories; the establishment of a regime of tutelage for each of such peoples to be exercised by an advanced nation as a "Mandatory" "on behalf of the League of Nations"; and the recognition of "a sacred trust of civilisation" laid upon the League as an organized international community and upon its Member States. This system is dedicated to the avowed object of promoting the wellbeing and development of the peoples concerned and is fortified by setting up safeguards for the protection of their rights.54 Another important judgment concerned the rights of nationals of the United States of America in Morocco.55 There the Court found that: It is clear that, in 1937, France (representing Morocco) and Great Britain were proceeding upon the assumption that certain of the provisions of the Act of Algeciras recognized a limited consular jurisdiction for the purposes of the judicial proceedings therein described.56 53 54 55 56

The Greco-Bulgarian Communities, pcij Publications, Series B, No 17, p. 22. i.c.j. Reports 1962, p. 329. Case concerning rights of nationals of the United States of America in Morocco, Judgment of August 27th, 1952, i.c.j. Reports 1952, p. 176. i.c.j. Reports 1952, p. 199.

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In the same judgment the Court stated: The fourth contention of the United States is that the extensive consular jurisdiction as it existed in Morocco in the year 1880 was recognized and confirmed by the provisions of the Madrid Convention, and that the United States, as a party to that Convention, thereby acquired an autonomous right to the exercise of such jurisdiction, independently of the operation of the most-favoured-nation clauses.57 In the fisheries jurisdiction case (Great Britain v. Iceland) the icj noted that after the Geneva 1958 Conferences ‘the preferential rights of the coastal State were recognized in various bilateral and multilateral international agreements.’58 In the same case one can find the passage that ‘[t]here can be no doubt of the exceptional dependence of Iceland on its fisheries. That exceptional dependence was explicitly recognized by the Applicant in the Exchange of Notes of 11 March 1961.’59 Sometimes the theses on recognition are very general. In the advisory opinion on Reparation for injuries suffered in the service of the United Nations, the icj stated that: Whereas a State possesses the totality of international rights and duties recognized by international law, the rights and duties of an entity such as the Organization must depend upon its purposes and functions as specified or implied in its constituent documents and developed in practice.60 In its advisory opinion No 10 concerning the exchange of Greek and Turkish populations61 the pcij ruled that a treaty affected ‘matters regulated by national legislation and lays down principles which conflict with certain rights generally recognized as belonging to individuals.’ This statement was not intended to exclude the possibility of making such treaty provisions. In the case of fisheries jurisdiction the icj described the evolution of access to the resources of the high seas. According to it ‘the former laissez-faire treatment of the living resources of the sea in the high seas has been replaced by a 57 58 59 60 61

Ibidem, p. 196. i.c.j. Reports 1974, p. 26. i.c.j. Reports 1974, p. 26. i.c.j. Reports, 1949, p. 180. Exchange of Greek and Turkish Populations, pcij Publications, Series B, No 10, p. 21.

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recognition of a duty to have due regard to the rights of other States and the needs of conservation for the benefit of all.’62 Similarly in South West Africa Cases63 the icj included the passage that ‘[m]oreover, diplomacy by conference or parliamentary diplomacy has come to be recognized in the past four or five decades as one of the established modes of international negotiation.’64 The idea behind such judgments fully confirms the remark by E. Dynia, who commented that ‘in the broad meaning of the term – recognition is present by any international agreement giving rights and duties. Recognition understood as consent is present in international practice with respect to principles, customs, borders, situations etc.’65 12.3.6 Recognition in the Inter-State Context In addition to the references to recognition above, it should be no surprise that  there are many cases in which the classical objects of recognition are referred to. In the island of Palmas case, the arbitrator noted that in 1648 Spain had not recognized Portugal as a sovereign state.66 In the advisory opinion No 6 on certain questions relating to settlers of German origin in the territory ceded by Germany to Poland, the pcij ruled that: By the Treaty of Peace between the Allied and Associated Powers and Germany, which was signed at Versailles on June 28th, 1919, and which came into force on January 10th, 1920, Germany, in conformity with the action already taken by the Allied and Associated Powers, recognized the complete independence of Poland and renounced in her favour all right and title over certain territory which is described in Article 87 and which includes the territory in which the question now before the Court has arisen.67 62 63 64 65 66

67

i.c.j. Reports 1974, p. 31. South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment of 21 December 1962: i.c.j. Report; 1962, p. 319 at p. 340. i.c.j. Reports 1962, p. 346. E. Dynia, Uznanie rządu w prawie międzynarodowym, Lublin, 1997, p. 11. The island of Palmas case (or Miangas) United States of America v. The Netherlands, 2 riaa, pp. 844–845 (hereafter cited as the Palmas ruling). ‘Though the struggle for separation of Portugal from Spain had already begun in December 1640, Spain had not yet recognised the separation when it concluded in 1648 with (…) the Netherlands the Treaty of Münster – the earliest Treaty, as will be seen hereafter, to define the relations between Spain and the Netherlands in the regions in question.’ pcij Publications, Series B, No 6, p. 13.

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This statement was repeated by the pcij in its advisory opinion No 7 concerning the acquisition of Polish nationality (‘the independence of the new state of Poland was finally recognized’).68 In the advisory opinion concerning railway traffic between Lithuania and Poland (railway sector Landwarów-Kaisiadorys), a resolution of the Council of the League of Nations of 10 December 1927 is cited. The Council of the League of Nations ruled, inter alia, that: The Council of the League of Nations (…) Takes note of the solemn declarations made by the Lithuanian representative that Lithuania does not consider herself in a state of war with Poland and that in consequence peace exists between their respective countries; Takes note of the solemn declarations of the Polish representative that the Polish Republic fully recognizes and respects the political independence and territorial integrity of the Lithuanian Republic.69 In the advisory opinion on the question of Jaworzina (the Polish-Czechoslovakian frontier) the pcij analysed a resolution of the Supreme Council. It noted that: ‘The last paragraph of this Article 1 contains a clause which must be considered as the recognition of the sovereign rights of Poland and Czechoslovakia over the territories respectively allotted to them.’70 The notion of ‘recognition of the sovereignty over a territory’ can also be found in the icj judgment in the case concerning the right of passage over Indian territory (Portugal v. India)71 and in the case concerning the Temple of Preah Vihear (Cambodia v. Thailand).72 On the other hand ‘recognition of special circumstances’ was mentioned by the icj in the case of the North Sea Continental Shelf.73 The notion ‘recognition of a frontier’ can be found in the case of Territorial Dispute (Libyan Arab Jamahiriya/Chad).74 Also, the arbitrator in the Island of Palmas case was eager to refer to the term ‘recognition’. Here is how he defined territorial sovereignty: 68 69 70 71 72 73 74

pcij Publications, Series B, No 7, p. 14. pcij Publications, Series A/B, No 42, p. 115. pcij Publications, Series B, No 8, p. 27. icj Reports 1960, pp. 38–39. i.c.j. Reports 1962, pp. 30–31. i.c.j. Reports 1969, p. 20, par. 13. It is less than clear whose and what kind of recognition is spoken of. i.c.j. Reports 1994, p. 6 et. seq.

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Territorial sovereignty is, in general, a situation recognised and delimited in space, either by so-called natural frontiers as recognised by international law or by outward signs of delimitation that are undisputed, or else by legal engagements entered into between interested neighbours, such as frontier conventions, or by acts of recognition of States within fixed boundaries.75 The term ‘recognition of nationality’ emerged several times in the famous Nottebohm case.76 The icj reported the arguments of Liechtenstein as follows: ‘Liechtenstein has argued that Guatemala formerly recognized the naturalization which it now challenges and cannot therefore be heard to put forward a contention which is inconsistent with its former attitude.’77 The icj did not agree with Liechtenstein’s claim. It found as follows: ‘There is nothing here to show that before the institution of proceedings Guatemala had recognized Liechtenstein’s title to exercise protection in favour of Nottebohm and that it is thus precluded from denying such a title.’78 One can wonder whether the icj wished to show its distance to the use of the term ‘recognition of nationality’. Even if so, there is nothing to suggest that the icj opted for a very narrow understanding of the term. Its final conclusion reads as follows: ‘Guatemala is under no obligation to recognize a nationality granted in such circumstances. Liechtenstein consequently is not entitled to extend its protection to Nottebohm vis-à-vis Guatemala and its claim must, for this reason, be held to be inadmissible.’79 The term ‘recognize’ was used also in the famous Lotus case. The most important fragment of the pcij ruling reads that ‘[n]o argument has come to the knowledge of the Court from which it could be deduced that States recognize themselves to be under an obligation towards each other only to have regard to the place where the author of the offence happens to be at the time of the offence.’80 In other words no proof was given on recognition of the rule limiting jurisdiction of states only to events occurring within their territory. Also the proceedings leading to advisory opinion No 12, concerning the frontier between Turkey and Iraq, are important from the present perspective. The representative of Turkey stated that the Turkish Government ‘recognized 75 76 77 78 79 80

Palmas ruling, pp. 838–839. In fact not all borders are demarcated. Nottebohm Case (second phase), Judgment of April 6th, 1955: i.c.j. Reports 1955, p. 4. Ibidem, p. 17. At p. 19. Ibidem, p. 26. pcij Publications, Series A, No 10, p. 23.

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the full powers of the Council as conferred upon it by Article 15 of the Covenant.’81 It is worthwhile to point out the position of the uk (administering Iraq at that time). The British representative stated that the British Government ‘regarded the Treaty as placing the Council in the position of an arbitrator, whose ultimate award must be accepted in advance by both Parties.’82 The Rapporteur of the League of Nations summed up those two positions and stated that the replies would seem ‘to show that the Parties were both willing to recognize the Council’s decision, one of them through arbitration and the other under Article 15 of the Covenant.’83 In the Fisheries Jurisdiction case (Federal Republic of Germany v. Iceland, jurisdiction) the icj referred to the term ‘recognition’ as well. It spoke about ‘the recognition by the Federal Republic of Germany since 1961 of a 12-mile exclusive fisheries jurisdiction, the acceptance by the Federal Republic of the baselines established by Iceland and the relinquishment over a period of less than three years of the pre-existing traditional fishing by vessels registered in the Federal Republic.’84 Interestingly enough Iceland ‘consequently asserted that if today the 12-mile fishery limit is generally recognized, there would be a failure of consideration relieving Iceland of its commitment because of the changed legal circumstances.’85 It is worthwhile in this context to cite the declaration of judge Fromageot attached to the pcij advisory opinion concerning access to‚ or anchorage in‚ the port of Danzig of Polish war vessels. According to him ‘the recognition, made in the written negotiations preceding the Treaty of Peace, of a right on the part of Poland to “free and secure access to the sea”, a right inherent in the creation of the State of Poland and of the Free City of Danzig, cannot be regarded as a mere historical fact without significance and renders it impossible equitably to exclude from such free access, for the purposes of their nautical requirements, Polish war vessels or any other Polish ships other than merchant ships.’86 It is difficult to assess whether this is recognition in the technical meaning of the term used by manuals of international law. 81

Article 3, paragraph 2, of the Treaty of Lausanne (frontier between Turkey and Iraq), pcij Publications, Series B, No 12, p. 16. 82 Ibidem. 83 Ibidem. 84 i.c.j. Reports 1973, p. 62. 85 Ibidem, p. 61. 86 Access to‚ or Anchorage in‚ the port of Danzig‚ of Polish War Vessels, pcij Publications, Series A/B, No 43, p. 149.

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In South West Africa Cases87 the icj referred to the South-African declaration concerning the former mandate for South West Africa. It summed up its deliberations by stating that: ‘There could be no clearer recognition on the part of the Government of South Africa of the continuance of its obligations under the Mandate for South West Africa, including Article 7, after the Dissolution of the League of Nations’. In the case of the territorial dispute between Libya and Chad, the icj referred several times to recognition in the context of territories. One of the most important fragments reads that: ‘At the end of the nineteenth and beginning of the twentieth century, various agreements were entered into between France, Great Britain and, later, Italy, by which the parties purported to divide large tracts of Africa into mutually recognized spheres or zones of influence.’88 In referring to concrete British-French agreements of 1890 and 1898 the icj ruled that ‘each party recognized certain territories in Africa as falling within the "sphere" of the other (1898 Convention, Art. iv).’89 In the same case the icj referred to the 1923 Lausanne Treaty, as follows: ‘The Treaty of Lausanne of 24 July 1923 re-established peace between Turkey and the other signatory parties (including France, Great Britain and Italy); it included a provision that Turkey recognized the definitive abolition of all rights and privileges which it maintained in Libya under the 1912 Treaty of Lausanne.’90 It is difficult not to see that every agreement on a border leads to a recognition of the border; every agreement on waiver of rights means recognition of the loss of rights. There is no wonder that the 1955 Libyan-French treaty included the phrase: The two High Contracting Parties recognize that the frontiers between the territories of Tunisia, Algeria, French West Africa and French Equatorial Africa on the one hand, and the territory of Libya on the other, are those that result from the international instruments in force on the date of the constitution of the United Kingdom of Libya as listed in the attached Exchange of Letters (Ann. i).91 The icj ruled in the same case that ‘Libya has therefore expressly recognized that Zouar, Largeau and Fada lie in French territory.’92 87 88 89 90 91 92

South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment of 21 December 1962: i.c.j. Report; 1962, p. 340. i.c.j. Reports, 1994, p. 17. Ibidem, pp. 17–18. Ibidem, p. 18. Ibidem, pp. 20–21. Ibidem, p. 27, par. 54.

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Last but not least, the term ‘recognition’ is also used in connection with consent to jurisdiction of the icj. For example, in the case concerning the Peter Pázmány University the Court refers to recognition ‘without any special agreement, of right of appeal to the Permanent Court of International Justice from all judgments on questions of jurisdiction or merits given "henceforth" by the Mixed Arbitral Tribunal in certain classes of cases’.93 It is evident that such recognition is connected with one resulting from treaties. There should be no doubt that it affects only states-parties to a given agreement. 12.3.7 Recognition as a Confirmation by the Other Party There are also many instances in which either the court (arbitrator) or one party looks for an element of recognition by another party of an argument or interpretation. It is worthwhile to note that in the island of Palmas case the arbitrator ruled as follows: It is evident that Spain could not transfer more rights than she herself possessed. This principle of law is expressly recognized in a letter dated April 7th, 1900, from the Secretary of State of the United States to the Spanish Minister at Washington concerning a divergence of opinion which arose about the question whether two islands claimed by Spain as Spanish territory and lying just outside the limits traced by the Treaty of Paris were to be considered as included in, or excluded from the cession.94 In other words it recognized the applicability of the principle nemo plus iuris. In the case concerning the right of passage over Indian territory,95 India argued that: whereas in the third part of her Submissions Portugal indeed recognizes that the interests of the State through which passage is to be effected entitle it to sometimes refuse to permit the exercise of the right claimed.96 In the case of the Free Zones of Upper Savoy and the District of Gex, the pcij ruled as follows that: ‘Accordingly, the French Government itself recognized 93 94 95 96

Appeal from a Judgment of the Hungaro/Czecoslovak Mixed Arbitral Tribunal (The Peter Pázmány University), pcij Publications, Series A/B, No 61, p. 218. Palmas ruling, p. 842. Case concerning Right of Passage over Indian Territory (Merits), Judgment of 12 April 1960: i.c.j. Reports 1960, p. 6. icj Reports 1960, p. 23.

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that the Court, unlike the Parties, must confine itself to settling the customs questions and that it can only deal, as indeed is clear from the reference in the Special Agreement to Article 435 of the Treaty of Versailles, with the territories referred to in that Article.’97 In the advisory opinion on Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa), notwithstanding Security Council Resolution 276 (1970) the icj noted that: ‘Now the question whether a judge ad hoc should be appointed is of course a matter concerning the composition of the Bench and possesses, as the Government of South Africa recognized, absolute logical priority.’98 12.3.8 Summary of this Subsection The cited fragments are just the tip of the iceberg. They give more a feel for than a precise picture of the possible problems related to the wide meaning of the words ‘recognition’ and ‘recognize’. Any attempt by lawyers to treat those words as exclusively legal notions to be used and explained by lawyers only can only be a usurpation. The weaker is the understanding of this fact, the less successful are the attempts to define recognition (directly) and unilateral acts of states (indirectly). B. Wiewióra writes about the peculiar immanent presence of recognition in international law, observing that an ‘element of recognition’ is present in all treaties and in customary law as well.’99 On the other hand any attempt to prove that recognition is by definition devoid of legal effects is equally futile. There are clearly many examples of recognition which are legal transactions of international law and give rise to legal effects. One must take into account, however, that there are also some kinds of recognition which do not necessarily give rise to legal effects. It is thus worthwhile to examine how the doctrine of international law has approached the problem of recognition in international law. 12.4

Objects of Recognition

An attempt to describe objects of recognition before defining ‘recognition’ as such may seem to be a methodological error. In fact, however, at this initial 97 98

99

Free zones judgment, p. 153. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) i.c.j. Reports, 1971, p. 25, par. 36. B. Wiewióra, Uznanie nabytków terytorialnych w prawie międzynarodowym, Poznań 1961, pp. 20–21.

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stage a very general idea of recognition is sufficient. For example, W. Góralczyk defines recognition as a confirmation by a given subject of the existence of certain facts and of its readiness to respect the legal effects of the latter.100 Later this idea of recognition will be confronted with other definitions presented in the legal literature. In fact, the value of any definition of recognition is as great or as small as its ability to survive the confrontation with several objects of recognition. There can be no doubt that a part of the doctrine has always wanted and still wants to reduce the objects of recognition to the classical ones only. For example, G.H. Hackworth writes apodictically that ‘recognition may be of new states, of new governments, or of belligerency’.101 Also D.P. O’Connell opts for a narrow list of the objects of recognition, including: a state, a government which gained power in an unconstitutional fashion, territorial changes, and sides in a civil war.102 N. Mugerwa writes about the recognition of states, governments and territorial changes, as well as insurgents and belligerency.103 R. Bierzanek and J. Symonides indicate that in international practice we deal with the recognition of a new state, unconstitutional government, movement of national liberation, insurgents, belligerency, and rights of a state to a certain territory.104 The same list is present in the work of M.N. Shaw.105 If there are any merits to the above lists, I can see only one, namely the consolidation of the view according to which recognition of classical objects are an example of a wider institution of recognition. The drawbacks of this approach however are beyond any doubt. The above-cited remark of E. Suy on the ‘deviating’ from the legal nature of recognition seems to be a genial intuition. However the justification for it must be changed. If the legal nature of recognition is deviated from it is not necessarily because of associating it with politics (as E. Suy suggested) but because of falsifying the scope of application of recognition. It is worthwhile here to invoke the remark of D. Anzilotti, according to which ‘in international relations recognition has fundamental importance because of its very numerous applications.’106

100 101 102 103

W. Góralczyk, op. cit., p. 153. G.H. Hackworth, Digest of International Law, Washington, 1940, vol. i, p. 161. D.P. O’Connell, International Law for Students, London, 1971, p. 49. N. Mugerwa, Subjects of International Law, in: M. Sorensen (ed.), Manual of Public International Law, London, Melbourne, Toronto, New York, 1968, p. 267. 104 R. Bierzanek, J. Symonides, Prawo międzynarodowe publiczne, Warszawa, 1994, p. 101. 105 M.N. Shaw, International Law, Cambridge 2008, pp. 444–296. 106 D. Anzilotti, Cours de droit international, traduction française par G. Gidel, Paris, 1929, p. 347.

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If a major criticism is to be addressed to some authors of the monographs of recognition, it should concern the ‘capitulation’ as regards the issue of objects of recognition. This applies first of all to the monographs of H. Lauterpacht107 and P.K. Menon.108 These authors seem not even to suspect the existence of recognition as a general topic, nor to consider any objects other than classical ones. There is little wonder that the prohibition of recognition of illegal situations emerges in their works like deus ex machina. Other authors seem to be more aware of the true scope of application of recognition as an institution. So for example T.-Ch. Chen writes, that ‘every public act of a state – legislative, executive, or judicial, which may be of interest to or come within the purview of a foreign State, is important to the second state only when that state has recognized that act.’109 Such a general scope is a point of departure for a jump to the most spectacular acts of recognition, namely recognition of a state, government, insurgents, belligerency and illegal situations.110 If the basis for such a rapid narrowing down of the scope of discussion is an act’s ‘spectacular character’, it is difficult to treat this criterion as really important and valuable from the perspective of the theory of law. J. Charpentier111 also demonstrates an understanding of the broad scope of application of the institution of recognition. His point of departure is the existence of recognition of state, of a government, and of the state of war (with respect to civil war). His willingness to extend this list by way of logical reasoning is worthy of mention here. If we recognize the powers of a government, it is difficult to deny the possibility of recognition of a protectorate (in other words the division of powers resulting from a treaty on a protectorate), recognition of a border (in other words territorial delimitation of powers), or recognition of occupation of terra nullius (in other words territorial extension of the scope of powers), etc. In contrast to the authors of other monographs Charpentier indicates that we cannot avoid a broad perspective when looking at the institution of recognition. In consequence he arrives at the conclusion that recognition may concern every subjective legal situation (situations juridiques subjectives) resulting from the emergence of new powers or modification of those hitherto in existence. 107 H. Lauterpacht: Recognition in International Law, Cambridge 1947. 108 P.K. Menon, The Law of Recognition in International Law. Basic Principles, Lewiston, Queenston, Lampeter, 1994. 109 T.-Ch. Chen, The International Law of Recognition. With Special Reference to Practice in Great Britain and the United States, London 1951, p. 13. 110 T.-Ch. Chen, op. cit., p. 13. 111 J. Charpentier, La reconnaissance internationale et l’évolution du droit des gens, Paris, 1956, pp. 3–4.

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In fact, recognition (nomen omen) of the wide – or very wide – scope of the term ‘recognition’ (recognition in general) may, paradoxically enough, be an argument for an apodictic limitation of the objects of recognition to be discussed. So for example E. Dynia begins by pointing out the broad meaning of the term ‘recognition’, but soon argues that ‘as regards the subjects of international law we can speak about recognition as a separate institution of international law.’112 Such an attitude once again puts into question whether the recognition of international subjects really has a separate legal nature. If so, it is more than difficult to prove it. That explains why many authors do not hesitate to present long or extremely long catalogues of possible objects of recognition. So for example W. Levi writes generally that recognition applies to many situations, for sure not only to new states and new governments.113 G. Schwarzenberger lists in this context: subjects of international law and their organs, territorial claims, changes of titles of sovereigns, the grant and withdrawal of nationality, maritime flag of a landlocked State, a sphere of exclusive influence and the validity of a pacific blockade.114 Nothing suggests that this list should be treated as exhaustive. In addition to states, governments, insurgents and belligerency, G. von Glahn refers to recognition of title to territory and the commission of acts by governments.115 I.A. Shearer refers to the recognition of states, governments and other changes of status.116 The latter should probably be understood as changes of legal and possibly even factual situations. D.J. Latham Brown117 identifies three main contexts of recognition. They are: recognition of rules (customary norms); recognition of titles; and recognition of status. The latter includes the recognition of states and governments. The work of N. Quoc Dinh lists, in addition to the classical objects of recognition, acquisition or loss of territory, the establishment of a protectorate, permanent neutrality, and other territorial competences and rules resulting from treaties concluded by third states.118 K. Skubiszewski writes on recognition of ‘the birth of States, nonconstitutional change of governments, the status of insurgents, position of 112 113 114 115

E. Dynia, Uznanie rządu w prawie międzynarodowym, Lublin, 1997, p. 11. W. Levi, op. cit., p. 199. G. Schwarzenberger, A Manual of International Law, vol. i, London, New York, 1960, p. 62. G. von Glahn, Law Among Nations. An Introduction to Public International Law, Toronto, 1970, p. 90. 116 I.A. Shearer, Starke’s International Law, London, Boston, Dublin, Durban, Edingurgh, Kuala Lumpur, San Juan, Singapore, Sidney, Toronto, Wellington, 1994, p. 117. 117 D.J. Latham Brown, Public International Law, London 1970, p. 202. 118 N. Quoc Dinh, P. Daillier, A. Pellet, Droit international public, Paris, 1994, p. 530 (hereafter cited as: N. Quoc Dinh, op. cit.).

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nations and peoples pursuing their right of self-determination, territorial change and revision of frontiers when not brought about by regular treaties, régimes of parts of territory if modified or uncertain and rights and claims if in dispute or in doubt’.119 J.H.W. Verzijl lists ‘recognition of the establishment of a protectorate; of a state of belligerency between parties in a civil war; of a treaty concluded between other parties, or as binding upon the recognizing State itself; of the cancellation of a treaty on the ground of the principle rebus sic stantibus; of an occupation of a territory or a territorial readjustment, of the annexation of a fellow State; of an extension of a maritime belt; of the use of a title by a foreign Sovereign; of the legal effects of an international wrongful act; of the legality of certain political activities which might disturb an existing political equilibrium.’120 Also important from the perspective of this book are remarks on certain less typical objects of recognition. So for example W. Czapliński writes on the recognition of a national minority.121 The manual of W. Graf Vitzhum mentions recognition of an international organization.122 J. Touscoz writes about the recognition of treaties concluded by other states and recognition of a situation.123 The fourth report of the special rapporteur mentions recognition of neutrality,124 If by the latter permanent neutrality is meant, one can add to this list recognition of neutrality within an armed conflict.125 P.C. Jessup writes on recognition of foreign companies, though he also notes that in this case ‘the similarity to the recognition of states and governments is only terminological’.126

119 K. Skubiszewski, Unilateral Acts of States, in: M. Bedjaoui (ed. ), International Law: Achievements and Prospects, Paris 1991, p. 227. 120 J.H.W. Verzijl, International Law in Historical Perspective, vol. ii, Leiden, 1969, pp. 574–575. 121 W. Czapliński: The New Polish-German Treaties and the Changing Political Structure of Europe, ajil 1/1992, p. 170. 122 W. Graf Vitzhum, Völkerrecht, Bearb. von M. Bothe…, Berlin, New York, 1997, p. 315. 123 J. Touscoz, Le principe d’effectivité dans l’ordre international, Paris, 1964, p. 91. It is worth noting that he does not attach to recognition of that kind a decisive role for binding third states to objective regimes. 124 4. report, p. 21, par. 93. 125 icj, Application instituting proceedings filed in the Registry of the Court on 1 June 2001, Liechtenstein v. rfn (certain property) (2001, General List No. 123), p. 6, which reads that: ‘During World War ii Liechtenstein (like Switzerland) was a neutral State. Its neutrality was recognized by all belligerents, including Germany.’ 126 P.C. Jessup, A Modern Law of Nations. An Introduction, New York, 1949, p. 64.

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469

Attempts to Generalize the Objects of Recognition

Taking into account such a large number and diversity of objects of recognition, it becomes necessary to look for more general categories to which these objects could be subordinated. D. Anzilotti for example, without making an attempt to compile an exhaustive list of objects of recognition, refers to ‘recognition of a state of affairs, claims and so on.’127 F. Pfluger writes about the recognition of legal relationships (Rechts­ver­ hältnisse), legal situations (Rechtszustände) and legal qualifications (Rechts­ qualifikationen).128 A. Pellet writes on recognition in relation to ‘facts and acts of another state’ and indicates, that ‘the most important forms of recognition are recognition of a state or of a government.’129 The special rapporteur in his fourth report lists the following objects of recognition: a de facto situation, legal claim, and power or competence.130 A. Cassese writes about the recognition of situations or conduct.131 An element which is present in many such lists is the recognition of claims. The proponents of such recognition include G. Schwarzenberger132 and J. Spiropoulos.133 K. Skubiszewski stresses that the claim in question must give rise to doubts.134 This element was stressed by F. Pfluger as well. His idea was that we are not dealing with recognition if a given state of affairs is unquestionably in conformity with the law.135 Another wider category is ‘recognition of a situation.’136 J. Spiropoulos distinguishes between recognition of a factual situation and recognition of a legal one.137 E. Suy compares the recognition of a legal situation to subsumption and logical syllogism. It is said to be based on the qualification of a given situation according to a certain legal norm.138 Suy rightly notes however that by 127 128 129 130 131 132 133 134 135 136

D. Anzilotti, op. cit., p. 347. F. Pfluger, op. cit., p. 135. A. Pellet, Droit international public, Paris, 1981, p. 27. 4. report, p. 20, par. 91. A. Cassese, International Law, Oxford 2005, p. 184. G. Schwarzenberger, op. cit., p. 62. J. Spiropoulos, Traité théorique et pratique du droit international public, Paris, 1933, p. 231. K. Skubiszewski, op. cit., p. 227. F. Pfluger, op. cit., p. 142. P. Guggenheim, Traité de Droit international public. Avec mention de la pratique internationale et suisse, Genève, t. i, 1953; p. 147. 137 J. Spiropoulos, op. cit., p. 231. See also: E. Suy, op. cit., pp. 202. 138 E. Suy, op. cit., pp. 203–204.

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recognition of a factual situation such a syllogism is also possible. What’s more, it cannot be used to describe recognition of an illegal situation.139 J. Charpentier distinguishes four general categories. They are: recognition of an opposable situation, of a non-opposable situation, of a non-existent situation, and recognition of a custom.140 N. Quoc Dinh writes on the recognition of situations and of acts.141 The emergence of a state or of a government is evidently a situation. Other examples include: the creation of an army, an outbreak of a military conflict, etc. F. Pfluger, who as noted wrote about the recognition of legal relationships (Rechtsverhältnisse), legal situations (Rechtszustände) and legal qualifications (Rechtsqualifikationen),142 understands the adjective ‘legal’ in a very special way. Namely he underscores that it is not important whether a recognized situation is in conformity with law, contrary to law, or indifferent from the perspective of law.143 If such a qualification is adopted there is no doubt that a factual situation would be a ‘legal’ according to Pfluger. All the same such terminology hardly seems attractive for other lawyers, and I do not intent to argue for its adoption. What really matters is the fact that recognition may concern a variety of matters. W. Czapliński and A. Wyrozumska write that any legal event may be an object of recognition.144 The same position is presented by P.-M. Dupuy. He clarifies that what is at stake is a legal event modifying or aimed at modifying the international legal order.145 The basic question, already referred to, is whether it must be a legal event. In the light of the preceding remarks it seems impossible to limit objects of recognition to legal events only. On the other hand an attempt to say that every factual event may be an object of recognition seems to be reductio ad absurdum, but only if one assumes and insists that every instance of recognition must give rise to legal effects. As was said before, we cannot make such an assumption without proof.

139 140 141 142 143 144

E. Suy, op. cit., pp. 204–205. See: J. Charpentier, op. cit., p. 203ff. N. Quoc Dinh, op. cit., p. 529. F. Pfluger, op. cit., p. 135. F. Pfluger, op. cit., p. 140. W. Czapliński, A. Wyrozumska, Prawo międzynarodowe publiczne. Zagadnienia systemowe, Warszawa, 1999, p. 230. 145 P.-M. Dupuy, Droit international public, Paris, 1993, p. 251. He also writes on recognition of a situation, so apparently he does not see the necessity or possibility to distinguish between the notions ‘event’ and ‘situation’.

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471

Attempts to Define Recognition

It is a truism that states must take into account the very large legal potential of the word ‘recognize’. A careless use of the term may give rise to far-reaching consequences. If, for example, a state one day recognizes one of its rebelling provinces as a state and the next day sends its armed forces against it, that state evidently breaches art. 2(4) of the un Charter. If no act of recognition had taken place, the situation of such a state would have been entirely different.146 On the other hand it would be a mistake to expect such far-reaching consequences with respect to every use of the word ‘recognition’. As has been shown, it is a part of everyday language. One must take into account that not every statesman using the term ‘recognize’ or ‘recognition’ has in mind the legal meaning of the term. Sometimes it is possible to do this without incurring a legal duty, but in many cases it is not. States may also nuance their use of the word ‘recognition’. To this end a formulation such as ‘we recognize this, but this does not mean that we thereby recognize that’ may be very useful,147 as was done in the case of the North Sea Continental Shelf: The Federal Republic, for its part, while recognizing the utility of equidistance as a method of delimitation, and that this method can in many cases be employed appropriately and with advantage, denies its obligatory character for States not parties to the Geneva Convention.148 The word ‘recognition’ as a part of everyday language has many meanings. Two main elements can be distinguished. The first of is a kind of ascertainment or statement. The second one has to do with the creation of obligations.149 However it must be taken into account that in a given statement only the first, only the second, or both elements may be present. Different languages may also put emphasis on different meanings of the term ‘recognition’. In Polish the main meaning of ‘recognition’ is connected 146 Another important element is that third states may have their opinion on the matter. In particular they may treat an attack against a regime recognized by them as an attack on that state. This is particularly true when the dissolution of a federal state is at stake. 147 On the recognition of the Czech National Council, see: S. Talmon, Recognition of Governments in International Law: With Particular Reference to Governments in Exile, Oxford, 1988, pp. 21–22. 148 i.c.j. Reports 1969, p. 20, par. 15. 149 E. Suy writes on the element of ascertainment (cognitive element) and the intentional element. See: E. Suy, op. cit., p. 193.

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with having respect for somebody or something. In English it has to do with this element, but first of all recognizing is related to distinguishing somebody or something from some other (possibly similar) persons or things. In other words it has to do with finding some (usually welcome) elements in an object which is examined. This understanding actually fits as regards the recognition of states. So by recognizing Eastern Timor the recognizing states find in it the characteristics of a state. Definition of recognition on the grounds of international law is – paradoxically enough – more difficult. E. Dynia rightly notes that ‘it is difficult to define precisely the notion of international recognition because of its broad meaning and the different forms in which it takes place.’150 P. Cobbett goes even further when he writes that recognition differs depending on its object and effects, and it cannot be said that it is governed by legal rules, though usually some rules for specific cases are referred to.151 Definitions of recognition as such (recognition in general) are formulated by some authors of international law. They are usually based on an assumption that recognition is a legal transaction of international law. J. Charpentier notes that some authors attempted to define recognition with reference to the properties of recognized objects. For him this is an absurdity – he compares it to the description of litmus-paper by reference to its colour.152 Referring to recognition as a legal transaction would seem to avoid that mistake.153 So for example D. Anzilotti writes that recognition is a declaration of will (manifestation de la volonté) to treat a certain state of affairs, claim and so on as legitimate (légitime).154 This reference to legitimacy influenced other authors. A. Cassese writes, that ‘recognition of a situation or conduct is a unilateral transaction (or in case of tacit or implicit recognition, conduct) aimed at considering as legitimate that situation or conduct.’155 According to E. Suy, ‘there is unanimity in the legal literature that recognition is a general institution of law, a unilateral declaration of will of a subject of law, by which it ascertains the existence of a certain situation and expresses its intention (l’intention) to regard it as legitimate, legal (comme légitime, comme étant de droit).’156 150 E. Dynia, op. cit., p. 11. 151 P. Cobbett, Cases on international law, fifth edition by F.T. Grey, vol. i, Peace, London, 1931, p. 43. 152 J. Charpentier, op. cit., at pp. 189 and 201. 153 So J. Charpentier writes that recognition is an act based on will and giving rise to an obligation; ibidem p. 202. 154 D. Anzliotti, op. cit., p. 347; very similarly: J. Spiropoulos, op. cit., p. 231. 155 A. Cassese, op. cit., p. 184. 156 E. Suy, op. cit., p. 191.

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Other definitions refer to law as well. Sometimes both the definitions and references to law are very general however. W. Levi writes that recognition means simply that a fact is acknowledged as relevant from the legal point of view.157 Also R. Bierzanek and J. Symonides write, that ‘recognition is a declaration by a state that the object of recognition exists and should be treated in the perspective of international law.’158 W. Góralczyk writes that recognition is an express or tacit expression of will, by means of which a state expresses its intention to treat a given situation or a given claim as being in conformity with law.159 Interestingly enough, the same author on another page of the same book presents a slightly different definition. According to the second definition, recognition is ‘a confirmation by the recognizing subject of the existence of certain facts and of its readiness to respect the legal effects connected with them.’160 These references to law are interesting as such. As has already been said, they may turn out to be inapplicable to some examples of recognition, although there are also spheres and cases in which they may be expected to apply. All the same there are considerable differences as regards the shape of these references. ‘Being relevant from the point of view of law’ is not synonymous with ‘being legal’. I have already referred to doubts as to whether it is only a legal situation or legal object that can be an object of recognition. A negative answer must be given to this question, as recognition may relate to a factual situation as well. One can imagine a counter-argument here suggesting that recognition changes such a factual situation into a legal one. However it is difficult to adopt such a thesis only on the basis of its apparent usefulness. We can only go so far as to accept the proposition that at least in some cases recognition of a factual situation gives rise to a new legal obligation. Several definitions therefore refer to the effectiveness of a recognized situation in relation to the recognizing subject. F. Pfluger defines recognition in international law as a legal transaction of international law which is unilateral, requires direction (richtungsbedürftig), and by which the recognizing subject ascertains that a given state of affairs has an international legal character in order to provide for the effectiveness of that state of affairs with respect to the recognizing subject itself (rechtmäßig).161 The special rapporteur in his fourth report presents the following definition of recognition: 157 158 159 160 161

W. Levi, op. cit., p. 199. R. Bierzanek, J. Symonides, op. cit., p. 100. W. Góralczyk, op. cit., p. 169. W. Góralczyk, op. cit., p. 153. F. Pfluger, op. cit., p. 136.

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Recognition is the procedure whereby a subject of international law, particularly a State, which was not involved in bringing about a situation or establishing a legal instrument, accepts that such situation or instrument is available against it, or in other words acknowledges the applicability to itself of the legal consequences of the situation or instrument.162 This element is sometimes referred to as opposability. So for example G. Schwarzenberger defines recognition as a means by which a state expresses its intention to acknowledge in relation to itself, the existence and legal effects of a situation or a transaction, which in the absence of such recognition would not be opposable to it.163 N. Quoc Dinh also writes that by recognizing an act or situation in which a given state had not participated, it ‘accepts that this act or situation is opposed to it, that is it admits (admet) that this act or situation applies to it.’164 This ‘application’ should be understood in a strictly legal meaning. G. von Glahn is of the opinion that recognition is ‘a formal acknowledgement or declaration by the government of an existing state that it intends to attach certain customary legal consequences to an existing set of facts which, in its view, justify it (and other states) in doing so.’165 R. Jennings and A. Watts write, that ‘recognition involves acceptance by a state of any fact or situation occurring in its relations with other states.’166 The survey of these definitions reveals a substantial level of accordance among the authors. In fact, however, this accordance is based on weak grounds. It is hard to overlook that none of these definitions comes from the author of any of the monographs of recognition. The lack of readiness of the latter to define recognition in a general way (recognition as such) is symptomatic. P.K. Menon, the author of the most recent monograph of recognition, seems to overlook the idea of recognition in general.167 This is so even though he starts with the remark of Lorimer, according to whom recognition is ‘a basis of international law’.168 When Menon seems to write on recognition in general, it is…recognition of a state,169 theories of recognition are theories of recognition of states.170 After such a ‘general’ introduction 162 163 164 165 166 167 168 169 170

4. report, p. 20, par. 91. G. Schwarzenberger, op. cit., p. 62. N. Quoc Dinh, op. cit., p. 529. G. von Glahn, op. cit., p. 90. R. Jennings, A. Watts, Oppenheim’s International Law, ninth edition, vol. i, London, New York, 1997, p. 127. P.K. Menon, op. cit., p. 1 et. seq. Ibidem, p. 1. Ibidem, op. cit., pp. 2–5. Ibidem, op. cit., pp. 5–6 et. seq.

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he begins his detailed analyses, which is opened by a chapter on…recognition of a state.171 Also T. Baty, in his famous article, seems to identify ‘recognition’ as such as ‘recognition of a state.’172 S. Talmon, in his monograph on recognition of governments, does not offer a single word on recognition in general, noting only the ambiguity of the very term ‘recognition of a government.’173 If that term is ambiguous, what is one to say about recognition in general? The repugnance of Anglo-Saxon authors (or maybe even of all authors writing in English) to abstract definitions is well-known. J. Charpentier however is not one of them and even he does not attempt to construct such a definition (in the Aristotelian style). He points out two elements present in recognition.174 The first is formal and connected with the will of a state. Its essence is that recognition is a declaration of will by which a state adheres (adhère) to modifications in which it has not participated. The second element is substantive (in other words, functional). Its essence is that recognition means extension (l’extension) for the recognizing state of the effects of that modification. Every element inserted into every definition of recognition deserves critical analysis. The central one is clearly the ontological category of recognition. Recognition is said by some authors to be a declaration. There can be no doubt that one can meet declarations of the type “we recognize x” or “we recognize y”. There is also no doubt that having made such a declaration of will, one can hardly deny the fact of having granted recognition. There is also no doubt that one can meet declarations formulated in other ways which all the same bring about the same result, that is of something or somebody being recognized by the author-state. It remains however an open question whether every recognition must be connected with a declaration of will. Even more is expected by those who call recognition a ‘declaration of will’. This is an especially pressing question in the context of statements of even the same authors on express and tacit recognition. 12.7

Express and Tacit Recognition

D. Anzilotti underscores that recognition may be express or tacit; it may also take the form of silence.175 F. Pfluger also opts for the existence of tacit recognition,176 171 172 173 174 175 176

Ibidem, op. cit., p. 27 et. seq. T. Baty, Abuse of Terms: “Recognition”: “War”, ajil, 1936, p. 377. S. Talmon, Recognition of Governments…, p. 21. J. Charpentier, op. cit., p. 5. D. Anzilotti, op. cit., p. 348. F. Pfluger, op. cit., p. 144.

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and the same is true with respect to many other authors.177 In this place I refer only to those who take a position on recognition in general. If one takes into consideration also those who write on the recognition of states and governments, it would be necessary to refer to all or almost all authors writing on international law.178 Similarly K. Skubiszewski underlines that acquiescence and silence may lead to tacit recognition.179 R. Mullerson points out that no state objected to Russia taking the seat of the ussr in the un.180 Interestingly enough, he writes that other states either expressly recognized it or acquiesced in it.181 Hence it is difficult to agree with N.S.M. Antunes, who reserves the term recognition for affirmative consent, opposing it with acquiescence.182 The 1900 resolution of the Institute of International Law confirmed that recognition of belligerency may be express or tacit.183 In the case of the temple Preah Vihear the icj referred to a visit of the Cambodian prince in the temple. It found as follows: 177 P. Guggenheim, op. cit., t. i, p. 147; J. Spiropoulos, op. cit., pp. 231–232, N. Quoc Dinh, op. cit., p. 529, P.-M. Dupuy, op. cit., 1993, p. 251. 178 On the recognition of states: A. Rivier, Principes du droit des gens, Paris, 1896, t. i, pp. 58–59; E. Nys, Le droit international. Les principes, les theories, les faits, t. i, Bruxelles, Paris, 1904, p. 74, J. de Louter, Le droit international public positif, t. i, Oxford, 1920, t. i, p. 222; F. von Liszt, Das Völkerrecht systematisch dargestellt, zwölfte Auflage bearbeitet von M. Fleischmann, Berlin, 1925, p. 91, E. von Waldkirch, Das Völkerrecht in seinen Grundzügen dargestellt, Basel, 1926, p. 124; A. Hold-Ferneck, Lehrbuch des Völkerrechts, Leipzig, 1930, cz. i, p. 182; J. Devaux, Traité élémentaire de droit international public (droit des gens), Paris, 1935, p. 85; V.D. Mahajan, International Law, Lucknow, Delhi, 1958, p. 149, with respect to recognition of a state a government – E. von Ullmann, Völkerrecht, Tübingen, 1908, 1908, p. 128. The opposite view expressed by I.A. Shearer, op. cit., p. 117, can be hardly accepted. 179 K. Skubiszewski, op. cit., p. 227. 180 R. Mullerson: The Continuity and Succession of States by Reference to the Former ussr and Yugoslavia, iclq 3/1993, p. 477. 181 R. Mullerson: op. cit., p. 478. 182 N.S.M. Antunes, Estoppel, Acquiescence and Recognition in Territorial and Boundary Dispute Settlement, Durham, 2000, p. 3. 183 Institut de Droit International, Session de Neuchâtel 1900, Droits et devoires des Puissances étrangères, au cas de mouvement insurrectionnel, envers les gouvernements établis et reconnus qui sont aux prises avec l’insurrection; document accessible at the website of the Institute; ‘Le gouvernement d’un pays où la guerre civile a éclaté peut reconnaître les insurgés comme belligérants, soit explicitement par une déclaration catégorique, soit implicitement par une série d’actes qui ne laissent pas subsister de doute sur ses intentions.’ On the recognition by the mother government – Art. 4 § 3 of the resolution speaks of recognition by means of acts which do not leave doubts as to the intention of a given state.

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Looking at the incident as a whole, it appears to have amounted to tacit recognition by Siam of the sovereignty of Cambodia (under the French Protectorate) over Preah Vihear, through a failure to react in any way on an occasion that called for a reaction in order to affirm or preserve title in the face of an obvious rival claim. What seems clear is that Siam either did not in fact believe she had any title – and this would be wholly consistent with her attitude all along, and to the Annex 1 map and line – or else she decided not to assert it, which again means that she accepted the French claim, or accepted the frontier at Preah Vihear as it was drawn on the map.184 In this case the icj used the phrase ‘recognized by conduct.’185 In the case concerning the right of passage over Indian territory, the icj ruled as follows: Thus Portuguese sovereignty over the villages was recognized by the British in fact and by implication and was subsequently tacitly recognized by India. As a consequence the villages comprised in the Maratha grant acquired the character of Portuguese enclaves within Indian territory.186 This is why defining recognition as a declaration of will is too risky. At least a qualification is necessary. The work of N. Quoc Dinh defines recognition as a procedure (procédé),187 though it is difficult to expect this term to be generally accepted. All the same what is in play is the readiness of the doctrine to supplement the basic notions already in use rather than find a new, more fitting one. The former are not bad in themselves, the only problem is that there may be situations in which recognition is manifestly in place but the description of it requires modification. 12.8

Attempts to Define Legal Effects of Recognition in General

The next element deserving attention has to do with legal effects attributed to recognition in general. Some of them were referred to in the above-presented definitions of recognition. It is worthwhile to cite the remark of D. Anzilotti, 184 185 186 187

i.c.j. Reports 1962, pp. 30–31. Ibidem, pp. 32–33. icj Reports 1960, p. 39. N. Quoc Dinh, op. cit., p. 529.

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according to which the ‘precise effects of recognition are strictly dependent on circumstances in which it is granted and with the object which it concerns. Generally speaking, the recognizing state may not contest the legitimate character of what has been recognized. It is obvious that this effect is present to the extent determined in the recognition itself.’188 Also other authors underline the dependence of effects of recognition on its object.189 Some of them (like D. Anzilotti) are ready to point out the common part or common denominator of different kinds of recognition. So for example F. Pfluger identifies the general effect of recognition as legitimization of the recognized state of affairs.190 This legitimization is described as causing that ‘a state of affairs or claim being purely de facto become international legal ones, a state of affairs being only partly international legal becomes fully legal; a state of affairs resulting from a violation of law becomes in conformity with law.’191 Also J. Spiropoulos writes that ‘recognition means recognition (sic!) as legitimate’.192 K. Skubiszewski stresses that the recognizing state cannot contest what it has recognized.193 This is how it is presented by A. Cassese, who associates recognition with estoppel.194 Other authors also underline this relationship.195 For P.-M. Dupuy the effect of recognition is to ‘make it impossible (empêcher) for the recognizing state to contest the validity (validité) of a situation, the ascertainment or acceptance of which is the aim of recognition.’196 W. Góralczyk uses an almost identical definition. The only additional element is his statement that a state which has recognized a given situation or claim as being in conformity with international law cannot put into question the existence and legality of the former.197 This lack of a right to put into doubt (deny, contest, put into question) a recognized object as being an effect of recognition was reflected in the caselaw of the pcij and the icj. In the case of Eastern Greenland the pcij ruled as follows: 188 D. Anzilotti, op. cit., p. 348. 189 See: F. Pfluger, op. cit., p. 146; K. Skubiszewski, op. cit., p. 227; J. Spiropoulos, op. cit., p. 232; J. Charpentier, op. cit., p. 203. 190 F. Pfluger, op. cit., p. 146. 191 F. Pfluger, op. cit., p. 146. 192 J. Spiropoulos, op. cit., p. 231. 193 K. Skubiszewski, op. cit., p. 227. 194 A. Cassese, op. cit., p. 184. 195 See: E. Suy, op. cit., p. 208. 196 P.-M. Dupuy, op. cit., 1993, p. 251. 197 W. Góralczyk, op. cit., pp. 169–170.

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In accepting these bilateral and multilateral agreements as binding upon herself, Norway reaffirmed that she recognized the whole of Greenland as Danish; and thereby she has debarred herself from contesting Danish sovereignty over the whole of Greenland, and, in consequence, from proceeding to occupy any part of it.198 In the judgment in the case concerning the arbitral award made by the King of Spain on 23 December 1906 (Honduras v. Nicaragua), the icj ruled as follows: In the judgment of the Court, Nicaragua, by express declaration and by conduct, recognized the Award as valid and it is no longer open to Nicaragua to go back upon that recognition and to challenge the validity of the Award.199 It is worthwhile to note however that the Court made it clear that the award would have been regarded as binding even in the face of a lack of repeated acts of recognition on the part of Nicaragua. Quite a radical attitude is presented in the fourth report, where it is posited that: ‘Through recognition, a State accepts a de facto situation, a legal claim, a competence or a power and thereby undertakes in some manner to conduct itself in a certain way. Through recognition, the author State takes note of the existence of certain facts or certain legal acts and acknowledges that they are available against it.’200 Some authors are much more careful. For example A. Pellet writes that by means of recognition a state ‘takes a position’ with respect to certain facts or acts of another state.201 ‘Taking a position’ is very far from incurring a legal obligation. J. Charpentier writes that recognition of opposable situations means confirmation of their opposability, but not their validity (validité).202 On the other hand in Charpentier’s opinion recognition of modifications of competences of other states is a confirmation of their effectiveness or lack of conflict with the rights of the recognizing state.203 Recognition of a non-opposable situation is, 198 Eastern Greenland Case, pp. 68–69. As to the last conclusion, see in particular p. 68. 199 Case concerning the Arbitral Award made by the King of Spain on 23 December 1906, Judgment of 18 November 1960: icj Reports, 1960, p. 213. 200 4. report, p. 20, par. 91. 201 A. Pellet, op. cit., p. 27. 202 J. Charpentier, op. cit., p. 203. 203 J. Charpentier, op. cit., p. 215.

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according to Charpentier, a waiver of the right to invoke the lack of opposability.204 In another place however Charpentier presents a more traditional effect of recognition, which consists of the obligation not to put into doubt a recognized situation.205 E. Suy writes that recognition gives rise to an obligation to treat a recognized object as having a legal character as well as an obligation not to contest an existing situation.206 Suy himself reveals his doubts as to whether recognition could really turn an illegal situation (one consisting of a violation of law) into an entirely legal one.207 If so, his own presentation of the effects of recognition is a failure. Suy tries to distinguish between violation of treaty norms and norms erga omnes. In fact, however, it is difficult to see what difference can be expected between the recognition of violation of a multilateral treaty or a custom.208 There is no doubt that if recognition in general gives rise to legal effects, they are present on the part of the recognizing state only. There are no legal effects for other states, especially a victim state of a violation if said state denies recognition. This is why Suy finally adopts the explanation of J. Charpentier referring to opposability.209 It is easy to see that the more precise are the effects of recognition posited, the easier it is to call them into question in concreto. It is most easy to do this with respect to legitimacy. Is it really so that by recognizing an effective regime which has gained power at the cost of several million victims, the recognizing states effect legitimization of the massacres? The answer is obviously in the negative. Is recognition of a fact that one state controls half of the territory of another really an instrument of providing for legality of that situation, even from the perspective of the recognizing state? It is easy to prove that it is not so. The very differentiation between de facto and de jure recognition is instructive in this respect. Recognition de facto is used to show that a given state takes note of certain facts (sometimes something bad, as to which a recognizing state is helpless to change), though reserving for itself the evaluation of their conformity or nonconformity with international law. The beginning of World War ii and the events preceding it present a shameful but intellectually fertile exercise for lawyers attempting to write on recognition. Proponents of very ambitious and apodictically formulated proposals on 204 205 206 207 208 209

J. Charpentier, op. cit., p. 217. J. Charpentier, op. cit., p. 216. E. Suy, op. cit., p. 207. E. Suy, op. cit., pp. 210–212. E. Suy, op. cit., p. 211. E. Suy, op. cit., p. 208.

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the meaning of recognition and its effects should be asked whether they are ready to defend the thesis that states recognizing the obvious presence of Germany in Vienna, Prague, Warsaw and Paris incurred a duty not to contest it. This is just one illustration of the obvious fact that the attempt to prescribe one common and precise effect to all kinds of recognition (or in other words, to recognition in general) is and has always been mission impossible. Its negative result could have been anticipated. This does not mean however that there is no sense to even speak about recognition in general. In fact its effects are more easily ascertainable in concreto than in general. Hence my task in the next chapter is to determine which kinds of recognition are legal transactions and which of them are probably not.

chapter 13

Recognition as a Type of Legal Act 13.1

Is Recognition an Act?

One of three main tasks of this part of the present work is to confirm or deny whether recognition is a unilateral legal act in public international law.1 Before tackling this question, however, it’s necessary to examine whether it is an act at all. Is it not so, for example, that recognition rather is the object of an act or its effect, but not an act as such? For example it is an objective fact that Poland recognizes Montenegro and does not recognize Chechnya. Recognition of Montenegro (the fact of recognizing) Montenegro is a certain state of affairs, a certain status, and is the effect of certain acts which were certainly effected in the past, but may not necessarily be easily discernible. It is worthwhile to note that in the doctrine of domestic law (e.g. Polish civil law) the name used with respect to an effect may be identical with the name used with respect to a transaction itself. So for example when one is dealing with sales transactions, their object and aim may be referred to in different ways (acquisition of property, transfer of property, acquisition of payment), but no reasonable person would deny that one of possible descriptions is that the aim and object of the transaction is just the sale of a given object. Identifying the defined object and the aim with the name of a transaction as such is not a problem. In particular it may not induce anybody to deny the existence of such a transaction or to look for other name for it. This element seems to be absent as regards treaties. It seems evident that they are by definition acts, the effect of which is the creation of rights and obligations for the parties (or attempts to create them for third states within the limits determined by international law). Such a transaction is rarely identified with its object. This picture is due however to the very general character of the above-mentioned effect(s) of a treaty. It may also be based on the identification of treaties with obligatory acts only. It must be kept in mind that treaties may also have a dispositive character – leading to the extinction or transfer of certain rights. The more dispositive a given treaty is, the more probable it is to find the above-mentioned phenomenon of identification. That is why there are no special obstacles to saying that a cession treaty has the effect of cession 1 In the meaning adopted in the present work, which is at least important from the point of view of international law.

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004274617_017

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and to simply call this treaty cession. The identity of the name of an act and its effect will be encountered by international waiver as well. It is an effect of certain acts (or at least one can refer to this effect with the name ‘waiver’ which is the ‘loss of a right’), but those acts are usually called acts of waiver or simply waivers – both unilateral and contractual ones. An analogous situation takes place with regard to recognition as well. Sticking to the above-presented example, it can be said that the recognition of  Montenegro by Poland (the fact of recognizing Montenegro, treating Montenegro as a state) results from certain behaviours or actions of Poland. Prima facie there are no obstacles to describe them as acts and call them ‘acts of recognition’. The lack of such an ‘act(s)’ results in the lack of recognition. In any case there are no grounds to deny the presence of an act in recognition, in other words that recognition is itself an act. This is why recognition must be discussed in this book on (unilateral) acts of international law. 13.2

Is Recognition Not an Act of Domestic Law?

The next question which must be asked is whether, if recognition is or at least can be an act, it must be an act of international law. It is worthwhile here to cite the opinion attributed to Lorimer. According to that opinion, every act of recognition had the character of an act of domestic (municipal) law, but not of international law.2 Adoption of this thesis would seem to exclude a priori all attempts to qualify recognition as a subcategory of unilateral acts in international law. However the thesis is weaker than it may appear on its face. One cannot deny that domestic law refers to the institution of recognition, but such reference cannot a priori exclude that international law has the same institution, or at least an institution with the same name. The domestic law of many states refers to treaties or resolutions, but this does not mean that they cease to be first of all elements of international law. Nonetheless a more detailed analysis of recognition under international law must include verification whether one is not dealing with the institution of recognition in the meaning of domestic law, which later entered into the discourse of international law as the result of a misunderstanding. One can certainly not however assume the latter, at the same time taking cognizance of the fact that recognition as a part of international law may be used or regulated by domestic law as well.

2 Cited on the basis of: E. Nys, Le droit international. Les principes, les theories, les faits, t. i, Bruxelles, Paris, 1904, p. 75.

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It must still be considered whether recognition actually is a legal transaction of international law. 13.3

Is Recognition a Legal Act (Acte Juridique) of International Law?

The authors cited in the previous chapter who defined recognition as a unilateral act treat it as obvious that it is a legal transaction (acte juridique). One can see that some of them try to draw practical conclusions from this assumption. For example E. Suy writes that inasmuch as recognition concerns a certain existing situation it is declarative; while since it is a legal transaction it must (sic!) give rise to legal effects and in this sense is constitutive.3 Suy invokes the opinion of Pinto, who argues that if recognition concerns conformity with existing law, it has the character of ‘acte juridictionnel’; while if it concerns the recognition of conformity with newly created law it has the character of a legislative act.4 In fact, both may be classified as an ‘acte juridique’. Nonetheless the qualification of recognition as a legal transaction is not so obvious. One should refer in this context in particular to the views of J. Verhoeven, the author of a systematic analysis denying recognition the character of a legal transaction. The main point of reference for him is the definition of acte juridique. According to Verhoeven it is only a transaction giving rise to effects in accordance with the will of the author state. Verhoeven observes that the effects of recognition of a state (or another subject) depend on a legal norm and not on the will of the state as such. In consequence, recognition of a subject of international law is not an act, but a legal fact (  fait juridique subjective).5 One should add, however, that waiver or promise also produce their effects because of respective legal norms which attach such effects to a declaration or other behaviour of a subject of international law. This probably explains why the above-cited argument of J. Verhoeven has not had much influence on other authors, especially those who use a broader definition of acts of international law. As was said in Part 1 of this work, I am not convinced of the necessity to adopt such a narrow definition of an international act (transaction of international law). The dependence on customary norms is not the only argument of Verhoeven with respect to the recognition of a state. Having reference to the declaratory 3 E. Suy, Les actes juridiques unilatéraux en droit international public, Paris, 1962, p. 192 and before. 4 E. Suy, op. cit., p. 195. 5 J. Verhoeven, La reconnaissance internationale dans la pratique contemporaine, Paris, 1975, p. 716.

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theory of recognition of a state, he arrives at the conclusion that recognition is a political act deprived of legal effects.6 It is difficult not to see that he adopts a tacit assumption that the recognition of a state is a transaction of international law if it creates a new state. The lack of a constitutive effect would mean that recognition does not have the character of a transaction of international law. Analogously, recognition of a government is qualified as a protocol act or act initiating relations based on mutual consent,7 which also means that in the opinion of Verhoeven it is not a legal transation. With reference to the recognition of treaties, Verhoeven writes that such recognition does not give rise to an obligation to respect their provisions.8 Thus according to Verhoeven recognition of a treaty is only a political act and also does not have the status of a legal act (acte juridique).9 In this respect he makes two assumptions. The first is that recognition of a treaty is a transaction of international law only if it gives rise to a duty to respect the provisions of that treaty, otherwise it is not such a transaction; and the second assumption is clearly that the recognition of a treaty never gives rise to an obligation to respect that treaty. A most important challenge for Verhoeven concerns the recognition of belligerency. Verhoeven must acknowledge that such recognition has a constitutive character,10 which makes it impossible to deny legal effects to such recognition. Verhoeven does a lot to deprive this element of the importance which it in fact deserves. He writes that recognition of belligerency is the least proper to be included in such a framework of legal transactions (actes juridiques), which would provide different modes of recognition with uniform treatment.11 It is difficult to figure out, however, why such a uniform treatment should be a precondition to the qualification of this type of recognition as a legal transaction. Verhoeven indicates that the status of civil war has an objective character and is not dependent on recognition.12 This does not mean, however, that recognition does not create any new rights or obligations.13 Last but not least, Verhoeven 6 7 8 9 10

11 12 13

J. Verhoeven, op. cit., pp. 722–724. J. Verhoeven, op. cit., pp. 722–724. J. Verhoeven, op. cit., s. 731. J. Verhoeven, op. cit., p. 732. J. Verhoeven, op. cit., pp. 743–746. The effects of that recognition are to be limited to impose the rules connected with neutrality upon the recognizing state and the parties to a conflict; see: J. Verhoeven, op. cit., p. 749. J. Verhoeven, op. cit., pp. 734–735. J. Verhoeven, op. cit., p. 737. It will be evaluated in a subchapter devoted to recognition of belligerency.

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stresses that recognition of belligerency is of almost no practical importance, but is of speculative value only.14 One can say, however, that its importance for theory may all the same be quite large. It is difficult not to see that Verhoeven would be happy to jump on any argument putting into doubt that recognition of belligerency is a transaction of international law, but he cannot find any such argument. It is visible as well that Verhoeven treats this fact as a paradox. It is rather an apparent paradox. Verhoeven faced it because many other authors did not venture into such an in-depth study of the different objects of recognition and of the very nature of recognition itself. There is no doubt that the solution to this problem could be found in an analysis of the effects of recognition of different objects. In this sense the method chosen by Verhoeven must be deemed proper. It should, however, also be extended to the other objects of recognition mentioned in the preceding chapter. One additional methodological question must be asked. If one refers to a given object of recognition as X, can it be said that recognition of X is not a transaction of international law if it never gives rise to legal effects, or when it may happen that legal effects arise only sometimes but not always? Both answers are connected with some risks. The first one extremely attenuates the notion of a legal transaction, and the second one extremely limits it. There seems to be no other choice but to qualify the legal effects of the recognition of X as either (a) excluded a priori; (b) possible in certain cases; or (c) present by definition. 13.4

Recognition of Rights

The emergence of the Stimson doctrine and of the prohibition against the recognition of illegal territorial acquisitions forced the authors of the monographs15 on recognition to face the topic of recognition of elements other than classical objects of recognition (states, governments, belligerents and insurgents). While the prohibition against recognizing some territorial acquisitions is not as such a special object of interest of this book, it is interesting here mainly because of having attributed to the elimination of a peculiar gap in the theoretical discussions on recognition. This gap resulted from distinguishing 14 J. Verhoeven, op. cit., p. 746. 15 Vide: infra. This remark concerns above all the monographs of H. Lauterpacht and T.-Ch. Chen. It is more than visible that their discussions on all elements other than classical objects compare an alien fragment in a whole.

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the classical objects of recognition – being at the very centre of attention – from other objects, treated marginally or even ignored. But the recognition of elements other than classical ones clearly should not be neglected. The limited framework of the present study does not permit me to dwell in detail on such topics as: recognition of neutrality, recognition of a protectorate, recognition of the name of a state, recognition of a flag, recognition of a border, recognition of territorial changes, recognition of the title of a head of state, etc. It seems justified to refer to them using more general categories and discuss the recognition of rights. In fact, however, the main context in which the majority of the doctrine refers to this topic is the recognition of territorial acquisitions. B. Wiewióra defines such recognition as an ‘expression by a state of its positive relationship to the legality of acquisition by another state of territorial sovereignty over a given area.’16 The object of recognition may be a right as such or an event connected with right. It is worthwhile to invoke in this context a memorandum submitted by Hungary on 26 April 1946 to the Paris Peace Conference. It read, inter alia, that ‘The Hungarian Government takes note of the annulment of the Vienna award of 2nd November, 1938, and of the re-establishment of a common frontier between Hungary and Czechoslovakia as it existed on 1st January, 1938.’17 There is no doubt that one of possible objects of recognition may be the establishment of maritime zones by a state.18 After the famous case of the arrest of a Spanish ship by Canada in international waters, the European Community when concluding a treaty with Canada reserved that the treaty may not be interpreted as the recognition of legality of the arrest of a ship or of jurisdiction of Canada beyond 200 nm from the baseline.19 Prima facie the recognition of territorial acquisition or of another right of a foreign state seems to be a transaction of fundamental importance. The question whether such recognition is a transaction of international law would seem to be purely academic, and a positive answer would also seem more than obvious. However, if one analyses the question in more depth some doubts may emerge. What for example are the legal effects of recognition by Poland of the 16 17 18

19

B.B. Wiewióra, Uznanie nabytków terytorialnych w prawie międzynarodowym, Poznań, 1961, p. 39. M.M. Whiteman, Digest of International Law, Washington, vol. 3, p. 150. See: resolution of the Icelandic Althing of 5 May, 1959 cited in the case of dispute on fisheries jurisdiction (uk v. Iceland), i.c.j. Reports 1974, p. 12. It urged the government to obtain recognition for the Icelandic 12-mile maritime area. Cited on the basis of: Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, i.c.j. Reports 1998, p. 445.

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fact that an area on the opposite side of the globe belongs to state X, and not to state Y? What legal effects would result from the recognition of a flag of another state? Clearly the former would improve Poland’s relations with state X, while withholding recognition of the latter would worsen the relations with the flag state (or even would make it impossible to conduct certain relationships). One can wonder however if it is possible to confirm the presence of any purely legal effects. On the other hand, if they are absent, why do states care so much about recognition of their rights (especially territorial ones), and why does the international community care so much about the denial of recognition in situations contrary to international law? Authors dealing with recognition of territorial acquisitions faced this phenomenon relatively early. It is therefore underlined that recognition is not a condition for validation of a new territorial acquisition of a given state, neither by primary acquisition nor by secondary one. It is only because of the fact that some doubts may exist as to the legal basis of acquisitions, especially as regards primary acquisition, that recognition is sought.20 Many authors concentrate on the conformity of territorial acquisitions with the law. F. Berber formulates the thesis according to which (with some reservations) recognition neither turns an illegal acquisition into a legal one, nor does the lack of recognition turn a legal acquisition into an illegal one.21 This thesis however can be hardly defended in its entirety. The doctrine rightly distinguishes the situation of a state which is directly affected by a given territorial change (usually the previous sovereign or the state which lost control over a given territory).22 Recognition given by such state may turn an ‘illegal’ territorial acquisition of another state into a legal one.23 Also H. Lauterpacht, while limiting the importance of recognition to doubtful or disputed situations, indicates that such recognition ‘is a combination of waiver of a competing claim and of an undertaking not to challenge the title in question in the future.’24 The same effects are referred to by R.L. Bindschedler.25 T.-Ch. Chen also writes that: ‘The role of recognition is different, however, in cases where the act or situation in question is internationally illegal or of questionable legality. 20

F. Berber, Lehrbuch des Völkerrechts. Erster Band. Allgemeines Friedensrecht, München und Berlin, 1960, t. i, p. 240, so też: H. Lauterpacht: Recognition in International Law, Cambridge 1947, p. 410. 21 F. Berber, op. cit., t. i, p. 240. 22 Ibidem. 23 Ibidem. 24 H. Lauterpacht, op. cit., p. 411. So also: R.L. Bindschedler, Die Anerkennung im Völkerrecht, Archiv des Völkerrechts, 1961–62, p. 388. 25 R.L. Bindschedler, op. cit., p. 388.

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In such a case, recognition assumes the character of a waiver of a claim, in so far as it concerns the recognising State, and an act of quasi-legislation as regards the whole community, if participated in by a sufficient number of States.’26 In the opinion of F. Berber, such recognition ‘turns a situation hitherto doubtful from the legal point of view into a situation which is legal in some sense (…).’27 This last reservation – in einem gewissen Sinn rechtlich – is of utmost importance from our perspective. One cannot avoid asking the fundamental question whether what is at stake is actually a legal transaction or something which resembles it? A lot of arguments speak in favour of a purely legal effect. An example confirming the close interrelationship between recognition and waiver can be found in Art. 28 of a peace treaty signed with Italy on 10 February, 1947. It reads that: ‘Italy recognizes that the island of Saseno is a part of the territory of Albania and renounces all claims thereto.’28 The possible effects of recognition which have the nature of waiver have practical importance only with respect to the former sovereign or the author of competing claims. An interesting proposition (mentioned in the previous chapter) is that a recognizing state (not necessarily belonging to either of the two above-mentioned categories) incurs an obligation not to put into doubt the recognized subject/object. As will be said however in some cases this obligation resembles an empty shell. This may give a very pessimistic picture of the legal effects of recognition of rights by states less interested in a given matter. In fact the picture is at one and the same time much more promising and more complicated. Such effects may emerge in a most unexpected area. For example, the us denial of recognition of the annexation by the ussr of the Baltic states gave rise to several rulings of American courts. In the case of A/S Merilaid & Co. v. Chase National Bank of City of New York,29 an Estonian firm (at the time with its head office in Stockholm) demanded its deposit from the defendant bank. The latter argued that upon the incorporation of Estonia into the ussr the plaintiff company was nationalized and became a part of another enterprise. The Supreme Court (Special Term) of New York County on 16 May, 1947 ruled that: 26 27 28 29

T.-Ch. Chen, The International Law of Recognition. With Special Reference to Practice in Great Britain and the United States, London 1951, p. 411. F. Berber, op. cit., t. i, p. 240. Cited on the basis of: M.M. Whiteman, op. cit., vol. iii, p. 114. Judgments of the Supreme Court (Special Term) of New York County, a.d. 1947, pp. 15–16.

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Confiscatory decrees cannot be given extraterritorial effect. What’s more, the us Government does not recognize the incorporation of Estonia into the ussr. The legality of nationalization decrees of the regime functioning in Estonia at present has not been recognized by the us government.30 It is also worthwhile to refer to American cases on inheritance from nationals of the Baltic states. In the case re: Estates of Luks et al.31 persons claiming to be heirs of Luks produced documents nominating attorneys. These documents were certified by the Soviet organs. They were notaries in the Latvian Soviet Republic (as regards the estate of Luks) and the Estonian Soviet Republic (as regards the estates of two other persons). The signatures of the notaries were confirmed by the Soviet Ministry for Foreign Affairs, and the latter certification was confirmed by the American consul (with the reservation that it was not equal to recognition). The consuls-general of the Latvian and the Estonian governments in exile challenged these documents. The court sitting in the case agreed with the governments in exile. It argued that inasmuch as the usa did not recognize the incorporation of Latvia and Estonia into the ussr, it recognized neither the legality of the puppet authorities of the Latvian and Estonian Soviet Republics nor the application of Soviet law in Latvia or Estonia. The documents nominating attorneys would have had to have been effected in accordance with the law of Latvia and Estonia. Given the lack of this condition, the court did not allow the lawyers in question to represent the interested persons in the proceedings. Interestingly enough, just the opposite ruling was made by another American court in the case of the Alexandravicus’ Estate.32 In this case the courts of both instances dismissed the claim of the consul-general of Lithuania (in exile). The ruling in the second instance of the Superior Court of New Jersey, Appellate Division, stressed that: The policy of non-recognition affected only acts political in nature. The execution of a power of attorney and its acknowledgment and certification were not political acts and therefore their validity should be governed by the law which was in force at the place of their execution.33 30 31 32 33

Ibidem, at p. 15. Case called re Estates of Luks et al., us Surrogate’s Court, judgments of 11 January 1965, ilr 35, pp. 62–65. Case called re Alexandravicus’ Estate, judgments of the Superior Court of New Jersey, Appellate Division, judgment of 17 April 1964, ilr 35, pp. 51–57. Ibidem, at pp. 51–52.

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Another challenge for the doctrine is how to qualify the recognition of territorial changes not giving rise to doubts. H. Lauterpacht attributes only political importance to the recognition of territorial changes the legality of which is unquestioned; in his opinion in such matters ‘the question of recognition or non-recognition does not arise.’34 As a main argument he cites a 1912 situation when Italy approached the usa with a request for recognition of its title to Tripoli and Cyrenaica. The usa responded that in such situations they neither ask for nor give express recognition.35 It is however a fact that states asked for such recognition and the addressees of such demands did not have to follow the us example. R.L. Bindschedler calls such recognition declarative.36 One can wonder if it is possible to deny any legal significance to such recognition? Let us imagine that Poland recognizes that the sovereignty over a given area belongs to Peru and not to Chile. Can one reasonably assume that Poland incurs no obligation? If so, what would stop Poland from making a statement two days later that the area in question all the same belongs to Chile. There is no doubt that such a statement would be contrary to international law. In this situation reference to the general definition of recognition is very helpful. H.M. Blix writes that ‘recognition, in these cases, conveys an acceptance of the claim to jurisdiction and implies a readiness to respect it in practical contacts.’37 Several definitions of recognition presented in the previous chapter associated the effect of recognition with the lack of possibility to put into doubt the recognized element. Accepting such a definition, one can claim that every recognition concerning any right – both doubtful ones as well as unquestioned ones – means loss of the right to put into doubt the right recognized. Therefore every recognition of a right is a transaction of international law. However already in this very definition a conflict with the above interpretation is visible. If one has to do with a right giving no basis for any doubts whatever, there is clearly no right on the part of another state to put the former right into question, hence there is nothing to waive by the means of recognition. In this sense it seems more reasonable to adopt the view according to which only the recognition of a right giving rise to doubts is a legal transaction, while recognition of another right is a political act. This logical conclusion may also be problematic however. Let us imagine that two states agree on a cession of territory. A third state does not want to recognize it. This lack of recognition by the third state may be a practical problem for a new 34 35 36 37

H. Lauterpacht, op. cit., p. 410. H. Lauterpacht, op. cit., pp. 410–411, footnote 2. R.L. Bindschedler, op. cit., p. 388. H.M. Blix, Contemporary aspects of recognition, rcadi, 1970–ii, p. 599.

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sovereign, for example in the field of diplomatic protection over inhabitants of the ceded area. This means that one can imagine a lack of recognition of a situation which is not doubtful, and that such lack of recognition may have practical consequences all the same. This is a challenge to the previous concept. The doctrine may adopt different ways of dealing with this. It can claim for example that the third state is simply violating international law. Recognition would amount to cessation of the violation. While this would always have practical results, nobody would be ready to call it as a legal transaction itself. The view was expressed that ‘a third state cannot deny recognition of legal effects of decisions of a sovereign with respect to its own territory. This is so independently of whether this decision took the form of a unilateral act or an international agreement.’38 However, it is difficult to speak about a generally-accepted obligation. What’s more, a third state may have its own view on the conformity of a given treaty with international law. Perhaps somebody would be ready to say that in such a situation one has to do with a doubt, but this conclusion would amount to depriving this criterion of any value. A ‘doubtful situation’ would be one in which a given state has a doubt or even pretends to have a doubt. This would be very subjective and highly unjust. That is why it is useful to look for other criteria for distinguishing between examples of recognition of a right which is a transaction of international law, and examples which are not. Let us analyse another situation. Let us suppose two states conclude a treaty on the mutual cancellation of debts. What would be the effect of recognition by a third state of the rights of the parties? According to the above-presented definition, the result would be a duty not to put into doubt the resulting rights. Is this duty really a legal obligation? If a treaty is in no way connected with a third state and the latter has no legal means to affect the states-parties, it seems that a duty not to put into doubt a treaty or rights stemming from it could be reduced to a recognition of facts only. This would mean that a state recognizing a treaty may not claim in a future that no treaty has been concluded. In this context one should take a look at the recognition of facts. The classical definition of recognition would suggest that such recognition leads to a duty not to put into doubt a recognized fact. In order to translate that general idea into real life, let us consider the examples of recognition of the fact that there is a drought in Egypt or that there is a flood in Bangladesh. At the first glance one cannot establish any legal effects of such recognition. In many cases this is the only possible description. However, one cannot say  that it is always so. Such examples of recognition could – unexpectedly 38

R. Baturo, Umowy międzynarodowe a państwa trzecie, Wrocław, Warszawa, Kraków, Gdańsk, 1971, p. 122.

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enough – lead to legal effects. If for example a recognizing state is a party to treaty attaching legal effects to a flood or draught, then the recognition of any such facts is of legal importance. In fact it is a kind of recognition of these legal effects, so it may be treated as a recognition of rights. This is by no means the only situation which would make it possible to establish legal effects of the recognition of certain facts. So for example a state having recognized the existence of a natural disaster in the above hypothetical(s) may have a problem arguing with Egypt or Bangladesh, invoking the principle rebus sic stantibus. Such a situation may give rise to resistance. It is difficult not to label as a paradox a situation in which the recognition of a fact may have more legal significance than the recognition of rights. However, what really matters is not the abstract reference to the object of recognition as legal or factual, but rather the possibility or impossibility to find more precise obligations for the authorstate of the recognition. That is why it must be stressed that despite the above-mentioned possible examples of recognition of facts which may produce legal effects, in the majority of cases there will be many problems with finding such effects, and in many cases they may be excluded with certainty. It is difficult here not to cite the sarcastic remark of W. Churchill: ‘One can recognize a man as an Emperor or as a grocer. Recognition is meaningless, without a defining formula.’39 What legal effects are produced by recognition of a man as a grocer? The classical definition of recognition would suggest that such recognition results in a duty not to put into doubt the fact that a given person is a grocer. This is the best proof that the classical definition is not perfect. Especially ‘the loss of the right to put into doubt the recognized object’ cannot be read literally and treated as a legal effect in the technical meaning of the term. Otherwise ‘recognition’ of, e.g., the fact of a president of another state has grey hair could be seen as a legal transaction. In consequence one must exclude that recognition is by definition a legal transaction. In particular ‘the lack of possibility to put into doubt the recognized object’ cannot be always treated as a legal effect. Determination whether one has to do with an example of recognition which is or which is not a legal transaction can only be effected a casu ad casum. The confirmation of a legal effect will be possible only if it is possible to prove a new duty for the recognizing state, or its actual loss of a right. One can wonder about the presence of such an effect if an unclear duty is transformed into a clear one. I am ready to confirm it. On the other hand the assumed ‘duty not to deny’ or ‘the loss of the right to put into doubt’ must be itself verified. It must be checked whether what is in place is an actual legal effect or perhaps only an apparent one. 39

Cited on the basis of: H.M. Blix, op. cit., p. 611.

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The phrase a casu ad casum does not imply a necessity to examine every individual case of recognition (recognition of Poland, Albania, Montenegro, Southern Sudan and so on). It may turn out that certain types of recognition by definition are, or by definition are not, transactions of international law. In other words, recognition of certain objects may always be or may never be such a transaction. But one can say this neither with respect to recognition of rights (legal situations) or facts (factual situations). It cannot be said that they are always legal transactions, nor can it be said that they are never such transactions. That is why what remains with respect to them is either to refer to narrower categories or, in extreme situations, to individual cases. In general one can say that recognition by a state of its actual obligation to act or to abstain from action is a transaction of international law. The same can be said about recognition of a fact which has a direct influence on such an obligation. Two reservations must be added here. Firstly, a duty not to put a recognized object into doubt will not be automatically treated as such an obligation, though in many cases it will be a perfect description of its actual legal effects. Secondly, one may have doubts about how to qualify recognition of an obligation which was not doubtful before recognition. In my opinion such recognition does not deserve to be qualified as a legal transaction. What must be established is at least a minimal modification, in plus, of duties. That is why it would be a mistake to see a transaction of international law in recognition by a state-party to a treaty of the verbatim wording of its treaty obligation. One must change the qualification if that state-party recognizes either the application of a treaty to a given case or a particular interpretation of a treaty. It seems to me that it is also useful to adopt a more liberal attitude to customary norms. Recognition of the precise meaning of a norm which as such is not very clear should rather be treated as a transaction of international law. The following subchapters will address the topic of recognition of states, governments, belligerents and insurgents. Their connections with the recognition of rights or facts are numerous. This will influence the definitive conclusions about whether to qualify recognition as a transaction of international law. 13.5

Is Recognition of a State a Legal Act (Acte Juridique) of International Law?

13.5.1 Definition of Recognition of a State The discussion on the recognition of states should start with the survey of several definitions of that recognition. One can see important differences among the various authors. It remains to be determined whether they are due

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to wording only or whether they contain substantive differences. In many instances they are due to wording only. So for example L. Oppenheim defines recognition of a state as ‘the act, through which it becomes apparent that an old State is ready to deal with a new State as a subject of international law and a member of the Family of Nations.’40 G.H. Hackworth writes that recognition (of a new state or a new government) is an ‘act officially acknowledging the existence of such a state or government and indicating a readiness on the part of the recognizing state to enter into formal relations with it’.41 P.C. Jessup defines recognition of a state as an ‘act by which another state acknowledges that the political entity recognized possesses the attributes of statehood’.42 Such definitions are quite general. What’s more, they make it possible for their authors not to take position in the famous dispute between constitutive and declaratory theory. At the same time they allow the authors to refer to more specific properties of recognition (such as subjects,43 their unilateral or non-unilateral character, and so on). Still, one can find definitions which take position in the dispute between the two above-cited theories. K. Strupp defines recognition of a state as ‘a declaration of will which as a rule is unconditional and not limited by a deadline, irrevocable and requiring acceptance. This declaration creates capacity to hold rights and duties of international law. There is no legal claim to be recognised.’44 On the other hand, J.B. Moore indicates that recognition of a state ‘is the assurance given to a new state that it will be permitted to hold its place and rank, in the character of an independent political organism, in the society of nations.’45 Moore also writes about a state as follows: ‘The rights and attributes of sovereignty belong to it independently of all recognition, but it is only after it has been recognized that it is assured of exercising them.’46 There is no doubt that every definition contains a selective reference to several characteristic elements of a defined object. No definition can replace a thorough and complete analysis of these elements. What is interesting here are the effects of recognition, especially the legal effects. This is the topic which 40

41 42 43 44 45 46

L. Oppenheim, International Law. A Treatise. Vol. i – Peace, Third edition edited by R.F. Roxburgh, New York, Bombay, Calcutta, Madras, 1920, (hereafter cited as Oppenheim 3), p. 135. G.H. Hackworth, Digest of International Law, Washington, 1940, vol. i, p. 161. P.C. Jessup, A Modern Law of Nations. An Introduction, New York, 1949, p. 43. What is of the utmost importance is whether what is at stake is only recognition of a newly established state. K. Strupp, Grundzüge des positiven Völkerrechts, Bonn und Köln, 1932, p. 78. J.B. Moore, Digest of International Law, vol. i, p. 72. J.B. Moore, op. cit., vol. i, p. 72.

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will be discussed here. But first of all it is necessary to examine the influence on these effects and their perception that was produced by the dispute between the two competing theories of recognition of states. 13.5.2 Constitutive and Declaratory Theories H. Lauterpacht notes that: ‘The consideration of the theory of recognition in  international law has traditionally taken place in terms of the conflict between the constitutive and the declaratory doctrines.’47 T.-Ch. Chen writes that: ‘The question of the international recognition of States has always been dominated by the controversy between two schools of thought, namely, the constitutive and the declaratory schools.’48 This dispute was present already at the turn of the 19th and 20th centuries. At the beginning of the 20th century K. Gareis wrote that a declaration on recognition had no constitutive character, only a declarative one. It did not create a new state, but only indicated, that it was a subject of international law.49 At almost the same time L. Oppenheim formulated the famous sentence: ‘A state is, and becomes, an International Person through recognition only and exclusively.’50 Most authors of works on international law during the first half of the 20th century felt obliged to make a choice between the two theories.51 On the other hand, contemporary works rather limit themselves to report the existence of the dispute and present the competing theories in a simplified form.52 For example 47 48 49

50 51

52

H. Lauterpacht: op. cit., p. 38, similarly H.M. Blix, op. cit., p. 603. T.-Ch. Chen, op. cit., pp. 13–14. K. Gareis, Institutionen des Völkerrechts, Giessen, 1901, p. 64. For a similar position see: A. Rivier, Principes du droit des gens, Paris, 1896, i, p. 57; E. Nys, op. cit., tom i, p. 70; E. von Ullmann, Völkerrecht, Tübingen, 1908, p. 125. Oppenheim 3, op. cit., p. 134. The doctrine attributes constitutive views to: Hegel, Jellinek, Anzilotti, Cavaglieri; see: H. Lauterpacht, op. cit., pp. 38–41. T.-Ch. Chen adds to them: Triepel, le Normand, Liszt, Lawrence, Wheaton, Kelsen, Redslob, Bluntschlie, Lauterpacht; see: T.-Ch. Chen, op. cit., p. 14. One can also add to them H.B. Jacobini (see: H.B. Jacobini, International law. A text, Homewood, Illinois; Nobleton, Ontario, 1968, p. 59) and J. Spiropoulos (see: J. Spiropoulos, Traité théorique et pratique du droit international public, Paris, 1933, p. 48). Among the representatives of the declaratory theory Lauterpacht lists: Kunz, Ullmann, Nys, Heilborn, Verdross and Brierly; see: H. Lauterpacht, op. cit., p. 41. T.-Ch. Chen adds to them: Vattel, Westlake, Moore, Williams, Lorimer, Scelle; see: T.-Ch. Chen, op. cit., pp. 14–15. Just for illustrative purposes one can cite: V.D. Mahajan, International Law, Lucknow, Delhi, 1958, p. 149; W. Góralczyk, Prawo międzynarodowe publiczne w zarysie, Warszawa, 1989, p. 155; W. Czapliński, A. Wyrozumska, Prawo międzynarodowe publiczne. Zagadnienia systemowe, Warszawa, 1999, p. 230. As regards the authors of books on recognition, only J. Verhoeven demonstrates a distance to the issue of the two theories, devoting only a very short reference to them at p. 8, see: J. Verhoeven, op. cit., p. 8.

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W. Czapliński and A. Wyrozumska write that ‘according to the constitutive theory, the existence of a state depends on the international community recognizing that state. (…) The opposite – declaratory view – reduces recognition to the confirmation of a certain actually existing entity.’53 Many other authors present the view that the essence of the dispute relates to the existence of a state.54 In my opinion this does not reflect the constitutive theory in a proper way. The thesis that the creation of a state is a fact is present in the works of representatives of both theories.55 That is why it seems that the 53 54

55

W. Czapliński, A. Wyrozumska, op. cit., p. 230. P.C. Jessup, A Modern Law of Nations. An Introduction, New York, 1949, p. 43; see also: O. Svarlien, An Introduction to the Law of Nations, New York, Toronto, London, 1955, p. 97; D.P. O’Connell, International Law for Students, London 1971, p. 50; V.-D. Mahajan, op. cit., pp. 149–150. A much better reconstruction is proposed by T.-Ch. Chen. He presents as the most spectacular description of the constitutive view the words of Oppenheim, according to whom ‘A State is, and becomes, an International Person through recognition only and exclusively’. In order to give an idea of the declaratory view T.-Ch. Chen cites the fragment of a work by Hall saying that: ‘States being the persons governed by international law, communities are subjected to law…from the moment, and from the moment only, at which they acquire the marks of a State.’ For both views see: T.-Ch. Chen, op. cit., p. 14. Already in 1878 J.C. Bluntschli wrote that the emergence of a state is not regulated by international law; see: J.C. Bluntschli, Das moderne Völkerrecht der civilisirten Staten als Rechtsbuch dargestellt, Nördlingen, 1878, p. 72. Other authors say the same, although in different words. So for example K. Strupp calls the emergence of a state a fact which cannot be grasped by law (juristisch nicht erfassbar); K. Strupp, op. cit., p. 75. A. Hold-Ferneck says that “the emergence of a state is a historical fact – the creation of a territorial person having its law and interesting other states mainly as a community based on and disposing of power (Machtgemeinschaft)”; see: A. Hold-Ferneck, Lehrbuch des Völkerrechts, Leipzig, 1930, i, p. 177 (one should add that this statement is not an obstacle for Hold-Ferneck to adopt a very formalistic theory of recognition). J. de Louter says that international law regulates neither the sources of a state nor its emergence; the former are dealt with by the philosophy of law or the doctrine of state, the latter – by history; see: J. De Louter, Le droit international public positif, t. i, p. 216. F. de Martens writes that states are born, grow, get old and die; see: F. de Martens, Traité de droit international, (traduit du russe par A. Léo), Paris, 1883, p. 357. E. von Ullmann indicates that personality is a certain fact (Tatsache), that is a certain state of disposing of liberty and independence in international law, which cannot be put into doubt by references to domestic law; see: E. von Ullmann, op. cit., p. 125; J. Hatschek writes that the creation (as well as collapse) of a state is composed of Völkerhandlungen and not Völkerrechtshandlungen; J. Hatschek, Völkerrecht als System rechtlich bedeutsamer Staatsakte, Leipzig 1923, p. 144. Sometimes the doctrine refers to the reasons behind the emergence of a state. So for example E. Nys writes that classifications of the means of creation of states have no importance from the perspective of international law; see: E. Nys, op. cit., t. i, p. 69. F. de Martens qualifies those reasons (methods)

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reconstruction of R. Jennings and A. Watts is better. Their main point of reference is the notion of an international community.56 Jennings and Watts attribute to the declarative doctrine the view according to which ‘a new State comes into existence as a matter of fact, it thereupon enters into the international community and becomes of right an international person regardless of whether it has been recognized.’57 The constitutive view is said to claim that ‘no State has a duty to recognize a new State; that a new State before its recognition cannot claim any rights which a member of the international community has as against other members, and that it is recognition which constitutes the new State as a member of the international community.’58 The framework of the present work does not allow me to conduct a more detailed analysis of the views of the numerous representatives of the competing theories of recognition of states. The same is true with respect to their origins and their philosophical as well as political and legal foundations. It is worthwhile pondering however whether the dispute has not become a kind of burden and obstacle to the analysis of recognition, despite the importance of the issues underlying the two views. H. Lauterpacht writes that the situation surrounding recognition (or more properly its depiction) ‘has been obscured by the circumstance that the problem of recognition of States has been identified with the controversy between the rival doctrines of the declaratory and the constitutive character of recognition.’59 Critical remarks concerning the presentation of recognition, mainly in the context of the dispute between the two doctrines, were offered by R. Jennings and A. Watts. They write that ‘[t]he problem is largely theoretical because state practice is inconclusive and can be rationalised either way.’60

56 57 58 59 60

to the domain of domestic law (see also: J.C. Bluntschli, op. cit., p. 72) and history; see: F. de Martens, op. cit., p. 358. H. Bonflis writes, that the emergence of a state is a historical but not a legal matter; see: H. Bonfils, Manuel de droit international public (Droit des gens), septième édition par P. Fauchille, Paris, 1914, p. 130. J. Spiropoulos stresses that, unlike the Vienna School claims, the emergence of a state is an extra-juridical fact (extrajuridique); see: J. Spiropoulos, op. cit., p. 47. R. Jennings, A. Watts, Oppenheim’s International Law, ninth edition, vol. i, London, New York, 1997, p. 128. R. Jennings, A. Watts, op. cit., p. 128. R. Jennings, A. Watts, op. cit., p. 129. See: H. Lauterpacht, op. cit., p. 1. This critical attitude has to do with the thesis of Lauterpacht on the duty to recognize. R. Jennings, A. Watts, op. cit., p. 129. As to the theoretical character of the dispute, see: H.B. Jacobini, op. cit., p. 58.

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From the perspective of the present work a different topic is more important. It must be asked whether the ‘recognition’ discussed by the theories is an ‘act of recognition’ of interest for the present work. Are the effects attributed to recognition by either of the two theories precisely identical with the effects of an act of recognition as such (without prejudging whether they are unilateral on not)? This element was not overlooked by authors criticising the constitutive theory. The main argument against it referred to situations in which one group of states recognized a given entity as a state and another group did not so recognize. The constitutive doctrine seemed to lead to the paradox that the same entity was a state for the first group and not for the second group. T.-Ch. Chen, writing on the constitutive theory, stated that ‘[i]n assuming that recognition is binding only inter partes, it is forced into the absurd conclusion that States can exist only in a relative sense.’61 This element is also referred to by other authors.62 The problems of the constitutive theory and its adherents are of no special importance here. What is important here are two elements – the very fact of recognition producing any effects at all, and the fact of producing them for the author-state. In consequence it is difficult to see in ‘recognition’ as discussed by the constitutive theory an individual act of recognition, while ‘recognition’ as discussed by the declarative theory may be identified even with an individual or collective acts of recognition. However, the theory concentrates on what recognition is not, rather than on what it is, while it is the latter element that is really critical for any and all discussions on whether the recognition of a state is a legal transaction or not. To this end the dispute between the theories is of minor importance. It is the attempt to identify the legal effects of that recognition which is of crucial importance here. 13.5.3 Legal Effects of Recognition of a State Discussion of the legal effects of recognition of states is almost non-existent, if one insists on effects which belong solely to the sphere of international law. A positive assumption seems to be too obvious to require justification. If that were the case, then the list of legal effects should be equally obvious. In fact nothing is obvious. Even worse, the doctrine seems to pay no attention to its weakness in this area. One can ponder over various reasons for the thorny problems associated with identification of the ‘obvious’ legal effects of recognition of states. One of 61 62

T.-Ch. Chen, op. cit., p. 4. J.L. Brierly, The Law of Nations. An Introduction to the International Law of Peace, Oxford, 1963, pp. 138–139.

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these reasons may be the very serious treatment of some political or quasilegal arguments for recognition. Here one must invoke the arguments presented by Lord Canning in 1825 for the recognition of the newly independent states of Latin America. According to him, without recognition Spain would have been responsible for its rebellious subjects, the new states would have incurred no responsibility whatsoever, and their inhabitants would have had to be treated as outlaws. J. Charpentier rightly notes that none of these ‘effects’ of the lack of recognition are positively verified.63 Hence it is difficult to present their elimination as a legal effect of recognition. F. de Martens distinguished the effects of recognition as being dependent on the number of recognizing states. If recognition was given by all states, a recognized state was believed to become a normal (régulier) member of the international community. According to de Martens, recognition by some states only made it possible for a new state to enter into normal relations with those powers which had recognized it.64 Without automatically accepting these conclusions, one should ask whether they referred to ‘legal effects’ in the technical meaning of the term. In other words, does the establishment and preservation of relationships have a legal character? While relations or contacts are not legal acts as such, normal diplomatic relationships presuppose several acts which have a manifestly legal character. What’s more, the very establishment of such relations may be qualified as a form of recognition.65 However, recognition does not lead automatically to the establishment of diplomatic relations. Also, one cannot equate ‘normal’ relations with diplomatic relations. That is why it would be difficult to treat ‘normal relations’ as a legal effect in the precise meaning of the term. Sometimes recognition is presented as a precondition for the possibility to conclude treaties.66 In fact however some treaties are concluded despite the absence of recognition.67 In addition the very conclusion of a political treaty may itself be a form of recognition. H.B. Jacobini writes in this context that recognition of a state or government means the grant of full international personality, makes it possible to preserve that personality in cases of the loss of territory, gives the recognized state the privilege to initiate proceedings in the recognizing state, and creates the basis 63 64 65 66 67

J. Charpentier, La reconnaissance internationale et l’évolution du droit des gens, Paris, 1956, pp. 45–47. F. de Martens, op. cit., p. 361. Vide: the next chapter. V.D. Mahajan, op. cit., p. 159. See: the next chapter and remarks on forms of recognition.

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for the exchange of diplomatic representatives.68 The ability to initiate proceedings should be associated with recognition of a government, which will be discussed in the next subchapter. However, the first element – the grant of full international personality – is of utmost importance here. A. Rivier presents an extremely long list of effects of recognition of a state. In his opinion, it is not only a form of taking notice of a given fact, but also the acceptance (l’approbation) of that fact. He writes that recognition encompasses the ‘legitimisation (légitimation) of a factual situation having all the same a legal character (qui se trouve désormais fondée en droit); the proof of trust of other states in the stability of a new state of affairs; assurance given to a new state that it will be able to take its position and rank.’69 Rivier adds that recognition impliedly gives rise to a formal obligation to respect the rights (droits et attributions) of sovereignty of a new subject of international law. As is visible, this catalogue of ‘effects’, like many similar ones, reflect several general definitions of recognition (i.e. recognition understood in a general way). Leaving aside the elements of purely political assessment, which are less relevant here, all the same one find elements very interesting for a lawyer. These include taking notice of a fact, acceptance, legitimisation, and obligation. The latter element (obligation) is either identical with the obligation not to put into doubt the recognized object, or at least is connected with it. However, translating those elements into the language of obligations of international law is not easy. One may be tempted to say that recognition of a state is important not because of its direct legal effects, but because it is a precondition for other transactions giving rise to such effects. The next step could be a thesis according to which recognition of a state gives rise to no legal effects as such. This thesis however would be very difficult to defend. K. Gareis rightly identifies two effects of recognition. The first is the elimination of doubts as to the existence or non-existence of a state. The second effect concerns only the previous sovereign. Recognition by it means the ‘waiver of a right hitherto realized, of a claim to restore the previous state of affairs (Restitutionsanspruch), or a claim hitherto invoked (Prätension).’70 This second aspect clearly has a legal character. While in fact it can only serve as proof that recognition by the hitherto sovereign is a legal transaction, all the same this conclusion is of great importance here. It clearly makes it

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H.B. Jacobini, op. cit., pp. 63–65. A. Rivier, op. cit., i, p. 57. K. Gareis, op. cit., p. 65. On the topic of waiver, see also: E. von Ullmann, op. cit., p. 127, F. von Liszt, op. cit., p. 91.

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impossible to claim that recognition of a state is never a transaction of international law. However the existence of legal effects cannot be reduced to the above situation only. E. Nys rightly points to the fact that ‘recognition implies a formal obligation to respect rights and attributes (attributions) of sovereignty of a person of international law. These rights and attributes are due to that person independently of recognition, but it is only after the latter that a person is assured of the possibility to invoke them.’71 This element is of the utmost importance from our present perspective. It is of a purely legal nature. If a given state does not recognize another entity as a state it can (at least in some situations) help the hitherto sovereign to put down a rebellion. Recognizing a new entity as a state means that this right is foreclosed. It is not clear that every new territorial entity claiming to be a state actually has the right to assert the inviolability vis-à-vis the previous sovereign. It would be a great hypocrisy to pretend that the Serb Republic in Bosnia was not as good a territorial claimant as any other. The same must be said about Adjara, a non-recognized rebellious region of Georgia. There is no necessity to explain that decisions on the use of force must be made with great care. In fact that care will be dictated by policy – the presence of a good sponsor or protector of a new claimant to statehood. What is important from the present perspective is that recognition may be connected with the actual loss of a right to use force against entity claiming statehood. The interrelationships between recognition of a new state and the law (in the strict understanding of the term) are more numerous. In fact it is even difficult to compare the recognition of a single, individual right on the one hand with the recognition of a state on the other. As regards the former, the duty not to put into doubt the recognized right seems to exhaust the essence of recognition (keeping into mind the above-presented remarks on the nature of that ‘duty’). As regards recognition of something so complicated as the existence of a new state, one can identify numerous effects of recognition. For example in recognizing Montenegro the recognizing states incur or confirm their obligations to: respect Montenegro as a state; not put into doubt its subjectivity; accept the existence of a Montenegro nationality; respect its right to dignity; abstain from giving assistance to Serbia had it wanted to recover control over Montenegro, and so on. Interestingly enough J. Verhoeven, when referring to the 1913 recognition of Albania (not accompanied by recognition of its government) denies it the character of true recognition of a state. On the other hand, 71

E. Nys, op. cit., i, pp. 73–74.

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he attributes an effect to it in the form of an obligation not to interfere into the creation of territorial effectiveness.72 I have already alluded to a wider problem which is fundamental from the perspective of recognition of a state. It has to do with the dilemma whether one can treat as a legal transaction an act giving rise to obligations which would lie upon a state even without that act. In the context of recognition of states the dilemma is precisely: If the above-mentioned obligations for the recognizing states would be binding on them without recognition, then does the recognition of a state deserve the name of a legal transaction? A negative answer to this question would imply that a legal transaction would be only an act giving rise to a completely new obligation(s). Reversing such a thesis, one can claim that if recognition of a state is a legal transaction, recognition is really a waiver of the right to attack, insult or humiliate a state coming into existence. It is easy to see that this line of reasoning makes the proponents thereof hostage to the constitutive theory. A proponent of the declarative theory would seem to be under a logical obligation to deny the character of a legal transaction to the recognition of a new state. I earlier discussed a similar dilemma when dealing with international promises. In this field apparent promises were distinguished from real ones. The former were qualified as those which only affirmed pre-existing obligations. One can wonder whether one should not do the same with respect to recognition of a state. In this sense some instances of recognition would be legal transactions (e.g. recognition by a former sovereign), while others would have to be denied this character. The above conclusion may well be correct, but it would be evidently so unpleasant for lawyers that they would rather try not to take it into account. To do so would be in fact a confession of helplessness – neither the first nor the last as regards recognition in general, and recognition of a state in particular. A few methodological remarks must be made here. First of all the apparent similarities between promises and recognition have their limits. Repeating one and the same promise several times is not equal to the grant by one state of recognition to another. Only a few repetitions of the same recognition can be compared to the repetition of promises. What’s more, the identification of apparent obligations was aimed at identifying the real source of an obligation rather than denying the binding force of a later declaration repeating the previous one. As was said, the Nicaragua case should be a warning for those persons who are ready to depreciate identical obligations stemming from different sources. The same may be said about different legal instruments. This is all the 72

J. Verhoeven, op. cit., p. 68.

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more applicable to recognition. When granted, it will be the main point of reference for the evaluation of the relationship between the recognizing subject and the recognized one. Secondly, the fact of being under a general obligation is not necessarily identical to a more or less formal incurrence of a precise obligation with respect to a recognized subject. Therefore one cannot deny that in many, if not all, cases, recognition of a state is a transaction giving rise to effects in the field of international law. That is why such recognition can be (with a certain margin of error) called as an act (transaction) of international law. Recognition of a state is usually combined with recognition of a government. Hence the latter is discussed below in the following subchapter. 13.6

Is Recognition of Government a Legal Act (Acte Juridique) of International Law?

13.6.1 Introductory Remarks The discussion on recognition of a government must start with the list of interesting topics connected with such recognition which will not be discussed here. This list includes the dispute as to the existence of an obligation to recognize effective governments, the doctrines of Tobar and Estrada as well as conditions for recognition of a government. Secondly, there is no possibility to discuss in detail the comparison of de facto and de iure recognition. It will be interesting here only to the extent to which it has influence on the effects of recognition. The point of departure of the present analysis is the objective fact that governments (in the broad meaning of the term, including heads of states) were for many years recognized expressis verbis and that several customary norms on implied recognition of governments were developed and one cannot speak about the full desuetudo of that institution. This is all the more important inasmuch as many states, including the uk,73 decided to discontinue the practice of express recognition of governments74 and probably would be happy if the 73 74

S. Talmon, Recognition of Governments: an Analysis of the New British Policy and Practice, byil, 1992, p. 231. H.M. Blix, op. cit., p. 647; I.A. Shearer, op. cit., p. 119 (as to the usa, Australia and the uk); M.N. Shaw, International Law, Cambridge, 1991, pp. 306–307. Some authors seem to identify recognition with an express declaration on recognition. In my opinion this stance can be seen in: N. Ando, The recognition of governments reconsidered, Jap. ail, 28/1985, p. 30 ff. Also in my opinion such an identification is not possible.

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doctrine ‘forgot about’ that institution. This however is insufficient to bring about the cessation of that legal institution as such.75 The best proof of this is the fact that the doctrine still distinguishes and analyses it.76 13.6.2 Definition of Recognition of a Government J. Spiropoulos writes that by means of a declaration of recognition of a government ‘third states declare that they recognize the international capacity (capacité) of a de facto government, the capacity, which exists in fact on the basis of the law of nations, but which cannot be enforced against third states, unless they recognize it earlier.’77 G. Scharzenberger writes with respect to recognition of a government that: ‘The typical intention is to acknowledge that an existing subject of international law considers the head of State or government recognized as entitled to speak for, and enter into legal commitments on behalf of, the State concerned.’78 W. Góralczyk writes, that ‘recognition of a government is a unilateral act of a state, in which the latter declares or tacitly approves that a new government is the organ proper to represent its state in international relationships and that the recognizing state wants to maintain relationships with this government.’79 S. Talmon underlines, however, that the recognition of another government may be based on different motives. A recognizing state may reveal its willingness to establish or maintain official relations or to manifest its opinion on the legal status of a given regime.80 13.6.3 Legal Effects of Recognition of a Government G. von Glahn deplored the fact that ‘[r]elatively little has been written about the actual effects of the recognition of a new government.’81 And in truth it is difficult to find definitions referring to the topic of the effects of recognition of a government. The ones cited above are atypical. The list of authors who write 75

For possible problems see: case National Petrochemical Company of Iran v. M/T Stolt Sheaf brought in the usa by an Iranian public company at the time of the Khomeini regime in Iran. For more on this case, see: I. Henkin, R.C. Pugh, O. Schachter, H. Smit, International Law. Cases and Materials, St. Paul, Minn., 1993, pp. 276–283. 76 See: infra. 77 J. Spiropoulos, op. cit., p. 54. 78 G. Schwarzenberger, International Law, London, New York 1960, p. 67. 79 W. Góralczyk, op. cit., p. 157. 80 S. Talmon, Recognition of Governments in International Law: With Particular Reference to Governments in Exile, Oxford, 1998, at pp. 23 and 29 respectively. 81 G. von Glahn, Law Among Nations. An Introduction to Public International Law, Toronto, 1970, p. 102.

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a great deal on the recognition of a government but do not include a single passage on the legal effects of such recognition is quite large. Such a list would include the general works of P. C Jessup,82 O. Svarlien,83 D.P. O’Connell,84 and H.M. Blix.85 It is a paradox that authors more frequently underline the retroactive character of the effects of recognition86 than actually attempt to identify those effects as such. It is worthwhile to note that while H. Lauterpacht dealt with the ‘legal nature’ of recognition, he did not devote a single word to the legal effects as such. On the contrary he concentrated on such topics as the obligation to recognize a government, abuse of recognition, and collective recognition.87 He did however approach the topic which is the most interesting from the perspective of the present work when he wrote that ‘the necessity, in law, for the recognition of governments arises not from the fact of the revolution preceding the establishment of the new authority. That necessity is due mainly to the uncertainty, brought about by the events of the revolution, as to who is the holder of the effective power.’88 There still remains, however, the question whether this ‘law’ is necessarily international law as such. It may be ‘law’ in general – including possibly the necessity to bring about conditions for predictable case-law of domestic courts in difficult cases with foreign elements. As can be seen, the topic which seems the most promising from the present perspective is the dilemma whether recognition of a government is of a legal or political character. This issue unfortunately has been reduced to the question whether there is a duty to recognize a new government. O. Svarlien wrote that: ‘Though recognition may be a declaration of capacity rather than a contractual arrangement or a political concession, a distinction must be made between its motivation and its results. It might be admitted, for example, that political considerations are of paramount importance when a decision is made to grant or withhold recognition, without denying the legal consequences of whatever action is taken.’89 It is worth noting that while the choice between the constitutive and declarative theories usually includes a reference (often fragmentary) to the effects of recognition, in fact references to these theories are quite exceptional as regards 82 83 84 85 86 87 88 89

P. C Jessup, op. cit., pp. 55–64. O. Svarlien, op. cit., pp. 98–102. D.P. O’Connell, op. cit., pp. 52–54. H.M. Blix, op. cit., pp. 597–600, 617–618, 621–631, 643–645. G. Scelle, Manuel de droit international public, Paris, 1948, p. 163. H. Lauterpacht, op. cit., pp. 158–174. H. Lauterpacht, op. cit., p. 156. O. Svarlien, op. cit., pp. 102–103.

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the recognition of governments.90 To some extent this has to do with the conviction that it would be difficult to see recognition of a government as the beginning of or a precondition for its existence. What’s more, the declarative character of recognition91 means only the lack of an effect which would consist of the creation of a recognized object. It is easy to reconcile the declarative character of recognition with its more precisely defined legal effects. So for example W. Góralczyk writes that though recognition of a government has a declarative character, ‘it has a large political and legal importance.’92 It still remains to be decided however whether the ‘legal importance’ is identical with ‘effects of international law’. A more systematic approach to the legal effects of recognition of a government is necessary. A few authors have attempted to achieve it. For example A. Hold-Ferneck indicates that recognition of the organs means that they are perceived by the recognizing state as competent to represent a given state abroad, and to acquire rights and incur obligations for them.93 A. Hold-Ferneck writes that in the same way as recognition of state gives it legal capacity (Rechtsfähigkeit), so too recognition of a government gives it the capacity to conclude legal transactions (Handlungsfähigkeit).94 H. Kelsen writes that the legal act of recognition of a government may be undestood as ‘the establishment of the fact that an individual or a body of individuals is actually the government of a state’.95 G. von Glahn identifies the following effects of such recognition: – acknowledgment of ‘the stability of a recognized government as well as its willingness to honor its obligations’ – acknowledgment of ‘the willingness to enter into normal international relations, including the exchange of diplomatic agents’, – acknowledgment that the recognizing state will ‘hold the recognized government responsible for its international obligations as well as all official acts affecting them.’96 90 91 92 93 94 95 96

For such exceptional instances, see: I.A. Shearer, op. cit., p. 120; V.D. Mahajan, op. cit., pp.  149–150. See: G. Scelle, op. cit., p. 163; W. Góralczyk, op. cit., p. 157. W. Góralczyk, op. cit., p. 157. A. Hold-Ferneck, op. cit., t. i, p. 195. A. Hold-Ferneck, op. cit., t. i, p. 195. This concept is however very strictly connected with the radical constitutive views of that author. H. Kelsen, Recognition in International Law. Theoretical Observations, ajil, 1941, pp. 614–615. G. von Glahn, op. cit., p. 102.

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In fact these remarks concern the importance of recognition of a government rather than its legal effect in the technical meaning of the term. Some authors establish entire catalogues of the effects of recognition of a government. J.E.S. Fawcett indicates four basic effects of recognition of a government. They refer to the immunities of the government and its representatives; respect for the acts of the recognized government; the possibility of concluding international agreements with it; and recognizing its capacity to represent the State.97 The most comprehensive catalogue can be found in the several editions of the work of L. Oppenheim.98 The most recent edition of his work contains the following catalogue: (1) A recognized government ‘acquires the capacity to enter into diplomatic relations with other recognizing States and to make treaties with them’; (2) ‘former treaties concluded between that State and another State, the operation of which may in the absence of a recognized government have been temporarily impossible, will (within limits which are far from clear) again become fully operative’; (3) the recognized government ‘thereby acquires the right, which at any rate according to English law, it did not previously possess of suing in the courts of the recognizing State’; (4) ‘it thereby acquires for itself and its property immunity from the jurisdiction of the courts of law of the State recognizing it and the ancillary rights which are discussed later – an immunity which, according to English law at any rate, it does not enjoy before recognition’; (5) ‘it also becomes entitled to demand and receive possession of property situate within the jurisdiction of a recognizing State, which formerly belonged to the preceding government at the time of its supersession’; (6) its executive and legislative acts will be treated as valid.99 Similar lists can be found in some other works.100

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J.E.S. Fawcett, The Law of Nations, New York, 1968, p. 49. See for example: L. Oppenheim, International Law. A Treatise. Vol. i – Peace, Fourth edition edited by A.D. McNair, London, New York, Toronto, 1928. 99 R. Jennings, A. Watts, Oppenheim’s International Law, ninth edition, vol. i, London, New York, 1997, pp. 158–160. 100 I.A. Shearer, op. cit., p. 135.

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The precise nature of these elements may be seriously disputed. One can ask whether they stem from international law, domestic law, or maybe both. It is worthwhile to in this context note the sceptical remark of M. Akehurst that “recognition” is ‘a confusing mixture of politics, international law and municipal law.’101 What is of interest in this place is international law and only international law. Domestic law and politics are not encompassed within the present work. Hence it must be checked whether at least some of those effects are products of domestic law and not international law, or maybe even form a course of conduct which is simply allowed but not mandatory under domestic law. For reasons of simplicity I will concentrate here on the effects connected with the right to sue, jurisdictional immunity, and the treatment of provisions and documents issued by non-recognized governments. 13.6.4 Case-Law of Domestic Courts Dealing with the Recognition of a Government 13.6.4.1 Lack of Active Capacity of a Non-recognized Regime in Domestic Courts of Other States The topic of the right to sue has been the object of numerous judgments of domestic courts. A substantial number of the courts refused to preside over cases brought by non-recognized governments. For example the Russian Federal Soviet Republic demanded in vain the Russian ship Rogdai.102 In twin judgments of 26 September 1921 in the cases of the ships Penza and Tobolsk,103 another American court ruled that the rfsr ‘has not been recognized as a sovereign state by the usa and consequently cannot make applications in courts.’104 The premise that an unrecognized government cannot sue in the courts of other states can also be found in the judgments of the Swedish Supreme Court in the case Soviet government v. Ericsson,105 as well as in the case Russian Socialist Federal Soviet Republic v. Cibrario.106 The American courts presiding 101 M. Akehurst, A Modern Introduction to International Law, London, Boston, Sydney, Wellington, 1987, p. 57. 102 Judgments of the us District Court, n.d. California of 25 May, 1920, a.d. 1919–22, pp. 51–52. 103 Judgments of the us District Court, e.d. New York, a.d. 1919–22, p. 53. 104 Ibidem, p. 53. 105 Judgments of 27 October, 1921., a.d. 1919–22, pp. 54–56, at p. 56. 106 Cited on the basis of ad 1923–24, pp. 41–43. In this case the Soviet government attempted to recover one million dollars allegedly given to the defendant for the purchase of films. Both instances denied the Soviet government the capacity to sue.

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over the latter case107 ruled that the capacity of a foreign government to sue in court is not a right but a privilege resulting from comity, and that the lack of recognition prejudges the absence of comity.108 Also in the cases Republic of China v. Merchants’ Fire Assurance Corporation of New York, and Republic of China v. Great American Ins. Co.109 the United States District Court dismissed the action. The reason was that the National Government was not recognized by the usa. On appeal, the Circuit Court reversed the judgment,110 but based on quite special circumstances. It ruled that: The lower court’s ruling was correct on the case as it stood at that time since an unrecognized foreign Government cannot sue in the courts. But the conclusion of a treaty, even though not yet ratified by the Senate, and the reception of a diplomatic representative afforded clear evidence of the subsequent recognition of the National Government by the Executive Department of the United States Government.111 The thesis that an unrecognized government lacks an active capacity to sue in court was also adopted by the Belgian Court of Appeal of Liège in the case Société Despa et fils v. ussr.112 The court ruled that: A foreign State has access to the Belgian Courts only if its Government has been officially recognized by the Belgian Government. (…) A refusal on the part of the Executive to recognize a foreign Government is tantamount to a denial of any juridical capacity to that Government.113 Similarly in the case Varga v. Crédit-Suisse114 the American courts denied such an active capacity to the former president of Hungary and leader of the unrecognized National Government of Hungary in Exile. In consequence he was 107 The New York Supreme Court, Appellate Division and Court of Appeals. 108 Ibidem, at pp. 42–43. 109 Cited on the basis of: a.d. 1929–30, pp. 42–43. For more on those judgments see also: E.D. Dickinson, Recognition Cases 1925–1930, ajil 1931, pp. 214–237, at p. 219. 110 Circuit Court of Appeals, Ninth Circuit, judgment of 14 January, 1929. 111 Ibidem, at p. 43. 112 The sequence of the parties has to do with the fact that an appeal was made. Judgment of 20 February, 1931, cited on the basis of: a.d.1931–32, pp. 57–58. 113 Ibidem, pp. 57–58. 114 ilr 26, pp. 70–71.

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found to have no right to demand in his official character the return of a deposit held in the defendant bank since 1943. Though an unrecognized government’s lack of active capacity (right to sue in courts) seems to be obvious in the context of the above-presented judgments, one should note that a substantial number of 19th century judgments went in the opposite direction.115 That is why the judgment of a court of Alexandria of March 1933 in case Soviet Trade Delegation in Turkey v. Levant Red Sea Coal Company and others raises little wonder.116 The court took the position that despite the absence of recognition of the Soviet government, it could appear as plaintiff in a civil case in the character of a subject of private law. A similar position was adopted in a judgment of a Dutch District Court of Amsterdam in the case Exportchleb Ltd. v. Goudeket.117 According to its ruling a lack of recognition did not mean that a de facto government may not appear in civil cases before Dutch courts. It is however difficult to describe this position as generally accepted. 13.6.4.2 Passive Capacity and Immunities of a Non-recognized Regime in the Domestic Courts of Other States Already in the 19th century American courts took a position on the existence of immunity of an unrecognized sovereign.118 The immunity from suit of an unrecognized government was confirmed in the case Voevodine v. the Government of the Commander-in-Chief of the Armed Forces in the South of Russia.119 A plaintiff tried to recover payment for goods sold to the then-Denikin government in Russia, recognized by the usa neither de facto nor de iure. The Supreme Court of New York, Appellate Division ruled that During the existence of the Denikin government, which was assumed to have been a de facto government, no remedy existed against it in the courts of the United States, irrespective of whether or not it was recognized by the United States. (…) A de facto government cannot be sued without its consent, and when extinguished by conquest it became, so far 115 For a survey of those judgments, see: T.-Ch. Chen, op. cit., pp. 135–137. He shows that these judgments diverged from the famous 1804 judgment in case City of Berne v. Bank of England, in which the English Court of Chancery denied to ‘take notice of a Government, never authorised by the Government of the Country in which that Court sits’, see: ibidem, p. 135. 116 Cited on the basis of: a.d. 1933–34, pp. 82–83. See also: a.d. 1931–32, p. 57; the latter gives 20 March as the date of issuance of the judgment. 117 Judgment of 15 February, 1935, cited on the basis of: a.d. 1935–37, pp. 117–118. 118 T.-Ch. Chen, op. cit., p. 140. See also the subsequent judgments cited at p. 141. 119 Judgments of 1 May, 1931, cited on the basis of: a.d. 1931–32, pp. 53–54.

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as the question of its continued corporate existence was concerned, as if it had never existed.120 In the case Wulfsohn v. Russian Socialist Federal Soviet Republic121 the New York Court of Appeal122 ruled that the existence of a government is a matter of fact, not theory. At the same time, the source of immunity of a foreign sovereign is not comity, but the fact that it is not subordinated to the law of another state. In consequence the court dismissed the claim. As T.-Ch. Chen noted, this judgment met with general approval.123 However, even if a claim against another unrecognized state or government may be impossible in states based on the above-mentioned line of judgments, the situation of individuals invoking their public status in an unrecognized regime may be much more difficult and unpleasant. For example in the case Spanish Government v. Campuzano,124 a diplomatic representative of Spain in Oslo (nominated by the Republican government) initiated proceedings against a Mr. Campuzano for the recovery of several objects belonging to the mission. Mr. Campuzano, a former member of this mission, had previously attempted to subordinate it to the government of general Franco. During the proceedings he presented himself as a representative of this government and invoked his respective immunity. The court denied it, pointing to the fact that Norway recognized only the Republican government. In this regard the fact that General Franco controlled the majority of Spanish territory was denied any importance. 13.6.4.3 Recognition of a Government and the Application of Laws of a Non-recognized Regime A substantial number of judgments of interest to authors dealing with recognition have had to do with refusal to apply the legal provisions of an unrecognized regime. In the case Luther v. Sagor,125 the English High Court ruled that as the Soviet government was not recognized by the uk, the court could not recognize Soviet 120 121 122 123

Ibidem, p.53. Cited on the basis of: a.d. 1923–24, pp. 39–41. Judgments of 9 January, 1923 r., a.d. 1923–24, pp. 40–41. T.-Ch. Chen, op. cit., pp. 141–142. See also the highly positive evaluation of this judgment in: E.M. Borchard, The Unrecognized Government in American Courts, ajil 1932, pp. 261–271, p. 265. 124 Judgments of the Supreme Court of Norway of 2 November, 1938. a.d. 1938–1940, pp. 71–72. For longer passages, see: a.d., 1919–1942, Supplement, pp. 68–74. 125 Judgments of the High Court, King’s Bench Division of 21 December, 1920 and Court of Appeal of 12 May, 1921; cited on the basis of: ad 1919–22, p. 47 et. seq.

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nationalization decrees as binding legislative acts. As the recognition of the Soviet government was granted during the course of appeal proceedings, the Court of Appeal held that it was no longer possible to put into doubt the validity of the legislative or executive acts of this government. In consequence the ownership of goods which had belonged to the plaintiffs was validly transferred to the defendants. The court ruled that this effect had a retroactive character – extending to the very moment of the establishment of the Soviet government. Perhaps the most impressive (albeit not necessarily in the positive meaning of the term) example of non-recognition of decrees of unrecognized government took place in the case of Petrogradsky Mejdunarodny Kommerchesky Bank v. The National City Bank of New York.126 The plaintiff in this case was a bank which had been created in Russia before the Soviet Revolution. It was nationalized by the Soviet government. Despite that the pre-revolution directors of the bank acted abroad in its name. The main dilemma was whether the plaintiff still existed as a legal person. The New York Supreme Court, New York County ruled as follows: Our government does not recognize the Soviet government, the destroyer of the plaintiff, but we must recognize the fact that the corporate life of plaintiff has been terminated. We may not recognize the Soviet decrees but the court must recognize the effect of them on this plaintiff as shown by the evidence in this case.127 The New York Court of Appeals was of a different opinion. It ruled, inter alia, that:. The decrees of the Soviet Republic nationalizing the Russian banks are not law in the United States, nor recognized as law. (…) We do not recognize the decrees of Soviet Russia as competent to divest the plaintiff of the title to any assets that would otherwise have the protection of our law. At least this must be so where the title thus divested is transferred to the very government not recognized as existent.128 However, both before as well as after that judgment some courts were ready to take into consideration the very existence of, and at least some provisions of, 126 Judgments of the New York Supreme Court, New York County of 15 May, 1928 and the New York Court of Appeals of 11 February, 1930, cited on the basis of: a.d. 1929–30, pp. 38–42. 127 Ibidem, at p. 39. 128 Ibidem, at p. 40.

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an unrecognized regime. In an earlier case, Sokoloff v. National City Bank of New York,129 the courts decided to take into consideration the facts taking place in Russia despite the absence of recognition of the Soviet Government. This was also the position taken in the case of Russian Reinsurance Company vs. Stoddard.130 Departure from the Petrogradsky judgment took place in the cases Salimoff & Co. v. Standard Oil Company of New York and Salimoff & Co. v. Vacuum Oil Company.131 The Supreme Court of New York, Appellate Division, ruled that though the usa had not recognized de iure the Soviet government, it had recognized the fact of the existence of that government.132 In consequence the court refused to put into doubt the nationalization decrees.133 Following the recognition of the ussr by the usa in 1933 and the cession to the usa of rights stemming from nationalization decrees, the situation changed. In the case usa v. Pink and others, the us Supreme Court ruled that the ussr had, by the means of nationalization, became the successor of the rights of the nationalized company and transferred its rights validly to the usa.134 In the case of Dougherty v. the Equitable Life Assurance Society of the United States, the Court of Appeals of New York ruled that recognition validates all acts of a recognized government with the exception of acts contrary to ordre public.135 129 The plaintiff had deposited (in June 1917) a certain amount of money in the defendant American bank for disposal by the Russian branch of that bank. After the revolution it demanded the money back. The bank refused, invoking the fact of nationalization of banks in Soviet Russia. Cited on the basis of: ad 1923–24, pp. 44–47. 130 The plaintiff in this case was a nationalized Russian company. It’s former directors (nominated before nationalization) brought proceedings in the usa against a trustee for return of securities and moneys deposited with it. See: a.d. 1925–26, pp. 54–55. 131 In these cases the previous owners of oil fields in Russia demanded recovery of the value of oil bought by the defendant American firm from the ussr. Judgments of the Supreme Court of New York, Appellate Division of 10 March 1933 and the Court of Appeals of New York of 11 July, 1933; cited on the basis of: a.d. 1933–34, pp. 22–27. 132 Ibidem, p. 23. 133 Another example of a court taking note of the provisions of an unrecognized government can be seen in the twin judgments in the cases Banque de France v. Equitable Trust Co. of New York and Banque de France v. Chase National Bank of City of New York, Judgments of the us District Court, S.D. New York of 21 March, 1929, cited on the basis of a.d. 1929–30, pp. 43–45. T.-Ch. Chen treats these judgments as an ‘affirmation of immunity of property belonging to unrecognised powers,’ see: T.-Ch. Chen, op. cit., p. 142. 134 a.d. 1941–1942, pp. 48–68. A similar judgment was issued by the us District Court, Southern District of New York on 15 December, 1944 in the cases Steingut and others v. Guaranty Trust Company of New York and us v. Guaranty Trust Company of New York; a.d. 1943–45, pp. 22–23. 135 Judgment of 31 December, 1934, cited on the basis of: a.d. 1933–34, pp. 67–70, at p. 69.

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As is visible, though logic would suggest a refusal to make reference to acts of an unrecognized regime, in concreto some qualification is required. It is difficult, however, to speak about any rule governing the consideration of acts made by such a government. The influence of the absence of recognition of another government could also be felt in the field of family law. In the case Digmeloff v. the State Civil Officer of St. -Josse-Ten-Noode,136 the plaintiff asked for confirmation that the dissolution of his marriage was valid. This dissolution was effected in an orthodox church in Paris. A court in Brussels sitting in the case ruled that as Belgium had not recognized the Soviet government, neither de facto nor de iure, the Belgian courts were not competent to apply the Soviet law. Hence the personal status of Russians residing in Belgium was regulated by the pre-revolutionary legal provisions. A similar ruling was made in Belgium in the divorce case of Jelinkova v. de Serbouloff.137 In the case Krimtschansky v. Officier de l’État Civil de Liége, the Civil Tribunal of Liége ruled that a person who had entered into a marriage and later obtained a divorce in Odessa in 1928 was still a married person.138 This lack of recognition of a divorce ruling, motivated by the lack of recognition the government adopting the laws on that divorce, must be considered a caricature. It is an example of an effect which is very painful to ordinary people and not at all detrimental to the very unrecognized regime. Thus it is no wonder that other courts recognize divorce judgments based on the laws of unrecognized regimes. In the case cited as X v. Y.,139 a Court of Appeal of Batavia recognized as valid divorce judgments issued in Bandung in 1945 – at the time of functioning of the so-called Republic of Indonesia (controlled by the Japanese). The court invoked a method adopted in a famous American case, Texas v. White (concerning the War of Secession and the functioning of the Confederacy). It recognized as valid, even if adopted by an illegal government, acts necessary for the preservation of peace and order, such as those concerning marriage, inheritance, transportation and custody over property, protection of persons and property, and other similar matters. The Bandung divorce granted in 1945 was deemed to belong to that category of acts.140 The same problem also emerged in cases dealing with inheritance. In the case Hanawi v. Credit Lyonnais,141 the Mixed Tribunal of Alexandria ruled on 24 January 1925 that in light of the non-recognition of the Soviet government 136 137 138 139 140 141

Judgment of the civil court of Brussels of 16 June, 1928, a.d. 1927–28, pp. 69–70. Judgment of 5 June, 1925, a.d. 1925–26, pp. 29–30. Judgment of 21 March, 1929, a.d. 1929–30, pp. 47–48, at p. 48. Judgment of 10 September, 1946, a.d., 1946, pp. 19–20. At pp. 19–20. a.d. 1925–26, pp. 30–31.

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the inheritance of Russians will be governed by the law of the previous regime. This law was also applied by the Mixed Trade Tribunal in Alexandria in the case Gross v. Gretchenko and others;142 in the Civil Court of Alexandria in the case Consorts Gregorian v. Consorts Gregorian;143 as well as in the Romanian Court of Cassation of Bucharest in the case re Sustov.144 The Civil Court of Alexandria, in the case Consorts Gregorian v. Consorts Gregorian went as far as to say that: It would be a juridical heresy to deny a State international personality, including a legitimate exercise of its sovereign powers and yet at the same time to recognize its legislative enactments.145 T.-Ch. Chen highly evaluates the jurisprudence of German courts, which in similar cases applied its domestic (that is German) law, and observes that ‘[t] his last solution appears to be a sound one, since, in applying the law of the forum, the court was merely resorting to the undisputed doctrine of public policy.’146 In the case of Ichlenedjian and others v. Gregorian,147 the Mixed Court of Appeal of Alexandria refused to apply a Soviet decree dealing with nationality. It deprived several Russians living abroad of nationality of the ussr. The case concerned the estate of a former Russian national (Dame Hamaspiour Gregorian). Had the decree been applied to her, she would have been stateless and the mixed tribunal would have been incompetent to sit in the case. Taking into consideration the lack of recognition of the Soviet government by Egypt, the court recognized the lady as remaining a Russian (though not a Soviet) national. However some judgments went in the opposite direction. For example, in the divorce case of Tcherniak v. Tcherniak148 a Swiss federal court ruled that despite the non-recognition of the Soviet government a Swiss court would accept the Soviet certificate of nationality and give effect to the Soviet provisions unless 142 Judgment of 30 April, 1924, a.d. 1923–24, pp. 51–52. 143 Judgment of 29 May, 1929, a.d. 1929–30, p. 48–49, at p. 49. 144 Judgment of 13 February, 1929, a.d. 1929–30, pp. 49–51. See also the judgment of the Romanian Cassation Tribunal of 5 December, 1932, cited on the basis of: a.d. 1933–34, p. 82. In this case the refusal to apply the Soviet provisions was motivated by their being contrary to ordre public. 145 a.d. 1929–30, p. 49. 146 T.-Ch. Chen, op. cit., p. 164. 147 Judgment of 10 March, 1931, cited on the basis of: a.d. 1931–32, pp. 56–57. 148 Judgment of 15 June 1928, cited on the basis of: a.d. 1927–28, pp. 62–64.

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they conflicted with ordre public. In the case of Werenjchik v. Ulen Contracting Corporation149 the American courts accepted birth certificates signed by officials of the Soviet Government, accompanied by a certificate of the Polish Consul that the signature of the Russian official was genuine. They were necessary to prove the family relationship of the surviving children of a diseased employee who applied for workmen’s compensation. The New York Appellate Division ruled that: The non-recognition of the present government in Russia does not require the rejection of this proof.150 This ruling was upheld by the New York Court of Appeals. Also the lack of recognition of the Soviet government by Switzerland was not an obstacle for the Swiss Federal Court, which ordered the transmission of the inheritance of Madame Pribiloff151 to Soviet Russia. And in the case of N. d’Aivassoff v. de Raedemaeker and partners, the Civil Court in Brussels ruled on 18 February 1927 that the obligation requested by the plaintiff was annulled by a Soviet decree. The court ruled that it was impossible to ignore completely the existence of the Soviet government inasmuch as it could have led to injustice.152 A similar stance was adopted by a Dutch court – the District Court in Dordrecht in the case Vseobtchaia Stroitelnaia Kompania of Piotrograd v. L.J. Smit of Kinderdijk.153 In this case a Russian company lodged claims with respect to the defendant, who in turn asserted the non-existence of the company allegedly resulting from the Soviet decrees. Although the Netherlands had not at the time in question (1927) recognized the Soviet government, the court examined the Soviet provisions. In consequence it established that they did not provide for the extinction of the legal existence of the company.154 Also the Swiss Federal Tribunal ruled that non-recognition of the Soviet government by Switzerland did not exclude the existence and validity of its decrees.155 149 Judgments of the New York Appellate Division of 27 March, 1930 and the New York Court of Appeals of 18 November, 1930, cited on the basis of: a.d. 1929–30, pp. 36–37. 150 Ibidem, at p. 37. 151 Judgment of 15 July, 1931, cited on the basis of: a.d. 1931–32, pp. 58–59. 152 a.d. 1927–28, pp. 70–71, at p. 71. 153 Judgment of 12 January 1927, a.d. 1927–28, pp. 71–72. 154 Page 72 also contains a critical evaluation by van Royen. According to him, the court should not have even examined the provisions of an unrecognized government. 155 Judgment of 10 December, 1924, B.G.E. 50, ii, p. 507, mentioned in the case Schinz v. High Court of Zurich, judgment of the Swiss Federal Tribunal of 4 June, 1926. See: a.d. 1925–26, pp. 32–33.

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A special place in the discussions on recognition is occupied by the case of Carl Zeiss Stiftung v. Reyner & Keller Ltd. (No 2).156 The object of several judgments was a German foundation established in the 19th century. Its head office was in Jena. The statute of the foundation established its special board, which was to be an organ of a territorial unit comprising the town of Jena. After World War ii and the emergence of the gdr it became the council of the town Gera. The latter organ sued the two defendants (two British companies and a WestGerman foundation using the same name ‘Carl Zeiss Stiftung’) for prohibition of the use of the trademarks ‘Carl Zeiss’ and ‘Zeiss’. The defendants argued that inasmuch as the uk did not recognize the gdr, the English court should dismiss the case. The court hearing the case in the first instance took the position that the council of Gera is the special board of the foundation. The same stance was adopted by the House of Lords. The latter took the position while that the gdr was a body subordinated to the ussr,157 all the same acts of the gdr could not be ignored.158 One can surmise that a significant impact on the final judgment was the very precise territorial attachment of the board of the foundation.159 Therefore the foundation was treated as having capacity to defend its rights before the English courts. The name of this foundation is known from many other judgments from different states. The case veb Carl Zeiss Jena v. Carl Zeiss Heidenheim was decided in Switzerland.160 The court there ruled that the lack of recognition of the gdr did not lead to automatically treating the provisions of that regime as non-existent.161 In the case of Carl Zeiss Stiftung (from Heidenheim) and others v. veb Carl Zeiss Jena and others,162 the us District Court ruled that while the usa did not recognize the gdr, it also did not recognize the frg as either a de facto or de iure sovereign with respect to Eastern Germany. It noted that 156 ilr 43, pp. 23–79. 157 See: p. 47 – opinion of Lord Reid, pp. 56–57 – opinion of Lord Hodson; p. 61 – opinion of Lord Upjohn. 158 Lord Wilberforce (at pp. 65–66) referred to the writings of John Locke to show the dangers connected with the creation of a legal vacuum in cases of lack of recognition. 159 Lord Guest (at p. 59) referred to the law of the board as the proper law. 160 Judgment of the Federal Tribunal, I Civil Department of 30 March, 1965, ilr 72, pp. 550–565. 161 The court held that both subjects can invoke their rights on the basis of the respective laws of both the frg and gdr. The place of the head office in Jena was chosen as the decisive element. 162 Judgments of the us District Court, Southern District, New York, of 7 November, 1968, and the us Court of Appeals, 2nd Circuit of 2 November, 1970; ilr 61, pp. 35–87.

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although the gdr was not recognized, purely private, domestic acts of unrecognized government would as a rule be given effect by the us courts in the usa.163 The American court decided the case for the West-German plaintiff, but for reasons not connected with recognition. Similarly such ‘other reasons’ were decisive for the solution of similar disputes between two rival foundations in France (with the West-German company winning)164 and Pakistan165 (with the East-German company winning). 13.6.5 Summary of Subchapter 13.6 The mere listing and description of the above-mentioned cases (and others similar to them) is sometimes treated as a surrogate for a deeper analysis of the legal effects of recognition.166 D.J. Latham Brown limits these effects (that is both access to courts and enforcement of laws) to domestic law only.167 T.-Ch. Chen approaches this element from the epistemological perspective when he writes that: In theory, recognition, whether of a State or of a government, is declaratory of the fact of the existence of such a State or government, and cannot, therefore, in itself, be productive of legal effect creative of State personality or governmental capacity. These effects can only be the result of the existence of the State or government in question, and not the result of their recognition. In practice, however, inasmuch as courts have committed themselves to the doctrine of judicial self-limitation, the test of factual existence has often been eclipsed by the necessity of political acknowledgment. The courts cannot rely upon their own appreciation of facts and treat it as conclusive, until it has been confirmed by the political department. Political recognition thus becomes instrumental in giving rise to legal effects, because it is instrumental in bringing to judicial knowledge the fact of the existence of the State or government in question.168 163 At p. 39. 164 Case cited as “Fondation Carl Zeiss Stiftung and others v. Fondation Carl Zeiss Heidenheim and others”; see in particular a judgment of the Cassation Tribunal of 15 March, 1966; ilr 47, pp. 129–134 and the judgment of the Court of Appeal in Paris in the case of Carl Zeiss Heidenheim and others v. veb Carl Zeiss Jena and others, of 9 July, 1975, ilr 73, pp. 580–594. 165 Vide: judgment of the High Court of Pakistan of 29 September, 1967, ilr 71, pp. 4–37. 166 See, e.g.: I. Henkin, R.C. Pugh, O. Schachter, H. Smit, op. cit., p. 272 et. seq. 167 D.J. Latham Brown, Public International Law, London, 1970, p. 227. 168 T.-Ch. Chen, op. cit., p. 133.

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It is impossible however to reduce the topic to the scope of competence of domestic courts only. For example, immunities are important from the perspective of courts, but they are also applied by the executive. The same applies to the topic qualified – rightly or wrongly – as ‘recognition of foreign laws’. This still does not answer the fundamental question on the real source of effects identified in the case-law of domestic courts. Do they only originate from certain rules of domestic law, or maybe also from international law? We cannot overlook some scepticism with respect to the latter part of the question.169 In other words, there is a great hesitation to treat the contents of the above-presented judgments and the ideas behind them as effects of the international law of the recognition of governments in the technical meaning of the term. This refers to the right to sue (active legitimacy), immunity, and the application of laws. As regards the last matter it is difficult to speak about any automatism. Some acts of a non-recognized government are applied, while some acts of a recognized government are denied application. One can wonder whether we might not assume too much as regards the automatic and far-reaching effects of recognition. Would it not be sufficient to be satisfied with the fact that international law allows other states to ignore the acts of a non-recognized regime to a much larger extent than those of a recognized government? It seems impossible to formulate a precise rule of international law governing this matter. This probably explains why several authors point out elements which are not dependent on recognition. J. Charpentier lists among them: personal jurisdiction, capacity to conclude treaties, the right to make claims on the international plane, immunity, and the right to conduct war activities.170 In fact, however, the arguments dealing with those matters can be discussed at different levels. The first element is aimed at pointing out at the possibility to conduct consular relationships with non-recognized regimes. In other words, states may protect the interests of their nationals in a state which a given nonrecognized regime purports to represent, and vice versa. The second element points out the possibility to conclude treaties with a non-recognized regime. The right to make claims at the international level and the right to conduct war activities have a different character. They simply point to the fact that unrecognized regimes make claims and may conduct military activities. In my opinion these two statements concern facts rather than law. They can at the most prove that a state withholding recognition of a government may feel helpless with respect to certain activities of such a non-recognized regime. 169 J. Charpentier, op. cit., p. 16ff, see in particular p. 18. As to the importance of private international law, see: p. 21. 170 J. Charpentier, op. cit., pp. 56–67.

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What remains is the question of immunities. Charpentier’s inclusion of them on his list seems to be based on judgments in which the courts did not want to hear cases directed against unrecognized regimes. This argument is quite risky however. It may happen that non-recognition would amount to ignoring a non-recognized regime. In this respect a recognized regime would be not judged because of its immunity, while a non-recognized regime would not be judged because of its being ignored. It would be difficult however to speak about a strict international legal obligation to ignore that government, or to give or not give it immunity. In this respect it seems to indicate a fundamental difference between a recognized and an unrecognized regime. The immunity of the former is an object of strict legal obligation. This is especially visible with respect to the position of individuals being members of recognized and non-recognized regimes. It does not need any special proof that the scope of immunity of the President of the usa and the President of the ‘Republic of Abkhazia’ is not the same in Poland and in other eu Member States. Charpentier himself identifies three categories of effects of recognition of a government. They are: (1) recognition is a confirmation of the existence of a fact (that a person or a group of persons are acting for a state); (2) recognition is a point of departure for voluntary relationships; and (3) last but not least recognition plays an important political role.171 This last element clearly lies outside the scope of our interest here. As regards the second one, one can seriously ponder its relationship with international law. The author rightly avoids calling it a legal effect (although he does the same with the remaining two elements as well). In my opinion, the main difficulty has to do with the fact that on one hand recognition does not lead automatically to the conclusion of diplomatic relationships, while on the other hand the conclusion of diplomatic relationships may be itself treated as recognition. What is expected of a legal transaction is automatism. Strangely enough, Charpentier writes in this context on the right (sic!) resulting from the right to sue (droit d’ester) and the right to recover state property situated in the recognizing state.172 It is hardly questionable that the situation of a state which has recognized a given government is not identical with that of a state which has abstained from recognition. M.N. Shaw writes that: Recognition constitutes acceptance of a particular situation by the recognizing state, both in terms of the relevant factual criteria and in terms of the consequential legal repercussions, so that for example recognition of 171 J. Charpentier, op. cit., p. 204. 172 J. Charpentier, op. cit., pp. 210–212.

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an entity as the government of a state implies not only that this government is deemed to have satisfied the required conditions, but also that the recognizing state will deal with the government as the governing authority of the state and accept the usual legal consequences of such status in terms of privileges and immunities within the domestic legal order.173 As a rule one can agree with this description. The only reservation has to do with the dangers inherent in the term ‘acceptance’. It cannot be understood as a ‘confirmation of the morality’ of a new government. Nor is it an actual satisfaction. The effects of recognition of a government are rightly associated with identification. In fact it is a dual identification. In the first instance it identifies certain individuals. Once recognized they must be treated as members of the government of a particular state. This means that immunities must be applied with respect to them. The law at present does not give immunities to members of a unrecognized regime. If they are treated in a special fashion, it has to do with international politics rather than law. A separate study would be necessary to examine the relationship between the sovereignty of a nation and the treatment of a member of a regime which is not recognized, but expresses the will of a group of people. Clearly a state whose territory is entered by such a person may have various reasons for treating him or her in a special way. They may have to do with international politics, expectations of future economic benefits, respect for the people purportedly represented by that person, or memory of the recent history of obtaining recognition by the territorial state. When confronted with a crime supposedly committed by a member of an unrecognized regime a territorial state would however not hesitate to enforce its jurisdiction. Secondly, recognition means identification of a group of people as a state organ. This is especially important in situations in which two or more groups claim to be a government and third states can, or have to, make a choice between or among them. In this sense recognition of one group effects a radical change in the scope of manoeuvre of the recognizing state. Let us imagine that it supported the government hitherto recognized in its fight against rebels. If one day it recognizes the rebels as a new government, this right to support the previous government is foregone. It is worthwhile to note that in 1939 Switzerland brought about the closure of the mission of Spain by the League of Nations controlled by the unrecognized government of general Franco.174 It is also 173 M.N. Shaw, op. cit., 1997, pp. 303–304. 174 P.C. Jessup, op. cit., p. 59.

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stressed that recognition of governments is of great importance to the scrutiny of credentials of state representatives for international organizations.175 Another demonstration of the importance of this effect is reflected in the cited judgments concerning the right to sue in the name of a state. In fact they may be quite problematic for a specialist of international law. It would be hard to find a legal norm of international law which provides that a recognized government has a right to sue while a non-recognized regime does not have such a right. A state may, for various different reasons, decide to deny the right to sue to a recognized government. The right to sue is often perceived as an effect of comity (comitas gentium), not law. On the other hand there is also no legal norm of international law which would oblige states to treat a non-recognized government in the same way as a recognized one. On the contrary, recognition could be rationally expected to have an effect on proceedings initiated in other states. One can expect that it would be rather recognized than non-recognized regimes that will be allowed to speak in the name of a state. In fact the last element has the character of tautology. That is why the legal importance of the recognition of a government is to be found in the name itself. Paradoxically, the doctrine has had problems with identifying these legal effects (in the purely legal sense) arising from the recognition of a government. This is owing to two reasons. Either it has wrongly identified legal effects with the rulings in the judgments of domestic courts, or rightly denied the nature of legal effects to these rulings, but wrongly denied the presence of legal effects of the very recognition of a government. One can say that the tautological nature of the most important effect of recognition of a government (identification of a group of persons as a government of another state) may have been easily overlooked as too obvious. This could have led to denial of the nature of recognition as a transaction of international law. This induced J. Verhoeven, for example, to see recognition as merely a protocol transaction and a transaction initiating relationships. This is however a mistaken conclusion. If recognition of a government is a transaction of a state and produces effects in the sphere of international law, it must be qualified as a transaction of international law. 13.7

Recognition of Belligerency

13.7.1 Introductory Remarks As has already been said, belligerency belongs to the classical objects of recognition in international law. Recognition of belligerency is mentioned in all or 175 P.C. Jessup, op. cit., p. 59.

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almost all general works on international law and all monographs on recognition known to me.176 The framework of this book makes it impossible to exhaust this phenomenon. It is clearly a topic of great interest – one may wonder whether this interest is present despite the current lack of granting this kind of recognition in practice, or because of the lack of its implementation in practice.177 What is of interest in the present work however are only the legal effects of a recognition of belligerency. What is of the utmost importance is their influence upon the very qualification of that recognition as a legal transaction. G.H. Hackworth defines recognition of belligerency as ‘recognition by a state that a revolt within another state has attained such a magnitude as to constitute in fact a state of war entitling the revolutionists or insurgents to the benefits, and imposing upon them the obligations, of the rules of war’.178 On the 176 Vide: infra. For more on the pretences of the usa because of the uk’s recognition of the belligerency of the Confederacy, see: H. Lauterpacht, op. cit., pp. 177–178; and Ch. Fenwick, International Law, New York, London, 1948, p. 147. It is also stressed that the forces of general Franco were not recognized as belligerents; see I.A. Shearer, op. cit., p. 139. 177 The lack of application of recognition of belligerencies was a fact in the first half of the 20th century, J. Verhoeven writes that the scope of application of that institution did not extend over Europe and America and after World War i was discontinued; see: J. Verhoeven, op. cit., p. 104. G.H. Hackworth in 1940 noted the discontinuation of that institution, with two exception – the armies under the auspices of the Czechoslovak and Polish National Committees during World War i. See: G.H. Hackworth, op. cit., i, p. 319. N.M. Hunnings presents ‘refugee armies’ such as the Free Czech and the Polish armies during the Second World War as belligerents; see: N.M. Hunnings, International Law in a Nutshell, London 1959, p. 17. G. Schwarzenberger cites the examples of the ‘Czechoslovak and Polish National Committees’ and recognition granted by the Axis Powers to ‘the Emperor of China’, the State of Croatia, and the Provisional Government of Free India; see: G. Schwarzenberger, op. cit., p. 71. If however these cases are qualified not as recognition of belligerents, but recognition of an organization of a nation fighting for liberation, this would mean the lack of any application of the former kind. J. Verhoeven attributes a decisive importance to the Spanish civil war; see: J. Verhoeven, op. cit., p. 103. O. Svarlien cites the remark by Padelford made at the time of the Spanish civil war that ‘the law of nations in its present development does not require recognition of belligerency, even in cases where public war exists’; see: O. Svarlien, op. cit., p. 105. This lack of a necessity does not mean its prohibition or expelling it outside the framework of international law. 178 G.H. Hackworth, op. cit, vol. i, p. 161. Similarly H. Lauterpacht, op. cit., p. 175. Lauterpacht defines recognition of belligerency as ‘the declaration, express or implied, that hostilities waged between two communities, of which one is not, or possibly both are not, sovereign States, are of such character and scope as to entitle the parties to be treated as belligerents engaged in war in the sense ordinarily attached to that term in international law’. This definition was evidently influenced by the view of Lauterpacht on the duty to recognize

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other hand G. Scelle treats recognition of belligerency as a part recognition of a de facto government (reconaissance d’un Gouvernement de fait partiel).179 S.R. Patel writes that: ‘As in the case of the recognition of states and governments, the recognition of belligerency is neither a contractual arrangement, nor a political concession, nor an act of grace performed by a state giving recognition, but is taking cognisance of a well-established situation or condition of facts.’180 Certain doubts may arise concerning what in fact is the object of recognition. Are they certain new subjects, a certain state of affairs, certain rights, or maybe some combination of these elements at the same time. In other words, above all is it a recognition of belligerents, or a recognition of belligerency (that is, a state of civil war)? In some languages (including my mother tongue) what is emphasized is the subjective (or rather personal) element. It is namely the recognition of belligerents, i.e. parties to a civil war. The fascinating question of the number of these parties is reserved for further discussion. The English notion of ‘belligerency’ seems to emphasize the object or fact rather than the subject. It may be seen as a kind of recognition of a civil war.181 It may however also be treated as referring to a certain property of a group or groups of people. It seems, therefore, that the question of new subject(s) is unavoidable. The notion of ‘war’ is by definition relative. War always has at least two parties. Recognition of civil war inherently has the dimension that it refers to some persons.182 Not surprisingly, the genesis of recognition of belligerency is

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182

belligerents; see: H. Lauterpacht, op. cit., p. 175 et. seq. A similar definition (reconnaissance de belligérance) is given by J. Verhoeven; see: J. Verhoeven, op. cit., p. 100. G. Scelle, op. cit., p. 173. S.R. Patel, A Textbook of International Law, London, 1964, p. 58. See: J.B. Moore, op. cit., vol. i, p. 173 et. seq. Moore cites the reports of Wheaton presenting ‘different public acts by which the Government of the United States has recognized the existence of a civil war between Spain and her American colonies’. Moore also cites a fragment of the judgment in the case United States v. Palmer [(1818), 3 Wheaton, 610, 643], according to which: ‘If the Government of the Union remains neutral, but recognizes the existence of a civil war, the courts of the Union cannot consider as criminal those acts of hostility which war authorizes, and which the new government may direct against its enemy.’ (see: J.B. Moore, op. cit., vol. i, p. 174). In his 1875 annual message President Grant announced, inter alia, ‘recognition of belligerent rights in the parties to the contest.’ See: J.B. Moore, op. cit., vol. i, p. 196. The letter of Secretary of State Bayard to Attorney-General Garland of 1 July, 1885 occupies a special position in this respect. It contains the statement that the us Government neither recognized ‘a state of war’ in Colombia nor were the insurgents recognized as belligerents by the usa or Colombia. See: J.B. Moore, op. cit., vol. i, p. 200.

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quite mysterious.183 W.L. Walker even labelled as a heresy the thesis that recognition created a new subject. In his opinion, the person to be blamed for this heresy was W.E. Hall (who wrote in the 1880s).184 Even if Walker is right, the heresy keeps up very well and has only consolidated during the last 120 years. The issuance of an apology or making an attempt to destroy it and come back to the ‘real truth’ is not the task of a work on unilateral acts of States. Rather the doctrine of subjects of international law would be the appropriate forum for tackling the question. On the other hand, a question which cannot be omitted here is who is the object of such recognition. There is no doubt that a group of rebels is such an object. If the other party to a conflict is a recognized government of a recognized state, one can argue that it does not need any more recognition of its legal capacity and/or its practical possibilities to act in international relations. It has been observed, however, that in certain situations a recognized government may have an interest in being recognized as a belligerent.185 Translating this into the language of international law is possible only if the recognition of belligerency gives rise to some additional rights. That is why a task of the utmost importance is to identify the legal effects of the recognition of belligerency. 13.7.2 Legal Effects of the Recognition of Belligerency Several authors attempt to identify the legal effect of the recognition of a belligerency. Let us leave aside those which refer to the emergence of a new subject of international law (i.e. rebels being recognized as belligerents). It is visible that a considerable number of authors associate such effects with neutrality.186 This element was referred to in the 1900 resolution of the Institut de Droit International.187 The 1911 annual message of President Taft 183 Concerning the doubts as to the time of the emergence of a separate institution of recognition of belligerency, see: W.L. Walker, Recognition of Belligerency and Grant of Belligerent Rights, Transactions of the Grotius Society, vol. 23; Problems of Peace and War. Papers Read Before the Society in the Year 1937, New York, London, 1962, p. 178 et. seq. However it should be noted that similar doubts also surrounded other classical objects of recognition. 184 W.L. Walker, op. cit., p. 191. 185 G. Scelle, op. cit, p. 174. 186 P.C. Jessup, op. cit., p. 53; E.C. Stowell, International Law. A Restatement of Principles in Conformity with Actual Practice, New York, 1931, p. 41, Ch. Fenwick, op. cit., p. 146, V.D. Mahajan, op. cit., p. 166. 187 Institut de Droit International, Session de Neuchâtel 1900, Droits et devoires des Puissances étrangères, au cas de mouvement insurrectionnel, envers les gouvernements

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referred to a situation in which an armed conflict took place but no official recognition of belligerency was given. In the opinion of the president, no technical obligation of neutrality within the meaning of international law was in place.188 A contrario, one can assume that the grant of such recognition would have given rise to a new obligation. V.D. Mahajan writes at length that the recognition of belligerency grants international status to the parties fighting de facto. They acquire the right of access of their ships to the ports of the recognizing states, the right to borrow money on the account of a de facto state, the right of search and visit on the high seas, the right to confiscate contraband and to establish a blockade.189 G. Schwarzenberger also underlines that recognition of belligerents concedes to them the right to conduct war on the high seas.190 A. McNair cites the opinion of the Law Officers of 17 January 1863, according to which a mother-state which recognizes its rebels as belligerents must respect the judgments of their prize courts.191 I.A. Shearer looks at the recognition of belligerency from the perspective of a recognizing state and argues that by the means of recognition of belligerents the recognizing state acquires the rights of a neutral state, which must be  respected during the fighting.192 He compares it to a declaration of neutrality.193 O. Svarlien argues that ‘such recognition gives the insurgent community and the parent state the same international status with respect to the prosecution of war.’194 Sometimes the effects of recognition are differentiated according to the identity of the recognizing subject. So for example H.M. Blix writes that: ‘If belligerency is recognized by the government against which the belligerent acts are directed, the effect of recognition is to admit expressly that the laws of war are fully applicable to the situation.’195 On the other hand he adds that: ‘Belligerence recognized by an outside power likewise clarifies the view

188 189 190 191 192 193 194 195

établis et reconnus qui sont aux prises avec l’insurrection; document accessible at the website of the Institute; hereafter cited as the 1900 idi resolution. As to neutrality, see Art. 7 of the resolution. G.H. Hackworth, op. cit., vol. i, p. 323. V.D. Mahajan, op. cit., p. 166. See also: Ch. Fenwick, op. cit., p. 146. G.Schwarzenberger, op.cit., p. 70. A. McNair, International Law Opinions, Cambridge, 1956, vol. i, Peace, p. 139. See also: A. Hold-Ferneck, op. cit., p. 197. I.A. Shearer, op. cit., p. 140. I.A. Shearar, op. cit., p. 140. O. Svarlien, op. cit., p. 105. H.M. Blix, op. cit., p. 618. So too: J.M. Ruda, Recognition of States and Governments, in: M. Badjaoui (ed.), International Law: Achievements and Prospects, Paris, 1991, p. 461.

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of that power that the laws of war apply to the conflict. This must also comprise the right of belligerents to intervene against any foreign ships carrying contraband.’196 J.M. Ruda writes that in the case of recognition of rebels by a third state (recognized as belligerents), the rebels must respect the interests of the recognizing state.197 This is, however, rather a statement from the field of politics and commonsense. It is difficult to indicate a legal iunctim between recognition and the obligation to respect interests of other states. H.M. Blix notes that even if the laws of war are applicable independently of recognition ‘(…) the declaration may serve to clarify the situation and for that reason be useful.’198 What is less convincing are arguments positing that as a result of recognition of belligerency a legitimate government is not responsible for the activities of rebels.199 A state by definition is not responsible for the activities of rebels. Recognition may have at the most the character of a proof that the recognizing state does not treat the insurgents as de facto organs of a legitimate government. However, this is a question of facts, and their further development will rather outweigh the value of recognition as such. Therefore one should qualify recognition of belligerency as a kind of recognition of a right. It concerns the rights connected with the conduct of armed activities. These rights apply with respect to a recognizing subject. The rights – and the accompanying obligations – belong to and apply to both the rebels and the existing government. In fact usually the doctrine has looked at the effect of recognition from the perspective of the rebels. According to T.-Ch. Chen, the essence of recognition of belligerency has to do with the dispute between the theory that recognition means ‘a grant or a concession of rights, privileges or legal status’ for the community of belligerents, and the theory that ‘the existence of a civil war is a fact, from which flow the rights and duties of belligerents and neutrals. Recognition by the parent State or by a foreign State, according to this view, adds nothing to these rights and duties, nor does the refusal to recognise lessen them. It merely indicates that the parent State and/or the foreign State concerned acknowledges the existence of that fact and intends to accept its consequences.’200 196 197 198 199 200

H.M. Blix, op. cit., p. 619. J.M. Ruda, op. cit., p. 461. H.M. Blix, op. cit., pp. 618–619. I.A. Shearer, op. cit. p. 140; J.M. Ruda, op. cit., p. 461. T.-Ch. Chen, op. cit.,s. 333. Chen labels the first theory as ‘concession theory’ and expressly differentiates it from the constitutive theory; the second theory is called declarative; See: ibidem, pp. 334–335.

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The (possible) confirmation that recognition of belligerency is of a constitutive character would in fact prejudge (in the affirmative) the result of any discussion whether it is a transaction of international law. However even a negative answer to the issue would not necessarily preclude such recognition from being a legal transaction. It is true however that a substantial number of authors speak in favour of the constitutive effect of this recognition.201 An important argument for the concession (constitutive) theory is the 1885 judgment in the case of Ambrose Light.202 In this case an American court condemned a ship used by a group of rebels in Colombia. They were not recognized as belligerents. The ship was captured by the American gunboat though it did not harm the latter in any way. The court ruled that: International Law has no place for rebellion; and insurgents have strictly no legal rights, as against other nations, until recognition of belligerent rights is accorded them.203 A part of the doctrine denies a constitutive effect to the recognition of belligerents.204 In particular the application of the rules of humanitarian law is not

201 W. Góralczyk, op. cit., p. 158, H. Lauterpacht, op. cit., p. 229, N. Quoc Dinh, P. Daillier, A. Pellet, Droit international public, Paris, 1994, p. 548. 202 T.-Ch. Chen, op. cit., p. 334. The case was decided by the District Court of the Southern District of New York. 203 Cited according to: T.-Ch. Chen, op. cit., p. 334. Chen heavily criticizes the judgment in the case of Ambrose Light and says apodictically that ‘The proper stand for a foreign State to take in case of domestic disturbance within another State can be none other than that of disinterestedness and non-intervention. It has no right either to aid or to suppress the rebellion.’ (at p. 335). In fact however this statement is anything but certain. Can one really expect disinterestedness from other states if insurgents refer to communist or fascist ideology or promise a repetition of the holocaust. A negative answer seems beyond any doubt. 204 D.P. O’Connell, op. cit., p. 57. O’Connell cites the arbitral award in Central and South American Telegraph Co. v. Chile. The basic question was whether Chile was responsible for insurgents not recognized as a de facto government. See also: A. Ross, A Textbook of International Law. General Part, London, New York, Toronto, 1947, p. 123. Ross cites the doctrine according to which such recognition has a constitutive effect. He writes that it is possible to address the same objections to this doctrine as those referring to the constitutive theory of recognition of states. He criticizes the doctrine, writing that ‘it is due to speculative prejudices and a confusion of the political and legal significance of recognition, and its consequences, offensive to all sense of justice, have not, as is generally contended, any safe warrant in the practice of the states’; see: ibidem, p. 123).

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dependent on recognition. This cannot be said about the very application of all the rules of the law of war at sea, which lead to burdens for third states. The basic dilemma is what the declarative theory means with respect to the recognition of belligerency. Does it mean that recognition does not create a fighting group, or rather that such a fighting group has international legal standing and all rights independently of recognition. The first meaning could probably be accepted by everybody; the second meaning is very far from being obvious. The choice between the theories is not the task of the present work however. One should only note that the situation in this respect is different than that of the choice between the constitutive and declarative theory of recognition of a state. In the latter case one could have doubts whether the ‘recognition’ mentioned by them was really an ‘act of recognition’. As regards the recognition of belligerents this identity is prima facie in place. What is visible are both the presence of effects of recognition as well as the fact of their being limited to the recognizing state only. While being a state for some states and not for others may look like an absurd, the possibility to enforce the rights of the law of war with respect to recognizing states and the lack of such possibility with respect to others may be more easily understood and accepted. The latter element is stressed by those authors who underline that the recognition of belligerency gives rise neither to rights nor to obligations of third states.205 Bindschedler underscores that the subjectivity (personality) of belligerents is limited to the rights connected with the conduct of war and applies only with respect to recognizing states.206 A certain problem in the determination of the legal or extra-legal character of recognition of belligerents has to do with the fact that some authors combine this question with the existence of an obligation to recognize. In this sense, if there is an obligation to effect it then recognition would be a legal transaction.207 These matters are not, however, two sides of the same coin. It is possible that there is no obligation to recognize, but recognition actually made gives rise to certain obligations. The very fact that recognition of belligerency is a kind of recognition of rights may suggest the conclusion that it is either a grant of a right or its confirmation. As was said before, this latter element would not fit into every definition of a legal transaction. As was also said before, some instances of recognition of rights give rise to no legal effects. Neither precaution 205 So too see: Hold-Ferneck, op. cit, vol. i, p. 197. E. Vanselow, Völkerrecht. Einführung in die Praxis der Staaten, Berlin, 1931, p. 65, R.L. Binschedler, op. cit., p. 388. 206 R.L. Binschedler, op. cit., p. 388. 207 On the relationship of rights to privileges, see: W.L. Walker, op. cit., p. 198.

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however is applicable as regards the recognition of belligerency. The rights are far from obvious before recognition and they are specific enough once recognition is given, so the qualification as a transaction of international law could be hardly denied to a recognition of belligerency. What’s more, in my opinion the arguments for the adoption of the constitutive effect of recognition of belligerency should prevail. This is all the more reason why its character as a legal transaction cannot be denied. 13.8

Recognition of Insurgency

13.8.1 Introductory Remarks Defining the recognition of insurgents is more than difficult. I do not mean thereby a mere tautology, according to which it is a transaction of recognition having insurgents as its object. A brief review of the literature may give rise to doubts as to the true object of recognition of insurgents. What is pointed out is that, on the one hand, it may concern organisms too weak to apply for recognition of belligerency, while on the other hand references must also be made to such strong political organisms as the forces of General Franco during the Spanish civil war, which were not recognized as belligerents.208 There can be little wonder that references in this context are made to de facto local governments (or more precisely governments which in fact control a part of the territory of a given state). Strong support can be found for the view that recognition of insurgents as a kind of ‘poor relative’ of recognition of belligerents, with references to the situation of insurgents as ‘a condition midway between belligerency and mere unauthorized and lawless violence.’209 This seems to be how recognition of insurgents is perceived by Ch.G. Fenwick210 or S.R. Patel.211 D.J. Latham Brown calls it recognition of a de facto belligerent (the phrase de iure being reserved for recognition of belligerents in the technical meaning of the term).212 208 R. Jennings, A. Watts, op. cit., p. 166 i 167. So too: I.A. Shearer, op. cit., p. 139. 209 T.J. Lawrence, The Principles of International Law, seventh edition, revised by P.H. Winfield, London 1925, pp. 331–332. See also: J.B. Moore, op. cit., vol. i, p. 242. 210 Ch. G. Fenwick, op. cit., pp. 147–148. 211 S.R. Patel, op. cit., pp. 59–60. Patel writes that the difference between belligerents and insurgents lies in ‘the intensity of war and organization of power.’ This is why he argues with those authors for whom belligerents are recognized insurgents and insurgents – unrecognized belligerents. 212 D.J. Latham Brown, op. cit., p. 219.

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On the other hand, however, H. Lauterpacht writes that ‘(…) the refusal to recognize a status of belligerency is fully consistent with the concession to insurgents of a substantial measure of freedom of action and of extended intercourse with their authorities. The latter is compatible with their recognition as a de facto government.’213 An additional source of complication is the fact that one of conditions of the very existence of insurgents is the existence of a local government de facto.214 At the same time (at least apparently) recognition of a government (even a local one) means more than the recognition of insurgents. Doubts may relate to the very locus standi of an act of such recognition in international law. H. Lauterpacht, in writing on insurgency, concludes that ‘it is not a well-defined status resulting from an express declaration in the form of recognition or an implied equivalent thereof.’215 Also H.M. Blix writes that ‘no particular act of recognition is used in the practice of States to indicate when a movement is considered to be of the kind that its armed activities are subjected to rules of international law.’216 Another matter is that the recognition of insurgents became, at a certain moment, a part of international life. It is underlined that ‘even before an uprising has become sufficiently important to justify recognition of a belligerent status, states are sometimes forced to notice or in some degree to recognize an insurgent organization.’217 The temporal scope of the application of the institution of recognition of insurgents is disputed. J.M. Ruda writes that after the emergence of that institution at the end of the 19th century, it was discontinued.218 However, contemporary instances of such recognition are visible.219 In any case its application today would not be an attempt to create ex nihilo a new institution of international

213 H. Lauterpacht, op. cit., p. 279. The only border for H. Lauterpacht is recognition de iure, the grant of the latter is in his opinion exluded. 214 See in particular: A. Ross, op. cit., p. 122. K. von Schuschnigg calls it an ‘insurgent de facto government’ but stresses that it is only through recognition that such a government ‘gains limited international status as a particular subject of International Law’; see: K. von Schuschnigg, International Law. An Introduction to the Law of Peace, Milwaukee 1959, p. 166. 215 H. Lauterpacht, op. cit., p. 270. 216 H.M. Blix, op. cit., p. 616. 217 E.C. Stowell, op. cit., p. 41. 218 J.M. Ruda, op. cit., p. 462. 219 H.M. Blix notes that the oau (at present the African Union) recognized liberation movements in Africa, see: H.M. Blix, op. cit., p. 617.

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law. There is no norm of international law which would have outlawed such recognition (without prejudging its true nature). What is underscored is that recognition of an insurgency is something other than the mere recognition of a fact that an insurrection or civil war is in place.220 At the same time the connection of that institution with personality under international law is stressed. H. Lauterpacht writes in this context on ‘the factual recognition of the existence of a limited international personality of the insurgents.’221 This is why insurgents are presented as a subcategory of subjects of international law.222 13.8.2 Legal Effects of Recognition of Insurgency H. Lauterpacht calls the term ‘recognition of insurgency’ somewhat inaccurate but convenient.223 This lack of precision is especially visible when an attempt is made to identify the legal effects of that institution. The doctrine often gives expression to its inability to identify them precisely. So for example D.J. Latham Brown underlines that ‘the effect of recognition of insurgency varies. A state might, for example, permit the recognized insurgents to interfere with its shipping in furtherance of a blockade proclaimed against the opposing government.’224 The word ‘might’ suggests that they may permit such an action, or may deny permission as well. A similar attitude is presented by J. Verhoeven. According to him, however, the effects are to be determined in the very act of recognition.225 One can wonder whether there would be a possibility to find a common denominator in these views. In fact, taking into account the views of the doctrine the only ‘candidate’ for such a common denominator is the one referring to not treating insurgents as criminals.226 This is why Verhoeven, for example, offers a kind of gradation – rebels are subject to criminal law; insurgents are covered by the effects of their recognition as insurgents (whatever that is); and belligerents are covered by the law of war.227 This set of the effects of a recognition of insurgents is similar to the set of rights which some authors 220 R. Jennings, A. Watts, op. cit., p. 166, footnote 23. 221 H. Lauterpacht, op. cit., pp. 270–271. 222 R. Jennings, A. Watts, op. cit., p. 165  ff., M.N. Shaw, op. cit., p. 173. An isolated view of K. Hailbronner in the work: W. Graf Vitzthum (Hrsg), Völkerrecht, Berlin, New York, 1997, pp. 195–196, is that insurgents are not a subject of international law, as opposed to belligerents. 223 H. Lauterpacht, op. cit., pp. 270–271. 224 D.J. Latham Brown, op. cit., 220. So also: J.M. Ruda, op. cit., p. 462. 225 J. Verhoeven, op. cit., p. 110. 226 N.M. Hunnings, op. cit, p. 17, J. Verhoeven, op. cit., p. 108. 227 J. Verhoeven, op. cit., p. 111.

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are ready to attribute to insurgents independently of recognition.228 K. Strupp specifies, however, that the participants of an insurrection are not treated as rebels if their recognition is given by their mother state.229 The second element which is sometimes referred to is the lack of responsibility of a state for the activities of insurgents.230 In this respect a reference may be made to the previous remarks in the subchapter on the recognition of belligerents. Giving a general answer to the question whether the recognition of insurgents is a transaction of international law seems to be impossible. One should take into account the possibility of finding instances of such recognition being such a transaction, and instances of such recognition not being such a transaction. There is undoubtedly a potential for a positive answer in many cases, but I do not see any sense in pretending that there is any guarantee of an automatic positive answer. For sure a state cannot argue that no insurrection took place if it recognized a group of people as insurgents. All the more, at least a presumption may be made that a recognizing state assumes an obligation not to treat insurgents as criminals. If confirmed this would amount to a kind of recognition of or assumption of a new obligation. 13.9 Conclusions As is visible on the basis of the above-presented examples, the analysis whether different types of ‘recognition’ (recognition of several types of objects) are legal transactions requires first of all the establishment of at least one legal effect. With the exception of (1) the recognition of rights by a directly affected state, (2) recognition of a new state and/or government by a previous sovereign, and (3) recognition of belligerency; the search for such effects may be cumbersome and its result uncertain. What’s more, sometimes it is equally difficult to confirm the presence of legal effects of international law as it is to categorically deny them. The dilemma of the half empty/half full glass is visible here. A given scholar may feel obliged to state that overlooking the fact that there is no automatism of legal effects is a proof of shortsightedness. Another may feel obliged to confirm the presence of legal effects and treat the general exclusion of such type of recognition as improper. In fact one can consider a 228 T.J. Lawrence, op. cit., p. 332. so also: A. Ross, op. cit., pp. 123–124. Similarly S.R. Patel, op. cit., p. 60. 229 K. Strupp, op. cit., p. 81. 230 K. Strupp, op. cit., p. 81. N.Q. Dinh, op. cit., p. 547.

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presumption of the existence of legal effects, but one must be also prepared to rebut this presumption. It is quite strong as regards recognition of states and governments, quite weak as regards the recognition of insurgents. An important element connected with recognition is its revocability (or irrevocability). I have already referred to definitions of recognition which exclude its revocation. In particular the recognition of a state seems to be irrevocable. Interestingly enough, however, de facto recognition has been defined as revocable.231 This may have had to do with the instability of a given regime rather than with the right of a recognizing state to say with retroactive effect that what it had recognized as a government was not a government. Similarly Art. 9 of the 1900 resolution of the idi indicated that recognition of belligerency was revocable, although revocation had no retroactive effect. The lack of retroactive effect can be assumed to be a general principle. Serious doubts may also emerge as to the irrevocability of recognition of certain rights. A state which had previously recognized the right of another state to fish at the distance of 7 nautical miles from its coastline could be hardly said to have incurred an obligation for all ages. If the law on maritime areas evolves, other states must take into account that the author-state of a recognition may make use of its new rights and in such cases deem its previous recognition to be no special obstacle. To the extent to which recognition is a waiver, reference should be made to the next chapter. In particular one should stress the irrevocability of recognition of territorial changes.

231 L. Oppenheim 4, op. cit., p. 158. K. von Schuschnigg, op. cit., p. 160. With respect to de facto recognition, see: H. Lauterpacht, De Facto Recognition, Withdrawal of Recognition and Conditional Recognition, byil, 1945, pp. 164–190.

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Is Recognition a Unilateral Act by Definition? 14.1

An Attempt to Treat every Recognition as a Unilateral Act

The next question which must be considered is whether recognition is a unilateral act. This matter has not escaped the attention of the doctrine. D. Anzilotti refers to this element in quite a specific way, writing that: It may happen, that recognition is in fact the acceptance of an earlier proposal and means the conclusion of a treaty (de parfaire un véritable accord). However, international law attributes legal effects to the very fact of recognition in the sense that a state which recognized a given state of affairs or a given claim cannot put into doubt their legitimacy independently of whether any treaty was concluded with the beneficiary of recognition. A well-grounded practice, concordant with common sense and utility, gave recognition the character of a unilateral legal act.1 How is one to understand the last sentence? It is quite apodictic. In light of the two preceding sentences one may wonder what meaning was really intended. The first one says that recognition may be ‘the acceptance of an earlier proposal’ which means the conclusion of a treaty, while the second sentence posits that a treaty is not a precondition of recognition. Hence the last sentence suggesting that recognition is a unilateral act must be either too broad, or completely unsupported by previous arguments. In fact the intention of the author may have been to transmit the message that recognition was often made by means of unilateral declarations. This element is beyond any dispute. Taking into account what he actually said, however, let us consider an argument supporting the insertion of a unilateral character into the very definition of recognition. It could be as follows: As Poland emerged in 1918, and the uk (England before) had existed permanently for centuries, then the recognition of Poland by the uk given in 1919 is by definition a unilateral act, no matter whether effected by the means of a unilateral British note, by means of a reply to a Polish note, or by a means of a treaty concluded with Poland. 1 D. Anzilotti, Cours de droit international, traduction française par G. Gidel, Paris, 1929, p. 347.

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In fact very few authors known to me would be ready to adopt that way of thinking. J. Charpentier writes that ‘(…) certain authors claim that recognition may be unilateral or bilateral. But such a conclusion proves only how formalistic and insufficient the very notion of a unilateral act is. In reality, recognition from the material point of view is a unilateral act, even if included into a treaty.’2 To some extent one can agree with Charpentier. In particular the observation about the insufficiency of terminology referring to unilateralness could be repeated. Nonetheless the solution chosen by Charpentier is worse than bad. He seems to have very serious problems even with arguments in support of his thesis. He starts his argumentation with the statement that ‘formally recognition is a unilateral act as for its legal force the declaration of will of the authorstate is sufficient.’3 This reasoning is not very convincing. In this sense any treaty obligation can be called unilateral, as it may be incurred unilaterally. Charpentier invokes unilateral declarations on recognition, but must also acknowledge the fact that treaties are concluded on this matter as well as the circumstance that in certain areas treaties are the rule and unilateral declarations an exception.4 Charpentier continues that: If an objectivist concept of recognition is adopted, an act of recognition is unilateral, as in domestic public law a unilateral character is attributed to a decision of a competent state official allowing the general interest to take precedence over a specific one, as thereby an order hierarchically higher is applied. This is the concept of Scelle, Kelsen, Lauterpacht and Guggenheim.5 Charpentier goes on to note that this concept solves the problem of legal effects of recognition ‘but at the present stage of development of international society does not reflect the reality.’6 That is why he concludes that ‘the concept of a unilateral act should have a subjective character, that is it should adopt the perspective of the recognizing state. In this light and from the material point of view a unilateral act differs from a bilateral one first of all as regards its effects; the effects of a unilateral 2 J. Charpentier, La reconnaissance internationale et l’évolution du droit des gens, Paris, 1956, op. cit., p. 270. 3 J. Charpentier, op. cit., p. 269. 4 J. Charpentier, op. cit., pp. 269–270. 5 J. Charpentier, op. cit., pp. 270–271. 6 J. Charpentier, op. cit., p. 271.

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act are present directly only in the person of the author of such an act (…) a basic characteristic of a unilateral act is that (as opposed to a treaty) it does not reconcile differing interests.’7 This line of argument is far from being convincing. What is false is the very alternative presented as underlying the argumentation. It is not so that the problems connected with the unilateral or non-unilateral character of recognition could be solved by pointing out the drawbacks of an ‘objective’ understanding of unilateralness. Similarly, the cited examples prove only that a state which is being recognized does not have to care about the additional elements included in the unilateral declaration of a recognizing state. The latter cannot impose additional obligations on the former. It is sufficient for the state which is being recognized to take care about the declarations which it joins. It is less than clear why this element should be decisive for the question whether recognition is always unilateral. B. Wiewióra also writes that ‘[i]f recognition is abstracted from the different contexts in which it emerges in practice, it turns out to be a unilateral legal transaction giving rise to legal effects in connection with the fact that a given state defines its position to a given situation.’8 Wiewióra analyses neither the forms of recognition nor the notion of unilaterality, so his conclusion is to a large extent an a priori assumption. What’s more – it expressly attempts to detach the notion ‘unilateral’ from the form of a given act. An author dealing only with recognition (especially the recognition of a state) may be attracted to such arguments or similar ones. However, a monograph on unilateral acts of states gives the additional possibility of confronting recognition with other transactions, such as waiver or promise. If recognition is always a unilateral act, why not extend this statement to waiver? In this sense a waiver included into a treaty would always be a unilateral act of the state abandoning a given right or a claim. Why not extend this statement to promise as well? If so, then would a bilateral treaty which gives a right or benefit to one party only thus have to be treated as a unilateral transaction of the other party to this treaty? It seems obvious that the perception of a treaty as a conglomerate of unilateral acts seems to be reductio ad absurdum. Having said that, I do not wish to exclude beforehand the possibility that recognition may really have some extraordinary properties and may be deemed a unilateral act independently of the nature of a declaration of will or some other behaviour of 7 J. Charpentier, op. cit., p. 271. 8 B. Wiewióra, Uznanie nabytków terytorialnych w prawie międzynarodowym, Poznań, 1961, pp. 37–38.

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the author-state. However such a situation needs to be proved and if proven could be seen as an anomaly rather than confirmation of a regularity. The fact that such radical forms of arguments are isolated is itself an interesting element of the debate on the qualification of recognition. The special rapporteur in his fourth report also presents quite unclear statements in this respect. According to him: A State may also undertake unilateral obligations through recognition, and such obligations may be considered autonomous or independent if that is the context in which they arise or are formulated. Recognition, express or tacit, can also in terms of its legal effects be assimilated to acts for which the State undertakes a unilateral obligation; we are of course referring to express recognition formulated by means of a unilateral act in the strict sense we are discussing.9 Following the passage concerning the definition and effects of recognition (cited in the other places in this work) the fourth report says apodictically: Recognition is a unilateral act.10 This conclusion is neither convincing as such nor in light of the above-cited preceding fragment. The only certain element stemming from the above is that recognition may be effected by a means of a unilateral declaration (in other words there may be unilateral acts of recognition). It is difficult to read into this the equation that if recognition took place, so too for sure a unilateral act is in place. The special rapporteur himself points out (though awkwardly) important differences between recognition in the form of a unilateral act sensu stricto and in other forms. He does not dwell upon that differentiation however. The determination whether recognition is unilateral by definition is especially difficult taking into consideration that recognition can be either express or implied.11 The latter can result from different acts, e.g. recognition of a state 9 10 11

4. report , p. 20, par. 91. 4. report , p. 20, par. 91. As to recognition of a state, see: E. Nys, Le droit international. Les principes, les theories, les faits, t. i, Bruxelles, Paris, 1904, p. 74; J. de Louter, Le droit international public positif, Oxford, Londres, Édimbourg, New-York, Toronto, Melbourne, Bombay, 1920, t. i, p. 222; F.  von Liszt, Das Völkerrecht systematisch dargestellt, zwölfte Auflage bearbeitet von M.  Fleischmann, Berlin, 1925, p. 91; E. von Waldkirch, Das Völkerrecht in seinen Grundzügen dargestellt, Basel, 1926, p. 124; H. Bonfils, Manuel de droit international public (Droit des gens), septième édition par P. Fauchille, Paris, 1914, p. 135; A. Hold-Ferneck,

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or a government may take the form of a unilateral declaration, a treaty, receiving a diplomatic representative of another state or giving exequatur to a consul nominated by a government, which is thereby recognized.12 This element was not overlooked by the authors dealing with unilateral acts. Already in 1936 F. Pfluger carefully posited that recognition is, or at least may, be a unilateral act.13 In the earlier literature one can find the voices putting into doubt the unilateral character of recognition. For example Pfluger invokes the opinion of Burckhardt, according to whom a tacit agreement is in place when recognition is granted.14 In analysing whether recognition is a unilateral act, Pfluger attaches decisive importance to whether a single declaration would be sufficient for the emergence of a given effect.15 Thus in his opinion, even in cases of ‘coincidental’ declarations by a recognizing and a recognized state, the act in place is not bilateral, but unilateral.16 A similar conclusion was formulated in the preceding part of the present work with respect to promise. All the same this statement does not tell the reader much about the ‘non-incidental’ coexistence of declarations. Pfluger would probably not go so far as to defend the presence of a unilateral act in a treaty. However, I can only give an indirect proof for this supposition. Namely, when Pfluger approached the topic of the influence of recognition on dispute settlement, he stated pithily that it takes place by means of a treaty on recognition (Anerkennungsvertrag), and not by means of a unilateral act.17 E. Suy also rejects the claim that every case of recognition is a unilateral act.18 He refers to three counterarguments against the claim: (1) Many treaties contain provisions which have the nature of waiver, promise and recognition. Nobody however would be ready to qualify the first two types of acts as unilateral acts; Lehrbuch des Völkerrechts, Leipzig, 1930, part i, p. 182; J. Devaux, Traité élémentaire de droit international public (droit des gens), Paris, 1935, p. 85; V.D. Mahajan, International Law, Lucknow, Delhi, 1958, p. 149. As to recognition of a state and a government – E. von Ullmann, Völkerrecht, Tübingen, 1908, p. 128. 12 Vide: infra. 13 F. Pfluger, Die einseitigen Rechtsgeschäfte im Völkerrecht, Zürich, 1936, p. 137. 14 F. Pfluger, op. cit., pp. 137–138. 15 F. Pfluger, op. cit., p. 138. 16 F. Pfluger, op. cit., pp. 138–139. 17 F. Pfluger, op. cit., p. 152. 18 E. Suy, Les actes juridiques unilatéraux en droit international public, Paris, 1962, p. 199. So also: J.P. Jacqué, Eléments pour la théorie de l’acte juridique en droit international public, Paris, 1972, p. 337 and 338. This also contains a polemic with J. Charpentier.

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(2) If included in a treaty, such a provision (on recognition) is covered by the common will of two (or all) parties, even if only one supplies certain services, (3) The fundamental principle of a treaty is pacta sunt servanda, which would lose any sense if a treaty is seen as a series of unilateral obligations. For the above reasons it must be excluded that recognition is always, by definition, a unilateral act. 14.2

Unilateral and Non-Unilateral Recognition

Differentiating unilateral from non-unilateral recognition is anything but easy. In order to make it a bit easier, the issue of the unilateral character of recognition of a state and/or a government will be discussed separately in subchapter 14.3. E. Suy cites the view of G. Venturini, according to whom recognition is a unilateral act if the beneficiary of recognition is not a party to a treaty, and is not a unilateral act if the beneficiary is a party to a treaty.19 This presentation corresponds to the above-cited view of F. Pfluger, according to whom the decisive element on the unilateral or bi/multilateral character of a given transaction is whether its legal effects depend on the acceptance of the beneficiary of the transaction, i.e. in this case the state being recognized.20 One must once again here take note of the fact that recognition resulting from a treaty with the beneficiary is unequivocally excluded from the scope of the notion of unilateral act. The opposite view would be an unnecessary vulgarisation of both recognition as well as the notion of unilateral acts. It would adopt the following line of reasoning: there can be unilateral recognition – ­recognition is a unilateral act – every recognition is a unilateral act – hence recognition resulting from a treaty is a unilateral act. The consequence of this reasoning would be that a unilateral act takes on the form of a non-unilateral act, and vice versa. It should be noted that this paradox is present in any treaty constituting recognition, whether with or without the participation of the beneficiary. For this reason the latter kind of recognition must be discussed in more detail. It should be recalled that a similar issue was faced when discussing the question of whether pactum in favorem tertii is a unilateral act. The response to this 19 20

Cited according to: E. Suy, op. cit., pp. 196–197. F. Pfluger, op. cit., p. 138.

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question to a great extent determines the response to the analogous question concerning recognition resulting from a treaty without the participation of the beneficiary. In this respect one can easily sense the ambiguous nature of the adjective ‘unilateral’. This was referred to already in Chapter 1. The wide scope of this word makes it possible to speak in everyday language about unilateral treaties, or to say that a given element may be a treaty for the parties and a unilateral act for third states. I cannot see any possibility to prohibit such uses of the word. At the same time neither do I see any sense to transmit that kind of reasoning into a work on unilateral acts of states. It may turn out that the dilemma of unilateral vs. contractual is insufficient to serve as a satisfactory classification of legal transactions of international law. However it would be difficult to accept that calling treaties unilateral acts is really a panacea for such (possible) insufficiencies. This conclusion is natural in light of the premise adopted beforehand that the unilateral (or non-unilateral) character is attributed to an act as such, and not its effects. Only such a premise makes it possible to avoid qualifying treaties as unilateral acts. A similar attitude is presented by E. Suy. He underlines that if recognition is one of the provisions of a treaty it should not be qualified as a unilateral act. It does not matter for such qualification that exactly the same effects would have resulted from a unilateral act of recognition.21 One should add, however, that the relationship of recognition to treaties cannot be reduced to situations in which one of the treaty provisions reads ‘we hereby recognize this or that’. One should add two other possible situations. The first is that a treaty assumes the existence of a given state of affairs important from the legal point of view. In this way a tacit recognition may be effected. Also, in my opinion it is difficult in this situation to speak about a unilateral act, for the same reasons as discussed above. There is no distinguishing importance if a treaty speaks expressis verbis on the recognition of, for example, East Timor, or whether it contains other provisions indicating that East Timor is thereby being recognized. The second situation is one in which the very fact of conclusion of a treaty (independently of its content) amounts to recognition. This topic will be dealt especially in the context of recognition of states and governments. Without prejudging at this stage the conclusions concerning this matter, it must be said that also here one should take into account the possibility of excluding the unilateral character of an act of recognition. J. Verhoeven also considers it unquestionable that recognition effected on the basis of a treaty is a part of that treaty and therefore belongs to bi- or 21

E. Suy, op. cit., pp. 198–199.

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multilateral acts.22 In his opinion, the decisive element is that the matter of recognition may be an object of mutual bargaining and concessions.23 The doctrine has not overlooked the peculiar detachment of recognition resulting from a treaty vis-à-vis the legal existence or effect of the treaty as such. G. Schwarzenberger is believed to be the author of the view that recognition effected by means of a treaty (or resulting from it) is not affected by its extinction nor even the lack of its ratification.24 This view creates a relatively short and direct path to confirmation of the above-discussed statement that recognition is always a unilateral act. That is why, for example, E. Suy25 (as if to prevent a probable attack) counter-argues and compares recognition to a service (disbursement) performed on the basis of a treaty. What is important is that the extinction of a treaty does not affect a service (disbursement) performed. On the other hand the lack of ratification of a treaty (at least a permanent political treaty) does not affect the recognition of a state or of a government, as the very preparation of a treaty with them is an expression of recognition. It must be kept in mind, however, that recognition of a state or of a government is atypical in this respect. If a treaty is concluded on recognition of a claim of another state to a hitherto disputed area, but this treaty is not ratified and does not enter into force, it is not possible to say that recognition of the claim was made. However, the very fact that a state signed such a treaty may be an important component of the overall situation and will probably influence the mutual rights and duties. However, it will be a rather indirect influence, to a large extent similar to other elements taken into consideration when assessing the title of two competing states to a given territory. E. Suy cites in this context the judgment of the icj on asylum, in which the Court ruled that inasmuch as Peru had not ratified the 1933 Montevideo convention, it could not be said that Peru recognized the right to diplomatic asylum.26 22 23 24 25 26

J. Verhoeven, op. cit., p. 695, according to J. Verhoeven, the fact that recognition results from a treaty does not deprive the very act of its conventional character, ibidem, p. 700. J. Verhoeven, op. cit., p. 699. E. Suy, op. cit., p. 200. As to all counter-argumentation, see: E. Suy, op. cit., p. 200. E. Suy, op. cit., p. 200. In fact the icj does not use the word ‘recognize’ in this context. It simply says that ‘The Montevideo Convention has not been ratified by Peru, and cannot be invoked against that State.’ The term recognition is used in the next sentence, stating that: ‘The fact that it was considered necessary to incorporate in that Convention an article accepting the right of unilateral qualification, seems to indicate that this solution was regarded as a new rule not recognized by the Havana Convention. Moreover, the preamble of the Montevideo Convention states in its Spanish, French and Portuguese texts that it modifies the Havana Convention. It cannot therefore be considered as ­representing

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There are also other aspects of the interrelationship between recognition and its beneficiary. The first has to do with situations of granting recognition on the demand of an interested subject. It is worthwhile here to note the remark of F. Pfluger, who considered that a unilateral transaction is in place in such situations.27 However he was ready to deny that character to acts of recognition which expressly make their force dependent on the consent of another state.28 E. Suy29 went even further in this respect. In his opinion, when a beneficiary of recognition demands it and another subject fulfils that demand, two transactions (offer and its acceptance) together form an international agreement. For sure any and all examples of interaction between two or more states may give rise to doubts as to the unilateral character of a transaction resulting from such an interaction. This again is due to the broad character of the word ‘unilateral’, as has been mentioned several times. Any such term may, when transplanted into the discourse of international law, be understood differently. Certainly I could have proposed my own rigid way of understanding it, but my intention has been to avoid such a priori narrowing of the scope of discussion. My idea was rather to confront the word as it is used with the abundance of forms and contexts of several acts and activities important from the perspective of international law. The present context is quite special – a slight change in the understanding of the basic term can give rise to fundamentally different conclusions. It must be asked whether the essence of being unilateral is being ‘different than a treaty’ or maybe ‘not resulting from any kind of interaction with the possible beneficiary of a given act’. In my opinion neither of these two ways of understanding is appropriate. The first one is evidently too narrow. Already in our discussions of diplomatic law it was possible to find transactions which are not treaties but for sure have a character other than unilateral. The second way of understanding however is too broad. One can wonder, for example, whether a promise effected by one state can be disqualified from being a unilateral act only because of the fact that another state asked for such a promise. As was said in the preceding part, I am not ready to deny the ‘unilateral’ label just because of this latter element. The other side of the coin is that neither am I ready to easily assume the existence of a treaty when none of the interested states feels itself a party to it. In my opinion, there are no reasons to

27 28 29

merely an interpretation of that Convention.’ Both citations on the basis of: ColombianPeruvian asylum case, i.c.j. Reports 1950, p. 276. F. Pfluger, op. cit., p. 139. F. Pfluger, op. cit., p. 139. E. Suy, op. cit., pp. 198–199.

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adopt different criteria with respect to recognition. In this sense the very fact of another state asking for recognition would not deprive the act of recognition of its unilateral character. This is why referring to such a request as an ‘offer’ and to recognition as ‘acceptance’ is, in my opinion, more than risky. For sure what is not in place is an offer and acceptance together forming an international agreement. The next example discussed by the doctrine concerns recognition given in a wider context of events. They may comprise the emergence of a new situation connected with one state (state A), with another state (state B) determining the conditions under which it is ready to recognize that situation. Let us suppose that state A fulfils those conditions and state B is effecting recognition.30 Can such a situation be called unilateral, or in other words is a unilateral act of recognition in place? E. Suy is quite careful, noting that in such situations the lapse of time between subsequent events may make it more difficult to qualify that sequence of acts as an international agreement.31 It is worthwhile to note in this context that F. Pfluger was more unequivocal when he wrote that ‘recognition may be conditional, but condition does not change its nature.’32 This nature (as one can guess) refers to the unilateral or contractual character of an act of recognition. All the same I have very serious doubts as regards the unilateral character of an act of recognition in situations analogous to the above-presented. The element of interplay between two subjects is visible to a much greater extent as compared to a mere request for recognition. In this sense two acts could be discerned – one is conditional, another – unconditional, but granted only when the condition formulated earlier is fulfilled. It is true that the time element may be important, and it seems that no general, abstract qualification rule may be formulated in this respect. It is also less than clear that recognition of a state will necessarily be qualified in the same way as recognition of a claim, and furthermore less than clear that recognition of a state dependent upon its ridding itself of nuclear weapons will be qualified in the same way as recognition dependent upon handing over a parcel of its territory to the author-state of the recognition. Even bigger doubts are connected with recognition which is dependent upon the beneficiary making a declaration of a given type. Referring to all such situations it must be stressed once again that what is at stake here is merely a description or qualification. Whatever it is called has no influence upon the binding force of the recognition. While one can treat as 30 31 32

E. Suy, op. cit., pp. 198–199. E. Suy, op. cit., pp. 198–199. F. Pfluger, op. cit., p. 139.

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unwelcome a situation in which a given element is denied the character of a treaty and that of a unilateral act at the same time, all the same such situations may take place if one insists on a true unilateral nature of a unilateral act. Perhaps it would be more precise to call acts which belong to neither of the two categories as either unilateral acts sensu largo or as collective acts. The latter notion may be especially useful with respect to documents which are not treaties but are connected with simultaneous activities of several subjects. These include common declarations, communiqués etc. According to J. Verhoeven, all the above-presented remarks concerning treaties apply only to documents which are true treaties.33 In this sense only they would be definitively denied a unilateral character. How does one qualify recognition resulting from non-binding acts produced by several states? The first remark here is whether the very formulation of the problem is not self-contradictory. An act which is non-binding does not give rise to legal effects. If an act produces an effect of recognition, then it is not non-binding. This logical remark nonetheless gives rise to dissatisfaction. In fact what is at stake here are documents which are neither treaties nor formal binding resolutions of international organizations. References to recognition may emerge in them, or at least they may be connected with recognition. Hence such documents require further attention. Let us imagine that a given political document (containing a formula that it is not regulated by international law) refers to a certain situation which had previously been the subject of a dispute. If the same formulation were contained in an international agreement, the act of recognition would be unquestionable. But is recognition really in place when such a political document is chosen? In my opinion no recognition is in place here. If a given instrument is not regulated by international law and recognition is an international institution (or at least some of its examples are such institutions), then what is present here is at the most an apparent recognition. I deliberately reserve my position on the importance of such documents to recognition connected with subjectivity in international law, which is going to be discussed in the following subchapters. What however if a given document does not contain such an unequivocal statement but is not a treaty in the technical meaning of the term, nor a formal binding resolution. Once again leaving aside the topic of recognition of subjects of international law, it must be said that the examination of the legal status of such a document would have to refer to the will of the states participating in its adoption. If the aim of such a document is to give recognition, one must 33

J. Verhoeven, op. cit., p. 699.

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confirm first of all that recognition is granted. Secondly, its qualification as unilateral or not should be solved analogously as in the case of recognition stemming from international agreements. This is due however to the fact that states may freely shape their rights and duties and international law does not prescribe a determined form for their transactions. In fact, if recognition is granted a binding instrument must be in place, despite the apparent lack of will of states to call it a treaty. 14.3

Recognition of States and Governments and Unilateral Acts

With respect to the classical objects of recognition a view was presented according to which their recognition always has a unilateral character. The monograph of F. Pfluger contains the most sophisticated explanation of this concept. It was extended to all classical objects and in addition to the recognition of a people as well. Pfluger’s concept deserves to be presented here in more detail. Starting with the recognition of a state, Pfluger notes that inasmuch as representatives of the declarative theory deny that recognition is a legal transaction, there is no sense to refer to them when discussing the unilateral or non-unilateral character of recognition.34 He therefore limits the scope of his interest to the constitutive theory only. Pfluger excludes the thesis that the recognition of a state can result from the conclusion of a treaty. The reason is that since – according to the constitutive theory – recognition creates a state, hence before recognition there is no subject with the capacity to conclude a treaty.35 It is difficult not to observe that Pfluger becomes a hostage of the constitutive theory. The unilateral character of recognition of a state – which he defends – is explained by the lack of capacity of a de facto regime to conclude treaties.36 This becomes a kind of paradox, as the analyses of unilateral acts allow one (theoretically) to avoid the necessity to opt for one of the two competing theories. Pfluger must himself concede that what is recognized as a state is a state. At the same time, for the above-presented reasons he feels obliged to argue that a state acquires the capacity to act in international relations as the result of recognition.37 It is striking that he does not even refer to

34 35 36 37

F. Pfluger, op. cit., p. 155. F. Pfluger, op. cit., p. 156. F. Pfluger, op. cit., pp. 160–161. F. Pfluger, op. cit., pp. 162–163.

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the issue of the influence of different forms of recognition on the unilateral character of recognition as such. The second element upon which Pfluger is completely dependent is a very strict differentiation between an old and a new state.38 How is one to understand a mutual recognition of two states which emerge at the same, or almost the same, time? Though rare it is not impossible. Is such a recognition really of no legal value? It certainly is of legal value. As regards the unilateral character of recognition of other classical objects, in principle the main element of justification for them is the same as that relating to the recognition of a state. So recognition of a government is a unilateral transaction, because an unrecognized government has no capacity to itself enter into international relationships. Analogously belligerents, insurgents or people fighting for liberation have no legal capacity under international law until such time as they are recognized, so recognition of them must also be unilateral.39 A few elements of this concept require more attention. What is of special importance as regards the recognition of a government is the relationship of recognition to the establishment of diplomatic relations. The foundation of Pfluger’s description is the thesis that the establishment of diplomatic relations is (or may be) an effect of recognition.40 This thesis is as true as the one stating that the establishment of diplomatic relations is a form of recognition. However Pfluger obviously would have never accepted the latter as it is completely ruinous for his entire system. The weakest point in Pfluger’s concept is the qualification of recognition resulting from a treaty as unilateral. To justify that thesis F. Pfluger takes it as a given that it is only by means of recognition that a government acquires capacity to conclude transactions with other states.41 This amounts to the adoption a very bizarre and radical version of the constitutive theory. What’s more, it would be an attempt to extend it to a government. Even the main proponents of the constitutive theory of recognition of states have seldom attempted to extend it to governments.42 It is difficult to speak about a government as a subject of law and attribute international legal capacity to it as such. It is a state that is such a subject. Some people are regarded as competent to speak in 38 39

40 41 42

F. Pfluger, op. cit., p. 162. See: F. Pfluger, op. cit., p. 169 as to recognition of a government; p. 178 as to recognition of belligerents; p. 185 as to recognition of insurgents; and p. 192 as to people fighting for liberation. F. Pfluger, op. cit., p. 170. F. Pfluger, op. cit., pp. 170–171. Vide: Chapter 13.

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its name and some are not. All the same the fact of their attempting to speak in its name is a matter of fact and no ‘capacity’ in this respect could be believed to be endowed to it separately by that fact. One should appreciate that Pfluger is aware of the danger for his concept connected with the fact of states having unofficial relations with unrecognized regimes. In fact if one applies logic to the above-presented remarks of Pfluger concerning the acquisition of the character of a subject of international law, the result is less than satisfactory. Namely if an unrecognized regime is nothing or nobody in the light of law, then a state making an agreement on the exchange of prisoners of war with such an unrecognized regime concludes a treaty with nobody and consequently concludes no treaty. The realities of life (to which the doctrine of international law cannot be blind43) do not confirm such a thesis nor reflect the ‘logical’ methods referring in abstracto to the notion of a subject of international law and trying to infer practical conclusions from it. Pfluger counter-argues by claiming, however, that such unofficial relationships must be seen as a limited de facto recognition.44 What should be done however in cases when an interested state denies that such recognition has taken place? What is visible here is the assignment of a very flexible nature to recognition. There is a considerable (though not unlimited) scope of freedom to deny recognition despite several contacts with an unrecognized body (person).45 The latter element does not prejudge in the negative the binding character of agreements made with such an unrecognized regime. In the context of the preceding remarks there should be little wonder that as regards the recognition of belligerents, insurgents and people fighting for liberation the main argument for their unilateral character is, in Pfluger’s opinion, the question of capacity. In his opinion these groups have no capacity to effect legal transactions, nor may they formulate offers or make acceptances, and even if they formulate declarations they have no legal value.46 He also underlines that recognition of belligerents creates a new subject of international law.47 As said before, one must call this concept as a very radical version of the constitutive theory as regards all classical objects of recognition. It’s worth noting 43

Because one of its sources is custom based on certain courses of practical conduct, respected as law. 44 F. Pfluger, op. cit., p. 173. 45 Vide: infra. 46 F. Pfluger, op. cit., p. 178. 47 So: F. Pfluger, op. cit., p. 179 as to belligerents. As to insurgents, see: F. Pfluger, op. cit., pp. 185–188.

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however that while the arguments used are actually the same, their strength is different depending upon the object in question. Let us start with the recognition of states. The dilemma as to whether it is unilateral or non-unilateral has found some expression in the general scholarship on recognition, though this discussion is of limited value for the theory of unilateral acts as such. For example, Cavaglieri attacked the concept of recognition as a treaty. In his opinion it is an effect of a unilateral act.48 Also K. Strupp writes that recognition is not a treaty, because only it grants a recognized subject the capacity to make treaties (or more generally – acquire rights and incur duties).49 P. Guggenheim also criticises the theory according to which a state comes into existence out of itself, but enters the international community as the result of conclusion of a first treaty. Guggenheim’s main claim in this regard is that such a concept is self-contradictory. If a given body has the right to conclude a treaty, it cannot be said to acquire the capacity only as a result of its conclusion,50 This is why Guggenheim refers with considerable reverence to the concept presenting recognition as a unilateral act. In his opinion recognition takes place through a unilateral act of a previously-­existing state. The latter acts as an organ of the decentralized international community. At the same time a new state cannot be seen as a legal governmental agent (or delegated organ) of the state which granted recognition.51 It should come as no surprise that Guggenheim is a representative of the constitutive view and claims that the emergence of a state is regulated by international law.52 As was said in the previous chapter, this conclusion cannot be accepted, nor can the other views of the cited author be taken for granted. In fact there can be doubts whether these statements referring to unilateral acts and treaties can really be treated as an element of discourse on unilateral acts in the technical meaning of the term. These statements are formulated on another, much more abstract level. The very problem itself discussed in that context may be seen as a false one. I do not think that the basic dilemma is whether recognition is always a unilateral act or always a treaty. This is not the first time in this monograph I have rejected adoption of the intuitive either-or reasoning. Looking at the recognition from the perspective of other acts and activities is the best dissuasion from adopting such an intuitive scheme. 48 49 50 51 52

Cited on the basis of: H. Lauterpacht, Recognition in International Law, Cambridge 1947, p. 40. K. Strupp, Grundzüge des positiven Völkerrechts, Bonn und Köln, 1932, p. 76. P. Guggenheim, Traité de Droit international public. Avec mention de la pratique internationale et suisse, Genève, t. i, 1953; p. 189. P. Guggenheim, op. cit., t. i, p. 191. P. Guggenheim, op. cit., t. i, p. 189.

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What’s more, the reasoning of Pfluger and other cited authors translates into an attempt to explain a relatively easier matter (that is the unilateral character of a transaction) by means of a much more complicated, if not artificial, concept of a subject of international law. In my opinion it is better to adopt here a modification of an Occam razor. I am ready to deny any apparently logical concept which would oblige one to see a unilateral act in a bilateral transaction. This refers in the first instance to unrecognized regimes claiming to be states, and all the more so to recognition of a government. One can ask an academic question; namely whether a government which is being recognized by the means of conclusion of a treaty concludes that agreement in the private name of its members. As such can it be a treaty which is going to bind a state as a subject of international law? In my opinion the answer could be only positive. That is why it is even difficult to seriously discuss the concept of Pfluger with respect to governments. The treatment of recognition of belligerents, insurgents and people fighting for liberation is a little more different. It is a fact that the view on the constitutive character of their recognition is well-grounded. However it would be difficult to infer from that element as such the thesis that recognition by means of a treaty is a unilateral act. 14.4

Forms of Recognition of States and Governments

A method which seems, in my opinion, much more appropriate than the method chosen by Pfluger is to analyse the forms of recognition used in real life one by one, and ask whether they should be qualified as unilateral or not. The number of these forms is the largest with respect to recognition of states and governments. They will be discussed together. As early as in 1887 T. Funck-Brentano and A. Sorel wrote that the forms of recognition of states and governments are the same.53 This position has also been adopted by other authors.54 It is also underlined that as a rule the recognition of a state implies recognition of a government.55 However, a government has some specific qualities which require some additional remarks. Having said that, the majority of remarks that follow may be addressed to both objects of recognition at the same time. 53 54 55

T. Funck-Brentano, A. Sorel, Précis du droit des gens, Paris, 1887, p. 211. F. Despagnet, Cours de droit international public, Paris 1910, p. 106; J. Spiropoulos, Traité théorique et pratique du droit international public, Paris, 1933, p. 52. G.H. Hackworth, Digest of International Law, Washington, 1940, p. 167.

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T. Funck-Brentano and A. Sorel identify such forms of recognition of states and governments as: conclusion of a treaty with a state (or a state represented by a government thereby being recognized) or a ‘special declaration of recognition’ (both forms are designated as formal and express forms of recognition), but also by ‘acknowledgement in a public act of the existence’ of a new state or government, negotiations with it, receiving its representative or sending such a representative to it.56 The majority of authors known to me refer in this context to the conclusion of treaties (which includes all kinds of international agreements) or the sending or receiving of diplomats.57 K. Gareis refers to express or implied transactions, including the formal receiving or sending of an accredited representative, as well as giving exequatur. He mentions the conclusion of treaties, but only in matters he dubs as hoheitsrechtliche.58 On the other hand, he does not attribute that effect to several categories of treaties. These include agreements on trade, on border cooperation, as well as treaties concluded in the interest of all of mankind with fighting groups, but not prejudging future relations with them.59 One of the longest lists of forms of recognition can be found in several editions of the manual of Oppenheim.60 The fourth edition (by A.D. McNair) lists in this context: conclusion of a bilateral treaty with a new state, conclusion of a collective treaty between a group of states with a new one, admission to the League of Nations, sending or receiving of a diplomatic agent, a unilateral declaration,61 collective note or declaration, admission to an international congress or conference,62 the formal appointment of, or the issuance of an exequatur to, a consul.

56 57

58 59 60

61 62

T. Funck-Brentano, A. Sorel, op. cit., p. 211. E.C. Stowell, International Law. A Restatement of Principles in Conformity with Actual Practice, New York, 1931, p. 43; A. Ross, A Textbook of International Law. General Part, London, New York, Toronto, 1947, p. 120; D.P. O’Connell, International Law for Students, London 1971, p. 58. O’Connell notes the conclusion by the uk with Soviet Russia of a treaty on prisoners of war before recognition – that is 16 March 1921, when a trade agreement was concluded. Translation of this term is difficult. It could be attempted as ‘something other than of a technical nature’. K. Gareis, Institutionen des Völkerrechts, Giessen, 1901, pp. 65–66. L. Oppenheim, International Law. A Treatise. Vol. i – Peace, Fourth edition edited by A.D. McNair, London, New York, Toronto, 1928, (hereafter cited as Oppenheim 4), pp. 145–146, footnote 2. Recognition of Finland by the uk is cited as an example. Admission of Poland to the peace conference on 18 January 1919 is cited as an example.

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On the basis of a very detailed analysis of the American practice G.H. Hackworth writes that the modes of recognition of a state63 are: – formal note of a diplomatic representative to the Ministry of Foreign Affairs of a recognized state (e.g. recognition of Bulgaria in 1909, Albania, Estonia, Lithuania, Latvia and Egypt – in 1922, and Saudi Arabia in 1931); – formal note of the Department of State to the diplomatic representative of a recognized state in the usa (e.g.: recognition of Armenia in 1920, Finland and Yugoslavia in 1919); – telegram to the head of the recognized state (Poland 1919); – formal reception of a mission of a recognized state by the us President (Afghanistan); – formal announcement (Czechoslovak National Council); – establishment of relations with a recognized subject (Czechoslovakia), – accrediting an American diplomatic representative in a given state (Iraq in 1931); and – conclusion of certain bilateral treaties (Iceland). It is difficult to treat the above list as a full and logical classification. It is rather a kind of general overview of a more rich practice. Certain doubts could concern the two first examples. They assume the existence of a diplomatic representative in a state which is not yet recognized. In fact, the sending of the representative is treated as recognition itself. As regards the means of recognition of a government, G.H. Hackworth cites as a point of reference the memorandum of the second assistant of Secretary of State Bryan of 28 March, 1913.64 According to the memorandum, recognition of a new government results from one of six methods, listed as follows: – formal note of a diplomatic representative to the Ministry of Foreign Affairs of a state in which a change of a government took place (as a rule a diplomatic representative of that state in the usa is informed about this); – acknowledgment by the us President of a letter from a new head of another state; – reception by the us President of a new diplomatic representative of a state in which a change of a government took place (in order to hand over credentials);

63 64

G.H. Hackworth, op. cit., vol. i, pp. 167. G.H. Hackworth, op. cit., vol. i, pp. 167–168.

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– reception by the us President of a hitherto diplomatic representative of a state in which a change of a government took place, in order to accept an oral information on the change of a government; – delivery by an American diplomatic representative of a message of the us President on recognition, or of a congratulatory resolution of the American Congress, –  supplementing a temporal recognition of a government with a formal announcement of the American diplomatic representative on recognition.65 With respect to this catalogue one can repeat the same critical remarks concerning the lack of completeness and the mutually exclusive character of several elements present in it. This list however rightly reflects the separate character of recognition of a state and of a government. In fact, recognition of a government takes place with respect to a state already recognized (otherwise recognition granted concerns as a rule both a state a and a government at the same time). In both cases however the forms used are similar and are connected either with the conclusion of treaties, with some declarations, and last but not least with diplomacy. With respect to a few transactions present in the above-presented lists a negative verification takes place, in the sense that they are no longer presented as forms of recognition. This relates first of all to some treaties. The doctrine is not ready to attribute recognition to the very fact of conclusion of a treaty.66 H. Lauterpacht noted that: ‘the reservation of non-recognition is appended in some multilateral treaties and omitted in others – which latter course represents the more recent practice.’67 On the other hand the older literature saw recognition in the common participation in a multilateral treaty. Lauterpacht writes that ‘(…) neither signature nor adherence on the part either of the non-recognizing or the unrecognized State result by themselves in bringing about recognition. Any reservation disclaiming the intention to recognize must be regarded as appended ex abundante cautela.’68 This view should be accepted. A different attitude is adopted with respect to bilateral treaties. For example, as early as on 1 December 1825 G. Canning wrote that the very signature of 65 66 67 68

G.H. Hackworth, op. cit., vol. i, p. 168. Implied Recognition, (anonymous text cited hereafter as ‘Implied…’ ), byil 1944, p. 127; see also H. Lauterpacht, op. cit., p. 371 et. seq. H. Lauterpacht, op. cit., p. 374. H. Lauterpacht, op. cit., p. 374.

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a treaty with new Latin-American Republics ‘was in itself an effective and valid recognition of that State by His Majesty, and as valid as if the word “His Majesty recognizes” were totidem litteris introduced into it.’69 T.Ch. Chen notes however that ‘[t]here have been numerous cases in which States, although they have entered into agreements with new entities, have nevertheless insisted that no recognition had been accorded.’70 He rightly states that: ‘A temporary local arrangement with an unrecognised body is compatible with the status of a belligerent community, and need not even presuppose the existence of a State or government.’71 This is especially the case when a state concluding a treaty reserves that it does not recognize the other party. B.R. Bot notes that the thesis equating the conclusion of a bilateral treaty with recognition has lost much its rigidity, in particular after the Second World War. All the same his point of departure remains the thesis that recognition results from conclusion of a permanent treaty (a temporary treaty has no such effect), a political treaty or a treaty subject to normal ratification procedure in both states.72 As an example of treaties with unrecognized regimes the treaties cited include, inter alia, a treaty of 23 March, 1935 between the governments of Manchukuo and the ussr. In addition Soviet Russia concluded several treaties with states which did not recognize it at the time.73 Looking from the perspective of the unilateral character of recognition, one can repeat that it is irrational to see a unilateral act in a treaty. That is why in this work the question of qualifying the recognition resulting from a bilateral treaty does not emerge at all. As regards common participation in a multilateral treaty, I think it more useful to refer to it after the discussion on how international contacts in general affect recognition. The doctrine usually stresses that common participation in a conference does not lead to recognition. This view should be accepted.74 H. Lauterpacht rightly notes that ‘if a signature of or adherence to a multilateral treaty to which an unrecognised State is a party does not amount to recognition, it is difficult to see how participation in a conference, which normally leads to such treaties, can amount to recognition.’75 69 70 71 72 73 74 75

Webster, Britain and the Independence of Latin America, 1812–1830, vol. i (1938), p. 291; cited on the basis of: H. Lauterpacht, op. cit., p. 379. T.Ch. Chen, The International Law of Recognition. With Special Reference to Practice in Great Britain and the United States, London 1951, p. 193. T.Ch. Chen, op. cit., p. 194. B.R. Bot, Nonrecognition and treaty relations, Leyden, Dobbs Ferry, N.Y. , 1968, p. 67. Implied…, p. 128; see also: H. Lauterpacht, op. cit., p. 376. Implied…, p. 131. H. Lauterpacht, op. cit., p. 380.

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T.Ch. Chen notes however that ‘[s]ome writers have even gone so far as to assert that the mere entering into negotiations with a new entity for the purpose of concluding a treaty, and, indeed, the mere appointment of agents for that purpose, imply recognition.’76 As has been said T. Funck-Brentano and A. Sorel identify among the forms of recognition of a state or a government ‘acknowledgement in a public act of the existence’ of a new state or a government, or even negotiations with it.77 There are also some arguments that the mere participation in the inauguration ceremony of a new head of a state was treated as recognition. For example, G.H. Hackworth invokes a letter of Secretary of State Kellog to Senator Pepper of 15 January, 1927 concerning the inauguration of President Diaz in Nicaragua. It states that the American chargé d’affaires participated in the inauguration, thereby effecting recognition of the government of Diaz. Mr. Kellogg also offered the opinion that the participation in the ceremony of the representatives of the uk and Honduras also constituted an expression of their recognition of the government.78 A greater amount of caution was employed by the Americans during the Napoleonic wars. When Madrid was controlled by the Supreme Junta fighting in defence of the rights of the Bourbons, the American chargé d’affaires was instructed ‘to be careful not to commit his Government.’79 This obviously expressed a fear about giving grounds for a claim that the usa recognized the Junta as the new Spanish government. The representative of the Junta in the usa, Chevalier de Onis, was told that ‘as it was “found to be impossible” to give “a formal written answer” to his communications without recognizing in some degree his public character as well as that of the Supreme Junta (…) such an answer could not be given.’80 However, this level of care was excessive and cannot be treated as a useful point of reference. Nowadays it is impossible even to imagine that kind of behaviour, taking into consideration the present means of communication and transfer of information. It is difficult to expect that a Minister for Foreign Affairs would, if asked at the press conference about an unrecognized regime (aspiring to be either a state or a government), pretend not to have heard the question. The fact of pronouncing the name of this regime is not recognition, although if the very name refers to a state, like for example the ‘Islamic State’, 76 77 78 79 80

T.Ch. Chen, op. cit., p. 195. T. Funck-Brentano, A. Sorel, op. cit., p. 211. G.H. Hackworth, op. cit., vol. i, p. 170. J.B. Moore, Digest of International Law, vol. i, Washington, p. 132. J.B. Moore, op. cit., vol. i. , p. 132.

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it may be wise and useful to refer to it as the ‘so-called “Islamic State.”’ In any case a state withholding recognition does not need to pretend it has never heard of a given regime. This is why a much better pattern could be the course of conduct adopted by the usa with respect to the unrecognized government of General Guzman Blanco, who came to power in Venezuela in 1879. The us Secretary of State Evarts, in his instructions to the American minister (diplomatic representative) in Venezuela, ordered him to ‘cooperate in all proper ways (short of formal recognition until so instructed) in the good work of preserving intact the friendly relations between the two countries.’81 In the further part of his instruction the Secretary of State wrote that: Pending formal recognition, however, it is not to be supposed that any of the customary business relations or civil courtesies are abruptly terminated. The actual formula of recognition is unmistakable, and, short of that evident step, the diplomatic fiction of “officious intercourse” or “unofficial” action is elastic enough to admit of continuing ordinary intercourse (…).82 The Secretary of State criticised the diplomat for not having taken part in a banquet given by General Blanco. The Secretary of State wrote that his action was based ‘on the mistaken assumption that your position is one of non-­ intercourse rather than of ‘officious’ or ‘unofficial’ and friendly intercourse.’83 An attempt to treat any contact with an unrecognized regime (aspiring state or government) as recognition is unacceptable and unrealistic. In fact a number of contacts are held with belligerents or insurgents. Similarly, it would make no sense to treat the conclusion of a treaty or sending of a diplomatic representative to a given body as its recognition if the slightest contact with it would already amount to such recognition. However, Lauterpacht writes that an ‘official and solemn admission to an international conference may be a convenient way of granting recognition, but there must be persuasive evidence of an intention to grant recognition in that way.’84 Once again the very flexible character of recognition comes to the fore. Nobody can force a state to confess that by concluding a technical treaty with 81 82 83 84

J.B. Moore, op. cit., vol. i, p. 150. J.B. Moore, op. cit., vol. i, p. 151. J.B. Moore, op. cit., vol. i., pp. 151–152. H. Lauterpacht, op. cit., p. 380.

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a given person it recognized the latter as a state or a government. Nobody, however, can force a state not to believe that it effected recognition by means of voting in favour of admission of certain persons to an international conference, greeting it at such conference, or speaking with it on a peer-to-peer basis, while avoiding the very ‘paternalistic’ formula ‘we recognize that and that’. What is decisive is the evaluation by the interested state itself. From the perspective of the present work, the existence of one fundamental problem is beyond any doubt; namely how to qualify behaviours and transactions connected with the interaction of several subjects when a given transaction is not treated as such as a form of recognition, but it is so treated by a given author-state. This refers in particular to common participation in a multilateral treaty or common participation in a conference, as well as a meeting with a leader of an unrecognized regime. Two elements are visible. Firstly the number of engaged subjects speaks against seeing a unilateral act here. What speaks in favour of it however is the fact that the very activity itself of a few subjects is not sufficient as such to bring about recognition. In this sense the opinion of the actor-state is decisive. That is why in my opinion a unilateral act of recognition is in place, although I am aware of the doubts surrounding this matter. On the other hand it is often underscored that addressing an unrecognized government or other organ with protests and measures of protection of nationals of a given state are not forms of recognition.85 This conclusion should be accepted. 14.5

Recognition and Acts from the Field of Diplomatic and Consular Law

What remains in this chapter is to classify as unilateral or non-unilateral recognition connected with (or resulting from) transactions of diplomatic and consular law. The authors treating the establishment of diplomatic relations as a form of recognition were already cited.86 As T.Ch. Chen notes: ‘That the exchange of diplomatic representatives constitutes recognition is in principle open to less dispute than any other form of implied recognition. As evidence of the existence of the power recognised, it is irrefutable.’87 85 86 87

Implied…, p. 141. As to protests: H. Lauterpacht, op. cit., pp. 393–394. One can add to them: F. von Liszt, op. cit., 1925, p. 91, Implied…, p. 131, H. Lauterpacht, op. cit., p. 381. T.Ch. Chen, op. cit., p. 196.

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Also H. Lauterpacht writes, that ‘[t]he formal appointment or reception of diplomatic representatives is properly regarded both as a mode of and as an irrebuttable presumption of recognition.’88 In the second part of this work I referred to the legal character of several transactions connected with diplomatic law. If diplomatic relations with a newly recognized state are established, it is difficult not to see the bilateral character of that transaction. In my opinion there is no possibility to find here the presence of a unilateral act. On the other hand, it may happen that despite the lack of more or less formal establishment of diplomatic relations, a given state asks a newly established state for an agrément. As was said in Part 2 of this work, such an act may be qualified as unilateral sensu largo, but not sensu stricto. Last but not least if a given state receives a diplomatic representative of a newly established state which has not been recognized before, in my opinion such recognition should be also qualified as an act of receiving a foreign diplomatic representative. In part 2 I pointed out that it should be denied a unilateral character in any meaning whatsoever. An analogous qualification may be extended to the question whether transactions governed by consular law really amount to recognition. The doctrine emphasizes that the very preservation of consular officers (without asking for or receiving exequatur) is recognition neither of a new state nor of a new government.89 This is all the more certain inasmuch as such officers were as a rule sent with the approval (express or tacit) of the previous sovereign and simply continue their activities in a given area. In addition, analogously as with the diplomatic law, so too the sending of new officers without exequatur as well as tolerating such officers sent by an unrecognized regime does not amount to recognition.90 There is less certainty as regards a request for exequatur. I’ve already referred to voices seeing in this a form of recognition. However H. Lauterpacht analyses this issue as follows: [T]here is no compelling reason of logic why a request for a consular exequatur should signify general recognition, i.e. an admission other than that the requested authority is in power in the territory in question and that it is in the position to ensure the conditions necessary for the normal performance of consular functions. (…) The importance and the character of exequatur and the consul function in general would not 88 89 90

H. Lauterpacht, op. cit., p. 381. Implied…, p. 134, so also: H. Lauterpacht, op. cit., p. 383. H. Lauterpacht, op. cit., pp. 383–384.

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seem to make it a proper or natural instrument of recognition. However, in view of the preponderance of opinion that a request for exequatur implies recognition, a government making that request and wishing to avoid any such implication will be acting wisely in entering a caveat calculated to prevent that effect.91 As to the issuance of exequatur – H. Lauterpacht takes a less clear position.92 At the beginning he refers to his remarks concerning the making of a request for exequatur. In the very next sentence however he writes that ‘(…) such scant practice and expression of opinion as exist in the matter clearly favour the implication of recognition.’93 B.R. Bot also seems to see recognition in the grant of exequatur.94 This conclusion seems to be convincing, unless a given state reserves otherwise. Similarly as was stated with respect to transactions of diplomatic law, a request for exequatur should be treated as a unilateral act, but only sensu largo. The grant of it may be treated in the same way. What is really important is that these two acts are interconnected and form a whole which is evidently not unilateral. 14.6 Conclusions It is difficult to present the above remarks without a longer commentary. If a good theory makes it easier to understand complicated matters, I feel obligated to confess the unwelcome fact that the theory of unilateral acts, as applied to the recognition of states and governments, does not pass that test. Instead of making matters easier it complicates them. It certainly raises several important questions, but they are usually aimed at getting out of problems created by the theory. In my opinion this is by no means a coincidence. These problems seem to stick into the very heart of discussions on unilateral acts. Once again a question emerges; namely whether recognition is not a certain effect which is by itself neither unilateral nor (bi-)multilateral. In this sense it would be a fundamental mistake to attempt to qualify recognition in categories relating to the unilateral character of acts. Another competing concept would say that recognition is always unilateral, though may flow from diverse events and acts. The possibility to exclude recognition despite the conclusion of a treaty 91 H. Lauterpacht, op. cit., p. 387. 92 H. Lauterpacht, op. cit., p. 387. 93 Ibidem. 94 B.R. Bot, op. cit., p. 31.

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with a new regime (aspiring state or aspiring government of a recognized state) could be an important argument in favour of such a conclusion. The respective argument would be as follows: while a treaty is a bilateral or a multilateral act, recognition does not have to result from it as it may be excluded by a given state. In this sense recognition is independent of a given treaty and therefore unilateral. However this argument has many drawbacks and is less than convincing. It may be just reversed. It is because recognition results automatically from a treaty that a given state must undertake certain acts to exclude it. Of course, it may be so that a certain treaty (e.g. on a ceasefire or exchange of prisoners of war) does not amount to recognition. From the perspective of the present work this is of no importance. If no recognition is in place, there is neither a unilateral nor a non-unilateral act of recognition. The topic, however, has a wider scope of application and must be considered in the context of distinguishing between an act and its effect. As was said in the preceding chapter, the effect of recognition is of primary importance. The main problem is that it is difficult to find a name for it other than ‘recognition’ itself. In this sense recognition (an act of recognition, an act believed to lead to recognition) leads to recognition (of the objective fact or relationship of certain facts or acts being recognized). As the most important facts are the emergence of new states it is difficult to blame authors who concentrate on such effects. They clearly may be seen as the most important. In other words, what is the most important is which states are recognized by a given state and which regimes aspiring to be states are not so recognized. What is less important (though not unimportant) are the means of distinguishing these two groups. They are well developed. And the qualification of these means as unilateral or not seems to be the least important of all – in fact virtually an unimportant matter. On the other hand, an important part of the study of unilateral acts is the qualification of certain acts as unilateral (truly unilateral) or not. In this sense the two perspectives seem to be irreconcilable. This weakness is an inherent element of a study of unilateral acts. It is a part of it and should not be overlooked or omitted as ‘unwelcome’. It is difficult not to see that international life does not care much about the satisfaction of lawyers writing on unilateral acts. As I have said several times I do not see any sense in ‘improving’ international realities by trying to stick them into rigid categories invented by lawyers writing on unilateral acts. At the same time, I cannot see the task of someone writing on unilateral acts as automatically qualifying all acts which are difficult to qualify as unilateral. This would be based on the following premise: as recognition is present in catalogues of unilateral acts, all doubts must be resolved in favour of the thesis

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that a given act of recognition is unilateral. Such a premise is both unscientific and not serious. What must be analysed is a given act and its nature. It would be a complete absurd to treat one and the same act as bilateral when discussed, for example, in the context of diplomatic law and as unilateral when discussed as a form of recognition. As was said, the transaction of recognition may clearly be unilateral (if a unilateral declaration is made) and equally clearly contractual (when an effect of recognition must be attributed to a treaty so that the treaty is a transaction of recognition). The really difficult task is to qualify other forms of recognition. They may give rise to doubts. What is really important is to be consequential and make sure no a priori responses are forced. Once again it must be said that what is at stake here is just a description and it neither adds to nor detracts from the recognition really granted, or any of its effects.

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Waiver in Public International Law 15.1

Introductory Remarks

Chapter 3 presented various lists of types of unilateral acts of states in public international law. While the lists suggested by the several authors differ to a very great extent, one of their common elements is the presence of waiver in each of them.1 Hence there is no possibility to leave it outside the scope of this book as well. Some initial difficulty is connected with the very name of the act. The works in English use the name ‘waiver’, however R. Jennings and A. Watts prefer the term ‘renunciation’. They note that Renunciation is often indistinguishable from waiver, it being largely a matter of usage and convenience which term is customarily employed in particular circumstances. ‘Renunciation’ may carry with it a flavour of permanence and comprehensiveness (as in the renunciation of all rights to sovereignty over territory), whereas ‘waiver’ tends to be more specific and related less to the right itself than to its exercise in a particular case (as in the waiver of diplomatic immunity), but no hard and fast distinction on these lines can be maintained.2 In fact, what is at stake here are some loose associations and linguistic intuitions. It is rather impossible to translate them into precise legal terms and construct definitions of two separate acts, i.e. of waiver and renunciation separately. What’s more, such remarks as the one above are hardly translatable into other languages, which also have their own problems. For example, the French term renonciation (meaning renunciation or waiver) may mean also termination of 1 Suffice to say that I do not know of any author who has presented a more or less comprehensive list of unilateral acts without including waiver. Of course I am not referring here to authors who examine just one or two examples of unilateral acts. Lists of unilateral acts comprising waiver can be found in, e.g.: E. Vanselow, Völkerrecht. Einführung in die Praxis der Staaten, Berlin 1931, p. 42; K. Doehring, Völkerrecht. Ein Lehrbuch, Heidelberg, 2004, p. 144; K. Skubiszewski, Unilateral Acts of States, in: M. Bedjaoui (ed.), International Law: Achievements and Prospects, Paris 1991, p. 229. 2 R. Jennings, A. Watts, Oppenheim’s International Law, ninth edition, vol. i, London, New York 1997, p. 1195, footnote 1.

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an international agreement. Interestingly enough, Ch. Rousseau starts his considerations on waiver from the analysis of the latter meaning of the French term,3 which is obviously outside the scope of interest here. 15.2

Definition of Waiver

Several definitions of waiver refer both to its legal effects and unilateral character. For example, F. Pfluger writes that waiver in international law (der völker­ rechtliche Verzicht) is a unilateral legal transaction (Rechtsgeschäft) of a subject of international law, a transaction which usually does not require the determination of an addressee and which is aimed at giving up (Aufgabe) subjective rights.4 The unilateral character of waiver is underlined by other authors,5 as well as the special rapporteur.6 Such definition is not however universally adopted with respect to the unilateral character of waiver. Already D. Anzilotti wrote that waiver could be unilateral but it could be based on a convention as well.7 F. Berber defines waiver as a ‘unilateral declaration of will leading to abandonment (Aufgeben) of existing rights or expectations (Anwartschaften), or an agreement with another state containing abandonment of rights (das Einver­ ständnis mit einer von einem fremden Staat vorgenommenen Entziehung eigener Rechte erklärt wird).’8 Interestingly enough, E. Suy attempts to separately define ‘waiver as a unilateral act’.9 This could be understood as a sign that waiver is not by definition a unilateral act. Hence it is little wonder that a definition which does not refer expressly to it as having a unilateral character is the safer course. So for example in the Polish literature R. Bierzanek and J. Symonides write that ‘waiver is an act by which a state gives up its rights.’10 3 4 5

6 7 8 9 10

Ch. Rousseau, Droit international public, Paris, 1970, p. 428. F. Pfluger, Die einseitigen Rechtsgeschäfte im Völkerrecht, Zürich 1936, p. 253. A. Cassese, International Law, Oxford 2005, p. 184; G. Venturini, La portée et les effets juridiques des attitudes et des actes unilatéraux des États, rcadi, 1964–ii (t. 112), p. 414; W. Góralczyk, Prawo międzynarodowe publiczne w zarysie, Warszawa 1989, p. 170. 5. report, add. 2, p. 5, par. 160. D. Anzilotti, Cours de droit international, traduction française par G. Gidel, Paris 1929, pp. 349–350. Identically: D. Ruzié, Droit international public, Paris 1992, p. 50. F. Berber, Lehrbuch des Völkerrechts. Erster Band. Allgemeines Friedensrecht, München und Berlin 1960, t. i, p. 410. E. Suy, Les actes juridiques unilatéraux en droit international public, Paris 1962, p. 156. R. Bierzanek, J. Symonides, Prawo międzynarodowe publiczne, Warszawa 1994, p. 101.

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J. Charpentier does not propose a definition of waiver. Instead he describes it as a form of negative obligation (une forme – négative d’engagement).11 The issue of the unilateral character of waiver will dominate the next two sub-chapters. What will be at the centre of our interest is the effect, or perhaps one may say the aim of waiver.12 D. Anzilotti calls waiver a voluntary abandonment of a right (l’abandon volonataire de droit).13 This idea is widely accepted.14 The special rapporteur in his fifth report also defined renunciation as a ‘unilateral act by virtue of which a State voluntarily gives up a subjective right.’15 E. Suy defines ‘waiver as a unilateral act’, in which he sees ‘a declaration of will by which a subject of law abandons (abandonne) its subjective right in the face of lack of declaration of another subject.’16 It is clear that many statements of this kind approach an idem per idem definition. Waiver means renunciation, and renunciation means waiver or abandonment, and states declaring a waiver waive or renounce, abandon, resign from or give up their rights. The basic terms are: abandonment17 or give up18 (aufgeben). One should take into account that what is at stake here is a socalled basic term, which can be only paraphrased rather than defined within the full meaning of the term. In fact one can also wonder about a more theoretical definition. It could state that waiver is a legal transaction of a subject of law by which it brings about the extinction of its right(s). Such a definition is at least not a tautology. In fact however the formulation of such a definition would require several 11

12 13 14 15 16 17

18

J. Charpentier, Engagements unilatéraux et des engagements conventionnels: différences et convergences, in: J. Makarczyk (ed.), Theory of International Law at the Threshold of the 21st Century. Essays in honour of Krzysztof Skubiszewski, The Hague, London, Boston, 1996, p. 368. The term ‘object of waiver’ is deliberately not used here. I will reserve it for elements, which may be waived. These are going to be discussed in one of the next subchapters. D. Anzilotti, op. cit., pp. 349–350; identically: D. Ruzié, op. cit., p. 50. A. Cassesse, op. cit., p. 184; G. Venturini, op. cit., p. 414; W. Góralczyk, op. cit., p. 170. 5. report, add. 2, p. 5, par. 160. E. Suy, op. cit., p. 156. L. Oppenheim, International Law. A Treatise. Vol. i – Peace, Third edition edited by R.F. Roxburgh, London, New York, Bombay, Calcutta, Madras, 1920, p. 651 (hereafter cited as Oppenheim, 3); L. Oppenheim, International Law. A Treatise. Vol. i – Peace, Fourth edition edited by A.D. McNair, London, New York, Toronto, 1928, (hereafter cited as Oppenheim 4), p. 698; L. Oppenheim, International Law. A Treatise. Vol. i – Peace, Eighth edition edited by H. Lauterpacht, London, New York, Toronto, 1955, (hereafter cited as Oppenheim 8), p. 875, similarly: R. Jennings, A. Watts, op. cit., p. 1195; E. Suy, op. cit., p. 156. K. Skubiszewski, op. cit., p. 229; 5. report, add. 2, p. 5, par. 160.

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clarifications concerning the object of waiver, its effects, and the question of irrevocability. These topics will be discussed in following subchapters. The doctrine of unilateral acts of states treats it as its obligation to dwell on the nature of waiver in detail. One can wonder whether this is a reasonable assumption, and argue that to some extent it is not. The characteristics of waiver are an immanent part of the scholarship on unilateral acts of states only if waiver is always (by definition) such an act. If not, there can be both unilateral waiver and waivers based on treaties (conventional waivers). If this is so, the peculiarities of waiver are of secondary importance for the doctrine of unilateral acts of states. In particular the latter cannot be held hostage to this or that or another aspect of waiver. However, at the present stage of development of the doctrine of unilateral acts of states each of the classical acts should be treated as separately interesting per se. This is why waiver will be examined in more detail here. The main point of reference are the theoretical statements on waiver. Being in many respects the extreme example of a unilateral act, it attracts the great interest of theoreticians. This is fully justified, but many of the statements can hardly be verified as to their conformity with the practice. On the other hand the only area in which the practice of waiver is abundant is the waiver of international immunities. And in this area the practice is to a very large extent immune from theoretical concepts. 15.3

Is a Unilateral Waiver Possible? Unilateral Waiver and Conventional Waiver

The possibility to perform a waiver unilaterally is rather more tacitly presumed than asserted expressis verbis. D. Anzilotti is an exception in this regard when he writes (after having pointed out rights which cannot be waived) about the existence of a principle of international law according to which states may waive their rights.19 Anzilotti writes that: Unless the wording or the spirit of a given treaty provide otherwise, one should assume that the possibility of being waived (renonciabilité) is a characteristic of subjective rights of states. Treaties creating mutual rights and duties of states usually imply (impliquent) the possibility of a voluntary waiver (abandon) of claims by the subject of the right. As such 19

D. Anzilotti, op. cit., p. 350.

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waiver gives a benefit to another party, and one can hardly assume that the latter does not want such a waiver.20 Also F. Pfluger gives quite an original justification of the possibility of unilateral waiver.21 His point of departure is the statement that in the sphere of domestic law22 unilateral waiver of subjective rights is a rule. Secondly, he observes that in the field of public law such a unilateral waiver is an exception. Thirdly, he observes that in the field of public international law once again the situation is different and there is a rule that a state can unilaterally waive its rights.23 P. Reuter presents four principles governing the legal effects of unilateral acts. One of them is of special importance here. According to it a subject of law can freely dispose of its subjective rights.24 Also V.-D. Degan treats it as obvious that states as sovereign subjects can waive their rights freely in the same way as they can incur obligations by unilateral declarations.25 As an example of a unilateral waiver one can cite a declaration of the Government of Poland (at that time of the Polish People’s Republic) of August 23, 1953.26 The pertinent part of that declaration stated that ‘the Government of the Polish People’s Republic (…) made a decision on waiver on January 1, 1954 of the payments of damages for Poland’. The possibility of effecting waivers by means of unilateral acts, and unilateral declarations in particular, is of fundamental importance at the outset of the discussion on unilateral acts of states. In this respect the similarities between waiver and recognition come to the forefront. Both recognition and waiver are present in the earliest catalogues of unilateral acts of states. Demanding a treaty for any recognition or waiver would amount to an absurd. However, the earliest presentations of unilateral acts of states do not conceptualise the very idea of the unilateral character of waiver. 20 21 22 23 24 25 26

D. Anzilotti, op. cit., p. 350. However, this author also writes about state obligations which cannot be waived: ibidem, p. 345. F. Pfluger, op. cit., pp. 249–250. Presumably the author has in mind private law. F. Pfluger, op. cit., p. 250. P. Reuter, Droit international public, Paris, 1976, pp. 142–143. V.-D. Degan, Unilateral act as a source of particular international law, The fyil, vol. v, 1994, p. 221. Zbiór Dokumentów, nr 9/1953, pp. 1830–1832. For more on the legal and political disputes connected with this declaration, see: J. Sandorski, Zrzeczenie się w 1953 r. przez Polskę reparacji wobec Niemiec w świetle prawa międzynarodowego, W.M. Góralski (red.), Problem reparacji, odszkodowań i świadczeń w stosunkach polsko-niemieckich 1944– 2004, t. I, Studia, Warszawa 2004, pp. 123–155.

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In this context it must be asked whether waiver should not be qualified as an act which is always unilateral, even if it is a part of a treaty, in the sense that if one party to a given treaty waives something by the means of a treaty it is a unilateral act of that party only. In the preceding chapter exactly the same problem was discussed with respect to recognition. A positive answer would divorce the notion of unilateral act from the instrument in which it is expressed. The element which would make this easier is the fact that waiver may be looked at as a type of transaction with a specific content and effect. This is another similarity of waiver to recognition. This problem was discussed by E. Suy in his monograph, and in my opinion he managed to solve it in a satisfactory way.27 According to him, one cannot see a unilateral act in a treaty provision. He goes as far in this respect as to warn that an attempt to see a unilateral act in a treaty would even be dangerous. Namely, it would ‘attribute to unilateral acts a significance which they do not deserve and would call into question the fundamental role played in international relationships by treaties.’28 In fact Suy does not cite any author who would suggest such an extreme version of the character of a unilateral act. The very mentioning of waiver in the first catalogues of unilateral acts does not have to be treated as equating every case of waiver with a unilateral act. On the other hand, the similarity of waiver to recognition is large enough to consider such an argument seriously. In the end I can only agree with E. Suy in this respect. An attempt to see a unilateral act in a treaty could only be seen as a paradox. It must be said that the readiness of the doctrine to press on with such an extreme vision of the unilateral character of waiver is much smaller than was the case with respect to recognition. On the other hand, several doctrinal definitions of waiver point directly or indirectly to the fact that waiver is not unilateral by definition. E. Suy starts his analysis of waiver with a denial of the thesis which would suggest that waiver is a unilateral act by definition, inasmuch as it could result from a treaty as well (similarly as a promise).29 One can even go further and argue that a waiver undertaken according to a convention is a rule.30 Authors writing on unilateral acts of states have problems with giving examples of waivers effected by an express unilateral declaration. On the other hand, almost every peace treaty or other treaty of cession meant waiver by the 27 28 29 30

E. Suy, op. cit., p. 154. E. Suy, op. cit., p. 155. E. Suy, op. cit., p. 153. See: V.-D. Degan, op. cit., p. 221.

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former sovereign of the ceded territory. Other agreements also contain waiver clauses. So for example on 7 March 1914 France and Spain concluded an agreement (called a ‘declaration’) which contained the following provisions: Taking into consideration the guarantees of judicial equality offered to foreigners by the French Tribunals of the Protectorate, His Catholic Majesty’s Government renounces claiming for its consuls, its subjects, and its establishments in the French Zone of the Shereefian Empire all the rights and privileges arising out of the regime of the Capitulations. (…) So far as the Government of the French Republic is concerned, it binds itself to renounce equally the rights and privileges existing in favour of its consuls, its subjects, and its establishments in the Spanish Zone as soon as the Spanish Tribunals are established in the said Zone.31 In fact, France effected its waiver by means of a declaration of 17 November, 1914.32 This declaration as such was an act of one state, though it can be hardly called a unilateral act sensu stricto. Another example is the Treaty of Kiel of 14 January, 1814. According to its Art. iv: His Majesty the King of Denmark, for himself and his successors, renounces for ever and irrevocably all his rights and claims on the Kingdom of Norway, together with possession of the Bishopricks and Dioceses of Christians and, Bergenhuus, Aggerhuus, and Drontheim, besides Nordland and Finmark, as far as the frontiers of the Russian empire.33 Interestingly enough, Spain asked the usa in 1915, 1917 and 1923 to waive its capitulatory rights in the Spanish sphere of Morocco. The usa in March 1923 answered that they were ready to insert such a waiver only in a treaty which would contain other elements (including, inter alia, the settlement of some claims of American nationals).34 31 32

33 34

Case concerning rights of nationals of the United States of America in Morocco, I.C.J. Reports 1952, p. 194. Ibidem, p. 194. One can wonder about the character of this waiver, and in particular whether it is unilateral. There is no doubt that this act is evidently not autonomous as is provided for in another act which is bilateral. So even if a unilateral character were attributed to such a waiver, one can speak only about its being unilateral act sensu largo. pcij Publications, Series A/B, No. 43, p. 30. G.H. Hackworth, Digest of International Law, Washington, 1940, vol. i, p. 91.

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Waivers resulting from treaties could be interesting for comparison purposes only. This is all the more necessary as the number of true unilateral waivers (waivers effected in the form of a unilateral act) is very small.35 It is clear that the choice of this term in a treaty or a unilateral act is never neutral from the legal point of view. In fact one can hardly imagine a word which would go further. That is why examination of intention is hardly necessary, the term ‘waive’ seems to be unequivocal. 15.4

Legal Effects of Waiver – Preliminary Examination

The discussion of waiver usually creates the opportunity to present two kinds of waivers. The first is called an ‘abdicative waiver’ (renonciation abdicative). E. Suy defines it as ‘an act (acte juridique), by which a subject of law limits itself to the extinction of its own right (se limite à abandonner un droit); such a waiver is not effected for the benefit of another subject of law, or at least the author-state does not care about the future fate of its right.’36 The second category of waiver is connected with the transfer of a right from one state to another.37 It is generally accepted that such a waiver can result only from a treaty.38 F. Pfluger rightly points out that the transfer of rights falls outside the definition of waiver and always requires the consent of the beneficiary.39 This is why this kind of waiver will remain outside the scope of interest of the present work.40 G. Venturini adopts a similar attitude with respect to waiver. He argues that the waiver by Germany of its overseas territories on the basis of the Treaty of Versailles was not a true waiver, but a consent for a transfer. On the other hand, the renunciation by Italy of its African possessions in Art. 23 of the Peace Treaty following the Second World War is (in his opinion) an example of a true waiver.41 In this context it is worthwhile to wonder what is the sense of a unilateral statement by a state of the type ‘we waive right x for the benefit of state y’. F. Pfluger writes that such an act is ‘waiver under a suspensive condition’ (suspensiv bedingten Verzicht), so in fact we have to do just with an offer to transfer a right.42 35 36 37 38 39 40 41 42

E. Suy, op. cit., p. 154; similarly: V.-D. Degan, op. cit., p. 221. E. Suy, op. cit., p. 155. E. Suy, op. cit., p. 155. E. Suy, op. cit., p. 155; G. Venturini, op. cit., p. 415. F. Pfluger, op. cit., pp. 253–254. So also reasoned the special rapporteur, see: 4. report, p. 19, par. 88. G. Venturini, op. cit., p. 415. F. Pfluger, op. cit., p. 254.

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The condition inherent in such an act is its acceptance by the beneficiary. Such a waiver does not result in a transfer unless it is accepted. This does not mean that it does not lead to any legal effects. In fact, however, they are the typical legal effects associated with any offer. If it is not accepted, no legal effects are in place. In other words, the author-state does not lose its right; as this effect was not covered by its declaration. So, for example, Russia cannot transfer unilaterally a part of Grozny to another state without the consent of the latter. The only thing that could be argued in this respect is whether an international agreement is present if consent is given. In any case it’s clear that no true unilateral act (unilateral act sensu stricto) is in place. E. Suy cites with approval the opinion according to which a waiver stemming from a treaty could be only transitive in effect.43 It is difficult to agree with that opinion. An abdicative waiver could be found both in a unilateral declaration and in a treaty. On the other hand, even if an abdicative waiver is in place, it may be possible to find a beneficiary of the waiver. That is why subchapter 15.7 below is devoted to the influence of that beneficiary on the nature of a waiver. The precise effects of an abdicative waiver seem to be indicated in the very name. E. Suy associates the effects of such a waiver with the extinction of a given right to the extent covered by the will of the author-state.44 W. Góralczyk also writes that ‘the effect of waiver is the extinction of rights of public international law. In consequence the waiving state cannot invoke them any longer.’45 Such an understanding is widely accepted in the literature.46 On the other hand the suggestion of F. Pfluger, according to whom waiver leads to the emergence of res nullius, has been rightly criticized.47 Such a consequence could be attributed only to the waiver of so-called real rights (that is rights connected with tangible goods). In fact, however, the precise determination of such effects may give rise to some problems. E. Suy starts his discussion on conventional waiver with the remark that in practice any treaty brings with it the limitation of sovereign rights. However, the above-presented statements concerning the effects of waiver do not allow to see waiver in every kind of limitation of rights according to a treaty. The special rapporteur referred in his fourth report to another 43 44 45 46 47

E. Suy, op. cit., p. 155. E. Suy, op. cit., p. 183. W. Góralczyk, op. cit., pp. 170–171. G. Venturini, op. cit., p. 414; K. Skubiszewski, op. cit., p. 229; G. Dahm, op. cit., Band i/3, p. 771. E. Suy, op. cit., p. 184.

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aspect of this topic. He criticised the theses asserting similarities between promise and waiver. According to him: As for the effects of a waiver, which some authors compare with a promise or consider as a type of promise, it must be borne in mind that it amounts to an act of disposal of a right, unlike a promise, which is simply the exercise of a prerogative. Consequently, it is incorrect to refer to a waiver of territorial sovereignty. The obligation to give up a territory to another sovereign State does not arise from a waiver but from a promise or the acceptance of a proposal.48 It is not clear, however, that the special rapporteur is right in this respect. In my opinion the phrase ‘waiver of sovereignty’ is not mistaken, though the actual duty to give up a given territory to the other state could take place only by transitive waiver, which (as was already said) is never a unilateral act. The special rapporteur himself referred to the positive obligations stemming from waiver when he wrote as follows in his fourth report: By waiver, which produces the extinction of a right because it does not provide for its transfer to other subjects, the State abandons a right or a claim, but at the same time assumes or undertakes an obligation. The legal effect that the unilateral act of waiver produces is expressed in the State’s obligation to no longer contest the rights that another State has acquired through the waiver.49 Important statements on the nature of waiver can be found in the case concerning rights of nationals of the United States of America in Morocco. The icj dealt with two declarations (one a treaty called a ‘declaration’ and the other a declaration made by one state, but provided for in this treaty) containing the formulation – “renonce à réclamer” (renounces claims). They referred to the rights and privileges arising out of the capitulatory regime. The icj summed them up as follows: It will be observed that both Declarations use the words “renonce à réclamer” (renounces claims) and the question has arisen whether these words were intended as a surrender or renunciation of all the rights and privileges arising out of the capitulatory regime, or whether they must be 48 49

4. report, p. 20, par. 89. 4. report, p. 19, par. 86.

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considered as temporary undertakings not to claim those rights or privileges so long as the guarantees for judicial equality are maintained in the French Zone by the tribunals of the Protectorate and so long as the corresponding guarantees are maintained in the Spanish Zone. The question is academic rather than practical. Even if the words in question should be construed as meaning a temporary undertaking not to claim the rights and privileges, the fact remains that Spain, in 1950, as a result of these undertakings was not entitled to exercise, consular jurisdiction in the French Zone. It follows that the United States would be equally not entitled to exercise such jurisdiction in the French Zone in the year 1950.50 The icj continued: The Court is of opinion that the words “renonce à réclamer” must be regarded as an out-and-out renunciation of the capitulatory rights and privileges. This view is confirmed by taking into account the declarations and other arrangements made by France with other interested Powers designed to bring about the surrender of their jurisdictional and other extraterritorial rights in the French Zone. The two Declarations made by France and Spain in 1914 show that they both regarded the expression “renonce à réclamer” as equivalent to a renunciation of the rights in question. In the Declaration of March 7th, 1914, the French Government bound itself “to renounce equally the rights and privileges…”. In the later Declaration of November 17th, 1914, France gave effect to this obligation by using the expression “renonce à réclamer”. It is clear, therefore, that both France and Spain regarded this expression as proper for bringing about a complete surrender or renunciation of the rights and privileges in question.51 The preference of the Court for an ‘out-and-out renunciation’ is visible. It seems to reflect the essence of waiver. What should not be overlooked is the readiness of the Court to see in the waiver a clause producing a less farreaching obligation. On the other hand D. Ruzié emphatically writes that ‘waiver may be definitive or may apply to a specific situation’.52 This last element seems to be more 50 51 52

I.C.J. Reports 1952, p. 194. I.C.J. Reports 1952, p. 195. D. Ruzié, op. cit., p. 50.

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than mysterious. One can have the impression that D. Ruzié mainly means the so-called désistement, that is the discontinuation of a case brought to the icj (or other international court or arbitral tribunal). It is difficult to treat it as an example of waiver at all. Another possible meaning of ‘specific situation’ could have to do with waiver of immunity of a given person (member of a diplomatic or consular mission, public official, etc.) in concrete proceedings. Such waiver is specific in the sense that it does not influence the immunities of other persons or even of the same person in other proceedings. One can rightly assume that it is difficult to imagine a legal transaction with more far-reaching consequences. It is easier, however, to formulate such statements in abstracto rather than repeat them in the context of several objects of waiver. This is the element which must be discussed in the following subchapter. It is difficult to make definitive conclusions as regards both the legal effects of waiver and its very character as a legal transaction at all without discussing the topic of objects of waiver. The discussion of the objects of waiver is also the best opportunity to discuss those objects that cannot be waived. 15.5

Objects of Waiver

15.5.1 Introductory Remarks In fact the objects of waiver were mentioned several times in the preceding sections – on the occasions of presenting both the definition of and effects of waiver. What is visible is a kind of gradation in this respect. One can see that some authors combine waiver with one possible object (probably rights), while the others refer to several ones, in differing numbers. So for example P. Reuter writes only on the waiver of subjective rights (droits subjectifs).53 A. Hold-Ferneck writes only on the waiver of claims (Anspruch), but does not explain that notion and in particular does not dwell on its relationship to the notion of a ‘right’.54 K. Skubiszewski, on the other hand, uses three terms: ‘right’, ‘competence’ and ‘power’.55 In my opinion, however, they are synonymous. A wider list is present in the work of Ch. Rousseau, who writes namely on waiver of such elements as: “droits”, “une faculté”, “une prétention” and “une réclamation”.56 The first two could be translated into ‘right’ or ‘possibility’, and the last two into a ‘claim’. They cannot be treated as mutually exclusive, nor can 53 54 55 56

P. Reuter, op. cit., p. 143. A. Hold-Ferneck, op. cit., t. ii, p. 12. K. Skubiszewski, op. cit., p. 229. Ch. Rousseau, op. cit., p. 429.

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this list be treated as a closed one, as in other places Ch. Rousseau writes on the waiver of titles and reparation claims.57 It is worthwhile to recall that on the basis of Art. 119 of the Treaty of Versailles Germany renounced ‘all her rights and titles’ (droits et titres) to her colonies in favour of the then Principal Allied and Associated Powers.58 The same terms could be found in Art. 23 of the Peace Treaty signed with Italy on February 10, 1947.59 In the above-mentioned case concerning the rights of nationals of the United States of America in Morocco, the renunciation of rights and privileges resulting from the capitulatory regime is mentioned.60 A longer list of items can be found in the work of G. Dahm. The author and the editors of his work write about the waiver of a right, of a possibility (Möglichkeit) or a claim (Anspruch), as well as the extinction of an existing or asserted legal position (existierende oder behauptete Rechtsposition).61 Thus the author and editors are in favour of a very wide scope of possible waivers – extending from general rights to very precisely framed claims.62 E. Suy goes even further when he writes that a subject of law can waive subjective rights (droits subjectifs); the execution of such rights (l’exercise de ses droits); the capacity to execute or to have such rights (la faculté ou la capacité d’exercer ou de jouir des droits); assertions or claims (prétentions) and interests (intérêts).63 The majority of authors do not enter into any discussion with that imposing list – which neither confirms nor challenges it. Hence it seems justified to look at them in more detail. 15.5.2 Waiver of Rights At the outset it must be observed that the doctrine of international law has concentrated more on the obligations created by international law than on rights. The latter seem to be treated as direct corollaries of obligations. In fact they deserve more attention. H. Kelsen is an exception in this respect, as he analyses rights in detail. It must be stressed that his analysis is not limited to international law, but nonetheless is worth citing here. For him, to say that a given person has a ‘right’ to something may mean: 57 58 59 60 61 62 63

Ch. Rousseau, op. cit., p. 429. South West Africa, Second Phase, Judgment, i.c.j. Reports 1966, p. 24. M.M. Whiteman, Digest of International Law, Washington, vol. iii, p. 15. I.C.J. Reports 1952, p. 195. G. Dahm, Völkerrecht, 2. völlig neu bearbeitete Auflage von: J. Delbrück, R. Wolfrum, Berlin 2002, Band i/3, p. 770 (hereafter cited as: G. Dahm, op. cit.). G. Dahm, op. cit., B. i/3, p. 771. E. Suy, op. cit., p. 169.

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(1) ‘to be free to behave in this manner’ (to be under no duty to behave in another manner), (2) the obligation of others not to prevent a given subject from a certain behaviour, (3) the right to claim than another person behaves in a given way, meaning that that person is obliged to behave in that manner, (4) the legal power conferred upon an individual to bring about a certain legal effect intended by that individual, especially the power to apply the sanction or to bring about directly or indirectly by a definite action the application of the sanction provided by the law, in case another individual does not fulfil his obligation.64 It seems clear that these categories are not mutually exclusive and that a given right can belong to more than one category at the same time. In addition nothing seems to indicate that this list is a closed one. And although it is formulated on the basis of the general theory of law rather than the science of international law, it seems to be a useful point of departure for our examination here. The notion of a ‘right’ is very broad. In this sense one can speak about fundamental rights of states, absolute and relative rights, rights connected and unconnected with the peremptory norms of international law (jus cogens), and primary and secondary rights. Looking at the topic from the perspective of treaties one can speak about ‘the general right to conclude treaties’, ‘the right to conclude a given treaty’, ‘rights resulting from that treaty’, ‘right to demand that the treaty is respected’, ‘right to assess whether the treaty is respected’, ‘the right to get goods provided for in the treaty or other form of its performance’ and ‘the right to get damages from the state which broke the treaty’. Looking from the perspective of territory one can speak about ‘the right to territorial sovereignty’, ‘the right to demand that this sovereignty is respected’, ‘the right to be a sovereign with respect to a given territory’, ‘the right to limit or even waive the three preceding rights’, ‘the right to use the territory’, ‘the right to demand that nobody adversely affects that territory’ and so on. The majority of the remarks cited and formulated in the previous subchapters concerned waiver of rights. Especially the principle of freedom of waiver is discussed mainly in the context of waiving rights. Also the definitions of waiver either expressly mention or at least seem to tacitly refer to rights. There is no doubt that rights are the objects of waiver most frequently spoken of. This 64

The entire classification and both citations are based on: H. Kelsen, Principles of International Law, New York, 1952, p. 8.

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does not necessarily mean that the precise effects of waiver must in every case result in the definitive extinction of a given right. One of the most frequently invoked rules is the one according to which a state can waive only its own rights.65 E. Suy associates that principle with the fundamental rule nemo plus dare potest.66 F. Pfluger perceives the principle as obvious. He adds that the rights must be attributable to a given subject at the moment of waiver.67 A. Pellet also underlines that a waiver cannot affect rights other than the ones which actually belong to the entity making the waiver.68 One can wonder however whether the principle concerned with transfer can really apply to the entire transaction of waiver. It clearly applies to a waiver connected with the transfer of rights. As regards abdicative waiver, its application is less certain. On the one hand logic speaks in favour of such an application. If the effect of a waiver is the loss of a right, one can argue that one cannot lose more than one had before. However, this is less true if the waiver refers to a claim which cannot be divorced from the right. In particular it would be impossible to accept that if a given treaty contains a provision on waiver by one of the parties, the other party(ies) must be deemed to accept the previous existence of the right. In this respect the situation of waiver is similar to that of recognition. Waiver practically puts an end to any discussion (sometimes even before the start of discussion) concerning a given right. It would be contrary to the international economy to adopt the opposite stance and commence discussion over a right because of its having been waived. 15.5.3 Waiver of the Execution of a Right without Waiving the Right Itself E. Suy in his work discusses the possibility to waive the execution of a right without waiving that very right itself. He rather asks whether there is such a possibility, and then confirms it.69 In fact, if a state says that it makes such a waiver it is rather difficult to argue with it and convince it that there is no waiver. What is really interesting is the legal evaluation of such a waiver. When discussing this matter, in my opinion two assumptions should be made. The first would be a kind of tautology – that what is waived is the execution of a given right.70 The second assumption is that the very right itself is not 65 66 67 68 69 70

E. Suy, op. cit., p. 166. E. Suy, op. cit., p. 166. F. Pfluger, op. cit., p. 261 i 256. A. Pellet, Droit international public, Paris, 1981, p. 27. See also: N. Quoc Dinh, op. cit., p. 355. E. Suy, op. cit., p. 170. Whatever is meant by that. An attempt to decode that notion is undertaken below.

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waived. This very right could be called ‘right A’. It may be beyond any doubt that the author-state does not want to waive this right. This does not mean that clearly no right is waived. It is not however identical with ‘right A’. As was said, the notion ‘right’ allows for distinguishing several layers, or levels, of rights. There is nothing which would forbid somebody from distinguishing ‘the right to execute right A’ from the very right A itself (the main right), nor from calling the right to execute as ‘right B’. The rationale for distinguishing them is especially visible with respect to the right to territorial sovereignty. The situation in which a state keeps its territorial sovereignty but waives the right to execute it does not seem absurd (though perhaps the preference to use the term ‘limit’ the right rather than ‘waive’ it may be easily understood). E. Suy is of the opinion that both a temporary and permanent waiver of the execution of a right are possible.71 The most interesting situation of course is the permanent and full waiver of the execution of a right. With respect to this the most pertinent question is the one raised by E. Suy, whether in such a situation the very basic right (right A in my terminology) should not be treated as extinguished.72 Before answering this question, let us consider the temporary waiver of the execution of a right. Clearly such a waiver is completely incompatible with the above presented definition of (or maybe just the attempts to define) waiver. While a permanent waiver refers to the definitive character of the waiver, a temporary waiver is just the opposite. One must however reckon with the fact that international law is not very formalistic. It is rather the definition of waiver that must be adapted to waivers actually performed, or such that could at least be conceptualised by theory. In fact one can see just a negative obligation in such a waiver – that is an obligation to abstain from certain activities in the future. In my opinion the same conclusion could be applied with respect to a permanent waiver of the execution of a right. E. Suy declares that ‘separating the execution of a right from the right itself is not impossible, but with respect to abdicative waiver is just a fiction.’73 It seems easy to agree with this statement. The only (relatively weak) reservation lies in the fact that from the formal point of view the waiving state may invoke right A to the extent not incompatible with its waiver of right B. It is also an unquestionable fact that the beneficiary of the waiver may take all legal measures if the author of the waiver changes its opinion subsequently and tries to execute the basic right. 71 72 73

E. Suy, op. cit., p. 170. E. Suy, op. cit., pp. 170–171. E. Suy, op. cit., p. 171.

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15.5.4 Waiver of the Capacity to Execute a Right or to Have a Right Even more doubts are connected with this next element which may be considered as a possible object of a waiver. This concerns the capacity to execute or to possess certain rights (la faculté ou la capacité d’exercer ou de jouir des droits). Interestingly enough, if one takes rights of international law as a point of reference, the element analysed in the previous subchapter (the execution of a right) seems to go below that point of reference. On the other hand, by analysing the very capacity to execute a right or even to have rights, one takes a step upstairs – into the field of more general categories. E. Suy went as far however as to put this very category into doubt and call it fantasy.74 Once again reference to the following argument must be made: if there would be a state making such a waiver, it would be very difficult to dispute it and argue that no waiver had been made. On the other hand, the capacity to have (or execute) rights is also a kind of right. So the statement according to which there are no doubts as regards the waiver of rights, but by definition there are many doubts as regards the waiver of capacity, does not withstand critical assessment. In fact the doubts with respect to waiver of capacity have to do with the fact that other states seem to be completely helpless in situations in which one state invokes a right despite a previous waiver of the capacity to have that right. However, the same situation may take place with respect to the waiver of a right as such. Manifestly, what is taking place in both cases is a breach of international law. F. Pfluger writes that a state may not waive its capacity (Fähigkeit) to acquire new territories as a result of occupation, but what it can do after making such a discovery and acquiring the initial title (Vorrecht) is just to waive the latter.75 What however, if a state has waived the capacity to acquire new territories earlier, and subsequently proceeds to acquire one? In my opinion that would be a breach of the law. There would be no doubt if the state had made a unilateral promise or concluded a treaty to this respect and subsequently broke its promise. Hence in my opinion the very use of the word ‘waiver’ can in no way weaken the power of the obligation. It is difficult not to see that the author state of such a waiver would risk a lot. Namely, it would give other states the right to put into doubt its future acts. 15.5.5 Waiver of Claims Claims are perhaps the second most frequently identified object of waiver. The very term ‘waiver of claims’ can be found in the icj judgment in the fisheries jurisdiction dispute between the uk and Iceland.76 74 75 76

E. Suy, op. cit., p. 172. F. Pfluger, op. cit., p. 267. I.C.J. Reports 1974, p. 18.

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The main problem connected with this aspect of the topic has to do with the ambiguity of the notion ‘claim’. E. Suy invokes two meanings – according to one of them a claim is just a fact, according to another – it is a right.77 In practice drawing a borderline between these two aspects is much more difficult. The best proof of this is the icj judgment in the case of Ambatielos.78 It is worthwhile to add that in this case the icj had to rule only on whether the uk was under a duty to accept (future) arbitration with respect to claims made by Greece on the basis of diplomatic protection over Mr. Ambatielos. The icj was not to decide on the merits of these claims. The confirmation of the obligation of the uk was dependent on whether the claims were based on the treaty concluded between the two states in 1886. The uk put into doubt the claims as such, and therefore their being based on the treaty. The icj did not agree with that interpretation. The icj ruled as follows: ‘For the purpose of determining the obligation of the United Kingdom to accept arbitration, the words “claims…based on the provisions of the…Treaty of 1886” cannot be understood as meaning claims actually supportable under that Treaty. In the context in which the words occur, they can only mean claims depending for support on the provisions of the Treaty of 1886, so that the claims will eventually stand or fall according as the provisions of the Treaty are construed in one way or another. The fact that a claim purporting to be based on the Treaty may eventually be found by the Commission of Arbitration to be unsupportable under the Treaty, does not of itself remove the claim from the category of claims which, for the purpose of arbitration, should be regarded as falling within the terms of the Declaration of 1926.’79 The term ‘claim’ is often used with respect to demands addressed by foreigners to other governments. It is little wonder that agreements concerning such demands or organs created on the basis of such agreements refer to that term as well.80 It may happen that a claim is either supported by law, or may turn out to be not supported by it. But the very putting forth of a claim has its own importance. It can be situated in the sphere of politics, psychology, economy and law. 77 78 79 80

E. Suy, op. cit., p. 173. Ambatielos case (merits: obligation to arbitrate), i.c.j. Reports 1953, p. 10. Ibidem, pp. 17–18. For more on the American claims to former Yugoslavia, see: L. von B. Sutton, American Claims Against Yugoslavia, International Lawyer, vol. 3, no 2, 1968–1969, pp. 262–276. The agreement of 19 July 1948 covered claims of the us nationals and some claims of the us government, see: ibidem, p. 262.

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The legal elements may be different. The first of them has to do with formal procedures (if any) which must, or may, be put into motion in connection with a claim. This aspect is not very interesting from our point of view here. What is really important is the legal right invoked (expressly or impliedly) as at least apparently supporting the claim. What’s more, it may happen that the presence of that element will not be tested in front of an independent organ before the claim is settled, waived or just tacitly withdrawn by the claimant. The importance of waiver of claims is beyond any doubt. It clearly means the waiver of the right supporting the claim, unless the claimant is able to introduce some kind of differentiation between the two. All the same, even in the latter case waiver of a claim will mean the waiver of some kind of a right. These statements however assume that a claim is really supported by a right. In my opinion, even a waiver of claim which is not supported by a right (or may turn out not to be supported by a right) may be of crucial importance for another state. It confirms the right of the beneficiary state to ignore or reject the same claim if repeated in the future despite the previous waiver. What remains to be settled is how to classify such a waiver in terms of legal transactions. If one insists on the definition of a legal transaction (legal act) which requires the presence of legal effects in the technical meaning of the term, such waivers would have to be denied the character of legal transactions. This is how by G. Venturini approaches the topic. He is very strict in underscoring that only a waiver of rights is possible (i.e. only such a waiver is a true waiver).81 He strictly differentiates them from a waiver of claims (prétentions). For him the latter means that the claimant state confesses that its rights are groundless, in other words that it has no such rights.82 G. Venturini can see in such situations at the most an ‘ascertainment of the legal situation’, a ‘negative recognition’ leading to estoppel, but ‘no abdicative effect, which is peculiar to waiver in the proper meaning of the term.’83 Clearly, the adoption of a narrow definition of a legal transaction, i.e. by reserving it only for acts which create, modify or put an end to rights, would leave outside its scope the waiver of claims which are not supported by actual rights of public international law. As was said in Part 1 however, I am not ready to adopt such a narrow definition. What is sufficient is any legal effect whatever. In order to decide whether the waiver of claims brings about legal effects, let us consider two situations. In one of them a treaty is made in which one of the parties promises not to make certain claim in the future. In the second case a 81 82 83

G. Venturini, op. cit., p. 415. G. Venturini, op. cit., p. 415. G. Venturini, op. cit., p. 415.

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state makes a unilateral statement to this same end. Would anyone be ready to question the legal force of the first obligation? The fact of its being included in a treaty seems to cut off any discussion and eliminate any doubts. However, the fact that another state participates in the conclusion of the treaty and has influence on its content does not necessarily mean that a given right actually belonged to the state which now waives the claim. It would seem that the same reasoning should be applied with respect to a unilateral waiver of claims as well. In my opinion only in a situation wherein the lack of a right is beyond any doubt can one put into question the legal effect of the waiver of such a claim. In such a situation a waiver of claims would be denied the character of a legal transaction (legal act). So for example if Botswana waives war claims with respect to Poland, or Poland with respect to Botswana, such waivers would not be treated as legal transaction. On the other hand – one cannot deny that character to a Polish waiver of war claims with respect to Germany or the possible waiver by Germany of the claims of the former owners of the present Polish western territories. 15.5.6 Waiver of Interests It is difficult to even refer to the concept of waiver of interests. In fact only F. Pfluger and E. Suy use that term. As opposed to the notion of a ‘claim’, an’‘interest’ has rather weak connection with law. I cannot however exclude a situation in which one state makes a declaration on waiver of its interests. The term ‘interest’84 was used by the icj in the case of the Northern Cameroon.85 It ruled that: In filing its Application on 30 May 1961, the Republic of Cameroon exercised a procedural right which appertained to it – a procedural right which was to be exercised in the general interest, whatever may have been the material individual interest of the Republic of Cameroon. But within two days after the filing of the Application the substantive interest which that procedural right would have protected, disappeared with the termination of the Trusteeship Agreement with respect to the Northern Cameroons. After 1 June 1961 there was no “trust territory” and no inhabitants for whose protection the trust functions could be exercised. It must be assumed that the General Assembly was mindful of the general inter­ est when, acting within its competence, it decided on the termination of 84 85

Emphasis in the judgments added by me. Case concerning the Northern Cameroons (Cameroon v. United Kingdom), Preliminary Objections, I.C.J. Reports 1963, p. 36.

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the Trust with respect to the Northern Cameroons and the joinder of the Northern Cameroons to the Federation of Nigeria. Thereafter, and as a result of this decision of the General Assembly, the whole system of administrative supervision came to an end.86 That term was used also in the cases of South West Africa.87 The icj distinguished among the provisions of the mandate between “conduct” provisions and “special interests” provisions.88 The icj ruled that: In respect of the former category – the “conduct” provisions – the question which has to be decided is whether, according to the scheme of the mandates and of the mandates system as a whole, any legal right or inter­ est (which is a different thing from a political interest) was vested in the members of the League of Nations, including the present Applicants, individually and each in its own separate right to call for the carrying out of the mandates as regards their “conduct” clauses; − or whether this function must, rather, be regarded as having appertained exclusively to the League itself, and not to each and every member State, separately and independently. In other words, the question is whether the various mandatories had any direct obligation towards the other members of the League individually, as regards the carrying out of the “conduct” provisions of the mandates. If the answer to be given to this question should have the effect that the Applicants cannot be regarded as possessing the legal right or interest claimed, it would follow that even if the various allegations of contraventions of the Mandate for South West Africa on the part of the Respondent were established, the Applicants would still not be entitled to the pronouncements and declarations which, in their final submissions, they ask the Court to make.89 The Court itself responded to this question in the negative: As to these, the special position given to the Council of the League by paragraph 1 of Article 7 confirms the view that individual member States were not regarded as having a separate legal right or interest of their own 86 87 88 89

Ibidem, p. 36. I.C.J. Reports 1966, pp. 20, 22 and 34. Ibidem, p. 20. Ibidem, p. 22.

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respecting the administration of the Mandate. It is certainly inconsistent with the view that they were considered as separate parties to the instrument of mandate.90 Unfortunately, these fragments of the judgment do not tell us much about the essence of an ‘interest’. What is visible is a differentiation between political interests and legal ones. A little more light is shed on that element by another passage from the same judgment. The icj stated that: Humanitarian considerations may constitute the inspirational basis for rules of law, just as, for instance, the preambular parts of the United Nations Charter constitute the moral and political basis for the specific legal provisions thereafter set out. Such considerations do not, however, in themselves amount to rules of law. All States are interested – have an interest – in such matters. But the existence of an “interest” does not of itself entail that this interest is specifically juridical in character.91 The icj continued with the analysis of the provision of the mandate referring to the ‘sacred trust’: It is in the light of these considerations that the Court must examine what is perhaps the most important contention of a general character that has been advanced in connection with this aspect of the case, namely the contention by which it is sought to derive a legal right or interest in the conduct of the mandate from the simple existence, or principle, of the “sacred trust”. The sacred trust, it is said, is a “sacred trust of civilization”. Hence all civilized nations have an interest in seeing that it is carried out. An interest, no doubt; − but in order that this interest may take on a specifically legal character, the sacred trust itself must be or become something more than a moral or humanitarian ideal. In order to generate legal rights and obligations, it must be given juridical expression and be clothed in legal form. One such form might be the United Nations trusteeship system, − another, as contained in Chapter 11 of the Charter concerning non-self-governing territories, which makes express reference to “a sacred trust”. In each case the legal rights and obligations are those, and only those, provided for by the relevant texts, whatever these may be.92 90 Ibidem, p. 28. 91 Ibidem, p. 34. 92 Ibidem.

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There can be no doubt as to the weak position of interests which are not clothed in rights. E. Suy rightly notes that interests which are protected by rights become themselves the object of rights.93 The bottom line is that a waiver of interests could be interesting here only if it is possible to attribute to such a waiver any legal effect. In this sense it must result in waiver of a right, or at least of a claim. That is why no further references to interests as such will be made herein. 15.5.7 Summary of Objects of Waiver As was shown, the object of a waiver can be called by different names. It is easier to list them than to show that their respective scopes are mutually exclusive. In fact one can see in many of them just a waiver of rights. On the other hand, a waiver of claims may have its own importance – to some (but very important) extent independent of the waiver of rights as such. As was shown, only one category of waiver of claims will be eliminated from the scope of our interest; namely waiver of claims which are beyond doubt devoid of any legitimacy or purpose. The diversity of names reflects the full (or at least very broad) scope of the right of states to make declarations of waiver. For reasons of convenience I will refer in my further analyses only to waiver of rights. Such references should be treated as applying also to waiver of claims other than those obviously groundless. 15.6

Objects Which Cannot be Waived

When dealing with the possible objects of waiver, the doctrine also refers to elements which cannot be waived. Only by analysing them can one tackle the question of legal effects of waiver in a serious way. 15.6.1 Rights Necessary for Performance of Obligations One of the first authors who dealt with this question is D. Anzilotti. He excludes the possibility of waiving rights which are the means of performing obligations, or of waiving rights, the waiver of which would amount to an attempted waiver of an obligation.94 The same view is presented by G. Venturini95 and E. Suy.96 G. Dahm also denies the possibility to waive a legal position comprising both 93 94 95 96

E. Suy, op. cit., pp. 174–175. D. Anzilotti, op. cit., p. 350. G. Venturini, op. cit., p. 416. E. Suy, op. cit., p. 166; see also: F. Pfluger, op. cit., p. 251.

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rights and obligations; according to him the consent of the subjects of rights resulting from obligations would be necessary for such a waiver.97 Interestingly enough, V.-D. Degan presents an opinion according to which France broke international law when it waived its rights in South Vietnam despite the 1954 agreement on Indochina.98 This is less than clear, however. F. Pfluger expresses an opinion that a state can effect derelictio despite the  obligation to effect the control of its territory.99 Such examples may be multiplied – derelictio may be effected despite the obligation not to allow one’s own territory to be used for aggression against another state, and so on. The existence of several agreements concerning a given territory cannot be a proof of the lack of power of a state to perform an act of derelictio. There is no doubt that a waiver of territory is an act of extreme importance, and also extremely rare. Taking into account the specific character of a waiver of territory, it seems that the principle of freedom of derelictio should be recognized. The only condition is that it be a real one. So if a state waives a territory, but does not leave it or occupies it once again, the obligations which were binding on a given territory before the waiver are still in force. There is no obstacle to a state obliging itself not to effect derelictio. Such an obligation contained in a treaty, however, is opposable only in relationships with other parties of the treaty. If one of the parties effects derelictio, it is internationally responsible with respect to all other parties to a treaty, but from the perspective of other states derelictio may be fully effective. The basic question remains, namely: How does one distinguish between a right (which can be waived) and an obligation (which as such cannot be waived). F. Pfluger rightly clarifies that a state can waive a given right even if it is connected with an obligation, if the latter is dependent on the right and subordinated to it.100 It would however be a mistake not to see that a waiver of some rights can affect obligations themselves. That element was overlooked by the general theory of international law. One must ask in this context how the impossibility of waiver should be treated? This element is hardly analysed by the cited authors. In fact two answers are possible. The first one would suggest that such a waiver is void. The second one would suggest that it is only ineffective vis-à-vis the subject of the right. In this sense the author of a waiver would be still under an obligation despite the waiver of rights necessary for the realization of that obligation. 97 98 99 100

G. Dahm, op. cit., p. 771. V.-D. Degan, op. cit., pp. 225–226. So: F. Pfluger, op. cit., p. 263. F. Pfluger, op. cit., p. 263.

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Let us imagine a situation in which states of a given region are under a treaty obligation with respect to each other (e.g. conducting foreign ships through straits). Let us imagine that the fulfilment of that obligation requires the full use of a given right which every state has on the basis of general international law (e.g. strengthened control over ships). One of the states of the region in question waives that right. Can it argue later that this waiver is ineffective and invoke this ineffectiveness against a state from another region which is happy with the elimination of that control? In my opinion it cannot. In this sense the inadmissibility of waiver is purely relative and means that the author state of a waiver is still under the treaty obligation in its relations with other parties. In any case there is no argument that an act of waiver is void as such. Reference to the discussions on the validity of unilateral acts contained in Chapter 4 should be recalled in this regard. 15.6.2 Possibility of Waiving Contractual Rights. Contractual Limitations on the Right to Waive F. Pfluger analyses the important problem of whether rights flowing from treaties may be waived.101 He does so in the context of discussion of the uk waiver of war claims against Germany after the First World War. F. Pfluger cites the doubts concerning the conformity of this decision with the spirit of the treaty.102 He himself lege non distinguente speaks in favour of the competence of states to waive, unless a treaty specifically provides otherwise.103 However, even in the latter situation the voices against the possibility of waiver give rise to serious doubts. What should be done if a state-party waives claims with respect to a state obliged to pay reparations? Two alternative situations should be examined. In the first one the obliged state is a party to a treaty, and in the second one it is not such a party. In the latter case there are no doubts that a treaty does not give rise to any duties on the part of a nonparty state and such a waiver is fully effective. Other parties can only invoke the breach of a treaty obligation by the author of the waiver. What’s more, the situation in which a treaty prohibits waiver between the state-parties to the treaty is quite similar to the previous one. Namely, if one of the parties performs a unilateral waiver of its treaty rights with respect to another party it is difficult to speak about the invalidity of such an act. In my opinion the principle lex posterior derogat priori is applicable. This means that a new act (the waiver) replaces an old one (the treaty) in relationships between 101 F. Pfluger, op. cit., pp. 263–265. 102 F. Pfluger, op. cit., p. 264. 103 F. Pfluger, op. cit., pp. 263–264.

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the author of the waiver and its beneficiary. Certainly, the latter can oppose the waiver, in which case the aforementioned replacement will not take place. On the other hand, the other parties to the treaty may invoke the breach of the treaty by the author state of the waiver and by the beneficiary. Also G. Dahm is of the opinion that the incompatibility of a waiver with a previous obligation can lead only to international responsibility.104 15.6.3 Absolute Rights Many authors cite the opinion of A. Cavaglieri that a state may waive relative rights, but cannot waive absolute rights.105 The basic question is how to understand the latter term. F. Pfluger describes absolute rights as rights effective with respect to the entire international community. In this sense they would more or less coincide with rights erga omes. In this case the thesis on the impossibility of waiving such rights is hardly acceptable. E. Suy opposes the thesis according to which waiver is impossible with respect to absolute rights, especially with respect to rights to territory and sovereignty.106 In my opinion Suy is completely right. The statement excluding the impossibility of waiver of absolute rights is manifestly too wide. This does not mean however that a state can waive every absolute right. F. Pfluger posits that states cannot waive rights which are strictly connected with the foundations of state-to-state relationships. In his opinion, such rights could be waived only together with the right to participate in such relationships. As example Pfluger cites a general waiver of diplomatic immunity. He argues that it cannot be waived without the right to participate in diplomatic relationships.107 It is difficult however to agree with this statement. A state which declares that it generally waives diplomatic immunity clearly exceeds some standards. They are, however, not legal standards, but standards of policy or even common sense. It would be difficult to claim that such a waiver breaches peremptory norms of international law (juris cogentis). The subsequent recovery of the right to immunity would require the good will of other states, and probably certain concessions on the part of the author of such an extraordinary waiver as well as on its ability to exert pressure on other states. O. Kimminich and S. Hobe stress that a state may waive rights stemming from general international law, but it cannot affect the very existence of a rule of such law.108 However, the right to dispose on one’s rights is one of such rules 104 105 106 107 108

G. Dahm, op. cit., p. 771. F. Pfluger, op. cit., p. 265; E. Suy, op. cit., p. 167. E. Suy, op. cit., p. 168. F. Pfluger, op. cit., pp. 267–268. O. Kimminich, p. Hobe, Einführung in das Völkerrecht, Tübingen, Basel, 2000, p. 199.

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as well. The only generally accepted boundary in this respect results from peremptory norms of international law (iuris cogentis). One can also consider a situation in which a state waives the right to have territorial sea, an exclusive economic zone or the right to diplomatic protection with respect to its own nationals. In my opinion, there are no grounds to claim that such waiver is ab initio illegal and invalid. There is also no guarantee that a state may always avoid the negative legal consequences of its own wrong decisions. Serious problems would emerge if certain maritime zones were taken under sovereignty or jurisdiction of another state, and the author of the waiver sought to revoke its previous declaration. Such a revocation without the consent of the affected states would seem to be impossible. The only advice for states in this respect would suggest that they should never make such declarations. 15.6.4 State Existence and the Extent of Possible Waiver The question of absolute rights is strictly connected with the relationship of waiver to the very existence of a state. F. Pfluger excludes the possibility that the existence of a state could be an object of a waiver; the same in his opinion must be said with respect to the legal capacity of a state or its capacity to perform legal transactions (i.e. capacity to act in relations governed by public international law).109 G. Dahm also presents the opinion that a state cannot waive the constitutive elements of its personality.110 Dahm is the author of a relatively mysterious statement according to which, although a state can dissolve itself or by means of a treaty terminate its existence as a state, ‘it cannot by a means of a unilateral act give up its sovereignty or its territory and exist longer.’111 Clearly these two elements are irreconcilable. The question persists however, what precise conclusion should be drawn from this? If the conclusion is to be a thesis on the illegality or inadmissibility of such a waiver, I am not ready to agree with this conclusion. V.-D. Degan speaks in favour of the possibility of waiver of the personality or sovereignty of a state. He writes that ‘even waiver of the fundamental rights of independence is legally admissible, but strictly in exercise of the right to self-determination by the entire population of the respective State.’112 In fact he combines this right mainly with the prohibition of the threat or use of force.113 109 F. Pfluger, op. cit., p. 251. 110 G. Dahm, op. cit., B. i/3, p. 771. 111 Ibidem. 112 V.-D. Degan, op. cit., p. 223. 113 V.-D. Degan, op. cit., pp. 222–223.

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Also G. Venturini writes that international law, in contrast to domestic law, does not prohibit the waiver of rights which are imminent in sovereignty. However, in the opinion of the author such a waiver means the loss of personality (subjectivity).114 This opinion should be accepted. One can understand, however, the doubts expressed by the previous writers. Let us imagine that an extravagant leader of a totalitarian state declares that it waives its sovereignty. Could it really mean that the territory of that state becomes terra nullius and can be occupied by any other state? This would be rather incompatible with the right of a nation to self-determination. It seems that the nation should be left time to decide on its future. This however is less than clear, taking into consideration the classical attitude to subjects of international law – referring mainly to states rather than nations as groups of people. Also the rules of succession do not allow for a state to waive its existence for a day or a month and to come to existence as a new state – denying the obligations of the previous one.115 Such an attempted waiver would be ignored. In fact no state has attempted to effect this, so this remark approaches more the realm of speculation than a lecture on positive law. 15.6.5 Rights Which Cannot be Waived and the Effects of Waiver The three issues that were the subject of the three last subchapters – the effects of waiver, objects of waiver and objects which cannot be waived – are strictly connected with each other. When dealing with the second topic, I referred to serious doubts concerning waiver of the capacity to have rights. Let us consider in this place the situation of a state which waives its capacity to make treaties or to acquire rights resulting from them. The basic question is how to execute the legal effects of that waiver in situations in which the author-state begins to conclude treaties and they are regarded as binding in the mutual relations of the parties, despite the very wording of the waiver. In fact, there is no possibility to make states abstain from concluding treaties. A similar situation would emerge if a state waives the right to defend its own territory against foreign attack. What if such a state defends itself when attacked? Such examples and other similar ones can serve as a justification for the thesis that some rights cannot be waived. One must be however very careful with such statements. They are clearly formulated on the assumption that the only possible effect of waiver is the definite extinction of a right. If it is really 114 G. Venturini, op. cit., p. 416. 115 I am grateful W. Czapliński, who turned my attention to this aspect during the consultation of the first version of the present work.

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so that some rights cannot be waived, then the very declaration of a state ‘I waive right x’ does not cost it anything. In my opinion such a reasoning is devoid of any sound grounds. A state which itself waives the right (capacity) to conclude treaties risks a lot. In fact it gives its consent for future states-parties not to respect treaty provisions vis-à-vis the state which made the waiver. A state accepting an obligation not to defend its territory (i.e. waiving the right to defend) takes the risk that if it breaches that obligation and loses the conflict, its legal situation will be worse because of having made the waiver. It is however a fact that the idea associating waiver with the definitive extinguishment of a right (or several rights) is wide-spread. What’s more, in many cases it is in fact the best description of waiver. This is especially the case with respect to waiver of rights or claims (other than those obviously groundless) to given sums of money. In such a situation the beneficiary (unless it denies the waiver) may behave as if the debt had never existed. A similar situation takes place in the case of a waiver of territory, if the previous sovereign actually leaves it and access to that territory is possible. However, one can imagine situations which are less convenient for a beneficiary. What if a state waives a part of its territory, but it is an enclave and the previous (waiving) sovereign does not allow any access to it. Similarly, let us imagine that a state waives its rights to an object of historical value connected with another state, but does not allow the latter state any access to it. The remark of E. Suy that such a waiver resembles a virtual transaction seems very pertinent. As can be seen, the element of actual control over objects and behaviours may have great influence upon the events which take place following a declaration of waiver. In the situation of a waiver by one state of an object placed in the other state, the situation of the latter is very convenient. It is completely different if the waived object is still within the sphere of influence of the author-state. The same applies all the more to such elements as the capacity to make treaties, to maintain diplomatic relations and so on. With reference to such situations two ways of reasoning are possible. The first one would suggest that if a state waived a given right (declared that it waived it), then a waiver is in place. If that waiver did not result in the elimination of the right, then the very definition of waiver must be modified. The second way of reasoning would suggest that if a right did not become extinct, then there is no waiver. The latter suggestion refers directly to the effects of a declaration of waiver. In fact the analogous question was faced in one of the preceding chapters with respect to recognition. If as regards the latter my suggestion was that preference must be given to the author-state and it is not serious to argue with a state declaring that it recognizes something, in this chapter I am ready to

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repeat the same with respect to waiver. If a state says that it waives something, this means that a waiver has taken place. The task of doctrine is not to argue with the facts. It is rather to qualify them according to some more general categories. In other words, if an express declaration of waiver leads to results which cannot be qualified as the extinction of a right, one should rather change the idea of effects of waiver and possibly its definition than try to convince the state that it did not make a waiver. This is why one must conclude that a waiver may, but does not have to, lead to the extinction of a right. In other situations a waiver means rather an obligation not to undertake certain acts (prohibited acts) and tolerate the reaction of other states ignoring such prohibited acts if and when taken. 15.7

Does a Waiver Require Acceptance? Relationship of a Beneficiary to a Waiver

The question of the influence of third states on waiver has not attracted much attention within some parts of the doctrine. F. Pfluger expresses an opinion according to which waiver does not require acceptance.116 One should agree with this view. This is especially visible with respect to waiver of territorial sovereignty. It would be rather incredible if a state which waived a given territory would be a sovereign only in relationships with a certain third state which expressed itself against the waiver. One cannot however ignore the problem connected with the waiver of rights opposable only against a given third state (relative rights). There is no doubt that the subject of the duty corresponding to such a right may express itself against becoming the beneficiary of a waiver. It is logical that such a state can make it impossible for its obligation to become extinct. Let us imagine that a creditor state waives a part of its claim against a debtor-state of the value of…1 dollar. Such waiver would be a kind of mockery. One cannot accept that international law would make a third state a slave of such ‘waivers’. In fact the very idea of sovereignty allows states to decide not only on their rights but on their duties as well. The basic question is whether a unilateral waiver gives rise to effects as such, and the beneficiary simply waives them, or the first waiver itself is not effected. Though the situation seems to be completely theoretical, in fact it already took place. In 2002 Cuba declared a donation of vaccines for Uruguay. The Uruguayan 116 F. Pfluger, op. cit., pp. 253–254.

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Government rejected the donation and the Central Bank of Uruguay deducted the price of the vaccines from Cuba’s debt to Uruguay.117 Several situations could be imagined. First of all, it is not difficult to imagine the situation in which the beneficiary at the beginning denies the waiver, but later tries to invoke it. Secondly, it may happen that the author of a waiver after some time insists upon its previous right, referring to the silence of the beneficiary. Thirdly, the author of a waiver after some time may insist upon its previous right, referring to the opposition of the latter to the waiver. The second of the three above-mentioned situations is the most easy to solve and at the same time provides the best illustration of the contemporary doctrine on unilateral acts of states. The unilateral character of a promise or recognition may not be treated as reason for its lack of force. That is why the mere silence of the beneficiary may not be treated as a reason for the lack of force of a waiver. This conclusion applies all the more to a unilateral waiver. Of course, nothing stops a state from making an offer rather than a unilateral act. As was said, if a beneficiary openly puts into question a waiver, the situation is completely different. The first and the last of the above situations are in fact two sides of the same coin. An author trying to answer the underlying question finds him/herself in a difficult position. There are no clear norms of customary law which would settle the question in an unequivocal way. Hence reference to certain general rules of law is necessary. In my opinion the open denial of waiver by a beneficiary means that the old obligation of the latter persists. In consequence, the beneficiary is still under a given obligation and the author of waiver can treat the act of waiving as having been never effected. It is worthwhile to recall the view according to which a waiver does not have to be brought to the knowledge of other states.118 This view is acceptable to the extent that the author state of a waiver cannot put it into question because of its lack of bringing it to the knowledge of other states or a given concrete state. On the other hand, the above-mentioned principle of sovereignty is connected with the right of a beneficiary to contest a waiver at a later time when it becomes aware of it. All the same a waiver which takes the form of a secret declaration could be hardly treated as a unilateral act in international law. By ‘secret declaration’ I mean one which is neither made public nor transmitted to the knowledge of another interested state. This element brings to the fore the important question of the form of waiver.

117 8. report, p. 10. 118 F. Pfluger, op. cit., p. 254.

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Form of Waiver. Tacit Waiver

The form of a waiver (in contrast to its objects) has been at the very centre of  attention of many authors. The most frequently presented thesis states that  a waiver cannot be implied.119 E. Suy describes this thesis as generally accepted.120 The special rapporteur, in his fourth report, writes that ‘waiver, as has been established in international case law, must be express, and consequently cannot be assumed.’121 In fact this thesis is a kind of oversimplification. Unless a very special meaning is attributed to the terms used, the prohibition against implying a waiver is not equivalent to the requirement that it be express. D. Anzilotti already made it clear that though a waiver could not be presumed, this did not mean that it had to be express. In particular, there is no norm of international law which would reserve that a waiver could only take the form of an express declaration (au moyen de mots).122 The will or intent to waive can be inferred on the basis of the behaviour of a given state.123 Paradoxically, the authors claiming that there is no presumption of waiver seem to accept an implied waiver – that is not an express declaration of waiver but a waiver resulting from other acts or facts. While the thesis on the requirement of express waiver is presented in several works,124 it would be difficult to call it the dominant position. L. Oppenheim wrote already in 1920 that ‘renunciation is the deliberate abandonment of rights. It can be given expressis verbis or tacitly.’125 That thesis was repeated by some other authors.126 It is connected with the principle of the lack of requirement of a specific form, present in the field of international law. Also E. Suy expressed the opinion that there is a lack of any requirement as to the form of a waiver.127 Hence it is classified as an act not requiring any precise form.128 119 F. Pfluger, op. cit., p. 269. R. Bierzanek, J. Symonides, op. cit, p. 101; G. Dahm, op. cit., Band i/3, p. 771; J.-M. Arbour, Droit international public, Cowansville (Québec), 1997, p. 127, V.-D. Degan, op. cit., p. 227; G. Venturini, op. cit., p. 416; K. Skubiszewski, op. cit., p. 229; D. Ruzié, op. cit., p. 50. 120 E. Suy, op. cit., p. 159. 121 4. report, p. 19, par. 87. 122 D. Anzilotti, op. cit., p. 350. 123 D. Anzilotti, op. cit., p. 350; similarly: A. Hold-Ferneck, op. cit., t. ii, p. 12. 124 W. Czapliński, A. Wyrozumska, op. cit., 1999, p. 93; also: R. Bierzanek, J. Symonides, op. cit., p. 101. 125 Oppenheim 3, p. 651, Oppenheim 4, p. 698; Oppenheim 8, p. 875. 126 W. Levi, Contemporary International Law. A Concise Introduction, Boulder, San Francisco, Oxford, 1991, p. 200; A. Cassesse, op. cit., p. 184, O. Kimminich, p. Hobe, op. cit., p. 199. 127 E. Suy, op. cit., p. 157. 128 E. Suy, op. cit., p. 157.

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Tacit waiver is sometimes called an implied waiver.129 Both terms have their merits as well as demerits. If the word ‘tacit’ is associated (at least in some languages) with ‘silence’, one should stress that silence is rarely the basis of a waiver. The ‘tacit’ character means rather the lack of an express declaration of waiver. On the other hand, the term ‘implied’ is in some languages similar to the word ‘presumed’, although the English terminology is especially immune to this danger. In the English language a presumption is something that precedes the examination of a legal question. Domestic law recognizes several presumptions. The possessor of property is presumed to be the owner, a salesman is presumed to be empowered by the owner of property to dispose of it. A presumption may be connected with the legal preference for one or another interpretation or one or another party (an employee, a consumer and so on). There is no doubt that there is no presumption of waiver, nor that a tacit or implied waiver is the result of any presumption. An implied waiver is rather the result of declarations or behaviours which cannot be interpreted otherwise than as waiver. Contrary to the common opinion, it is actually not easy to say even what constitutes an express waiver. Treated literally it would be limited to declarations of following the pattern ‘I waive right to do x’, ‘I waive claim to y’ or ‘I renounce this or that’. Waiver however can result in an obvious way from other acts in which neither the very word ‘waive’ nor any of its synonyms emerge. For example, if state A makes claims with respect to a given territory but later it expressly recognizes the competing claims of another subject to the same territory, state A has manifestly waived its claims. If a former sovereign of a given territory recognizes a new state established on it (and only on it), the authorstate of such recognition cannot claim that its sovereignty still extends over all the territory claimed by a new state. One can ask whether these are examples of an express or implied waiver? In my opinion they are rather examples of implied waiver, though they are so obvious that I would be ready to accept the qualification of some of them even as express waivers. If there are doubts in this respect they may be due to the very qualification of an act by a given state. If it prefers to call it recognition rather than waiver, the qualification as an express waiver may be seen as a kind of provocation, both with respect to the author and possibly the beneficiary. Other forms of implied waiver give rise to more doubts. L. Oppenheim (and the subsequent editors of his fundamental work) referred to the situation of the lack of protest of a state in a situation in which another state takes over the island of the first state.130 In their opinion this constituted an example of an 129 J.-M. Arbour, op. cit., p. 127. 130 L. Oppenheim 3, p. 651; L. Oppenheim 4, p. 698; L. Oppenheim 8, pp. 875–876.

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implied waiver. At the same time they reserved that not every case of silence means a waiver.131 R. Jennings and A. Watts write that waiver may be in place ‘when a state fails to protest in circumstances where a protest is necessary to preserve its rights,’ including ‘by way of the actual admission by a state of the facts underlying the claim of another state’.132 Interestingly enough, Jennings and Watts see an example of waiver in Art. 45 of the Vienna Convention on the law of treaties concerning the loss of the right to invoke a ground for invalidating, terminating, withdrawing from or suspending the operation of treaty.133 On the other hand, W. Góralczyk protests against such a wide understanding of implied waiver. He writes that ‘the very lack of the use of rights should not be qualified as a tacit waiver. The intention to waive the rights must be clear, established beyond any doubt and always interpreted narrowly.’134 A. Cassesse underlines that ‘renunciation (…) may not be inferred from simple inertia, or the non-exercise of a right, or mere passage of time.’135 This statement coexists with one on the possibility of a tacit waiver. A.-Ch. Kiss underlines that an implied waiver must result from unambiguous acts.136 Though many authors would agree with this statement, it is somewhat strange that A.-Ch. Kiss cites as example the 1932 French waiver of claims with respect to Germany, which took the place through the lack of insertion of the appropriate sum in the French budget.137 Such a form leaves room for a lot of doubt as to the intention of the author-state to make a waiver. On the other hand, it gives the interested state a chance to resolve those doubts – in one direction (the confirmation of waiver) or in the opposite. In consequence, it is rather impossible to exclude a tacit waiver. In my opinion it is however a mistake to see it in any case of the loss of a right, especially as a result of the lack of its use. If it lasts for tens or hundreds of years what is in place is rather a long process than an act. An express waiver usually does not leave doubts as to whether it qualifies as unilateral or not. A unilateral declaration on waiver is a unilateral act, while a treaty provision on waiver must be denied that notion. A tacit waiver may 131 132 133 134

L. Oppenheim 3, p. 651, L. Oppenheim 4, p. 699, L. Oppenheim 8, p. 876. Both citations are based on: R. Jennings, A. Watts, op. cit., p. 1195. R. Jennings, A. Watts, op. cit., pp. 1195–1196. W. Góralczyk, op. cit., p. 171. Concerning the position that the non-use of a right is not waiver, see: K. Skubiszewski, op. cit., p. 229. 135 A. Cassesse, op. cit., p. 184. 136 A.-Ch. Kiss, Les actes unilatéraux dans la pratique française du droit international, rgdip, 1961, p. 331. 137 A.-Ch. Kiss, op. cit., p. 331.

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leave some doubts as to its unilateral or non-unilateral nature. In this respect the situation is similar to that of recognition. The cynical remark concluding the previous chapter could be referred to, albeit to a lesser extent. In fact the diversity of forms of waiver is smaller than those relating to recognition. What can be suggested is a presumption of a unilateral character, unless such is expressly excluded. What may be especially difficult, however, is how to qualify a waiver resulting from a treaty which does not use the term ‘waive’ or ‘renounce’. In my opinion such a waiver must be denied the character of a unilateral act. 15.9

The Possibility of Revoking a Waiver

The question of revocability or irrevocability is important for all unilateral acts. With respect to waiver its importance is however quite special, if not definitional. V.-D. Degan rightly observes the contentious character of that question. He writes: The answer to it largely depends on the conditions required in regard to its form. Authors who claim that waiver must be explicit in order that other interested States take cognisance of it, and especially those authors who seek, as condition of its legal effect, its acceptance by the other interested party, are of the view that it is definitive and irrevocable.138 V.-D. Degan himself speaks in favour of the irrevocability of waiver, especially when ‘a waiver is made by a public declaration in the circumstances of a valid promise, the intention of the State making it is definite and clear. (…) In particular it seems to be irrevocable when the right in question is explicitly or by implication transferred to another State (transitive waiver).’139 One should recall however that this author relatively widely defines transitive waiver. What is at stake is rather a situation in which one can identify one or more beneficiaries of a waiver. F. Pfluger also takes the position that waiver must be irrevocable.140 Pfluger treats as his only argument the fact that adopting the complete freedom to revoke a waiver already made would be contrary to international order and to 138 V.-D. Degan, op. cit., pp. 230–231. 139 V.-D. Degan, op. cit., p. 231. 140 F. Pfluger, op. cit, p. 255.

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the very essence of waiver itself.141 The same position is presented by E. Suy.142 He rightly remarks that other states may make their decisions based on the fact of a waiver performed by another state. If the latter is given the right to revoke a waiver given, it could lead to serious problems for the other states.143 K. Skubiszewski is also very strict with respect to the very idea of revocation of a waiver. He writes that the object of a waiver (claim, right, competence or power) ceases to exist and ‘once this effect has taken place, waiver becomes irrevocable’.144 One must however recall that in some cases a waiver will not lead to the extinction of rights. This is why the thesis on the completely different character of waiver as compared with other acts is only partly justified. Secondly, one must consider whether the application of rebus sic stantibus is completely excluded with respect to waiver. While as a rule it must be excluded, the existence of special situations cannot be completely ruled out. One of them has to do with claims connected with the Second World War. If a victim state waives its war claims against the aggressor state, and the latter after dozens of years makes claims concerning territorial or property effects following the end of war activities, I am ready to accept the application of rebus sic stantibus. The very special character of this situation makes it however both unlikely and, hopefully, no precedent for other cases. This is all the more so since – if waiver is assumed to lead to the extinction of rights – then coming back to them would be very problematic. It could be argued that it would amount to the creation of new obligations against the will of the state. In this situation it is the doctrine of state sovereignty that speaks in favour of the irrevocability of waiver. On the other hand, as a unilateral waiver is effected without any equivalent exchange, the author-state may advocate special protection, especially in its relationships with the beneficiary of the waiver in question. 15.10

Waiver of Immunities

As indicated, waiver in general is usually discussed in works on unilateral acts of states (monographs, articles and parts of some manuals). In some other works it is not questioned, simply omitted. Paradoxically, what is discussed 141 142 143 144

F. Pfluger, op. cit., p. 255. E. Suy, op. cit., p. 185. E. Suy, op. cit., p. 185. K. Skubiszewski, op. cit., p. 229.

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much more often than waiver itself is the waiver of immunities. These are mainly the immunity of a state itself and of its officials, especially diplomatic immunity. The issue whether waiver of immunity is really an example of waiver may seem to be purely academic. J.-M. Arbour discusses waiver of immunity in the context of a unilateral act of waiver (both immunity of states and diplomatic immunity).145 It thus seems useful to discuss the relationship of these two institutions. To this end I will refer to subject, object, form, and unilateral character. As regards subjects, it is evident that both waiver of diplomatic immunity or consular immunity is effected by the sending state. There is no doubt that such waiver is an act of state and prima facie in this respect no problems should be encountered. Referring to the object, one should observe that immunity is a certain right. One can wonder whether that right belongs to a state as such. This is obvious with respect to the sovereign immunity of a state, however as regards diplomatic as well as consular immunities and others similar to them, a view may be presented that it is rather the right of concrete persons. Such a view however would not be justified. If an immunity is a right and gives rise to an obligation on the part of one subject of law (the receiving state), that right must be also attributed to a subject of law (that is, the sending state). The above-mentioned fact that it is only the state who can waive the immunity is the best proof that the latter is the right of the state as such. No doubt arises if a formal declaration by the competent state organ is made. Referring to the question of form, one should recall that waiver may result from a unilateral act or a treaty. The second case is outside the scope of interest in this book. However, a waiver of sovereign immunity may take place by the actual participation by a given person in particular proceedings.146 The qualification of such a situation is problematic. If the actual behaviour of a given person is the direct result of a decision of a given state, the presence of an act of a state is beyond any doubt. It is much more difficult if there is some kind of defect in the decision. If a given person takes part in proceedings despite the will of the competent organs, I have problems with seeing in this situation an act of a state. Such a problem resembles those connected with recognition as regards problems with qualifying a given act as unilateral or not. A new problem is connected with the presence of the ‘human element’, that is the activity of a given individual. This element was absent in recognition. In 145 J.-M. Arbour, op. cit., pp. 127–128. 146 I. Brownlie, Principles of Public International Law, Oxford, 1990, p. 340.

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fact however, there are situations in which the nature of waiver as a result overshadows the nature of waiver as an act. On the other hand there is no doubt that the initiation by a state of proceedings before the court of another state is an implied waiver of sovereign immunity.147 In fact it could be easily qualified as a unilateral act. Another question discussed in literature is whether the conclusion of a commercial contract is not an implied waiver of immunity. The English Court of Appeal, in the case Kahan v. Federation of Pakistan, ruled that even an express contract clause on the jurisdiction of English courts is not a waiver of immunity.148 The Swedish Supreme Court in case Tekno-Pharma AB v. Iran ruled that the presence in a contract of an arbitration clause does not amount to an express waiver of immunity. Hence it refused to decide the case.149 One should add that what was examined was not the jurisdiction of an arbitrator, but of a court which was to nominate him.150 On the other hand the District Court for the District of Columbia, in the case Ipitrade Int’l, S.A. v. Nigeria, ruled that the consent to arbitration is a tacit waiver of immunity, which cannot be withdrawn unilaterally.151 In fact however if a state does not have immunity with respect to such transactions, it is difficult to see in this context a waiver of immunity. E.J. Cohn rightly distinguishes between waiver of immunity and its scope.152 The other view would be connected with an extremely integral idea of a state as a subject ex definitione covered by an immunity. In that situation any commercial contract would amount to a waiver of immunity. Such a view will not be adopted in the present work. In this context it is difficult not to see differences between a definitive waiver of, e.g., territorial sovereignty and a waiver of immunity. This was referred to in the above-cited remark of R. Jennings and A. Watts on the differences of the words ‘waiver’ and ‘denunciation’. It is difficult to limit, by definition, the effects of waiver of immunity to a given proceeding only. It cannot be

147 Ch. Waring, Waiver of Sovereign Immunity, Harvard Int’l L. Club J., 1964–65, p. 189. 148 E.J. Cohn, op. cit., pp. 270–271. 149 G. Melander, Waiver of Immunity, Nordisk Tidskrift Int. Ret, 1976, p. 24. The number of the case was nja 1972 C 434; cited on the basis of: G. Melander, op. cit,., p. 22. 150 G. Melander, op. cit., pp. 22–23. 151 465  F. Supp. 824 (D.D. C 1978), cited on the basis of: G.B. Sullivan, Implicit Waiver of Sovereign Immunity by Consent to Arbitration: Territorial Scope and Procedural Limits, Texas Journal of International Law, 1983, p. 341, footnote 89. 152 E.J. Cohn, Waiver of Immunity, byil, 1958, p. 272.

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excluded that a general waiver of immunity is made.153 One can wonder whether waiver of immunities is not an institution having importance mainly within the framework of proceedings before a domestic court. There is no doubt that the analyses of that institution are made in the context of domestic laws and case-law.154 It would be impossible to argue however that that immunity is just a product of domestic law. It is rather that its practical consequences emerge only in the context of concrete proceedings, conducted by domestic organs (mainly other than those competent to conduct international relationships of a state and formulate binding acts of international law) and based on the statutory regulation of their proceedings. It would not be serious to automatically throw outside the scope of international law any element which is the object of a large number of domestic judgments (sometimes hardly reconcilable) and which seems to be too complicated for a simplified vision of international law. 153 E.J. Cohn, op. cit., p. 70 cites an agreement between the usa and China (represented by the Kuomintang Government) providing for waiver of sovereign immunity in the courts of third states. 154 The limited framework of the present chapter makes it impossible to make a complete presentation of immunities of a state, as well as diplomatic and consular immunities. Each of them deserves a separate examination. Domestic case law on immunities can be traced in works such as: E.J. Cohn, Waiver of Immunity, Byil, 1958, pp. 260–273.

chapter 16

Protest in International Law 16.1

Introductory Remarks

Protest is mentioned as an example of unilateral acts in almost every doctrinal catalogue of such acts.1 What must be underlined at the outset is the practical importance of that act. It is used very frequently.2 The great number of protests, both publicly declared and officially lodged, is almost certainly due to the preservative and protective character of the act.3 In some situations states do not make a protest for political reasons, so in fact the potential number of protests is even larger. Protest could be perceived as the antithesis of recognition. Hence it is no wonder that the main goal of the present chapter is to examine whether protest is in fact a unilateral legal act (international legal transaction) of international law. To this end the definition of protest, its forms and legal effects will be analysed. E. Suy remarked in 1962 on the small number of publications devoted to protest.4 Despite the fact that since the publication of his book protest has been the topic of two monographs, one of them being quite new,5 the very number of publications devoted to the issue does not reflect the true level of interest of the doctrine in protest. It is rather moderate overall. So when the special rapporteur wrote in his fourth report, that ‘Declarations which constitute protests are frequent in practice, and thus have been examined by international doctrine and case law,’6 it may said that he was overly optimistic in his assessment of the doctrine as such. E. Brüel was probably most correct when he noted (in 1932) that the doctrine analysing protest was usually part of works dealing with other problems of international law.7 1 Vide: part i of the present work. 2 J.C. McKenna, Diplomatic Protest in Foreign Policy. Analysis and Case Studies, Chicago, 1962, pp. 1–2. He cites 598 protests made within 14 chosen years of the 20th century. He meant only protests which were made publicly available. 3 Which does not necessarily mean that protest will be always sufficient for the preservation of rights. 4 E. Suy, Les actes juridiques unilatéraux en droit international public, Paris, 1962, p. 47. 5 I. Breutz, Der Protest im Völkerrecht, Berlin 1997. 6 4. report, p. 21, par. 96. 7 E. Brüel, La protestation en droit international, Nordisk Tidsskrift Int. Ret, 1932, p. 75. The above-mentioned work of J.C. McKenna is a good example of this, inasmuch as its author is not a lawyer nor is the book is limited to legal aspects. It touches upon them, however, and because of that must be taken into consideration in the present analysis. © koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004274617_020

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The above remarks should not be understood as criticism of the existing doctrine. Their aim is rather to point out some characteristics which may have to do with the very essence of protest. In any case it could not be overlooked in the present book. If a lawyer would like to say anything important about protests, he/she rather looks for it in a wider context when discussing such concepts as acquiescence, tacit consent, opposability of situations and so on. In this sense protest is quite atypical as compared with other classical acts. The attitude of the special rapporteur toward protest is instructive (though perhaps in the negative meaning of the term) in this regard. He decided to devote a large part of his seventh report to protest. It fact that part became a list of about 70 protests, or situations which gave rise to protests. Inasmuch as this list does not shed significant light on the essence of the act, it is not my aim here to present this list nor make a competing list. 16.2

Definition of Protest

The very effort to define protest is quite difficult. Clearly protest is connected with opposition, lack of consent, or lack of approval of or acquiescence to a given situation or action. However if the definitions proposed by several authors are compared, it becomes clear that they differ to a considerable extent. D. Anzilotti presents protest as an expression of will not to recognize a given claim, act or state of affairs as legitimate (légitime).8 This definition is accepted by some other authors.9 However, others replace the reference to legitimacy with reference to legality. In this sense protest reveals an intent to perceive a given situation, claim or behaviour as being not in conformity with international law.10 In other words, it reveals a position that such a situation or activity is a breach of international law.11 What is visible in all the definitions is their interrelationship with the views on the essence of recognition. It is thus no wonder that, according to D. Anzliotti, recognition is connected with legitimacy (légitime),12 while according to the 8 9 10

11 12

D. Anzilotti, Cours de droit international, traduction française par G. Gidel, Paris, 1929, p. 349. G. Venturini, La portée et les effets juridiques des attitudes et des actes unilatéraux des États, rcadi, 1964-ii (t. 112), p. 433; D. Ruzié, Droit international public, Paris, 1992, p. 50. W. Góralczyk, Prawo międzynarodowe publiczne w zarysie, Warszawa, 1989, p. 170. For a very similar definition see: W. Czapliński, A. Wyrozumska, Prawo międzynarodowe publiczne. Zagadnienia systemowe, Warszawa, 1999, p. 92. R. Bierzanek, J. Symonides, Prawo międzynarodowe publiczne, Warszawa, 1994, p. 101. D. Anzliotti, op. cit., p. 347; similarly: J. Spiropoulos, Traité théorique et pratique du droit international public, Paris, 1933, p. 231.

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authors of the second group it has to do with legality (conformity with international law).13 A. Hold-Ferneck did not examine this interrelationship and simply inserted it into the very definition of protest. According to him, a protest or claim (Einspruch, Protest) is an expression of will not to recognize a given state of affairs or a given claim.14 W. Levi also combines the two elements; according to him protest contests the legality or legitimacy of a given fact or event.15 E. Suy presents a provisional definition of protest, according to which protest is a unilateral act by the means of which a subject of law expresses its will not to recognize a given state of affairs as legal, and by which this subject tries to defend its rights, which are breached or endangered.16 Interestingly enough, the same author in another section of his book writes that we have to deal with protest in every situation in which a state, in a proper and legal way (d’une manière licite et appropriée). expresses its will not to recognize a given state of affairs.17 Apparently he does not see any difference between these two formulations. Other authors however adopt a wider view of protest. A. Cassesse defines protest as a ‘unilateral declaration designed to object to an act or action performed by another state’.18 This definition is to some extent narrower, as what is at stake is only a declaration and only a unilateral act. At the same time it is widened as regards the object of protest. It does not have to do with illegality. What is sufficient is a negative attitude of the author state to the acts or activities of another state. Definitions accentuating the fact of opposition and not expanding on elements having to do with legality, legitimacy or recognition are quite frequent. So for example K. Skubiszewski writes that: A protest is an act whereby the State expresses its opposition to a situation, a claim or generally, a state of things and the ensuing legal consequences. As a result, what is protested against is now brought into question in the relations between the states concerned.19 13 14 15 16 17 18 19

W. Góralczyk, op. cit., p. 169. A. Hold-Ferneck, Lehrbuch des Völkerrechts, Leipzig, 1930, t. ii, p. 11. W. Levi, Contemporary International Law. A Concise Introduction, Boulder, San Francisco, Oxford, 1991, p. 200. E. Suy, op. cit., p. 48. Suy treats this definition as provisional only. As such it is overtaken by the special rapporteur, see: 4. report, p. 21, par. 95. E. Suy, op. cit., p. 53. A. Cassese, International Law, Oxford 2005, p. 184. K. Skubiszewski, Unilateral Acts of States, in: M. Bedjaoui (ed.), International Law: Achievements and Prospects, Paris 1991, p. 227.

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L. Oppenheim defines protest as ‘a formal communication from one State to another that it objects to an act performed, or contemplated by, the latter.’20 A very similar definition is proposed by I. Breutz, who writes that ‘protest in international law is a unilateral declaration by which a subject of international law objects a certain state of affairs, claim or illegal activity of another subject of international law’.21 G. Dahm writes generally that by protesting a given state makes it visible that it does not want to accept (abfinden) a given situation or claim made by another state.22 J.C. McKenna writes that ‘diplomatic protest is in the nature of a complaint. It expresses dissatisfaction with an official action or policy of the government to which it is addressed.’23 In the light of such definitions there can be no wonder that A. Hold-Ferneck writes that protest may not only protect rights but also interests.24 It is clear that fundamental differences are reflected already in the several definitions of protest cited. They have to do with the very core of the present work on acts of international law. One cannot overlook the tendency of some authors to differentiate between ‘protest’ and ‘protest as a legal transaction’ (or protest as a legal act). So for example E. Suy writes that protest as an ‘acte juridique’ must be directed against a breach of a right or pretended right of the author-state (contre la violation d’un droit subjectif ou prétendu tel appartenant au protestataire).25 This kind of narrowing of the definition does not seem to be justified. One should not bend realities (protests actually made) to legal concepts. The notion of a unilateral legal transaction manifestly belongs to the latter. What could be 20

21 22 23 24

25

L. Oppenheim, International Law. A Treatise. Vol. i – Peace, Third edition edited by R.F. Roxburgh, London, New York, Bombay, Calcutta, Madras, 1920, (cited as Oppenheim 3), vol. i, p. 650. Also the other editors of the manual of Oppenheim stuck to this definition verbatim; see: L. Oppenheim, International Law. A Treatise. Vol. i – Peace, Fourth edition edited by A.D. McNair, London, New York, Toronto, 1928, (cited as Oppenheim 4), vol. i, p. 698; L. Oppenheim, International Law. A Treatise. Vol. i – Peace, Eighth edition edited by H. Lauterpacht, London, New York, Toronto, 1955, (cited as Oppenheim 8), vol. i, p. 874; R. Jennings, A. Watts, Oppenheim’s International Law, ninth edition, vol. i, London, New York, 1996, p. 1193. I. Breutz: op. cit., p. 21. G. Dahm, Völkerrecht, 2. völlig neu bearbeitete Auflage von: J. Delbrück, R. Wolfrum, Berlin 2002, Band I/3, p. 769 (cited as G. Dahm, op. cit.). J.C. McKenna, op. cit., p. 15. A. Hold-Ferneck, op. cit., t. ii, pp. 11–12. He invokes the protests of great powers against the 1895 Shimonoseki treaty between Japan and China. For him they are examples of protest in defence of rights and interests. He also cites the protest of Bolivia in connection with a treaty between Chile and Peru on Tacna-Arica. E. Suy, op. cit., p. 48.

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expected from a lawyer is an answer to whether protest as such is a legal transaction. Such a question becomes an academic one if an assumption is made that what interests the doctrine are only protests which are such legal acts (transactions). This is neither the first nor the last opportunity in which it must be conceded that when a state makes a protest it would be futile to dispute with it and argue that it is not protesting. It obviously is. This is why the prima facie definition of protest will treat as protest any act by which a state expresses its will not to accept or not to recognize a given fact or act. 16.3

Form of Protest

The form of making a protest has also attracted the attention of the doctrine. And in this field one also has to deal with a diversity of opinions. Some authors underline that no special form of protest is necessary.26 For E. Suy protest may be express or implied.27 G. Venturini also accepts implied protests; however he is of the opinion that the aim of protest may speak in favour of an express form of it.28 Some authors insist however that protest must always be express.29 O. Kimminich and S. Hobe go even further and claim that a formal notification of protest is required.30 There is no doubt that express protests are frequent. They are often so-called ‘diplomatic protests’, though it would go too far to equate those two notions, i.e. of express protest and diplomatic protest. The very identity of the latter requires attention. According to E. Suy, a diplomatic protest could take the form of a diplomatic note as well as an oral declaration.31 J.C. McKenna defines diplomatic protest as a communication (oral or written) ‘usually directed by a government to a government.’32 The very use of the term ‘usually’ could be understood as indication that other subjects could make and receive protests. 26 27 28 29

30 31 32

G. Dahm, op. cit., p. 769. E. Suy, op. cit., p. 49. G. Venturini, op. cit., pp. 433–434. W. Góralczyk, op. cit., p. 170, K. Skubiszewski, op. cit., p. 227, W. Czapliński, A. Wyrozumska, op. cit., 1999, p. 92. R. Bierzanek and J. Symonides do not insist expressly upon this element, though they do this when discussing waiver. It may be so, however, that they treat it as obvious, all the more as they emphasize that protest may be made in writing or orally, see: R. Bierzanek, J. Symonides, op. cit., p. 101. O. Kimminich, S. Hobe, Einführung in das Völkerrecht, Tübingen, Basel, 2000, p. 197. E. Suy, op. cit., p. 48. J.C. McKenna, op. cit., pp. 13–14.

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McKenna writes that diplomatic protest ‘must be transmitted through regular foreign-affairs channels’ – either ‘directly from one head of state to another’, or between the Foreign Offices or their agents abroad.33 Clearly the head of the government should be added to this list. McKenna stresses that ‘a diplomat may address protests only to the government to which he is accredited.’34 He adds that ‘consuls, military commanders in the field and local political authorities are sometimes authorized channels.’35 I.C. MacGibbon points out the practical difficulties connected with oral protests.36 In the contemporary world of electronic media however this remark seems only partly valid. Paradoxically, it is valid with respect to oral diplomatic protests not made public, but would seem clearly not valid with respect to protests made at public press conferences or in the media. The latter however may be outside the idea of diplomatic protest, but not necessarily of protest as such. This does not mean that any sign of disapproval or dissatisfaction must be treated as protest. J.C. McKenna in this context points that one cannot see diplomatic protest in a message of the President to Congress or a claim of the Trade Department; this is all the more true with respect to a judgment of the Supreme Court.37 If one goes as far as to deny them the character of protests it has mainly (though not exclusively) to do with the question of organs competent to make protests. Hence this is the topic of the next section. 16.4

Organs Competent to make Express Protests

Already in 1931 E. Vanselow wrote that protest could be made by organs competent to conduct international relationships only; protests made by other organs are devoid of any legal importance (keine Bedeutung).38 What is especially stressed is the fact that statements made by parliaments are not protests. D. Anzilotti writes that disapproval expressed by a parliament is not a protest and does not have the legal effects of protest.39 This conclusion 33 34 35 36 37 38 39

J.C. McKenna, op. cit., p. 14. J.C. McKenna, op. cit., p. 14. J.C. McKenna, op. cit., p. 14. I.C. MacGibbon, Some Observations on the Part of Protest in International Law, byil, 1953, p. 295. J.C. McKenna, op. cit., p. 14. E. Vanselow, Völkerrecht. Einführung in die Praxis der Staaten, Berlin, 1931, p. 42. D. Anzilotti, op. cit., p. 349.

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is widely accepted.40 E. Suy compares parliamentary protests with protests by the press or political parties.41 Such an extreme view may however seem strange if one takes into consideration the fact that parliaments are organs representing the will of the Nation in the most direct way.42 One cannot avoid the impression that one of the reasons underlying the lack of confidence in the parliamentary statements is the diversity of views represented in them. They cannot be attributed to the respective state as such, but to individual members of the Parliament only. There is no possibility to make other states react to each and every such opinion. This argument however is not so obvious with respect to resolutions adopted by a given Parliament or its organs. On the other hand, if one wanted to treat such acts as protests or claims (the latter not being as such the topic of the present chapter), a special division of the roles between parliaments and governments of some (probably weaker) states would probably emerge. Governments would abstain from protesting in order to keep good relations with other (probably stronger) states. Parliaments on the other hand would protest or make claims in order to protect the long-term legal interests of a given state, or even for reasons of political convenience. One could hardly accept such a situation. Written or oral protest may be viewed as the weakest action in international relations. Sometimes however a given state is so weak than it cannot afford to even make a protest.43 All the same it has to make a decision whether it protests or not, as it cannot protest and abstain from protest at one and the same time. Parodoxically this statement is just a reformulation of a famous formula expressing the principle of estoppel. According to it: a State cannot blow hot and cold – alegans contraria non audiendus est.44 40

41 42 43 44

See: E. Suy, op. cit., p. 55; O. Kimminich, S. Hobe, op. cit., p. 197. Kimminich and Hobe invoke the statement of the Bundestag of 17 May 1972. The Federal Government accepted this statement as its own and presented it to the parties of the treaties with the states of Eastern Europe. E. Suy, op. cit., p. 55. At least in democratic states. This was especially visible in the relationships of actual vassalization of the socialist states by the ussr. Citation verbatim on the basis of: I.C. MacGibbon, Estoppel in international law, iclq, vol. 7, 3/1958, p. 469. Estoppel is the topic of an immense legal literature. See e.g.: I.C. MacGibbon, Estoppel in international law, iclq, vol. 7, 3/1958, p. 468; N.S.M. Antunes, Estoppel, Acquiescence and Recognition in Territorial and Boundary Dispute Settlement, Durham, 2000, p. 4; D.W. Bowett, Estoppel Before International Tribunals and its Relation to Acquiescence, byil 1957, p. 176; W. Czapliński, A. Wyrozumska, op. cit., 2004, p. 103; M.N. Shaw, International Law, Cambridge, 1991, p. 299.

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That is why the conclusion according to which parliamentary acts are not protests is accepted here. Of course nobody can prohibit parliaments from making their protests, whether independently or in support of protests of the executive. Nor could anyone prohibit the executive from transmitting such acts to other states; in case of doubt it should be treated as a protest by the executive itself. The enumeration of organs competent to make protests is much more difficult. I have already cited the view according to which protests could be made by organs competent to act in international relationships of states.45 If this notion is to mean the head of a state, the head of the government, the minister of foreign affairs and the head of a diplomatic mission (in the sphere of relations with the receiving state), then this catalogue is really quite narrow. It is even narrower than the one that was presented when discussing international promise. Such a situation could give rise to doctrinal embarrassment. Logic would suggest that it should be easier to perform an act protecting (preserving) the interests of the author-state than an act creating new obligations for it. Interestingly enough, when discussing this topic I.C. MacGibbon refers to the rules connected with the acquisition of territory.46 As is known, they are connected with local activities performed by lower officials. One should reckon with protests being made by such officials in concrete cases as well. They are a part of everyday life. So for example, if the border or customs authorities of a given state make the crossing of a common border very cumbersome, the local authorities of the neighbour state may be expected to show their dissatisfaction. A similar attitude will be made by a consular officer or a diplomat when denied access to a national of the sending state. Also military commanders or captains of ships may formulate such declarations when faced with breaches of rights or even interests of their respective states. The only thing that remains to be established is whether such declarations should be termed ‘protests’. Either possible answer carries risks. There is no doubt that when a local organ makes a protest and the central government repeats it within a reasonable time, the situation should be treated as an immediate protest – i.e. at the moment of the protest of the local organ. However one can imagine a situation in which local authorities make protests and the central authorities do not dare even to mention them. Such a situation gives rise to important questions, especially in the context of the above-mentioned principle of estoppel, good faith and logic. However, it is not possible to suggest any rigid formula. In my opinion, if a protest of a local authority happens to be effective, there is no necessity for the central authorities to repeat it. If the local protest in an isolated situation is not effective and was not repeated by the central authorities, the addressee of 45 46

W. Góralczyk, op. cit., p. 170. I.C. MacGibbon, op. cit., p. 294.

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the protest could not claim that its behaviour was accepted by the other state. In this respect the principle de minimis could be invoked. If however the breaches are continued, the local authorities make protests but the central authorities or a diplomatic representative do not support them, it would be difficult to claim that the state validly protested such a given situation. 16.5

Implied Protest

The proponents of the thesis on the possibility of implied protests feel obliged to suggest acts by means of which such an implied protest could be performed. In this context E. Suy lists: bringing a case to an international court, termination of diplomatic or economic relations, retaliations, withholding of recognition of a state or government, withdrawal from an international conference, or a declaration of war.47 It is easy to note that some of those acts have been analysed as separate types of legal transactions. This concerns first of all the termination of diplomatic relations or declaration of war. The same could be said about bringing a case to an international court. However a similar situation was present in the case of recognition and waiver. If a recognition can give rise to waiver, or if several acts from different branches of law (law of treaties, consular law, diplomatic law) can result in recognition, why should one assume that this cannot be the case with respect to protest? Secondly, several of the above-listed activities are clearly acts, but it would be difficult to call them legal transactions as such. E. Suy uses a more general term for them – ‘actes et actions’.48 This concerns the termination of economic relations and withdrawal from an international conference. This gives rise to another important question. Mainly, if protest is assumed to be a legal transaction, is it not incongruous that can take such forms? I will come back to this question when discussing the legal effects of protest. One can wonder if it is possible to speak about protest when no declaration is made. The list of activities presented by E. Suy would suggest a positive answer. Let us consider in this context the withholding of recognition of a state or government. It is in itself a negative action – a failure to recognize. It can result simply from silence, or may be formulated in a decisive and categorical way. The same is true as regards withdrawal from an international conference. It could be explained, or it could remain unjustified as well. It would be 47 48

E. Suy, op. cit., p. 49 and 53. E. Suy, op. cit., p. 53.

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difficult to consider the latter as similar to protest or as a form of protest. So in fact not every case of non-recognition or withdrawing from a conference can be treated as protest. The more silent the state is and the less explicit the reasons for its behaviour are, the more difficult it is to see protest in a given action. E. Suy rightly underlines that protest cannot be silent.49 As a consequence it may be possible to see a protest in any of the acts listed above if they are connected with a sufficiently strong manifestation of the will to protest. It can be argued that mere verbal protest is the weakest instrument. One can see traces of this in some stronger instruments which try to touch upon interests or dignity of the addressee of a protest. It would however be difficult to see protest in instruments which are even weaker than a normal protest note. V.-D. Degan is much more careful when speaking about implicit protest. He concedes that the same results as those of protest could be achieved by other means. They include, e.g., self-defence or bringing a case to the icj or an arbitral court.50 However an identity of effects does not necessarily mean the identity of acts. Interestingly enough, E. Suy, while adopting a very wide definition of protest, excluded from it acts of force (actes de violance).51 A wide concept of protests found expression in the works of the ilc. The special rapporteur in his fourth report wrote that: A protest is a classic material act which be effected either through a form of conduct or conclusive acts, or through a legal act in the sense referred to by the definition contained in draft article 1 examined by the Commission during its past session.52 It is clear that the special rapporteur did not envision the possibility of codifying protest entirely. According to I. Breutz protest must be distinguished from other similar acts, which he calls Rechtsverwahrung, Vorbehalt and other critical declarations (sonstige Erklärungen).53 As regards the second element – reservation – differentiating it from protest is not difficult. It is a well-defined notion from the field of the law of treaties. However, the very acceptance of the separate character of protest on the one hand and reservation on the other does not exclude that a reservation may be a form of protest. Also an objection to a reservation 49 50 51 52 53

E. Suy, op. cit., p. 63. V.-D. Degan, Unilateral act as a source of particular international law, fyil, 1994, p. 258. E. Suy, op. cit., p. 53. 4. report, p. 21, par. 95. I. Breutz: op. cit., pp. 22–24.

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may play this role. What is of the utmost importance in this context is an ordinary objection to an excluding reservation (a reservation aimed at the exclusion of one or several provisions of a given treaty).54 But other objections could also have that character – especially a qualified objection (reservation leading to the lack of contractual relationship between the author state of the reservation and of the objection). As regards the term Rechtsverwahrung, even translating it into English gives rise to doubts. The most obvious choice – ‘reservation’ – seems to be already occupied by the above-mentioned institution of the law of treaties. In fact however the essence of such a statement is to ‘keep somebody’s rights intact’. G. Venturini calls this réserve. He also distinguishes avertissement, called anticipatory protest.55 The former is thought to be analogous to protest, though it is more lenient,56 while an anticipatory protest is designed to convince another state to a undertake a certain course of conduct.57 G. Venturini attaches to both acts effects similar to those of a protest.58 In fact, however, the first (clearly not understood in the sense of the law of treaties) would fit into a broader definition of protest, while anticipatory protest escapes that definition. This is rather due not to its inherent deficiencies but to the circumstances of its performance. If a state makes an anticipatory protest before a given act is done by another state, but does not make a definite protest after the act has been done, that state risks that its behaviour may be treated as acquiescence (that is toleration of a certain situation). The last question connected with the form of protest is whether it must be addressed to a certain institution, person or persons. E. Suy differentiates between the direction (the fact of being directed) and the addressee of a 54

55 56 57

58

This is because it has no practical legal effects. The legal effects of the acceptance of an excluding reservation and of an ordinary objection to such reservation are the same. Namely the provisions to which the reservation and objection relate are not applicable between the state-authors of the reservation and objection respectively. On the other hand, if reservation is aimed at modification of a given provision there are practical legal differences of effects with respect to acceptance of a reservation on one hand, and ordinary objection to it on the other. G. Venturini, op. cit., pp. 434–435. G. Venturini, op. cit., p. 434. G. Venturini, op. cit., pp. 434–435. G. Venturini also mentions in this context declarations expressing sentiments or opinions (les déclaration de sentiment, d’opinion), but denies legal effects to them. As to apologies, according to G. Venturini, their legal effects are limited to those resulting from an international wrongful act, vide: ibidem, p. 435. G. Venturini, op. cit., pp. 434–435.

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protest. According to him, protest must be directed (dirigée) against a person or entity breaking the law or a person or entity responsible for such, but it may be addressed to somebody else.59 The possibility of addressing a protest to an international organization of which the state breaking the law is a member is, according to E. Suy, a proof of the development of public international law.60 Diplomatic protest as a rule must have an addressee. What’s more, it would be difficult to treat as protest a declaration addressed to a state other than the perpetrator of the acts which are contested, unless the former is legally in charge of the interests of the actual addressee of a protest. On the other hand, it is difficult to speak about an addressee with respect to publicly made statements. It is also difficult to determine the addressee of acts and behaviours treated as examples of implied protest, although it is at the same time difficult to trace a general and rigid principle in this respect. Of course a public statement may refer directly to the addressee – as President Reagan referred to Secretary Gorbachev in his famous speech61 at the Berlin Wall. Having said the above, the protesting state must make it clear what is the object of its protest. In this sense the differentiation between the addressee and the direction of the protest is very valuable. 16.6

Facultative Character of Protest

Before analysing the legal effects of protest it must be examined whether it is a facultative act. As a rule the legal literature gives a positive answer to this question.62 Already in 1929 D. Anzilotti underlined the facultative character of protest; however at the same time he stressed that the lack of protest may result in rights being lost by a given state.63 E. Suy writes that protest is never compulsory.64 This lack of a legal duty to make a protest should be understood as an expression of the power to dispose of one’s own rights. Nobody is obliged to defend them. These statements require some verification however. It is widely accepted that there are circumstances in which protest is necessary. Already in 1931

59 60 61 62 63 64

E. Suy, op. cit., p. 57. E. Suy, op. cit., pp. 57–58. This speech itself certainly not being a protest. R. Bierzanek, J. Symonides, op. cit., p. 101. D. Anzilotti, op. cit., p. 349. E. Suy, op. cit., p. 68.

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A. Hold-Ferneck wrote that in some cases protest is compulsory.65 The situation of neutral states was especially invoked in this context – they were believed to be under a duty to protest against infringements of their neutrality.66 D. Anzilotti referred in a more general way to obligations to protest resulting from special treaties.67 E. Suy68 lists the following situations in which protest is required: – protection by a neutral state of its own neutrality; – breaches of the rights of a given state being at the same time breaches of the rights of other states; – situations in which a state accepted a duty to defend certain rights. In fact the first and the last elements are strictly interconnected. One can hardly imagine a duty on the part of a neutral state to protest against breaches of its status if that state were not under a duty to protect the rights stemming from its neutral character. For this reason it seems useful to refer to them together. There is no doubt that a state may be seen to breach its duty to protect certain rights if it does not even protest in the face of them being breached. As was already said, protest is the weakest instrument of protection. However, if a stronger measure is used, it would be strange to demand a separate protest. This is why such stronger measures could be seen as forms of implied protest. The facultative character of protest is of the utmost importance in this work. If there is a contractual duty to make a protest, it would be doubtful if one can call it facultative. If so, one cannot see in such protest a unilateral act sensu stricto. Before the unilateral character of protests is discussed however, a reference to their legal effects must be made. Only then it will be possible to assess whether a protest is a legal transaction in the proper meaning of the term. Paradoxically enough, the relationship of protests not only to rights but to interests must be examined first. 16.7

Protests Concerning Breaches of Law and Protests Concerning Breaches of Interests

Already at the stage of defining protests declarations aimed at protection of interests, not rights as such, were invoked. 65 66 67 68

A. Hold-Ferneck, op. cit., t. ii, p. 12. A. Hold-Ferneck, op. cit., t. ii, p. 12, D. Anzilotti, op. cit., p. 349. D. Anzilotti, op. cit., p. 349. E. Suy, op. cit., p. 69.

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Many authors pointed out the separate character of such protests. So for example E. Brüel is of the opinion that statements connected with the protection of interests have the form of protests, but do not fulfil one of their preconditions, that is the protection (preservation) of rights.69 G. Venturini writes that the name ‘protest’ is used to denote the disapproval of acts harming the interests of the author state, but that such a protest has only political importance (as opposed to a protest regarding a legal situation).70 A similar attitude is presented by I.C. MacGibbon, who writes on the one hand that ‘[i]nternational law prescribes no rules as to the contents of a protest. This is dictated by the purpose which the author of the protest intends to effect,’71 while on the other hand he concludes that: It has been suggested that ‘while States may give information, make representations, or “intercede” about policies which affect their interests, they may formally protest or “interpose” only when their rights are violated’. Although it may be possible that protests formulated on a basis other than that of a violation of the rights of the protesting State may entail legal consequences in so far as they are expressive of the conviction that the acts protested against are in the nature of an abuse of right, normally a protest is devoid of legal effect if the rights in defence of which it is made do not in fact pertain to the protesting State.72 The element referred to above has to do with both the very essence of protest and its definition. If this definition insists on the presence of legal effects, only some acts called by states as protests and performed in practice are ‘protests’ (true protests conforming such a definition). If however the definition of protest should reflect rather the practice of states, then one has to be prepared to acknowledge that many protests do not have legal effects and are not legal transactions of international law. As has already been said, the first of these two solutions is very risky and doubtful from the logical point of view. It will not be adopted in the present book. The presence of protests is a part of real life, and its qualification in legal terms is of secondary importance. It is materially impossible to argue with the obvious fact that states treat protests as instruments of their foreign policy. I. Breutz, while trying to limit the notion of protest to declarations made in order to defend rights, feels 69 70 71 72

E. Brüel, op. cit., pp. 75–76. G. Venturini, op. cit. p. 433. I.C. MacGibbon, Protest…, p. 297. I.C. MacGibbon, Protest…, pp. 297–298.

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obliged to confess that protests were made in situations concerning insults of state officials or states themselves.73 In any case it would be a great mistake to argue that a state must be sure of its rights and the norms regulating them to make a protest. In fact the opposite is true – the greater the degree of confusion as regards certain actions, the more useful a protest may turn out to be. In this context it is useful to recall the protests made by states at the occasion of establishment of maritime zones by other states.74 This element is especially important when one refers to actual as compared to formal requirements regarding the form and content of protests. So for example J.C. McKenna distinguishes between protests invoking violations of positive international law, and those referring to universally accepted morality.75 As regards the first type of protest, McKenna writes that ‘the complaint must be that a strict right, rather than a mere courtesy, has been violated’ and that ‘a communication which seeks a favour or an indulgence motivated by generosity, reciprocity or comity may be a “request” or “inquiry”, or “good offices” but it is not a diplomatic protest.’76 One can only wonder what is the sense of such sophisticated requirements when protests referring to morality are allowed. E. Suy formulates a requirement according to which a protest must be directed against a violation of a subjective right or a ‘claimed subjective right’ (contre la violation d’un droit subjectif ou prétendu tel appartenant au protestataire). Such right is to be indicated.77 There is no problem with finding such protests. One of them is a statement made by Spain after the detention of a Spanish ship by Canada outside the 200-mile exclusive economic zone of that state. That protest referred to customary law codified in Art. 92 of the Convention on the Law of the Sea.78 73

74

75 76 77 78

I. Breutz, op. cit., pp. 86–87. Breutz cites the German protest against the words of the Soviet leader N. Khrushchev who compared the then chancellor Adenauer to Adolf Hitler. Interestingly enough, this protest was addressed to…the Foreign Office of Austria. In fact the words of Mr. Khrushchev took place at the press conference in Vienna in 1960. The protest included a demand for Austria to distance itself from such words. See: ibidem, p. 87. See, e.g., the British protests connected with the establishment by Iceland of a 4-mile territorial sea and determination of the baselines cited in the dispute on fisheries jurisdiction between the uk and Iceland, i.c.j. Reports 1974, p. 11. J.C. McKenna, op. cit., p. 16. J.C. McKenna, op. cit., p. 16. E. Suy, op. cit., p. 48. Cited on the basis of: Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, i.c.j. Reports 1998, p. 443.

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What is a problem is whether such a general requirement can be really defended? Can one really demand that protest identifies a given right when it can also refer to interests? It is possible that states make protests with respect to activities which are not covered by an express prohibition of positive international law. The attitude of some neutral states during the First World War with respect to the air flights over their land territories is a good example.79 If the law accepts two ways of behaviour and a given state chooses the one that is more detrimental to the interests of another state, the latter can express its disapproval. The only question is whether one should call it a protest or not. What, however, if a given state itself calls it a protest? It would not be serious to argue with the author-state of a declaration it calls a protest whether or not it made a real protest. In addition, the very statement that a ‘state has no right to protest in such and such situation’ is hardly understandable. Can it be said that such a protest is an international wrongful act? Obviously the answer is no. In consequence, while the very statement ‘a state can protest only in defence of its own rights’ my seem on its face to be true, in fact it is rather an apparent truth than an actual one. One can wonder whether the situation is analogical to human rights. As individuals have freedom of speech, it seems worthwhile to consider an equivalent right on the part of states. This would mean the possibility of making protests in any cases in which a given state deems it useful. Such a proposal may seem strange from the mouth of a lawyer. Allowing protests with respect to situations which are by definition legal may seem like a kind of heresy and invitation to chaos in the field of international relations. Are we claiming that the usa can make a protest against the fact that the uk holds London and France keeps Paris within its borders? Clearly such a protest belongs to the sphere of legal fiction. These however are just extreme examples of the existence of the rule under consideration – if any protest could be made, then the above-suggested ones could be made as well. There is presumably no need to stress the obvious fact that the practice does not support such a general rule. There is no doubt that there is a borderline between acceptable and unacceptable protests. Staying with the analogy to freedom of expression one can say that trespassing that freedom could give rise to criminal and/or civil liability. The only question is whether that border must lie exactly at the scope of the precise rights of the author-state. In my opinion, such a border would be too narrow. If one would like to justify a more realistic and acceptable border, one should refer to several elements. One of them is clearly the right of every state 79

W. Góralczyk, op. cit., p. 247.

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to dignity. The second is the prohibition of intervention into the domestic affairs of another state. On the other hand, the progressive development of international law would be impossible if one adhered very precisely to the set of obligations binding on a given date. So before 1899 any protest against mistreatment of prisoners of war would be illegitimate, and before 1948 any protest against genocide would be illegitimate (as such80) as well. Taking all these elements into consideration one can adopt a wide (although not unlimited) margin of discretion for the author-state as regards the necessity of making protest. A related topic is connected with an attempt to establish whose rights can be protected by protest. E. Brüel – the author of one of the first articles devoted to protest – adopts the rule that a state can protest only against violations of its own rights.81 However he invokes the view of Fauchille, according to whom in cases of violations of neutrality protest may be made by any other neutral state.82 One can wonder however if the relationship rule–exception is really in place. It can rather be said that either there is no general rule, or that if one can be established the number of exceptions is quite large. Several elements speak in favour of the lack of such a rule. The first was already mentioned. If protest may be made in order to protect interests, all the more it could be made to defend the rights of third states. All the same it is the author-state which decides whether it has interests to be defended. The same could be said if one accepts the thesis of J.C. McKenna, according to whom protest may be directed against violations of international morality. At the same time, violations of the rights of a third state (especially a weaker one) may be presumed to be against international morality. However, preference should be given to the affected state to decide unless important reasons indicate that it can be in danger for the very encouraging others to protest. The majority of authors however speak in favour of the relationship ruleexception in this field. E. Suy83 approves three exceptions, i.e. situations in which a state may protest against violations of the rights of another state: – protest made by an international organization against violations of the rights of its members, – protest made by another party to an international agreement in the case of violation of a right protected by a treaty,

80 81 82 83

That is exactly against genocide and not merely mistreatment of civilians. E. Brüel, op. cit., p. 76. E. Brüel, op. cit., p. 76. E. Suy, op. cit., na pp. 56–57.

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– protest made in connection with overt violations of the rights of all states and general principles of international law (une violation flagrante des droits de tous les Etats). As regards the last element, one can wonder whether it relates to rights which are attributed to every single state on an individual basis (such as the right to dignity) or obligations erga omnes. With respect to the latter one can also wonder whether the protesting state is defending its own rights or the rights of the directly affected state. O. Kimminich and S. Hobe are also of the opinion that a party to a multilateral agreement may protest in cases of violations of the rights of another party, and the same applies to violations of general law, even if the author state is not directly affected.84 The authors deny however the possibility of third states making protests with respect to violations of bilateral treaties.85 A broad approach was adopted in the ilc Articles on State Responsibility. Article 42 deals with the invocation of responsibility by an injured State. According to it: A State is entitled as an injured State to invoke the responsibility of another State if the obligation breached is owed to: (a) that State individually; or (b) a group of States including that State, or the international community as a whole, and the breach of the obligation: (i) specially affects that State; or (ii) is of such a character as to radically change the position of all the other States to which the obligation is owed with respect to the further performance of the obligation. Article 48 provides for the invocation of responsibility by a State other than an injured State. It provides that: 1.

Any State other than an injured State is entitled to invoke the responsibility of another State in accordance with paragraph 2 if: (a) the obligation breached is owed to a group of States including that State, and is established for the protection of a collective interest of the group; or (b) the obligation breached is owed to the international community as a whole.

84 85

O. Kimminich, S. Hobe, op. cit., p. 197. O. Kimminich, S. Hobe, op. cit., p. 198.

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Any State entitled to invoke responsibility under paragraph 1 may claim from the responsible State: (a) cessation of the internationally wrongful act, and assurances and guarantees of non-repetition in accordance with Article 30; and (b) performance of the obligation of reparation in accordance with the preceding articles, in the interest of the injured State or of the beneficiaries of the obligation breached.

Though the Articles do not use the term protest, in fact the principle a maiori ad minus is applicable. If a state can invoke responsibility all the more it can make a protest. There are no grounds not to treat such an invocation as a form of protest. 16.8

Legal Effects of Protest

16.8.1 Legal Significance of Protest One should invoke with approval the argument of E. Suy that the legal effects of protest should be at the centre of its definition.86 In fact however, the abovepresented definitions of protest concentrated rather on the object and goal of that act. Having said that, they are nevertheless interrelated. A. Cassesse in fact identifies two elements, namely the purpose and the legal effect.87 Though in my opinion they should be rather distinguished, or at least their interrelationship should be analysed very carefully, it seems useful to present several doctrinal opinions referring to them. So for example L. Oppenheim writes that ‘a protest serves the purpose of preservation of rights, or of making it known that the protesting State does not acquiesce in, and does not recognize, certain acts.’88 This element is present in the great majority of doctrinal analyses of protest. It is usually referred to in the very definition of protest. The differences between several authors may be situated in the field of linguistics or semantics. They reflect naturally the above-mentioned subtle differences among different definitions. So for example D. Anzilotti writes that protest preserves the possibility to deny the legitimacy of a given state of affairs, behaviour or claim; these effects

86 87 88

E. Suy, op. cit., p. 49. A. Cassesse, op. cit., p. 184. L. Oppenheim 3, vol. i, p. 650. Identically: R. Jennings, A. Watts, op. cit., pp. 1193–1194.

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would disappear in the case of recognition.89 For W. Levi the main aim of protest is to prevent the interpretation of a passive behaviour of a given state as tacit agreement or acquiescence.90 A. Cassesse writes that the purpose and the legal effect of protest is ‘to show that the protesting state does not recognize, accept or acquiesce in the act or action, or preserves the right to challenge that act or action.’91 The reference to ‘preventing’ or ‘excluding’ is a common element of many doctrinal reconstructions. The differences (or perhaps apparent differences) have to do with what is prevented or excluded. So for example R. Jennings and A. Watts write in this context on the prevention or exclusion of renunciation of rights and acquiescence in the act complained of;92 W. Góralczyk on tacit recognition or waiver;93 V. -D. Degan on acquiescence, opposability of a given situation and its legal effects;94 D. Ruzié on consolidation of a given situation and acquiescence;95 G. Dahm on recognition, waiver, as well as acquisitive or extinctive prescription.96 The element of extinctive prescription did not escape the attention of A.-Ch. Kiss as well.97 The other side of the same coin is the preservation of the rights of the protesting state. So for example the special rapporteur in his fourth report stresses that ‘[t]he legal effect of the protest is that the contested state of affairs is no longer available against the protesting State, which can continue to enforce its own rights.’98 This element is stressed by some other writers as well.99 It is worthwhile to look at how the topic was approached in two leading monographs of unilateral acts of states. F. Pfluger describes the significance of protest by referring to a few arguments. The first one says that international law does not recognize the institution of acquisitive prescription or extinctive prescription; the second one

89 90 91 92 93 94 95 96 97 98 99

D. Anzilotti, op. cit., p. 349. W. Levi, op. cit., p. 200. A. Cassesse, op. cit., p. 184. R. Jennings, A. Watts, op. cit., p. 1194. W. Góralczyk, op. cit., p. 170. V. -D. Degan, op. cit., p. 257. D. Ruzié, op. cit., p. 50. G. Dahm, op. cit., p. 769. A. -Ch. Kiss, op. cit., p. 329. 4. report, p. 21, par. 94. A. -Ch. Kiss, Les actes unilatéraux dans la pratique française du droit international, rgdip, 1961, p. 328.

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refers to the existence in international law of recognition and waiver.100 F. Pfluger writes that: Had international law not known any institution which brings about the legalization of a situation which persists for a long time and is not put into doubt, protest would have no role or would have a very modest role. In that case the breach of law would remain a breach for years without necessity of any protest, an illegal situation would remain illegal despite the lack of protest, a non- executed right would remain in force despite the fact of it being neglected for hundreds of years, and invalid title would all the time remain invalid.101 The question of the presence or absence of extinctive prescription in international law has less importance and does not have to be resolved. It suffices to say that the same events and legal effects could be described by reference to acquisitive prescription or extinctive prescription on the one hand, and recognition and waiver on the other. Protest is important in both of those two competing descriptions. E. Suy associates the very essence of protest (essence même de protestation) with the question whether the lack of reaction (silence) is a consent, or not.102 Suy cites in this context three competing Latin rules concerning the legal effects of silence. They are as follows: qui tacet consentire videtur, qui tacet neque negat neque utique fatetur and qui tacet negat.103 It is clear per se that they cannot be applied at the same time, as they are mutually exclusive. Hence in pertinent situations a choice must be made among them. In a concrete case such a choice will be made by a court sitting in the case, but of course it is impossible in the real world for a court to decide the legal effect of every lack of reaction (silence). Hence one may ask if a more general conclusion, or at least suggestion, is possible. Suy is of the opinion that the first of the rules (qui tacet consentire videtur) is not always applicable (valeur absolue), but in the majority of cases better reflects the legal situation of a subject which remains passive (keeps silent).104 E. Brüel also underscores that the principle ‘he who remains silent gives his consent’ has greater importance in international law than in the domestic law.105 In such 100 101 102 103 104 105

F. Pfluger, op. cit., p. 195. F. Pfluger, op. cit., p. 195. E. Suy, op. cit., pp. 61–68. E. Suy, op. cit., p. 61. E. Suy, op. cit., p. 61. E. Brüel, op. cit., p. 75.

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situations lack of protest may lead to the opposability of a new situation.106 The very reference to ‘such situations’ suggests quite clearly that lack of protest does not have that effect in every single case. V. -D. Degan also refers to two main contexts in which protest is of importance. The first one has to do with historical titles, the second – with the formation of new customary norms.’107 These elements are referred to by W. Czapliński and A. Wyrozumska as well. They cite in this context protests against the acquisition of territory, delimitation of maritime zones, naturalization by one state of a national of the author-state of a protest, and so on.108 R. Bierzanek and J. Symonides also examine this phenomenon from the perspective of customary norms of public international law.109 16.8.2 The Negative Nature of Protest What is visible from the above is the negative character of protest. So for example G. Dahm underlines that protest is not a law-creating act (rechtserzeugende) but has a negative, contesting effect, and it is this effect that influences the law (rechtsgestaltender Art).110 As has been said, protest could be associated with lack of something or the opposition to something. One can see a well-established tendency to associate protest with lack (denial) of recognition. This was visible even at the moment of the formation of the definition. Already in 1929 D. Anzilotti defined protest as an act opposite to recognition,111 and this notion has been repeated by other authors.112 E. Vanselow on the other hand rightly points out that protest is an act opposite not only to recognition but to waiver as well.113 Hence one can wonder seriously whether such a negative effect would be sufficient to make protest a legal transaction. In fact this aspect of protest did not escape the attention of the doctrine. G. Venturini listed protests in a group of ‘declarations other than expressions of will’ (déclarations autres que des manifestations de volonté).114 Their common characteristic was, according to 106 107 108 109 110 111 112

D. Ruzié, op. cit., p. 50. V. -D. Degan, op. cit., pp. 257–258. W. Czapliński, A. Wyrozumska, op. cit., 1999, p. 92. R. Bierzanek, J. Symonides, op. cit., p. 101. G. Dahm, op. cit., p. 769. D. Anzilotti, op. cit., p. 349. W. Góralczyk, op. cit., p. 170; D. Ruzié, op. cit., p. 50; V. -D. Degan, op. cit., p. 257, P. -M. Dupuy, Droit international public, Paris, 1993, p. 325, A. Verdross, B. Simma, Universelles Völkerrecht. Theorie und Praxis, Berlin 1984, p. 427; J. -M. Arbour, Droit international public, Cowansville (Québec), 1997, p. 127, G. Dahm, op. cit., p. 769, G. Venturini, op. cit., p. 433. 113 E. Vanselow, op. cit., p. 42. 114 G. Venturini, op. cit., pp. 433–435.

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Venturini, the lack of auto-limitation of the author-state.115 However, this way of understanding an expression of will is very specific and could be hardly expected to be widely accepted. One cannot assume that an expression of will must always lead to a limitation of the rights of the author-state. It would seem impossible to deny the presence of will on the part of a protesting state. What is sometimes stressed are the inherent limitations of protest. For example, R. Jennings and A. Watts underline that ‘protest (…) does not nullify the act complained of.’116 J.C. McKenna points out both the legal and political character of protest.117 With reference to the legal aspect he writes that: As a legal instrument protest may have one of two purposes. It may be a justificatory piece which recites the recipient state’s offences and the protesting state’s efforts to obtain satisfaction through negotiation. In the failure of those efforts, the complainant in effect puts its case before the world to legitimize such measures of self-help as it may undertake. Or protest may be a kind of demurrer. It forestalls appeal to the dictum that silence means consent or to the argument that an act or policy to which no objection is made acquires legal standing by this very fact.118 Such political statements can be easily translated into the language of legal theory. G. Venturini expressed the opinion that protest is not a legal transaction (acte juridique) and is deprived of legal effect in the proper meaning of the term.119 Interestingly enough Venturini refers to protest and notification at the same time. He writes that: [G]enetically they belong to the sphere of free activities of states and do not affect the rights of third states; they are deprived of effects other than those which are natural consequences of them such as the knowledge on the part of the addressee of the views presented in protest or of the object of notification.120 G. Biscottini also denies that protest has the character of a legal transaction.121 115 116 117 118 119 120 121

G. Venturini, op. cit., p. 428. R. Jennings, A. Watts, op. cit., p. 1194. J.C. McKenna, op. cit., pp. 17–18. J.C. McKenna, op. cit., pp. 17–18. G. Venturini, op. cit., p. 434. G. Venturini, op. cit., p. 392. G. Biscottini, Contributo alla teoria degli atti unilaterali nel diritto internazionale, Milano, 1951, p. 53.

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Already in the second chapter of this work I referred to the view of J. Charpentier in this respect. Charpentier claims that presenting protest as an act opposite to (l’inverse) recognition is a mistaken approach. In his opinion protest should be rather presented as an act opposable to notification, as ‘it does not produce effects itself, it only allows to know officially the lack of acceptance of a claim; its expected effect – the preservation of the right of the author-state, depends on comparison of the two rights, that is the rights of the author state of a protest and its addressee.’122 One should keep in mind however that J. Charpentier uses a relatively narrow definition of a legal transaction. It covers only acts creating, modifying or extinguishing legal obligations. As has been established, that definition is not accepted in the present book. What’s more, it’s difficult to agree with J. Charpentier as regards the relationship between protest and recognition. Maybe the rationale of his argument is that not every protest has to relate to law, so in consequence not every protest must be seen as an act opposite to recognition. But in fact at least several protests are connected with both legal rights and obligations, and if somebody defines protest by referring to the denial of recognition resulting from it, no mistake is made. In consequence, if recognition is as a rule (though not necessarily always) a legal transaction, at least some examples of protest are at least connected with public international law. 16.8.3 Protest as an Act Not being a Legal Transaction by Definition In the light of the preceding remarks, one cannot claim that no protest has any legal effects. On the other hand, an attempt to attribute legal effects to every single example of protest would also be a mistake. In fact it would amount to reasoning pars pro toto. Even E. Suy notes that ‘the narrowing of the effects of protest in public international law only to the preservation of the rights of the author of the protest would amount to the creation of a rule which, when confronted with the reality, would turn out to be too stiff and absolute.’123 In fact however, it may turn out that the search for any legal effect of each and every protest is also an attempt to create such a rule which is not confirmed by the reality. J.C. McKenna writes that ‘[t]he frequency with which protest is used suggests that those who use it think that it achieves something.’124 122 J. Charpentier, Engagements unilatéraux et des engagements conventionnels: différences et convergences, in: J. Makarczyk (ed.), Theory of International Law at the Threshold of the 21st Century. Essays in honour of Krzysztof Skubiszewski, the Hague, London, Boston, 1996, p. 368. 123 E. Suy, op. cit., p. 71. 124 J.C. McKenna, op. cit., p. 2.

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It may however be just the other way round. A measure used so frequently may turn out not to be, by definition, a legal act. It could be comparable to ordinary behaviours of individuals which may sometimes lead to legal effects, but cannot be said to do so as a rule. In that situation protest would be comparable to declarations and behaviours of individuals expressing their dissatisfaction. In this context one can wonder whether the legal effects of protests are a rule or an exception. For example, does a state protesting against the falsification of elections in another state wish to avoid the creation of a customary norm allowing for falsification, or maybe the creation of a historical title? In this case one can say that the protesting state is defending the norm concerning democracy and human rights. Is it really so however that norms are in the mind of a state protesting against the incorrect presentation of a statement of its minister of foreign affairs in the media controlled by another state? And what if a state protests in a situation in which the candidate of that state is not accepted in an international organization? Based on what has been said, one must conclude that the presentation of a protest as a legal transaction and listing it together with promise and waiver is a mistake. It may happen that some protests have such effects, but the lack of automatism characteristic for legal transactions is beyond any doubt. This lack of automatism in terms of legal effects can be seen even in protests which one would be ready, prima facie, to treat as legal transactions. O. Kimminich and S. Hobe distinguish between the effects and aim of a protest. They underline that effects may emerge only when the protesting state really has the rights which it purports to defend.125 This element is however certain and it would not by itself be sufficient to deny the character of a legal transaction to protests. In a somewhat similar manner, V. -D. Degan attaches legal effects only to an ‘effective protest’.126 While having regard to the problems of translation and the possibility to choose different words for the same phenomenon, still it must be concluded that such reasoning is essentially a vicious circle, i.e. that a protest has effects when it is effective, hence an effective protest is one which has effects. What is more pertinent from the present perspective are the doctrinal discussions concerning isolated protest. L. Oppenheim wrote early on that ‘[i]n certain circumstances a simple protest on the part of a State, without further

125 O. Kimminich, S. Hobe, op. cit., p. 197. 126 V. -D. Degan, op. cit., p. 257.

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action, is not in itself sufficient to preserve the rights on behalf of which the protest was made.’127 P. -M. Dupuy writes that protest prevents the opposability of a certain fact vis-à-vis the author-state of a protest, provided that that protest is clear, express and constant (prompte, claire et constante).128 K. Skubiszewski also underlines that ‘mere non-recognition does not automatically amount to protest. For protest to have its effects, it must not only be explicit; it should also be maintained and it should manifest itself, whenever possible, in an active attitude.’129 A. Verdross and B. Simma confirm that a formal protest is not sufficient to preserve claims, but that ‘depending on the circumstances it must be presented with emphasis and repeated.’130 One can get the impression that legal effects are connected not necessarily with an act of protest, but with the fact of protesting for a longer or shorter time. In this context K. Skubiszewski writes that ‘a protest which remains isolated and is not repeated in view of an existing situation may lose its original effect.’131 One can ask however whether such a protest really has some effect to lose. It seems that the description of K. Skubiszewski reflects very well the essence of the act of protest. It is not so that an initial protest has no effect, while effects emerge after the third, fourth or 58th protest. It is rather that if a protest was initially made, but not repeated despite the fact that a new situation contrary to law persists, one must take into account the possibility that a court deciding the case might ignore the very fact of the initial protest and find subsequent acquiescence. In consequence, it must be concluded that protest is not a legal transaction like waiver or promise. Leaving aside the different aims and different expected legal effects, it is difficult not to see the automatic character of waiver or promise and the lack of such character on the part of protest. One can say that the former are effective by definition (while exceptions may happen); while protest by definition may be either effective or ineffective. I can expect several counter-arguments. Any transaction has to fulfil certain conditions in order to be effective. So for example a promise must, firstly, be in 127 Oppenheim 3, vol. i, p. 651. Oppenheim cites as example the withdrawal of Russia from Art. 59 of the 1878 Berlin Treaty granting Batumi the status of a free port, ibidem, footnote 2; see also: Oppenheim 4, vol. i, p. 698; Oppenheim 8, vol. i, p. 875. 128 P. -M. Dupuy, op. cit., p. 325. 129 K. Skubiszewski, op. cit., p. 227. 130 A. Verdross, B. Simma, op. cit., p. 428. 131 K. Skubiszewski, op. cit., p. 228.

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conformity with peremptory norms of public international law ( juris cogentis). Secondly, a promise which limits itself to repeating previous obligations does not in fact add anything to such obligations (which does not change the fact that because of intertemporal rules it may have some importance in the case of the consent to the jurisdiction of a court or arbitrator). Thirdly, a formal promise may be so devoid of content that it would be impossible to call it an international transaction. Similarly, the recognition of states, governments and so on is connected with certain requirements. Hence it would be difficult to say that any transaction which as such is treated as legal must in concreto bring about an effect which may be inserted into the definition of that transaction. Since this is the case with recognition or promise, why should such strict requirements be applied with respect to protest? In fact the necessity of repeating a protest (at least in some situations) seems to situate its effectiveness in a much worse position. One can even wonder whether protest should not be called an act which is inherently not selfsufficient. However, the formulation of such a general rule is impossible. It is rather an attempt to generalize the fact that the author state of an isolated protest has a slim chance of winning the case in court. The repetition of protest and avoidance of all acts which could be qualified as recognition or acquiescence gives a greater chance (but no guarantee) of winning the case. In concreto however one protest may be effective, while ten protests may be ineffective. In this respect there are considerable similarities to the creation of a new customary norm. In this context one has to ask about the very legal nature of a protest. If one compares protest with a treaty, the distinct legal character of these two phenomena is visible. Can one really however expect so much from any legal transaction? If one insists that a legal transaction is a treaty and phenomena similar to a treaty, almost nothing would survive such a test. It could be said that a treaty is a notion which could be justified and explained only in the context of law. In the case of disappearance of the law the term ‘treaty’ would be devoid of any meaning. Yet even if there were no international law, states would probably still express their satisfaction or dissatisfaction in various ways. The expressions of satisfaction could be called recognition, and expressions of dissatisfaction protest. In fact even if there were no international law, common declarations of states would probably emerge sooner or later. This is why the above-mentioned specificity of protest has its internal limitations. One could call protests as acts or behaviours to a high extent intuitive and independent of public international law. The very comparison of protests to the freedom of speech of individuals prejudges, in a negative way, any attempt to qualify any protest as a legal act. This means that protests are not

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as a rule acts of states giving rise to legal effects, but in concreto they may be so qualified. It must be concluded that protest does not fulfil the requirements to be classified as a legal transaction, defined as acte juridique. G. Venturini rightly notes that protest does not have legal effects in the proper meaning of the term. It has only some legal importance, which may evolve depending on the situation.132 As has been said however, the understanding of a unilateral act of a state in international law adopted in this work is much broader. The very protection of the author-state’s own rights and the influence of its protest on the law would be sufficient to treat protest as such an act. In this sense then some protests are evidently unilateral legal acts of states in international law. The main problem is that it is impossible to determine beforehand the ones which are and which are not. Clearly the very reference to a right deemed to be protected cannot be a criterion of classification. In fact the character of protest as a unilateral act of a state in international law can only be confirmed or denied post factum. 16.9

Unilateral Nature of Protest

The issue of the unilateral character of protest has not given rise to much discussion so far. Usually protests are made by a means of a declaration of one state, and in such cases their unilateral nature would seem beyond any doubt. However, there may be many cases in which such doubts persist. As has been already said, no unilateral act sensu stricto is in place in a situation in which there is a duty to protest, or more broadly – a duty to contest a given situation is provided for in a treaty, with a treaty being an act which is not unilateral by definition. Such a protest, if made individually by one state, would however deserve the notion of a unilateral act sensu largo. Protests made jointly by several states constitute an even bigger challenge in terms of their classification. It’s also possible that a protest will be formulated in a treaty concluded by two or more states without the participation of the addressee of the protest. In the light of what was said about implicit protest, one cannot exclude a situation in which the very fact of conclusion of a given treaty will be qualified as protest, even if it does not contain any declaration evaluating the behaviour of another state. It is easy to imagine a situation in which a superpower presses firms from other states to provide it with 132 G. Venturini, op. cit., p. 434.

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information and other states make a treaty which qualifies the provision of such data as a crime. How does one qualify such declarations? In my opinion, it is difficult to speak about unilateral acts when a treaty is in place. That is why I am not ready to see a unilateral act in the two examples listed above. A similar qualification should apply in my opinion with respect to protests made by an international organization in the name of its members. An example of this would be the protest made on 10 March 1995 by the European Community and its member states with respect to Canada in connection with the arrest by the latter of a Spanish ship on international waters.133 What remains to be determined is the legal nature of joint or common protest declarations. The problem of collective acts emerged already in Chapter 2 at the stage of searching for a definition of a unilateral act. At that stage their possibility was not excluded, taking into account the possibility of declarations which, although made in common, do not resemble treaties. Common protest declarations are an example of such acts which are not similar to treaties. That is why I am ready to see in them (or at least some of them) unilateral acts of states in international law. A certain risk is connected with this aspect of the topic. It may happen that some states are so weak that they can afford only a common protest. It may also happen that such a common protest is negotiated as hard as a treaty or, from the perspective of some states, it is as costly as a treaty. In such cases contractual elements dominate and such a protest should not be described as a unilateral act. 16.10

Withdrawal of Protest

The topic of withdrawal of a protest is rarely discussed in the doctrine. Rightly so, as it does not give rise to any doubts in fact. L. Oppenheim is one of a few authors who expressly confirms such a possibility.134 An example is the withdrawal by the uk of its protest connected with the customs tariff in Madagascar. It was imposed after the annexation of Madagascar by France. The British protest was withdrawn on the basis of a declaration concerning Siam, Madagascar and New Hybrids annexed to a treaty with France of 8 April 1904.135 A state

133 Cited on the basis of: Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, i.c.j. Reports 1998, p. 444. 134 Oppenheim 3, vol. i, p. 651. 135 Oppenheim 3, vol. i, p. 651, Footnote 1.

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withdrawing its protest must take into account the possibility of its action being treated as recognition or even waiver. A.-Ch. Kiss writes that the validity of a protest lasts until its waiver (renonciation). He allows for implying such a waiver in a situation in which a state concludes a treaty in a matter which was the object of a protest and does not make a reservation.136 One can seriously doubt whether the use of term ‘waiver’ is proper. As was said, protest is not by definition a legal transaction understood as ‘acte juridique’, so its discontinuation cannot be looked at as waiver. This does not mean that a waiver of rights cannot be established on the basis of all relevant facts, the withdrawal of protest being one of them. 16.11

Concluding Remarks

In conclusion it must be said that listing protest among unilateral legal acts of states in public international law was a mistake, while at the same time it is impossible to eliminate all protests from this list. Only those protests having legal effects could be so treated. In consequence protest turns out to be the ‘weakest link in the chain’ of the traditional presentation of the topic of unilateral acts of states. Taking this into consideration it seems futile to insert any special restrictive requirements as regards the definition of protest as well as its form (it being understood that the will of state to object a given situation must be sufficiently well demonstrated). 136 A. -Ch. Kiss, op. cit., p. 328.

Final Conclusions The set of basic questions of persons interested in public international law would probably be something like: ‘Are unilateral acts of states a source of international law?’ ‘Is there an agreed-upon list of types of unilateral acts of states in public international law?’ ‘What is the law on unilateral acts of states?’ In searching for answers to the above questions one may be disappointed with the answers given (or sometimes not given) in the present book. This is just one of the dichotomies faced when delving into the fascinating and complex topic referred to as ‘unilateral acts of states in public international law.’ It is namely the dichotomy between an author and his (or her) actual or potential readers. Two other dichotomies will be referred to later in this section. Having perhaps instigated some level of anxiety by my comments above, a few words of explanation are in order. First of all it must be emphasized that both the word “act” as well as the word “unilateral” are general in scope. In fact any state activity may be called an act. Even passive behaviour is qualified as an act in the field of state responsibility, so it is reasonable to expect something similar in the other fields of international law. Also the word “unilateral” is used with respect to such different phenomena as the use of force, embargo, domestic acts, pactum in favorem tertii, agreements giving rights only to one party, and many others. However, the understanding of the term “unilateral act of state in public international law” is not particularly closely related to the normal understanding of the words used in it. The doctrine of international law has tried to separate the notion of unilateral acts of states from the notion of international wrongful acts. That differentiation should be accepted, with the caveat that in some cases a wrongful act make take the form of a unilateral act. Other elements which one must take care to distinguish include: – distinguishing acts from the elements which are not acts; – distinguishing acts having legal effects from acts deprived of such effects; – distinguishing acts of international law from acts of internal law; – distinguishing unilateral acts from those ones which are not unilateral, or not truly unilateral. It also must be treated as an objective fact that the German, French and Italian legal doctrines introduced the notion of a ‘legal transaction’ (acte juridique, Rechtsgeschäft) as a term of art. It is said to embrace only those acts which bring about the results covered by the will of the acting state. This means that

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004274617_021

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some activities which are not contrary to international law are outside the scope of interest of the doctrine dealing with unilateral acts of states in public international law. This state of affairs reflects a widely shared view that the major types of unilateral acts of states in international law are: promise, recognition, renunciation (waiver) and protest. Leaving aside the typology of unilateral acts, the very definition cannot be accepted. In my opinion, acts not contrary to international law which bring about international effects must be assessed as to their unilateral or nonunilateral character. The decision on their qualification should be made based on careful analysis, not by the adoption of a very doubtful definition. I’m aware that some may perceive my attitude as a kind of vulgarization when compared to the imposing typologies of international legal events (Tatasachen, faits juridiques) such as the ones of G. Venturini or F. Pfluger. But the ilc’s experience in its attempt to codify international acts of states is the best warning against the adoption of a very strict definition of a legal act. It must be said that the Commission failed to resolve the issue of unilateral acts of states. Its Guiding Principles cover only a small fraction of the matters dealt with in the reports of the Special Rapporteur, and the reports covered only a part of the topic as well. One of the reasons for this was the mistaken idea of what an international unilateral act of state is. One can have the impression that the ilc (at least for some time) believed that the above-mentioned typology was correct, including the adoption of a narrow definition of unilateral acts of states. However, it is very difficult to prove that if a state performs a different act which leads to effects in the sphere of international law, these effects are not covered by the will of the state. If somebody wishes to argue that the results flow not from the will of the state but from the public international law, it is equally difficult to avoid the conclusion that the results of a promise or waiver are also regulated by public international law. That is why the definition adopted in the present work refers to ‘acts of states which bring about legal effects in public international law and which are unilateral.’ The unilateral character is excluded in a situation when a given act is an element of an international agreement, when it is provided for by such agreement and/or is impossible without it. It is important to be aware of the existence of acts which are not treaties but have a contractual character. Acts made by a single state but not being really unilateral (in the sense of not being autonomous) are sometimes called unilateral acts sensu largo. True unilateral acts are unilateral acts sensu stricto. I do not exclude the possibility of a state making a true unilateral act at the invitation of another state, although the decision as to the character of such an

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act is not easy and can be made only a casu ad casum. I also do not exclude the possibility of collective unilateral acts, but this concept should be denied if a contractual relationship could be established as the basis of the act. The fact that an act may be an act of both internal and international law is not by itself decisive. For every act, or type of act, it will need to be determined which component (internal or international) should be attributed decisive importance. For the above reasons I do not take it as granted that the list of unilateral acts comprises only promise, recognition, renunciation (waiver) and protest. Having said that, they may rightly be called classical acts, and the list has some important merits. It relates to acts which can be effected in all branches of international law. But their position in the doctrine of unilateral acts of states in public international law should remain an object of critical examination. As a result of this approach, my analysis went in two directions. The first was the search for new types of unilateral acts of states (i.e. types which are not ‘classical’). The second was an examination whether all classical acts are actually unilateral acts of states in public international law. In order to examine the first area, it is necessary to analyze different branches of international law. There is always the risk of omitting one or even several acts, but this cannot outweigh the merits of a systematic search. That’s why this book analyzes such branches of law as: the law of treaties, diplomatic and consular law, the law connected with the use of force, the law connected with territory, and the rules connected with individuals. The analysis turned out to be quite efficient with respect to the law of territory. In that field one should (in my opinion) qualify the following acts as unilateral acts of states in public international law: – – – – –

occupation of terra nullius, derelictio, symbolic occupation, notification on occupation (in some cases), establishment of maritime areas.

Also in the field of law related to the use of force several acts should be so qualified. In my opinion these relate to: – declaration of war (only such as are in conformity with international law); – the establishment of a maritime blockade (as well as its suspension and termination); – permission to enter (leave) a blockaded port; – declaration of neutrality;

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– de facto start of war activities (only such as are in conformity with international law). In my search in the field of diplomatic law I can speak of a little bit of surprising success. The surprise is due to the fact that many transactions, like the establishment of diplomatic relationships and the reception of the head of a mission, are by definition bilateral transactions (although it is difficult to call them ‘agreements’ in the normal meaning of the term). In that field, according to my analysis, the following acts fulfil the above-mentioned requirements of a unilateral act of state in public international law: – dismissal of the member of the mission by the sending state; – declaration of the receiving state that a member of the mission is persona non grata or not acceptable; – severance of diplomatic relations; – and in some cases, the nomination of a member of the mission not requiring the previous acceptance of the receiving state. The same list applies to equivalent acts connected with consular law. Much less success was achieved with respect to the rules on individuals. Some of the acts (such as the issuance of a visa or passport) are manifestly deprived of effects in international law, and extradition is a bilateral transaction. I expected that it would be possible to qualify acts of naturalization and of deprivation of nationality as unilateral acts. Their effect in the field of international law is clear, and they are equally clearly acts of states. However, in my opinion these acts are above all acts of domestic law. International law accepts them as they stand in domestic law, although they are not always opposable against other states. Such acts may change according to the procedures of national law. Their validity, or invalidity, is regulated by domestic law instruments. Hence in the end I excluded the possibility of putting them on the list of unilateral acts of states in public international law. More similarity to a unilateral act of state could be found in the following acts: – recognition of refugee status (denied the quality of a unilateral act of state in the meaning adopted here); – some cases of asylum (but very complicated conditions must be attached, as a rule asylum being an instrument of domestic law); Acts connected with treaties deserve special treatment and are further discussed below.

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Final Conclusions

In summary I think that it would be a great mistake to believe that only classical acts are unilateral acts of states in public international law. I should point out here that the above-presented list of non-classical acts is not presumed to be exhaustive. If I could think about a message of the present book it is not the message that my list is the gospel. It would be rather (a little bit in the gospel style) that if you seek for unilateral acts, you will find them. This message contains a caution: if you pretend to codify an open category, do you really know what you are doing? After having reviewed the complexities summarized above in the first two Parts of this book, the last two Parts of the book are devoted to the classical acts. In fact it turns out that only one of them is by definition a unilateral act, namely a unilateral promise. As regards unilateral promise I defend the thesis that states can make such acts and they give rise to international obligations. The conditions of such promises were identified in the famous Nuclear Tests judgment as (1) a public declaration; and (2) the intention (will) to make a binding statement. This last condition makes it difficult to establish a real promise unless the state-author or an international court makes such an identification. One can deplore the fact that during the work of the ilc on this topic the states themselves failed, when asked, to point out their binding promises and help the special rapporteur with his task. One must also confess that there is no general principle with respect to the revocation of a promise. Those involved in the doctrine may feel a sense of irritation or embarrassment by the excessive dependence of the views on promise upon the case-law of the icj. This may give rise to another dichotomy. One author may be ready to confess the presence of a customary norm on promises in order to avoid the humiliating fact that the teaching on such an important source of obligations as promises is to such a great extent dependent on the icj. Another author may look at such position as hypocrisy. It may be the second author who would be ready to say that promises are binding because the icj has said that they should be respected. This is clearly a challenge to the doctrine dealing with sources of public international law. The belief that the case-law is neutral with respect to legal norms is an idealistic one. This truth is seldom exemplified in such a brutal fashion as in this case. In fact however, the respect for a word given, i.e. the idea that promises should be kept, is the kind of ideal very easily transformable into a legal norm. Today such a norm is no longer in doubt. One can see that the dispute was somehow shifted from the level of a fundamental (if not philosophical) dilemma (a promise is binding ex definitione vs. no promise is binding ex definitione) to the field of individual declarations (a unilateral promise gives rise to

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obligations of international law, but who can guarantee that a statement made by the representative of state X on day Y is really such a promise of state X?). This situation may give rise to doubts. It resembles lip service to the Nuclear Tests case as regards the principle, while preserving deep despise and distrust in unilateral promises. As regards the other acts, it must be said that both recognition and renunciation can be made either by a means of a unilateral act or a treaty. As regards recognition the matter is more complicated. One cannot be sure that it is always an international act giving rise to obligations. I have tried to show that only some examples of acts of recognition are legal acts, and also that owing to the close relationship between them, the same can be said about some examples of waiver (renunciation), so that in the end it must be said that only some examples of recognition and renunciation are legal acts, and furthermore that only some examples of the legal acts of recognition or renunciation are unilateral legal acts. As regards protest we encounter the trait of a lack of automatism with respect to legal effects. It can be said that some protests are effective but some are not effective. Only the first category could be characterized as legal acts. In the light of these conclusions there is no wonder that the doctrine of unilateral acts has played such a modest role in the analysis of recognition and protest (works on renunciation/waiver being quite rare). What’s more, it is visible that the more developed a given transaction is, the more difficult it is to insert it into the straightjacket of the choice: unilateral vs. non-unilateral. It is by no means a coincidence that such an effect takes place with respect to recognition of states and governments and waiver of immunities (diplomatic, sovereign immunity of a state and mutatis mutandis others). In fact a certain effect is in place (i.e. of a new state/government being recognized, or a given type of immunity no longer applicable) as a consequence of such and such activities. There is no problem if such an activity has the clear character of either a treaty or of a unilateral declaration. But what if it takes form of some other behaviour(s) of states, or even individuals? One can get the feeling that the discussion on their unilateral or non-unilateral character is more of a burden than a benefit for such areas. In fact most monographs on recognition almost completely avoid the topic of unilateral acts. There are two exceptions here. The first has to do with the obvious fact that recognition may take place by means of a unilateral declaration, while the other exception has to do with very sublime and theoretical concepts dealing more with the philosophy of law than law as such. Their value for the doctrine of recognition nowadays is of very limited value. It is visible that the classical catalogue of unilateral acts does a disservice, and in a dual fashion. Firstly it causes, if not somehow forces, some authors to

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overlook acts other than classical. Secondly it causes them to overlook the diversity of classical acts and the fact that some of them as such, or at least in some cases, do not fulfil the requirements for being classified as legal transactions. In conclusion it must be said that there are many unilateral acts of states. Some of them are classical (but not every example of a ‘classic act’ is a real example of a unilateral act of state), and some of them are not classical. If one looks at the above-presented list one may be disappointed with the dissimilarity of these acts. One could even be upset with the fact that the same transaction may sometimes be and sometimes not be a unilateral act. Taking all those elements into consideration one should not be surprised with the failure of the ilc to codify the topic. There are too many acts and too few similarities between them to make such a codification possible. Even the grounds for invalidity of such acts are different, not even to mention their legal effects, or organs competent to effect them. I am aware of the great esteem of the doctrine for the notion of sources of law. In fact however this element was deliberately put aside in the present analysis. If it is the legitimate right of a reader to expect answers to fundamental questions, I feel obliged to say that it is impossible to think about all unilateral acts as sources of law. On the other hand I fully agree with Eckart, who advocates that promises are such sources. If so, however, why deny that notion to recognition or waiver? Or why not recognize as a source of international law the establishment of a blockade or declaring someone a persona non grata? I am aware that the these questions and this picture may be quite unpleasant to the doctrine. This says more about the scholarship on sources of law than on unilateral acts of states. From the latter perspective (which is also mine), it suffices to say that many unilateral acts are sources of obligations, without prejudging the nominal question of sources of unilateral law. The most difficult problem was to establish whether there is at least one truly unilateral act in the field of the law of treaties. It is clearly excluded with respect to acts giving consent to agreements. However, even the acts revealing lack of consent, like reservation or objection, are so closely dependent not only on the existence of the agreement but even participation in it, that it is actually impossible to qualify any act connected with the law of treaties as a truly unilateral act. Here one can situate the last and perhaps the most interesting dichotomy. It exists between authors who are ready to get rid of the requirement of autonomy, and those who defend it. I belong to the second group. All the same I  recognize the merits in the attitude of the first group. Their idea is that many acts are effected by states individually in the field of treaty law and in connection

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with treaties. This idea as such is correct. It is all the more important inasmuch as if some new codification efforts are undertaken, the very reference to ‘unilateral acts’ would apply to non-autonomous unilateral acts. However I must offer a few words in defence of the criterion of autonomy. First of all it does a very good service for establishing the actual source of a given obligation. If somebody would like to argue that a promise as a unilateral act is binding because a unilateral declaration on the acceptance of compulsory jurisdiction of the icj is binding, a cardinal mistake is in place. The source of the binding force of the latter is a multilateral treaty, and it would be absurd to see a set of unilateral acts in a treaty. It must be said here that the discussion on unilateral acts has at least two fundamental aims. One has to do with the search for norms. The second is rather descriptive in character, and the scholarship on autonomy is situated rather within the second paradigm. Sometimes the contours of this paradigms are hardly reconcilable. This is especially so if a given author makes an additional assumption. I have the feeling that this additional assumption is that if a given act (action) is seemingly not a treaty and is denied the character of a unilateral act, it finds itself in a legal vacuum. One can even hear talk of ‘the law of unilateral acts’. In fact unilateral acts are subject to legal norms, but one can hardly call them ‘the law of unilateral acts’. In particular it would be a cardinal mistake to say that a treaty is binding because of the norm pacta sunt servanda and a true unilateral promise is binding in the light of the Nuclear Tests case. In fact one can say that a treaty is binding and an act made by one state may be also binding. The latter act may be truly unilateral or may contain some element of interaction with other states. The question of what to call this act is just a matter of a label. However disappointing this may be for myths, I do not see myself as a mysterious writer writing on the mysterious branch of law called the ‘law of unilateral acts’. In fact international lawyers should see their role as reflecting the truth rather than trying to impose their ideas upon the realities of life. It was this search for the truth that was the main aim of the present book, written over such a long time at the cost of many sacrifices.

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Case-law of the ICJ and the PCIJ



Judgments and Orders

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Phosphates in Morocco, PCIJ Publications, Series A/B, No. 74. Fisheries case, I.C.J. Reports 1951, p. 116. Ambatielos case (jurisdiction), I.C.J. Reports 1952, p. 28. Anglo-Iranian Oil Company, Preliminary Objection, Judgment, I.C.J. Reports 1952, p. 93. Case concerning rights of nationals of the United States of America in Marocco, Judgment of August 27th, 1952: I.C.J. Reports 1952, p. 176. Ambatielos case (merits: obligation to arbitrate), I.C.J. Reports 1953, p. 10. Nottebohm case (Preliminary Objection), Judgment of November 18th, 1953: I.C.J. Reports 1953, p. 111. Case of monetary gold removed from Rome in 1943 (Preliminary Question), I.C.J. Reports 1954, p. 19. Nottebohm case; ICJ Reports 1955, p. 4. Certain Norwegian Loans, Judgment, I.C.J. Reports, 1957, p. 9. Case concerning Right of Passage over Indian Territory (Merits), ICJ Reports 1960, p. 6. Case concerning the Temple of Preah Vihear (Cambodia v. Thailand), Merits, Judgment, I.C.J. Reports 1962, p. 6. South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, I.C.J. Reports 1962, p. 319. Case concerning the Northern Cameroons (Cameroon v. United Kingdom), Preliminary Objections, I.C.J. Reports 1963, p. 15. South West Africa, Second Phase, Judgment, I.C.J. Reports 1966, p. 6. North Sea Continental Shelf, Judgment, I.C.J. Reports 1969, p. 3. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports, 1971, p. 16. Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Jurisdiction of the Court, Judgment, I.C.J. Reports 1973, p. 49. Fisheries Jurisdiction (United Kingdom of Great Britain and Northern Ireland v. Iceland), Merits, Judgment, I.C.J. Reports 1974, p. 3. Nuclear Tests (Australia v. France), Judgment of 20 December 1974, I.C.J. Reports 1974, p. 253. Aegean Sea Continental Shelf, Judgment, I.C.J. Reports 1978, p. 3. Delimitation of maritime boundary in the Gulf of Maine Area, Judgment, I.C.J. Reports, 1984, p. 246. Case concerning the Frontier Dispute (Burkina Faso/Republic of Mali), ICJ Reports 1986, p. 554. Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, Judgment, I.C.J. Reports, 1988, p. 69.

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Territorial Dispute (Libian Arab Jamahiriya/Chad), Judgment, I.C.J. Reports, 1994, p. 6. Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1994, p. 112. Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports 1998, p. 432. Kasikili/Sedudu Island (Botswana/Namibia), Judgment, I.C.J. Reports, 1999, p. 1045.



Advisory Opinions

Nationality Decrees Issued in Tunis and Morocco, PCIJ Publications, Series B, no. 4. Certain questions relating to settlers of German origin in the territory ceded by Germany to Poland, PCIJ Publications, Series B, No. 6. Acquisition of Polish nationality, PCIJ Publications, Series B, No. 7. Question of Jaworzina (Polish-Czechoslovakian frontier), PCIJ Publications, Series B, No. 8. Exchange of Greek and Turkish Populations (Lausanne Convention VI), January 30th, 1923, article 2, PCIJ Publications, Series B, No. 10. Polish Postal Service in Danzig, PCIJ Publications, Series B, No. 11. Article 3, Paragraph 2, of the Treaty of Lausanne (Frontier between Turkey and Iraq), PCIJ Publications, Series B, No. 12. Jurisdiction of the courts of Danzig (Pecuniary claims of Danzig railway officials who have passed into the Polish service, against the Polish railways administration), PCIJ Publications, Series B, No. 15. Interpretation of the Greco-Turkish Agreement of December 1st, 1926 (Final Protocol, article IV), PCIJ Publications, Series B, No. 16. The Greco-Bulgarian “Communities,” PCIJ Publications, Series B, No. 17. Free City of Danzig and the International Labour Organization, PCIJ Publications, Series B, No. 18. Customs Régime between Germany and Austria Protocol of March 19th, 1931, PCIJ Publications, Series A/B, No. 41. Railway traffic between Lithuania and Poland (railway sector Landwarów-Kaisiadorys), PCIJ Publications, Series A/B, No. 42. Access to, or anchorage in, the port of Danzig, of Polish war vessels, PCIJ Publications, Series A/B, No. 43. Access to, or anchorage in, the port of Danzig, of Polish war vessels, PCIJ Publications, Series A/B, No. 43. Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, I.C.J. Reports, 1949, p. 174.

656

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International Status of South-West Africa, I.C.J. Reports, 1950, p. 128. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports, 1971, p. 16. Western Sahara, Advisory Opinion, I.C.J. Reports, 1975, p. 12.

Index Abdicative waiver 570, 571, 577, 578 Absolute rights 588–589 Acceptance 16, 27, 57, 60, 63, 67, 95, 97, 106, 113, 131, 171–174, 176, 182, 187, 189, 190, 193–195, 197, 199–208, 212, 240, 292, 296, 339, 340, 347, 350, 358, 366, 372, 378, 382, 384, 390, 391, 399, 400, 406, 423, 451, 454, 461, 474, 478, 491, 495, 501, 521, 522, 536, 541, 544, 545, 549, 571, 572, 592–593, 597, 611, 612, 625, 635, 639 Acceptance of a reservation 193–198, 612 Accession to an agreement 185–188 Accreditation 295–297, 302 Accretion 240–241 Acquiescence 22, 51, 54, 93, 100, 101, 103, 219, 232, 234, 240, 476, 603, 608, 612, 621, 627, 628 Acquisition of nationality 251, 254–259 Acquisition of territory 37, 216–219, 221, 225, 228, 233, 237, 238, 240, 282, 609, 623 Acquisitive prescription 237, 238, 621, 622 Act (in general) 12–17 Acte juridique 2, 10, 36, 37, 41, 46, 56, 57, 60, 68, 75, 101, 108, 254, 318, 323, 484, 485, 494–523, 540, 570, 605, 624, 629, 631, 632 Act of state doctrine 18, 19 Acts of force 313, 611 Acts of international law and of municipal law 70–73 Acts of power 224, 235–237, 263, 264, 277, 317 Addressee of the act 147, 613 Adjara 502 Agrément 280, 282, 284, 287, 291–296, 302, 445, 559 Alegans contraria non audiendus est 608 Anticipatory protest 44, 612 Apparent acts promise 341, 420–421, 503 recognition 495, 532, 546 waiver 581 Approval of a treaty 174, 178, 184–185 Arbitration 390, 453, 461, 580, 600 Archipelago waters 244 Asylum 250, 264–272, 277, 281, 433, 543, 544, 635l

Autonomy of a unilateral act 57, 59–67 Avertissement 612 Beneficiary of an act promise 310, 378, 399–401 recognition 134, 536, 541, 544 waiver 571, 578, 592, 598 Binding force of unilateral declaration 24, 336, 337, 354, 405 Breach of law 52, 314, 622 Burkina Faso and Mali 367–370 Capacity of a de facto regime to conclude treaties 547 Capitulatory regime 572, 575 Captains of ship 609 Carl Zeiss Stiftung cases 518 Central organs (authorities) 609, 610 Classical catalogue of unilateral acts 34, 66, 79, 88–94, 105, 107, 251, 298, 637 Classical objects of recognition 441, 458, 467, 486, 487, 523, 526, 547, 549 Classifications of legal facts 36–39, 43–45, 542 Codification of international law 262, 420 Coercion 115–118, 120–124, 127, 128, 166, 331 Collective acts 67–70, 101, 499, 546, 630 Comity 510, 512, 523, 616 Condition, conditional transactions 315 Conduct provisions 583 Consent 15, 21–23, 59, 77, 83, 98, 103, 104, 115, 118, 120, 124, 126, 130, 131, 147, 151, 153, 157–163, 174, 176–179, 182, 184–187, 189, 192, 195, 202, 206, 210, 213, 215, 241, 257, 280, 283, 284, 286, 289, 291, 292, 298, 302, 321, 333, 346–348, 352, 386, 393, 398, 399, 415, 425, 426, 458, 463, 476, 485, 511, 544, 570, 571, 586, 589, 591, 600, 603, 622, 624, 628, 638 Constitutive theory 497, 499, 503, 528, 529, 547–549 Consular law 283, 290, 302, 558–560, 610, 634, 635 Contiguous zone 216, 244, 246, 248, 256 Continental shelf 244, 246 Corruption 115, 116, 120, 123, 124, 406

658 Credentials 151, 284, 293, 295–297, 523, 553 Crimea 143, 222, 445 Custom customary law 79, 82, 99, 100, 103, 122, 127, 176, 191, 192, 196, 233, 326, 331, 341, 421, 422, 446, 464, 593, 616 customary norms 62, 64, 66, 82, 84, 98, 116, 131, 132, 165, 192, 240, 250, 273, 274, 278, 285, 298, 401, 403, 405, 406, 422, 467, 484, 494, 504, 623, 626, 628, 636 Czechnya 482 (au: Found as Chechnya) Declaration of a member of a mission as persona non grata or as a not acceptable person 299–300, 302 Declaration of neutrality 87, 303, 323, 327, 329, 331, 333, 336, 374, 527, 634 Declaration of war 30, 31, 40, 43, 87, 100, 101, 105, 106, 141, 303, 306–315, 333, 445, 610, 634 Declarative (declaratory) theory 495–499, 503, 506, 530, 547 De facto recognition 504, 535, 549 De facto regime 547 Definition of unilateral acts (in general)  5, 34–85, 99, 254, 262, 308, 633 De iure recognition 504 Delimitation 73, 85, 101, 106, 117, 126, 226, 242–244, 247, 390, 460, 466, 471, 623 Demarcation 242–244 De minimis 610 Deportation 250, 262–264 Deprivation of nationality 258–262, 635 Derelictio 44, 97, 103, 235, 242, 249, 586, 634 Desuetudo 307, 504 Development aid 435–437 Development of international law 5, 123, 417, 618 Diplomacy 4, 124, 141, 169, 170, 282–302, 373, 433, 458, 554 Diplomatic acts 29–30 Diplomatic protection 259, 492, 580, 589 Diplomatic protest 605–607, 613, 616 Diplomatic relations 97, 213, 282–286, 289, 299–302, 500, 508, 548, 558, 559, 591, 610, 635 Domestic law (municipal law) 145–148 Domestic law act (act of domestic law) 19, 53, 59, 71–73, 85, 101, 173, 181, 185, 247, 250, 254, 260, 262, 263, 266, 270, 327, 331, 483–484, 635

Index Domestic provisions applicable to unilateral acts 147–166 Draft articles on unilateral acts of states 5, 49 Draft principles on unilateral acts of states 5, 146 Eastern Greenland case 112, 136, 142, 143, 157, 220, 227, 354–358, 380, 385, 409, 410, 415, 422, 478, 479 End of hostilities 332–333 End of war 332–333, 598 Erga omnes obligations (rights) 400, 425, 432, 619 Error 115, 116, 118–120, 124–127, 166, 244, 393, 433, 464, 504 Estoppel 83, 84, 101, 104, 105, 416–418, 420, 476, 478, 581, 608, 609 Estrada doctrine 504 Exchange of ratification documents/ depositing of them by a depository 178–185 Exclusive economic zone (eez) 73, 78, 106, 216, 244, 246, 248, 261, 589, 616 Executive 13, 152–154, 158–160, 162–164, 176, 180, 279, 323, 466, 508, 513, 520, 609 Exequatur 280, 294, 540, 552, 559, 560 Expulsion 262–264, 268 Extinctive prescription 621, 622 Extradition 250, 275, 278–281, 427, 450, 635 Facultative acts 62, 175, 188, 192, 203, 205, 207, 210, 212–214, 282, 298, 613 Foreign ships 322–323, 528, 587 Form of acts (in general) 72, 257 Foundation of a binding force of unilateral acts of States in public international law 82–84 Fraud 115, 116, 119, 120, 123, 124 General principles of law 97, 285, 402–404, 422 Good faith 25, 50, 82–84, 104, 105, 134, 147, 165, 239, 269, 270, 369, 376, 381, 382, 389, 395, 398, 400, 402–404, 416, 417, 609 Grounds of invalidity of unilateral acts 117 Guiding principles 5, 50, 121, 129, 133, 139, 140, 146, 376, 381–384, 389, 398, 408, 419, 633 Head of a diplomatic mission 137, 140, 295, 299, 609 Head of a government 136, 141–145, 166

Index Head of a state 113, 136, 141–145, 150–163, 166, 179–181, 184, 295, 296, 368, 369, 388, 413, 487, 505, 556, 607, 609 Hostilities 38, 40, 103, 305, 308–313, 316–317, 332–333, 524, 525 ilc Articles on State Responsibility 619 ilc works on unilateral acts of states 135, 426 Immunity of an unrecognized sovereign 511 Implied protests 606, 610–614 Implied recognition 504, 554, 558 Implied waiver 594–596, 600 Impossibility to perform 211, 419 Individuals 3, 18, 40, 69, 96, 153, 156, 160, 161, 169–215, 227, 241, 250–281, 288–290, 292, 300, 309, 329, 330, 343, 344, 369, 418, 422, 429, 432, 433, 450, 457, 494, 499, 502, 507, 512, 521, 522, 576, 582, 583, 599, 608, 617, 619, 626, 628, 634–637 Initiation of diplomatic relations 283–286 Injured State 619, 620 Intention to be bound 368, 388, 395, 404 Intention v. will 221 Internal waters 244, 246 International community 46, 49, 61, 93, 96, 131, 133, 246, 276, 343, 384, 456, 488, 497, 498, 500, 550, 588, 619 International debts 435–437 International morality 618 International organizations (acts of) 42, 47, 51, 55, 70, 80, 95, 101 Interpretation of unilateral acts 406 Interpretative declarations 171, 172, 174, 189, 200–205, 210, 215 Intertemporal rules 446, 628 Invalidity connected with breaches of a municipal law 145–148 Invocation of responsibility 619 Jurisdictional immunity 509 Lamu Island case 340 Law of the sea 116, 216, 244–248 Law of Treaties 3, 23, 41, 42, 49, 60, 67, 73, 97, 99, 101, 108, 115, 117–122, 126, 127, 129, 135, 170–215, 282, 290, 293, 344, 346, 347, 402, 418, 419, 422, 596, 610–612, 634, 638 Legal Acts 9, 11, 33, 41, 46, 48–57, 62, 65, 71, 72, 77, 79, 80, 108–111, 115, 122, 135, 169, 201, 224, 229, 231, 233, 234, 236, 237, 240,

659 241, 244, 247, 249, 260, 262, 266, 277, 288, 305, 308–313, 316–319, 321, 323, 333, 380, 392, 396, 421, 435, 479, 482–536, 581, 582, 602, 605, 606, 611, 626, 628, 629, 631, 633, 637 Legal effects of unilateral acts 53, 73–80, 567 Legality 18, 38, 114, 116, 120, 211, 226, 271, 317, 320, 323, 383, 468, 478, 480, 487, 488, 490, 491, 603, 604 Legitimisation 501 Liability 52, 57, 125, 326, 339, 450, 617 Local organs (authorities) 609 Loss of nationality 258–262, 281 Manifestation of the will 611 Military commanders 136, 607, 609 Minister of foreign affairs 136, 141–145, 163, 295, 357, 609, 626 Nationality 64, 71, 73, 99–101, 106, 125, 213, 250–262, 281, 309, 449, 452, 459, 460, 467, 502, 516, 635 Nationalization decrees 490, 513, 514 Naturalization 22, 254–261, 460, 623, 635 Nemo plus dare potest 577 Neutrality 24, 29, 87, 91, 100, 101, 106, 107, 303, 307, 318, 323–331, 333, 336, 361, 362, 374, 467, 468, 485, 487, 526, 527, 614, 618, 634 Non-autonomous acts 59, 61, 63, 106, 171–178, 188, 205, 206, 278, 292, 422, 639 Non-binding acts 3, 379, 423, 546 Non-intercourse 557 Non-recognized regime in domestic courts of other States 509–512 Notification 2, 30–32, 34, 44, 55, 60, 75, 77, 87–93, 97, 99, 101, 103, 104, 106–111, 169, 184–185, 189, 232–234, 288, 307, 313, 320–322, 432, 606, 624, 625 Notification of blockade 108, 321 Notification of occupation 108, 232–235, 249, 634 Nuclear Tests cases 104, 353, 364, 368–372, 382, 383, 385, 387, 388, 396, 399, 405, 408, 410, 413, 414, 419 Objections to reservations 172, 197–199 Objects which cannot be waived 585–592 Obligation (in general) 19, 278, 315, 324, 338–377, 417, 504, 585–587

660 Obligatory acts 62, 203, 212–216, 278, 313, 482 Occupation 30, 31, 37, 40, 44, 54, 59, 87, 89, 97, 98, 103–105, 108, 112, 169, 217, 219–237, 239, 240, 242, 248, 249, 260, 308, 317–318, 355, 466, 468, 579, 634 Offer 57, 60, 88, 95, 97, 104, 106, 126, 131, 155, 172–174, 187, 194, 207, 210, 292, 294, 333, 371, 382, 411, 423, 428, 475, 544, 545, 570, 571, 593, 639 Officious intercourse 557 Opposability 99, 104, 105, 112, 113, 474, 479, 480, 603, 621, 623, 627 Ordre public 514, 516, 517 Organs competent to give promises 413 Organs competent to make express protests 607–610 Organs issuing unilateral acts of States (in general) 135–145 Pactum in favorem tertii 68, 346–350, 400, 541, 632 Parliamentary protests 608 Parliaments 12, 13, 72, 152, 153, 156–158, 161, 163–165, 255, 385, 386, 433, 607–609 Passive capacity and immunities of a non-recognized regime in domestic courts of other States 511–512 Passports 275–277, 635 People fighting for liberation (national liberation movement) 548, 549, 551 Peremptory norms of international law ( jus cogens) 121, 576, 588, 589 Personality 344, 452, 497, 500, 501, 516, 519, 530, 533, 589, 590 Political acts 13, 50–52, 55, 304, 305, 337, 485, 490, 491 Preconditions of a unilateral act of State in public international law 55–59 Prescription 59, 219, 225–228, 232, 236–240, 248, 621, 622 Press conference 385, 386, 412, 413, 433, 556, 607, 616 Promise definition 378–379 form 383–387, 424, 432 in general 24–27, 379–380 interpretation 386, 406–414 legal effects 380–382, 399–401 preconditions 382–399 revocability 414–420

Index Protest definition 603–606 form 606–607, 611, 612, 615, 616, 620, 631 in general 602–603 interpretation 621 legal effects 620–629 preconditions 603–606, 614–620 revocability 630–631 Public character of acts 384 Public statements (declarations) 166, 385, 597, 613, 636 Qui tacet consentire videtur 622 Qui tacet negat 622 Qui tacet neque negat neque utique fatetur 622 Ratification 14, 97, 99, 100, 106, 108, 109, 140, 151, 152, 161, 172, 174, 176–190, 192, 201, 204, 214, 215, 288, 296, 345, 452, 543, 555 Real rights 571 Rebus sic stantibus 171, 209–211, 418, 420, 428, 433, 468, 493, 598 Recall of a member of a mission 297–299 Rechtsgeschäft 2, 4, 10, 11, 33, 37–39, 47, 56, 57, 68, 77, 94, 108, 114, 116, 126, 304, 336, 372, 378, 444, 540, 564, 632 Rechtsverwahrung 611, 612 Recognition definition 443–447, 471–475 form 160, 370, 469, 500, 532, 538, 548, 551, 552, 554, 556, 558, 559, 562 in general 443–444 interpretation 449, 451, 453, 463, 487, 491 legal effects 441–481 preconditions 536 revocability 435, 444 Recognition of a border 466, 487 Recognition of a flag 487, 488 Recognition of a protectorate 466, 487 Recognition of belligerency 441, 465, 466 definition 524–525 in general 523–526 legal effects 524, 526–531 revocability 535 Recognition of divorce judgments 515 Recognition of facts 492, 493

661

Index Recognition of governments 441, 444, 465–468, 476, 525, 535, 547–551 definition 505 form 551–558 in general 475, 504–505 interpretation 509–519 legal effects 505–509, 523 Recognition of insurgency 441, 465, 466 definition 444, 531 in general 531–533 legal effects 533–534 Recognition of neutrality 468, 487 Recognition of rights 486–494, 530, 534 Recognition of states 333, 441, 444, 460, 465–468, 472, 474, 476, 496, 498, 507, 525, 529, 535 definition 494–496 form 551–558 in general 547–551 legal effects 499–504 revocability 444 Recognition of territorial changes 441, 442, 487, 491, 535 Recognition of the name of a state 487 Recognition of the title of a head of state 487 Refugees 250, 264–267, 269, 272–275, 281, 434, 524, 635 Relative rights 576, 588, 592 Reprisals 31, 32, 87 Request for agrément 292–295, 302, 445 Reservations 23, 44, 60, 62, 66, 67, 69, 78, 97, 99, 100, 103, 106, 169, 171, 172, 174, 176, 188–204, 207, 210, 214, 215, 225, 261, 314, 339, 357, 370, 391, 394, 406, 407, 415, 488–490, 494, 522, 554, 578, 611,612, 631, 638 Reserve 44, 89, 161, 179, 213, 314, 338, 379, 416, 546, 565, 594, 612 Res nullius 225, 571 Resolutions 5, 62, 72, 85, 105, 106, 131, 134, 143, 150, 159, 163, 234, 285, 324, 325, 423, 434, 453–459, 476, 483, 526, 527, 535, 546, 554, 608 Responsibility 6, 26, 51–53, 57, 65, 133, 138, 139, 145, 155, 157, 170, 196, 281, 290, 319, 362, 500, 534, 588, 619, 620, 632

Retortions 31 Retroactivity of recognition 506 Revocability of unilateral promises 414–420 Right (in general) 574–576, 578 Rights which are the means of performing obligations 585 Right to sue 509, 511, 520, 521, 523 Self-defence 310, 311, 313, 325, 611 Self-determination 468, 589, 590 Self-help 38, 624 Sending of a diplomat 286–291, 294 Severance of diplomatic relations 299–301, 635 Sources of public international law 72, 79–81, 341, 405, 636 South West Africa 17, 22, 358–360, 454, 456, 458, 462, 464, 575, 583 Sovereignty 16, 44, 75, 98, 143, 153, 207, 216–221, 223–228, 230–242, 245, 247, 248, 251, 277, 323, 329, 342, 354, 355, 357, 358, 362, 380, 406, 408–410, 415, 425, 451, 459, 460, 477, 479, 487, 491, 495, 501, 502, 522, 563, 572, 576, 578, 588–590, 592, 593, 595, 598, 600 Special interests provisions 583 Special rapporteur 5, 11, 24, 41, 42, 48–54, 63–66, 69, 72, 73, 77, 78, 80, 82, 92, 104, 107, 109, 112, 114–119, 121, 123, 125, 127–131, 133–135, 137–140, 144, 146, 164–166, 172, 176, 200, 202, 216, 281, 336, 337, 340, 389, 392, 393, 395–397, 400, 402, 426, 428, 430, 432–437, 468, 469, 473, 539, 564, 565, 570–572, 594, 602–604, 611, 621, 633, 636 Special rapporteur, reports of 5, 11, 77, 116, 402, 633 Start of hostilities 103, 308–313 Subjective rights 564–567, 574, 575, 616 Subjects of international law 38, 41, 46, 47, 50, 86, 170, 183, 276, 283, 356, 378, 432, 465, 467, 526, 533, 546, 590 Subjugation 31, 32, 87, 219, 226 Symbolic occupation 223, 224, 229–232, 234, 235, 249, 634 Tacit consent 398, 603 Termination of a treaty 43, 60, 95, 101, 171, 172, 209–212, 215, 310, 402

662 Territorial acquisition 486–488 Territorial sea 71, 72, 93, 117, 175, 216, 244–248, 256, 454, 589, 616 Territory 3, 14, 15, 17, 18, 22, 23, 29, 37, 38, 40, 71, 72, 97, 100, 103, 105, 108, 143, 159, 161, 169, 170, 189, 216–249, 256, 263, 264, 266–270, 276, 277, 280, 282, 287, 288, 302, 317, 318, 321, 323, 364, 368, 408, 416, 425, 426, 430, 449–451, 455, 458–460, 462, 463, 465, 467, 468, 477, 480, 488, 489, 491, 492, 500, 512, 522, 531, 543, 545, 559, 563, 569, 572, 576, 582, 586, 588–591, 595, 609, 623, 634 The icj 16, 17, 22, 23, 62, 63, 66, 67, 79, 101, 112, 113, 126, 127, 136, 142, 171, 179, 202, 205–208, 212, 214, 220, 239, 247, 252, 254, 255, 340, 358–360, 363–371, 374, 378, 380, 382–391, 394, 395, 399, 402, 404–408, 411, 413, 414, 419, 421, 422, 429, 445, 446, 450, 452–454, 456–464, 476–479, 543, 572–574, 579, 580, 582–584, 611, 636, 639 Threat or use of force 115, 121, 127, 128, 589 Tobar doctrine 504 Transaction of international law 238, 243, 267, 269–276, 281, 294, 323, 432, 433, 443, 484–487, 491, 492, 494, 502, 504, 523, 529, 531, 534, 602 Transitive waiver 572, 597 Treatment of provisions and documents issued by non-recognized government 509 Treaty of Versailles 22, 374, 451, 454–456, 464, 570, 575 Types of unilateral acts (in general) 2–4, 33, 60, 70, 78, 84–111, 117, 169, 320, 380, 563, 632–634 Ultimatums 30, 309, 311, 314–315 Unilateral acts definition (see Definition of unilateral acts (in general)) in general 9–33, 112–166 types (see Types of unilateral acts (in general)) Unilateral act v. Information on activities taken 434–435 Unilateral act v. Information on domestic law 430–434

Index Unilateral act v. Treaty 380, 550, 599, 637 Unilateral declaration on the acceptance of a compulsory jurisdiction of the icj 113, 171, 205–208, 212, 390, 406, 639 Unilateral–in general 19–24 Unilateralism 3, 23, 24, 31, 33, 70, 170, 172, 183, 185, 214 Unilateralness 537, 538 Unofficial relationships 549 Use of force 24, 219, 303–333, 446, 502, 589, 632, 634 Validity of the legislative or executive acts of this government 513 Validity of unilateral acts (in general)  111–166, 587 Visas 275–277 V. Rodríguez-Cedeño. See Special rapporteur Waiver of the capacity to use the right or to have a right 579 of claims 143, 244, 424, 574, 579–582, 585, 596 definition 564–566 of diplomatic immunity 283, 563, 588, 599 form 570, 593–597 in general 563–564 of immunities 81, 143, 155, 574, 598–601, 637 of interests 582–585 interpretation 143, 595, 596 legal effects 570–574, 585 preconditions 55, 101, 288 revocability 597 of rights 462, 575–579, 581, 585, 586, 590–592, 631 temporary and permanent 578 of the use of a right without waiving the right itself 577–578 War blockade 318–322 occupation 104, 317–318 Will to be bound 50, 376, 382, 387–399 Withholding of recognition 610 Zone of exclusive fisheries 248