Unilateral Acts of States: Criteria and Binding Character

Extract

[...] It is in this context that the commented text is inscribed, extracted from the report of the Special Rapporteur of the International Law Commission (ILC) on the unilateral acts of States. This chapter entitled The purely unilateral act of the State: criteria for determination and foundation of the obligatory character » recalls the importance that the ILC attaches to clarifying the legal contours of this regime. The Special Rapporteur seeks to define the category of purely unilateral acts by distinguishing it from other State behaviors in order to establish the principle justifying its binding character under international law. [...]

[...] The unity of the state will as a formal condition of the legal act - Unitary expression of will clear and indivisible manifestation. - Attributability dependent on state competence (Gulf of Maine). - Formal unity distinguishes unilateral act from concerted commitments / establishes the credibility of state speech. B. The autonomy of the act and the obligation erected as a substantive criterion - Autonomy = independence from another act and independence of the obligation. - The state can engage without counterpart when within the framework of its power of self-limitation. [...]

[...] The unilateral act must strike a balance between autonomy and constraint between sovereign will and the securing of international relations. This balance will underpin the Special Rapporteur's reflection that a commitment born of a single will can have the same legal value as a treaty, while escaping the conventional logic that underlies international obligations. The outcome of this reflection leads to the conclusion that the recognition of the purely unilateral act does not stem from an assimilation to a treaty but from an analogical application of the principle of good faith, which gives the unilateral declaration its own binding force. [...]

[...] The interest of this text lies in its doctrinal contribution recognizing that a State can bind itself by its own will, the ILC confirms here the normativity of unilateral behavior. The Special Rapporteur, however, insists on the need for precise criteria allowing to circumscribe the truly unilateral acts, expressing a will conditioned by its imputable, clear and independent character. Unilateralism supposes an internal autonomy of the will, that is to say an intention to create a legal link not conditioned by the reaction of others. [...]

[...] - Declaration = act creating rights and obligations (Nuclear Tests) II. The normative justification of the binding force of the purely unilateral act A. Good faith, principle generating the unilateral obligation - Parallel between 'pacta sunt servanda' and 'declaratio est servanda'. - Declaration becomes customary basis of the act. - The principle ensures the normative continuity between reciprocal and isolated commitments. B. The relative 'legitimate trust' as a stabilizing function of the obligation - « Trust = foundation of the obligation - The obligatory character stems from the predictability and security of international relations. [...]