|
|
Home
| Databases
| WorldLII
| Search
| Feedback
New Zealand Yearbook of New Zealand Jurisprudence |
Last Updated: 16 April 2015
Unilateral Acts in International
Relations:
Accepting the Limits of International Law
BETINA KUZMAROV*
INTRODUCTION
Among international lawyers, unilateralism often seems tantamount to a dirty word. To characterize an action as `unilateral' is to condemn it. Arrogance, disregard for others, domination, even illegality — these are the qualities that the term 'unilateralism' evokes. If an action is unilateral, one need not even consider whether it is substantively right or wrong; the fact that it is undertaken by a single state rather than the 'international community,' in itself, makes it illegitimate.1
As Bodansky has pointed out, above, the term unilateral is, at times, treated by international lawyers as synonymous with illegality.' Particularly in the post 9/11 world, unilateralism is often associated with unilateral uses of force by the United
Betina Kuzmarov, Law School, The University of Hull, UK. This paper is a modified version of the text of a presentation delivered at a Symposium on Law and Security Post 9/11, February 23, 2005, at The University of Hull. Thanks to those whose questions at that presentation helped shape this paper. Thank you also to Dr. R. Burchill for his comments and for inviting me to speak at the symposium. Additionally, this paper is premised upon research undertaken for my Phl) thesis and as such it reflects my work in progress. Also, PLEASE NOTE that the International Law Commission has released its Report on the Work of its Fifty-Seventh Session (2005). Further, consideration of this report at the Sixth Committee of the General Assembly has occurred http://daccessdds.un.org/doc/UNDOC/GEN/N05/607/22/PDF/N0560 722.pdf?OpenElement). However, because this report of the International Law Commission, and its consideration at the Sixth Committee took place after this paper was submitted for publication in the summer of 2005, it will not be included in the conclusions reached here.
D. Bodansky, "What's so Bad About Unilateral Action to Protect the Environment? (2000) 11 EEL 339 at 339. See also, where Bodansky notes, "one approach to this definitional question is to equate unilateralism with illegality." Ibid. at p. 340.
2 As Bodansky notes, "one approach to this definitional question is to equate
unilateralism with illegality." Ibid. at p. 340.
78 Yearbook of New
Zealand Jurisprudence Vol 8.1
States, most forcefully with the ongoing military action in Iraq, and with American claims to exceptionalism in the international sphere more generally. However, these high profile examples of unilateralism do not provide the whole picture of unilateral action. As Bodansky has also pointed out, although unilateralism is often derided by international lawyers, unilateral acts are not, by definition, negative. He has argued that it is the content of the act that determines lawyer's claims of legality or illegality, not the fact that the act is unilateral.' He has offered the examples of the destruction of Kuwaiti oil wells by the Iraqi's, or the murder of Muslims by Serbs, as examples of acts that were illegal because they were substantively wrong, not because they were unilateral.' Alternatively, it could be asserted that the NATO bombing of the Federal Republic of Yugoslavia (FRY) [now Serbia and Montenegro] in reponse to Serbian actions in Kosovo,' was legally questionable, but morally justifiable on humanitarian grounds.' However, what
3 Ibid.
4 Ibid.
6 However, the morality of the
conduct of this action has been questioned, with some arguing that the
indiscriminate NATO bombing in
the FRY and harm to civilians constituted war
crimes. See, for example Amnesty International, "Violations of the Laws of War
by NATO
during Operation Allied Force", available online at <http ://t2www.amnesty.r3h.net/ailib/intcam/kosovo/docs/natorep_su
mm.doc> (visted on 03/07/2005); Some law professors actually requested the
indictment of NATO commanders, and leaders and politicians
of NATO countries
before the ICTY, see Request That The Prosecutor Investigate Named Individuals
For Violations of International
Humanitarian Law and Prepare Indictments Against
them Pursuant to Articles 18.1. and 18.4 of the Tribunal Statute, available
online
at
<http://jurist.law.pitt.edu/icty.htm>
,
(visited on 03/07/2005); although this was subsequently rejected, see J. Shen,
"A Politicized ICTY Should Come to an End",
available online at http://jurist.law.pitt.edu/shen.htm
(visited on 03/07/2005); As well a law suit brought by Serbia and Montenegro
before the International Court of Justice was rejected
for lack of jurisdiction;
B. J. Hibbits, "ICJ rejects NATO bombing case for lack of jurisdiction,"
available
2005 Unilateral Acts in International Relations 79
unilateral acts often share is the fact that these actions are routinely condemned by either effected states or the international community, but often with little practical effect. Arguably, then, the problem that international lawyers have with unilateral acts is their malleability. They have wanted to declare them legal when in a cause they agree with and illegal on their substance when they have disagreed. As a result of this malleability unilateral acts have made international lawyers uncomfortable, and this paper will explore some of the reasons why, conceptually, this may be.
Perhaps, one reason is for this discomfort has been, as Bin Cheng once wrote, in a different context, that
...many international lawyers take their profession too personally. International law may be our subject of study, but we are not personally, or even collectively, responsible for what it is today. We would hardly be performing a service to our profession by pretending that international law is something different from what we find it to be. We can no more improve international law this way than the pathologist who hopes that, simply by reporting the growth is benign when in fact it is malignant, the patient will therefore recover.'
In other words, Cheng argued that international lawyers owe it to the future development of international law to be honest about where its current boundaries lie. Therefore, there have been some international legal acts that have exhibited the trappings of legality, but which are, in fact, not truly legal.' And international lawyers have often been uncomfortable
online at <http://jurist.law.pitt.edu/paperchase/2004/12/icj-rejects-nato-bombing-case-for-lack.php> (visted on 03/07/2005)
and
Theory (Martinus Nijhoff, 1986), 513 at p. 515.
8
This argument is not original. For example, Koskenniemi also makes
argument that legal unilateral acts can never be separated from political
acts, because of the problem of separating the objective
from the subjective in
this area of law. Sec M. Koskenniemi, From Apology to Utopia: The Structure
of International Legal Argument (Lakimieslisliiton Kustannus, 1989), at p.
311.
80 Yearbook of New Zealand Jurisprudence Vol 8.1
facing this fact, because it has meant that there are aspects of international relations that may escape legal regulation.
Therefore, this paper will argue that unilateral acts in public international law lie outside the current boundaries of international law. As a result this paper should be differentiated from those work has attempted to schematize the concept,9 as these attempts, often in a rather positivistic way, have merely covered up central weaknesses in this area. However, having said that, an outline of the topic will be provided to ensure that it is understood what is meant by unilateral acts. For as Cheng has noted, "[winters on international law often argue at cross purposes because they have completely different perceptions of international law."' So too with unilateral acts, therefore, we must set a base line and discuss the weaknesses in the concept from there.
On the other hand, while it would be outside the scope of this paper to go into this debate with much detail, a note must be made about the relationship between my arguments and those of critical legal scholars. While it is agreed with critical scholars that unilateral acts are not legal, but political acts, and while their insights will often be adopted where appropriate," there are differences in emphasis between the approach offered here, and critical approaches. It is agreed with such scholars as David Kennedy that international law exhibits structural, formal and procedural dichotomies,' that stem from the underlying political preferences of a liberal society, making international law a political discipline, and reflective of those biases. However, this approach is adopted on the understanding, based on the work of Balkin, that the
9
See generally, K. Skubiszewski, "Unilateral Acts of States" in M.
Bedjaoui,ed., International Law: Achievements or Prospects
(Unesco/Martinus Nijhoff, 1991) p. 221; Or see Sir R. Jennings & Sir A.
Watts, eds., Oppenheim's International Law, 9th ed., Vol 1,
Parts 2-4 (Longman, 1996), at p. 1187 ff. who are used below to outline the
topic offer an outline of the concept.
to Cheng, supra note 7 at p.
514; Cheng then goes on to set out his own
"cosmology " of the sources of international law, ibid. at p.
514ff.
I
See, for example, Koskenniemmi, supra note 8.
12
See D. Kennedy, International Legal Structures (Nomos
Verlagsgesselschaft, 1987).
2005 Unilateral Acts in International
Relations 81
oppositions uncovered by deconstruction are as much a product of social construction as politics, making it unclear whether any "programmatic" attempt to recast law, as offered by the critics would be any less likely to suffer from the same influence of politics. 13 In fact, as Balkin has also noted, the imbedded nature of language in law means that its indeterminacy is open to deconstruction by both the left and the right, so that the politics and biases of law will exist in any socially constructed system.' It is this inherent indeterminacy that has led law, in general, and international law, in particular, to be susceptible to cynical use and argument. However, it is not clear that any socially constructed phenomena, such as law, could exist without this relationship to human bias. The difference, then, between the critics and the present approach is one of degree. While acknowledging the often (blatantly) biased and political nature of international law, and its indeterminacy, this paper will opt for a more moderate challenging of the current boundaries of international law, over a wholesale reconstruction.
Consequently, departing from well known critical legal studies arguments, it is here asserted that it is the attempt to encompass both sides of the dichotomy (as critics such as
13
Again, as Balkin has noted, the oppositions uncovered by deconstruction, may be more a product of social construction, and less a conscious political agenda. It is in this sense that the views of the critics are utilized and accepted. See generally, J.M. Balkin, "Deconstruction's Legal Career" (1998), at pp. 1-2, 18, <http://www.yale.edu/lawweb/jbalkin/articles/deconstructionslegalcar eerl.pdf> (visited on 05/07/2005); See also J.M. Balkin, "Deconstruction" (1995-1996), at p. 1, available online at <http://www.yale.edu/lawweb/jbalkin/articles/deconessay.pdf>
(visited on 05/07/2005), for a discussion of the "antihumanism" in deconstruction.
82 Yearbook of New Zealand Jurisprudence Vol 8.1
Duncan Kennedy have noted most people do)15 that has led the oppositions compensate for each other so that, taken together, such dichotomies actually form the boundaries of our imperfect system of law. In fact, it is the attempt to negotiate such dichotomies that has been the necessary fiction required to create a concept of law. And, as a result this last assertion, it will be accepted that the liberal beliefs which have formed the international legal system (with all the cultural bias this entails), have also allowed for paradoxes that perpetuate the indeterminacy in law. Thereby making it possible to assert that unilateral acts are not legal, taking law on its own terms, and accepting those boundaries that have been currently accepted broadly as "law". Consequently, this paper adopts many of the critical approaches to unilateral acts, and acknowledges the inherent political nature of international law, but will exhibit a different emphasis than that of critical scholars. It will be argued that even taking international law as one finds it, as a socially constructed system, warts and all, unilateral acts are not legal.
This paper will develop these arguments in several parts. First, it will establish what has been meant by unilateral acts under international law. Through this discussion some of the key elements of such acts will be identified. Second, the elements of unilateral acts previously identified will be used to describe some the characteristics of either international law, or law generally. By discussing the elements of law in relation to the elements of unilateral acts, it will then be possible to assess the legality of these acts themselves. Third, and finally, it will be argued that accepting that unilateral acts may not be legal means accepting that there are limits to what can be considered legal. However, accepting that law has its limits will not mean that acts, such as unilateral acts, should not have a role in state interaction.
15
See D. Kennedy, "Form and Substance in Private Law Adjudication" 89 Harvard
L. Rev. 1685, at p. 1776.
2005 Unilateral Acts in International
Relations 83
WHAT ARE UNILATERAL ACTS IN PUBLIC INTERNATIONAL LAW?
Jennings and Watts in Oppenheim, have stated that,
[t]ransactions other than negotiations and treaties fall into the broad category of unilateral acts, ie Acts performed by a single state, which nevertheless have effects upon the legal positions of other states, particularly (but not exclusively) in their relations with the actor states.16
They have categorized unilateral acts into four general types of acts, declarations, notifications, protests and renunciations.'
The best brief illustration of a "purely" unilateral declaration, and one often cited, has been the declaration of Egypt regarding the Suez Canal,' in which Egypt, following its nationalization of the Canal in 1957, issued a statement setting out their future plans for the canal, as well as stating that this statement would be deposited with the UN.19 However, while this has been a "textbook" example of a unilateral declaration it would take until the mid 1970s for the principles of unilateral declarations to be clarified in international law, through the seminal Nuclear Tests case.' As Rubin, among others, has noted,
[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
16 Jennings & Watts, supra note 9 at p. 1187-1188; This is only
one possible schemata of the concept as there is no agreed approach. For
example, for a slightly
different schematization see, Skubiszewski, supra note
9.
17 Jennings & Watts, Ibid.
18 See, for example, ibid.
at p. 1190; See also Rubin, infra note 19.
19 A.P. Rubin, "The International Legal Effects of Unilateral Declarations", 71 AJIL 1 (1977), at p. 6 ff, available online at JSTOR.
20 ICJ Rep (1974) p. 253 (Australia v. France), available online at Westlaw,
ICJ Rep (1974) p. 688 (New Zealand v. France), available
online at Westlaw. As
is common, these two decisions will be collectively referred to as the
Nuclear Tests case. All references will be to the French
decision.
84 Yearbook of New Zealand Jurisprudence Vol 8.1
uttered publicly and with an intent to be bound, in the absence of additional factors such as negotiating context, an affirmative reaction from other states, a tribunal to receive the declaration officially or a supporting obligation..21
Before the Nuclear Tests case, there was evidence that statements made in the course of diplomatic negotiation would be binding.22 Although counter indications were seen from the reaction to the South African declarations before the 4th committee of the UN regarding Namibia.' Thus, the Nuclear Tests case has been taken as expanding this area of law.
In the Nuclear Tests case decision, it was heldu that "...declarations made by way of unilateral acts, concerning legal or factual situations, may have the effect of creating legal obligations."' Such acts, will be considered binding when made "publicly" require no action, or "reaction" by any other state to become binding, just the intention of the state to be bound.' Further, such actions are premised on both good faith and a somewhat unclear relationship to the "rule" of pacta sunt servanda. As the Court noted, "[Aust 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."'
Further, the Court "clarified" how one recognizes such acts when it stated that "- the intention is to be ascertained by interpretation of the act. When states make statements by which their freedom of action is to be limited, a restrictive
21
Ibid. at p. 7.
22
See generally, The Legal Status of Eastern Greenland, Judgment, April
5, 1933 [1933] PCIJ, Ser. A/B, No. 53 pp. 22-147 in M.O. Hudson, ed., World
Court Reports: A Collection of the Judgments Orders and Opinions of the
Permanent Court of International Justice, vol. III (Oceana, 1969), at p.
151; See also Jennings & Watts, supra note 9, at n. 15. , p.
1191-1192; See also, Rubin, ibid. at p. 4.
23
See Rubin, ibid., at p. 4.
24
Nuclear Tests case, supra note 20, at par
43.
25 Ibid.
26 Ibid. at par. 46.
2005 Unilateral Acts in
International Relations 85
interpretation is called for."" Therefore, this decision contains some of the clearest statements of the requirements of legal unilateral declarations and, as unilateral declarations are a category of unilateral acts and, as such. can be taken indicative of some of the requirements of unilateral acts, generally. For example the case points to requirements for legality such as intention of the state to be bound, as well as the freedom from action or reaction of any other state. However, since the Nuclear Tests case decision, it can be suggested that the Court has been reluctant to apply the principle from that case as broadly as was intended by that case.28
Acts of notification are the process whereby,
...states communicate to other states certain facts and events of legal importance. In some circumstances notifications are obligatory; but they are often made voluntarily in order to ensure that other states cannot, on grounds of lack of knowledge, avoid the legal consequences which flow from the facts and events in question.29
And the opposite of a notification is a protest. A protest is a "formal" way for a state to voice its disapproval of the act of another state, but does not affect the act protested against.' A renunciation is the waiver of a right, which Jennings and Watts note, can be either in clear terms or "tacit."'
More recently, the International Law Commission has added the topic of Unilateral Acts, to its program of work."
27
Ibid. at par. 45.
29 See Jennings & Watts, ibid., at p,
1193.
30 Ibid. at p. 1193 ff.
31 Ibid.
at 1195.
32 For a history of how this came to be, see, International Law
Commission, Report on the work of its Fifty-Sixth Session (2004), UN GA
Supplement No. 10 (A/59/10), ch.8, par. 177ff. available
online
86 Yearbook of New Zealand Jurisprudence Vol 8.1
However, this area has seemed to produce only what the Special Rapporteur on this topic has called, politely, "difficulties"" in codification. Further, as of yet Members have reached no agreement as to what these acts are and how to proceed with their project.' Therefore, the work of the International Law Commission will be discussed where their work helps to clarify an issue, but their findings cannot yet be considered dispositive of any issue, at least at this point in their work.
Consequently, while the Court may have prescribed unilateral declarations, it has also been reluctant to apply the wide scope it had given to unilateral declarations. Moreover, while states may undertake acts of waiver, revocation and protest, as the work of the International Law Commission has discussed, there is no clear sense of what unilateral acts, taken as a category of acts in international law, entail.
WHAT DO UNILATERAL ACTS TELL US ABOUT THE LIMITS OF INTERNATIONAL LAW?
Once one accepts, as, for example, Cheng has,' that the character of international law is debatable' then it will never
at <http://www.un.org/law/i1c/reports/2004/2004report.htm> (visited 05/07/2005)
34 One Member already mused about a
"stalemate", in the context of discussing the work of the Special Rapporteur and
his choice to
base his recommendations on the law of treaties. International Law
Commission Report 2004, supra note 32 at par. 213
35 See Cheng,
supra note 7, at p. 514.
36 Or, to use Gallie's notion, some concepts are simply "essentially
contestable," with infinite numbers of conceptions. W.B. Gallie,
"Essentially
Contested Concepts" (1956) Proceedings of the Aristotelian Society 167 . For
further reading,see on the debatable content
of the question what is law, H.L.A.
Hart, The Concept of Law 2nd ed. (Clarendon, 1994) at p. 1
ff.; On the concept and conceptions of justice see, J. Rawls, A Theory of
Justice (Oxford, 1973), p. 5; See also, C. Swanton, "On the Essential
Contestedness of Political
2005 Unilateral Acts in International
Relations 87
be possible to define law. The one can do is try to establish the margins of what will be considered legal.' Consequently, this section will use the qualities of unilateral acts, identified above, as a test of some of the current understandings that support the concept of law. In this way some of the notions that shape our current understanding of the limits of law, and where unilateral acts stand in relation to those boundaries, will be established.
From the original outline of unilateral acts, the following characteristics of unilateral acts will be discussed here further: they are autonomous acts of states,' they are intended by the acting state to contain a unilateral legal obligation, and they can be modified or changed by the acting state." Each of these requirements shall be discussed in turn.4°
First, amongst the criteria that have been established for unilateral acts is the autonomy of the act. While unilateral acts are ostensibly autonomous, international law requires interaction among states. As Cheng has asserted, international law is different from world law, as international law requires states as its subjects, while world law establishes individuals as its subject.' States are the relevant actors in unilateral acts, and in this sense such acts are international. However, it is
Concepts" (1985) 95 Ethics 811, available online at JSTOR; And see, A.
MacIntyre, "The Essential Contestability of Some Social Concepts"
(1977) 84
Ethics 1, available online at JSTOR.
37
Bix in fact defines this as one of the common disputes in jurisprudence. See
B.Bix, Jurisprudence: Theory and Content, 3rd ed. (Sweet &
Maxwell, 2003), at p. 9.
38
This term has been particularly used by the International Law Commission. See, for example, the Report of the International Law Commission on the Work of its Fifty-First Session, UNGA Supplement No. 10 (A/54/10), (1999), ch. 8, at par. 502, available online at: <http://www.un.org/law/i1c/reports/1999/english/99repfra.htm> (visited on 05/07/2005).
40 See
discussion above.
41 See Cheng, supra note 7, at pp.
515-516.
88 Yearbook of New Zealand Jurisprudence Vol 8.1
questionable whether unilateral acts can be seen to be a product of the interaction of states, if such acts specifically require autonomy to be binding. In fairness, as Jennings and Watts have noted, a unilateral act is never purely autonomous as it may effect the legal position of other states.' Consequently, there is a paradox here. If the unilateral act is autonomous, it needs to exist separate and apart from the effects it has on other states, placing it outside the boundaries of the interaction of states. In contrast, if it does in fact have an impact on other states, it meets the requirement of an international act but it is less than completely autonomous, since it is the impact on other states that makes it an internationally "legal" act. This is because until a unilateral act has an impact on another state, the act has no international effect, it simply is an internal act to that state. For example, if a state declares it will fish in its exclusive economic zone, this statement only has an international dimension in so far as this declaration effects other states, not because of its autonomous nature.
The next criterion of unilateral acts is that of intention, sometimes confused with the will of the state.' Will connotes consent, either tacit or express and is reflective of a voluntary approach to international law. Arguments conflating will and intention have been seen to reflect a positivistic and consent based approach to international law. Thus, the debate over the role of consent in unilateral acts can be seen as part
42 See text referenced by note 16, above
43 Sec for example, the compromise text of the Working Group of the International Law Commission which recommended that "[f]or the purposes of the present study, a unilateral act of State is a statement expressing the will or consent by which that State purports to create obligations or other legal effects under international law." International Law Commission Report 2003, supra note 33, at par. 306. Note that this did not reflect an agreed definition by the membership of the International Law Commission. Ibid. *
44 As Cheng has noted, "[i]t follows, therefore, that membership of
international society is voluntary. In this connection, it may
be necessary to
point out that as a matter of legal technique, the requirement of consent or of
any other expression of the will
does not imply that the will must be entirely
free and spontaneous." Cheng, supra note 7, at pp. 519
2005 Unilateral
Acts in International Relations 89
of the wider debate over the underlying basis of the sources of international law, whether consent or consensus. While it is not within the scope of the current paper to go into this debate, it is clear that consent and consensus are the most widely accepted bases of international law. However, it will be here suggested that unilateral acts can be premised on neither consent nor consensus, but intention.' Stressing intention is consistent with the approach of some members at the International Law Commission," as well as the case law, specifically the Nuclear Tests case regarding unilateral declarations, which makes clear that the defining feature of unilateral act is the intention of the acting state.' Consequently, it will be suggested that consent and consensus are separate from intention and that they reflect quite different ways an act can be binding.
The difference between intention and consent can be easily illustrated by the meanings of the words themselves. To begin with, the dictionary defines intent as "the state of mind with which an act is done" and intention as "determination to act in a certain way."" In contrast, consent is defined, when a verb, as "to give assent or approval" or when a noun as "approval or acceptance of something done by another."' These definitions illustrate two very different approaches, one requiring an individual state of mind, the other an external act which is responded too. This difference has been illustrated by Simmons, who has discussed the difference between consenting and promising, where he argues that consenting is authorizing another's actions, promising is
45
This is contrary to the approach taken in the draft definition proposed by the International Law Commission's Working Group in 2003, noted above. See, contra, International Law Commission, Report, 2003, supra note 33 at par. 306. This is also contra one of the definitions of consent identified by Elias and Lim, infra note 51 at p. 13.
47 See the discussion of the Nuclear Tests case, above.
48 The Merriam Webster Dictionary, (Merriam Webster, 1997), at p.
392, for "intent" and "intention".
49 Ibid. at p. 172,
"Consent".
90 Yearbook of New Zealand Jurisprudence Vol 8.1
intentionally undertaking an obligation.' This problem has also been reflected in Elias and Lim's discussion of opinio juris, the mental element of custom formation.' These notable authors discuss the problem of identifying the subjective mental element that arises particularly in the context of the original act of custom formation, a problem it is here suggested, that is similar to that that in the identification of intention in unilateral acts. These authors resolve this debate by equating opinio juris with will and consent.' However, this answer has not been sufficient to resolve this debate, nor has it removed the paradoxical nature of unilateral acts premised on both good faith and pacta suet servanda, as identified by intention. Consequently, one can come back to the fact intention implies a purpose required by the actor alone, where as consent and consensus imply at the very least acquiesence, at the most assent, to the act of another.
Further, the confusion that has existed between a requirement of intent, and a requirement of will is not new, nor is merely a semantic confusion, but is a conceptual confusion, as intent and consent, as has been demonstrated represent two fundamentally different conceptions of how law is formed. Moreover, this theoretical confusion is perpetuated by international lawyers who have often referred to some types of unilateral acts as acquiesence." This confusion may have emerged from the use of acquiescence as a way to identify
50 A.J. Simmons, Moral Principles and Political Obligations (Princeton, 1979), at p. 76.
51 See for example, O.A.Elias & C.L.Lim . The Paradox of
Consensualism in International Law (Kluwer, 1998) at Chapter I; See also,
H.W. A. Thirlway, International Customary Law and Codification: An
Examination of the Continuing Role of Custom in the Present Period of
Codification
of International Law (A.W. Sijthoff, 1972), at
Ch.6.
52 Elias & Lim, ibid. at p.
21.
53 See for example I. Brownlie, Principles of Public
International Law
h
(Dt ed.) (Oxford) p. 644. Brownlie here discusses a category of
unilateral acts he calls opposable situations, which is "acceptance of the
existence of rights inconsistent with those contended for...which
he terms
acquiescence, recognition or implied consent, again confusing these issues and
terminology. Ibid.
2005 Unilateral Acts in International
Relations 91
opinio juris.54 Further, this confusion can be contrasted with the opposing requirement of making public of the unilateral act already noted above.' As a result, it will be suggested that acquiesence cannot be what is required of unilateral acts, if there is meant to be any autonomy to the act, at all.
First, acquiescence has been seen as a non-action. To acquiesce means "to accept comply or submit without open opposition."' Therefore, it is difficult to categorise it as an act. Thus, it is notable that the Special Rapporteur on this topic to the International Law Commission has specifically excluded silence as a unilateral act.57 The problem is this, when looking at an act such as a declaration, notification, waiver or protest, how do we know the state has any intention to act at all if they don't manifest it in some way? Perhaps it is for this reason that sometimes publicity of the act is stated as a requirements' True, Watts and Jennings have considered that such acts may be tacit,59 but it will be suggested that this can only occur if intention and will are identical, which as has been demonstrated, they are not, as consent is not congruous with the autonomy of the act. As such, in the case of autonomous unilateral acts a state cannot express intention by silence because intention is the frame of mind with which an act is undertaken and if this is not made manifest there is no indication that the state has had any intention at all.' This is a version of the original problem of autonomy. If a unilateral act requires no action or reaction by any other state,
54 See, for example, I.C. MacGibbon, "Customary International Law
and Acquiesence" (1957) 33 BYIL 115, at p. 144.
55 See Nuclear
Tests case, supra note 20, at par. 43.
56 See Merriam
Webster Dictionary, supra note 47 at p. 25, "acquiesce"
57
See, for one example, International Law Commission Report 2004, supra note 32, at par. 196, where the Special Rapporteur classifies silence as an act similar to unilateral acts but did not consider it a unilateral act. Ibid.
58 See Nuclear Tests case, supra note 20, at par.
43; See also Koskenniemi, supra note 8, at p. 305.
59
See Watts & Jennings's discussion of renunciation, Watts & Jennings, supra note 9, at p. 1195 ff.
60 As Kosekenniemi has noted, a "consensual view" does also "need
to rely on the State's own account of what it was that it willed."
Koskenniemi,
ibid., at p. 304.
92 Yearbook of New Zealand Jurisprudence Vol
8.1
then how would an act, undertaken with intention to be bound, have international legal significance at all if it is not somehow made manifest to the international community? Consequently, the Special Rapporteur to the International Law Commission has taken a sound approach in stating that silence is similar to but is not a unilateral act.° Significantly, recently some delegations to the Sixth Committee of the United Nations, have questioned whether one could reasonably premise a category of law on intention alone."
As a result we are again faced with a paradox. Either autonomous unilateral acts require actual communication of intent, in which case they are based on will/consent, or silence can be considered a unilateral act. If silence is a unilateral act, it would be possible to infer consent or even possibly a contribution to a consensus, but never to determine the intent to which the state would be bound. Again, we either operate within the boundaries of international law, but have an unclear category of unilateral acts, or we operate outside international law, and have clear criteria for unilateral acts.
61 International Law Commission Report 2004, supra note 32, at paras.
196, 208.
62 As has been noted in the Summary of the Work of
the Sixth
Committee for 2004:
In the context of the study of State practice objective as well
as subjective elements (will and intent of the State) should
be taken into account. A view was expressed that the
intention of a State should not be the sole criterion of the
legal character of a unilateral act since it was subjective.
Other criteria should also be considered such as the object
of a unilateral act in order to distinguish them from acts of a
purely political nature giving rise to no legal repercussions.
If the Commission finds it useful to continue its work on
this topic, even more detailed research may be required
before reaching any conclusion. Some delegations indicated
that the current definition makes it difficult to distinguish
between acts of political nature and those of a legal nature.
United Nations, Sixth Committee, "Summaries of the work of the
Sixth Committee," available online at
<http://www.un.org/law/cod/sixth/59/sixth59.htm> (visited on
03/07/2005).
2005 Unilateral Acts in International Relations 93
Lastly, if unilateral acts are freely revocable then legal scholars are again faced with a conundrum. So long as the binding nature of unilateral acts is premised on a currently existing intention to be bound, then the act can only be binding for as long as the intention exists, making it revocable whenever the intention of the state changes." In contrast, international order requires a certain amount of stability and certainty. This may be one of the understandings underlying our current system of law. To take just one prominent example, Lon Fuller argued that constancy of the law through time was one of his eight requirements of the inner morality of law.64 Consequently, revocability of unilateral acts at any time, brings an uncertainty into the act, a situation which law, in general, may not tolerate. Problematically, then, if law is based on intent alone, it must be revocable, leading it to test the idea of constancy in law.
Further, constancy/non-revocability is important because it raises the question of certainty in the law. If states can revoke their act any time, by changing their intent, then it is impossible for an outside observer (as the Nuclear Tests case requires) to ever know with any certainty what law the state believes is binding upon it.65 Moreover, the state itself will never be able to know in advance what the outside observer will determine to be its intent. 66 The only exception to this
66 For a further discussion on this problem as one of the
objective subjective debate, see generally, ibid. at p.
303ff.
94 Yearbook of New Zealand Jurisprudence Vol 8.1
may be when the facts of the situation allow for the procedural protection afforded by estoppel,' where one state has acted in good faith reliance on the unilateral act of another state, in which case the acting the state will be precluded from going against that act relied on. And, estoppel has often been treated as a separate type of act from unilateral acts.' Therefore, conceptually, unilateral acts have posed a challenge for current understandings of international law, such as the "international" nature of such acts, whether silence can constitute an act, the revocability of unilateral acts, and certainty in law over time.
THE CONSEQUENCES OF THE CHALLENGE POSED BY UNILATERAL ACTS TO THE BOUNDARIES OF LAW
Until now, there have been identified four ways in which unilateral acts help uncover our understanding about international law, and its limits. First, if unilateral acts are indeed autonomous, then they cannot fall within a truly "international" law, which is premised on the interaction of states. Second, if unilateral acts are based on the intent of the state to be bound, then they cannot express the "will" of the state. Third, it is questionable whether silence can be an act. And fourth, if unilateral acts are revocable they challenge the notion that law requires certainty over time, so that other states can arrange their affairs accordingly. This last challenge means that unilateral acts pose a threat to the certainty of the law in that states will have difficulty knowing in advance to which law they will be held.
This leaves two possible positions. One could argue either that the bases of international law are wrong, and need to be
unilateral declaration, acquiescence and estoppel." Ibid. at p. 312.
2005 Unilateral Acts in International Relations 95
reworked, or, as was suggested at the outset that such unilateral acts are not, as much as some (including the International Court of Justice) would like them to be, legal. The first proposition is unrealistic, since international law is still premised on regulation of the interaction amongst states.' Further, in light of the current trend towards unilateralism in international relations it seems unlikely that states are going to give up the freedom of action unilateralism affords. Consequently, the second possibility, that unilateral acts are not legal, likely represents, as Bin Cheng pointed out of international law, law "as we find it to be," at the current
The problem is, admitting that such acts are not currently legal, means international lawyers must accept that there is both international law and a limit to that law. Some concepts may be simply too uncertain to constitute law. Moreover it allows us gauge the effects of unilateral acts on international relations and, potentially, for the creation of international law. Therefore, such acts may, depending on the situation, either lead to political consequences for the state in question or contribute to the formation of law, but they are not in and of themselves "legal". Custom is created and formed by the twin requirements of state practice and opinio juris. Consequently, unilateral actions of states may contribute to the formation of either requirement. Unilateral acts may contribute to state practice, particularly if these acts begin to form a pattern. Or it may illustrate the opinio juris (mental intent) of the state at the time (although this demonstration may fall prey to some of the difficulties with identifying intention in the unilateral act itself). Lastly, unilateral action
69 See, for example, J. Delbruck, a scholar who has argued that we are moving towards a "world" or universal law. However, even Delbruck could only reach the cautious conclusion that a move to universalism is will not change the fact that states are still the primary actors of international law, although the idea of "sovereignty" may be "transformed".
J. Delbruck,"Prospects for a "World" (Internal) Law?" (2002) Ind. J. Global L. Stud. 401, available online at LEXIS; See also Cheng, supra note 7.
may lead states to voluntarily enter into treaty agreements on the issue.
Thus, as Bin Cheng wrote,
I believe it is essential to distinguish between the law as it is (lex lata) and the law that one would like to see established (lex ferenda). To state the former is to describe a fact with an objective existence, by reference to which the accuracy of the statement can be verified. To assert the latter is merely to postulate the desirability of certain rules. The task of verifying the lex lata does not preclude the witnessing of the gradual emergence of a rule of law in its formative stage."71
Unilateral acts then, are not the law as it is, but the law as many international lawyers wish it were. And as the common saying goes, "wishing doesn't make it so." Unilateral acts challenge the bases of international law in such a way that international lawyers have been forced to "fudge" their applicability, thereby muddying the waters of both the concept of unilateral acts and the system of international law. By acknowledging that such acts are likely not legal we may thereby acknowledge their proper place, as political acts which may contribute to the formation of law, but are themselves outside of the law. Therefore, like Cheng's pathologist,' we have conducted an examination and have tried to diagnose the patient. Unilateral acts are not legal, they simply don't match enough of the symptoms required to be part of our system of international law.
Consequently, unilateral acts make lawyers uncomfortable because they challenge the limits of international law and
find them wanting. As internationalists international lawyers are attached to international law's regulatory force and may want to declare those acts such as the humanitarian intervention in the former Yugoslavia legal, and illegal the murder of Muslims by the Serbs. However, as lawyers, international lawyers are left in the distinctly uncomfortable position of having a concept that does not match they model of international law. And this often leaves international
71 See Cheng, supra note 7, at p. 514.
72 See the text at Cheng,
supra note 7.
2005 Unilateral Acts in International Relations 97
lawyers distinctly uncomfortable, or at least ambivalent about unilateral action.
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/journals/NZYbkNZJur/2005/5.html