Unilateral Acts of States in International Law

Unilateral
Acts of States in
International Law
Vctor Rodrguez Cedeo, Maria Isabel Torres
Cazorla
Content type: Product: Max Planck

Encyclopedia Entries Encyclopedia of Public
Article last updated: International Law [MPEPIL]
February 2013
Subject(s):
Development Act of state Vienna Convention on the Law of Treaties Treaties, conclusion
Treaties, entry into force Treaties, interpretation Unilateral acts Sovereignty State practice
Codification
Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law
under the direction of Rdiger Wolfrum.
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber:
Universitatsbibliothek Wien; date: 09 February 2015
A. Introduction
1. Definition of Unilateral Act of State

1 A unilateral act of State may be defined as an expression of will emanating from one State or
States which produces legal effects in conformity with international law (see also
Unilateralism/Multilateralism). There is a very wide spectrum of behaviours covered by the
designation unilateral acts and the differences among legal cultures partly account for the
misunderstandings to which this topic has given rise. The former tentative definition is the result of
the consensus between two different positions: a) the concept of a juridical act necessarily implies
an express manifestation of a will to be bound on the part of the author State; or b) according to
another point of view, any unilateral behaviour by the State producing legal effects on the
international plane may be categorized as a unilateral act (UN ILC Report of the International Law
Commission on the Work of Its Fifty-Eighth Session [1 May9 June and 3 July11 August 2006] 367;
see also International Law Commission [ILC]). It does not preclude that other subjects of
international law, such as international organizations (see also International Organizations or
Institutions, General Aspects), could give rise to unilateral acts.
2 According to the conclusions adopted by the ILC in 2006, unilateral acts stricto sensu are a
formal declaration formulated by a State with the intent to produce obligations under international
law (UN ILC Unilateral Acts of States: Report of the Working Group: Conclusions of the International
Law Commission Relating to Unilateral Acts of States [20 July 2006] 3 [ILC Conclusions]). The ILC
maintained the same idea regarding the Guiding Principles Applicable to Unilateral Declarations of
States Capable of Creating Legal Obligations which relate only to unilateral acts stricto sensu, ie
those taking the form of formal declarations formulated by a State with the intent to produce
obligations under international law (UN ILC Guiding Principles Applicable to Unilateral Declarations
of States Capable of Creating Legal Obligations [1 May9 June and 3 July11 August 2006] 368
[Guiding Principles]). This conclusion is inspired by the judgments of international courts and
tribunals, such as the International Court of Justice (ICJ) in the Nuclear Tests Cases:
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 An undertaking of
this kind, if given publicly, and with an intent to be bound, even though not made within the
context of international negotiation, is binding ( Nuclear Tests Case [Australia v France]
para. 43; Nuclear Tests Case)
2. Jurisprudence of International Courts

3 One of the first cases concerning these manifestations of will came from the Permanent Court of
International Justice (PCIJ) in the Eastern Greenland Case (Legal Status of Eastern Greenland
[Denmark v Norway]; see also Greenland). The oral declaration of 22 July 1919 formulated by M
Ihlen, the Minister for Foreign Affairs of Norway, concerning Denmarks sovereignty over
Greenland, is a standpoint on the consideration of unilateral acts as a source of international
obligations (see also Sources of International Law):
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 ( Legal Status of Eastern
Greenland [Denmark v Norway] 71).
4 The decisions of the ICJ in the Nuclear Tests Case and subsequently in the Military and
Paramilitary Activities in and against Nicaragua Case (Nicaragua v United States of America), the
Frontier Dispute Case (Burkina Faso/Republic of Mali), or the case on the Armed Activities on the
Territory of the Congo ( Armed Activities[Congo v Rwanda] ; see also Armed Activities on the
Territory of the Congo Cases) show the relevance of unilateral acts, particularly the legal
consequences that can be derived from the declarations made by representatives of States in
international relations, when some conditions occur.
5 More references to ICJ decisions concerning unilateral acts of States will be detailed below (paras
3439), dealing with the legal effects of unilateral acts.
3. Doctrinal Studies
6 Doctrinal studies, State practice, and the efforts to codify this matter (see also Codification and
Progressive Development of International Law), prove the complexity of unilateral acts and the
enormous difficulties encountered in covering all of them under a unanimously accepted definition.
7 As Degan wrote in 1994, it seems difficult to find another branch of international law in which
doctrinal concepts have for such a long time been in sharp contrast with international realities and
practice, as is the case with unilateral acts of States (at 149). Leaving aside the traditional
conceptions sustained by von Pufendorf or Grotius about the promise as a source of legal
obligations, with an imperfect character until the acceptance or the claim of its execution by the
addressee, unilateral activity was not considered by international lawyers until the beginning of the
20th century. The studies of Anzilotti (1928) have had a great influence on the categories of
unilateral acts that for many decades have been considered as such: notification, recognition,
protest, and waiver. The work of this Italian lawyer was followed by those of Garner (1933), as a
reaction to the Eastern Greenland Case, Pfluger (1936) and Biscottini (1951), written in English,
German, and Italian respectively.
8 One of the most remarkable works on unilateral acts appeared in 1962 by the Belgian author Suy;
the notion of autonomy of these acts, the condition of unilateralLatin for coming from one side
and the impossibility of these unilateral acts producing obligations for third States are some criteria
introduced by this author. A new essay attempting a classification of these acts is due to him:
unilateral acts which produce new obligations (promise, recognition), unilateral acts which confirm
rights (protest) and finally, unilateral acts such as waiver, which imply abandonment of rights. At
the same time, the works in French of Kiss and Dehaussy explained the French practice and a
restrictive view of unilateral acts, respectively.
9 The appearance of doctrinal works on this subject has been influenced by the pronouncements
of the ICJ, particularly after the Nuclear Tests Case (Rubin), and, the same tendency is observed in
the 1990s, taking into account the ILCs work on unilateral acts of States for a decade (see paras
1014 below), and some cases solved by the ICJ in recent years. Doctrinal analysis explored the
main problems of this subject and the difficulties in order to classify and clarify a topic in which no
persuasive answers were found.
4. Unilateral Acts under Consideration by the ILC

10 It is important to recall that the ILC in 1971, two years after the adoption of the Vienna
Convention on the Law of Treaties (1969) (VCLT ; see also Treaties ), considered the topic of
unilateral acts of States as a matter which could be studied. There were various reasons which
justified the submission of this topic to the ILC: a) the absence of a clear definition of the term
unilateral act; b) the functioning of these acts and their place in international law; c) the relevance
of these acts. The inclusion of this topic on the ILCs agenda, however, was postponed because it
was considered that a codification process was premature at that stage.
11 At the end of the 20th century, both the ILC, at its 48th session, and United Nations General
Assembly Resolution 51/160 of 16 December 1996 (at para. 13) considered that the topic of
unilateral acts of States was appropriate for codification and progressive development (see also
International Organizations or Institutions, Secondary Law; United Nations [UN]; United Nations,
General Assembly; UNGA). There were many reasons which justified this incorporation in the
agenda, where it had been included for a decade, from 1996 to 2006: a) this topic had been the
subject of several important doctrinal works but it had never yet been studied by any international
body; b) it had been considered by several judgments of the ICJ, but these dicta leave room for
uncertainties and questions; c) States have abundant recourse to unilateral acts and their practice
could be studied with a view to drawing general legal principles (see also General International Law
[Principles, Rules and Standards]); d) the existing law of treaties could offer a helpful point of
departure, although the law of treaties and the law applicable to unilateral acts of States differ in
many respects (UN ILC Report of the International Law Commission on the Work of Its Fifty-Second
Session [6 May26 July 1996] 141).
12 The ILC assumed that some unilateral acts are formulated in the framework and on the basis of
an express authorization under international law as, for example, laws establishing the extent of
the territorial sea (see also Law of the Sea). These are unilateral acts closely circumscribed by
specific rules of international law. In the same order, declarations made under Art. 36 (2) Statute of
the International Court of Justice related to the acceptance of the jurisdiction of the court are
unilateral acts, but they are linked with a conventional text (International Court of Justice, Optional
Clause; see also International Courts and Tribunals, Jurisdiction and Admissibility of Inter-State
Applications). Thus, unilateral acts related to international treatiessignatures, ratifications,
reservations, declarations, etcare governed by the VCLT regime (see also Treaties, Conclusion
and Entry into Force; Treaties, Declarations of Interpretation; Treaties, Multilateral, Reservations
to).
13 The topic has been analysed by the ILC for at least 10 years, without concluding the process of
codification and progressive development on this subject. The existence of different approaches to
the notion of unilateral acts has been an obstacle to determining a set of general rules applicable to
all of them. For this reason, the final result has had to be modest: 10 Guiding Principles on
declarations, a certain class of unilateral act. As a result of these efforts, the ILC Conclusions on
unilateral acts of States, adopted in the summer of 2006, have taken into consideration the
complex nature of these acts with at least two different branches: a) unilateral acts, generally
considered, including also some conduct of States which may produce legal effects; b)
declarations, or the so-called unilateral acts stricto sensu.
14 The ILC was conscious of the fact that States may find themselves bound by their unilateral
manifestations on the international sphere; and these manifestations may be formal declarations or
mere informal acts. A codification of those informal acts that can produce legal effects has been
revealed as an impossible task nowadays. The 10 Guiding Principles finally adopted are very
restrictive, dealing exclusively with formal declarations, because this was the only response that
the ILC could adopt at the present stage.
5. Formulation of Unilateral Acts
(a) Capacity of the State and Persons Authorized to Formulate a Unilateral

Declaration
15 Every State possesses capacity to conclude treaties (Treaty Making Power) This principle,
endorsed by Art. 6 VCLT, may also be applied in the context of unilateral acts of States (UN ILC
International Law Commission: Report on the Work of Its Fifty-First Session [3 May23 July 1999]
para. 549; UN ILC Report of the International Law Commission on the Work of Its Fifty-Second
Session [1 May9 June and 10 July18 August 2000] paras 56566; and UN ILC Special Rapporteur
V Rodrguez Cedeo Ninth Report on Unilateral Acts of States: Draft Guiding Principles 2). It is also
possible to affirm that every State can commit itself through acts whereby it unilaterally undertakes
legal obligations under certain conditions. This capacity has been acknowledged by the ICJ in
different cases, particularly in the case of the Armed Activities (Congo v Rwanda). As the ICJ has
pointed out, 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
(see also Heads of Governments and Other Senior Officials; Governments), and Ministers for
Foreign Affairs have the capacity to formulate such declarations. Other persons representing the
State in specified areas may be authorized to impose an obligation, through their declarations, in
areas falling within their competence.
16 This is one of the most relevant principles, inspired in the judgments of both the PCIJ and the ICJ.
The ICJ, in the case of Armed Activities (Congo v Rwanda), has explained that this idea is in
conformity with a rule of customary international law applied in the law of treaties (at para. 47).
17 The ICJ also added other possibilities, not excluding ipso facto that other persons, different to
those mentioned in the former paragraph, could represent a State and formulate unilateral acts. As
the ICJ determines: This may be true, for example, of holders of technical ministerial portfolios
exercising powers in their field of competence in the area of foreign relations, and even of certain
officials (Armed Activities [Congo v Rwanda] para. 47).
(b) The Form of Unilateral Declarations

18 Unilateral declarations may be formulated orally or in writing. The form is not decisive, using the
words of the ICJ in some cases (see also Temple of Preah Vihear Case and Nuclear Tests Case). It
is generally accepted that the form of a unilateral declaration does not affect its validity or legal
effects. Formalities are not important, as may be observed in a great number of international
decisions ( Mavrommatis Palestine Concessions [Greece v Great Britain] [Jurisdiction] 34
[Mavrommatis Concessions Cases]; Application of the Convention on the Prevention and
Punishment of the Crime of Genocide [Bosnia and Herzegovina v Yugoslavia] [Preliminary
Objections] paras 24 and 26 [Application of the Convention on the Prevention and Punishment of
the Crime of Genocide Case (Bosnia and Herzegovina v Serbia and Montenegro); see also
Yugoslavia, Cases and Proceedings Before the ICJ]; Temple of Preah Vihear [Cambodia v Thailand]
[Preliminary Objections] 31). The practice of States is demonstrative of the different ways used to
make a statement; see the examples cited in UN ILC Special Rapporteur V Rodrguez Cedeo
Eighth Report on Unilateral Acts of States (Eighth Report), such as the Colombian Note of 1952,
the Egyptian Declaration of 1957, the protest of Russia against Turkmenistan and Azerbaijan, the
Truman Proclamation, or the Swiss statements concerning the UN and its staff members.
19 The international practice demonstrates the relevance of the element of publicity of these
declarations; some examples are reproduced in UN ILC Special Rapporteur V Rodrguez Cedeo
Second Report on Unilateral Acts of States (at para. 50) and UN ILC Special Rapporteur V
Rodrguez Cedeo Third Report on Unilateral Acts of States (at paras 7879), and various cases
analysed in the Eighth Report express the same idea. Some illustrative examples are the
declaration made by Egypt on 24 April 1957 on the Suez Canal (Eighth Report paras 5558 and 62
63), Jordans waiver of claims to the West Bank (Eighth Report paras 4454), or the Truman
Proclamation of 28 September 1945 (Eighth Report para. 127). The Ihlen Declaration, made during a
purely bilateral meeting between the Minister of Foreign Affairs of Denmark and the Norwegian
ambassador to Copenhagen, and the diplomatic note (Diplomacy; Diplomatic Communications,
Forms of) addressed solely to the Venezuelan authorities on Los Monjes Archipel (Eighth Report
para. 36) are examples of declarations addressed to specific addressees.
(c) Addresses
20 Unilateral declarations of one State may be addressed to one or several States, to an
international organization, to the international community as a whole, or to other entities, such as
declared by Principle 6 Guiding Principles.
21 The practice shows that these declarations can be addressed to one State in the context of
bilateral relations. Such is the case with the Colombian diplomatic note addressed to the
Venezuelan government, the Cuban declarations concerning the supply of vaccines to Uruguay,
the protests by the Russian Federation, and the Ihlen Declaration (see Eighth Report paras 1516,
36, 85, 99, and 117).
22 Other declarations are addressed to the international community as a whole and contain erga
omnes undertakings (Obligations erga omnes). Thus, Egypts declaration concerning the Suez
Canal is not addressed only to the States Parties to the Convention Respecting the Free Navigation
of the Suez Canal ([signed 29 October 1888, entered into force 22 December 1888] (188889) 171
CTS 241) or to States members of the Suez Canal Users Association, but to the entire international
community (Eighth Report para. 62). Similarly, the Truman Proclamation (Eighth Report para. 127)
and also the French declarations (Nuclear Tests Case paras 5053) were addressed
simultaneously to the international community, and the declaration made by the King of Jordan
waiving Jordans claims to the West Bank territories was addressed to another State (Israel) and to
another entity as the Palestine Liberation Organization (PLO) (Eighth Report para. 45). The
declarations of Switzerland show that an international organization can also be the addressee of a
unilateral declaration made by a State (Eighth Report para. 138).
(d) Unilateral Acts and Third States/Entities

23 It is well established in international law that obligations cannot be imposed upon a State without
its consent. There is no reason why this principle, contained in Art. 34 VCLT, should not also be
applied to unilateral declarations. The consequence is that a State can only impose obligations on
other States to which it has addressed a unilateral declaration if the other States unequivocally
accept these obligations. If it is the case, the declaration accepted by another State could
constitute a treaty, adapted to the conditions established in the VCLT.
24 The Truman Proclamation, by which the United States aimed to impose obligations on other
States or, at least, to limit their rights on the American continental shelf, was not strictly speaking
subject to acceptance by other States. All the same, as the ICJ has stressed, this regime [of the
continental shelf] furnishes an example of a legal theory derived from a particular source that has
secured a general following ( North Sea Continental Shelf Cases [Federal Republic of
Germany/Denmark; Federal Republic of Germany/Netherlands] para. 100; North Sea Continental
Shelf Cases). In fact, the other States responded to the 1945 proclamation with comparable claims
and declarations (see the response of Mexico in Eighth Report para. 132) and shortly thereafter,
the declaration was taken up in Art. 2 Convention on the Continental Shelf of 1958 (Maritime
Delimitation Cases before International Courts and Tribunals). It could therefore be said to have
been generally accepted and it marked a point of departure for a customary process leading, in a
very short time, to a new norm of international law. The ICJ remarked in that context: The Truman
Proclamation however, soon came to be regarded as a starting point of the positive law on the
subject, and the chief doctrine it enunciated came to prevail over all others, being now reflected
in Article 2 of the 1958 Geneva Convention on the Continental Shelf (North Sea Continental Shelf
Cases para. 47).
6. Interpretation of Unilateral Acts

25 Due to the nature of unilateral acts of States, in comparison with that of international treaties,
the rules of interpretation (see also Interpretation in International Law) in both cases must be
different. It has been accepted that, with regard to unilateral acts of States, the circumstances of
the case, the context, and the text of the declaration may be relevant factors to the interpretation
of the statement concerned. Principle 3 Guiding Principles says: 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.
26 In case of doubt as to the scope of the obligations resulting from such a declaration, such
obligations must be interpreted in a restrictive manner or, as the ICJ puts it, a restrictive
interpretation is imposed (Nuclear Tests Case paras 44 and 47; Anglo-Iranian Oil Company Case
[United Kingdom v Iran] [Preliminary Objection] 1068; Anglo-Iranian Oil Company Case). 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. The ICJ
confirms in its judgment on the Nuclear Tests Case that a unilateral declaration may have the effect
of creating legal obligations for the State making the declaration only if it is clear and specific in
nature ( Nuclear Tests Case paras 43, 51 and Nuclear Tests Case [New Zealand v France] paras
46, 53 ). This principle has been confirmed by the ICJ in the case concerning Armed Activities
(Congo v Rwanda) (at paras 50 and 52).
27 With regard, in particular, to the methods and means of interpretation, attention is drawn to the
observation made by the ICJ concerning the unilateral declarations accepting its compulsory
jurisdiction, which states that:
the rgime 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 of the Law 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 unilateral acceptance of the Courts jurisdiction. ( Fisheries Jurisdiction Case
[Spain v Canada][Jurisdiction of the Court] para. 46; Fisheries Jurisdiction Case [Spain v
Canada].)
Applying the ICJs dictum and by analogy in international law with Art. 31 (1) VCLT, priority
consideration must be given to the text of the unilateral declaration, which best reflects its authors
intentions. In addition, as acknowledged by the ICJ in its judgment in the Frontier Dispute Case, to
assess the intention of the author of a unilateral act, account must be taken of all the
circumstances in which the act occurred (at para. 40; see also Nuclear Tests Case paras 51, 53;
Armed Activities [Congo v Rwanda] para. 53).
7. Nullity, Revocation, and Revision of Unilateral Acts

28 A unilateral declaration may be considered as null and void under determined circumstances
(Nullity in International Law). It has been considered that it was preferable to limit the examination of
these causes of nullity to the conflict of the unilateral declaration with a peremptory norm of
international law, thus avoiding the consideration of other causes of nullity such as those
mentioned in the VCLT regime (see also Treaties, Validity).
29 The nullity of a unilateral act which is contrary to a peremptory norm of international law derives
from the analogous rule contained in Art. 53 VCLT. This rule may be applied to unilateral
declarations (see UN ILC Report of the International Law Commission on the Work of Its Fifty-First
Session [3 May23 July 1999] para. 557; UN ILC Report of the International Law Commission on the
Work of Its Fifty-Second Session [1 May9 June and 10 July18 August 2000] para. 597). In its
judgment in the Armed Activities (Congo v Rwanda) case, the ICJ did not exclude the possibility
that a unilateral declaration by Rwanda could forfeit its validity in the event that it was in conflict
with a norm of ius cogens (Armed Activities [Congo v Rwanda] para. 69).
30 In its judgment in the Nuclear Tests Cases, the ICJ states that the unilateral undertaking
resulting from [the French] statements cannot be interpreted as having been made in implicit
reliance on an arbitrary power of reconsideration (Nuclear Tests Case para. 51; Nuclear Tests
Case [New Zealand v France] para. 53). Unilateral acts may be withdrawn or revised in certain
specific circumstances, not arbitrarily.
31 The reconsideration or, at least, the withdrawal of a unilateral act has been a very complex
question. Whether the answer is positive or negative will depend on many factors such as the
nature of the act, its effects, the expectations derived from it, the particular context and
circumstances of the act, etc. The principle of good faith (Bona fide), in order to maintain the
obligations unilaterally assumed, must be taken into account; but also, as it is applied in the field of
international treaties, a fundamental change of circumstances (Treaties, Fundamental Change of
Circumstances) may give rise to withdrawal of the unilateral act or to the suspension of its effects
temporarily (see also Treaties, Suspension).
32 In the ILC Conclusions adopted at the end of the Session in 2006, the ILC has drawn up an open-
ended list of criteria to be taken into consideration when determining whether or not a withdrawal is
arbitrary: a) the terms of the declaration are clear in this regard; b) the beneficiaries of the
obligation undertaken by the State have relied on these obligations (see also Reciprocity); c) the
fundamental change of circumstances.
33 In fact, a unilateral declaration may be revoked following a change of circumstances within the
strict limits of the customary rule enshrined in Art. 62 VCLT ( Fisheries Jurisdiction Case [Federal
Republic of Germany v Iceland] [Jurisdiction of the Court] para. 36; Gabkovo-Nagymaros Project
[Hungary/Slovakia] para. 104; Gabkovo-Nagymaros Case [Hungary/Slovakia]). The necessary
balance between the stability of international relations, combined with the need to safeguard the
freedom of States, and the flexible character of this issue have been key aspects of Principle 10
Guiding Principles: a compromise between these tendencies. If one treaty may be revised in some
cases the same idea must be applied, with certain limits, to unilateral acts of States.
8. Legal Effects of Unilateral Acts

34 As a basis for the binding nature of unilateral acts one may consider the principle of good faith.
In 1974, both ICJ decisions on Nuclear Tests Cases, concerning the statements made by some
representatives of France about the suspension of nuclear tests in the South Pacific Region,
pointed out that:
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 cooperation, in particular in an age when this cooperation 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 declarations. 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 (Nuclear Tests Case para. 46 [an analysis of this
case is contained in the Eighth Report paras 7083]; Nuclear Tests Case [New Zealand v
France] para. 49).
35 The ILC, following these decisions of the ICJ, considered in Principle 1 Guiding Principles, that
the binding character of such declarations is based on good faith.
36 Recent judgments of the ICJ determine the effects of such declarations. In the Armed Activities
(Congo v Rwanda) case the ICJ states as follows: In order to determine the legal effect of that
statement, the Court must, however, examine its actual content as well as the circumstances in
which it was made (at para. 49).
37 It is necessary to make a reference to the so-called eloquent silence or, that is to say, the
absence of protest when a State must react when its rights are threatened by the action of another
State (Dubai-Sharjah Border Arbitration [Award] 623). Although the silence of the State concerned
is not properly a unilateral act stricto sensu, it may suggest a certain degree of acquiescence, and
subsequently produce some legal consequences, if the circumstances of the case provide
sufficient conditions (Government of the State of Eritrea and Government of the Republic of
Yemen [First Stage: Territorial Sovereignty and Scope of the Dispute] 84; see also Eritrea-Yemen
Arbitration). This relation between the silence as equivalent to acquiescence has been drawn by
the ICJ in some relevant cases (Fisheries Case [United Kingdom v Norway] 138; Temple of Preah
Vihear [Cambodia v Thailand] [Merits] 23). In the latter case, the ICJ determined:
[I]t is clear that the circumstances were such as called for some reaction, within a
reasonable period, on the part of the Siamese authorities, if they wished to disagree with
the map or had any serious question to raise in regard to it. They did not do so, either then
or for many years, and thereby must be held to have acquiesced (ibid.)
38 The judgment of the ICJ dated 8 October 2007, in the Maritime Delimitation between Nicaragua
and Honduras in the Caribbean Sea Case (Nicaragua v Honduras), reveals the importance of
conduct of States and the absence of protest:
Honduras has shown a sufficient overall pattern of conduct to demonstrate its intention to
act as a sovereign in respect of Bobel Cay, Savanna Cay, Port Royal Cay and South Cay.
The Court further notes that those Honduran activities qualifying as effectivits which can
be assumed to have come to the knowledge of Nicaragua did not elicit any protest on the
part of the latter ( Territorial and Maritime Dispute between Nicaragua and Honduras in
the Caribbean Sea [Nicaragua v Honduras] para. 208).
39 Relevant facts, including the conduct of the Parties, are seriously analyzed by the ICJ to give its
reasoning:
The Court is of the opinion that the relevant facts, including the conduct of the Parties,
previously reviewed and summarized in the two preceding paragraphs, reflect a
convergent evolution of the positions of the Parties regarding title to Pedra Branca/Pulau
Batu Puteh (Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South
Ledge [Malaysia/Singapore] para. 276).
Recent ICJ cases are focused on State activities (see Maritime Delimitation in the Black Sea
[Romania v Ukraine] para. 198). In particular, on the acceptance of the ICJ jurisdiction (forum
prorogatum), the Court argues that the attitude of the respondent Statemust be capable of being
regarded as an unequivocal indication of the desire of that State to accept the Courts jurisdiction
in a voluntary and indisputable manner (Certain Questions of Mutual Assistance in Criminal
Matters [Djibouti v France] para. 62, citing Armed Activities [Congo v Rwanda]para. 21).
40 Following the same reasoning, the ILC, in the conclusions adopted in 2006, noted that
behaviours capable of legally binding States may take the form of formal declarations or mere
informal conduct including, in certain situations, silence, on which other States may reasonably
rely (see ILC Conclusions 3).
B. Assessment
41 Almost 10 years of work in the context of the ILC, the analysis of international practice of
unilateral acts of States and the judgments of international courts and tribunals confirm the
relevance of unilateral acts of States as a source of obligations. Although the labour of codification
and progressive development of this category of acts has demonstrated the difficulties in obtaining
a comprehensive definition, and a list of the general rules governing these acts, the adoption of 10
Guiding Principles on formal declarations has not solved all the questions. A State may be bound by
conduct other than formal declarations, and this idea has been pointed out in the guidelines
adopted by the ILC (Guiding Principles 36768). Behaviour of States can produce legal
consequences in the international sphere but the codification of these conducts and their
consequences is not possible nowadays. Traditional categories of unilateral acts studied by the
doctrinesuch as recognition, promise, waiver, protest, notification, or, in many cases, the effects
produced by silence and estoppelhave not been very useful in order to determine the
characteristics and rules governing unilateral acts of States in international law. For instance,
international courts and tribunals have preferred to make reference to the situations involved, the
context, and all the facts surrounding the case, instead of using these formal categories.
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Unilateral Acts of States in International Law

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Unilateral Acts of States in International Law

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Unilateral

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1. Definition of Unilateral Act of State

2. Jurisprudence of International Courts

4. Unilateral Acts under Consideration by the ILC

5. Formulation of Unilateral Acts

(a) Capacity of the State and Persons Authorized to Formulate a Unilateral

(b) The Form of Unilateral Declarations

(d) Unilateral Acts and Third States/Entities

6. Interpretation of Unilateral Acts

7. Nullity, Revocation, and Revision of Unilateral Acts

8. Legal Effects of Unilateral Acts

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