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Unilateral Acts of States in Public International Law. By Przemysław Saganek

Unilateral Acts of States in Public International Law. By Przemysław Saganek Unlike the law of treaties, which has been codified since the 1960s, the ‘law of unilateral acts’ has featured little regulation and attracted relatively scarce doctrinal attention. In 1996 the International Law Commission (ILC) recognized that the topic of unilateral acts was appropriate for codification and progressive development. However, its work did not result in a comprehensive instrument. At its 58th session in 2006, the ILC adopted ten ‘Guiding Principles applicable to unilateral declarations of states capable of creating legal obligations’ (Guiding Principles).1 As the ILC explained in its introductory remarks, the Guiding Principles were limited to unilateral acts stricto sensu, that is, formal declarations ‘publicly made and manifesting the will to be bound’. The ILC acknowledged that there also existed a ‘very wide spectrum’ of other behaviours that could be designated as unilateral acts, but where there was no intent to produce legal effects through ‘creating, recognizing, safeguarding or modifying rights, obligations or legal situations’. For example, in the Temple of Preah Vihear case the International Court of Justice (ICJ) relied on a number of circumstances and communications between the governments of Cambodia and Thailand, including an expression of gratitude, to conclude that the binding character of a map delimiting the respective territories of these two states had been accepted by Thailand.2 The ILC’s work did not cover such other acts. Przemysław Saganek’s book on Unilateral Acts of States in Public International Law is an attempt to fill the doctrinal gap on the topic through a comprehensive and thorough exploration of the world of unilateral acts. The book reaches beyond the traditionally recognized or ‘classical’ unilateral acts (promise, waiver, protest and recognition), and contains an interesting and often provocative analysis of a plethora of legal issues arising in connection with a broad scope of unilateral acts. The book is not intended to be a formal and systematic presentation of unilateral acts. As the author explains at the outset, it ‘deliberately deviates’ from the ‘standard’ that would involve ‘a description of classical acts and an attempt to find their common characteristics’ (2). Naturally, this approach has both positive and negative consequences, of intellectual stimulation on the one hand, and analytical confusion, on the other. One sometimes wonders whether the Augean task that the author had set for himself would have benefited from a more systematic approach. The author’s approach is reflected in the structure of the book itself. ‘Non-classical’ acts are presented in Part 2 and precede the detailed examination of ‘classical’ acts in Parts 3 and 4. From a methodological point of view, it would have been preferable if these Parts were inverted, which would have avoided a number of inconsistencies, some of which are mentioned below. The four chapters in Part 1 (General Theory of Unilateral Acts) contain a thorough and meticulous presentation of literature and doctrinal issues relating to terminology, definition, types, and validity of unilateral acts. Chapter 1 (Unilateral Acts in International Law – Terminology and Evolution of Views) marks the beginning of an interesting journey through the history and theory of unilateral acts, across publications originating in different eras and in a variety of juridical cultures. In this chapter (and in the whole of Part 1) the author’s narration takes a descriptive form. Paradoxically, he adopts the ‘standard’ that he has aimed to avoid with respect to his overall analysis of unilateral acts, often engaging in extensive categorization of doctrinal views and publications on the topic. However, to some degree, this provides an opportunity to explore the relevant doctrine and the evolution of the work on the topic within the ILC, as reflected in the reports of its Special Rapporteur on unilateral acts of states, to which the author refers at length. Chapter 2 (Definition of Unilateral Acts) begins with the classification of legal facts, with a clear focus on historical doctrine. The author then discusses the issues of autonomy of unilateral acts, collective acts, and the distinction between acts of international law and municipal law. Acknowledging the difficulty in formulating a definition of unilateral acts, the author decides against providing such a definition. He chooses instead to rely on certain elements of unilateral acts, to which he refers as ‘aspects’. As might be expected, considering his approach to ‘non-classical’ acts, the author favours a broad understanding of unilateral acts, which rests above all on the premise that unilateral acts ‘must give rise to legal effects in the sphere of public international law’. Such acts must not be contractual in nature or be an element of an international agreement, and must be ‘autonomous’ (85). One of the ‘aspects’ introduced by the author in his conclusions merits attention. This is the notion of ‘true acts’. According to Saganek, only such ‘true acts’ are ‘important’ for the topic of the book. However, the author does not adequately explain this concept, neither in Part 1 nor in the book’s final conclusions, where he summarizes his analysis. In the latter, the author states that ‘[t]rue unilateral acts are unilateral acts sensu stricto’ (633), as opposed to acts sensu largo (which are not fully autonomous). It is regrettable that the author does not clarify how the concept of a ‘true act’ or an ‘act sensu stricto’ relates to the above-mentioned concept of ‘unilateral acts stricto sensu’, referred to in the introductory remarks to the Guiding Principles. As expected, the criterion that there must be a manifestation of the ‘will to be bound’ (Principle 1 of the Guiding Principles) is excluded from the author’s concept of a unilateral act. However, despite this lack of explicit treatment, the will to be bound does not seem to be entirely irrelevant for the purposes of the analysis. The author relies on it occasionally (for example, in section 4.4 of Chapter 4, where ‘grounds of invalidity concerning the will of a state’ are discussed (122)). Chapter 2 also contains a brief section on unilateral acts in the context of sources of international law. Unfortunately, the extremely interesting questions of whether unilateral acts may be a source of law, and the extent to which they may challenge the classical list of sources—widely discussed in the literature—are treated in a superficial manner and dismissed by the author as ‘more important for the study of sources of international law than the study of unilateral acts of states’ (81). The author returns to the problem of unilateral acts as sources briefly in the chapter on promises but, again, does not engage in a more meaningful analysis of the topic. Chapter 3 is devoted to the classification of unilateral acts. At the conclusion of this chapter the author leaves the reader in some suspense as to whether the ‘classical catalogue’ of unilateral acts (promise, waiver, protest and recognition) is exhaustive or whether certain ‘non-classical’ acts may also be classified as unilateral acts. This hesitation appears to be intentional. As the author explains later, ‘[t]he aim of the entire Part 2 is to address [this] question’ (111). However, leaving the question unanswered at this stage has a number of drawbacks. Among other things, it affects the examination of the issue of validity of unilateral acts in the next chapter. Because the precise range of acts at stake is not determined, the analysis there must necessarily be performed somewhat ‘in the dark’. To some degree, this is mitigated by the author’s explanation that the issue of validity is ‘strictly connected with the question of the organs competent to make such acts’ (112). In fact, this chapter’s focus is on the competence of authorities, not on the acts themselves. Nevertheless, Saganek does not hesitate to include numerous references to ‘non-classical’ acts in this part, as well as in his conclusions. This creates the presumption—in advance of the examination in Part 2 of the book—that such acts (the exact scope of which is not known at this stage) must indeed be covered by the notion of unilateral acts. In his conclusions to Chapter 4, the author takes the view that the principles of the Vienna Convention on the Law of Treaties (VCLT) are ‘well justified’ for determining the validity of unilateral acts. He emphasizes that this is limited to unilateral acts that create legal obligations. He also notes that for these principles to apply to ‘non-classical’ acts, the latter must be in conformity with ‘precise norms of international law’ (166). It is regrettable that when reaching his conclusions the author does not take the opportunity to examine in greater depth the similarities and differences between treaties and unilateral acts—both ‘classical’ and ‘non-classical’ ones—as sources of international obligations, and explain in more detail the rationale for the applicability of the VCLT to the latter category. As mentioned above, ‘non-classical’ acts are discussed in Part 2 of the book. As its title suggests, this part constitutes a ‘Search of Unilateral Acts. Survey of Fields and Topics of International Law’. In its five chapters (5–9) the author conducts a meticulous and interesting search for unilateral acts in the following areas: individual actions of states regulated by the law of treaties, territory, norms of international law pertaining to individuals, diplomacy, and the use of force. The author concludes that the following list of acts covers ‘true unilateral legal acts of states in public international law’: declaration of war, the establishment of a maritime blockade, permission to enter or leave a blocked port, declaration of neutrality, and a de facto start of war activities (333). Part 3 (‘Creation of Obligations. The Problem of Unilateral Promises’) begins the long-awaited survey of ‘classical’ acts. This Part is in its entirety devoted to unilateral promises, which the author recognizes as having ‘a special position among unilateral acts’ (336). Chapter 10 attempts to answer the question posed through its title: ‘Is it possible to create obligations by the means of unilateral declarations?’. With respect to unilateral acts, this is an important issue because it focuses on the criteria allowing such acts to be distinguished from political or other acts that do not create legal obligations. In this context, the author discusses, among other things, the legal effect of unilateral declarations and the place of unilateral promises among sources of public international law. In this part of the discussion, the author invokes the rulings of the ICJ in the Eastern Greenland, Nuclear Tests and South West Africa cases, thus breaking (halfway through the book) what appears to be his general reluctance to analyse the case law of the PCIJ and the ICJ. However, the late acknowledgement of the relevance of the jurisprudence of these two international tribunals in the development of the concept of unilateral acts may be due to the structure of the book and the author’s decision to focus on doctrinal and theoretical issues, rather than jurisprudence, in its first chapters. Chapter 11 (The Nature and Characteristics of Unilateral Promises) contains a comprehensive and well-structured study of various aspects of unilateral promises, in which the author relies significantly on the work of the ILC and case law of the ICJ. Unfortunately, the author does not take into account literature that was published after the first version of his book. For example, the monograph by Christian Eckart,3 although listed in the bibliography, finds no reflection in this Part. It would have been interesting to discover, for example, the author’s assessment of Kosovo’s promise to follow the Ahtisaari Plan after its declaration of independence. Part 4 (Other Classical Acts) is devoted to the remaining ‘classical’ acts. Of these, the author clearly favours recognition, devoting three of this Part’s five chapters to this category of unilateral acts. These chapters address various aspects of recognition: legal problems of recognition (Chapter 12), recognition as a type of legal act (Chapter 13), and the question whether recognition is a legal act by definition (Chapter 14). The author pays much attention to doctrine, and the systematization of views is, of course, extremely valuable. However, the chapters would have benefited from reference to recent practice. For example, it would probably be more interesting to discover the author’s evaluation of the recognition of Kosovo than it is to learn that ‘[o]ne of the longest lists of forms of recognition can be found in several editions of the manual of Oppenheim’ (552). Chapters 15 and 16, which concern waiver and protest, respectively, contain relatively brief accounts of these two categories of unilateral acts. Although the chapter titles refer to ‘public international law’ (Chapter 15) and ‘international law’ (Chapter 16), this does not seem intentional. One may note here that the terminology used in the book is not always consistent, which disrupts the flow of the narrative. Another example, just from the table of contents, is the interchangeable use in various chapter titles of the terms ‘unilateral acts’ and ‘unilateral acts of states’ (denoting the same concept). Saganek’s reliance on sources is problematic at times. Of course, in a monumental work like this, covering an impressive bulk of literature over a period of more than a century, occasional problems could be expected. However, there is little justification for reliance on secondary sources (such as A Makarov, W Wengler and A Verdross, cited on the basis of footnotes in W Czaplinski (253)), or for omissions or errors in the notes and bibliography. For example, while the bibliography lists the nine reports of the Special Rapporteur, it has no room for the documents containing the ILC conclusions and the Guiding Principles. However, overall, the book is a timely and valuable contribution to the doctrine and theory of unilateral acts. It responds to an increased interest among scholars and practitioners in these types of acts,4 and will certainly establish itself as an essential and time-resistant publication on unilateral acts of states. Footnotes 1Unilateral Acts of States: Report of the Working Group: Conclusions of the International Law Commission Relating to Unilateral Acts of States (20 July 2006), UN Doc A/CN.4/L.703. 2Case Concerning the Temple of Preah Vihear (Cambodia v Thailand) (Preliminary Objections) [1961] ICJ Rep 17 3Promises of States under International Law (Hart 2012). 4 Another book worth mentioning, published at almost the same time in the same series as the work under review here (Queen Mary Studies in International law, edited by M Fitzmaurice and P Okowa) was that by E Kassoti, The Juridical Nature of Unilateral Acts of States in International Law (Brill Nijhoff 2015). © The Author(s) 2018. Published by Oxford University Press. Available online at www.bybil.oxfordjournals.org This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png The British Yearbook of International Law Oxford University Press

Unilateral Acts of States in Public International Law. By Przemysław Saganek

Gomula, Joanna
The British Yearbook of International Law , Volume Advance Article – May 30, 2018
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© The Author(s) 2018. Published by Oxford University Press. Available online at www.bybil.oxfordjournals.org
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Abstract

Unlike the law of treaties, which has been codified since the 1960s, the ‘law of unilateral acts’ has featured little regulation and attracted relatively scarce doctrinal attention. In 1996 the International Law Commission (ILC) recognized that the topic of unilateral acts was appropriate for codification and progressive development. However, its work did not result in a comprehensive instrument. At its 58th session in 2006, the ILC adopted ten ‘Guiding Principles applicable to unilateral declarations of states capable of creating legal obligations’ (Guiding Principles).1 As the ILC explained in its introductory remarks, the Guiding Principles were limited to unilateral acts stricto sensu, that is, formal declarations ‘publicly made and manifesting the will to be bound’. The ILC acknowledged that there also existed a ‘very wide spectrum’ of other behaviours that could be designated as unilateral acts, but where there was no intent to produce legal effects through ‘creating, recognizing, safeguarding or modifying rights, obligations or legal situations’. For example, in the Temple of Preah Vihear case the International Court of Justice (ICJ) relied on a number of circumstances and communications between the governments of Cambodia and Thailand, including an expression of gratitude, to conclude that the binding character of a map delimiting the respective territories of these two states had been accepted by Thailand.2 The ILC’s work did not cover such other acts. Przemysław Saganek’s book on Unilateral Acts of States in Public International Law is an attempt to fill the doctrinal gap on the topic through a comprehensive and thorough exploration of the world of unilateral acts. The book reaches beyond the traditionally recognized or ‘classical’ unilateral acts (promise, waiver, protest and recognition), and contains an interesting and often provocative analysis of a plethora of legal issues arising in connection with a broad scope of unilateral acts. The book is not intended to be a formal and systematic presentation of unilateral acts. As the author explains at the outset, it ‘deliberately deviates’ from the ‘standard’ that would involve ‘a description of classical acts and an attempt to find their common characteristics’ (2). Naturally, this approach has both positive and negative consequences, of intellectual stimulation on the one hand, and analytical confusion, on the other. One sometimes wonders whether the Augean task that the author had set for himself would have benefited from a more systematic approach. The author’s approach is reflected in the structure of the book itself. ‘Non-classical’ acts are presented in Part 2 and precede the detailed examination of ‘classical’ acts in Parts 3 and 4. From a methodological point of view, it would have been preferable if these Parts were inverted, which would have avoided a number of inconsistencies, some of which are mentioned below. The four chapters in Part 1 (General Theory of Unilateral Acts) contain a thorough and meticulous presentation of literature and doctrinal issues relating to terminology, definition, types, and validity of unilateral acts. Chapter 1 (Unilateral Acts in International Law – Terminology and Evolution of Views) marks the beginning of an interesting journey through the history and theory of unilateral acts, across publications originating in different eras and in a variety of juridical cultures. In this chapter (and in the whole of Part 1) the author’s narration takes a descriptive form. Paradoxically, he adopts the ‘standard’ that he has aimed to avoid with respect to his overall analysis of unilateral acts, often engaging in extensive categorization of doctrinal views and publications on the topic. However, to some degree, this provides an opportunity to explore the relevant doctrine and the evolution of the work on the topic within the ILC, as reflected in the reports of its Special Rapporteur on unilateral acts of states, to which the author refers at length. Chapter 2 (Definition of Unilateral Acts) begins with the classification of legal facts, with a clear focus on historical doctrine. The author then discusses the issues of autonomy of unilateral acts, collective acts, and the distinction between acts of international law and municipal law. Acknowledging the difficulty in formulating a definition of unilateral acts, the author decides against providing such a definition. He chooses instead to rely on certain elements of unilateral acts, to which he refers as ‘aspects’. As might be expected, considering his approach to ‘non-classical’ acts, the author favours a broad understanding of unilateral acts, which rests above all on the premise that unilateral acts ‘must give rise to legal effects in the sphere of public international law’. Such acts must not be contractual in nature or be an element of an international agreement, and must be ‘autonomous’ (85). One of the ‘aspects’ introduced by the author in his conclusions merits attention. This is the notion of ‘true acts’. According to Saganek, only such ‘true acts’ are ‘important’ for the topic of the book. However, the author does not adequately explain this concept, neither in Part 1 nor in the book’s final conclusions, where he summarizes his analysis. In the latter, the author states that ‘[t]rue unilateral acts are unilateral acts sensu stricto’ (633), as opposed to acts sensu largo (which are not fully autonomous). It is regrettable that the author does not clarify how the concept of a ‘true act’ or an ‘act sensu stricto’ relates to the above-mentioned concept of ‘unilateral acts stricto sensu’, referred to in the introductory remarks to the Guiding Principles. As expected, the criterion that there must be a manifestation of the ‘will to be bound’ (Principle 1 of the Guiding Principles) is excluded from the author’s concept of a unilateral act. However, despite this lack of explicit treatment, the will to be bound does not seem to be entirely irrelevant for the purposes of the analysis. The author relies on it occasionally (for example, in section 4.4 of Chapter 4, where ‘grounds of invalidity concerning the will of a state’ are discussed (122)). Chapter 2 also contains a brief section on unilateral acts in the context of sources of international law. Unfortunately, the extremely interesting questions of whether unilateral acts may be a source of law, and the extent to which they may challenge the classical list of sources—widely discussed in the literature—are treated in a superficial manner and dismissed by the author as ‘more important for the study of sources of international law than the study of unilateral acts of states’ (81). The author returns to the problem of unilateral acts as sources briefly in the chapter on promises but, again, does not engage in a more meaningful analysis of the topic. Chapter 3 is devoted to the classification of unilateral acts. At the conclusion of this chapter the author leaves the reader in some suspense as to whether the ‘classical catalogue’ of unilateral acts (promise, waiver, protest and recognition) is exhaustive or whether certain ‘non-classical’ acts may also be classified as unilateral acts. This hesitation appears to be intentional. As the author explains later, ‘[t]he aim of the entire Part 2 is to address [this] question’ (111). However, leaving the question unanswered at this stage has a number of drawbacks. Among other things, it affects the examination of the issue of validity of unilateral acts in the next chapter. Because the precise range of acts at stake is not determined, the analysis there must necessarily be performed somewhat ‘in the dark’. To some degree, this is mitigated by the author’s explanation that the issue of validity is ‘strictly connected with the question of the organs competent to make such acts’ (112). In fact, this chapter’s focus is on the competence of authorities, not on the acts themselves. Nevertheless, Saganek does not hesitate to include numerous references to ‘non-classical’ acts in this part, as well as in his conclusions. This creates the presumption—in advance of the examination in Part 2 of the book—that such acts (the exact scope of which is not known at this stage) must indeed be covered by the notion of unilateral acts. In his conclusions to Chapter 4, the author takes the view that the principles of the Vienna Convention on the Law of Treaties (VCLT) are ‘well justified’ for determining the validity of unilateral acts. He emphasizes that this is limited to unilateral acts that create legal obligations. He also notes that for these principles to apply to ‘non-classical’ acts, the latter must be in conformity with ‘precise norms of international law’ (166). It is regrettable that when reaching his conclusions the author does not take the opportunity to examine in greater depth the similarities and differences between treaties and unilateral acts—both ‘classical’ and ‘non-classical’ ones—as sources of international obligations, and explain in more detail the rationale for the applicability of the VCLT to the latter category. As mentioned above, ‘non-classical’ acts are discussed in Part 2 of the book. As its title suggests, this part constitutes a ‘Search of Unilateral Acts. Survey of Fields and Topics of International Law’. In its five chapters (5–9) the author conducts a meticulous and interesting search for unilateral acts in the following areas: individual actions of states regulated by the law of treaties, territory, norms of international law pertaining to individuals, diplomacy, and the use of force. The author concludes that the following list of acts covers ‘true unilateral legal acts of states in public international law’: declaration of war, the establishment of a maritime blockade, permission to enter or leave a blocked port, declaration of neutrality, and a de facto start of war activities (333). Part 3 (‘Creation of Obligations. The Problem of Unilateral Promises’) begins the long-awaited survey of ‘classical’ acts. This Part is in its entirety devoted to unilateral promises, which the author recognizes as having ‘a special position among unilateral acts’ (336). Chapter 10 attempts to answer the question posed through its title: ‘Is it possible to create obligations by the means of unilateral declarations?’. With respect to unilateral acts, this is an important issue because it focuses on the criteria allowing such acts to be distinguished from political or other acts that do not create legal obligations. In this context, the author discusses, among other things, the legal effect of unilateral declarations and the place of unilateral promises among sources of public international law. In this part of the discussion, the author invokes the rulings of the ICJ in the Eastern Greenland, Nuclear Tests and South West Africa cases, thus breaking (halfway through the book) what appears to be his general reluctance to analyse the case law of the PCIJ and the ICJ. However, the late acknowledgement of the relevance of the jurisprudence of these two international tribunals in the development of the concept of unilateral acts may be due to the structure of the book and the author’s decision to focus on doctrinal and theoretical issues, rather than jurisprudence, in its first chapters. Chapter 11 (The Nature and Characteristics of Unilateral Promises) contains a comprehensive and well-structured study of various aspects of unilateral promises, in which the author relies significantly on the work of the ILC and case law of the ICJ. Unfortunately, the author does not take into account literature that was published after the first version of his book. For example, the monograph by Christian Eckart,3 although listed in the bibliography, finds no reflection in this Part. It would have been interesting to discover, for example, the author’s assessment of Kosovo’s promise to follow the Ahtisaari Plan after its declaration of independence. Part 4 (Other Classical Acts) is devoted to the remaining ‘classical’ acts. Of these, the author clearly favours recognition, devoting three of this Part’s five chapters to this category of unilateral acts. These chapters address various aspects of recognition: legal problems of recognition (Chapter 12), recognition as a type of legal act (Chapter 13), and the question whether recognition is a legal act by definition (Chapter 14). The author pays much attention to doctrine, and the systematization of views is, of course, extremely valuable. However, the chapters would have benefited from reference to recent practice. For example, it would probably be more interesting to discover the author’s evaluation of the recognition of Kosovo than it is to learn that ‘[o]ne of the longest lists of forms of recognition can be found in several editions of the manual of Oppenheim’ (552). Chapters 15 and 16, which concern waiver and protest, respectively, contain relatively brief accounts of these two categories of unilateral acts. Although the chapter titles refer to ‘public international law’ (Chapter 15) and ‘international law’ (Chapter 16), this does not seem intentional. One may note here that the terminology used in the book is not always consistent, which disrupts the flow of the narrative. Another example, just from the table of contents, is the interchangeable use in various chapter titles of the terms ‘unilateral acts’ and ‘unilateral acts of states’ (denoting the same concept). Saganek’s reliance on sources is problematic at times. Of course, in a monumental work like this, covering an impressive bulk of literature over a period of more than a century, occasional problems could be expected. However, there is little justification for reliance on secondary sources (such as A Makarov, W Wengler and A Verdross, cited on the basis of footnotes in W Czaplinski (253)), or for omissions or errors in the notes and bibliography. For example, while the bibliography lists the nine reports of the Special Rapporteur, it has no room for the documents containing the ILC conclusions and the Guiding Principles. However, overall, the book is a timely and valuable contribution to the doctrine and theory of unilateral acts. It responds to an increased interest among scholars and practitioners in these types of acts,4 and will certainly establish itself as an essential and time-resistant publication on unilateral acts of states. Footnotes 1Unilateral Acts of States: Report of the Working Group: Conclusions of the International Law Commission Relating to Unilateral Acts of States (20 July 2006), UN Doc A/CN.4/L.703. 2Case Concerning the Temple of Preah Vihear (Cambodia v Thailand) (Preliminary Objections) [1961] ICJ Rep 17 3Promises of States under International Law (Hart 2012). 4 Another book worth mentioning, published at almost the same time in the same series as the work under review here (Queen Mary Studies in International law, edited by M Fitzmaurice and P Okowa) was that by E Kassoti, The Juridical Nature of Unilateral Acts of States in International Law (Brill Nijhoff 2015). © The Author(s) 2018. Published by Oxford University Press. Available online at www.bybil.oxfordjournals.org This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)

Journal

The British Yearbook of International Law – Oxford University Press

Published: May 30, 2018

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