Unilateral Acts of States in Public International Law

670 Pages·2016·2.287 MB·English

by  Saganek, Przemyslaw

Unilateral Acts of States in Public International Law
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Queen Mary Studies in
International Law
Edited by
Malgosia Fitzmaurice
Phoebe Okowa
volume 22
The titles published in this series are listed at brill.com/qmil
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Unilateral Acts of States in
Public International Law
By
Przemysław Saganek
LEIDEN | BOSTON
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Library of Congress Cataloging-in-Publication Data
Saganek, Przemyslaw., author.
 Unilateral acts of states in public international law / by Przemyslaw Saganek.
  pages cm. -- (Queen Mary studies in international law ; volume 22)
 Includes bibliographical references and index.
 ISBN 978-90-04-27460-0 (hardback : alk. paper) -- ISBN 978-90-04-27461-7 (e-book) 1. Unilateral acts
(International law) I. Title.
 KZ1262.J87.S34 2016
 341.26--dc23
2015035045
This publication has been typeset in the multilingual “Brill” typeface. With over 5,100 characters covering
Latin, ipa, Greek, and Cyrillic, this typeface is especially suitable for use in the humanities. For more
information, please see www.brill.com/brill-typeface.
issn 1877-4822
isbn 978-90-04-27460-0 (hardback)
isbn 978-90-04-27461-7 (e-book)
Copyright 2016 by Koninklijke Brill nv, Leiden, The Netherlands.
Koninklijke Brill nv incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi and
Hotei Publishing.
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Fees are subject to change.
This book is printed on acid-free paper.
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Contents
List of Abbreviations vii
Introduction 1
Part 1
General Theory of Unilateral Acts
1 Unilateral Acts in International Law – Terminology and
Evolution of Views 9
2 Definition of Unilateral Acts 34
3 Types of Unilateral Acts of States in Public International Law 86
4 Validity of Unilateral Acts 112
Part 2
Search for Unilateral Acts. Survey of Fields and
Topics of International Law
Introduction to Part 2 168
5 Individual Actions of States Regulated by the Law of Treaties and the
Notion of Unilateral Acts of States 171
6 Unilateral Acts and Territory 216
7 Norms of International Law Dealing with Possible Unilateral Acts of
States Pertaining to Individuals 250
8 Diplomacy and Unilateral Acts of States 282
9 Norms Connected with the Use of Force and Unilateral Acts of
States  303
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vi Contents
Part 3
Creation of Obligations by the Means of Unilateral
Declarations. The Problem of Unilateral Promises
Introduction to Part 3 336
10 Is it Possible to Create Obligations by the Means of Unilateral
Declarations? 338
11 The Nature and Characteristics of Unilateral Promise 378
Part 4
Other Classical Acts
12 Legal Problems of Recognition 441
13 Recognition as a Type of Legal Act 482
14 Is Recognition a Unilateral Act by Definition? 536
15 Waiver in Public International Law 563
16 Protest in International Law 602
Final conclusions 632
Bibliography 641
Index 657
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List of Abbreviations
a.d. Annual Digest of Public International Law Cases;
Annual Digest and Reports of Public Interna-
tional Law Cases
ajil American Journal of International Law
byil British Yearbook of International Law
Case W.Res.J.Int.L Case Western Journal of International Law
eez exclusive economic zone
ejil European Journal of International Law
fyil The Finnish Yearbook of International Law
gyil German Yearbook of International Law
Harvard Int’l L. Club J. Harvard International Law Club Journal
icj International Court of Justice
ilc International Law Commission
ilr International Law Reports
Int’l L. Stud. Ser. us Naval War Col. International Law Studies us Naval War College
IYb.il Italian Yearbook of International Law
Jap.ail Japanese Annual of International Law
J. Soc. Comp. Legis. Journal of the Society of Comparative Legislation
Mich. ybi Legal Stud. Michigan Yearbook of International Legal Studies
nm Nautical Mile
Nordisk Tidsskrift Int.Ret Nordisk Tidsskrift for International Ret
pcij Permanent Court of International Justice
Pol.Yb. il Polish Yearbook of International Law
rcadi Recueil de Cours, Academie de Droit International
rdilc Revue de Droit International et de Législation
Comparée
rgdip Revue Général de Droit International Public
riaa Reports of International Arbitral Awards
un United Nations
unclos un Convention on the Law of the Sea
unts United Nations Treaty Series
un ga United Nations General Assembly
Yb.ilc Yearbook. International Law Commission
vclt Vienna Convention on the Law of Treaties
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Introduction
The issue of unilateral acts of states in public international law is one of the
most complicated issues in the doctrine of international law. The very attempt
to define such acts is a difficult task. For example, the authors of a classical
manual of public international law write that
transactions other than negotiations and treaties fall generally into the
broad category of unilateral acts, i.e. acts performed by a single state,
which nevertheless have effects upon the legal position of other states,
particularly (but not exclusively) in their relations with the author state.1
Even such a definition, seemingly straightforward and non-controversial, gives
rise to several important questions. Is it really so that a unilateral act can be
distinguished from negotiations? Must they by definition be performed by a
single state only?2 Must they have effects upon the legal position of other
states?
The task of the present book is to attempt to answer these questions and
many similar questions situated within the realm of international law theory,
to which the present book is mainly devoted. ‘Unilateral acts of states’ is a
group category. It comprises a number of elements, many of which are worthy
of treatment in separate books or treatises. The present book is neither their
conglomerate nor a summary. It is worth noting that the readiness of interna-
tional law specialists to discuss this group category is a relatively recent phe-
nomenon. References to it can be found only within the last 120 years. Its path
into the annals of international law has been a difficult one, albeit successful in
the end. It is not hard to find the reasons for this. Overlooking unilateral acts
of states would mean overlooking an important source of international law
obligations, and no specialist in international law can accept such a state of
affairs. On the other hand, when introduced into the discourse of the doctrine
of international law, the group notion starts to take on its own life and presents
its own problems. It may even be said that it gives rise to more problems than
it resolves.
1 R. Jennings, A. Watts, Oppenheim’s International Law, vol. 1, t. 2, London, New York 1996,
pp. 1187–1188.
2 R. Jennings and A. Watts write that a few states may act, but what is decisive is that ‘the act
has legal significance quite apart from the response of the addressee’, p. 1187, footnote 1. It
would be difficult to present this view as obvious or generally accepted.
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2 INTRODUCTION
The very notion of a ‘unilateral act of a state in international law’ was intro-
duced by the theory of law. Its actual practice, however, might have managed
better or worse without it. In fact unilateral acts performed in several fields of
international life have neither benefited from nor lost anything in connection
with the introduction of the general notion. I should hasten to add that this
does not mean that the topics discussed in this book are devoid of practical
importance. It is actually the opposite. The number of practical aspects is very
large, and the development of the doctrine of unilateral acts of states is not the
construction of a theory devoid of practical significance. Nevertheless it is still
building a theory and mainly building a theory. What’s more, the essence of the
theory is to describe numerous complicated facts and elements of interna-
tional life from one basic perspective, i.e. whether they deserve being classified
as a unilateral act of a state in international law.
The main dilemma of any author writing on unilateral acts of states in pub-
lic international law is the following: Should one adopt a precise definition of
a unilateral act beforehand and then identify types of such acts? Or perhaps
one should first compile a list of such types and then construct a precise defini-
tion on the basis of it? In my opinion, neither approach is satisfactory. A third
approach seems better suited to resolving the dilemma, to wit: both the types
of acts and their precise definition should be searched for rather than taken for
granted. Of course, such an approach presupposes the adoption of a provi-
sional definition, or at least an idea of a unilateral act. Such provisional defini-
tions could, however, be modified as a result of further analyses.
In fact, borrowing both the definition and the catalogue of types of unilat-
eral acts as a starting point presents no problem. They are both the subject of
numerous works. Even if the majority of them are short references in manuals
of public international law, their authors are frequently very precise on both
topics (i.e., both the definition and the list of such acts). The most frequently
adopted definition presents unilateral acts in public international law as a sub-
category of legal transactions (acte juridique, Rechtsgeschäft), and the most
frequently adopted catalogues of types of unilateral acts include notification,
waiver, recognition and protest. Nowadays notification is usually replaced by
‘promise’. These can be called ‘classical unilateral acts’.
From the outset I excluded the idea of writing a book limited, a priori, to clas-
sical unilateral acts alone. If a standard book on unilateral acts of states in
public international law is deemed to be a description of classical acts and an
attempt to find their common characteristics, the present book deliberately
deviates from that standard. Its adoption would be the antithesis of a valuable
theoretical analysis. The task of theory is to ask difficult questions rather than to
avoid them. This relates especially to asking questions about the essence of a
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