The Juridical Nature of Unilateral Acts of States in International Law

"In The Juridical Nature of Unilateral Acts of States in International Law Eva Kassoti explores the question of the legal nature of unilateral acts by focusing on their essential characteristics, namely unilateralism and the manifest intention to be bound. By analysing the legal and factual context surrounding the making of unilateral acts, this volume offers a list of indicators of the elements of unilateralism and manifest intention that will facilitate the determination of the existence of a unilateral juridical act in practice. Kassoti explores the legal nature of unilateral acts from the viewpoint of the theory of international juridical acts and thus, attests to the validity of this theory as a comprehensive framework for the analysis of all juridical acts in international law"--Unedited summary from book cover The Juridical Nature of Unilateral Acts of States in International Law 4 Contents 6 Acknowledgments 12 List of Abbreviations 13 Table of Cases 16 Table of Treaties 20 Table of Legislation 22 Table of Other Documents 23 Introduction 30 1 Purpose of the Present Study 30 2 Methodology 34 3 Contribution to International Legal Scholarship 35 4 Scope and Delimitation of the Study 37 5 Structure 40 1 Prolegomena to a Discussion of Unilateral Juridical Acts in International Law 43 1 Introduction 43 2 The Canvas: Unilateral Acts in International State and Judicial Practice 44 3 The Problem of the Interplay between Unilateral Acts and the Recognized Sources of International Law 46 3.1 Sources of International Law and Art. 38.1 of the Statute of the International Court of Justice 47 3.2 The Problematic Relation between the Source/s of the Binding Force of Unilateral Acts and Art. 38.1 of the icj Statute: Some Examples from Judicial Practice 50 A The Enigma of the Ihlen Declaration in the Context of the Eastern Greenland Case 50 B The Enigma of the Statements made by France in the Context of the Nuclear Tests Case 51 3.3 Overview of the Relevant Literature 52 A Deniers: Rubin and Thirlway 52 B Believers: Pellet and Virally 54 4 The Unresolved Problem of the Legal Nature of Unilateral Acts 55 5 Conclusion 58 2 Classification of Unilateral Acts 59 1 Introduction 59 2 The Difficulties of Classifying Unilateral Acts 59 3 Review of the Systems of Classification of Unilateral Acts to be Found in the Literature 63 3.1 Unilateral Acts from the Standpoint of Their Content 63 3.2 Unilateral Acts from the Standpoint of Their Legal Effects 71 3.3 The Problems of the Aforementioned Systems of Classification 75 3.4 Unilateral Acts from the Standpoint of the Legal Context in Which They Occur or of the Purpose They Serve 75 4 Conclusion 84 3 The Work of the International Law Commission on Unilateral Acts of States 85 1 Introduction 85 2 The Work of the ilc on Unilateral Acts of States 86 2.1 Historical Overview 86 2.2 The 2006 Guiding Principles 89 2.3 Evaluation of the Work of the ilc: Difficulties and Weaknesses 91 A The Difficulties Encountered by the ILC 92 i Change of Methodological Approach: From a General Approach to a Case-by-case Analysis of Unilateral Acts 92 ii Skepticism about the Project 94 iii Over-reliance on the Model of the Vienna Convention on the Law of Treaties 96 B Weaknesses of the 2006 Guiding Principles 97 i The Failure to Distinguish between Unilateral Juridical and Unilateral Political Acts 97 ii The Failure to Define the Element of Unilateralism 101 iii The Failure to Establish Boundaries between Estoppel and Unilateral Acts 103 3 Conclusion: The Differences between the Work of the ILC on Unilateral Acts and the Present Study 105 4 The Unilateral Nature of Unilateral Juridical Acts 107 1 Introduction 107 2 Unilateral Acts as a Legal Phenomenon Distinct from International Agreements or Estoppel 109 2.1 Literature Review 110 A Deniers of the Unilateral Nature of Unilateral Acts 110 i) Brierly, Lauterpacht: The Treaty Scenario 110 ii) Giganti: The Estoppel Scenario 112 B Believers in the Unilateral Nature of Unilateral Acts: Spender, Fitzmaurice, Ammoun and Verzijl 113 2.2 Unilateral Acts as a Legal Phenomenon Distinct from International Agreements 116 A The Concept of Agreement in International Law: Agreement as Concurrence of Wills in the Production of Legal Effects 116 B Absence of the Element of Agreement in the Nuclear Tests Cases 117 2.3 Unilateral Acts as a Legal Phenomenon Distinct from Estoppel 118 A Detrimental Reliance as an Essential Element of Estoppel in International Law 119 B Absence of Detrimental Reliance in the Nuclear Tests Cases 122 C The Importance of the Time-element in Distinguishing between Unilateral Juridical Acts and Estoppel 122 2.4 Interim Conclusions 123 3 The Unilateral Nature of Unilateral Juridical Acts 123 3.1 The Definition of the Unilateral Nature of Unilateral Juridical Acts in Judicial Practice 123 A The Element of Unilateralism in the Nuclear Tests Case 123 B Unilateralism as Autonomy of the Author’s Intention to Produce Legal Effects 125 C Autonomy and Its Discontents 127 3.2 Indicators of Unilateralism 127 A The Absence of a Treaty Law Context 127 B The Absence of a Rule that Requires Reciprocity 128 C The Absence of a Context of Negotiations 129 D The Existence of Circumstances that Preclude the Conclusion of an International Agreement 133 E The Absence of a Pattern of Offer/Acceptance 135 4 Conclusion 138 5 The Concept of Juridical Acts in International Law 140 1 Introduction 140 2 The Distinction between Law and Non-law 143 2.1 The Distinction between “Law” and “Non-law” as a Key Feature of All Legal Systems 143 2.2 The Distinction between Law and Non-law in the International Legal System 145 3 The Lack of a Developed Theory on Juridical Acts in International Law 149 3.1 A Brief Excursus to the Concept of Juridical Acts in National Law: Juridical Acts as a Predominantly Civil Law Concept 150 3.2 The Concept of Juridical Acts in International Law: An Underdeveloped Idea 155 4 Intention as the Criterion for Distinguishing between Legal and Non-legal Acts: The View from the Law of Treaties 158 4.1 Intention and the 1969 Vienna Convention on the Law of Treaties 159 4.2 The Criterion of Intention in the Jurisprudence of International Courts 161 4.3 The Problem of Establishing the Element of Intention in the Law of Treaties 162 4.4 Intention and Its Discontents: Calls to Move Away from Intention 165 5 Conclusion 169 6 Unilateral Acts as Juridical Acts 171 1 Introduction 171 2 Unilateral Acts as Juridical Acts 172 2.1 Intention as the Criterion for Distinguishing between Unilateral Juridical Acts and Unilateral Political Acts 172 2.2 The Problem of ‘Subjective’ vs. ‘Objective’ Intention in the Context of Unilateral Acts 175 2.3 Ascertaining the Intention to be Bound in the Context of Unilateral Acts 178 A Indicators of Manifest Intent to be Bound: The Content of the Act 182 B Indicators of Manifest Intent to be Bound: The Context in Which the Act Took Place 183 i) The Publicity of the Act 183 ii) The Forum in Which the Act was made 184 iii) The Author of the Act 191 C The Significance of Registration under Art. 102 of the Charter of the United Nations 193 D The Reactions of the Addressee of the Act 196 3 The Basis of the Binding Force of Unilateral Acts 197 3.1 The Intention to be Bound as the Basis of the Binding Force of Unilateral Acts 198 3.2 Good Faith as the Basis of the Binding Force of Unilateral Acts 201 3.3 Unilateral Acts as Sources of International Law/Obligations 204 4 Conclusion 206 7 A Brief Excursus to Unilateral Declarations of Independence 208 1 Introduction 208 2 Unilateral Declarations of Independence: The Problématique 208 3 Claims that Unilateral Declarations of Independence are (Entirely or Partly) Regulated by International Law: Unilateral Declarations of Independence as Unilateral Juridical Acts 214 4 The Claim That Unilateral Declarations of Independence are Not Regulated by International Law 226 5 Conclusion 229 8 A Brief Excursus to Unilateral Security Assurances 231 1 Introduction 231 2 Positive Security Assurances: 1968–1995 233 3 Negative Security Assurances 208 237 3.1 The 1978–1982 Negative Security Assurances 237 3.2 The 1995 Negative Security Assurances 246 4 Conclusion 250 Conclusions 252 Bibliography 256 Books 256 Articles 262 Index 267 La 4e de couverture indique : "In The Juridical Nature of Unilateral Acts of States in International Law Eva Kassoti explores the question of the legal nature of unilateral acts by focusing on their essential characteristics, namely unilateralism and the manifest intention to be bound. By analysing the legal and factual context surrounding the making of unilateral acts, this volume offers a list of indicators of the elements of unilateralism and manifest intention that will facilitate the determination of the existence of a unilateral juridical act in practice. Kassoti explores the legal nature of unilateral acts from the viewpoint of the theory of international juridical acts and thus, attests to the validity of this theory as a comprehensive framework for the analysis of all juridical acts in international law."