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Unilateral Acts of States in International Law

Víctor Rodríguez Cedeño

Maria Isabel Torres Cazorla

  Table of Contents

  A. Introduction
1. Definition of Unilateral Act of State
2. Jurisprudence of International Courts
3. Doctrinal Studies
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 Declaration
(b) The Form of Unilateral Declarations
(c) Addresses
(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
B. Assessment
Select Bibliography
Select Documents

  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 ‘Report of
the International Law Commission: Fifty-eighth Session’ [1 May-9 June and 3 July-11 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] [‘ILC Conclusions’] 3). 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 May-9 June and 3 July-11 August 2006] [‘Guiding Principles’] 368). 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] [‘Nuclear Tests Case’] para. 43).

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  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 Denmark's → 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 most recent 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 34–39), 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
th
addressee, unilateral activity was not considered by international lawyers until the beginning of the 20 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 unilateral-from Latin language, that is to say, 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 ofattempt at 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 ILC's
  work on ‘unilateral acts of States’ for a decade (see paras 9–13 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.

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  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 ILC's agenda, however, was postponed because it was considered that
a codification process was premature at that stage.

11 th th
At the end of the 20 century, both the ILC, at its 48 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
‘Report of the International Law Commission on the Work of Its Forty-eighth Session’ [6 May-26 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 (→ International Court of Justice, Optional Clause)
related to the acceptance of the jurisdiction of the court (see also → International Courts and Tribunals, Jurisdiction and
Admissibility of Inter-State Applications) are unilateral acts, but they are linked with a conventional text. Thus, unilateral
acts related to international treaties-signatures, ratifications, reservations, declarations, etc-are 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 analyzed 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 Vienna
  Convention on the Law of Treaties, may also be applied in the context of unilateral acts of States (UN ‘International
  Law Commission: Report on the Work of Its Fifty-first Session’ [3 May-23 July 1999] para. 549; UN ‘Report of the
  International Law Commission: Fifty-second Session’ [1 May-9 June and 10 July-18 August 2000] paras 565–66; and
UN ILC Special Rapporteur V Rodríguez Cedeño ‘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

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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 the 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 (The Mavrommatis Palestine Concessions [Greece v Great
Britain] [Jurisdiction] 34 [→ Mavrommatis Concessions Cases]; Case concerning 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 Before the ICJ]; Case concerning
the 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 Rodríguez
Cedeño ‘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 Rodríguez Cedeño ‘Second Report on Unilateral Acts of States’ (at
  para. 50) and UN ILC Special Rapporteur V Rodríguez Cedeño ‘Third Report on Unilateral Acts of States’ (at paras
  78–79), and various cases analyzed 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 55–58 and 62–63), Jordan's
waiver of claims to the West Bank (Eighth Report paras 44–54) 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 addresses.

  (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 15–16, 36, 85, 99 and 117).

22 Other declarations are addressed to the international community as a whole and contain erga omnes undertakings
  (→ Erga omnes Obligation). Thus, Egypt's 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] [1888–89] 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 50–53) were addressed simultaneously to the
international community, and the declaration made by the King of Jordan waiving Jordan's claims to the West Bank
territories was addressed to another State (→ Israel) and to another entity as the → Palestine Liberation Organization

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(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 Vienna Convention on the Law of Treaties, 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 of America 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] ‘North Sea Continental
Shelf Cases’ para. 100). 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 Boundaries, Delimitation; → 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 the 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] 106–8 [→ 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 régime 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 Court's jurisdiction.

(Fisheries Jurisdiction Case [Spain v Canada][Jurisdiction of the Court] para. 46; → Fisheries
Jurisdiction Case [Spain v Canada].)

Applying the ICJ's dictum and by → analogy with Art. 31 (1) Vienna Convention on the Law of Treaties, priority
consideration must be given to the text of the unilateral declaration, which best reflects its author's intentions. In addition,
as acknowledged by the ICJ in its judgment in the Frontier Dispute Case, ‘to asses 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).

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  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 Vienna Convention on the Law of Treaties. This rule may be applied to unilateral declarations
  (see UN ‘International Law Commission: Report on the Work of Its Fifty-first Session’ [3 May-23 July 1999] para. 557;
  UN ‘Report of the International Law Commission: Fifty-second Session’ [1 May-9 June and 10 July-18 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 amended 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, good faith); 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 Vienna Convention on the Law of Treaties (Fisheries Jurisdiction Case [Federal
  Republic of Germany v Iceland] [Jurisdiction of the Court] para. 36 and → Gabcíkovo-Nagymaros Case [Hungary/
  Slovakia] para. 104). 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 co-operation, in
particular in an age when this co-operation 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 70–
83]; 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’.

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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 is 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 [Phase
One: 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 and Temple of Preah Vihear Case 23). In the latter case, the ICJ determined:

It 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.

(Temple of Preah Vihear Case 23.)

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 effectivités which can be assumed to have come to the
knowledge of Nicaragua did not elicit any protest on the part of the latter.

(Case concerning Territorial and Maritime Dispute between Nicaragua and Honduras in the
Caribbean Sea [Nicaragua v Honduras] [Judgment] para. 208.)

39 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

40 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 guidelines 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 367–
68). 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
doctrine-such as recognition, promise, waiver, protest, notification, or, in many cases, the effects produced by silence
and → estoppel-have 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.

 
Select Bibliography

D Anzilotti Corso di diritto internazionale (Athenaeum Roma 1928).

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JW Garner ‘Editorial Comment: The International Binding Force of Unilateral Oral Declarations’ (1933) 27 AJIL
493–97.

JHW Verzijl ‘La validité et la nullité des actes juridiques internationaux’ (1935) 15 RDI 284–339.

F Pfluger Die einseitigen Rechtsgeschäfte im Völkerrecht (Schulthess Zürich 1936).

P Guggenheim ‘La validité et la nullité des actes juridiques internationaux’ (1949) 74 RdC 191–268.

G Biscottini Contributo alla teoria degli atti unilaterali nel Diritto Internazionale (Giuffrè Milano 1951).

A-C Kiss ‘Les actes unilatéraux dans la pratique franÇaise du droit international’ (1961) 65 RGDIP 317–31.

E Suy Les actes juridiques unilatéraux en droit international public (Librairie Générale de Droit et de Jurisprudence
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G Venturini ‘La portée et les effets juridiques des attitudes et des actes unilatéraux des états’ (1964) 112 RdC 363–
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J Dehaussy ‘Les actes juridiques unilatéraux en droit international public: à propos d'une théorie restrictive’ (1965)
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A Miaja de la Muela ‘Los actos unilaterales en las relaciones internacionales’ (1967) 20 REDI 429–64.

P Cahier ‘Le comportement des états comme source de droits et d'obligations’ in Université Genève (ed) Recueil
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J-P Jacqué éléments pour une théorie de l'acte juridique en droit international public (Librairie Générale de Droit et
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M Castillo Daudí ‘Sobre la aplicabilidad de la teoría de los actos unilaterales a los realizados por las
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AP Rubin ‘The International Legal Effects of Unilateral Declarations’ (1977) 71 AJIL 1–30.

J-D Sicault ‘Du caractère obligatoire des engagements unilatéraux en Droit International Public’ (1979) 83 RGDIP
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F Rigaldies ‘Contribution à létude de l'acte juridique unilatéral en droit international public’ (1980/81) 15 Revue
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AS De Gastón ‘Los actos jurídicos internacionales unilaterales con especial atinencia a los intereses marítimos
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J Dehaussy ‘Les actes unilatéraux et l'action normative des organisations internationales’ (Editions Techniques
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K Skubiszewski ‘Unilateral Acts of States’ in M Bedjaoui (ed) International Law: Achievements and Prospects
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M Virally ‘Unilateral Acts of International Organizations’ in BM Bedjaoui (ed) International Law: Achievements and
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J Charpentier ‘Engagements unilatéraux et engagements conventionnels: différences et convergences’ in J

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V Rodríguez Cedeño and N Guerrero Peniche ‘Los Actos unilaterales de los Estados en Derecho Internacional:
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D Bondía García Régimen jurídico de los actos unilaterales de los Estados (JMB Barcelona 2004).

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Etats’ (2005) 109 RGDIP 163–89.

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MI Torres Cazorla ‘Las dificultades que la Comisión de Derecho Internacional encuentra para codificar un tema
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Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v
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cij.org/docket/files/126/10435.pdf> (12 February 2008).

Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v Yugoslavia) (Preliminary Objections) [1996] ICJ Rep 595.

Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of
America) (Merits) [1986] ICJ Rep 14.

Case concerning Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea
(Nicaragua v Honduras) (Judgment) (8 October 2007) ICJ Doc 2007 General List No 120.

Case concerning the Frontier Dispute (Burkina Faso/Republic of Mali) [1986] ICJ Rep 554.

Case concerning the Gabcíkovo-Nagymaros Project (Hungary/Slovakia) [1997] ICJ Rep 7.

Case concerning the Temple of Preah Vihear (Cambodia v Thailand) (Preliminary Objections) [1961] ICJ Rep 17.

Case concerning the Temple of Preah Vihear (Cambodia v Thailand) (Merits) [1962] ICJ Rep 6.

Convention on the Continental Shelf (done 29 April 1958, entered into force 10 June 1964) 499 UNTS 311.

Dubai-Sharjah Border Arbitration (Award) Court of Arbitration (19 October 1981) 91 ILR 543.

Fisheries Case (United Kingdom v Norway) [1951] ICJ Rep 116.

© 2009 Max Planck Institute for Comparative Public Law and International Law, Heidelberg and Oxford University Press 9
 Max Planck Encyclopedia of Public International Law www.mpepil.com

Fisheries Jurisdiction Case (Federal Republic of Germany v Iceland) (Jurisdiction of the Court) [1973] ICJ Rep 49.

Fisheries Jurisdiction Case (Spain v Canada) (Jurisdiction of the Court) [1998] ICJ Rep 432.

Government of the State of Eritrea and Government of the Republic of Yemen (Phase One: Territorial Sovereignty
and Scope of the Dispute) (9 October 1998) 114 ILR 1.

Legal Status of Eastern Greenland (Denmark v Norway) PCIJ Series A/B No 53.

North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/
Netherlands) [1969] ICJ Rep 3.

Nuclear Tests Case (Australia v France) [1974] ICJ Rep 253.

Nuclear Tests Case (New Zealand v France) [1974] ICJ Rep 457.

Statute of the International Court of Justice (adopted 26 June 1945, entered into force 24 October 1945) 145 BSP
832.

The Government of the State of Eritrea and the Government of the Republic of Yemen (First Stage: Territorial
Sovereignty and Scope of the Dispute) (Award) (Permanent Court of Arbitration) (2001) 40 ILM 900.

The Mavrommatis Palestine Concessions (Greece v Great Britain) (Jurisdiction) PCIJ Rep Series A No 2.

th
UN‘International Law Commission: Report on the Work of Its Fifty-first Session’ (3 May-23 July 1999) GAOR 54
Session Supp 10.

th
UN‘International Law Commission: Report on the Work of Its Fifty-first Session’ (6 May-26 July 1996) GAOR 51
Session Supp 10.

UN‘International Law Commission: Report on the Work of Its Fifty-first Session’ (1 May-9 June and 3 Jully-11
th
August 2006) GAOR 61 Session Supp 10.

UN‘International Law Commission: Report on the Work of Its Fifty-first Session’ (1 May-9 June and 10 Jully-18
th
August 2000) GAOR 55 Session Supp 10.

UN LIC ‘Guiding Principles Applicable to Unilateral Declarations of States Capable of Creating Legal
st
Obligations’ (1 May-9 June and 3 July-11 August 2006) GAOR 61 Session Supp 10, 367.

UN LIC ‘Unilateral 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.

UN ILC Special Rapporteur V Rodríguez Cedeño Eighth Report on Unilateral Acts of Statess(26 May 2005) UN
Doc A/CN.4/557.

UNILC Special Rapporteur V Rodríguez Cedeño Fifth Report on Unilateral Acts of Statess(4 April 2002) UN Doc A/
CN.4/525 and (17 April 2002) UN Doc A/CN.4/525/Add. 1 and (10 May 2002) UN Doc A/CN.4/525/Add.2.

UNILC Special Rapporteur V Rodríguez Cedeño First Report on Unilateral Acts of Statess(5 March 1998) UN Doc
A/CN.4/486.

UNILC Special Rapporteur V Rodríguez Cedeño Fourth Report on Unilateral Acts of Statess(30 May 2001) UN
Doc A/CN.4/519.

UNILC Special Rapporteur V Rodríguez Cedeño Ninth Report on Unilateral Acts of Statess(6 April 2006) UN Doc
A/CN.4/569.

UNILC Special Rapporteur V Rodríguez Cedeño Second Report on Unilateral Acts of Statess(14 April 1999) UN
Doc A/CN.4/500 and (10 May 1999) UN Doc A/CN.4/500/Add.1.

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 Max Planck Encyclopedia of Public International Law www.mpepil.com

UNILC Special Rapporteur V Rodríguez Cedeño Seventh Report on Unilateral Acts of Statess(22 April 2004) UN
Doc A/CN.4/542 and UN Doc A/CN.4/542/Corr.1-3.

UNILC Special Rapporteur V Rodríguez Cedeño Sixth Report on Unilateral Acts of Statess(30 May 2003) UN Doc
A/CN.4/534.

UNILC Special Rapporteur V Rodríguez Cedeño Third Report on Unilateral Acts of Statess(17 February 2000) UN
Doc A/CN.4/505.

UNGA Unilateral Acts of States: Replies from Governments to the Questionnaire: Report of the Secretary-
General(6 July 2000) UN Doc A/CN.4/511.

UNGA Unilateral Acts of States: Replies from Governments to the Questionnaire: Report of the Secretary-
General(18 April 2002) UN Doc A/CN.4/524.

UNGA Res 51/160(16 December 1996) GAOR 51st Session Supp 49 vol 1, 333.

Vienna Convention on the Law of Treaties concluded 23 May 1969, entered into force 27 January 1980) 1155
UNTS 331.

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