1. What is a binding unilateral declaration under international law?
2. What are some examples of binding unilateral declarations under international law?
1. A binding unilateral declaration is a statement made on behalf of a State, which creates legal rights or obligations under international law. Unlike a treaty, a binding unilateral declaration is made by a State without any requirement for reciprocation or response from another State. The view that the promise to act in a particular way also requires some form of acceptance appears to be outdated. A declaration may be related to rights or obligations vis-à-vis a particular State/s, or may be made to the international community at large (erga omnes).
Not all declarations or statements by a State will give rise to legally binding rights or obligations. There are no settled rules on the legal effect of unilateral declarations. All circumstances such as the language used, the political level of the official making the statement, the treaty context and the response of other states are relevant to determine the legal effect.
However, international jurisprudence and the academic literature generally agree that the state must clearly demonstrate the intention to accept obligations vis-à-vis certain other states. In order to be legally binding, a declaration must show an intention for that State to be bound. Where a statement is made to the world at large the threshold to demonstrate an intention to be bound will be stricter than in the case of one particular recipient. Other criteria the interpretation may take into account are: principles of customary international law or the applicable treaty law; whether other states have acted in reliance of the statement; the extent to which the relevant parties have acted in good faith; and the circumstances in which the statement is made.
The International Law Commission’s “Guiding Principles applicable to unilateral declarations of States capable of creating legal obligations” provide general guidance on when a unilateral statement by a State or State official may be considered legally binding under international law. Additional considerations set out in the Guiding Principles include the authority of the person making the declaration and the extent to which the declaration is formulated in clear and specific terms – ambiguity will be interpreted restrictively.
Examples of legally binding unilateral declarations are:
a) The Egyptian Suez Canal Declaration
In 1957 the Egyptian government issued a declaration that set forth a number of actions that the Egyptian Government agreed to perform in relation to the operations and management of the Suez Canal Authority established by the Government on 26 July 1956. By this declaration, which was addressed to the entire international community, Egypt reaffirmed its adherence to the terms and spirit of the Constantinople Convention. It unilaterally committed to ensuring the freedom of navigation through the Canal, while stressing that the Egyptian Government had sovereign control over the Canal. The declaration specifies:
“The Government of Egypt makes this Declaration, which re-affirms … the … Convention of 1888, as an expression of their desire and determination to enable the Suez Canal to be an efficient and adequate waterway linking the nations of the world and serving the cause of peace and prosperity…. This Declaration, with the obligations therein, constitutes an international instrument and will be deposited and registered with the Secretariat of the United Nations.”
b) Security assurances to non-nuclear weapon states
At the special session of the UN General Assembly on disarmament from 23 May – 30 June 1978 and later in the year at the General Assembly session, the five nuclear-weapon states made unilateral declarations establishing criteria for granting security assurances to non-nuclear- weapon States. These declarations were considered legally binding by many UN member states. The US Secretary of State, for example declared that:
“The United States will not use nuclear weapons against any non-nuclear –weapon State party to the Treaty on the Non-Proliferation of Nuclear Weapons or any comparable internationally binding commitment not to acquire nuclear explosive devices, except in the case of an attack on the United States, its territories or armed forces, or its allies…”
c) Declarations recognising ICJ jurisdiction
The states parties to the Statute of International Court of Justice (ICJ) may at any time declare (under Art. 36 para. 2 of the Statute) that they recognize the compulsory jurisdiction of the ICJ in relation to any other State accepting the same obligation. The declarations recognizing as compulsory the jurisdiction of the Court take the form of a binding unilateral act of the state concerned and are deposited with the Secretary-General of the United Nations.
The declaration of Australia of March 2002, for example, states:
“The Government of Australia declares that it recognises as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, the jurisdiction of the International Court of Justice in conformity with paragraph 2 of Article 36 of the Statute of the Court, until such time as notice may be given to the Secretary-General of the United Nations withdrawing this declaration. This declaration is effective immediately.
This declaration does not apply to:
(a) any dispute in regard to which the parties thereto have agreed or shall agree to have recourse to some other method of peaceful settlement;
(b) any dispute concerning or relating to the delimitation of maritime zones,…;
(c) any dispute….”
In comparison the declaration by Dominica of March 2006 just states:
“The Commonwealth of Dominica accepts the compulsory jurisdiction of the International Court of Justice and makes this Declaration under article 36 (2) of the Statute of the Court.”
d) Framework Convention on Climate Change
There are also examples of binding unilateral declarations in the context of the UN Framework Convention on Climate Change (UNFCCC). For example, Croatia signed the UNFCCC on 11 Jun 1992. On acceptance of the Convention, on 8 Apr 1996, it made the following statement:
“The Republic of Croatia declares that it intends to be bound by the provisions of the Annex 1, as a country undergoing the process of transition to a market economy.”
e) French Nuclear Tests Case
In the French Nuclear Tests Case, the International Court of Justice (ICJ) held that a series of statements by leaders in the French government amounted to a unilaterally binding declaration that they would not continue atmospheric nuclear testing. The Court found that the intention and the circumstances in which the statements were made were significant factors in deciding that they amounted to binding unilateral acts. Some of the key statements which lead to this conclusion were:
“France, at the point which has been reached in the execution of its programme of defence by nuclear means, will be in a position to move to the stage of underground tests, as soon as the test series planned for this summer is completed. Thus the atmospheric tests which are soon to be carried out will, in the normal course of events, be the last of this type.” (Note of the French Embassy in Wellington sent to the New Zealand Ministry of Foreign Affairs on 10 June 1974)
“. . . on this question of nuclear tests, you know that the Prime Minister had publicly expressed himself in the National Assembly in his speech introducing the Government’s programme. He had indicated that French nuclear testing would continue. I had myself made it clear that this round of atmospheric tests would be the last, and so the members of the Government were completely informed of Our intentions in this respect . . .” (Statement by the President of France on 25 July 1974)
f) Examples of non-binding unilateral declarations
In comparison, a statement by the Rwandan Minister for Justice was considered too general to be a binding unilateral declaration (in relation to the withdrawal of a reservation to the Genocide Convention). The statement provided that:
“Rwanda is one of the countries that has ratified the greatest number of international human rights instruments. In 2004 alone, our Government ratiﬁed ten of them, including those concerning the rights of women, the prevention and repression of corruption, the prohibition of weapons of mass destruction, and the environment. The few instruments not yet ratified will shortly be ratified and past reservations not yet withdrawn will shortly be withdrawn.”
In the border dispute between Mali and Burkina Faso the ICJ also decided that the following statement, made by the President of Mali, was not a binding unilateral declaration which obliged Mali to comply with the decision of the OAU Commission:
“Mali extends over 1,240,000 square kilometres, and we cannot justify fighting for a scrap of territory 150 kilometres long. Even if the Organization of African Unity Commission decides objectively that the frontier line passes through Bamako, my Government will comply with the decision.”
The Chamber of the Court held that the Parties could have accepted the binding character of the conclusions of the Organization of African Unity Mediation Commission by the normal method: a formal agreement on the basis of reciprocity. Since no agreement of this kind had been concluded between the parties, the Chamber found that there are no grounds to interpret the declaration made by Mali’s head of State on 11 April 1975 as a unilateral act with legal implications in regard to the case.
3. Binding unilateral declaration on emission reductions
Thus, if a commitment to reduce greenhouse gas emissions was described as voluntary or in terms of political intentions only it cannot be regarded as legally binding. By contrast, provided the above criteria (such as publicity or competent official) are met, a State can clearly indicate the intention to be legally bound. The specific language employed for that purpose may vary significantly depending on circumstances and political constraints. The following two hypothetical examples reflect the intention to create legally binding commitments to reduce greenhouse gas emissions:
“[State X] hereby makes a legally binding commitment/commits to ensure that its annual anthropogenic carbon dioxide equivalent emissions of greenhouse gases listed in Annex A to the Kyoto Protocol to the United Nations Framework Convention on Climate Change are reduced by [Y] per cent by [20XX] in comparison to total carbon dioxide emissions in 1990 as communicated for the purposes of Article 25 of the Kyoto Protocol in its first national communication under Article 12 of the Convention.”
“The Government of [State X] undertakes/declares it intention to reduce its average annual greenhouse gas emissions covered by the Kyoto Protocol by [X] % below 1990 levels from 1 January 2013 to 20XX. This declaration takes immediate effect and will be transposed into domestic law in accordance with the applicable national laws and regulations.”
Annex I: The International Law Commission’s Guiding Principles applicable to unilateral declarations of States capable of creating legal obligations (2006):
1. Declarations publicly made and manifesting the will to be bound may have the effect of creating legal obligations. When the conditions for this are met, the binding character of such declarations is based on good faith; States concerned may then take them into consideration and rely on them; such States are entitled to require that such obligations be respected.
2. Any State possesses capacity to undertake legal obligations through unilateral declarations.
3. 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.
4. 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 and ministers for foreign affairs are competent to formulate such declarations. Other persons representing the State in specified areas may be authorized to bind it, through their declarations, in areas falling within their competence.
5. Unilateral declarations may be formulated orally or in writing.
6. Unilateral declarations may be addressed to the international community as a whole, to one or several States or to other entities.
7. A unilateral declaration entails obligations for the formulating State only if it is stated in clear and specific terms. 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. 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.
8. A unilateral declaration which is in conflict with a peremptory norm of general international law is void.
9. No obligation may result for other States from the unilateral declaration of a State. However, the other State or States concerned may incur obligations in relation to such a unilateral declaration to the extent that they clearly accepted such a declaration.
10. A unilateral declaration that has created legal obligations for the State making the declaration cannot be revoked arbitrarily. In assessing whether a revocation would be arbitrary, consideration should be given to:
(i) Any specific terms of the declaration relating to revocation;
(ii) The extent to which those to whom the obligations are owed have relied on such obligations;
(iii) The extent to which there has been a fundamental change in the circumstances