How a state might bind itself by the virtue of its unilateral declaration

Contemporary international law allows a State to undertake international obligations in numerous ways. Mostly, it is done by conclusion of a treaty, where two or more states negotiate all necessary details. Nevertheless, States might also bind itself by the virtue of unilateral acts. In order to legally bind a state certain conditions should be met.

Firstly, a declaration should be made publicly with the intention to undertake international obligations.1 This is the key requirement that distinguishes legally binding unilateral declarations from declarations of a political nature.2 The former, leads to legal consequences, while the latter is non-legal statement emanating from morality and politics.3 In this vein, although in practice it is difficult to clearly distinguish between these two categories, great caution should be paid to this requirement.

Secondly, legally binding unilateral declaration should be formulated by authorized authority. Traditionally, such authority is possessed by agents with full powers or officials representing a State in specific field.4 It is agreed that state representatives competent to bind its states by treaties, as provided by the Vienna Convention on the Law of Treaties, are also presumed competent to create legal duties by unilateral declarations.5 According to the Vienna Convention they are President, Prime Minister and Minister for Foreign Affairs have full powers to bind a State.6 To illustrate, in the Frontier Dispute case between Burkina Faso and Mali, the President was recognized to have such authority. On the other hand, it does not mean these state agents have exclusive capacity to do so. In is confirmed by the International Court of Justice, that officials representing a State in specific field could also bind a state by the virtue of unilateral declaration.7 Namely, in Armed Activities in Congo case, the Minister of Justice of Rwanda was also admitted to be representing a state in a specific field, and therefore authorized to bind Rwanda in respect of matters falling under her competence. Therefore, any state representative, acting in official capacity might create legal obligations by their statements, however some restrictions exist and will be mentioned during the assessment of circumstances in which declaration is made.

The next requirement is that a declaration should be made in clear and sufficiently specific terms.8 For instance, in the Nuclear Tests case, representatives of France on several occasions declared that atmospheric nuclear tests “would be the last.” This was sufficient for the International Court of Justice to recognize these statements as sufficiently specific to indicate France’s intention to stop nuclear tests in atmosphere.

On the other occasion, the International Court of Justice declined that statement of Rwanda’s Minister of Justice was specific enough. Particularly, the Minister’s statement that “past reservations not yet withdrawn will shortly be withdrawn” was found to be equivocal and ambiguous to admit its binding force due to the failure to indicate to which treaties exactly reservations will be withdrawn and well as absence of any reasonable period of withdrawal.

Finally, in order to establish legally binding nature of a unilateral declaration all factual circumstances in which declaration was formulated should be also taken into consideration.9 For example, in the Frontier Dispute case, the President of Mali during an interview made a clear statement that “if the Organization of African Unity Commission decides objectively that the frontier line passes through Bamako, my Government will comply with that decision”. Nevertheless, the International Court of Justice refused to recognize it to be legally binding by referring to fact that previously both states refused to empower the Commission in question to render legally binding decisions. Therefore, there were no grounds to interpret the statement at issue as giving rise to legal commitments.

Furthermore, the WTO Panel made noted that a State should not find itself legally affected on the international plane by the casual statement of any of representatives speaking on its behalf.10 Further, it specified that casual statements and those that were made in the heat of the argument should not be considered as binding.11

Thus, despite the concrete terms of a declaration, the legal force might be barred by the factual circumstances in which the unilateral act took place.

In any case, the declaration should express unconditional will of a state to undertake commitments without expecting quid pro quo , reaction, reply or any acceptance from another State .¹² [2, para. 43] Moreover, it is also should be noted that unilateral declarations could should be addressed to the international community as a whole or to a one or more states.¹³ Although, a declaration might be addressed to one or several states it should be reminded that in any case it creates obligations toward the community of states. In other words, these commitments have a character of erga omnes. ¹⁴

To summarize, in order for a unilateral declaration to have legally binding character it should comprise the will of a state to be legally bound, made by a competent state agent or representative publicly, contain clear and specific terms that give rise to specific undertakings. On the other hand, all relevant factual events should also be taken into consideration for the establishing whether particular unilateral declaration bears legal consequences for a state.