Legally binding unilateral declarations of States

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Definition[edit | edit source]

Legally binding unilateral declarations of States
Under certain circumstances, a unilateral declaration of a State may give rise to legally binding obligations onto the declaring State.[1] The binding character of such a declaration is based on the principle of good faith.[2]

States regularly resort to unilateral declarations in the cyber context, including declarations on the possible content of confidence-building measures for cyber space,[3] declarations of disapproval regarding specific cyber behaviour by other States,[4] declarations regarding the attribution of specific cyber attacks, and national position papers on cyber space. [5] It is, however, doubtful that these declarations fulfil the criteria for binding unilateral declarations.

For a unilateral declaration to be legally binding, the following criteria must be met:

  1. The declaration must be made publicly.[6] It may be expressed either in oral or written form.[7] The declaration may be addressed to a specific subject of international law, i.e., a State, or to the international community as a whole.[8]
  2. The declaration must express the will of the declaring State to be bound by the declaration.[9] To determine whether a declaration is binding, its content, all the factual circumstances in which it was made, and the reactions to which it gave rise must be considered.[10]
  3. The declaring state organ must be authorized to make the according declaration,[11]as is presumed for heads of State, heads of Government, and ministers for foreign affairs.[12]
  4. The content of the declaration must be sufficiently clear and specific.[13] The obligations themselves must be interpreted primarily considering the text together with the context and the circumstances in which it was formulated.[14] In case of doubt, a restrictive interpretation should be chosen.[15]

Appendixes[edit | edit source]

See also[edit | edit source]

Notes and references[edit | edit source]

  1. UN International Law Commission, Guiding Principles Applicable to Unilateral Declarations of States Capable of Creating Legal Obligations, with Commentaries thereto (adopted at its Fifty-eighth session, in 2006) UN Doc A/CN.4/SER.A2006/Add.1 (Part 2) (ILC Guiding Principles), principle 2; Nuclear Test Case (Australia v. France) [1974] ICJ Rep 253, [43]. Examples are the public statements of the French President and Foreign and Defence Ministers to cease nuclear tests in the South Pacific, see Nuclear Test Case (New Zealand v. France) [1974] ICJ Rep 457, [43–50]; Egypt’s 1957 Declaration on the Suez Canal; Jordan’s 1988 waiver of claims to the West Bank; U.S. representations before the WTO Dispute Settlement Body in the 1974 Trade Act case; and (at least potentially) US and Soviet 1977 declarations in relation to the Strategic Arms Limitation Talks; and Cuba’s 2002 declarations about the supply of vaccines to Uruguay.
  2. ILC Guiding Principles principle 1; Nuclear Test Case (Australia v France) (n 43) [46]; Nuclear Test Case (New Zealand v France) (n 43) [49].
  3. K Ziolkowski, ‘Confidence Building Measures for Cyberspace – Legal Implications’ (2013) 23–24 .
  4. PC Anderson, ‘Cyber Attack Exception to the Foreign Sovereign Immunities Act’ (2017) 102(4) Cornell Law Review 1087, 1109 .
  5. See for an overview of available position papers the section National positions .
  6. ILC Guiding Principles principle 1; Nuclear Test Case (Australia v France) (n 43) [43]; VR Cedeño and MIT Cazorla, ‘Unilateral Acts of States in International Law’ in A Peters (ed), Max Planck Encyclopedias of International Law (OUP) para 19.
  7. ILC Guiding Principles principle 5.
  8. ILC Guiding Principles principle 6.
  9. ILC Guiding Principles principle 1; Nuclear Test Case (Australia v France) (n 43) [43].
  10. ILC Guiding Principles principle 3.
  11. ILC Guiding Principles principle 4.
  12. ILC Guiding Principles principle 4.
  13. ILC Guiding Principles principle 7; Nuclear Test Case (Australia v France) (n 43) [43, 51]; Nuclear Test Case (New Zealand v France) (n 43) [46, 53]; Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) [2005] ICJ Rep 168, [50, 52].
  14. ILC Guiding Principles principle 7.
  15. ILC Guiding Principles principle 7; Nuclear Test Case (Australia v France) (n 43) [44, 47]; Anglo-Iranian Oil Co (United Kingdom v Iran) (Preliminary Objection) [1952] ICJ Rep 93, [106–108].

Bibliography and further reading[edit | edit source]