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References
ICJ, Reports 1974, p. 267. See Castillo, L. De, “Comentarios sobre el derecho internacional de los actos jurídicos unilaterales”, in Estudios de derecho internacional en homenaje al profesor Ernesto Rey Caro, Zlata Drnas de Clément ed., 2002, vol. I, pp. 23–57.
ICJ, Reports 1974, p. 262.
Ibid., p. 264.
Thus, “The Court must however form its own view of the meaning and scope intended by the author of a unilateral declaration which may create a legal obligation,...” (Ibid., p. 269, paragraph 50). The ICJ repeats this argument in the case of the Frontier Dispute (ICJ, Reports 1986, p. 573, paragraph 39).
Because “these statements were not made in vacuo.”, but in relation to a specific legal or de facto situation (Reports 1974, p. 269). The italics correspond to the original.
The case of the Nuclear Tests (ICJ, Reports 1974, p. 267).
ICJ, Reports 1974, p. 268. and adds, “Trust and confidence are inherent to international cooperation, in particular in an age when this cooperation in many fields is becoming increasingly essential” (Ibid.).
Ibid.
Cf. Quoc Dinh, N., Daillier, P., and Pellet, A, Droit..., op.cit., p. 354. And add that it must be admitted that a State cannot be released from its obligations arising from unilateral acts except by recourse to the usual procedures for the pacific settlement of controversies. In the end, the problem of the obligation to negotiate in good faith would arise. (cf. Ibid.).
See ICJ, Reports 1974, pages 269 et seq.
In the words of the Court, “There can be no doubt, in view of his function, that his public communications or statements, oral or written, as Head of State, are in international relations acts of the French State. His statements, and those of members of the French Government acting under his authority, up to the last statement made by the Minister of Defence (of 11 October 1974), constitute a whole. Thus, in whatever form these statements were expressed, they must be held constitute an engagement of the State, having regard to their intention and to the circumstances in which they were made (ibid., p. 269).
The Court states, “The Court considers it beyond all dispute that a reply of this nature given by the Minister of 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” (P.C.I.J., Series A/B, No. 53, p. 71).
ICJ, Reports 1953, p. 71. In his individual opinion, Judge Basdevant considered that the letter in question was issued by a Minister “without authority to make decisions pertaining to questions of territorial sovereignty” (Ibid., p. 80).
Ibid.
Thus the ICJ states, “..., not all unilateral acts do not imply obligations; but a State may choose to take up a certain position in relation to a particular matter with the intention of being bound, the intention is to be ascertained through interpretation of the act. When States make statements by which their freedom of action is to be limited, a restrictive interpretation is called for” (I.C.J., Reports 1974, p. 267). Cf. regarding this judgement THIRLWAY, H., “The Law and Procedure of the International Court of Justice”, B.Y.I.L., 1989, pages 8-17.
See the case of the Border Dispute (ICJ, Reports 1986, p. 574).
Case of the Nuclear Tests (ICJ, Reports 1974, p. 269).
Ibid. However, none of the States affected by this matter perceived it in the same way.
“The objects of these statements are clear and they were addressed to the international community as a whole, and the Court holds that they constitute an undertaking possessing legal effect. The Court considers that the President of the Republic, in deciding upon the effective cessation of atmospheric tests, gave an undertaking to the international community to which his words were addressed (ibid., pages 269 et seq.).
On the other hand, “The Court finds further that the French Government has undertaken an obligation the precise nature and limits of which must be understood in accordance with the actual terms in which they have been publicly expressed” (ibid.).
See Reports 1974, p. 262. And in support of its thesis it cites case law both of the PCIJ and its own (see Ibid., pages 262 et seq.).
See ibid., p. 263.
“If, however, the Court lacks the power to reformulate inadequate submissions, a fortiori it cannot reformulate submissions as clear and specific as those in this case” (ibid., p. 316). It is the joint dissident opinion of judges Onyeama, Dillard, Jimenez De Arechaga and Waldock.
Ibid., p. 317. And adds, “In this instance the serious consequences have an irrevocable character because the Applicant is now prevented from resubmitting its Application and seising the Court again by reason of France’s denunciation of the instruments on which it is sought to base the Court’s jurisdiction in the present dispute (Ibid.).
Regrettably, the Court makes no pronouncement, “It may be argued that although France may have undertaken such an obligation, by a unilateral declaration, not to carry out atmospheric nuclear tests in the South Pacific Ocean, a judgement of the Court on this subject might still be of value because, if the judgement upheld the Applicant’s contentions, it would reinforce the position of the Applicant by affirming the obligation of the Respondent. However, the Court having found that the Respondent has assumed an obligation as to conduct, concerning the effective cessation of nuclear tests, no further judicial action is required” (ibid., p. 271).
ICJ, Reports 1986, p. 573. The ICJ repeats what was stated in the case of the Nuclear Tests.
Cf. ICJ. Reports 1986, p. 131.
Ibid., p. 132.
ICJ, Reports 1986, p. 571. The italics are ours. The Commission mentioned is a Mediation Commission set up on 26 December 1974 following an armed conflict between the two countries which broke out on 14 December 1974. One of its tasks was to seek a solution to the frontier dispute on the basis of existing legal documents. That Mediation Commission set up a Military Sub-Commission and a Legal Sub-Commission. The latter Commission comprises an outline solution (cf. Ibid.).
Ibid., p. 573.
Ibid.
Ibid., p. 574.
Ibid.
ICJ, Reports 1961, p. 31.
ICJ, Reports 1974, pages 267 et seq.
See the case of the Temple of Preah Vihear (ICJ, Reports 1961, p. 32). Consequently, it can be deduced that in the case of verbal declarations, such an intention would have to be deduced from the terms employed in the declaration.
For example, Carreau, D., Droit..., op. cit., pages 205–223. Especially pages 205–208; Quoc Dinh, N., Daillier, P., Pellet, Droit..., op. cit., pages 350–356; Dupuy, P.M., Droit..., op. cit., pages 242–245; Ruzie, D., Droit International Public, 9th ed., Dalloz, Paris, 1993, pages 48–49. In Spanish doctrine see Rodriguez Carrion, A., Lecciones de Derecho Internacional Público, 5th ed., Tecnos, 2002, p. 171.
Gonzalez Campos, J.D., Sanchez Rodriguez, L.I., Andres Saenz De Santa Maria, M. P., Curso..., op. cit., p. 74. Cf. in general: Suy, E., Les actes juridiques unilatéraux en Droit international public, L.G.D.J., Paris, 1962;Venturini, G., “La portée et les effets juridiques des attitudes et des actes unilatéraux des Etats”, R des C., vol. 112 (1964-II), pages 369–466; Miaja De La Muela, A., “Los actos unilaterales en las relaciones internacionales”, R.E.D.I., vol. 20, 1967, pages 429–464; Jacque, J.-P., Eléments pour une théorie de l’acte juridique en droit international public, Paris, L.G.D.J., 1972. More recently, cf. Sicault, J., “Du caractère obligatoire des engagements unilatéraux en Droit international public”, R.G.D.I.P., 1979, pages 633–688; Skubiscewski, K., “Les actes unilatéraux des Etats”, in the collection edited by Bedjaoui, M., Droit International. Bilan et perspectives, vol. I, Paris, 1991, pages 231–250.
Ibid., p. 75. Along the same lines we have: Gutierrez Espada, C., Derecho Internacional Público 1: Introducción y Fuentes, 4th ed., PPU, Barcelona, 1993, p. 387; Pastor Ridruejo, J.A., Curso de Derecho Internacional Público y Organizaciones Internacionales, 9th ed., Tecnos, Madrid, 2003, p. 169.
According to the constant case law of the ICJ “a determination of the existence of the’ same obligation’ requires the presence of two parties to a case, and a defined issue between them, which conditions can only be satisfies when proceedings have been instituted” (the case of Military and Paramilitary Activities in and against Nicaragua, I.C.J., Reports 1984, p. 420).
Cf. Torres Bernardez, S., “La reciprocidad en el’ sistema de jurisdicción obligatoria’ establecido en el Artículo 36. Párrafo 2 del Estatuto de la Corte Internacional de Justicia”, Cursos de Derecho Internacional de Vitoria-Gasteiz 1988, Servicio Editorial de la Universidad del País Vasco, Bilbao, 1989, p. 365.
ICJ, Reports 1984, p. 418.
See ibid.
ICJ, Reports 1984, p. 419. See of a general nature, Barberis, J., “Los actos jurídicos unilaterales como fuente del Derecho Internacional Público”, in the collective work Hacia un nuevo orden internacional y europeo. Homenaje al Profesor M. Díez de Velasco, Tecnos, Madrid, 1993, pp. 101–116.
Referring later to the Case of the Nuclear Tests (ICJ, Reports 1984, p. 418. the italics are ours).
ICJ, Reports 1984, p. 418.
As stated by the ICJ in the Case of Military and Paramilitary Activities in and against Nicaragua already mentioned.
Ibid., p. 420. In addition, does this pretension of the USA to modify its declaration of acceptance of the jurisdiction of the ICJ of 1946 in order to hinder the claim of April 9, 1984, not constitute an example of bad faith which remains impaired by the application of the principle of good faith by the Court?. This seems to be the case.
Cf. ibid. p. 421.
See ibid., p. 412.
The Temple pf Preah Vihear (ICJ, Reports 1961, p. 32. Although custom and tradition have normally led the countries which accept the obligatory jurisdiction of the Court to use a certain type of drafting for reasons of comfort, but the use of such formula is not imperative (cf. ibid.).
Ibid.
Ibid. Which leads to the conclusion that these types of declarations cannot have another sense or meaning than that of the acceptance of its jurisdiction (cf. ibid.).
ICJ, Reports 1952, p. 105. In its declaration of acceptance of the compulsory jurisdiction of the ICJ, Iran excluded controversies concerning the application of all the treaties accepted by it before the ratification of the declaration of acceptance of this jurisdiction, “this intention has found an adequate expression in the text of the Declaration as interpreted above by the Court” (ibid., p. 106).
Cf. ICJ, Reports 1984, p. 419.
Torres Bernardez, S., “La ‘reciprocidad’....”, op. cit., p. 388.
As the ICJ pointed out in the Case of the Interhandel, reciprocity allows the State which has accepted the wider jurisdiction of the Court to avail itself of the reservations to this acceptance drawn up by the other party and not expressed in its acceptance, it is “here” that the effect of reciprocity ends” (ICJ, Reports 1959, p. 23).
In this regard, see Torres Bernardez, S., “La ‘reciprocidad’....”, op. cit., pages 408 et seq.
Cf. ibid., p. 388.
Cf. the case of the Military and Paramilitary Activities in and against Nicaragua (ICJ, Reports 1984, p. 418).
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(2007). Does the Declaration Express the Will of the State or Is It the Interpreter Who Builds It? The Unilateral Declarations. In: Sovereignty and Interpretation of International Norms. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-540-68207-3_5
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