The Conundrum of Unilateral Declarations: Moving Beyond the Congo Case

It is an accepted principle in international law that a communicated unilateral act has binding legal implications on the declarant State. This is similar to municipal law, wherein unilateral contracts do not require acceptance or consensus ad idem from the addressee of the declaration by the State but all acts of the State can be subjected to the standard of creating binding legal obligations on the State.

The International Court of Justice (“ICJ”) and International Law Commission (“ILC”) have confirmed that unilateral declarations are binding obligations if they are publicly manifesting the will to be bound by an authorized representative. When ascertaining whether there is an intention to be bound the statement should be interpreted in ‘a natural and reasonable way’ having recourse to, inter alia, ‘clear and specific terms’, ‘language employed’ and the surrounding circumstances. Therefore for a Minister to bind the State, the language used must be clear and specific by employing legal terminologies, reflecting an express manifestation of will in the prevailing circumstances in the State.

In the Frontier case it was observed that intention would not be presumed if nothing hindered parties from concluding an agreement. However, publicists have criticized the decision because considering the ‘normal course of events’, an agreement would likely be preferred by the State parties.

It has been observed by the ICJ and reiterated by the ILC that if ‘holders of technical ministerial portfolios’ make statements ‘falling within their purview’ they may bind the State. Though in the Gulf case statements falling outside Article 7 of the Vienna Convention on the Law of Treaties, 1969 (“VCLT“) were held to be non-binding in instances where a mid-level official of the State made the statement. 

The requirement of the ‘Manifest will to be Bound’:

The ICJ in the Frontier case observed that such statements are binding only if circumstances hindered parties from concluding a formal agreement, a view confirmed by publicists. If surrounding circumstances do not hinder a State from concluding an agreement, then it can be argued that such a statement does not reflect a manifestation of will.

Determination of a Minister as the authorized representative of the State:

Customary international law, as reflected under Article 7 of the Vienna Convention of Law of Treaties, 1969 (hereinafter, ‘VCLT’), acknowledges only Head of the State, Head of the Government, and the Minister for Foreign Affairs as representative of their State by virtue of their functions. However, under the realm of unilateral acts, ILC and ICJ have observed that other high-ranking officials may also bind the State.

Pertinently, the ICJ in Democratic Republic of Congo v. Rwanda, (hereinafter, ‘Congo case’) observed that ‘other persons representing a State in specific fields may be authorized by that State to bind it by their statements in respect of matters falling within their purview’. However, this observation is devoid of actual state practice, and therefore cannot be relied on to create a binding obligation under international law.

As observed by H. Thirlway, the above observation would only be true if there exists State practice, which the ICJ or even the parties in the Congo case could not establish conclusively. Though the Special Rapporteur has also suggested in his Second Report on Unilateral Acts of States (1999) a similar view as observed in the Congo case, but other ILC members and subsequently the same Special Rapporteur were of the contrary view. The rationale espoused was that international practice has not been examined ‘in great detail, much less systematically’ to determine whether persons other than those mentioned under the VCLT could at all represent the State.

Further any addition to the established custom should be considered from a ‘restrictive angle’. As noted by Al Baharna, the nature of officials who could bind the State in the form of an unilateral act should be restricted to ‘heads of diplomatic missions and other State ministers who had full authorization to do so for specific purposes only.’ This rationale thus restricts a general category of ministers to formulate unilateral obligations for the concerned State, which in principle is also accepted in State practice.

Moreover, when the Special Rapporteur stated  (which was later observed in the Congo case) that technical ministers may also bind the State in relation to matters falling within their spheres, he referred to Skubiszewski who himself had made such a statement without examining any state practice. Further in response to the questionnaire given by the ILC to the Member States, Israel responded that high-ranking officials require ‘specific and express authorization in order to engage the State by way of unilateral legal acts’. Argentina was of the view that to safeguard certainty in international relations, any addition of persons who would be deemed to represent the State should be approached restrictively. Even the debates of the General Assembly reflect a lack of consensus regarding this view.

Thus, it is clear that the ILC recognized the need to examine state practice in order to hold the view that other ministers may bind the State. Yet, as observed by Mr. Pellet, the Chairperson of the Working Group on Unilateral Acts of States, the ILC’s conclusion that other ministers may also bind the State was inspired by the dicta of the ICJ in the Congo case the conclusion of which was reached without examining state practice; thereby rendering non-obligatory the unilateral acts formulated by certain ministers of the State.

Since authors and the ILC have recognized that state practice has not been examined in order to add any persons in the list deemed representatives, the Congo case does not reflect sufficient state practice and should not be relied upon as binding in international law. Importantly, this would be in accordance with the well-established jurisprudence of the ICJ (which has been reiterated by various authors and the ILC) that restrictive interpretation should be utilised when unilateral declarations are in question.

Moreover, the Nuclear Tests case also cannot be relied upon to state that other high-ranking officials may bind the State because of the distinguishable facts of the case. In the Nuclear Tests case it was not the Defence Minister’s statement that was the sole basis for the determination of the binding nature of the unilateral act of the State. Thus the ICJ observed that the statements binding France when considered as a ‘whole’ included the statements of Head of the State. Moreover, Judge De Castro in his dissenting Opinion observed that the statements were binding because they were repeated statements. Therefore the rationale espoused by the Congo case does not reflect State practice and presents a flawed approach adopted by the ICJ.