United Nations A/CN.4/542 General Assembly Distr.: General 22 April 2004 English Original: English/French/Spanish International Law Commission Fifty-sixth session Geneva, 3 May-4 June and 5 July-6 August 2004 Seventh report on unilateral acts of States By Victor Rodríguez Cedeño, Special Rapporteur Contents Paragraphs Page Abbreviations................................................................... 2 I. Introduction .......................................................... 1–12 4 II. Acts and declarations that may represent the practice of States ................ 13–201 7 A. Acts whereby States assume obligations............................... 13–79 7 B. Acts by which a State waives a right or a legal claim .................... 80–88 44 C. Acts by which as State reaffirms a right or a legal claim ................. 89–178 48 D. Some forms of State conduct which may produce legal effects similar to those of unilateral acts ............................................. 179–186 70 E. Silence and estoppel as principles modifying some State acts ............. 187–201 72 III. Conclusions .......................................................... 202–231 78 Annex Main sources used ............................................................... 82 04-32197 (E) 250604 300604 *0432197* A/CN.4/542 Abbreviations used Actividades ... Actividades, Textos y Documentos de la Política Exterior Española Afr.Y.I.L. African Yearbook of International Law A.D. Annual Digest and Reports of Public International Law Cases Yearbook ... Yearbook of the International Law Commission A.D.I. Anuario de Derecho Internacional A.F.D.I. Annuaire Français de Droit International A.S.D.I. Annuaire Suisse de Droit International A.J.I.L. American Journal of International Law B.E.C. Bulletin of the European Communities B.O.C.G. Boletín Oficial de las Cortes Generales B.O.E. Boletín Oficial del Estado B.Y.B.I.L. British Yearbook of International Law C.A.H.D.I. Committee of Legal Advisers on Public International Law Canadian Y.B.I.L. Canadian Yearbook of International Law D.S.C. Diario de Sesiones del Congreso D.S.S. Diario de Sesiones del Senado E.J.I.L./J.E.D.I. European Journal of International Law/Journal Européen de Droit International For.Aff. Foreign Affairs G. de M. Gaceta de Madrid G.Y.B.I.L. German Yearbook of International Law H.I.L.J. Harvard International Law Journal Harvard L.R. Harvard Law Review I.C.L.Q. International and Comparative Law Quarterly I.C.J. Reports Reports of Judgements, Advisory Opinions and Orders of the International Court of Justice I.L.M. International Legal Materials I.L.R. International Law Reports J.A.I.L. Japanese Annual of International Law Keesing’s Keesing’s Record of World Events N.I.L.R. Netherlands International Law Review 2 A/CN.4/542 N.Y.B.I.L. Netherlands Yearbook of International Law OID Oficina de Información Diplomática Pol.Ext. Política Exterior P.C.I.J. Publ. Publications of the Permanent Court of International Justice (Judgements, Orders and Advisory Opinions) R.S.A. Recueil des Sentences Arbitrales (also referred to as R.I.A.A.) R.I.A.A. Reports of International Arbitral Awards R.E.D.I. Revista Espanola de Derecho Internacional R.P.E. Revista de Política Exterior R.G.D.I.P. Revue Générale de Droit International Public R.H.D.I Revue Hellénique de Droit International S.A.Y.I.L. South African Yearbook of International Law Spanish Y.B.I.L. Spanish Yearbook of International Law 3 A/CN.4/542 I. Introduction 1. At its fifty-fifth session, the International Law Commission established a Working Group on unilateral acts of States, which recommended (recommendation 4) that: “4. The report which the Special Rapporteur will submit to the Commission at its next session will be exclusively as complete a presentation as possible of the practice of States in respect of unilateral acts. It should also include information originating with the author of the act or conduct and the reactions of the other States or other actors concerned”.1 2. The question of the definition of a unilateral act is still under discussion within the Commission. As an interim measure, with a view to being able to make progress with its work, the Commission endorsed the Working Group’s recommendation and adopted the definition given below. While this is only a working definition, it will serve as a basis for the adoption in due course of a definitive definition of a unilateral act which the Commission can use for its work of codification and progressive development: “Recommendation 1 1. For the purposes of the present study, a unilateral act of a State is a statement expressing the will or consent by which that State purports to create obligations or other legal effects under international law”.2 3. In accordance with the Commission’s regular practice, a suitable definition of a unilateral act, one that can be used for purposes of developing rules governing the functioning of this category of legal acts, must be based on adequate consideration of the practice of States. This point was made by a number of members of the Commission in 2003, with reference to the Special Rapporteur’s sixth report. “The examination of State practice was limited. The analysis should focus on relevant State practice for each unilateral act, with regard to its legal effects, requirements for its validity and questions such as revocability and termination; State practice needed to be assessed so as to decide whether it reflected only specific elements or could provide the basis for some more general principles relating to unilateral acts”.3 “It was felt that, based on State practice, unilateral acts which create international obligations could be identified and a certain number of applicable rules developed”.4 4. Similar remarks were made by representatives of several States in the Sixth Committee of the General Assembly in 2003: that in the absence of a systematic analysis of existing State practice in that area it would be difficult, if not premature, to proceed until a wider response from States had been received;5 that at the current __________________ 1 See Official Records of the General Assembly, Fifty-eighth Session, Supplement No. 10 (A/58/10), para. 308. 2 A/58/10, para. 306. 3 A/58/10, para. 277. 4 A/58/10, para. 282. 5 Statement by Israel, A/C.6/58/SR.17. 4 A/CN.4/542 stage, more information should be gathered on State practice in that field;6 that information on State practice would be useful;7 and that the Special Rapporteur should submit as complete a presentation as possible of the practice of States in respect of unilateral acts.8 5. The Working Group established in 2003 offered some guidelines which the Special Rapporteur has taken into consideration in preparing this report: “Recommendation 5 5. The material assembled on an empirical basis should also include elements making it possible to identify not only the rules applicable to unilateral acts stricto sensu, with a view to the preparation of draft articles accompanied by commentaries, but also the rules which might apply to State conduct producing similar effects. Recommendation 6 6. An orderly classification of State practice should, insofar as possible, provide answers to the following questions: – What were the reasons for the unilateral act or conduct of the State? – What are the criteria for the validity of the express or implied commitment of the State and, in particular, but not exclusively, the criteria relating to the competence responsible for the act or conduct? – In which circumstances and under which conditions can the unilateral commitment be modified or withdrawn? Recommendation 7 7. In his next report, the Special Rapporteur will not submit the legal rules which may be deduced from the material thus submitted. They will be dealt with in later reports so that specific draft articles or recommendations may be prepared”.9 6. As he had stated last year that he would do, the Special Rapporteur — with the invaluable assistance of the University of Málaga, to the professors and students of which he wishes to express his sincere thanks for their excellent work — undertook a study of the practice of States, based on an abundant bibliography (a full list of sources will be found in the annex to this report), from which he has selected a series of unilateral acts, some of which may be useful for the purposes of a consideration of the topic under review. 7. It is important to note that an assessment of the practice of States can only be subjective, inasmuch as Governments’ own views on the nature of their statements are not available; this, indeed, may be one of the characteristics of these acts. Consequently, acts, statements and conduct discussed in this report are essentially factual. __________________ 6 Statement by Portugal, A/C.6/58/SR.19. 7 Statement by Chile, A/C.6/58/SR.19. 8 Statement by France, A/C.6/58/SR.19. 9 A/58/10, para. 308. 5 A/CN.4/542 8. In section II below, an attempt has been made to organize the practice of States by subdividing it into acts that fall into various categories of material acts, as usually designated in international doctrine. These acts, despite previous statements to the contrary, have been assigned to the three categories that appeared to be most satisfactory as a basis for a general classification, namely (a) acts whereby a State assumes obligations (promise and recognition); (b) acts whereby a State renounces a right (renunciation); and (c) acts whereby a State asserts a right or legal claim (protest). Notification is discussed separately; certainly it is no less unilateral from a formal standpoint, but there is some disagreement as to whether it is a unilateral act in the sense with which the Commission is concerned.