Unilateral Declarations | International Law

Welcome back everybody to our studies in public international law. In this lesson what we're going to do is ask the question of universal declarations, and to really contextualise the idea of universal declarations within the context of public international law on the one hand, but more specifically the sources of public international law. Talking really specifically about the idea of whether or not universal declarations could have any kind of merit as having a certain amount of international lawmaking ability attached to it. The previous lesson examined the nature of judicial decisions as being a major source of public international law, and what we did was we cited the Pacabana case, which is of course from the US Supreme Court, and we will recap that in this lesson as well. We will just sort of touch on that before we get into looking at the nature, specifically the nature of universal declarations. And really we are stepping outside of what I would describe as our comfort zones, in the sense that what we are doing here is we are examining the potentiality of sources of international law, rather than specifically taking a quite descriptive understanding and descriptive undertaking in relation to the sources of public international law, which are cited in every single IL textbook, in every single IL treaty, if you will. Specifically looking at the ICJ statute, looking at treaties, customs, general principles of law, and judicial decisions, and the works of highly qualified publicists, etc., etc., etc. This lesson is going to talk about the concept of universal declarations, but we're also now going to move away from looking at the formal sources and start to look at some of the subsidiary principles. So the idea of suggesting that there are such things as Ergoromnes obligations within international law, as well as suggesting that there are things such as Yuskogin's obligations within international law, as well. So as a basic recap, a basic recap of our previous lesson, what the Pakabana case essentially notified us of is this idea of the relationship and the place that something like a judicial decision could have in international law. This is a case from the US Supreme Court, and it is a case that predates, as I mentioned in a previous lesson, both the United Nations and the International Court of Justice on the one hand, but also, on the other hand, it also predates the League of Nations and the Permanent Court of International Justice. This is a very important authority because they say in this case, quote, international law is part of our law. It must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending on it are duly presented for their determination. And then it goes on to say, quote, where there is no treaty and no controlling executive or legislative act or judicial decision, results must be had to the customs and usages of civilized nations. Remember as well, I noted in the previous lesson, that this conception of civilized nations isn't really yielded or wielded in the kind of modern international legal conversations, or international relations conversations for that matter. As evidence of this, to the works of jurists, sorry, the works of jurists and commentators who by years of labor research and experience have made themselves peculiarly well acquainted with the subjects of which they treat. And it is this point at the end, the idea of works of jurists, i.e. people who are presenting and creating jurisprudence of international law, as well as commentators, the works of, quote, highly publicized scholarship, essentially. And this is, of course, something that is represented and replicated in the ICJ statute as being subsidiary sources of international law. So with all this being said, let's theorize for a little bit. Let's think about international law from a more theoretical perspective, like we did when we looked at general principles, for example. What about universal, sorry, unilateral declarations? Okay, now a unilateral declaration is, of course, a declaration, something is being declared, a state of affairs is being represented unilaterally by one state, okay, or one group, or something of that nature, depending on whether we're talking about international law or not, fundamentally. So that's what a unilateral declaration refers to. Now the question of this case, specifically looking at, we're going to look at this in a second, the question of the case that we're examining, but fundamentally the idea is, more generally, could a unilateral declaration be considered as a binding source of international law? The case in question related to the Ikland Declaration. This was a declaration which was made by the Danish foreign minister, and the question here is, of course, whether or not this Ikland Declaration had a certain potentiality of having binding authority within international law. It gave rise to the question of whether, generally speaking, a unilateral declaration has the capability of being binding. Now, to just cut very quickly to the end of this case, the permanent court of international justice, so the precursor to the ICJ, which, of course, took place and existed in the years of the League of Nations, so the interwar period, they made it very, very clear that the answer to this question, the question of whether or not a unilateral declaration can give rise to binding legal authority, is actually yes, and we can see this in the 1933 case by the permanent court of international justice concerning the legal status of eastern Greenland. Essentially, the permanent court of international justice here made it clear that it was possible for states to be legally bound to unilateral declarations which are made by their own government, as they say, quote, 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 regards to a question failing, sorry, falling within his province is binding upon the country to which the foreign minister belongs. If you want to have a citation of how this translated from the permanent court of international justice into the international court of justice, the sort of the institution that exists today, we see the reaffirmation of this basic principle in the nuclear test cases, which concerned Australia, France and New Zealand from 1974, and this gives rise to a number of other theoretical questions. So, for example, and we're not going to actually get into this in this series of lessons, but we will get into it when we do a series of lessons in the future, looking at the law of the United Nations specifically. But to what extent do UN Security Council resolutions provide for binding legal obligations in international law? This is something that I've talked about on my on my Substack page a couple of times with reference to the recent ceasefire obligations that have been presented in the current Gaza war. At the time of recording this is on the 14th of June 2024, it's still going on, and the cause for ceasefire and the questions of whether or not they may or may not have a certain amount of legal binding authority. And there is debate as to what extent and to which extent essentially the UN Security Council is able to provide us with a certain degree of binding authority. And it was concluded that in certain circumstances, depending on a number of different factors, some Security Council resolutions may be binding, other Security Council resolutions may not be binding. And it is essentially the the remit and the chapters of the UN Charter that are being deployed that give us an indication of this, as well as the kind of language that is being utilised. And this was what the debate was surrounding the original ceasefire resolution which took place in March, asking the question of whether or not the word demands provides us with international legal obligations. And this is a question. Now, a more recent point that you could think about is the question of whether or not some other issues or some other creations of international law could be binding. So there is a very interesting article from the European Journal of International Law blog, which is of course open access to everyone, all the way back in 2009 by a public international law professor, Marko Milanovic, on the question of whether or not presidential statements could theoretically be binding. So presidential statements that are assigned by the UN Security Council, to what extent do they have a certain amount of binding authority as well? All of which is of course discussed on that page. And again, the question of what may or may not be legally binding in international law has a certain amount of codification, it has a certain amount of clarity in some areas when it comes to treaties, custom, when it comes to certain judicial decisions, and when it comes to things like the UN General Assembly where they are not binding the resolutions that are passed. But then you have other issues like the Security Council and the extent to which all or maybe all of the Security Council resolutions may or may not be binding, in addition to the question of whether or not unilateral declarations can be binding. So what we're doing here is we're attaching a certain amount of theorising to this question, and we will get into this, like I said, when we look at the UN system more specifically in future lessons time, but for now this is just a conclusion of some of the theorising about what may or may not be legally binding instruments within international law.