Unilateral Acts of States and International Law
Unilateral Acts of States
However, unilateral acts of States are not mentioned in Article 38 of the Statute of the Court as a source on the basis of which this body can resolve a dispute. In practice, the existence of unilateral acts of States as a formal source of international public law is fully recognized and accepted by both the doctrine and the case law.
Conceptually, we can say that the unilateral acts of States is a unilateral expression of the will of States made by its representative on certain situations of fact or law and carried out with the intention of producing legal effects on the international level.
From this concept, we can deduce the characteristics of this source of international law.
- In relation to the manifestation of the will of the State, it should check with the intention of producing legal effects.
- It does not depend on the willingness of other international subjects.
- The State’s expression of will must be expressed by the representative who has the competence to bind the State internationally.
- This expression of will is not subject to any special formalities.
- The expression of will must be established in a clear and precise manner.
Classification of Unilateral Acts of States
Tacit and Explicit Unilateral Acts
For the first, the classic example is silence, which according to doctrine, and as also recognized in international jurisprudence, in some cases may involve the State internationally.
Example: Failure of the International Court of Justice in 1962, called Preah Vihear.
Meanwhile, express unilateral acts generically are those in which there is an active conduct of the State in certain situations of fact or law. We can distinguish between the following types of acts:
a) Notification: The explicit unilateral act whereby a State officially informs another of a certain event or situation. The distinctive effect of the notification itself as a unilateral act will be completed once the recipient of the notification should be considered officially aware of the fact statement. In turn, the notification may be mandatory or optional as is provided in a treaty or international standard mandatory practice.
b) Recognition: The one-sided act whereby a state accepts the existence or legitimacy of a given order of things. Example: recognition of state or government recognition, both of which in turn can be express or implied as performed or not officially by the state. For example, if there is a change of government, whether democratic or not, and State X does not object to this situation by withdrawing its ambassador, it is tacitly understood that it recognizes this change in government.
c) The protest is that unilateral act whereby the State seeks to prevent the consolidation of a given order of things which it believes is true.
d) The promise is that a unilateral act by which the State undertakes to behave in the future in a certain way. So this commitment will require the State under the principle of good faith.
e) Waiver: It is a unilateral act of the State by which it leaves a particular claim and that in turn can also be expressed or implied.
Relationship Between Domestic Law and International Law
One characteristic of this branch of law is the functional splitting that occurs whenever the main international subject, like the state, is both the source and recipient of international standards. The generator creates rules regarding either by way of its uniform and consistent practice, by way of its expression of will, or by the conventional route. And those rules are addressed as it applies to the state, and it is here in the implementation of international regulations regarding the State where there are two central questions such as:
The way in which international law applies in the domestic and international or domestic law which must prevail before a difference. The response or development of these issues, in addition to being essentially varied in different legal systems, depends basically on the position that was about it. Thus we will have two great doctrines that take charge of this issue.
Dualistic or pluralistic doctrine: Under this doctrine, international law and domestic law are legal systems that are quite different, are oriented to different subjects, and have different objects. Thus the law is subject to natural and legal persons and is designed to regulate relations between them and for the State, while for its part, international law has as its main subject the States and its object is the relationship of these internationally.
The Consequences of This Doctrine Are:
- Both branches require exclusively in their respective fields.
- International courts should apply international law only and similarly the domestic courts of states must apply exclusively domestic legislation, except where expressly incorporate international standards through a law.
- States may enact laws that are contrary to the provisions of the treaties signed by that State, which can lead to international responsibility of the state.
Monist doctrine: Under this doctrine, international law and domestic law of States constitute a unitary legal system in which international law prevails over domestic law. According to the positivist assumptions of this doctrine, the basis of the rule is not in the willingness of the parties but is in a hierarchically higher norm. Thus internally the validity of any regulation is based on the law and the validity of this turn in the CPR of the state and turn the right internal validity is subordinated to a hierarchically higher norm that is international law, which in turn is a principle called final livelihood sub pacta servanda.
In terms of comparative law, solutions are different. However, there was an increasing tendency to validate in the domestic to the international standard, as happens for example with France and Spain.
What are the ways in which international law applies or may apply at the national level?
- Reception: According to which specific international norm is incorporated into domestic law by means of a law, put another way is the state which through its internal procedures specific legislative, who joins the current I th the domestic order.
- Immediate Application: Which is that the international standard is applicable in sofacto in the system or law without the need for its incorporation through legislation. We must distinguish those who are self-executing treaties of those who are not.
Self-Executing Treaties
As its name implies, are those that can be applied immediately without the need for further standards to come to detail his application. Example: Human Rights treaties which by their nature are enforceable without the need for subsequently enacted other legislation coming to detail its contents.
- Forwarding: Is that system under which the rule of international law refers to law and vice versa. For example, if a treaty establishing a degree of Human Rights penalty for a behavior and the treaty itself redirects to the sanction for a particular domestic law and criminal sanction for property in this way is because then forwarding the international law refers to law.