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АКТУАЛЬНЫЕ ВОПРОСЫ ПОЛИТИКИ И ПРАВА
УДК 341.1/8
Byurabekov R.I., master's student KazGUU University Kazakhstan, Astana HOW A STATE MIGHT BIND ITSELF BY THE VIRTUE OF ITS UNILATERAL DECLARATION
Abstract: Present article deals with the issue of binding unilateral declarations of States, analyzes existing jurisprudence of the International Court of Justice and WTO Panel on the issue and outlines the requirements for the declaration of a State to be binding.
Keywords: Unilateral declarations, obligations erga omnes, statements of state representatives, interpretation of unilateral declarations.
Бюрабеков Р.И. студент магистрант Университет КазГЮУ Казахстан, г. Астана КАК ГОСУДАРСТВО МОЖЕТ СОЗДАТЬ МЕЖДУНАРОДНЫЕ ОБЯЗАТЕЛЬСТВА ПУТЕМ ОДНОСТОРОННЕГО ЗАЯВЛЕНИЯ
Аннотация: Данная статья рассматривает проблему односторонних заявлений государств, создающих международные обязательства, анализирует существующие решения Международного Суда Организации Объединенных Наций и ВТО по теме, а также формулирует требования для одностороннего заявления, порождающего международные обязательства.
Ключевые слова: Односторонние заявления, обязательства erga omnes, заявления представителей государства, толкование односторонних заявлений.
Contemporary international law allows a State to undertake international obligations in numerous ways. Mostly, it is done by conclusion of a treaty, where two or more states negotiate all necessary details. Nevertheless, States might also bind itself by the virtue of unilateral acts. In order to legally bind a state certain conditions should be met.
Firstly, a declaration should be made publicly with the intention to undertake international obligations.138 This is the key requirement that distinguishes legally binding unilateral declarations from declarations of a political nature.139 The former, leads to legal consequences, while the latter is non-legal
138 V. R. Cedeno, Special Rapporteur, Fifth Report on Unilateral Acts of States, U.N. Doc. A/CN.4/525 (Apr. 4, 2002), para. 76.
139 Ibid, para. 41.
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statement emanating from morality and politics.140 In this vein, although in practice it is difficult to clearly distinguish between these two categories, great caution should be paid to this requirement.
Secondly, legally binding unilateral declaration should be formulated by authorized authority. Traditionally, such authority is possessed by agents with full powers or officials representing a State in specific field.141 It is agreed that state representatives competent to bind its states by treaties, as provided by the Vienna Convention on the Law of Treaties, are also presumed competent to create legal duties by unilateral declarations.142 According to the Vienna Convention they are President, Prime Minister and Minister for Foreign Affairs have full powers to bind a State.143 To illustrate, in the Frontier Dispute case between Burkina Faso and Mali, the President was recognized to have such authority. On the other hand, it does not mean these state agents have exclusive capacity to do so. In is confirmed by the International Court of Justice, that officials representing a State in specific field could also bind a state by the virtue of unilateral declaration.144 Namely, in Armed Activities in Congo case, the Minister of Justice of Rwanda was also admitted to be representing a state in a specific field, and therefore authorized to bind Rwanda in respect of matters falling under her competence. Therefore, any state representative, acting in official capacity might create legal obligations by their statements, however some restrictions exist and will be mentioned during the assessment of circumstances in which declaration is made.
The next requirement is that a declaration should be made in clear and sufficiently specific terms.145 For instance, in the Nuclear Tests case, representatives of France on several occasions declared that atmospheric nuclear tests "would be the last." This was sufficient for the International Court of Justice to recognize these statements as sufficiently specific to indicate France's intention to stop nuclear tests in atmosphere.
On the other occasion, the International Court of Justice declined that statement of Rwanda's Minister of Justice was specific enough. Particularly, the Minister's statement that "past reservations not yet withdrawn will shortly be withdrawn" was found to be equivocal and ambiguous to admit its binding force due to the failure to indicate to which treaties exactly reservations will be withdrawn and well as absence of any reasonable period of withdrawal.
Finally, in order to establish legally binding nature of a unilateral declaration all factual circumstances in which declaration was formulated should be also taken into consideration.146 For example, in the Frontier Dispute case, the
140 Ibid, para. 43.
141 Nuclear Nuclear Test Case (Australia v. France), Judgment, I.C.J. Reports 1974, para. 43
142 C. Eckart, Promises of States under International Law, Hart Publishing, Oxford and Portland, Oregon 2012, p. 234.
143 Vienna Convention on the Law of Treaties, 16 December 1966, 999 UNTS 171, Art. 7.
144 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, I.C.J. Reports, 2002, para. 47.
145 Ibid, para. 50.
146 Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, I.C.J. Reports 1986, para. 40.
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President of Mali during an interview made a clear statement that "if the Organization of African Unity Commission decides objectively that the frontier line passes through Bamako, my Government will comply with that decision". Nevertheless, the International Court of Justice refused to recognize it to be legally binding by referring to fact that previously both states refused to empower the Commission in question to render legally binding decisions. Therefore, there were no grounds to interpret the statement at issue as giving rise to legal commitments.
Furthermore, the WTO Panel made noted that a State should not find itself legally affected on the international plane by the casual statement of any of representatives speaking on its behalf.147 Further, it specified that casual statements and those that were made in the heat of the argument should not be considered as binding.148
Thus, despite the concrete terms of a declaration, the legal force might be barred by the factual circumstances in which the unilateral act took place.
In any case, the declaration should express unconditional will of a state to undertake commitments without expecting quid pro quo, reaction, reply or any acceptance from another State.749 [2, para. 43] Moreover, it is also should be noted that unilateral declarations could should be addressed to the international community as a whole or to a one or more states.150 Although, a declaration might be addressed to one or several states it should be reminded that in any case it creates obligations toward the community of states. In other words, these commitments have a character of erga omnes.151
To summarize, in order for a unilateral declaration to have legally binding character it should comprise the will of a state to be legally bound, made by a competent state agent or representative publicly, contain clear and specific terms that give rise to specific undertakings. On the other hand, all relevant factual events should also be taken into consideration for the establishing whether particular unilateral declaration bears legal consequences for a state.
References:
1. V. R. Cedeno, Special Rapporteur, Fifth Report on Unilateral Acts of States, U.N. Doc. A/CN.4/525 (Apr. 4, 2002);
2. Nuclear Nuclear Test Case (Australia v. France), Judgment, I.C.J. Reports 1974;
3. C. Eckart, Promises of States under International Law / C. Eckart. - Oxford and Portland, Oregon: Hart Publishing, 2012 - 335p.;
4. Vienna Convention on the Law of Treaties, 16 December 1966, 999 UNTS 171;
5. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, I.C.J. Reports, 2002;
147 Panel Report, United States—Sections 301-310 of the Trade Act of 1974, WT/DS152/R., para. 7.118.
148 Ibid, para. 7.122.
149 Nuclear Nuclear Test Case (Australia v. France), Judgment, I.C.J. Reports 1974, para. 43.
150 Guiding Principles applicable to unilateral declarations of States capable of creating legal obligations, with commentaries thereto 2006, Yearbook of the International Law Commission, 2006, vol. II, Part Two.
151 Nuclear Nuclear Test Case (Australia v. France), Judgment, I.C.J. Reports 1974, para. 50.
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6. Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, I.C.J. Reports 1986;
7. Panel Report, United States—Sections 301-310 of the Trade Act of 1974, WT/DS152/R.;
8. Guiding Principles applicable to unilateral declarations of States capable of creating legal obligations, with commentaries thereto 2006, Yearbook of the International Law Commission, 2006, vol. II, Part Two.
УДК 341.1/8
Byurabekov R.I., master's student KazGUU University Kazakhstan, Astana RESTITUTION OF CULTURAL PROPERTY DURING PEACETIME
Abstract: Present article deals with the issue of restitution of cultural property, analyzes existing legal framework for the repatriation of cultural objects, illustrates contemporary issues on the restitution of cultural property exported before the creation of any legal framework and their solution.
Keywords: Cultural property, cultural objects, illegal import of cultural property, procedure of return of cultural property.
Бюрабеков Р.И. студент магистрант Университет КазГЮУ Казахстан, г. Астана ВОЗВРАТ КУЛЬТУРНЫХ ЦЕННОСТЕЙ В МИРНОЕ ВРЕМЯ
Аннотация: Данная статья рассматривает проблему возврата культурного достояния, анализирует существующую правовую основу для репатриации культурных объектов, указывает основные современные проблемы возврата культурных объектов вывезенных до заключения правовых документов, а также приводит их решение.
Ключевые слова: Культурное наследие, культурные объекты, незаконный ввоз культурного наследия, процедура возврата культурного наследия.
It is well-known that objects of cultural property could be imported from one state to another more than a decade ago, when there was no applicable legal framework for the protection and repatriation of cultural property.
In order to prevent import of cultural objects from the state of origin several international instruments were concluded. Nonetheless, before proceeding to the frameworks established, the definition of the term "cultural heritage" should be defined.
The first universal instrument that gives explanation to what cultural property is Convention for the Protection of Cultural Property in the Event of Armed Conflict 1954. Although, the above stated convention applies during the
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