| I. | Substantive International Law - First Part |
| 2. | SOURCES OF INTERNATIONAL LAW |
| 2.5. | Unilateral Acts |
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Frontier Dispute, Judgment
(Burkina Faso/Republic of Mali)
I.C.J.Reports 1986, p. 554
[pp. 573-574] The statement of Mali's Head of State on 11 April 1975
1 was not made during negotiations or talks between the two Parties; at most,
it took the form of a unilateral act by the Government of Mali. Such
declarations "concerning legal or factual situations" may indeed "have
the effect of creating legal obligations" for the State on whose behalf
they are made, as the Court observed in the Nuclear Tests cases (I.C.J.
Reports 1974, pp. 267,472). But the Court also made clear in those cases
that it is only "when it is the intention of the State making the
declaration that it should become bound according to its terms" that "that
intention confers on the declaration the character of a legal undertaking"
(ibid.). Thus it all depends on the intention of the State in question,
and the Court emphasized that it is for the Court to "form its own view of
the meaning and scope intended by the author of a unilateral declaration which
may create a legal obligation" (ibid., pp. 269,474). In the case
concerning Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America), the Court examined a communication
transmitted by the Junta of National Reconstruction of Nicaragua to the
Organization of American States, in which the Junta listed its objectives; but
the Court was unable to find anything in that communication "from which it
can be inferred that any legal undertaking was intended to exist" (I.C.J.
Reports 1986, p. 132, para. 261). The Chamber considers that it has a duty
to show even greater caution when it is a question of a unilateral declaration
not directed to any particular recipient.
In order to assess the intentions of the author of a unilateral act, account
must be taken of all the factual circumstances in which the act occurred. For
example, in the Nuclear Tests cases, the Court took the view that since
the applicant States were not the only ones concerned at the possible
continuance of atmospheric testing by the French Government, that Government's
unilateral declarations had "conveyed to the world at large, including the
Applicant, its intention effectively to terminate these tests" (I.C.J.
Reports 1974, p. 269, para. 51; p. 474, para. 53). In the particular
circumstances of those cases, the French Government could not express an
intention to be bound otherwise than by unilateral declarations. It is difficult
to see how it could have accepted the terms of a negotiated solution with each
of the applicants without thereby jeopardizing its contention that its conduct
was lawful. The circumstances of the present case are radically different. Here,
there was nothing to hinder the Parties from manifesting an intention to accept
the binding character of the conclusions of the Organization of African Unity
Mediation Commission by the normal method: a formal agreement on the basis of
reciprocity. Since no agreement of this kind was concluded between the Parties,
the Chamber finds that there are no grounds to interpret the declaration made by
Mali's head of State on 11 April 1975 as a unilateral act with legal
implications in regard to the present case.
| 1 | On 11 April 1975, the head of State of Mali granted an interview to the France-Presse agency, during which he stated that:
"Mali extends over 1,240,000 square kilometres, and we cannot justify fighting for a scrap of territory 150 kilometres long. Even if the Organization of African Unity Commission decides objectively that the frontier line passes through Bamako, my Government will comply with the decision."
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