Unilateral Acts in the Age of Social Media

2.3.1 Intent to be Bound

The importance of the consent or will to be bound by the terms of a treaty is apparent in Articles 11-15 VCLT. The principles contained therein are equally applicable to unilateral acts. The requirement of intent or will to be bound is closely linked to the principle of State sovereignty in international law. Just as treaties are not binding upon States that are not parties to them and bilateral agreements do not confer obligations on third parties, unilateral conduct of a State that does not contain an expression of a will or an intent to be bound, does not normally bind the State (with the possible exception of acquiescence or international estoppel).³¹ This is because in all three cases, the unbound State has not expressed a will or intent to be bound by the associated terms. The State does not therefore express any consent, which is a necessary requirement for the respect of State sovereignty: ‘[t]he expression of will is closely linked to the legal act and, consequently, the unilateral act. Will is a constituent of consent and is also necessary for the formation of the legal act’.³²

Therefore, for a unilateral act to create international obligations for its author State, the State must somehow display intent to be bound according to the terms of the unilateral act. The ILC Guiding Principle No. 1 states that ‘[d]eclarations publicly made and manifesting the will to be bound may have the effect of creating legal obligations’.³³ As pointed out by Cedeño and Cazorla, there are two main perspectives from which to approach the question of when a declaration has legal effects, depending on the legal-cultural origins of the observer.³⁴ One perspective is that for a unilateral act to be legally binding, it must contain an ‘express manifestation of a will to be bound on part of the author State’. The other is the view that ‘any unilateral behaviour by the State producing legal effects on the international plane may be categorized as a unilateral act’. Due to the easier consensus on issues relating to binding unilateral acts in the first sense – so-called unilateral acts stricto sensu, which most often take the form of formal declarations – they were the focus of the ILC during its research towards the Guiding Principles. However, the ILC acknowledged in the preamble to the Guiding Principles that a State might also be bound by other conduct than formal declarations, such as ‘mere informal conduct including, in certain situations, silence.’³⁵

No matter the behaviour that constitutes the binding unilateral act, declaration or otherwise, the act must imply that the author State intends to adhere to its terms. Showcasing the tension between the two above-mentioned perspectives on the binding force of unilateral acts, the preamble of the Guiding Principles also states that ‘in practice, it is often difficult to establish whether the legal effects stemming from the unilateral behaviour of a State are the consequence of the intent that it has expressed or depend on the expectations that its conduct has raised among other subjects of international law’. However, the expectations of other said subjects would only be legitimate if the author State had displayed apparent intent to adhere to its own terms, i.e. if the State has acted in such a way as to create legitimate expectations on the part of other States. If the State that has created legitimate expectations later tries to change its course, it may violate the principle of good faith. It seems the practical differences in applying the requirement of intent are negligible, as the result will be the same after all the necessary considerations. When considering whether a State has expressed sufficient intent to be bound, it follows from the Nuclear Tests cases that a restrictive interpretative approach must be kept: ‘[w]hen states make statements by which their freedom of action is to be limited, a restrictive interpretation is called for’.³⁶

2.3.2 Competent Authority or Representative

For a unilateral act to be legally binding, it must be authored by a competent State organ or representative. One may look to Article 7 VCLT and its section on invalidity of treaties for guidance on this matter,³⁷ as the principles embodied in these provisions are also applicable to unilateral acts as general principles of international law. Chiefly, one finds that the respective act must have been formulated by a State organ or representative authorised, according to the domestic laws of the State, to bind the State on the international plane. The Guiding Principles No. 4, like Article 7 VCLT, consider Heads of State, Heads of Government and Ministers of Foreign Affairs as competent to formulate such unilateral acts, in line with customary international law.

This requirement of competence invariably is a challenge within the sphere of unilateral acts. In contrast to a treaty-making process that is comparably well-prescribed, predictable and familiar to the actors operating within it, the broad spectrum of unilateral acts can be undertaken by various State actors, with unclear boundaries of what authority they have according to domestic laws. Zemanek writes:

‘The answer to the general question as to who may legally commit a State in international law depends on the relative merit which one attaches to two conflicting concerns: one is the necessity to protect the trust of other States in the authority of an apparently competent State agent; the other is the respect for the autonomy of a State to determine the competence of its organs, which it usually does in its constitution. These conflicting concerns are treated differently in the rules concerning the conclusion of treaties on the one hand, and in the processes leading to the formation of custom or to a commitment by a unilateral legal act on the other’.³⁸

The competence to formulate unilateral acts is rarely, if ever, expressly prescribed in constitutions. Constitutions may give certain powers to certain ministers, among them the powers to represent the State internationally to the Head of State, Head of Government and the Foreign Minister. However, these representatives are not exclusively the ones who formulate unilateral acts, binding or not. Other ministers as well as State organs may do so as well, as evidenced by the Nuclear Tests cases: in addition to statements by the French President and Foreign Minister, the ICJ also deemed a statement by the French Embassy in Wellington and statements by the French Defence Minister to be relevant in the determination of the obligations which the French State had put upon itself.³⁹

However, even though the person formulating the act may be assumed to have the competence to formulate the act according to international law, he or she may not be authorised to do so under their respective State’s constitution. This was the setting in the Eastern Greenland case: the Norwegian Foreign Minister did not have constitutional authority to make the promise that he gave his Danish colleague, namely a de facto renunciation of the Norwegian claim to sovereignty over the disputed area. Yet, the PCIJ, in considering the statement by the Norwegian Foreign Minister, held that it was ‘beyond all dispute that a reply of this nature given by the Minister of Foreign Affairs on behalf of his Government […] in regard to a question falling within his province, is binding upon the country to which the minister belongs’.⁴⁰

Later judgments suggest the case might have had a different outcome today. Nowadays, one would have to consider the rules of invalidity as expressed in Article 46 VCLT, which provide for the invalidation of consent if there has been a manifest violation of a rule of internal law of fundamental importance, and the violation would be ‘objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith’.⁴¹ In the 1951 Fisheries Case (UK v. Norway), the ICJ considered whether Norway’s method of drawing baselines was in accordance with international law. The UK argued that ‘the Norwegian system of delimitation was not known to [the UK] and that the system therefore lacked the notoriety essential to provide the basis of an historic title enforceable against [the UK]’.⁴² The ICJ did not agree with this view, and said that the UK could not have been ignorant of two relevant Norwegian decrees of 1869 and 1889 regulating the matter, due to the country’s own interest in the matter as a neighbouring Coastal State.

This suggests that a stricter standard currently applies to the good faith of States wishing to rely on unilateral acts than that which was applied in the Eastern Greenland case. States nowadays have a more far-reaching duty to investigate the powers of an authority or representative formulating a unilateral act. In the Eastern Greenland case, the PCIJ simply stated that statements such as the one made by the Norwegian Foreign Minister are beyond all dispute binding upon the country of the minister who makes them. Today, if it was ‘objectively evident’ that the Norwegian Foreign Minister did not have the powers to make such a promise, the unilateral act could be rendered invalid. The considerations as to who can formulate binding unilateral acts can be summarised as follows. In the sphere of unilateral acts, an observer seeking to clarify whether a unilateral act is valid or not, must assess, in good faith, whether the act falls within the ambit of the regular function and powers of the State authority or representative who produced it. If there is any circumstance that should reasonably give rise to suspicion about their competence, a State examining the act should be sceptical towards its validity. On the other hand, as strict a standard as Article 7 VCLT is not required.⁴³ This would severely hamper the smooth functioning of international relations and raise the transaction costs⁴⁴ between States significantly.⁴⁵

2.3.3 An Admissible Lawful Object

Just like in the law of treaties, a unilateral act conflicting with a peremptory norm of international law (jus cogens) will be void. The principle is embodied in Article 53 VCLT, where the principle is expressed for the purposes of the law of treaties. However, the principle does not only apply to treaties – it applies to all acts of States.⁴⁶ If the object of the unilateral act is in violation of such a norm, no competent expression of will or intent can repair its fundamental defects. The same applies if the object of the act is materially impossible – no expression of will can ever make its object realisable. If the unilateral act amounts to an unlawful threat or use of force, violating the principles expressed in Art. 2 (4) of the Charter of the United Nations, not only is it invalid – it may also invoke State responsibility, and may therefore have legal effects in that sense.⁴⁷

2.3.4 The Correct Form

In the sphere of unilateral acts, international law does not demand a specific form with which to formulate the act – contrary to most other international legal acts, which often require a certain form to be valid.⁴⁸ The essential condition of the binding nature of a unilateral act is intent itself, and its author is free to choose the form through which that intent shall be expressed. This is explicitly stated by the ICJ in the Nuclear Tests cases. When referring to a series of statements by French authorities, the Court stated: ‘[w]ith regard to the question of form, it should be observed that this is not a domain in which international law imposes any special or strict requirements. Whether a statement is made orally or in writing makes no essential difference’.⁴⁹

The statements referred to by the Court were produced by various authorities in various forms: one was a note sent by the French embassy in Wellington,⁵⁰ in addition to a communiqué issued by the Office of the President of the French Republic,⁵¹ statements made by the French President, the Ministers of Foreign Affairs and Defence,⁵² and, finally, an oral statement made by the French President at a press conference.⁵³ The case truly showcases the variety of forms through which unilateral acts can be expressed.

However, there is one necessary and absolute requirement for the form of unilateral acts: they must be made public, although not necessarily directed at the party invoking the act. In this regard, the ICJ stated in Nuclear Tests: ‘[a declaration], if given publicly, and with an intent to be bound, even though not made within the context of international negotiations, is binding’.⁵⁴ The need for a unilateral act to be expressed publicly is obvious: without publicity, its content can still be modified by its author(s), and it is in that sense not final. Similarly, leaked documents from discussions in governments etc. cannot be binding: they are not final expressions of will from the State, and other States may therefore not rely on them.

3.3.2 Intent to be Bound on Social Media

As with unilateral acts assumed in other forms, a unilateral act assumed by a statement on social media must display intent to be bound by its terms in order to be binding. This criterion operates, in essence, no differently when applied to statements on social media compared to other forms of unilateral acts. It is, however, necessary to be aware of the manner in which the social media are utilised: does the statement in question contain a message aimed at domestic audiences, or is it a message to foreign audiences containing an obligation upon which other States may rely? The distinction is vital and follows from the principle of State sovereignty. A unilateral act cannot arise from a statement that was intended exclusively for domestic purposes, because such an effect would lead to undue foreign interference in the domestic affairs of States. In the Asylum Case, the ICJ highlighted the importance of refraining from interfering in the domestic affairs of States: Colombia claimed it had the right to qualify, unilaterally and binding upon Peru, a Peruvian national wanted for a domestic offence in Peru as having a right to asylum. The Court stated that ‘such a criterion would lead to foreign interference of a particularly offensive nature in the domestic affairs of States’.⁷⁷ Similar considerations can be made with regard to the interpretation of potential unilateral acts.

On the other hand, leaders in democratic States are accountable for their statements and should not be considered unbound by policy statements with international implications even if only used to collect domestic support. This is also stressed by Zemanek, who points out that inter-state communications via public media ‘may be ostensibly addressed to the public at large, yet they may concurrently convey a message to other States… They require careful examination to determine whether an international effect was intended or whether they served only a domestic purpose’.⁷⁸

As demonstrated by the Nuclear Tests cases, it can be difficult to determine whether a statement was made for exclusively domestic purposes or if it also contains international obligations. As one of the formative parts of a unilateral act, the ICJ considered a press release by the President of the French Republic, in which he stated:

‘[O]n this question of nuclear tests, you know that the Prime Minister had publicly expressed himself … He had indicated that French nuclear testing would continue. I had myself made it clear that this round of nuclear tests would be the last, and so the members of the Government were completely informed in this respect’.⁷⁹

Another statement forming the unilateral act was made by the French Minister of Defence in an interview on French television, in which he said that ‘the French Government had done its best to ensure that the 1974 nuclear tests would be the last atmospheric tests’.⁸⁰

These statements were not directed at Australia, New Zealand or the international community at large, but primarily at a domestic French audience. The Court stated: ‘[i]t is true that these statements have not been made before the Court, but they are in the public domain, and are known to the Australian Government … It will be necessary to consider all these statements’.⁸¹ The Court seemingly considers the statements to be relevant because they concerned an international matter and were made public by State representatives with presumed powers to bind their State. Whether the message is intended for foreign or domestic audiences seems to be less relevant as long as the sufficient intent to be bound by the terms of the statement is displayed.

Thus, when State representatives make statements regarding international matters in social media, even if only intended for domestic audiences, possible international effects can nevertheless not be ignored. One must also keep in mind, however, that social media might be used as a domestic political tool to gain popularity to a larger degree than press conferences or television interviews, especially preceding elections. It is important to ascertain whether the statement embodies an obligation or is merely an expression of political will or enthusiasm. This will be particularly interesting when President Trump, known for his use of social media, is up for re-election; the tweets made in that future context will then be authored by a State leader with the power to bind the United States, not merely a presidential contender.

3.3.3 Competent Authority on Social Media

The question of determining who is competent to author unilateral acts on social media is complicated by the fact that many State leaders have several different profiles through which they post statements or comments. For example, President Trump controls and uses his private profile @realDonaldTrump as well as the official account of the president, @POTUS, which is handed down from each president to the next. Similarly, the Norwegian Prime Minister has her own private Facebook page, whereas the office of the Prime Minister and the Norwegian government as a whole both have their own respective pages, both of which the Prime Minister is ultimately responsible for. One solution would be to consider only the official accounts to have the authority to produce binding content. However, such a clear-cut distinction does not necessarily reflect reality: Trump primarily uses his private account even for matters relating to governance of the United States, whereas the @POTUS account mainly contains copies, so-called ‘re-tweets’ of content from Trump’s private account.

I suggest it would be useful to draw analogies to the rules of State attribution of internationally wrongful acts. According to Crawford, in order to hold States bound by consensual obligations, ‘the normal rules of authorization under treaty law apply; in order to attribute conduct to them for the purposes of determining their compliance with such obligations, the normal rules of attribution for the purposes of State responsibility apply’.⁸² However, the ICJ has made clear that the rules of authorisation are not as strict for unilateral acts as they are under treaty law:

‘with increasing frequency in modern international relations other persons [than those authorised under the VCLT] representing a State in specific fields may be authorized by that State to bind it by their statements in respect of matters falling within their purview. This may be true, for example, of holders of technical ministerial portfolios exercising powers in their field of competence in the area of foreign relations, and even of certain officials’.⁸³

Therefore, a good solution would be to balance the rules of authorisation under treaty law and the rules of State attribution for the purposes of unilateral acts, especially when formulated in social media. The rules on State attribution are contained in the ILC’s Draft Articles on Responsibility of States for Internationally Wrongful Acts. Although not ratified, they are considered customary law.⁸⁴ The rules reveal the necessity of attributing the actions of individuals to the State: although the State has legal personality, acts attributable to it will necessarily be carried out by individuals or groups of individuals acting in their official capacity. In the commentary to the chapter on attribution of conduct to a State, the ILC emphasises that ‘the general rule is that the only conduct attributed to the State at the international level is that of its organs of government, or of others who have acted under the direction, instigation or control of those organs, i.e. as agents of the State’.⁸⁵ Furthermore, the ILC highlights that attribution of conduct must be clearly distinguished from the characterisation of conduct as wrongful. The rules of attribution are concerned with attributing an act to a State – the wrongfulness of the act, however, is not a relevant consideration in this exercise.⁸⁶ Draft Article no. 4 reads:

1. The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever positions it holds in the organization of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State.

 

2. An organ includes any person or entity which has that status in accordance with the internal law of the State.

Naturally, this provision is not directly transferrable to unilateral acts. For example, judicial bodies cannot undertake unilateral acts. However, one can adapt the principles embodied within this provision for the purposes of unilateral acts. There can be no analogy drawn from the rules of State attribution to the competence to conclude a treaty, because the rules of attribution are intended to clarify when a State is to be considered responsible for an act. Under the law of treaties, international obligations may only be created by entities according to the rules of the law of treaties, and they do not fully coincide with the entities that may engage the responsibility of a State.⁸⁷

However, due to the less strict competency requirements for unilateral acts, one may draw analogies from the rules of State attribution: if there exists rules for the attribution of conduct for the purposes of responsibility for acts of States, a State should be considered bound by unilateral acts embodied within a statement attributable to it by those same rules. Statements in social media are frequently formulated and created by individuals under the control of organs or persons with the authority to bind the State. Insofar as it can be determined that the statement is compatible with the intent of those authoritative persons or organs, the statement should be understood as if it came directly from them. Thus, a State should be considered responsible for the act, and therefore bound by it, if a social media profile under control, direction or instigation by persons or State organs that would otherwise be considered competent to author a unilateral act, authors a statement that embodies unilateral obligations.

3.3.4 An Admissible Lawful Object

The criterion of ‘admissible lawful object’ will likely often be lacking in statements in social media. It is closely linked to the display of intent to be bound: to date, most internationally and diplomatically relevant social media activity is either couched in an opinionated or vague form, or it contains warnings or veiled threats which may never embody an obligation by which the author State is bound. Dmitri Medvedev, the Russian Foreign Minister, provides a good example: ‘Today we see even worse examples of violence than in South Ossetia. One thing remains certain: Russia is always ready to defend its citizens’.⁸⁸

Just as a treaty or an agreement on the unlawful use of force would be in conflict with jus cogens,⁸⁹ so would an attempted unilateral act to that effect be. Even if the statement amounted to a warning on the lawful use of force for self-defensive purposes⁹⁰ or following a Security Council resolution,⁹¹ it would not be considered a strictly unilateral act: the rights to self-defence or use of force in accordance with Security Council resolutions arise out of other facts, namely the aggression of another State and the resolution respectively. Its legal effectiveness is therefore reliant upon other acts, and it is thus not a strictly unilateral act. The object of a unilateral act via a statement in social media must be unilaterally governable by the State authoring the statement.

3.3.5 A Certain Form

The criterion of ‘a certain form’ does not need any special consideration for statements in social media. Unilateral acts can take any form as long as they are made public, and statements in the domain of social media are public by nature.