Kokka niyoru Ippouteki Ishihyomei to Kokusaihou (Unilateral Expressions of Intentions by States and International Law)

In this book, the author considers in depth actes juridiques unilatéraux or unilateral acts by words, namely notification, unilateral promise, renunciation, protest, recognition and unilateral claim, from the point of international law. This topic, although its paramount importance in diplomacy, is not popular among international lawyers.
 
In the First Chapter titled “Evaluation of Uniteral Acts by Words under International Law”, the author analyses theoretical problems such as classification, conditions of validity and legal effects of each category of actes juridiques unilatéraux.
 
In the Second Chapter titled “A Condideration of the ILC’s Guiding Principles Applicable to Unilateral Declarations of States Capable of Creating Legal Obligations,” The authour criticizes the ILC’s Guiding Principles as it depended on the ICJ’s Judgement of the Nuclear Test Cases too much and too easily.
 
In the Third Chapter titled “ Japan’s Territorial Problems and International Adjudication”, the author applies the following general rules on renunciation and protest. (1) Renonciation: Renunciation is not presumed, and the extent of renunciation, even in cases lacking clarity, has to be interpreted in a narrow sense in favor of the renouncing State (Campbell Case Arbitral Award in 1931 and Rann of Kutch Arbitral Award in 1968). This rule supports the conclusion in favor of Japan that the Kurile Islands renounced by the San Francisco Peace Treaty do not include the Northern Territories. (2) Protest: A State which remains silent when it should have and could have objected is considered to have consented (qui tacet consentire videtur si loqui debuisset ac potuisset. ICJ’s Judgement of the Temple of Preah Vihear Case in 1962). China had never lodged protests with Japan and had asserted no territorial title to the Senkaku Islands for as long as 75 years from 1895, when Japan incorporated the Senkaku Islands into Okinawa Prefecture, to approximately 1970. China’s silence for as long as three quarters of a century clearly constitutes acquiescence under international law(The arbitral award of the Dubai/Sharjah Border Case in 1981 says that protest after 7 years is too late).
 
In the Fourth Chapter titled “Extreterritorial Application of Export Control Law and International Law”, the author positions extraterritorial application of export control law as unitateral claim. He points out that even if some of the extraterritorial measures have prima facie basis, that does not mean they are opposable to other States. Excessive unilateral claims which has no prima facie basis is against international law. Bloking statutes are positioned as protest.
 
This book sheds light upon the comlicated ralationship between diplomacy and international law from the theory of international law on actes juridiques unilatéraux.

 

(Written by NAKATANI Kazuhiro, Professor, Graduate Schools for Law and Politics / 2021)