'Unilateralism', Values, and International Law

Philippe Sands

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Abstract

States take unilateral measures every day. Their `unilateral acts' only become contentious where one state seeks to impose its values on another state, and where that other state has not consented to the imposed values. Recently international tribunals have sought to determine when values may be imposed in environmental/natural resource disputes. In the Shrimp/Turtle case the WTO Appellate Body identified three international conditions which need to be satisfied: the concerned resource must be shared (community value), that protective measures are required because the conservation of the species is recognized as a desirable objective (conservation value), and that a consensual approach is desirable (consensus/cooperation value). This approach raises two questions: how are international values to be identified? What is the proper function of international courts and tribunals in seeking to give weight and effect to values once they have been identified? The debate about `unilateral' acts reflects a broader debate about tension between different values (economic, social, political, environmental) and the hierarchical relationships between different values as reflected in international legal norms. The debate is further informed by the changing character of the international legal order, including the growth in the number of international instruments across subject matters, cross-fertilization between different subject matter areas, and the increase in the number of international courts before which these tensions may be aired.

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