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Part V The Implementation of International Responsibility, Ch.72 Waiver, Acquiescence, and Extinctive Prescription

Christian J Tams

From: The Law of International Responsibility

Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved. Subscriber: null; date: 08 March 2021

Subject(s):
Responsibility of states — Diplomatic protection — Vienna Convention on the Law of Treaties — State succession, international agreements — Treaties, interpretation — Arbitral tribunals — Arbitration

(p. 1035) Chapter 72  Waiver, Acquiescence, and Extinctive Prescription

Introduction

Waiver, acquiescence, and extinctive prescription are legal concepts entailing the same effect—they lead to the loss of a right or claim. In the context of State responsibility, they entail the loss of the right to invoke responsibility, ie they extinguish any existing claim for cessation, reparation, or guarantees and assurances of non-repetition. The rules governing these concepts come within the framework of the implementation of international responsibility as dealt with in Part Three of the International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts. In particular, article 45 addresses questions of the ‘Loss of the right to invoke responsibility’. The provision, which according to the ILC’s Commentary1 is ‘analogous’ to article 45 of the Vienna Convention on the Law of Treaties (VCLT),2 expressly mentions waiver and acquiescence. In contrast, there is no (p. 1036) direct reference to the concept of extinctive prescription, nor to any other ground entailing the loss of the right to invoke responsibility, such as settlement. Article 45 provides:

The responsibility of a State may not be invoked if:

(a)  the injured State has validly waived the claim;

(b)  the injured State is to be considered as having, by reason of its conduct, validly acquiesced in the lapse of the claim.

Based on their legal effects, waiver, acquiescence, and prescription must be distinguished from other grounds excluding the exercise of rights. Two clarifications seem to be of particular relevance. First, waiver, acquiescence, and prescription entail the subsequent loss of a claim. In contrast, there are other grounds which preclude, ab initio, the coming into existence of claims, the most common example being the case of consent.3 Secondly, waiver, acquiescence, and prescription affect the substance of a claim. Once the conditions for any of them are met, the claimant State’s right to demand cessation, reparation, or guarantees and assurances of non-repetition ceases to exist. Waiver, acquiescence, and extinctive prescription therefore need to be distinguished from concepts which leave the substance of a claim unaffected, but, procedurally, prevent its enforcement in a particular forum or with a particular content, for example res judicata.4

Waiver, acquiescence, and extinctive prescription are not legal concepts peculiar to international law. All of them are known, in one form or the other, to municipal legal systems. Almost inevitably, their development at the international level has been informed by analogies to municipal law. The transfer of these rules to the international level has however brought with it some modifications. For example, the concept of acquiescement— which under French law originally was held to have procedural effects only—has been applied, under international law, as a principle of substantive law.5 It therefore seems important to stress at the outset that all three concepts should be considered as having acquired an autonomous status under present-day international law. The main facets of these autonomous legal regimes governing waiver, acquiescence, and extinctive prescription will be discussed in turn.

Waiver

(a)  General remarks

Waiver can be defined as the voluntary renunciation of a right or claim.6 The concept is based on the principle of consent and is firmly established in international law, often reflected in the maxim volenti non fit iniuria.7 Its application is by no means limited to the law of State responsibility, but, in principle, extends to all types of rights or claims. (p. 1037) Specific examples outside the law of State responsibility would include the loss of the right to invalidate, terminate, or suspend treaties under article 45 VCLT, the abandonment of territorial sovereignty,8 or waivers of immunity from jurisdiction.9

Very often, waiver is characterized as a typical example of a unilateral act of State, and treated within that context.10 This narrow approach however is problematic. In fact, judging whether a legal act is unilateral in character is by no means an easy task. Especially in the context of State responsibility, a State’s waiver will often be part of a process of give and take, or motivated by an expectation that the State benefiting from the waiver will return the benefit in some other form.11 Perhaps even more frequent are ‘waiver clauses’, by which one State relinquishes claims (eg for compensation) arising from wrongful acts of another State in the framework of a bilateral or multilateral treaty.12 But even waivers which do not form part of written treaties will usually be preceded by diplomatic negotiations. Depending on the form of these negotiations, the line between purely unilateral acts, informal negotiations, loose bilateral arrangements, and (possibly non-written) treaties may often be blurred.

Nevertheless, it is clear that the legal effects of the renunciation do not depend on whether it was declared in a unilateral, bilateral, or multilateral context. Restricting the concept of waiver to purely unilateral declarations thus seems to introduce an artificial distinction. The Russian Indemnities case13 further underlines how difficult it may be to distinguish between purely unilateral acts and other forms of settlements. There the Russian embassy in Turkey had repeatedly demanded, and ultimately obtained, the repayment of a loan, without however mentioning interest or damages for delay. In the view of the arbitral tribunal, Russia’s failure to demand more than the capital sum, taken together with Turkey’s subsequent repayment of the loan, amounted to an abandonment of all further claims.14

Summing up these considerations, it seems questionable and hardly feasible to hold that only unilateral declarations could constitute waivers. Rather the concept seems broad enough to comprise forms of renunciation which are not purely unilateral in character.15

(b)  Requirements for waiver

The question remains under which conditions a State may be held to have waived claims arising in the context of State responsibility. For reasons of convenience and clarity, it may be helpful to distinguish between six different requirements:

  1. (1)  There must have been a declaration

  2. (2)  by the competent authorities

  3. (3)  of the State whose rights are affected by the waiver.

  4. (p. 1038) (4)  This declaration must have been made after the breach has occurred (or at least in the context of claims made by the State that there has been a breach) and

  5. (5)  must not suffer from grounds of invalidity.

  6. (6)  Finally, there is a question whether waiver is excluded with respect to certain fundamental rights.

(i)  A declaration

As a first requirement, the injured State must have declared its willingness to renounce its claim. According to the ILC, such declaration may be express or inferred from conduct.16 In the former case, general international law does not stipulate any requirements as to the form of the statement; in particular, it is not necessary that express waivers must be in writing.17 As regards the latter possibility, it seems difficult to distinguish implied waivers from conduct amounting to acquiescence. This problem will be addressed below.

In order to amount to a valid waiver, the declaration in question must have been clear and unequivocal. Inevitably, this has given rise to problems where the declaration was not express but inferred from conduct. The relevant judicial pronouncements suggest that threshold to be met is high. Hence in Certain Phosphate Lands in Nauru, the International Court rejected Australia’s argument that Nauru had waived claims for a rehabilitation of the island. Although various statements made at the time of independence were conspicuously silent on the possibility of such rehabilitation, this conduct ‘did not at any time effect a clear and unequivocal waiver’, in particular when taking into account other statements made by Nauru’s authorities before the United Nations.18 More generally, it is often stated that a waiver cannot be presumed.19 This view is supported by judicial practice,20 but does not, of course, remove the need for an interpretation of the circumstances in the given case.

Finally, in the context of the State responsibility, a waiver must be directed at renouncing claims arising from internationally wrongful acts. It is important to note that the concept also applies where a State has not waived all, but only some, of its claims, as is evidenced by the award in Russian Indemnities.21 As has been stated,22 it is not decisive whether the declaration occurs in a unilateral, bilateral or multilateral context.

(ii)  By the competent authorities

In order to be valid, a waiver must be expressed by, or implied from the conduct of, persons authorized to act on behalf of the State concerned in the particular matter. In principle, this question is governed by the general rules on the representation of States. Articles 4–6 of the ILC’s Articles are not directly applicable (since they deal with the attribution of wrongful acts), but may provide some guidance in this respect. The same holds true for the rules contained in articles 7–17 VCLT, which either apply directly (in the case of (p. 1039) treaty-based waiver clauses) or by analogy.23 Overall, questions of representation do not seem to have given rise to major controversies in the context of waiver.

(iii)  Disposability

As a third condition, the waiver can only affect rights of the State making the declaration; in other words, it must be made by the bearer of the right which is being waived.24 As a general proposition, this requirement would seem to be difficult to dispute; it constitutes a corollary to the maxim nemo plus dare potest quam ipse habet.25 Its application in the context of State responsibility however gives rise to two distinct, and intricate, problems, which relate to the identification of the bearer of the right.

First, if the wrongful act in question has violated rights of private persons, it must be determined whether the State or the private person is entitled to waive the claim. This is but one aspect of the wider problem of diplomatic protection and needs to be addressed within that context.26 Based on the traditional understanding of diplomatic protection, a State vindicating rights of its nationals exercises its own subjective right.27 As a consequence, international claims based on diplomatic protection arise between the two States concerned, and it is the State which is entitled to waive claims for reparation and or cessation. The problems inherent in this State-centred conception of international law are beyond the scope of this Chapter. Suffice it to say that many treaty-based regimes nowadays protect direct rights of the individuals, which in turn cannot be waived by the State of nationality.28

Notwithstanding its conceptual problems, the traditional view is supported by international practice and jurisprudence. Hence international judicial bodies have, in a number of decisions, accepted the waiver, by States, of claims based on injury sustained by private persons, even where these persons had intended to pursue the claim.29 Conversely, the waiver, by a private person, does not prejudice the right of the State of nationality to espouse claims under international law.30 Moreover, international practice provides frequent examples of States waiving claims of their own nationals against foreign States, eg in peace treaties or other settlements.31

The second problem relating to disposability relates to the entitlement of States to waive claims arising from the breach of multilateral or community obligations, ie obligations owed to a group of State, or the international community as a whole. Just as with regard (p. 1040) to diplomatic protection, the problem has to be addressed within the broader framework of the rules governing community obligations. The crucial provisions in this respect are articles 42 and 48 of the ILC’s Articles, which recognize that under specific circumstances, States other than the individually injured State may have a legal interest in seeing specific forms of community obligations performed, and which are based on a distinction between ‘injured States’ (article 42) and ‘interested States other than the injured States’ (article 48).32 For present purposes, it is important to recognize that this categorization has repercussions on the rules governing waiver (as well as those on acquiescence, estoppel, and prescription). At a general level, it may be said that the legal regime governing waiver was initially developed to apply to bilateral situations involving reciprocal rights and duties of pairs of States—such as the claimant State’s right to demand reparation for violations of its subjective right, and the corresponding duty of the respondent State. Conversely, where international law recognizes the legal interest of a plurality of States in seeing community obligations respected, the traditional rules cannot apply without modification.33 More specifically, two types of situations need to be distinguished.

First, situations may be envisaged in which the breach of a community obligation—be it conventional or customary—does not injure any State in its individual capacity. Typically, this would apply to situations in which the responsible State disregards human rights or environmental obligations in relation to its own population or territory. If it is established that the obligation in question served to protect the collective interest of a group of States (or the international community as a whole), then all States belonging to that group (or to the international community as a whole) are entitled to invoke the responsibility of the author State pursuant to article 48(1) of the ILC’s Articles. Secondly, there may equally be cases in which the breach of a (treaty-based or customary) community obligation injures one State in its individual capacity (eg the victim of an aggression) and other States in their capacity as members of a group of States (or the international community as a whole). The question remains which of these injured or otherwise legally interested States—if any— would be entitled to waive claims for cessation and/or reparation. Although international practice provides very little guidance on the matter, the answer would nevertheless seem to follow from the concept of multilateral obligations as recognized in the ILC’s Articles.

In the first hypothesis, it is clear that even if one State validly waived its claim to cessation/reparation, this would not affect the right of all other States entitled to invoke the responsibility of the author State.34 It is only if all States belonging to the group to which performance of the obligation was owed (or to the international community as a whole) waived their claims that the obligation of the responsible State would cease to exist. It is therefore unlikely that claims arising from breaches of community obligations not injuring any State in its individual capacity could ever be waived, except as part of a major multilateral settlement.

In the second hypothesis, the situation is more complex. Here again, States which have not been injured in their individual capacity—ie, to take up the example of aggression, States other than the immediate victim—could not liberate the responsible State (p. 1041) from its responsibility.35 The question remains whether the State injured in its individual capacity—such as the immediate victim of an aggression—should be entitled to waive all claims against the responsible State. Given that articles 42 and 48 recognize the legal interest of all States, there would certainly be an argument for requiring the agreement of all States. However, this approach would disregard the fact that the ILC’s Articles differentiate between different types of legal interests and recognize the primacy of individually injured States. Consequently, article 48 stipulates that ‘other interested States’ may only invoke responsibility in the interest of the direct victim. If however that direct victim is a State, and if it has validly waived its claims for cessation, reparation, etc, it would be hard to justify that other States should still be entitled to maintain their claims. Hence a valid waiver by the individually injured State would also extinguish all claims that ‘other interested States’ have under article 48.

(iv)  After the breach

In order to constitute a waiver, the declaration in question must have been made after the breach of international law has occurred. In contrast, acceptance of an internationally wrongful act expressed (or inferred from conduct) prior to that act would constitute ‘consent’ in the sense of article 20.36 Admittedly, maintaining the line between both legal concepts may at times be difficult, especially where a State declares a waiver soon after the breach, or where it appears from the terms of the declaration that the waiver was meant to be retroactive.37 However, from a conceptual point of view, it seems both necessary and helpful to maintain the distinction, as consent precludes the wrongfulness ex tunc, while waiver after the breach only affects the legal consequences arising from the act.38 This has important consequences for the legal regime applicable in the interim period between breach and waiver, in particular with regard to the right to respond to the initial wrongful act. Since in the case of waiver, the initial act remains unlawful, the State against which it is directed retains its right to defend itself, e.g. by way of countermeasures. In contrast, in the case of consent, resort to countermeasures is excluded, as there is no wrongful act in the first place.

(v)  Absence of grounds for invalidity

In order for a waiver to be valid, the declaration in question must have been free from any recognized ground of invalidity. Just as with regard to attribution, the validity of declarations of waiver is subject to the same tests as other manifestations of a State’s will. In principle, the grounds of invalidity set out in articles 48–52 of the VCLT are therefore applicable. For example, a waiver obtained through unlawful coercion against a State or its representative would be invalid.39

(vi)  Limits on freedom to waive

Finally, it needs to be discussed whether international law imposes any limits on the freedom of States to waive rights or claims. Some writers have argued that a State could not waive rights that exist in relation to all other States and that form the essence of statehood.40 However, in the context of State responsibility, this theoretical controversy is of relatively little (p. 1042) relevance, since claims for cessation, reparation, or guarantees and assurances only exist vis-à-vis the State responsible for the wrongful act and thus are ‘relative’ in character. Nevertheless, there is some discussion as to whether international law excludes, or should exclude, waivers of claims arising from the breach of peremptory norms as defined in article 53 VCLT. This proposition is informed by the idea that where peremptory norms are concerned, the community interest in seeing breaches remedied is of paramount importance. Within the framework of the ILC’s Articles, this approach finds expression in article 26 pursuant to which circumstances excluding wrongfulness cannot justify breaches of peremptory norms. During the ILC’s discussion of article 45, the question of exclusion was discussed but ultimately left open.41 Instead the Commission affirmed that where breaches of essential obligations are concerned, the rules on disposability would have particular importance.42 As has been stated, these impose considerable restrictions on the freedom of States to waive claims arising from breaches of obligations owed to the international community as a whole.

On balance, the pragmatic approach followed during the ILC’s work on State responsibility is convincing. In view of the close relation between obligations owed to the international community as a whole and obligations arising under peremptory norms, a waiver of claims arising from breaches of peremptory norms will usually be invalid for lack of disposability. In line with what has been said above, the responsible State will only be released from its duty to make reparation if either (i) all legally interested States so agree, or (ii) the primary State victim waives its claims. It is only with regard to the second of these situations that special rules providing for the exclusion of waivers might gain practical relevance. Here, one might indeed argue that—to take up the example referred to above—the immediate victim of an aggression should be precluded from waiving claims for reparation, since the prohibition against aggression is peremptory in character.43 However, such a rigid rule would undermine the distinction between ‘individually injured’ and ‘other interested States’ introduced in articles 42 and 48, and would run counter to the differentiated rules of disposability based thereon. It would furthermore render impossible the negotiation of peace agreements involving mutual guarantees not to pursue claims for reparation. Whether this is supported by international practice, or indeed desirable, may be open to doubt. The more convincing view seems to be that present-day international law does not strictly exclude waivers of claims arising from the breach of peremptory norms. Whether a State has validly waived claims arising from fundamental obligations thus has to be assessed mainly with regard to the rules on disposability of claims in cases involving breaches of community obligations.

Acquiescence

(a)  General remarks

Under the doctrine of acquiescence, inaction on behalf of a State may lead to the loss of a right or claim if, under the circumstances, that State would have been expected to display some form of activity.44 Often, the same idea is expressed by citing the adage qui tacet (p. 1043) consentire videtur si loqui debuisset ac potuisset, but this does little to solve the actual problems of application. Ultimately, the doctrine is grounded in general concepts such as good faith and equity. Insofar as certain legal effects are inferred from a State’s conduct, the concept of acquiescence is similar to that of implied waiver. Even more problematic is the relation between acquiescence on the one hand, and estoppel on the other. Both aspects will be dealt with separately.

Just as with waiver, the concept of acquiescence is not limited to the implementation of State responsibility, but can apply to all types of legal relations. It has been of particular importance in the settlement of territorial disputes, where one State’s failure to protest against a display of sovereignty was held to have legal effects.45 As far as the law of State responsibility is concerned, the legal conditions under which acquiescence operates are in many respects similar to those discussed in relation to waiver. This in particular applies to grounds for invalidity, the question of disposability, and the proposition that acquiescence should be excluded in relation to breaches of fundamental obligations. Moreover, as regards attribution, it is agreed that only conduct by State representatives can form the basis for acquiescence. Hence in Gulf of Maine, Canada could not invoke the letter of a technical expert employed by the US Department of the Interior—the so-called ‘Hoffman letter’—against the US government.46 But of course, much depends on what is seen as the relevant conduct: thus in the Temple case, the act involving acquiescence was that of a junior official, while more senior authorities had remained passive.47

(b)  Conduct amounting to acquiescence

The main difference between (express) waiver and acquiescence lies in the form of conduct (or inaction) that leads to the loss of the claim. In order to establish acquiescence, it has to be shown that the claimant State has failed to assert its claim and that it thereby has implicitly accepted its extinction. Whether, or under which conditions, this is so of course largely depends on the circumstances of the given case, and few clear-cut rules apply. However, the following elements seem relevant. First, the claimant State must have failed to assert its claim. Passivity, or silence, would be the typical type of conduct fulfilling this first condition. However, a failure to assert claims may equally be implied from certain forms of active conduct. Hence in the Temple case, Thailand’s claim to sovereignty over a certain piece of territory failed, inter alia, because it had accepted and used, without protest, certain boundary maps which contradicted its claim. It was thus a positive form of action (acceptance and use of certain boundary maps) that gave rise to acquiescence.48

Secondly, the failure to assert a claim must have extended over a certain period of time. It is clear that the longer the period of inaction, the easier it will be to establish that the claimant State has given up the claim. There are however no rules prescribing fixed timelimits. In Grisbadarna—involving conflicting claims to territory—Norway’s obvious failure to protest against a clear display of sovereign authority by Sweden was held to amount to acquiescence, although the period in question was rather short.49 There is no reason why (p. 1044) the same argument should not be applied to situations involving claims for State responsibility. Hence it may said that where the circumstances would have called for the claim to be asserted, a short period of passivity may be sufficient to establish acquiescence.50

This however leads to the third, and crucial, condition. It is clear that only under specific circumstances can inaction amount to acquiescence. In order to entail legal effects, a State must have failed to assert claims in circumstances that would have required action. For example, a State’s failure to assert claims may amount to acquiescence where it has failed to respond to offers, by the respondent State, to settle outstanding disputes, or where it has energetically pursued other, related claims. Similarly, passivity may amount to acquiescence where the respondent State could legitimately expect that the claim would no longer be asserted, or where it was prejudiced by the long period of passivity. But again, it can hardly be overstated that much turns upon the facts of the specific facts of the given case.

(c)  Relation to other concepts

Given the vagueness of these conditions, it is difficult to distinguish acquiescence from other related concepts such as implied waiver or estoppel. As regards the relation between acquiescence and implied waiver, the ILC seems to maintain a clear conceptual distinction. According to the explanatory commentary, implied waivers come within the scope of article 45(1), whereas acquiescence is dealt with in the second paragraph of that provision.51 However, upon consideration, it seems more convincing to see implied waiver and acquiescence as part of the same concept. For a start, it is telling that the ILC does not offer any basis upon which a distinction could be drawn. Certainly, both implied waiver and acquiescence are based on the same rationale, namely the idea that a certain statement may be inferred from conduct, be it action or inaction. Moreover, the various factors determining whether a certain conduct amounts to acquiescence would equally be applicable in deciding whether a State had implicitly waived a claim. Finally, article 45 of the VCLT—upon which, as has been stated, article 45 of the ILC’s Articles is based—also treats implied waivers as part of a general concept of acquiescence.52 All these considerations suggest that it is unnecessary, and indeed hardly feasible, to draw a distinction between implied waiver and acquiescence. The ILC’s departure from its earlier position, taken during the work on the law of treaties, is therefore unconvincing.

Still more complex is the relation between acquiescence and estoppel. Under the latter concept—often referred to as ‘preclusion’—a State may be precluded from asserting a right or claim if, (i) by reason of previous conduct, declarations, or other manifestations of will, it has (ii) induced another State to believe, in good faith, that the right would no longer be exercised and (iii) the re-assertion of the right would now be detrimental to that other State.53 During its work on the Law of Treaties, the ILC chose not include, in article 45 VCLT, any reference to estoppel, which it held to be a ‘municipal law term’.54 (p. 1045) Notwithstanding this view, the concept is applied in international practice, often in situations which might have also given rise to acquiescence. The similarity between both concepts was succinctly put by Canada, which, in Gulf of Maine, referred to estoppel as ‘the alter ego of acquiescence’.55 The ICJ proceedings in the Arbitral Award made by the King of Spain also underline how closely both concepts are related. Relying on a broad understanding of estoppel, Honduras attempted to preclude Nicaragua’s attempt to challenge the arbitral award. In its judgment, the Court did not mention estoppel, but held that Nicaragua was barred from challenging the award because of acquiescence.56

Indeed, one has to go to some pains in order to keep the concepts apart. In his separate opinion in the Temple Case, Judge Fitzmaurice explained with great clarity how a distinction could be drawn. While under the doctrine of acquiescence, it was necessary to show that the claimant State had in fact accepted, by implication, the loss of its claim, the concept of estoppel operated on a different level. The argument was not that the claimant State had in fact agreed to that new position. Rather, having behaved in a misleading manner, the State was precluded from asserting its claim.57 Theoretically feasible as it may be, this distinction is very difficult to apply in practice. As even those supporting it concede that:

[t]here will obviously in many cases be a fairly fine line between the two analyses as applied to a particular situation; the same facts concerning the [relevant] State’s conduct may be regarded as showing the attitude it did adopt, or as estopping it from denying that it had adopted that attitude, even if it had not.58

Therefore, all that can be said is that a State bringing forward a claim based on estoppel would have to more carefully establish that it had been prejudiced by the other State’s change of attitude. However, the choice for one or the other of the two concepts will to a large extent depend on the respective State’s preference and national legal tradition.

Extinctive prescription

(a)  General remarks

Extinctive prescription is discussed as a further ground which may entail the loss of a right to invoke responsibility. In theory, the doctrine of prescription is based on the idea that lapse of time as such may lead to the creation (acquisitive prescription) or elimination (extinctive prescription) of legal positions.59 Applied to the context of State responsibility, this would lead to the proposition that a State that does not present claims for cessation, reparation, etc, within a given period of time permanently loses its right to do so, even where it has not acquiesced in their extinction. Just as with waiver, acquiescence, and (p. 1046) estoppel, the rules on extinctive prescription have been developed by analogy to municipal law, namely the provisions prescribing time-limits for the bringing of claims.60 As will be shown, this analogy may however prove misleading.

Irrespective of the position under general international law, certain treaties prescribe specific time-limits within which claims must be pursued.61 Conversely, reliance on extinctive prescription may be excluded by special agreement, such as in the Macedonian case between the United States and Chile.62 At least as far as inter-State complaints are concerned, such special rules are unusual.63

Whether, in the absence of such special provisions, general international law lays down time-limits for the bringing of claims is subject to some debate. During the second reading of the draft articles on State responsibility, the ILC has taken a relatively cautious position on the question. The ILC’s Commentary of course refers to the lapse of time as an important factor in applying the rules of acquiescence.64 However it does not mention the concept of extinctive prescription and rejects the idea that lapse of time alone may entail the loss of a claim.65 On the face of it, international jurisprudence would seem to contradict this cautious approach. Indeed, a great number of decisions recognize extinctive prescription as a separate, and independent, ground for the loss of claims. The ICJ’s judgment in Nauru, for example, states in clear and unequivocal terms that ‘even in the absence of any applicable treaty provision, delay on the part of a claimant State may render an application inadmissible’;66 the same position is taken in a host of arbitral awards.67 As early as 1925, the Institut de Droit International had stated that:

des considérations pratiques d’ordre, de stabilité et de paix, depuis longtemps retenue par la jurisprudence arbitrale, doivent faire ranger la préscription libératoire des obligations entre États parmi les principes généraux de droit reconnues par les nations civilisées dont les tribunaux internationaux sont appelés à faire application.68

In line with these pronouncements, it is difficult to deny that extinctive prescription has played an important role in international jurisprudence. When analysing the relevant decisions, it appears that it is subject to many of the considerations set out in relation to waiver and acquiescence. A State relying on extinctive prescription would however have to establish that the relevant conduct (for example, delay) was attributable to the claimant State, that that claimant State was entitled to dispose of the claim, and that no recognized grounds of invalidity applied. As regards the requirement of disposability in cases involving (p. 1047) claims based on the concept of diplomatic protection, the Cayuga Indians claim69 presents an interesting variation: in the circumstances of the case, the British Government had failed to present claims for violation of rights of the Cayuga Indians. Although the considerable delay was attributable to the British government, the arbitral tribunal held the claim to be admissible since the ultimate bearers of the right—the Cayuga—had, ‘in every way open to them, … pressed their claim’.70 Other awards however have not followed this line of reasoning, which would seem to run counter to the common understanding of the rules on diplomatic protection set out above.

(b)  Relation to acquiescence and estoppel

The question remains whether the concept of extinctive prescription, as recognized in international jurisprudence, can be meaningfully distinguished from that of acquiescence or estoppel. When bearing in mind the analogy to time-limits of municipal law, such a distinction should not prove difficult to draw. However, as has been stated, this analogy may be quite misleading. The reason is that international rules on extinctive prescription fundamentally differ from time-limits of municipal law.71 Two aspects in particular need to be mentioned. First, despite all affirmations of the principle of extinctive prescription, no fixed time-limits have ever been agreed. In its resolution of 1925, the Institut de droit international had suggested that the limitations on delictual claims were shorter than in the case of contractual claims; furthermore, in 1970, the Swiss Government expressed the view that a lapse of 20 to 30 years was required.72 But apart from these rare suggestions, the general picture is one of considerable flexibility. Often it is stressed that the concept of extinctive prescription has to be applied with regard to all circumstances of a given case and on a case-by-case basis.73 Applied to specific cases, this meant that at times, the lapse of more than 30 years did not constitute a bar against presenting a claim.74 In contrast, the arbitrators in Loretta G Barberie held 15 years to constitute an unreasonable delay giving rise to prescription.75 Based on these decisions, it must be said that unlike under municipal laws, the application of extinctive prescription involves more than ‘a mere exercise of measuring the lapse of time and applying clear-cut time-limits’76 but requires a balancing of all relevant circumstances.

Secondly, and more importantly, a closer analysis of the relevant precedents suggests that unlike under municipal law, lapse of time as such is not a sufficient reason entailing the extinction of claims. On the contrary, international tribunals have applied the principle only where the lapse of time had placed the respondent at a disadvantage. This is very clearly brought out for example by one of the landmark decision often cited in support of the concept, namely the Gentini case. In his decision, Umpire Ralston stated that ‘[t]he principle of prescription finds its foundation in the highest equity—the avoidance of possible injustice to the defendant’.77 In the circumstances of the case, the claimant was held to have lost the (p. 1048) claim for indemnization, having ‘so long neglected his supposed rights as to justify a belief in their non-existence’.78 Considerations of procedural fairness also inform the decisions in Stevenson79 and the Lighthouses arbitration.80 Judge Buergenthal’s dissenting opinion in LaGrand points in the same direction. Trying to establish that one of Germany’s submissions was inadmissible because of delay, he stressed that ‘Germany’s negligence [ie the late filing of the application] had … detrimental consequences for the United States’.81 Conversely, where there was no risk of injustice, claims have been found admissible even after long delays. Hence, in Tagliaferro, the arbitrators found that ‘the responsible … authorities knew at all times of the wrongdoing [forming the basis for the claim] … When the reason for the rule of prescription ceases, the rule ceases, and such is the case now’.82 Similarly, in Cayuga Indians, one of the reasons for rejecting extinctive prescription was that delay in bringing the claim could not be said to have caused prejudice to the defendant.83

In short, although many international awards rely on the concept of extinctive prescription, it is clear that the lapse of time was only one factor influencing the actual decision. It was equally important that the delay in presenting the claim had put the respondent State at disadvantage. While arbitral practice does not allow for a clear-cut definition of when defendant States are held to be at a disadvantage, the basic rationale was succinctly expressed by the arbitrators in Loretta G Barberie: in their view, delay in presenting claims would ‘produce certain inevitable results, among which are the destruction or obscuration of evidence by which the equality of parties is disturbed or destroyed’.84 Unlike under municipal law, prescription under international law therefore is based on two considerations: delay and actual prejudice for the respondent.85

This finding has important consequences on the subject of the present inquiry. Insofar as the application of extinctive prescription is subjected to considerations of equity, fairness, and justice, the distinction between prescription, acquiescence and estoppel becomes increasingly difficult to draw. Since all three concepts require a flexible weighing of circumstances, factors such as legitimate expectation, reliance, lapse of time etc are relevant to all of them. Put differently, it may be assumed that the bulk of cases actually cited in support of the concept of extinctive prescription could have, in all probability, provided grounds for acquiescence or estoppel, and been decided under these concepts. Conceptually, the concept of extinctive prescription thus seems unnecessary. The ILC’s decision to omit any reference to it is a helpful clarification.

Concluding remarks

Summing up the preceding consideration, it may be said that questions of the ‘Loss of the right to invoke responsibility’ are governed by a variety of different—overlapping and competing—legal concepts. While there is broad agreement over most of the basic (p. 1049) principles, international practice so far has not been able to clarify the relation between the various concepts. It is to be hoped that the pragmatic approach taken in article 45 of the ILC’s Articles, in particular the reliance on only two principles of waiver and acquiescence, will help overcome this conceptual uncertainty.

Further reading

  • J Bentz, ‘Le silence comme manifestation de volonté en droit international public’ (1963) 69 RGDIP 44
  • DW Bowett, ‘Estoppel Before International Tribunals and Its Relation to Acquiescence’ (1957) 33 BYIL 176
  • PWC Chan, ‘Acquiescence/Estoppel in International Boundaries: Temple of Preah Vihear Revisited’ (2004) 3 Chinese Journal of International Law 421
  • T Cottier & JP Müller, ‘Estoppel’, in R Wolfrum (ed), The Max Planck Encyclopedia of Public International Law, Oxford University Press, 2008, online edition <http://www.mpepil.com>
  • I Feichtner, ‘Waiver’, in R Wolfrum (ed), The Max Planck Encyclopedia of Public International Law, Oxford University Press, 2008, online edition <http://www.mpepil.com>
  • K Hobér, Extinctive Prescription and Applicable Law in Interstate Arbitration (Iustus Förlag, Uppsala 2001), 459
  • AR Ibrahim, ‘The Doctrine of Laches in International Law’ (1997) 83 Virginia Law Review 647
  • DHN Johnson, ‘Acquisitive Prescription in International Law’, reproduced in MN Shaw (ed) Title to Territory (Ashgate/Dartmouth, Aldershot 2005), 273
  • IC MacGibbon, ‘The Scope of Acquiescence in International Law’, reproduced in MN Shaw (ed) Title to Territory (Ashgate/Dartmouth, Aldershot 2005), 347
  • IC MacGibbon, ‘Customary International Law and Acquiescence’ (1958) 52 ICLQ 501
  • A Martin, L’estoppel en droit international public (Pédone, Paris, 1979), xvi, 384
  • NS Marques Antunes, ‘Acquiescence’, in R Wolfrum (ed), The Max Planck Encyclopedia of Public International Law, Oxford University Press, 2008, online edition <http://www.mpepil.com>
  • JP Müller, Vertrauensschutz im Völkerrecht (Heymanns, Köln, 1971)
  • R Rajasingham, ‘Extinctive Prescription in International Law’ (1966) 7 Indian Journal of International Law 45
  • V Rodríguez Cedeño & MITorres Cazorla, ‘Unilateral Acts of States’, in R Wolfrum (ed), The Max Planck Encyclopedia of Public International Law, Oxford University Press, 2008, online edition http://www.mpepil.com
  • EC Schlemmer, ‘Waiver in international arbitration’ (2001) South African Yearbook of International Law 201
  • I Sinclair, ‘Estoppel and Acquiescence’, in V Lowe and M Fitzmaurice (eds), Fifty Years of the International Court of Justice (Cambridge, CUP, 1996) 104
  • G Sperduti, ‘Prescrizione, consuetudine e acquiescenza in diritto internazionale’ (1961) 44 RivDI 3
  • E Suy, Les actes juridiques unilatéraux en droit international public (Paris, LGDJ, 1962)
  • A Tommasi di Vignano, La rinuncia in diritto internazionale (Padua, Cedam-Casa, 1960)
  • CG Weeramantry, ‘Estoppel and the Preclusive Effects of Inconsistent Statements and Conduct’ (1996) 27 Netherlands Yearbook of International Law 131
  • J Wouters & S Verhoeven, ‘Prescription’, in R Wolfrum (ed), The Max Planck Encyclopedia of Public International Law, Oxford University Press, 2008, online edition <http://www.mpepil.com>(p. 1050)

Footnotes:

Commentary to Art 45, 266, para 1.

1155 UNTS 331.

A Verdross & B Simma, Universelles Völkerrecht (3rd edn, Berlin, Duncker & Humblot, 1984), §1293. See also art 20, ARSIWA.

See Ch Rousseau, Droit international public (Paris, Sirey, 1983), vol V, 186–187.

NS Marques Antunes, ‘Acquiescence’, in R Wolfrum (ed), The Max Planck Encyclopedia of Public International Law, Oxford University Press, 2008, online edition <http://www.mpepil.com>, para 3; and further T Cottier & JP Müller, ‘Estoppel’ in R Wolfrum (ed), The Max Planck Encyclopedia of Public International Law, Oxford University Press, 2008, online edition <http://www.mpepil.com>, paras 4–8 on similar ‘metamorphoses’ of the doctrines of estoppel and extinctive prescription.

E Suy, Les actes juridiques unilatéraux en droit international public (Paris, LGDJ, 1962), 153.

Commentary to art 45, para 2.

Often referred to as ‘derelictio’, see G Dahm, Völkerrecht (Stuttgart, Kohlhammer, 1961), vol III, 167.

Cf eg art 32 of the Vienna Convention on Diplomatic Relations, 586 UNTS 262, or art 45 of the Vienna Convention on Consular Relations, 500 UNTS 95.

10  See eg V Rodríguez Cedeño & MI Torres Cazorla, ‘Unilateral Acts of States’, in R Wolfrum (ed), The Max Planck Encyclopedia of Public International Law, Oxford University Press, 2008, online edition <http://www.mpepil.com>, para 7.

11  Ibid, 1020.

12  See eg art 77 of the 1947 Peace Treaty with Italy, 49 UNTS 3; or arts 23(3) & 27(2) of the 1955 Austrian State Treaty, 347 UNTS 3.

13  Russian Indemnities (1912) 11 RIAA 421.

14  Ibid, 446.

15  See J Crawford, Third Report on State Responsibility, 2000, A/CN.4/507, paras 255, 261.

16  Commentary to art 45, para 5.

17  E Suy, Les actes juridiques unilatéraux en droit international public (Paris, LGDJ, 1962), 157–158.

18  Certain Phosphate Lands in Nauru (Nauru v Australia), ICJ Reports 1992, p 240, 247, 250.

19  Ch Rousseau, Droit international public (Paris, Sirey, 1983), vol V, 1983, 182; I Feichtner, ‘Waiver’ in R Wolfrum (ed), The Max Planck Encyclopedia of Public International Law, Oxford University Press, 2008, online edition <http://www.mpepil.com>, para 8; but cf G Dahm, Völkerrecht, vol. III (Stuttgart, Kohlhammer, 1961), 215.

20  Certain Norwegian Loans (France v Norway), ICJ Reports 1957, p 26; Kronprins Gustav Adolf Arbitration, 2 RIAA 1299; cf E Suy, Les actes juridiques unilatéraux en droit international public (Paris, LGDJ, 1962), 159–164 with further references.

21  Russian Indemnities (1912) 11 RIAA 421.

22  See supra, Section 2(a).

23  See V Rodríguez Cedeño & MI Torres Cazorla, ‘Unilateral Acts of States’, in R Wolfrum (ed), The Max Planck Encyclopedia of Public International Law, Oxford University Press, 2008, online edition <http://www.mpepil.com>.

24  I Feichtner, ‘Waiver’ in R Wolfrum (ed), The Max Planck Encyclopedia of Public International Law, Oxford University Press, 2008, online edition <http://www.mpepil.com>, para 13.

25  E Suy, Les actes juridiques unilatéraux en droit international public (Paris, L.G.D.J., 1962), 166.

26  See J Dugard, Chapter 73.

27  Cf Mavrommatis Palestine Concessions, 1924, PCIJ Reports, Series A, No 2, p 4, 12; Nottebohm (Liechtenstein v Guatemala), ICJ Reports 1955, p 4, 24; Barcelona Traction, Light and Power Company, Limited (Belgium v Spain), Second Phase, ICJ Reports 1970, p 3, 44.

28  See eg Gallardo, 21 ILM 1424, where Costa Rica unsuccessfully attempted to waive review procedures concerning the human rights complaint filed by an individual.

29  See Public Trustee v Chartered Bank of India, Australia and China (1956) 23 ILR 687, 698–9; Austrian Citizen’s Compensation Case (1966) 32 ILR 153; Inao Horimoto v The State (1966) 32 ILR 161; Togen Akiyama v The State (1966) 32 ILR 233; Jews Deported from Hungary Case (1972) 44 ILR 301.

30  Cf First National City Bank of New York (1958) 26 ILR 325.

31  See eg art 77 of the 1947 Peace Treaty with Italy, 49 UNTS 3; or arts 23(3) & 27(2) of the 1955 Austrian State Treaty, 347 UNTS 3.

32  See G Gaja, Chapters 62 and 64 above; and see C Tams, Enforcing Obligations Erga Omnes in International Law (Cambridge, CUP, 2005) for further comment on concepts of community obligations.

33  See Commentary to art 45, para 4; see also Judge Weeramantry’s separate opinion in the Gabcíkovo-Nagymaros Project (Hungary/Slovakia), ICJ Reports 1997, p 7, 117–118 (on the question of estoppel, but with implications of a more general nature).

34  Commentary to art 45, para 4.

35  Ibid; see also para 1, last sentence.

36  See A Ben Mansour, Chapter 33.1.

37  See J Crawford, Third Report on State Responsibility, 2000, UN Doc A/CN.4/507, para 254.

38  Commentary to art 20, para 3.

39  Commentary to art 45, para 4.

40  So-called ‘absolute rights’, see A Tommasi di Vignano, La rinuncia in diritto internazionale (Padua, Cedam-Casa, 1960), 68; and cf the discussion by E Suy, Les actes juridiques unilatéraux en droit international public (Paris, LGDJ, 1962), 167–169.

41  See Commentary to art 45, para 4; for the different position taken during the Commission’s work on the Law of Treaties cf para 5 of the ILC’s commentary on draft art 42, reproduced in Report of the ILC, 18th Session, ILC Yearbook 1966, Vol II, 240.

42  Commentary to art 45, para 4.

43  See Commentary to art 40, para 4.

44  NS Marques Antunes, ‘Acquiescence’, in R Wolfrum (ed), The Max Planck Encyclopedia of Public International Law, Oxford University Press, 2008, online edition <http://www.mpepil.com>, para 2.

45  See Temple of Preah Vihear (Cambodia v Thailand), ICJ Reports 1962, p 6; Rann of Kutch (1976) 50 ILR 2; Grisbadarna (1909) 9 RIAA 155.

46  Delimitation of the Maritime Boundary in the Gulf of Maine Area, Judgment, ICJ Reports 1984, p 246, 306–8 (paras 133–139).

47  Temple of Preah Vihear (Cambodia v Thailand), ICJ Reports 1962, p 6, 25.

48  Ibid, 23.

49  Grisbadarna (1909) 11 RIAA 161–162.

50  See NS Marques Antunes, ‘Acquiescence’, in R Wolfrum (ed), The Max Planck Encyclopedia of Public International Law, Oxford University Press, 2008, online edition <http://www.mpepil.com>.

51  Commentary to art 45, paras 5–6.

52  See para 4 of the ILC’s Commentary on [then] art 42.

53  Cf only North Sea Continental Shelf, ICJ Reports 1969, p 6, 26; Temple of Preah Vihear (Cambodia v Thailand) ICJ Reports 1962, p. 6, Judge Spender (diss), 143–4; T Cottier & JP Müller, ‘Estoppel’, in R Wolfrum (ed), The Max Planck Encyclopedia of Public International Law, Oxford University Press, 2008, online edition <http://www.mpepil.com>.

54  ILC Yearbook 1966, Vol II, 239 (para 4).

55  See Delimitation of the Maritime Boundary in the Gulf of Maine Area, Judgment, ICJ Reports 1984, p 246, 304 (para 129).

56  Arbitral Award made by the King of Spain on 23 December 1906 (Honduras v Nicaragua), ICJ Reports 1960, p 192, 208; but see the opinions of Judge Spender and Judge ad hoc Urutia Holguin, ibid, 219 and 221.

57  Temple of Preah Vihear (Cambodia v Thailand), ICJ Reports 1962, p 6, 62–63; see also Delimitation of the Maritime Boundary in the Gulf of Maine Area, Judgment, ICJ Reports 1984, p 246, 305 (para 130); and cf H Thirlway, The Law and Procedure of the International Court of Justice 1960–1989 (1989) 60 BYIL 29.

58  Thirlway, ibid, 30; see also I Sinclair, ‘Estoppel and Acquiescence’, in V Lowe and M Fitzmaurice (eds) Fifty Years of the International Court of Justice (Cambridge, CUP, 1996), 104, 105.

59  Cf J Wouters & S Verhoeven, ‘Prescription’, in R Wolfrum (ed), The Max Planck Encyclopedia of Public International Law, Oxford University Press, 2008, online edition <http://www.mpepil.com>, para 4.

60  See K Hobér, Extinctive Prescription and Applicable Law in Interstate Arbitration (Iustus Förlag, Uppsala 2001), 253–263, for a brief discussion of municipal legal rules.

61  See eg art 35 European Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No 5 or art X, para 1, of the 1971 Convention on International Liability for Damage Caused by Space Objects, 961 UNTS 187.

62  AG de la Pradelle and NS Politis, Recueil des arbitrages internationaux (Paris, Editions Internationales, 1955), vol II, 1856–1872, 191.

63  J Crawford, Third Report on State Responsibility, 2000, A/CN.4/507, para 258; K Hobér, Extinctive Prescription and Applicable Law in Interstate Arbitration (Iustus Förlag, Uppsala 2001), 285, 372–376 (reviewing limitations of claims in conventions dealing with civil liability).

64  Commentary to art 45, para 6.

65  Ibid, paras 6–11.

66  Certain Phosphate Lands in Nauru (Nauru v Australia), ICJ Reports 1992, p 240, 253 (para 32).

67  See Williams (1898) in JB Moore, 4 History and Digest of International Arbitrations to which the United States has been a party (Washington, Government Printing Office, 1898), vol IV, 4184; Gentini (1903) 10 RIAA 552; Spader (1903/1905) 9 RIAA 223; Lighthouses (1956) 12 RIAA 186; Iran National Airlines Co v Government of the United States of America (1988) 17 Iran US CTR 214; and cf C Rousseau, Droit international public, vol V (Paris, Sirey, 1983), 181–182, K Hobér, Extinctive Prescription and Applicable Law in Interstate Arbitration (Iustus Förlag, Uppsala 2001), 272–280.

68  (1925) 32 Annuaire IDI 558.

69  Cayuga Indians (1926) 6 RIAA 189.

70  Ibid.

71  See Commentary to art 45, paras 8–11.

72  Cf (1976) Annuaire suisse de droit international, 153.

73  See eg Certain Phosphate Lands in Nauru (Nauru v Australia), ICJ Reports 1992, p 240, 253–254 (para 32); Ambatielos, (1956) 23 ILR 314–317.

74  See eg Tagliaferro (1903) 10 RIAA 593; Giacopini (1903) 10 RIAA 594.

75  JB Moore, History and Digest of the International Arbitrations to which the United States has been a party (Washington, Government Printing Office, 1898), vol IV, 1898, 4199.

76  J Crawford, Third Report on State Responsibility, 2000, A/CN.4/507, para 259.

77  Gentini (1903) 10 RIAA 552 (emphasis added).

78  Ibid.

79  Stevenson (1903) 9 RIAA 385.

80  Lighthouses (1956) 12 RIAA 155.

81  LaGrand (Germany v United States of America), ICJ Reports 2001, p 466, 555–556 (Judge Buergenthal, dissenting, para 20, emphasis added).

82  Tagliaferro (1903) 10 RIAA 593; cf also Stevenson (1903) 9 RIAA 386–387.

83  Cayuga Indians (1926) 6 RIAA 189.

84  Barberie, in JB Moore, History and Digest of the International Arbitrations to which the United States has been a party (Washington, Government Printing Office, 1898), vol IV, 4203; see also Williams, ibid, 4195.

85  See JP Müller, Vertrauensschutz im Völkerrecht (Köln, Heymanns, 1971), 69–73; K Hobér, Extinctive Prescription and Applicable Law in Interstate Arbitration (Iustus Förlag, Uppsala 2001), 286, 301–304.