Академический Документы
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Christian J. Tams
– Unedited version –
1. Introduction
1
Commentary to Article 45, p. 266, para. 1.
2
1155 UNTS 331.
3
Verdross/Simma, Universelles Völkerrecht, 3rd ed., Berlin 1984, § 1293. See also
Article 20, ILC Articles.
4
See Rousseau, Droit international public, tome v, Paris 1983, pp. 186-187.
5
Müller/Cottier, EPIL I, p. 14; and see id., EPIL II, p. 117 and below, Extinctive
Prescription section 2, on the similar “metamorphoses” of the doctrines of estoppel and
extinctive prescription.
6
Suy, Les actes juridiques unilatéraux en droit international public, p. 153.
7
Commentary to article 45, para. 2.
8
Often referred to as “derelictio”, see Dahm, Völkerrecht, vol. iii (Stuttgart 1961), p.
167.
9
Cf. e.g. article 32 of the Vienna Convention on Diplomatic Relations, 586 UNTS
262, or article 45 of the Vienna Convention on Consular Relations, 500 UNTS 95.
10
See e.g. Fiedler, EPIL IV, p. 1018.
11
Ibid., p. 1020.
12
See e.g. 1947 Peace Treaty with Italy, article 77; 1955 Austrian State Treaty,
articles 23(3) and 27(2).
3
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
13
Russian Indemnities Case, (1912) 11 R.I.A.A p. 421.
14
Ibid., at p. 446.
15
See Crawford, Third Report on State Responsibility, A/CN.4/507, paras. 255, 261.
4
(1) A declaration
16
Commentary to article 45, para. 5.
17
Suy, pp. 157-158.
18
Case Concerning Certain Phosphate Lands in Nauru, ICJ Reports (1992), 240, at
pp. 247, 250, paras. 13, 20.
19
Rousseau, p. 182, nº 176; Trebilcock, EPIL IV, at p. 1329; but cf. Dahm, p. 215.
20
Norwegian Loans Case, ICJ Reports (1957), at p. 26; Kronprins Gustav Adolf
Arbitration, R.I.A.A., vol. ii, at p. 1299; cf. Suy, pp. 159-164 with further references.
5
evidenced by the award in the Russian Indemnities Case.21 As has
been stated22, it is not decisive whether the declaration occurs in a
unilateral, bilateral or multilateral context.
(3) 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.
6
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
7
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
recognise that this categorisation 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 recognises 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.
32
See Gaja, above chapters 62 & 64; and cf. also Tams, Enforcing Obligations Erga
Omnes in International Law (2005), for further comment on concepts of community
obligations.
33
See Commentary to article 45, para. 4; see also Judge Weeramantry’s separate
opinion in the Gabcikovo Case, ICJ Reports (1997), at pp. 117-118 (on the question of
estoppel, but with implications of a more general nature).
8
nevertheless seem to follow from the concept of multilateral
obligations as recognised in the ILC’s Articles.
34
Commentary to article 45, para. 4.
35
Ibid; see also para. 1, last sentence.
9
(4) After the breach
36
See Ben Masour, above chapter 32:1.
37
See Crawford, Third Report, para. 254.
38
Commentary to article 20, para. 3.
39
Commentary to article 45, para. 4.
10
(6) Limits on freedom to waive
40
So-called “absolute rights”, see Tommasi di Vignano, La rinuncia in diritto
internazionale, p. 68; and cf. the discussion by Suy, pp. 167-169.
41
See Commentary to article 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 [then]
article 42, reproduced in ILC Yearbook 1966, vol. ii, at p. 240.
42
Commentary to article 45, para. 4.
11
(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.
3. Acquiescence
43
See Commentary to article 40, para. 4.
44
Müller/Cottier, EPIL I, p. 14.
12
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 the Gulf of Maine
Case, 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
45
See Temple of Preah Vihear Case, ICJ Reports (1962), 6; Rann of Kutch
Arbitration (1976) 50 ILR 2; Grisbadarna Arbitration (1959) 9 R.I.A.A. 155.
46
Gulf of Maine Case, ICJ Reports 1984, pp. 306-8, paras. 133-9.
47
Temple of Preah Vihear, p. 25.
13
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
48
Ibid., at p. 23.
49
Grisbadarna Case, (1961) 11 R.I.A.A., at p. 161-162.
50
See Cottier/Müller, EPIL I, supra note 5, at p. 14.
14
(c) Relation to Other Concepts
51
See Commentary, supra note 1, article 45, p. 267, paras. 5-6.
52
Supra note 1.
53
See para. 4 of the ILC’s commentary on [then] article 42, supra note 41, at p. 239.
54
Cf. only North Sea Continental Shelf Case, ICJ Reports (1969), p. 26; Temple
Case, Spender (diss), 143-4; Bowett, (1957) B.Y.I.L. p. 202; Müller/Cottier, pp. 117-118.
15
to be a “municipal law term”.55 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 the Gulf of
Maine Case, referred to estoppel as “the alter ego of acquiescence”.56
The ICJ proceedings in the Case Concerning 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.57
55
ILC Yearbook 1966, vol. ii, p. 239, para. 4.
56
See Gulf of Maine Case, p. 304 (para. 129).
57
Case Concerning the Arbitral Award made by the King of Spain, ICJ Reports
(1960), p. 208; but see the opinions of Judge Spender and Judge ad hoc Urutia Holguin,
ibid., pp. 219 and 221.
58
Temple of Preah Vihear, pp. 62-63; see also Gulf of Maine Case, p. 305 (para.
130); and cf. Thirlway, B.Y.I.L. 1989, pp. 29-30.
59
Thirlway, ibid, p. 30; see also Sinclair, “Estoppel and Acquiescence” in V. Lowe and
M. Fitzmaurice (eds.) Fifty Years of the International Court of Justice (Cambridge, 1996)
pp. 104-120 at p. 105.
16
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.
4. Extinctive Prescription
60
Cf. Fleischauer, EPIL III, p. 1105.
61
See Hobér, Extinctive Prescription and Applicable Law in Interstate Arbitration,
pp. 253-263, for a brief discussion of municipal legal rules.
62
See e.g. article 35 European Convention for the Protection of Human Rights and
Fundamental Freedoms, ETS No. 5 or article X, para. 1, of the 1971 Convention on
International Liability for Damage Caused by Space Objects, 961 UNTS 187.
63
Lapradelle/Politis, Receuil des arbitrages internationaux, vol. ii, p. 191.
64
Crawford, Third Report, para. 258; Hobér, pp. 285, 372-376 reviewing limitations of
claims in conventions dealing with civil liability.
17
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.65 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.66 On the face of it, international
jurisprudence would seem to contradict this cautious approach.
Indeed, a great number of decisions recognise extinctive prescription
as a separate, and independent, ground for the loss of claims. The
ICJ’s judgment in the Nauru Case, for example, states in clear and
unequivocal terms that “même en l’absence de disposition
conventionelle applicable, le retard d’un État demandeur peut rendre
un requête irrecevrable”67; the same position is taken in a host of
arbitral awards.68 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”.69
65
Commentary to article 45, para. 6. See already supra, section 3(b) of this
contribution.
66
Ibid., paras. 6-11.
67
Nauru Case, p. 25, para. 32.
68
See only Williams Case in: (1898) Moore, History and Digest of International
Arbitrations to Which the United States Has Been a Party, vol. iv, p. 4184; Gentini Case,
(1960) 10 R.I.A.A 552; Spader Claim, (1959) 9 R.I.A.A. 223; Ambatielos Arbitration, (1956)
32 I.L.R. 314-317; Lighthouses Arbitration, (1963) 12 R.I.A.A. p. 186; Iran National Airlines
Co. v. The Government of the United States of America (1988)17 Iran US Claims Tribunal
Reports p. 214; and cf. Rousseau, pp. 181-182, Hobér, pp. 272-280 with further references.
69
Ann.I.D.I., Vol. 32, 1925, p. 558.
18
diplomatic protection, the Cayuga Indians Claim70 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”.71 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.
70
Cayuga Indians Claim (1955) 6 R.I.A.A. 189.
71
Ibid.
72
See Commentary to article 45, paras. 8-11.
73
Cf. Annuaire suisse de droit international, 1976, p. 153.
74
See e.g. Nauru Case, pp. 253-254, para. 32; Ambatielos Arbitration, pp. 314-317.
75
See e.g. Tagliaferro Case (1960) 10 R.I.A.A. 593; Giacopini Case, (1960) 10
R.I.A.A. p. 594.
19
contrast, the arbitrators in Loretta G. Barberie held 15 years to
constitute an unreasonable delay giving rise to prescription.76 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”77 but requires a balancing of all relevant circumstances.
76
Moore, History and Digest of International Arbitrations to Which the United States
Has Been a Party, vol. iv, p. 4199 (1898).
77
Crawford, Third Report, para. 259.
78
Gentini, p. 552, emphasis added.
79
Ibid.
80
Stevenson Case, (1959) 9 R.I.A.A. p. 385.
81
Lighthouse Arbitration, p. 155.
82
La Grand (Germany v United States of America), ICJ Reports (2001), p. 466,
Buergenthal (diss), at para. 20, emphasis added.
20
rule ceases, and such is the case now”.83 Similarly, in the Cayuga
Indians Claim, 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.84
83
Barberie Case (1960) 10 R.I.A.A. p. 593; cf. also the Stevenson Case, pp. 386-387.
84
Cayuga Indians Claims, p. 189.
85
In: Moore, History and Digest of International Arbitrations to Which the United
States Has Been a Party, vol. iv, p. 4203 (1898); see also Williams Case, ibid. p. 4195
(1898).
86
See Müller, Vertrauensschutz im Völkerrecht, pp. 69-73; Hobér, pp. 286, 301-304.
21
5. Concluding Remarks
Further reading
22
I. SINCLAIR, “Estoppel and Acquiescence”, in Fifty Years of the
International Court of Justice (V. Lowe and M. Fitzmaurice eds.,
Cambridge 1996), pp. 104-120
G. SPERDUTI, “Prescrizione, consuetudine e acquiescenza in diritto
internazionale”, Riv.D.I. 1961, pp. 3-15
E. SUY, Les actes juridiques unilatéraux en droit international public, Paris,
L.G.D.J., 1962, pp. XI, 290
A. TOMMASI DI VIGNANO, La rinuncia in diritto internazionale, 1964
A. TREBILCOCK, “Waiver”, in: Encyclopedia of Public International Law
(R. Bernhardt ed.), vol. IV, 2000, pp. 1327-1331
C.G. WEERAMANTRY, “Estoppel and the Preclusive Effects of
Inconsistent Statements and Conduct”, Netherlands Yearbook of
International Law, 1996, pp. 113-141
23