Вы находитесь на странице: 1из 19
Acquiescence/Estoppel in International Boundaries: Temple ofPreah Vihear Revisited Phil C.W. Chan* Abstract: Boundaries
Acquiescence/Estoppel in International Boundaries:
Temple ofPreah Vihear Revisited
Phil C.W. Chan*
Abstract: Boundaries between States have long been a major source of international
conflicts, and international law has adopted the principles of acquiescence and
estoppel in stabilising and adjudicating upon any such frictions. Whilst the principles
have generally served their purpose, the International Court of Justice failed to apply
them correctly in Temp/e of Preah Vihear, a decision that will be scrutinised herein
against the essential elements of acquiescence and estoppel.
Downloaded from https://academic.oup.com/chinesejil/article-abstract/3/2/421/335716 by University de Geneve user on 16 September 2019
Table of contents:
I. Introduction
II.
Definitions of acquiescence and recognition
III.
Scopes of acquiescence and recognition, and the materialisation of estoppel
III.A. Essential elements of estoppel
III.B. Is ignorance of the fact a defence?
IV.
Acquiescence/estoppel in the context of (de) colonisation
V.
Acquiescence/estoppel in relation to occupation
VI.
Acquiescence/estoppel as aid to interpretation
VII. Acquiescence as admission of inconsistency
VIII. Conclusion
"It is a principle ofpublic law universally recognised, that long acquiescence in the possession of
territory and in the exercise of dominion and sovereignty over it, is conclusive of the nation's title
and rightful authority. "•
-
Indiana v. Kentucky} United States Supreme Court
I. Introduction
Notwithstanding the advent of globalisation and the attendant decline of the nation-
state in international relations, boundary disputes retain their prominence and
international tribunals continue to be preoccupied thereby. In this respect,
international law prescribes certain modes whereby tide to territory can be acquired or
LLB Honours, The University of Hong Kong; LLM International Legal Studies (Elect),
University of Durham. Editorial Board
Member, The InternationalJournal of Human Rightr,
Journal ofHomosexuality. Assistant Editor,
Chinese Journal ofInternational Law. Thanks are due
to the editors and reviewers of the Chinese Journal of International IMW for their helpful
comments on earlier drafts, as well as their brilliant editing resulting in the final version, of
this paper. I am furthermore grateful to Dr. Kaiyan H. Kaikobad of the University of
Durham for his patient dissemination of knowledge on the important and complex area of
international law of tide to territory and boundaries; and to my good friends Paul Serfaty,
Aisling O'Sullivan, and Felizmina Lutucuta for the numerous discussions over
international law and other matters which have enriched this paper enormously.
Indiana v. Kentucky, 136 US 479 (1890), 510.
Ibid. The time of the decision should be kept in mind.
421
422 3 Chinese JIL (2004) confirmed; these modes—subject to the overriding proscription against the use
422
3 Chinese JIL
(2004)
confirmed; these modes—subject to the overriding proscription against the use of
force in international relations, and accordingly against conquest as a means to acquire
territory, as embodied in the United Nations Charter 3 and the 1970 Friendly Relations
Declaration 4 —are, namely, cession, accretion, occupation, and prescription.
Complementing these modes come acquiescence and recognition together with the
principle of estoppel. This paper seeks to explain the doctrines of acquiescence and
recognition and their relationships with estoppel, and to examine in depth their place
in international boundaries. Decisions of international tribunals, whilst binding only
authority 6 and
Downloaded from https://academic.oup.com/chinesejil/article-abstract/3/2/421/335716 by University de Geneve user on 16 September 2019
inter paries and in respect of the particular disputes, 5 carry persuasive
will be utilised extensively.
II. Definitions of acquiescence and recognition
In the absence of compulsory judicial and competent legislative machineries vis-a-vis
international society, it has long been recognised that acts or measures on the part of a
State which would otherwise be illegal as contrary to existing international law may in
time, by reason of the failure of other, especially interested, States to lodge effective
protest which "
constitutes
a formal objection by which the protesting State makes
it known that it does not recognize the legality of the acts against which the protest is
directed, that it does not acquiesce in the situation which such acts have created or
which they threaten to create, and that it has no intention of abandoning its own
rights in the premises", 7 be developed and consolidated as valid legal rights. This
process is known as acquiescence (which insinuates implied consent). 8 In the
particular context of international boundaries, "[t]he hypersensitiveness of States, and
UN Charter, Art.2(4).
Declaration on Principles of International Law concerning Friendly Relations and Co-
operation among States in accordance with the Charter of the United Nations, proclaimed
by GA Res 2625(XXV) of 24 October 1970, First Principle.
Statute of the International Court of Justice, Art.59; United Nations Convention on the
Law of the Sea, Art.296(2).
Statute of the International Court of Justice, Art.38(l)(d). Indeed, Shahabuddeen is of the
view that "
.Article 59 is concerned to ensure that a decision, qua decision, binds only the
parties to the particular case; but this does not prevent the decision from being treated in a
later case as 'a statement of what the Court regarded as the correct legal position'."
Mohamed Shahabuddeen, in: Precedent in the World Court (1996), 63, quoting the
decision of the International Court in Case concerning the Temple ofPreah Vihear (Cambodia v.
Thailand) (Preliminary Objections), ICJ Reports 1961,16, 27.
I.C. MacGibbon, Some Observations on the Part of Protest in International Law, 30
British Year Book of International Law (1953), 293, 298.
Michael Byers, in: Custom, Power and the Power of Rules: International Relations and
Customary International Law (1999), 106, opines indeed that "[t]he word consent is not a
particularly accurate description of the role of acquiescence in the customary process.
Acquiescence often signifies ambivalence or even apathy to the rule in question rather
than a conscious support for the rule on the part of the acquiescing State."
Chan, Acquiescence/Estoppel 423 their alertness to protest against every actual or potential threat to their
Chan, Acquiescence/Estoppel
423
their alertness to protest against every actual or potential threat to their rights, serves
only to accentuate the significance of failure to protest in appropriate circumstances." 9
Recognition, meanwhile, connotes express acceptance by the recognising
State(s) of the purported acts or measures being in conformity with existing
international law and is, as Jennings acknowledges, "
.after all, the principal device of
traditional international law for accommodating the law to obstinate "
facts 10 The
doctrines of acquiescence and recognition are, in this light, intertwined. Byers
describes acquiescence as derived essentially from "a principle of legitimate
Downloaded from https://academic.oup.com/chinesejil/article-abstract/3/2/421/335716 by University de Geneve user on 16 September 2019
expectation". " In this light, "[tjhe primary purpose of acquiescence", 12 asserts
MacGibbon, "is evidential; but its value lies mainly in the fact that it serves as a form
of recognition of legality and condonation of illegality and provides a criterion which
is both objective and practical." 13 Similarly, Brownlie explains that "[tjhe failure to
protest, the pattern of conduct generally described as acquiescence, and admissions
against interest (for example, in the form of maps), are all juridical fellows with the
group of questions
referred to loosely
as 'the problem of recognition'." 14
Given its dormant power in the creation of rules of customary international
law and also, especially, in the determination of title to territory and/or boundary
delimitation, acquiescence is, maintains Kaikobad, "not to be lighdy presumed" 15 and
must, demands MacGibbon, "be interpreted stricdy". 16 Estoppel, in the meantime,
should similarly be looked upon with caution, as Brownlie counsels:
"A considerable weight of authority supports the view that estoppel is a general
principle of international law, resting on principles of good faith and consistency.
It is now reasonably clear that the essence of estoppel is the element of conduct
which causes the other party, in reliance on such conduct, detrimentally to
change its position or to suffer some prejudice. Without dissenting from this as a
general and preliminary proposition, it is necessary to point out that estoppel in
municipal law is regarded with great caution, and that the 'principle' has no
particular coherence in international law, its incidence and effects not being
uniform. Thus before a tribunal the principle may operate to resolve ambiguities
and as a principle of equity and justice: here it becomes a part of the evidence
and
judicial reasoning." 17
I.C. MacGibbon, The Scope of Acquiescence in International Law, 31 British Year Book
of International Law (1954), 143, 181-82.
R.Y. Jennings, Nullity and Effectiveness in International Law, in: Cambridge Essays in
International Law: Essays in Honour of Lord McNair (1965), 64-87, 74.
Byers, above n.8,106.
MacGibbon, above n.9, 145.
Ibid.
Ian Brownlie, Recognition in Theory and Practice, 53 British Year Book of International
Law (1982), 197,201.
Kaiyan Homi Kaikobad, Some Observations on the Doctrine of Continuity and Finality
of Boundaries, 54 British Year Book of International Law (1983), 119, 126.
MacGibbon, above n.9,168-69.
Ian Brownlie, Principles of Public International Law (5 th ed.) (1998), 646.
424 3 Chinese JIL (2004) III. Scopes of acquiescence and recognition, and the materialisation of
424
3 Chinese JIL
(2004)
III.
Scopes
of
acquiescence
and
recognition,
and
the
materialisation
of
estoppel
Downloaded from https://academic.oup.com/chinesejil/article-abstract/3/2/421/335716 by University de Geneve user on 16 September 2019
By either acquiescing in or recognising the otherwise illegal act of a State as in
conformity with existing international law, the acquiescing or recognising State(s) are
precluded from later denying die legality of such act. This principle, which
supplements pacta sunt servanda—the cornerstone of international law obliging all
States to uphold contractual obligations, 18 is known as estoppel which " modern
opinion", 19 as MacGibbon emphatically appraises, "is tending to elevate
to the
rank of one of the 'general principles of law recognized by civilized nations'" 20 which
constitute one of the sources of international law under Article 38(l)(c) of the Statute
of the International Court of Justice. This position is further clarified by
Schwarzenberger in his 1955 Hague Academy Lectures where he succincdy averred
that, "|l]ike recognition, acquiescence produces an estoppel in circumstances when
good faith would require that the State concerned should take active steps of some
kind in order to preserve its rights of freedom of action." 21
Nevertheless, there is a qualitative difference between acquiescence and
recognition, and estoppel. Estoppel operates to bind only parties to the representation
(which is essential as will be elaborated hereunder) giving rise to the estoppel, whereas
acquiescence by the international community generally may in time create a rule of
customary international law binding all States. As the International Court of Justice
authoritatively declared in Anglo-Norwegian Fisheries, 22 a decision contended by
Waldock as "among the boldest and most important judgments pronounced by any
international tribunal": 23
"The notoriety of the facts, the general toleration of the international
community, Great Britain's position in the North Sea, her own interest in the
question, and her prolonged abstention would in any case warrant Norway's
enforcement of her system against the United Kingdom.
"The Court is thus led to conclude that the method of straight lines, established
in the Norwegian system,
had been consolidated by a constant and sufficiendy
18 D.W. Bowett, Estoppel before International Tribunals and its Relation to Acquiescence,
33 British Year Book of International Law (1957), 176, 181.
19 MacGibbon, above n.9,147.
2
"
Ibid., 147-48.
21
Georg Schwarzenberger, The Fundamental Principles of International Law, 87 Hague
Recueil (1955), 195, 256.
22 Fisheries Case (United Kingdom v. Norway), ICJ Reports 1951,116.
23 C.H.M. Waldock, The Anglo-Norwegian Fisheries Case, 28 British Year Book of
International Law (1951), 114,114.
Cban, Acquiescence/Estoppel 425 long practice, in the face of which the attitude of governments bears
Cban, Acquiescence/Estoppel
425
long practice, in the face of which the attitude of governments bears witness to
the fact that they did not consider it to be contrary to international law." 24
Furthermore, as the Chamber of the International Court of Justice in Gulfof
Maine 15 emphasised, acquiescence and estoppel "
are,
however, based on different
legal reasoning since acquiescence is equivalent to tacit recognition manifested by
unilateral conduct which the odier party may interpret as consent, while estoppel is
linked to the idea of preclusion." 26
Downloaded from https://academic.oup.com/chinesejil/article-abstract/3/2/421/335716 by University de Geneve user on 16 September 2019
. Essential elements of estoppel
For estoppel to materialise, a representation (which can be by conduct) is essential
whereupon reliance in good faith has been placed to the detriment of the relying State
or to the advantage of the State making such representation.
However, the meaning of this requirement was incorrectly reversed by the
International Court of Justice in Temple of Preah Vihear. 21 The Court ruled that
Thailand (then Siam) be estopped from denying the validity of a 1907 map, known as
the Annex I map in the case, which was drawn up for a prior Franco-Siamese
boundary delimitation settlement in 1904, concerning the Temple of Preah Vihear,
notwithstanding a material error in the drawing up of the map whereby the Temple
was mistakenly placed in Cambodia, then under the French Protectorate. 28 In the
words of the Court, "[t]he real question
which is the essential one in this case, is
whether the Parties did adopt the Annex I map, and the line indicated on it, as
representing the outcome of the work of delimitation of the frontier in the region of
Preah Vihear, thereby conferring on it a binding character." 29
On the basis of certain facts, which will be discussed hereunder in relation to
decolonisation, the majority of the International Court of Justice decided that the
conduct of die Siamese Government was tantamount to accepting the map, which
was widely circulated, 30 as it stood. 31 However, the truth remained, as Judge
Fitzmaurice in his Separate Opinion pointed out, that "
when
all is said and done
the only certain thing is that the Annex I map was produced in Paris by French
topographical officers in November 1907,
and was never, as such, seen (much less
approved or adopted) by die Mixed Commission, which indeed appears to have
ceased to function entirely after about February of that year
however respectable
24 Fisheries Case, above n.22,139.
25 Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v. United
States of America), ICJ Reports 1984, 246.
M
Ibid., 305.
27
Case concerning the Temple of Preah Vihear (Cambodia v. Thailand) (Merits), ICJ
Reports 1962,6.
28
Ibid., 26.
2 «
Ibid., 22.
30
Ibid., 23.
3'
Ibid., 26.
426 ) Chinese JIL (2004) the provenance of the map was, it must be held
426
) Chinese JIL
(2004)
the provenance of the map was, it must be held to have been a purely unilateral
production, not in any way binding on Thailand at the moment of its communication to
her
"*
2 Likewise, Judge Koo in his Dissenting Opinion discerned that "
Thailand
has not made a statement at any time indicating her acceptance or recognition of the
frontier line marked on the Annex I
There is no evidence to show that
France, as Cambodia's protecting State, ever relied on Thailand's silence to her own
Nor could it be validly argued that Thailand had derived special
advantage from France's reliance, if there had been such, on her alleged silent
acceptance of the Annex I map in 1908. In fact
for over 40 years no such reliance
Downloaded from https://academic.oup.com/chinesejil/article-abstract/3/2/421/335716 by University de Geneve user on 16 September 2019
appears to have been placed by France on the alleged binding character of the said
map." 33
In fact, it was Siam who placed reliance upon France's conduct to her own
detriment and to France's advantage. Siam's request for the French map in question
was based on a desire to placate colonial France and counter French ambitions in the
region, for Siam, the only Asiatic State free from colonial invasions, was
understandably anxious to protect herself. 34 Judge Koo, dissenting in the case, noted a
comment made at the material times by Siamese General Mom Chatidej Udom to
French Commandant Bernard "that by leaving it to the French Commission to draw
up the map of the frontier region, the Siamese Government had indeed wished to
show that it had complete confidence in the French officers". 35 France knew perfecdy
well that Siam did not sincerely trust her in the least, for, as Judge Spender noted in
his dissent, Commandant Montguers, (French) President of the Mixed Commission
established under a 1907 boundary delimitation settlement between France and Siam,
in a letter of 17 June 1908 indicated to the (French) Governor-General of Indo-China
that '"French maps' were 'of no great use' to Siam." 36 Indeed, in the same letter,
Commandant Montguers let the Governor-General know of his observations,
"[djispelling as far as possible the mistrust that is so deeply rooted in [Siam]." 37 Siam's
involuntary confidence, itself a contradiction in terms, in French topography cannot
in any way be converted into France's reliance upon the Asiatic State but rather
indicated the reverse.
In any case, France had relied upon no one else but herself in the whole
affair. As Judge Spender noted in his Dissenting Opinion, "France did not rely upon
any conduct of Thailand in relation to Annex I. On the contrary, she relied solely
upon the accuracy of the surveys and calculations of her own topographical officers
and the map sheets drawn up by her own cartographers based upon those surveys and
calculations. She acted not on the faith of Thailand's silence or other conduct, but
32
Ibid., 54-55 (sep. op. Fitzmaurice) (latter emphasis added).
33
Ibid., 97 (diss. op. Koo).
34 Ibid., 128 (diss. op. Spender).
35 Ibid., 81 (diss. op. Koo).
36 Ibid., 127 (diss. op. Spender).
37 Ibid., 129 (diss. op. Spender).
Chan, Acquiescence/Estoppel All upon the faith she reposed in the competence of the officers who
Chan, Acquiescence/Estoppel
All
upon the faith she reposed in the competence of the officers who established Annex
I." 38 All in all, "
.France conducted herself thenceforth." 39
Meanwhile, on account of her reliance upon the French map in question,
Siam engaged in such acts of sovereignty as "
the
building of roads to the foot of
Downloaded from https://academic.oup.com/chinesejil/article-abstract/3/2/421/335716 by University de Geneve user on 16 September 2019
Mount Preah Vihear, the collection of taxes by Siamese revenue officers on the rice
fields of Mount Preah Vihear, the grant of permits to cut timber in the area, the visits
and inspections by Siamese forestry officers, the taking of an official inventory in
1931 of ancient monuments which included the Temple of Preah Vihear, the visit of
the Under-Secretary of the Ministry of the Interior in 1924-25 and the visit of Prince
Damrong in 1930, both visits including the Temple of Preah Vihear." 40 At no times
did the French Government lodge any protest against these activities by Siam,
particularly when "
the
documentation shows that the French authorities had been
alert and vigilant in having France's newly acquired territorial sovereignty respected by
Siam." 41 Applying the decisions in Grisbadama* 1 and in Minquiers and Ecrehos,^ which
will be elucidated in the next section, these activities by Siam and the corresponding
French silence should have the charges of acquiescence and of estoppel laid squarely
against France and not Siam. Accusing and ultimately convicting Siam of acquiescing
in French sovereignty over the Temple was plainly erroneous when the
preponderance of the evidence demonstrated otherwise. Judge Spender rightfully
expressed his dissatisfaction with the majority's decision, pointing out that "[n]o
presumption can be made and no inference can be drawn which is inconsistent with
facts incontrovertibly established by the evidence." 44
Furthermore, no advantage had been gained by Siam through her alleged
representation by silence. As Judge Koo pointed out in his Dissenting Opinion,
"What benefit Thailand may have received from the stability of the frontiers
marked on the other ten maps, she has been entided to it under the Treaty of
1904 and the delimitation work of the first Mixed Commission. These maps have
not been put in question at any time. As regards the frontier of the Dangrek
sector, if Thailand could be said to have enjoyed the advantage of stability, apart
from her constant belief of the Temple area being always under her own
sovereignty, it was due, not to any reliance by France upon Thailand's alleged
acceptance of the Annex I map as binding on her, but rather to an apparent
doubt on the part of the French authorities as to where the correct line really was
with reference to the location of the Temple - a doubt which explains their
38 Ibid., 145 (diss. op. Spender).
39 Ibid., 146 (diss. op. Spender).
«
Ibid., 92 (diss. op. Koo).
41 Ibid., 94 (diss. op. Koo).
42 Grisbadarna Arbitration (Sweden v. Norway), 4 American Journal of International Law
(1910), 226.
43 Minquiers and Ecrehos (France v. United Kingdom), ICJ Reports 1953, 47.
44 Temple of Preah Vihear, above n.27, 109 (diss. op. Spender).
428 3 Chinese JIL (2004) continued silence and failure to raise any question in the
428
3 Chinese JIL
(2004)
continued silence and failure to raise any question in the face of the continued
exercise of sovereignty by Thailand in the said area." 45
Meanwhile, in addition to having to have generated reliance by the
representee State to her detriment or to the representor State's advantage, the
necessary representation must also be clear and unambiguous. The Permanent Court
of International Justice steadfastly rejected the then Serb-Croat-Slovene State's plea of
estoppel against France in Serbian Loans:* 6
Downloaded from https://academic.oup.com/chinesejil/article-abstract/3/2/421/335716 by University de Geneve user on 16 September 2019
.when the requirements of the principle of estoppel to establish a loss of right
are considered, it is quite clear that no sufficient basis has been shown for
applying the principle in this case. There has been no clear and unequivocal
representation by the bondholders upon which the debtor State was entitled to
rely and has relied." 47
"
Also, the representation must be voluntary and "
duress
or fraud of any material
kind will nullify the plea of estoppel." 48 Furthermore, any representation that carries a
condition not later materialised, akin to "without prejudice" representation common
in the course of a negotiation, cannot give rise to estoppel. 49 As the Permanent Court
of International Justice in its Advisory Opinion on the European Commission ofthe Danube 10
observed,
"
though it is perfectly true that the three delegates of France, Great Britain and
Italy, with a view to arriving at an amicable solution of the difficulties with which
the Commission was faced, declared that they would agree to leave to the
Roumanian authorities the enforcement of the regulations from a certain point
below Galatz up to Braila, it is equally true that this proposal was made
dependent upon conditions which were not accepted by the Roumanian
Government. No agreement was therefore reached, and the matter was left as it
stood." 5 '
Likewise, the same Court in Legal Status of Hasten Greenland 62 repeatedly emphasised
that the undertaking made by the Norwegian Minister of Foreign Affairs, namely one
45 Ibid., 97 (diss. op. Koo).
46 Payment of Various Serbian Loans Issued in France (France v. Serb-Croat-Slovene), PCIJ
Series A , Nos.20/21 (1929),
5, in: Manley O. Hudson (ed.), World Court Reports, Vol.11
(1927-1932) (1935), 344.
47 Payment of Various Serbian Loans, in: Hudson, ibid., 369.
48 Bowett, above n.18, 190.
49 Ibid., 191.
50 Jurisdiction of the European Danube Commission between Galatz and Braila, PCIJ Series
B, No. 14 (1927), 6, in: Hudson, above n.46, 140.
51 Jurisdiction of the European Danube Commission, in: Hudson, ibid., 162.
52 Legal Status of Eastern Greenland (Denmark v. Norway), PCIJ Series A/B, No.53 (1933),
22, in: Manley O. Hudson (ed.), World Court Reports, Vol.III (1932-1935) (1938), 151.
Chan, Acquiescence/Estoppel 429 M. Ihlen, to his Danish counterpart—the "Ihlen declaration"—that Norway
Chan, Acquiescence/Estoppel
429
M. Ihlen, to his Danish counterpart—the "Ihlen declaration"—that Norway would
not contest Denmark's claim to die whole of Greenland, 53 was "unconditional and
definitive". 54
Finally, die representation must be made by an authorised delegate of the
State against which estoppel is pleaded and the Permanent Court of International
Justice in Legal Status ofEastern Greenland decided that die aforementioned Norwegian
Minister in making his undertaking was so audiorised. 55
III.B.
Is ignorance ofthe fact a defence?
Downloaded from https://academic.oup.com/chinesejil/article-abstract/3/2/421/335716 by University de Geneve user on 16 September 2019
Representation as illuminated above for creating estoppel necessarily requires
knowledge on the part of the relying State of such representation. Indeed, the arbitral
tribunal in Pensions of Officials of the Soar Territory 56 taught diat "[tjhe right of [a]
Government to protest was acquired only at the moment when it knew of the facts." 57
Undeniably, knowledge is all the more essential when it comes to an allegation of
general acquiescence, for, as Johnson maintains, "[ajcquiescence is often implied, in
the interests of international order, in cases where it does not genuinely exist; but
without knowledge there can be no acquiescence at all." 58
That said, ignorance on the part of a State of a certain state of affairs in its
(claimed) territory may be so interpreted as to render that State precluded from
denying such state of affairs. This proposition was exemplified in the Grisbadama
Award, where die arbitral tribunal operated under the Permanent Court of Arbitration
emphasised that
"[t]he stationing of a light-boat, which is necessary to die safety of navigation in
the regions of Grisbadama, was done by Sweden without meeting any protest
and even at die initiative of Norway, and likewise a large number of beacons were
established there without giving rise to any protests; and [t]his light-boat and
diese beacons are always maintained by Sweden at her own expense " 59
As a result, Norway was now estopped from asserting tide to the Grisbadama.
Applying
Grisbadama,
Fitzmaurice,
acting
as
counsel
for
die
United
Kingdom in die Minquiers and Ecrehos litigation, claimed diat,
53 Legal Status of Eastern Greenland, in: Hudson, ibid., 163.
54 Ibid., 192; 193; 194.
55
Ibid., 192.
56 3 Reports of International Arbitral Awards (United Nations Series) 1563, as cited in
MacGibbon, above n.9,175.
57 Ibid., 1567, as quoted in MacGibbon, ibid.
58 D.H.N. Johnson, Acquisitive Prescription in International Law, 27 British Year Book of
International Law (1950), 332, 347.
59 Grisbadama, above n.42, 234.
430 3 Chinese]^ (2004) " while maintaining a nominal claim to the Minquiers and Ecrehos,
430
3 Chinese]^
(2004)
"
while
maintaining a nominal claim to the Minquiers and Ecrehos, the French
authorities were content to allow the Jersey authorities to discharge all the
responsibilities in connection with the administration of these groups, and to
incur the expenses of die installation and upkeep of slipways, buoys, marks,
beacons and other works from which navigation in general could benefit." 60
Fitzmaurice went on to assert that
Downloaded from https://academic.oup.com/chinesejil/article-abstract/3/2/421/335716 by University de Geneve user on 16 September 2019
"(Title to territory is abandoned] by letting another country assume and carry out
for many years all the responsibilities and expenses in connection with the
territory concerned. Could anything be imagined more obviously amounting to
acquiescence, that is in effect abandonment? Such a course of action, or rather
inaction, disqualifies the country concerned from asserting the continued
existence of the title." 61
Judge Carneiro agreed, criticising, in his Individual
Opinion, France's
admitted
ignorance ofJersey/British activities in the disputed islets:
"All that was required of the French Government was that it should have kept
the islets under surveillance, just as the British Government had done
Failure
to exercise such surveillance and ignorance of what was going on on the islets
indicate that France was not exercising sovereignty in that area." 62
France was ultimately denied title to the islets.
FV. Acquiescence/estoppe l in the contex t o f (de)colonisatio n
Notwithstanding the requirement, as described above, that representation must be
voluntary, an allegation of (perceivable) coercion was held to be incapable of vitiating
a representation, in the form of silence, allegedly made by Thailand (then Siam) to
France who at the material times ruled Cambodia, concerning the Temple of Preah
Vihear which, "[i]n the Khmer (Cambodian) civilization's days of grandeur between
the tenth and fourteenth centuries A.D.,
came to hold a special place in the
national tradition." 63 The decision of the International Court of Justice in Temple of
Pnah Vihear raised interesting questions on acquiescence and estoppel in the context
60 Minquiers and Ecrehos (France v. United Kingdom), Oral Pleadings, Vol.1, 159, as
quoted in I.C. MacGibbon, Estoppel in International Law, 7 International and
Comparative Law Quarterly (1958), 468, 508-09.
61 Ibid., Vol.3, 351, as quoted in MacGibbon, ibid., 509.
62 Minquiers and Ecrehos, above n.43, 106 (indiv. op. Carneiro).
63 G.M. Kelly, Th e Temple Case in Historical Perspective, 39 British Year Book of
International Law (1963), 462,462.
Chan, Acquiescence/Estoppel 431 of colonialism and subsequent decolonisation, and it will now be examined accordingly.
Chan, Acquiescence/Estoppel
431
of colonialism and subsequent decolonisation, and it will now be examined
accordingly.
The facts of the case have already been indicated earlier in this paper and
need not be repeated. The majority of the Court held that the Siamese authorities, by
leaving the drawing up of the map to their French counterparts, ran (and in the
present context of acquiescence and estoppel, accepted) the risk that the map might
turn out to be inaccurate (or, a fortiori, deliberately mistaken)
and it was their
responsibility to verify the exactitude of the map 64 (although the majority did
acknowledge that Siam had not had the necessary means to conduct the mapping
Downloaded from https://academic.oup.com/chinesejil/article-abstract/3/2/421/335716 by University de Geneve user on 16 September 2019
herself). 65 The International Court of Justice laid down an important principle of law
whereby
.the plea of error cannot be allowed as an element vitiating consent if the
party advancing it contributed by its own conduct to the error, or could have avoided
it, or if the circumstances were such as to put that party on notice of a possible
error." 66
Furthermore, an additional circumstance tilted the majority of the Court to
find estoppel against Siam in favour of France (and thus now Cambodia), namely a
quasi-official visit to Preah Vihear in 1930 by Siamese Prince Damrong in his capacity
as President of the Royal Institute of Siam. The Prince was received at the sacred
Temple by French officials whilst the French national flag was flying in their midst. 67
In view of the absence of official protest or reaction from die Siamese Government
vis-a-vis this occasion, the majority interpreted the Prince's visit and its attendant
circumstances as affirmation of French (and now Cambodian) tide to the Temple of
Preah Vihear. 68 Such heavy judicial reliance upon the visit of Prince Damrong was
unfortunate, as Bowett, on the precedent of Russian Indemnity 69 decided by the
Permanent Court of International Justice, maintains diat, in principle,
" .a tribunal will not take a phrase [or incident] out of its context and upon that
isolated phrase [or incident] create an estoppel: on the contrary, the tribunal will
review the whole circumstances and the background of diplomatic negotiation
and correspondence even for a period of thirty years prior to die hearing of the
This was precisely what Judge Koo did. In his vigorous dissent, Judge Koo contested
the majority's findings and explicated die visit of Prince Damrong as that of a private,
though obviously distinguished, person not entailing any official endorsement on the
part of the Siamese Government. 71 Indeed, as
Judge Koo noted, the Siamese Prince
64
Temple of Preah Vihear, above n.27, 26-27.
65
Ibid., 20.
66
Ibid., 26.
67
Ibid., 30.
68
Ibid., 30-31.
69
Scott's Hague Court Reports, 297,317, as cited in Bowett, above n.18,189.
70
Bowett, ibid.
71
Temple of Preah Vihear, above n.27, 90 (diss. op. Koo).
432 3 ChineseJIL (2004) asked the receiving French officer "to get out of his uniform".
432
3 ChineseJIL
(2004)
asked the receiving French officer "to get out of his uniform". 72 Judge Koo
furthermore pointed out that the Prince held no ministerial ranks at the material
times. 73 Most importantly, Judge Koo appreciated that Siam had found herself in a
quandary in that, as a relatively weak, but hitherto non-colonised, Asiatic State, in
order to protect herself against colonialism which was then rampant across Asia, she
had, or in any case naturally felt compelled, to yield to foreign—including French-
pressures and shared "
the
common experience of most Asiatic States in their
Downloaded from https://academic.oup.com/chinesejil/article-abstract/3/2/421/335716 by University de Geneve user on 16 September 2019
intercourse with the Occidental Powers during this period of colonial expansion." 74 It
must accordingly be accepted that Siam's alleged silence cannot be equated with the
United Kingdom's admitted abstention in Anglo-Norwegian Fisheries over Norway's
then illegal adoption of straight baselines in the delimitation of territorial waters, 75 for
Siam was under daily threat of colonialism whilst the United Kingdom was an
established Power on the seas.
In reinforcing his position, Judge Koo referred to the growing tide of
decolonisation (and the onset of World War II in which France quickly collapsed at
the hands of Nazi Germany) in 1940 when a Siamese guard-post was stationed at the
Temple of Preah Vihear "
as
soon as the relative position of Siam vis-a-vis French
Indo-China became less unbalanced as a result of the development of world
events
"
76 The continued silence on the part of France upon the stationing of the
Siamese guard-post must be taken as further indicating French acquiescence in
Siamese exercise of sovereignty over the Temple, for "
knowledge
must always be
presumed if the possession originated in an act of violence" 77 such as Siam's use of
troops in guard-posting the Temple.
Meanwhile, the majority's heavy reliance upon the visit of Prince Damrong
wherein the French national flag was displayed was not justified as the display of the
French flag amounted to nothing but a mere declaration of French sovereignty in the
face of overwhelming exercise of sovereignty by Siam as described above. It is trite law
that, in the determination of competing claims, the actual exercise of sovereignty is,
barring illegality, decisive of the question of sovereignty and prevails over a mere
declaration on the part of another State of the same. 78
Indeed, the majority's keenness to interpret silence on the part of Siam,
albeit its blatant simultaneous indifference to the same on the part of France, as a
determining factor in finding acquiescence and estoppel has not been followed in
subsequent cases. In GulfofMaine, the Chamber of the International Court of Justice
72
Ibid.
«
Ibid.
74 Ibid., 91 (diss. op. Koo).
75 Fisheries Case, above n.22,139.
76 Temple of Preah Vihear, above n.27, 86 (diss. op. Koo).
77 MacGibbon, above n.9, 174.
78 Clipperton Island Arbitration (France v. Mexico), 26 American Journal of International
Law (1932), 390, 393 ("It is beyond doubt that by immemorial usage having the force of
law, besides the animus occupandi, the actual, and not the nominal, taking of possession is a
necessary condition of occupation.").
Chan, Acquiescence/Estoppel 433 essentially ruled out silence as having a character more than mere imprudence
Chan, Acquiescence/Estoppel
433
essentially ruled out silence as having a character more than mere imprudence on the
part of the silent State, as it opined that "[w]hile it may be conceded that the United
States showed a certain imprudence in maintaining silence after Canada had issued the
first permits for exploration on Georges Bank, any attempt to attribute to such
silence, a brief silence at that, legal consequences taking the concrete form of an
Downloaded from https://academic.oup.com/chinesejil/article-abstract/3/2/421/335716 by University de Geneve user on 16 September 2019
estoppel, seems to be going too far." 79 The International Court of Justice in Elettronica
Sicula Sp-A. (ELSIf 0 was even more lucid in its enunciation of the kind of normative
caution which an international tribunal should impose upon itself when it comes to
deciding silence as whether or not to give rise to acquiescence or estoppel in a
particular case, in contradistinction to Temple of Preah Vihear, that, "[although it
cannot be excluded that an estoppel could in certain circumstances arise from a
silence when something ought to have been said, there are obvious difficulties in
constructing an estoppel from
a mere failure to mention a matter at a particular point in
somewhat desultory diplomatic exchanges'™
The majority's undue reliance in its decision in Temple upon the absence of
Siamese protest in such a random instance as Prince Damrong's visit to the Temple
when the French tricolour flag was hoisted, whilst the fact of die threat of French
colonialism was completely ignored, thus "
.vasdy overestimates die potentials of law
and is not even suitable and desirable in order to promote protection of good faith,
reliance and confidence in international relations" 82 which die principles of
acquiescence and estoppel are precisely intended to achieve.
On the odier hand, an additional circumstance, which was noted by Judge
Spender in dissent, should in principle have tilted the International Court of Justice in
favour of Siamese claims of sovereignty over the Temple, namely that
"The Temple ruins, which were the subject of a number of scattered visits by
archaeologists, were allowed to submit to the years and the elements. The region
to the immediate north of the escarpment dominating the Cambodian plains was
forbidding and remained so. A few people apparendy from time to time eked out
an existence there. The whole district along the escarpment on the Dangrek was
covered with sparse forest and stunted trees and was, in [French] Colonel
Bernard's view, 'despairingly monotonous'. After the summer rains it swarmed
with game. In the dry season, 'there could not be', he says, 'a more desolate
landscape'. The rivers were dry and 'water was only to be found in loathsome
pools where all the wild animals come to drink'." 83
The facts that Siam, a State whose force was admittedly substantially weaker than that
of colonial France, was nevertheless able to, and did, exercise sovereignty as described
79
Gulf of Maine, above n.25, 308.
80
Elettronica Sicula S.p.A. (ELSI) (United States of America v. Italy), ICJ Reports 1989,15.
81 Ibid., 44 (emphasis added).
82 J° r g P a u l Miiller and Thomas Cottier, Estoppel,
in: Rudolf Bernhardt (ed.), Encyclopedia
of Public International Law, Vol.7 (1984), 78-81, 79.
83 Temple of Preah Vihear, above n.27, 138 (diss. op. Spender).
434 3 Chinese JIL (2004) above over such an uninhabitable area as that surrounding the
434
3 Chinese JIL
(2004)
above over such an uninhabitable area as that surrounding the Temple of Preah
Vihear without French protest; and that "
in
many cases the tribunal has been
satisfied with very little in the way of the actual exercise of sovereign rights, provided
that the other State could not make out a superior claim
particularly
in the case
of claims to sovereignty over areas in thinly populated or unsettled countries", 84 must
be received as bestowing further legitimacy and force upon Siam's claims to the
Temple.
Downloaded from https://academic.oup.com/chinesejil/article-abstract/3/2/421/335716 by University de Geneve user on 16 September 2019
It has been submitted above that no representation, by silence or otherwise,
had ever been made by Siam to France whereby Siam gained advantage or France
suffered detriment. If truth be told, it was the reverse. As Judge Spender stated in his
Dissenting Opinion,
"On the contrary, as France knew, it was Siam who relied upon her in the
drawing up of maps. In a letter of March 1909 the French Minister in Siam,
reporting to the French Foreign Minister on the work of the Transcription
Committee, reveals clearly enough that it was the policy of France that Siam
should continue to rely upon her in matters touching the drawing up of maps.
French interest in the Transcription Committee was not limited to its work.
There was, the French Minister writes, also 'an ultimate aim
entertained from
the outset'. The objective was 'to persuade the Siamese to embark on a course
that is likely to lead them to the goal we have in view, that is to say, to cause
them , at a later stage, t o appeal invariably for ou r help for tie purpose of drawing up a
general map ofSiam
.\" 85
Such political manoeuvring on the part of colonial France, coupled with the
lack of representation on the part of Siam as well as France's visible force operable
against Siam at the material times, must lead one to the conclusion that two of the
essential elements of acquiescence or estoppel—namely, that there must, in the first
place, be a representation whereby the representor State gained certain advantage or
the representee State suffered certain detriment; and that such representation must
have been made voluntarily—were absent in the case. The decision of the majority of
the International Court of Justice was accordingly wrong both in fact and in law.
All things considered, the majority, in reaching their decision, swept aside
historical factors and "
extended
the rule against attaching weight to duress into the
evaluation of a line of conduct from circumstances", 86 finding the tide to the Temple
of Preah Vihear now vested in Cambodia. Kelly cogently warns that, "[a]s a
precedent, the Temple case may be dangerously narrow in declining to look beyond
immediate questions of treaty law into the broad and equivocal sphere of historical
justice." 87 The legal historian summed up the majority's modus operandi:
84 Legal
Status o f Eastern Greenland, in: Hudson, above n.52,171.
85 Temple of Preah Vihear, above n.27, 145 (diss. op. Spender) (latter emphasis added).
86 Kelly, above n.63, 471.
87 Ibid., 470.
Chan, Acquiescence/Estoppel 435 "Since, in the normal course, international instruments must be taken at face
Chan, Acquiescence/Estoppel
435
"Since, in the normal course, international instruments must be taken at face
value (and without regard for duress), the Court clearly regarded its proper duty
to be to construe the arrangements made without 'lifting the veil' of comparative
power postures. To depart from that procedure in the case of a treaty or other
written compact in favour of weighing imponderable and controversial questions
of political psychology would indeed open up a most invidious prospect. The
decision, however, was not based on the settlements at all, but depended on
adoption and subsequent acceptance of dispensations outside its express
terms." 88
Downloaded from https://academic.oup.com/chinesejil/article-abstract/3/2/421/335716 by University de Geneve user on 16 September 2019
V. Acquiescence/estoppel in relation to occupation
Certainly, acquiescence on the part of other, especially interested, States can greatly
enhance the credibility of a State's claim to certain territory based on its occupation
thereof. In the Island ofPa/mas arbitration, 89 which Harris applauds as "of outstanding
importance in the law on the acquisition of tide to territory", 90 Sole Arbitrator Huber
stated in his Award that
"
no
contestation or other action whatever or protest against the exercise of
territorial rights by the Netherlands over the Talautse (Sangi) Isles and their
dependencies (Miangas included) has been recorded. The peaceful character of
the display of Netherlands sovereignty for the entire period to which the
evidence concerning acts of display relates (1700-1906) must be admitted." 91
Where a State fails to lodge effective protests, which in the present era ought, if
necessary, to include instituting international judicial or arbitral proceedings, against
attempts at wrongful usurpation into sovereign territory, that "
failure
to protest,
where a protest is called for, must have a detrimental effect on the position of the
party concerned and may afford evidence of non-existence of title." 92 Accordingly, in
the Clipperton Island arbitration, France's exercise of sovereignty, albeit random yet
absolute, on Clipperton Island, 93 together with her prompt protests against Mexico's
armed expedition to the Island culminating in binding arbitration between the two
States, 94 duly conferred upon France the title to
Clipperton Island. 95
88 Ibid., 471.
89 Island o f Palmas Arbitration (The Netherlands
v. United States of America), 2 Report of
International Arbitral Awards (United Nations Series), 829, in: DJ . Harris, Cases and
Materials on International Law (5 th ed.) (1998), 190.
Harris, ibid., 197, note 1.
91 Island of Palmas, above n.89, in: Harris, ibid., 196.
92 Gerald Fitzmaurice, The Law and Procedure of the International Court of Justice, Vol.1
(1995), 299.
93 Clipperton Island, above n.78, 391-93.
94 Ibid., 392.
95 Ibid., 394.
436 i Chinese JIL (2004) VI. Acquiescence/estoppel as aid to interpretation Downloaded from
436
i Chinese JIL (2004)
VI. Acquiescence/estoppel as aid to interpretation
Downloaded from https://academic.oup.com/chinesejil/article-abstract/3/2/421/335716 by University de Geneve user on 16 September 2019
Apart from possessing substantive values in generating rules of customary
international law and/or creating binding obligations inter paries through estoppel,
acquiescence, or estoppel, is also capable of lending aid to the interpretation of an
international instrument or State conduct. This aspect of the operability of
acquiescence/estoppel has played a significant role in several sets of international
proceedings.
For instance, counsel for the United States before the Alaskan Boundary
Tribunal maintained that "
the
only point upon which [he] shall insist upon
acquiescence is that acquiescence may be looked to as indicating an understanding
and interpretation." 96 The International Boundary Commission in the Chami^al
arbitration 97 between the United States and Mexico similarly put the interpretative
function of acquiescence into practice, and its President together with the American
Commissioner decided conclusively that
"
the
two nations have, by their subsequent treaties and their consistent course
of conduct in connection with all cases arising thereunder, put such an
authoritative interpretation upon the language of the Treaties of 1848 and 1853
as to preclude them from now contending that the fluvial portion of the
boundary created by those treaties is a fixed line boundary." 98
Recendy, the Chamber of the International Court of Justice in the Land, Island and
Maritime Frontier Dispute between El Salvador and Honduras, in which Nicaragua
intervened, 99 likewise maintained that
"The Chamber must
proceed
to consider the conduct of the parties in the
period following independence, as indicative of the then view of what must have
been the 1821 position. This may further be supplemented by considerations
independent of the uti possidetis juris principle, in particular the possible
significance of the same conduct, or the conduct of the parties in more recent
years, as possibly constituting acquiescence." 100
%
Proceedings of the Alaskan Boundary Tribunal, Vol.7, p.813, as quoted in MacGibbon,
above n.60, 502.
97 Chamizal Arbitration (United States of America v. Mexico), 5 American Journal of
International Law (1911), 782.
98 Ibid., 805.
99 Case concerning the Land, Island and Maritime Frontier Dispute (El Salvador v.
Honduras, Nicaragua intervening), ICJ Reports 1992,351.
100 Ibid., 563. The utipossidetisjuris principle is a general principle of international law whereby
newly independent States are endowed with the same borders as they possessed when they
were still administrative units within their former colonial power, a principle which
underlines the parallel principle of the stability of boundaries between States. See Frontier
Dispute (Burkina Faso v. Republic of Mali), ICJ Reports 1986, 554, 565.
Chan, Acquiescence/Estoppel 437 VII. Acquiescence as admission of inconsistency Downloaded from
Chan, Acquiescence/Estoppel
437
VII. Acquiescence as admission of inconsistency
Downloaded from https://academic.oup.com/chinesejil/article-abstract/3/2/421/335716 by University de Geneve user on 16 September 2019
Last but not least, an international tribunal may, short of finding estoppel (for, e.g.,
want of reliance), decide that a previous representation made by a State not
commensurate with its present position nevertheless tends to an admission of
inconsistency. The difference between estoppel and admission is, as Bowett
distinguishes most clearly, that
"An estoppel will exclude altogether evidence of a disputed fact, whereas an
admission will either render evidence superfluous where there is no other
evidence to contradict the admission or, where there is such contradictory
evidence, will weaken or perhaps nullify the contradictory evidence—depending
on the relative weight of the admission and such evidence. There is yet another
difference. An estoppel only binds between parties and privies; it does not assist
the stranger. An admission may well do, although
an admission to a third
party will not have the same force as an admission direct to the party who seeks
to adduce it in evidence." 101
Precedents abound for this proposition. In the Tinoco arbitration, 102 Sole Arbitrator
Taft, whilst rejecting non-recognition as capable of creating estoppel, 103 conceded that
it possessed evidential weight. 104 Similarly, McNair, referring to Tinoco and in
concluding that "
international
jurisprudence has a place for some recognition of
the principle that a State cannot blow hot and cold—alkgans contraria non audiendus
esf', ws considers post-World War I British attitudes towards Germany and avers,
regarding the legality of the French occupation of the Ruhr, that "
an
international
tribunal could hardly fail to be unfavourably impressed by those inconsistencies in the
event of a direct juridical issue being raised between Great Britain and France." 106
Minquiers and Ecrehos was
another
forum
wherein
an
admission
of
inconsistency was found by the International Court of Justice to be present:
"By his Note of June 12 th , 1820, to the Foreign Office,
the French
Ambassador in London transmitted a letter from the French Minister of Marine
101 Bowett, above n.18,197.
102 Tinoco Arbitration (United Kingdom v. Costa Rica), 18 American Journal of International
Law (1924), 147.
103
i°4
Ibid. , 154.
Ibid., 155.
105
Arnold D. McNair, The Legality of the Occupation of the Ruhr, 5 British Year Book of
International Law (1924), 17, 35.
106
Ibid. , 36 .
438 3 Chinese JIL (2004) Downloaded from https://academic.oup.com/chinesejil/article-abstract/3/2/421/335716 by
438
3 Chinese JIL (2004)
Downloaded from https://academic.oup.com/chinesejil/article-abstract/3/2/421/335716 by University de Geneve user on 16 September 2019
of September 14 th , 1819, to the French Foreign Minister, in which the Minquiers
were stated to be 'possede's par I'Angleterre', and in one of the charts enclosed the
Minquiers group was indicated as being British. It is argued by the French
Government that this admission cannot be invoked against it, as it was made in
the course of negotiations which did not result in agreement. But it was not a
proposal or a concession made during negotiations, but a statement of facts
transmitted to the Foreign Office by the French Ambassador, who did not
express any reservation in respect thereof. This statement must therefore be
considered as evidence of the French official view at that time." 107
As in the case of estoppel, an admission of inconsistency will not be lightly
presumed. The general framework surrounding the representation, according to
Anglo-Norwegian Fisheries' 10 * and United States Nationals in Morocco, 109 is significant as a
plea of admission of inconsistency will not be considered against an isolated
statement. Also, the International Court of Justice cautioned in both Anglo-Norwegian
Fisheries^ 10 and Ambatielos (Preliminary Objection) 111 that it would not take much
account of superficial contradictions and inconsistencies. Equally, "without prejudice"
representation in the course of a negotiation will not count as admission. 112
VIII. Conclusion
As the Grisbadama Award emphatically declared, "[i]t is a setded principle of the law
of nations that a state of things which actually exists and has existed for a long time
should be changed as little as possible " m Since boundary disputes are especially
susceptible to generating international conflicts that might plausibly involve the
(prohibited) use of force, in the absence of a proper judiciary with compulsory
jurisdiction over all States, resort must be had to an array of established legal and
equitable principles. As was endorsed by the Judicial Committee of the Privy Council
in Canada and Dominion Sugar Company v. Canadian National (West Indies) Steamships}^
the principle of estoppel is "a simple and wholly untechnical conception, perhaps the
most powerful and flexible instrument to be found in any system of court
107 Minquiers and Ecrehos, above n.43, 71.
108 Fisheries Case, above n.22, 138.
109 Case concerning Rights of Nationals of the United States of America in Morocco (France
v. United States of America), ICJ Reports 1952, 176, 200.
110 Fisheries Case, above n.22, 138.
111 Ambatielos Case (Greece v. United Kingdom) (Preliminary Objection), ICJ Reports 1952,
28, 69-70 (diss. op. Basdevant).
112 Gerald Fitzmaurice, The Law and Procedure of the International Court of Justice, 1951-
54: General Principles and Sources of Law, 30 British Year Book of International Law
(1953), 1,47.
113 Grisbadarna, above n.42, 233.
114 UK Privy Council (On appeal from the Supreme Court of Canada), [1947] AC 46.
Chan, Acquiescence/Estoppel 439 jurisprudence". 115 The principle is therefore a most splendid candidate for the
Chan, Acquiescence/Estoppel
439
jurisprudence". 115 The principle is therefore a most
splendid candidate for the cause,
fitting logic, justice as well as peace. Its alliance with the doctrines of acquiescence and
recognition in the creation of rules of customary international law furthermore serves
to counteract the reality diat there is as yet no competent legislature for international
society.
Downloaded from https://academic.oup.com/chinesejil/article-abstract/3/2/421/335716 by University de Geneve user on 16 September 2019
Notwithstanding their general utility in the determination of disputes
between States, the principles of acquiescence and estoppel are open to misuse. The
misguided insistence of the International Court of Justice, in spite of the colonial
imbalance of power then prevailing in Asia in general and between France and (the
then) Siam in particular, upon holding that Thailand, in its dispute with newly
independent Cambodia over the ownership of the tide to the ancient Temple of Preah
Vihear, had acquiesced, through a train of uncorrected mistakes initiated by France
and notwithstanding die prolonged French silence over Siamese exercise of
sovereignty over the area, in the mistaken vesting of die tide in Cambodia which
Thailand was now estopped from claiming. Sinclair's eulogies that, in the application
or otherwise of the principles of acquiescence and estoppel, "
the
Court has shown
wisdom and restraint
"
116 and
diat
it will
"
continue
to exercise considerable
caution in admitting too decisive a role for either of these concepts in the final
determination of inter-state disputes" 117 are devoid of history and reality-and empty.
•is
Ibid, 55.
116
' "
Ian Sinclair, Estoppel and Acquiescence, in: Vaughan Lowe and Malgosia Fitzmaurice
(eds.), Fifty Years of the International Court of Justice: Essays in Honour of Sir Robert
Jennings (1996), 104-120,120.
Ibid.