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Waiver, Acquiescence and Extinctive Prescription

Christian J. Tams

– Unedited version –

1. 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, i.e. 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 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.”

1
Commentary to Article 45, p. 266, para. 1.
2
1155 UNTS 331.

Electronic copy available at: http://ssrn.com/abstract=1414188


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:
(i) 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
(ii) 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

Neither waiver, nor acquiescence or extinctive prescription are


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 the
following.

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.

Electronic copy available at: http://ssrn.com/abstract=1414188


2. Waiver

(a) General Remarks

Waiver can be defined as the voluntary renunciation of rights or


claims.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. 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 sovereignty8, or waivers of immunity from
jurisdiction.9

Very often, waiver is characterised 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 (e.g. 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.

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).

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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 demand 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) There must have been a declaration
(2) by the competent authorities
(3) of the State whose rights are affected by the waiver.
(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) must not suffer from grounds of invalidity.
(6) Finally, there is a question whether waiver is excluded with
respect to certain fundamental rights.

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.

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(1) 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 the Case Concerning
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 practice20, 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

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.

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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.

(2) By the competent authorities

In order to be valid, a waiver must be expressed by, or implied from


the conduct of, persons authorised 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 et seq. VCLT, which either apply directly (in
the case of 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.

(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.

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
21
Russian Indemnities Case, 421, and the discussion of it above.
22
Ibid.
23
See Fiedler, p. 1021.
24
Trebilcock, p. 1321.
25
Suy, p. 166.
26
See J. Dugard, Diplomatic Protection, Chapter 74 [infra?].

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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,
e.g. 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, i.e. obligations owed to a
group of State, or the international community as a whole. Just as
with regard 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 recognise that under
specific circumstances, States other than the individually injured
27
Cf. only Mavrommatis Concessions Case, PCIJ, Series A, no. 2 (1924), p. 12;
Nottebohm Case, ICJ Reports (1955), p. 24; Barcelona Traction Case, ICJ Reports (1970),
p. 44.
28
See e.g. the Gallardo Case, 21 International Legal Materials (1982), 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
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; see further Brownlie, Principles of Public
International Law, p. 508; Rousseau, pp. 182-3.
30
Cf. First National City Bank of New York (1958) 26 ILR 325; Brownlie, p. 508.
31
See, for example, 1947 Peace Treaty with Italy, article 77; 1955 Austrian State
Treaty, articles 23(3) and 27(2).

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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.

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 (e.g.
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

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.

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. For all intents and purposes,
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
– i.e., to take up the example of aggression, States other than the
immediate victim – could not liberate the responsible State 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 recognise 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 differentiates between
different types of legal interests and recognises 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.

34
Commentary to article 45, para. 4.
35
Ibid; see also para. 1, last sentence.

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(4) 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.

(5) Absence of grounds for invalidity

In order for a waiver to be valid, the declaration in question must


have been free from any recognised 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. Hence, for example, a waiver
obtained through unlawful coercion against a State or its
representative would be invalid.39

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.

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(6) 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 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 nature.
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 gain
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

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

(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
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.

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

(b) The Required Form of 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

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

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
time-limits. In the Grisbadarna Case – 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 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.

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

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,52 article 45 of the ILC’s Articles is
based – also treats implied waivers as part of a general concept of
acquiescence.53 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 also 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.54 During its work on the Law of Treaties, the ILC chose not
include, in article 45 VCLT, any reference to estoppel, which it held

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

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.58
Theoretically feasible as it may be, this distinction is very difficult to
apply in practice. As even those supporting it concede,
“[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”.59
All that therefore seems possible to say 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

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

(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.60 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 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.61 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.62 Conversely, reliance on extinctive prescription
may be excluded by special agreement, such as in the Macedonian
Case between the United States and Chile.63 At least as far as inter-
State complaints are concerned, such special rules are unusual.64

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

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

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
recognised grounds of invalidity applied. As regards the requirement
of disposability in cases involving claims based on the concept of

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.

(b) Relation to Acquiescence and Estoppel

The question remains whether the concept of extinctive prescription,


as recognised 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 distinction
should not prove difficult. 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.72 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.73 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.74 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.75 In

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.

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. Quite to 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”.78 In the
circumstances of the case, the claimant was held to have lost the
claim for indemnisation, having “so long neglected his supposed rights
as to justify a belief in their non-existence”.79 Considerations of
procedural fairness also inform the decisions in the Stevenson Case80
and the Lighthouse Arbitration.81 Judge Buergenthal’s dissenting
opinion in the LaGrand Case 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 [i.e. the late filing of
the application] had ... detrimental consequences for the United
States”.82 Conversely, where there was no risk of injustice, claims
have been found admissible even after long delays. Hence, in the
Tagliaferro Case, 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

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

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 the Loretta G. Barberie Case: 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”.85 Unlike under
municipal law, prescription under international law therefore is based
on two considerations: delay and actual prejudice for the
respondent.86

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.

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

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
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”, R.G.D.I.P., 1963, pp. 44-91
D.W. BOWETT, “Estoppel Before International Tribunals and Its Relation
to Acquiescence”, B.Y.B.I.L., 1957, pp. 176-202
W. FIEDLER, “Unilateral Acts”, in: Encyclopedia of Public International
Law (R. Bernhardt ed.), vol. IV, 2000, pp. 1018-1023
C.-A. FLEISCHAUER, “Prescription”, in: Encyclopedia of Public
International Law (R. Bernhardt ed.), vol. III, 1997, pp. 1105-1108
K. HOBÉR, Extinctive Prescription and Applicable Law in Interstate
Arbitration, Iustus Förlag, Uppsala 2001, pp. 459
A.R. IBRAHIM, “The Doctrine of Laches in International Law”, Virgina
Law Review, 1997, pp. 647 -692
I.C. MacGIBBON, “Customary International Law and Acquiescence”,
I.C.L.Q., 1958, pp. 501-512
A. MARTIN, L’estoppel en droit international public, Ed. Pédone, Paris,
1979, pp. xvi, 384
J.P. MÜLLER, Vertrauensschutz im Völkerrecht, Heymanns, Köln, 1971
J.P. MÜLLER / Th. COTTIER, “Acquiescence”, in: Encyclopedia of Public
International Law (R. Bernhardt ed.), vol. I, 1992, pp. 14-16
J.P. MÜLLER / Th. COTTIER, “Estoppel”, in: Encyclopedia of Public
International Law (R. Bernhardt ed.), vol. II, 1995, pp. 116-119
R. RAJASINGHAM, “Extinctive Prescription in International Law”, Indian
Journal of International Law 1966, pp. 45-48
E.C. SCHLEMMER, "Waiver in international arbitration", South African
Yearbook of International Law, 2001, pp. 202-211

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