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Silence Is Consent Acquiescence and Estoppel in International Law

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Silence Is Consent Acquiescence and Estoppel in International Law J U R I D I C U M Silence is consent Acquiescence and Estoppel in International Law Nathalie Holvik VT 2018 RV102A Rättsvetenskaplig magisterkurs med examensarbete, 15 högskolepoäng Examinator: Joakim Nergelius Handledare: Märta Johansson LIST OF ABBREVIATIONS BYIL British Yearbook of International Law Ch Chapter Comm Commission CUP Cambridge University Press Ed Editor Edn Edition Eg For example ICJ International Court of Justice ICLQ International & Comparative Law Quarterly Intl International J Journal L Law No Number OSAIL Oxford Scholarly Authorities on International Law OUP Oxford University Press PCA Permanent Court of Arbitration PCIJ Permanent Court of International Justice Rev Review Rep Report Supp Supplement UK United Kingdom UN United Nations UNGA United Nations General Assembly UNTS United Nations Treaty Series US United States of America VCLT Vienna Convention on the law of treaties Vol Volume Ybk Yearbook TABLE OF CONTENTS I.! INTRODUCTION ............................................................................................................. 1! A.! Background .................................................................................................................... 1! B.! Purpose and questions .................................................................................................... 3! C.! Delimitations .................................................................................................................. 4! D.! Method and material ....................................................................................................... 5! E.! Disposition ..................................................................................................................... 6! II.! GENERAL PRINCIPLES, ACQUIESCENCE, AND ESTOPPEL ............................ 7! A.! General principles .......................................................................................................... 7! B.! Acquiescence .................................................................................................................. 9! C.! Estoppel ........................................................................................................................ 13! 1. Estoppel, preclusion, and debarment ..................................................................... 13! 2.!Estoppel in international courts and tribunals ........................................................ 15! D.! Acquiescence and estoppel ........................................................................................... 17! III.! TREATY LAW ............................................................................................................. 20! A.! Treaty interpretation ..................................................................................................... 20! B.! Acquiescence and estoppel in relation to subsequent practice ..................................... 22! IV.! CUSTOMARY INTERNATIONAL LAW ................................................................ 24! A.! Acquiescence, estoppel, and the formation of custom ................................................. 24! V.! CONCLUSION ............................................................................................................... 26! TABLE OF AUTHORITIES.................................................................................................27 ! i I. INTRODUCTION A. Background The 1900th century American humor writer Josh Billings once expressed that: “silence is one of the hardest arguments to refute”.1 Even though Billings probably did not consider silence in the context of public international law, this notion very accurately describes the legal value that silence may have within this particular legal field. Silence as a concept may for example affect the interactions between states and it may also play a predominant role in the settlement of disputes in international courts and tribunals.2 Against this background, various scholars have examined multiple areas of international law in which silence may have legal consequences.3 The subject also occurs in reports and documents from the International Law Commission (ILC).4 Since it is a vast subject that can apply various situations, it may also be discussed from multiple viewpoints and situations within different aspects or fields of international law. For example, in certain situations silence may indicate that there are gaps in the law. In connection to this, the issue of silences in the law can be examined from a theoretical point of view that relates to the perception of the international legal system as a whole.5 In other situations it can relate to state conduct, or the lack thereof, that eventually may have legal consequences.6 The latter, which is the focus of this paper, can be described as a negative form of state conduct with potential legal consequences.7 The legal value of silence is determined by the factual situation in which a state has remained inactive, or in other words, silent. Hence, silence on its own is of little value unless it is coupled with other legal concepts of international law. The concept that is most frequently 1 Mira Balachandran, Quotations for all occassions (Emerald Publishers 2009). 2 Sophia Kopela, ‘The Legal Value of Silence as State Conduct in the Jurisprudence of International Tribunals’ (2010) 29 Australian Ybk Intl L 87, 87. 3 See eg Sophia Kopela, ‘The Legal Value of Silence as State Conduct in the Jurisprudence of International Tribunals’ (2010) 29 Australian Ybk Intl L 87; Helen Quane, ‘Silence in International Law’ (2014) 84 BYIL 240; Megan L Wagner, ‘Jurisdiction by Estoppel in the International Court of Justice’ (1986) 74 California L Rev 1777. 4 See eg Intl L Comm, ‘Second report on subsequent agreements and subsequent practice in relation to the interpretation of treaties’ [2014] Second Report of Special Rapporteur Georg Nolte, Sixty-sixth Session, reprinted in UNGA Official Rec, Sixty-ninth Session, Supp No 10 A/69/10, 166, 66-76, 4 § 4; Intl L Comm, ‘Third Report on identification of customary international law’ [2015] Third Report of Special Rapporteur Michael Wood, Sixty-seventh Session, A/CN.4/682, 9-14. 5 Hersch Lauterpacht, The Function of Law in the International Community (OSAIL 2011) 93-97; see also Sophia Kopela, ‘The Legal Value of Silence as State Conduct in the Jurisprudence of International Tribunals’ (2010) 29 Australian Ybk Intl L 87, in its entirety. 6 See eg Temple of Preah Vihear (Cambodia v Thailand) (Merits, Judgment) [1962] ICJ Rep 6, 23, 32. 7 Sophia Kopela, ‘The Legal Value of Silence as State Conduct in the Jurisprudence of International Tribunals’ (2010) 29 Australian Ybk Intl L 87, 87. 1 associated with silence is acquiescence.8 This concept comes into play when a state, or states, remains silent in situations that generally call for a reaction.9 The potential consequence of such inaction is that states risk becoming bound by their silence.10 Acquiescence can be applied in numerous contexts of international law, and has repeatedly been referred to in international cases.11 On this basis, the concept is well-established within international law, and the prerequisites for it to apply have been clearly outlined.12 However, in spite of this, there are still some prevailing uncertainties with regard to its relation and interaction with the concept of estoppel. The latter concept can arise as a result of state silence, but it can also be applied under other circumstances.13 In essence, it is a concept that aims to promote stability in international relations,14 and which prevent states from going back on a previous representation in a given situation.15 It has sometimes been described as: ”a juridical wild card allowing one who plays it in international law to make it represent any legal notion he desires.”16 Despite the fact that estoppel has been referred to frequently in international jurisprudence there are many ambiguities surrounding the concept. These extend to its characterization, its application, and the necessary requirements for an estoppel to arise.17 Against this background, estoppel has prompted a lot of discussion within international law. It seems to be particularly unclear under which circumstances silence may give rise to estoppel.18 Very few attempts have been made to systemize the concepts of estoppel and acquiescence and on this basis the uncertainties surrounding them are still prevalent in international law.19 8 Id, Kopela 87. 9 Id 87; Temple of Preah Vihear (Cambodia v Thailand) (Merits, Judgment) [1962] ICJ Rep 6, 23, 32. 10 Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v United States of America) (Merits, Judgment) [1984] ICJ Rep 246 § 130. 11 See eg Temple of Preah Vihear (Cambodia v Thailand) (Merits, Judgment) [1962] ICJ Rep 6; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America (Jurisdiction, Admissibility) [1984] ICJ Rep 392; Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v United States of America) (Merits, Judgment) [1984] ICJ Rep 246. 12 See eg Temple of Preah Vihear (Cambodia v Thailand) (Merits, Judgment) [1962] ICJ Rep 6, 23. 13 See Alexander Ovchar, ‘Estoppel in the Jurisprudence of the ICJ: A principle promoting stability threatens to undermine it’ (2009) 21 BLR 1, in its entirety. 14 Territorial Dispute (Libyan Arab Jamahiriya v Chad) (Merits) [1994] ICJ Rep 6 (Separate Opinion of Judge Ajibola) 78 § 99; Alexander Ovchar, ‘Estoppel in the
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