Estoppel (Definition and Some Quotations)
1. Definition
Estoppel is the principle which precludes a
person from asserting something contrary to what is implied by a previous
action or statement of that person or by a previous pertinent judicial determination.
In public international law, the doctrine of estoppel protects legitimate
expectations of States induced by the conduct of another State. The term stems
from common and Anglo-American law, without being identical with the different
forms found in domestic law. It is supported by the protection of good faith
(bona fide) in the traditions of civil law.
Historically, the principle of estoppel was
borne out of a common law desire to prevent an unjust departure by a party from
an assumption adopted by another as the basis of some act or omission which,
unless the assumption is adopted, would operate to that party’s detriment.
Whether a departure by a party from the assumption should be considered unjust
and inadmissible depends on the part taken by him in occasioning its adoption
by the other party.
2. What International Law Scholars Say about
Estoppel
1. Alina Kaczorowska on
Public international Law
The
situation of estoppel arises when a State’s conduct is clear, sustained and
consistent and the other party relying on such conduct has changed its position
to its own detriment or has suffered some prejudice.[1]
2.
Anthony
Aust on Handbook of International Law
Estoppel:
The principle that a State cannot act inconsistently if it has acquiesced in a
particular situation or taken a particular position with respect to it.[2]
Estoppel:
Known as preclusion in civil law systems, estoppel has two aspects. A State that
has taken a particular position may be under an obligation to act consistently
with it on another occasion. And when a State has acted to its detriment in
relying on a formal declaration by another State, the latter may be estopped
from denying its responsibility for any adverse consequences.[3]
3.
John
H. Currie, Public International Law, IRWIN LAW, 2nd Edn, 2008,
Often,
it will not only be the conduct of a claimant in support of its own claim, but
also conduct which appears inferentially to support a rival’s claim, that is
important in resolving territorial disputes. In particular, recognition of or
acquiescence in a rival claim may prove fatal to one’s own, as such
acquiescence or recognition is generally inconsistent with one’s own claim of
sovereignty. Recognition acts as a form of express consent to the rival claim
and is often determinative of any subsequent dispute. More subtly, silence or
passivity in the face of a clear assertion by another state of sovereignty over
territory may subsequently be construed as acquiescence in that claim. If
maintained for a sufficient period and accompanied by detrimental reliance,
such acquiescence may in turn give rise to an estoppel against the assertion of
a contrary claim.[4]
A
general principle of law preventing a party which has, by act or omission,
asserted a statement of fact from resiling from that assertion where to do so
would cause prejudice to another party relying upon it; occasionally invoked in
territorial disputes to prevent a state from disavowing its prior recognition
of another state’s sovereignty.[5]
4.
Tim
Hillier, Sourcebook on Public International Law, Cavendish Publishing Limited,
1998,
But in international
law, the possibility of international customary law without usage becomes
obvious if it is remembered that in international society states are their own
law-makers. From the analytical point of view, the binding force of all rules
of international law ultimately rests on their consent, recognition,
acquiescence or the principle of estoppel.[6]
5.
Malcolm
N. Shaw, International Law, Cambridge University Press, 8th Edn,
2017
Customary law is thus
established by virtue of a pattern of claim, absence of protest by states
particularly interested in the matter at hand and acquiescence by other states.
Together with related notions such as recognition, admissions and estoppel,
such conduct or abstinence from conduct forms part of a complex framework
within which legal principles are created and deemed applicable to states.[7]
3. Some Quotation of International Courts
1. Case concerning the
Temple of Preah Vihear (Cambodia v. Thailand), Page 30
Thailand is now
precluded by her conduct from asserting that she did not accept it. She has,
for fifty years, enjoyed such benefits as the Treaty of 1904 conferred on her,
if only the benefit of a stable frontier. France, and through her Cambodia,
relied on Thailand's acceptance of the map. Since neither side can plead error,
it is immaterial whether or not this reliance was based on a belief that the
map was correct. It is not now open to Thailand, while continuing to claim and
enjoy the benefits of the settlement, to deny that she was ever a consenting
party to it.
2. Case concerning a dispute between
Argentina and Chile concerning the Beagle Channel , 1977, Para 165
The
Court does not consider it necessary to enter into a detailed discussion of the
probative value of acts of jurisdiction in general. It will, however, indicate
the reasons for holding that the Chilean acts of jurisdiction while in no sense
a source of independent right, calling for express protest on the part of
Argentina in order to avoid a consolidation of title, and while not creating
any situation to which the doctrines of estoppel or preclusion would apply, yet
tended to confirm the correctness of the Chilean interpretation of the Islands
clause of the Treaty.
3. CASE CONCERNING
DELIMITATION OF THE MARITIME BOUNDARY IN THE GULF OF MAINE AREA, 1984, Para 130H
The Chamber observes that in any case the
concepts of acquiescence and estoppel, irrespective of the status accorded to
them by international law, both follow from the fundamental principles of good
faith and equity. They are, however, based on different legal reasoning, since
acquiescence is equivalent to tacit recognition manifested by unilateral
conduct which the other party may interpret as consent, while estoppel is
linked to the idea of preclusion. According to one view, preclusion is in fact
the procedural aspect and estoppel the substantive aspect of the same
principle. Without engaging at this point on a theoretical debate, which would
exceed the bounds of its present concerns, the Chamber merely notes that, since
the same facts are relevant to both acquiescence and estoppel, except as
regards the existence of detriment, it is able to take the two concepts into
consideration as different aspects of one and the same institution.
4. THE
"CAMOUCO" CASE (PANAMA v. FRANCE), 2000, Prompt Release, Para 51
The Respondent states that the Applicant filed
the Application more than three months after the detention of the Camouco, that
the Applicant had been completely inactive during this period, that article 292
speaks in terms of "prompt release", which carries with it the
characteristics of dispatch and urgency that arc inherent in the notion of
"prompt release", that, by failing to act promptly, the Applicant has
created, by its conduct, a situation akin to estoppel and that, consequently,
the Application is not admissible.
5. Case
Concering Maritibe Delimitation Between Bangladesh and Myanmar in the Bay of
Bengal March 2012
The Tribunal observes that, in international
law, a situation of estoppel exists when a State, by its conduct, has created
the appearance of a particular situation and another State, relying on such
conduct in good faith, has acted or abstained from an action to its detriment.
The effect of the notion of estoppel is that a State is precluded, by its
conduct, from asserting that it did not agree to, or recognize, a certain
situation. The Tribunal notes in this respect the observations in the North Sea
Continental Shelf cases and in the case concerning Delimitation of the Maritime
Boundary in the Gulf of Maine Area.
[1]
Alina Kaczorowska, Public International Law, Routledge: Taylor&Francis
Group, 4th edn, 2010, 263.
[2]
Anthony Aust, Handbook of International Law, Cambridge University Press, 2nd
Edn, 2010,
[3]
Anthony Aust, Handbook of International Law, Cambridge University Press, 2nd
Edn, 2010, 74.
[4]
John H. Currie, Public International Law, IRWIN LAW, 2nd Edn, 2008, 272.
[5]
John H. Currie, Public International Law, IRWIN LAW, 2nd Edn, 2008, 579.
[6]
Tim Hillier, Sourcebook on Public International Law, Cavendish Publishing
Limited, 1998, 78.
[7]
Malcolm N. Shaw, International Law, Cambridge University Press, 8th Edn, 2017,
66.
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