Friday, April 30, 2021

Estoppel (Definition and Some Quotations)

 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.


No comments:

Post a Comment