International law, Sixth edition
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International Law MALCOLM N. SHAW
Droit International Public, Paris, 1979; C. Dominic´e, ‘A Propos du Principe de l’Estoppel
en Droit des Gens’ in Recueil d’ ´ Etudes de Droit International en Hommage `a Paul Guggen- heim, Geneva, 1968, p. 327, and I. Sinclair, ‘Estoppel and Acquiescence’ in Fifty Years of the International Court of Justice (eds. A. V. Lowe and M. Fitzmaurice), Cambridge, 1996, p. 104. 518 i n t e r nat i o na l l aw it cannot found title by itself, it is of evidential and often of practical importance. Estoppel may arise either by means of a prior recognition or acquiescence, but the nature of the consenting state’s interest is vital. Where, for example, two states put forward conflicting claims to territory, any acceptance by one of the other’s position will serve as a bar to a renewal of contradictory assertions. This was illustrated in the Eastern Greenland case, 173 where the Court regarded the Norwegian acceptance of treaties with Denmark, which incorporated Danish claims to all of Greenland, as preventing Norway from contesting Danish sovereignty over the area. The leading case on estoppel is the Temple of Preah Vihear 174 which concerned a border dispute between Cambodia and Thailand. The fron- tier was the subject of a treaty in 1904 between Thailand and France (as sovereign over French Indo-China which included Cambodia) which pro- vided for a delimitation commission. The border was duly surveyed but was ambiguous as to the siting of the Preah Vihear temple area. Thailand called for a map from the French authorities and this placed the area within Cambodia. The Thai government accepted the map and asked for further copies. 175 A number of other incidents took place, including a visit by a Thai prince to the temple area for an official reception with the French flag clearly flying there, which convinced the International Court that Thailand had tacitly accepted French sovereignty over the disputed area. 176 In other words, Thailand was estopped by its conduct from claim- ing that it contested the frontier in the temple area. However, it is to be noted that estoppel in that case was one element in a complexity of rele- vant principles which included prescription and treaty interpretation. The case also seemed to show that in situations of uncertainty and ambiguity, the doctrines of acquiescence and estoppel come into their own, 177 but it would not appear correct to refer to estoppel as a rule of substantive law. 178 The extent to which silence as such may create an estoppel is unclear and much will depend upon the surrounding circumstances, in particular the notoriety of the situation, the length of silence maintained in the light of that notoriety and the type of conduct that would be seen as reasonable 173 PCIJ, Series A/B, No. 53, 1933, pp. 46, 68; 6 AD, pp. 95, 102. 174 ICJ Reports, 1962, p. 6; 33 ILR, p. 48. See D. H. Johnson, ‘The Case Concerning the Temple of Preah Vihear’, 11 ICLQ, 1962, p. 1183, and J. P. Cot, ‘Cour Internationale de Justice: Affaire du Temple de Pr´eah Vih´ear’, AFDI, 1962, p. 217. 175 ICJ Reports, 1962, pp. 6, 23; 33 ILR, pp. 48, 62. 176 ICJ Reports, 1962, pp. 30–2; 33 ILR, p. 68. 177 See also the Award of the King of Spain case, ICJ Reports, 1960, p. 192; 30 ILR, p. 457. 178 See e.g. Jennings, Acquisition, pp. 47–51. t e r r i t o ry 519 in the international community in order to safeguard a legal interest. 179 The existence of an estoppel should not, however, be lightly assumed. 180 Subsequent conduct itself would in the material sense include the ex- amples of the exercise of sovereign activity, various diplomatic and similar exchanges and records, and maps. So far as the status of maps is concerned, this will depend upon the facts of their production as an item of evidence. It was noted in the Burkina Faso/Mali case that ‘maps are only extrinsic evidence of varying reliability or unreliability which may be used, along with other evidence of a circumstantial kind, to establish or reconstitute the real facts’. 181 In such circumstances, courts have often exhibited a de- gree of caution, taking into account, for example, that some maps may be politically self-serving and that topographic knowledge at the time the map is made may be unreliable. 182 However, maps annexed to treaties il- lustrating the boundary so delimited will be accepted as authoritative. 183 Where there is a conflict between the text of an instrument and an an- nexed map, all the relevant circumstances will need to be considered in order to arrive at a correct understanding of the intentions of the au- thors of the relevant delimitation instrument. 184 Beyond this, it is possible that cartographic material, prepared in order to help draft a delimitation instrument, may itself be used as assistance in seeking to determine the intentions of the parties where the text itself is ambiguous, while more generally the effect of a map will in other circumstances vary according to 179 See e.g. the Anglo-Norwegian Fisheries case, ICJ Reports, 1951, pp. 116, 139; 18 ILR, pp. 86, 101, the North Sea Continental Shelf cases, ICJ Reports, 1969, pp. 3, 26; 41 ILR, pp. 29, 55, the Gulf of Maine case, ICJ Reports, 1984, pp. 246, 308; 71 ILR, pp. 74, 135, and the ELSI case, ICJ Reports, 1989, pp. 15, 44; 84 ILR, pp. 311, 350. See also M. Koskenniemi, ‘L’Affaire du Passage par le Great Belt’, AFDI, 1992, p. 905. 180 In Cameroon v. Nigeria (Preliminary Objections), the Court emphasised that, ‘An estoppel would only arise if by its acts or declarations Cameroon had consistently made it fully clear that it had agreed to settle the boundary dispute submitted to the Court by bilateral avenues alone. It would further be necessary that, by relying on such an attitude, Nigeria had changed its position to its own detriment or had suffered some prejudice’, ICJ Reports, 1998, pp. 275, 303. 181 ICJ Reports, 1986, pp. 554, 582; 80 ILR, p. 440. Note that the Court in the Download 7.77 Mb. Do'stlaringiz bilan baham: |
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