1、Bond Law ReviewVolume 21 | Issue 1Article 56-1-2009Estoppel in the Jurisprudence of the ICJ A princi promoting stability threatens to undermine itAlexander OvcharFollow this and additional works at: http：/.au/blrRecommended CitationOvchar, Alexander （2009）Estoppel in the Jurisp

2、rudence of the ICJ A principle promoting stabihty threatens to undermine it, Bond Law Review： Vol. 21： Iss. 1, Article 5.Available at： http: /.au/blr/vol21 /iss 1 /5This Article is brought to you by the Faculty of Law at ePublications（2）bond. It has been accepted for inclusion

3、in Bond Law Review by an authorised administrator of ePubIications（2）bond. For more information, please contact Bond Universitys Repository Coordinator.Estoppel in the Jurisprudence of the ICJ A principle promoting stability threatens to undermine itAbstractEstoppel is one of the most powerful and f

4、lexible instruments to be found in any system of court jurisprudence;十 and it has featured in the jurisprudence of the International Court ofjustice (the Courf) and its predecessor, in a number of cases. Estoppel, in the jurisprudence of the Court, obliges a State to be consistent in its attitude to

5、 a given factual or legal situation. Such a demand has the potential to encourage stability and predictability in international relations. The Court has not been consistent in the application of estoppel； commentators assert that estoppel lacks coherence in international law. However few commentator

6、s have taken on the task of isolating in what ways the Court has been inconsistent when applying estoppel丿 and none have made suggestions as to how the Court should eliminate the inconsistencies. Through a detailed examination of the judicial application of estoppel, this paper argues precisely in w

7、hat ways the Court has been inconsistent, and then makes suggestions as to how the Court should eliminate the inconsistencies. These proposals give estoppel a measure of predictability in the jurisprudence of the Court 丿 and thus ensure that the principle promoting stability does not undermine it.十

8、Sir Frederick Pollock, The Expansion of the Common Law (1904)10&Keywordsestoppel at the ICJThis article is available in Bond Law Review: .aU/blr/vol21/issl/5Ovchar: Estoppel in the Jurisprudence of the ICJESTOPPEL IN THE JURISPRUDENCE OF THE ICJA principle promoting stabi

9、lity threatens to undermine itALEXANDER OVCHAR*IntroductionEstoppel is one of the most powerful and flexible instruments to be found in any system of court jurisprudenceIn one form or another, it is recognised by all systems of private law.* LLB (First Class Honours) (Adelaide), BCom (Adelaide). Sir

10、 Frederick Pollock, The Expansion of the Common Law (1904) 108. Sir Hersch Lauterpacht, Private Law Sources and Analogies of International Laio (1927) 204. This recognition has extended to the international sphere - there is no doubt that estoppel is a general principle of international lawIan Brown

11、lie, Principles of Public International Law (6th ed, 2003) 616. Consequently, estoppel has featured in the jurisprudence of the International Court of Justice (zthe Courf) and its predecessor, the Permanent Court of International Justice, in a number of cases.Although estoppel has featured in the ju

12、risprudence of other international judicial bodies, the exclusive focus of this paper is on the decisions of the Court and its predecessor. The reason for this is two-fold. First, the Court, as the principal judicial organ of the United Nations* (Charter of the United Nations art 92), is considered

13、to be the most authoritative international judicial body. See, eg, Clive Parry, The Sources and Evidences of International Law (1965) 91. Secondly, the Court itself very rarely makes use of the decisions of other international judicial bodies on estoppel. Therefore, in this area of international law

14、, decisions of other international judicial bodies do not seem to be perceived by the Court as persuasive in their reasoning.Estoppel, in the jurisprudence of the Court,A reference to7the Court7, in this paper, is a reference to the International Court of Justice and the Permanent Court of Internati

15、onal Justice. Iain MacGibbon, Estoppel in International Law (1958) 7 International and Comparative Law Quarterly 458, 46& obliges a State to be consiste nt in its attitude to a given factual or legal situationRSuch a demand has the potential to encourage finality, stability and predictabilityTerrito

16、rial Dispute (Libyan Arab Jamahiriya v Chad) (Merits) 1994 ICJ Rep 6, 78 (SeparateOpinion of Judge Ajibola) (Territorial Dispute). Nuclear Tests (Australia v France) (Judgment) 1974 ICJ Rep 253.Published by ePublications bond, 2009 in international relations, in an age when this cooperation in many

17、fields is becoming increasingly essential.*Bond Law Review, Vol. 21 2009, Iss. lt Art. 5The Court has not been consistent in the application of estoppel; there is wide confusion over the scope of the principle in extra-curial literature.See, eg, Derek Bowett, Estoppel Before International Tribunals

18、And Its Relation To Acquiescence (1957) 33 British Year Book of International Law 176, 201; Antoine Martin,LEstoppel En Droit International Public: Precede dun Apercu de la Theorie de【Estoppel en Droit Anglais (1979) 274. Commentators argue that the very diversity of the forms in which the principle

19、 of estoppel has been applied . tend to make the concept so diffuse as to impair its value as a term of arf.MacGibbon, Estoppel in International Law, above n 6,478. See also Christopher Brown, A Comparative and Critical Assessment of Estoppel in International Law (1995) 50 University of Miami Law Re

20、vieio 369, 410-12. However, although many are content to assert that estoppel has no particular coherence in international law/Brownlie, n 3, 616. See especially Brown, above n 10. very few comme nt ators have taken on the task of isolating in what ways the Court has been inconsistent when applying

21、estoppel,Studies by Bowett, above n 9 and MacGibbon, Estoppel in International Law： above n 6, although in-depth, are now outdated, because the majority of cases on estoppel were heard by the Court after these articles were written, and 讓 is precisely in these cases that the inconsistencies in treat

22、ment of the principle appear. The studies by Yousef Youakim, Estoppel in International Law (PhD Dissertation, Cornell University Law School, 1969) and Martin, above n 9, although more recent, are encyclopaedic in content and do not attempt to isolate the inconsistencies. Other recent studies examini

23、ng the topic have generally been incorporated into larger studies of international law, thus treating estoppel in a somewhat truncated manner. and none have made suggestions as to how the Court should eliminate the inconsistencies.Through a detailed examination of the judicial application of estoppe

24、l, this paper argues precisely in what ways the Court has been inconsistent, and then makes suggestions as to how the Court should eliminate the inconsistencies. These proposals give estoppel a measure of predictability in the jurisprudence of the Court, and thus ensure that the principle promoting

25、stability does not undermine it.The structure of this paper is as follows. Part U of the paper identifies the three fundamental elements of estoppel that have been distilled by the Court from the principle as it operates in municipal legal systems.Upon this foundation, Part III analyses the jurispru

26、dence of the Court on estoppel and systematically examines the application of each element by the Court. It argues that the Court is clear on one element but inconsistent on the others. In particular, the Court has been inconsistent on when silence gives rise to an estoppel and whether detrimental r

27、eliance is required for an estoppel to arise..aU/blr/vol21/issl/5#Ovchar: Estoppel in the Jurisprudence of the ICJPart IV considers the way forward for the Court. It contends that the inconsistencies discovered in Part III should not remain, as they affect the perception

28、of States as to the probity of the Court and create legal uncertainty, which in turn undermines the value of international law as a guide to future State conduct. Suggestions are then made as to how the Court should eliminate these inconsistencies; in particular, silence should be only given evident

29、iary weight and detrimental reliance should be established for an estoppel to arise.International EstoppelThe principle underlying estoppel is often expressed in the Latin maxim allegans contraria non audiendus est, translated as zone should not benefit from his or her own inconsistency*.Temple ofPr

30、eah Vihear (Cambodia v Thailand) (Merits) 1962 ICJ Rep 6, 39 (Separate Opinion of Judge Alfaro) (Temple ofPreah Viheaf); North Sea Continental Shelf (Denmark v Federal Republic of Germany; Netherlands v Federal Republic of Germany) 1969 ICJ Rep 4,120 (Separate Opinion of Judge Ammoun) (North Sea Con

31、tinental Shelf). This is a figurative translation, which has been preferred by most scholars on this topic. A literal translation is one making contradictory statements is not to be heard. See Lord McNair, Law of Treaties (1961) 485. This principle is zfound in all major legal systems*.Jorg Paul Mul

32、ler and Thomas Cottier, Estoppel in Rudolf Bernhardt (ed), Encyclopaedia of Public International Law (2003) 118. See also Boizard (Liselotte) v Commission of the European Communities 1982 1 CMLR 157,171 (Advocate General Warner). Anglo-American terminology has gained prevalence in literature on this

33、 subject and thus the principle underlying estoppel is referred to as estoppel. It underlies the various types of estoppel in common law jurisprudenceSee, eg, George Keeton and L A Sheridan, Equity (3rd ed, 1987) 85-6. and the civil law concepts of preclusion, debarment and foreclusion.See, eg, Muir

34、 Watt, Tour Vaccueil de 1 estoppel en Droit Prive Frangais in Bourel Beguin (ed) Melanges en Vhonneur de Yvon Loussouarn (1994) 303.Estoppel-like concepts in municipal law are both specific and technical?Generally, see, eg, Territorial Dispute, 77 (Separate Opinion of Judge Ajibola); Georg Schwarzen

35、berger, International Law (3rd ed, 1957) 566. In relation to common law jurisprudence, see, eg, Patrick Parkinson, The Principles of Equity (2003) 214-16. In relation to civil law jurisprudence, see, eg, Martin, above n 9, 240. In English jurisprudence, for example, a number of branches or categorie

36、s of estoppel, with different origins and inconsistent rules, have been developed over the years.Elizabeth Cooke, The Modern Law of Estoppel (2000) 16. One of these distinctions is that a statement of fact can give rise only to common law estoppel7; a statement of law or a promise, on the other hand

37、, can give rise only to equ讓able estoppel*.See, eg, Jorden v Money (1854) 5 HLC 185; Territorial and Auxiliary Forces of the County of London v Nicols 1949 1 KB 35; Tomlin v Reid 1963 EGD 338. See, generaDy, John McGhee, Snells Equity (31st ed, 2000) 568-9. The division between common law and equita

38、ble estoppel, however, has been criticised in Crabb v Arun District Council 1975 3 All ER 865, 880 (Lord Scarman); Amalgamated Investment & Property Co Ltd (In Liquidation) v Texas Commerce International Bank 1982 1 QB 84 (Lord Denning). For criHdsm in British extra- curial literature, see especiall

39、y Roger Halson, zThe Offensive Limits of Promissory Estoppel 1999 Lloyds Maritime and Commercial Law Quarterly 257; Mark Lunney, Towards a Unified EstoppeF 1992 The Conveyancer 239. Similarly, in Australian jurisprudence, there is a smorgasbord of concepts to choose from under the heading of estoppe

40、l*. John Carter and David Harland, Contract Law in Australia (4th ed, 2002) 140, but note that the authors themselves doubt the validity of the distinctions between the different forms of estoppel. This distinction was criticised in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387, 420 (Br

41、ennan J); Commomoealth v Verwayen (1990) 170 CLR 394,413 (Mason CJ). For criticism in Australian extra-curial literature, see, eg, Justice Roderick Meagher, Justice Dyson Heydon and Justice John Lehane, Equity, Doctrines and Remedies (4th ed, 2002) 405-8. Comparable complexities surround estoppel-li

42、ke concepts in civil law jurisprudence.See Martin, above n 9, 274; Temple ofPreah Vihear, 39 (Separate Opinion of Judge Alfaro); Charles Vallee, yQueIques Observations Sur LyEstoppel en Droit des Gens (1973) 77 Revue Generate de Droit International Public 949.The Court, however, has not adopted the

43、technicalities of specific forms of estoppef.Muller and Cottier, above n 14,11& See also Temple ofPreah Vihear, 40 (Separate Opinion of Judge Alfaro), 62-5 (Separate Opinion of Judge Fitzmaurice). For support in extra-curial literature, see espe cially Lauterpacht, Private Law Sources and Analogies

44、of International Law, above n 2, 395-6. Instead, it has held that estoppel consists of three fundamental elements: first, a State must make a representation to another; secondly, the representation must be unconditional and made with proper authority; and finally, the State invoking estoppel must re

45、ly on the representation.See, eg, North Sea Continental Shelf, 26. For support in extra-curial literature see, eg, Bowett, above n 9; Megan Wagner, jurisdiction by Estoppel in the International Court of Justice (1986) 74 California Law Review 1777. If all three elements are established, an estoppel

46、arises.The Court has not been consistent in the use of terminology when discussing estoppel, using terms such as estoppel, preclusion, acquiescence and debarment interchangeably. This, however, is not significant because if the above-mentioned elements are established, the principle is applied in ef

47、fect. It is then irrelevant, in substance, what 讓 has been labelled as by the court. See, eg, Temple ofPreah Vihear, 40 (Separate Opinion of Judge Alfaro), 62-5 (Separate Opinion of Judge Fitzmaurice); Territorial Dispute, 77 (Separate Opinion of Judge Ajibola). For support in extracurial literature

48、 see Schwarzenberger, International Law, above n 17, 566; Wagner, above n 23,1780; Robert Jennings and Arthur Watts (eds), Oppenheims International Law (9th ed, 1992) 527.Consequently, estoppel in the jurisprudence of the Court is free from the manifold refinements grafted onto it by domestic legal

49、systems.Anthony DAma to, Consent, Estoppel, and Reasonableness: Three Challenges to Universal International Law (1969) 10 Virginia Journal of International Law 1, &In its transition from the municipal to the international sphere, the concept of estoppel has been broadened so substantially that the a

50、nalogy w讓h the estoppel of municipal systems may be positively misleading.MacGibbon, Tstoppel in International Law, above n 6,477. Consequently, as observed by Judge Alfaro in the Temple of Preah Vihear case, although there are similarities between estoppel in the jurisprudence of international and

51、municipal courts,there is a very substantial difference between the simple and clear-cut rule adopted and applied in the international field and the complicated classifications, modalities, species, sub-species and procedural features of the municipal system?Temple of Preah Vihear, 39 (Separate Opin

52、ion of Judge Alfaro).The Court, therefore, has adopted za simple and wholly untechnical conceptionM Ibid 62 (Separate Opinion of Judge Fitzmaurice).of estoppel and applied it as a rule of substance and not merely as one of evidence or procedure7.Territorial Dispute, 77 (Separate Opinion of Judge Aji

53、bola). The question of whether the juridical basis of the principle of estoppel in the jurisprudence of the Court is found in its inception as a rule of customaiy law or as a general principle of law recognised by civilised nations is not clear; and it is not the purpose of this paper to answer this

54、 question. See, eg, Vladimir Degan, Sources of International Law (1997) 55.Notwithstanding this simplification, the Court has not been consistent in applying estoppel.See eg, Bowett, above n 9, 201; Martin, above n 9, 274. The next part of the paper examines the scope of each element and isolates th

55、e inconsistencies in the application of estoppel by the Court.Inconsistencies in applicationRepresentationA representation is the first element required to establish estoppel. A representation, and thus possibly estoppel, can arise from a declaration or from silence.See eg, Temple of Preah Vihear, 6

56、2 (Separate Opinion of Judge Fitzmaurice); Elettronica Sicula SpA (United States of America v Italy) 1989 ICJ Rep 15,44. See also Georg Schwarzenberger, The Fundamental Principles of International Law (1955) 87 Recueil des cours de VAcademie de Droit International de la Haye 195, 256; Robert Jenning

57、s, Acquisition of Territory in International Law (1963) 38-41; Dominique Carreau, Droit international (7th ed, 2001) 230. The Court Published by ePublications bond, 20093Ovchar: Estoppel in the Jurisprudence of the ICJhas consistently held that a declaration gives rise to an estoppel only if the dec

58、laration is clear and consistent.The Court refers to declarations and conduct interchangeably. See Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Jurisdiction) 1984 ICJ Rep 392, 415; Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria) (Jurisdiction) 1998 ICJ Rep 275, 303. At the same time, however, the Court has not been consistent in holding under what circumstances silence gives rise to an estoppel.Arising from a DeclarationTo give rise to an estoppel, a declaration must be unequivocal, a