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Report of the International Law Commission on the work of its fifty-third session
between the responsible State and the injured State, or,
if there is more than one, all the injured States, may preclude any claim for reparation. Positions taken by individual States referred to in article 48 will not have such
an effect.
(2) Subparagraph (a) deals with the case where an injured State has waived either the breach itself, or its consequences in terms of responsibility. This is a manifestation
of the general principle of consent in relation to rights or
obligations within the dispensation of a particular State.
(3) In some cases, the waiver may apply only to one aspect of the legal relationship between the injured State and
the responsible State. For example, in the Russian Indemnity case, the Russian embassy had repeatedly demanded
from Turkey a certain sum corresponding to the capital
amount of a loan, without any reference to interest or
damages for delay. Turkey having paid the sum demanded,
the tribunal held that this conduct amounted to the abandonment of any other claim arising from the loan.688
(4) A waiver is only effective if it is validly given. As
with other manifestations of State consent, questions of
validity can arise with respect to a waiver, for example,
possible coercion of the State or its representative, or a
material error as to the facts of the matter, arising perhaps
from a misrepresentation of those facts by the responsible
State. The use of the term “valid waiver” is intended to
leave to the general law the question of what amounts to
a valid waiver in the circumstances.689 Of particular significance in this respect is the question of consent given
by an injured State following a breach of an obligation
arising from a peremptory norm of general international
law, especially one to which article 40 applies. Since such
a breach engages the interest of the international community as a whole, even the consent or acquiescence of the
injured State does not preclude that interest from being
expressed in order to ensure a settlement in conformity
with international law.
(5) Although it may be possible to infer a waiver from
the conduct of the States concerned or from a unilateral
statement, the conduct or statement must be unequivocal.
In the Certain Phosphate Lands in Nauru case, it was
argued that the Nauruan authorities before independence
had waived the rehabilitation claim by concluding an
agreement relating to the future of the phosphate industry
as well as by statements made at the time of independence. As to the former, the record of negotiations showed
that the question of waiving the rehabilitation claim had
been raised and not accepted, and the Agreement itself
was silent on the point. As to the latter, the relevant statements were unclear and equivocal. The Court held there
had been no waiver, since the conduct in question “did
not at any time effect a clear and unequivocal waiver of
their claims”.690 In particular, the statements relied on
“[n]otwithstanding some ambiguity in the wording …
did not imply any departure from the point of view ex688
Russian Indemnity (see footnote 354 above), p. 446.
Cf. the position with respect to valid consent under article 20: see
paragraphs (4) to (8) of the commentary to article 20.
690 Certain Phosphate Lands in Nauru, Preliminary Objections (see
footnote 230 above), p. 247, para. 13.
689
pressed clearly and repeatedly by the representatives of
the Nauruan people before various organs of the United
Nations”.691
(6) Just as it may explicitly waive the right to invoke
responsibility, so an injured State may acquiesce in the
loss of that right. Subparagraph (b) deals with the case
where an injured State is to be considered as having, by
reason of its conduct, validly acquiesced in the lapse of
the claim. The article emphasizes conduct of the State,
which could include, where applicable, unreasonable delay, as the determining criterion for the lapse of the claim.
Mere lapse of time without a claim being resolved is not,
as such, enough to amount to acquiescence, in particular
where the injured State does everything it can reasonably
do to maintain its claim.
(7) The principle that a State may by acquiescence lose
its right to invoke responsibility was endorsed by ICJ in
the Certain Phosphate Lands in Nauru case, in the following passage:
The Court recognizes that, even in the absence of any applicable treaty
provision, delay on the part of a claimant State may render an application inadmissible. It notes, however, that international law does not lay
down any specific time limit in that regard. It is therefore for the Court
to determine in the light of the circumstances of each case whether the
passage of time renders an application inadmissible.692
In the LaGrand case, the Court held the German application admissible even though Germany had taken legal
action some years after the breach had become known
to it.693
(8) One concern of the rules relating to delay is that additional difficulties may be caused to the respondent State
due to the lapse of time, e.g. as concerns the collection
and presentation of evidence. Thus, in the Stevenson case
and the Gentini case, considerations of procedural fairness
to the respondent State were advanced.694 In contrast, the
plea of delay has been rejected if, in the circumstances of
a case, the respondent State could not establish the existence of any prejudice on its part, as where it has always
had notice of the claim and was in a position to collect and
preserve evidence relating to it.695
(9) Moreover, contrary to what may be suggested by
the expression “delay”, international courts have not engaged simply in measuring the lapse of time and applying
clear-cut time limits. No generally accepted time limit,
691
Ibid., p. 250, para. 20.
Ibid., pp. 253–254, para. 32. The Court went on to hold that,
in the circumstances of the case and having regard to the history of
the matter, Nauru’s application was not inadmissible on this ground
(para. 36). It reserved for the merits any question of prejudice to the
respondent State by reason of the delay. See further paragraph (8) of the
commentary to article 13.
693 LaGrand, Provisional Measures (see footnote 91 above)
and LaGrand, Judgment (see footnote 119 above), at pp. 486–487,
paras. 53–57.
694 See Stevenson, UNRIAA, vol. IX (Sales No. 59.V.5), p. 385
(1903); and Gentini, ibid., vol. X (Sales No. 60.V.4), p. 551 (1903).
695 See, e.g., Tagliaferro, UNRIAA, vol. X (Sales No. 60.V.4),
p. 592, at p. 593 (1903); see also the actual decision in Stevenson
(footnote 694 above), pp. 386–387.
692
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