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The Temporal Jurisdiction of International Tribunals by Gallus, Nick (4th May 2017)

4 Temporal Jurisdiction over Acts before the Period of Limitation

From: The Temporal Jurisdiction of International Tribunals

Nick Gallus

Subject(s):
Arbitrability — Time limitations (and jurisdiction) — International courts and tribunals, procedure — Statutory limitations — Extinctive prescription (and admissibility) — Arbitral agreements

(p. 41) Temporal Jurisdiction over Acts before the Period of Limitation

A.  Introduction

4.01  Regardless of the date of entry into force of the obligation allegedly breached, or of the date from which the tribunal’s jurisdiction was accepted, a tribunal might not hear a claim if it was brought too long after the challenged act. This limit is often referred to as a ‘time limit’ or ‘time bar’ on a claim, or an application of a ‘statute of limitations’. The effect of this limit is examined in this chapter.

4.02  Section B of this chapter addresses the effect of treaty provisions that prevent a tribunal from hearing delayed claims. It addresses the effect of all such provisions, even though some affect the admissibility of a claim1 rather than the tribunal’s jurisdiction.2 The chapter then examines in section C if, in the (p. 42) absence of a treaty provision that limits a tribunal’s ability to hear a delayed claim, general principles of law impose a similar restriction.

B.  Treaties

4.03  Many treaties limit the ability of tribunals to hear challenges to acts that occurred too long ago. For example, Article 35 of the European Convention on Human Rights (ECHR) states:

The Court may only deal with the matter after all domestic remedies have been exhausted … and within a period of six months from the date on which the final decision was taken.

4.04  The reasons for imposing this limit were explored by the European Court of Human Rights (ECtHR) in Varnava and Others v Turkey:

The object of the six-month time-limit under Article 35§1 is to promote legal certainty, by ensuring that cases raising issues under the Convention are dealt with in a reasonable time and that past decisions are not continually open to challenge.3

4.05  Tribunals have identified similar reasons for the inclusion of time limit provisions in other treaties.4

4.06  Despite common goals, time limit provisions in different treaties contain significantly different wording. The following sub-sections examine differences in the critical aspects of the provisions: the event that triggers the running of time; the period of limitation; and the event that interrupts the running of time.

1.  The event that triggers the running of time

4.07  Different provisions use different events to trigger the beginning of the time period. Some have begun the time period from the date that the tribunal (p. 43) was created or that the treaty entered into force. The Mexican–US Special Claims Commission could only hear claims filed ‘within two years from the date of its first meeting’,5 and the Claims Settlement Agreement gave applicants to the Iran–US Claims Tribunal one year from the date of the agreement.6 Claims brought after this time were ruled inadmissible in Riahi v Iran 7 and Vera-Jo Miller Aryeh and Others v Iran. 8

4.08  Other time limits, such as in various investment treaties,9 in the Rules of Procedure of the UN Human Rights Committee10 and in the American11 and European Conventions on Human Rights,12 are triggered by the exhaustion of domestic remedies.13 The American Convention contains explicit exceptions to this rule14 and, while there are no explicit exceptions in the European Convention, the European Court of Human Rights has applied similar exceptions, finding that the time limitation period does not begin at the exhaustion of local remedies if there are no such remedies or if the remedies are not ‘effective and sufficient’.15 If an exception applies then the (p. 44) focus, as in the American Convention, is on the time of the act complained of rather than the exhaustion of domestic remedies.16 The European Court and Commission of Human Rights have regularly applied this principle to bar claims that challenged acts that occurred more than six months before the application. Bernadotte v Sweden is an example.

4.09  On 8 March 1934 Sigvard Bernadotte, the son of Gustav VI Adolf the King of Sweden, married Erica Maria Patzek, who was not of royal descent. The following day, the royal family declared that, in consequence, he had ‘forfeited his … right of succession to the throne. Moreover, he has forfeited the titles and the privileges, which until now he has enjoyed in his capacity as a hereditary prince’.17 In 1976, Bernadotte petitioned the then king of Sweden, King Carl XVI Gustav, requesting the restoration of his title. His request was rejected but he continued to request his restoration, which was repeatedly rejected. In 2001, the applicant formerly known as Prince complained before the ECtHR that the removal of his title and subsequent refusal to restore it violated the ECHR. The Court held that the application was inadmissible as it was filed more than six months after the king had initially refused to restore the applicant’s title in 1976.

4.10  The Treaty for the Establishment of the East African Community begins the period permitted for lodging an application from the time that the claimant knew of the events that gave rise to the dispute,18 whereas some investment treaties start the permitted period from the time that the claimant ought to have known of those events.19 In Grand River v United States of America the North American Free Trade Agreement (NAFTA) tribunal relied on such ‘constructive knowledge’ to time bar the claim.

4.11  The claimants in Grand River were a Canadian company and indigenous peoples manufacturing and trading cigarettes in Canada and the United States. The claimants alleged that the Master Settlement Agreement, concluded to settle litigation by several American states against cigarette manufacturers, and implementing legislation of the states, breached the NAFTA. (p. 45) The US argued that the claim was time barred because the Master Settlement Agreement and implementing legislation were all passed by 2000, more than three years before the claim was lodged. The tribunal found that there was insufficient evidence to conclude that the claimants knew of the measures more than three years before they claimed but that they ought to have known: ‘… parties intending to participate in a field of economic activity in a foreign jurisdiction, and to invest substantial funds and efforts to do so, ought to have made reasonable inquiries about significant legal requirements potentially impacting on their activities’.20 The tribunal stated that:

[e]‌ven limited inquiries by the Claimants would have shown, at a minimum, the existence of a significant and potentially burdensome new body of state legal requirements bearing on off-reservation sales of their products, and warned of the need for further diligent investigation.21

4.12  The tribunal therefore found that the claims challenging the Master Settlement Agreement and implementing legislation were time barred.

4.13  Some treaties begin the time period from the claimant’s knowledge of both the breach and of the damage suffered.22 The investment treaty decision in Pope & Talbot v Canada highlighted the importance of the requirement that the investor has knowledge of damage, as well as of breach, before the time period begins. The tribunal accepted that the claimant may have known of the breach allegedly caused by the implementation of the Softwood Lumber Agreement between the United States of America and Canada before the three-year window expired but found that Canada failed to prove that the claimant was aware of the damages.23

4.14  Grand River addressed when damage is ‘incurred’ for the purposes of the NAFTA time limit provision and, therefore, when the time period commences. Both parties accepted that damage was not incurred when the offending federal and state legislation came into force24 but the parties disagreed over the date after the legislation came into force when the damage (p. 46) was incurred. The United States argued that the investors ‘incurred loss or damage in 1999 when cigarettes manufactured by Grand River were first sold in a state with an escrow statute in force’.25 Conversely, the investors argued that ‘loss or damage is only incurred when funds are actually paid out’;26 that is, when the investor pays penalties for acts inconsistent with the challenged legislation. The tribunal adopted the respondent’s position, holding:

In many sources, the verb [incurred] is regularly taken to mean ‘become liable to’. Judicial dicta likewise suggest that one incurs a loss when liability accrues; a person may ‘incur’ expenses before he or she actually dispenses any funds. In the Tribunal’s view, this interpretation corresponds most closely to the ordinary meaning of the term. The verb ‘to incur’ in ordinary usage is often used to describe situations where there is no immediate outlay of funds by the affected party.27

4.15  The tribunal in Mobil Investments and Murphy Oil v Canada relied on Grand River to hold that damages are ‘incurred’ when they are ‘identified or quantified’, even if they ‘must be paid in the future’.28 Thus, the majority of the tribunal held that the damages ‘incurred’ by the claimants in 2004 when they were required to spend a certain percentage of their revenues on research, development, education, or training in the Canadian province of Newfoundland and Labrador included the expenditures they would be required to undertake until the end of the projects in 2036.29 Therefore, for the Mobil tribunal, damages were incurred even though the amount of damages was not yet known.30

2.  The period of limitation

4.16  Different treaties prescribe different periods from the event triggering the running of time. As indicated above, the ECHR (as well as the (p. 47) American Convention) gives applicants the small window of six months31 but the Claims Settlement Agreement, which created the Iran–US Claims Tribunal, gave applicants one year32 and Chapter 11 of the NAFTA gives claimants three.33

4.17  Communications to the African Court and Commission on Human and Peoples’ Rights must be submitted ‘within a reasonable period of time’.34 Delays of between two and eighteen months35 were found to be reasonable but delays of between fifteen months to eleven years36 were not.

4.18  The American Convention on Human Rights also requires a communication within a ‘reasonable time’ in certain circumstances37 and delays of (p. 48) between six weeks and twenty years have satisfied this requirement38 but delays of between two and thirty-four years did not.39

4.19  When deciding if a delay was ‘reasonable’ both the American and African Commissions have examined the applicant’s negligence. The African Commission held that the delay in Michael Majuru v Zimbabwe was unreasonable because ‘the arguments advanced by the Complainant as impediments for his late submission of the complaint do not appear convincing’40 but accepted the delay in Egyptian Initiative for Personal Rights and Interights v Egypt ‘taking into consideration the complexities of getting a representation before an international body, and the challenges of communications system in Africa’.41

4.20  In Florencio Chitay Nech and Others v Guatemala, the Inter-American Commission on Human Rights accepted that the delay of over twenty years before challenging Guatemala’s failure to investigate the disappearance of indigenous leader Florencio Chitay Nech in 1980 was reasonable because the victim’s family had undertaken ‘procedural activity’, including reporting the disappearance to police the day it happened,42 and because the family was ‘justifiably afraid of inquiring with the authorities about the investigation into Mr Chitay’s whereabouts and the punishment of his kidnappers’.43

(p. 49) 4.21  In addition to examining the conduct of the petitioner when deciding if a delay was ‘reasonable’, the Inter-American Commission in Florencio Chitay Nech and Others v Guatemala also addressed the conduct of the respondent. It stated that ‘[t]‌he reasonableness … must be weighed in each case against … the behaviour of the State’44 and relied partly on the fact ‘that there has been to this date no investigation, trial or punishment of the perpetrators’ and ‘the context in which the events took place’45 to conclude that the delay was reasonable.46

3.  The event that interrupts the running of time

4.22  The one common feature of time limit provisions is that, on their face, they all require the filing of a claim or application within the period of limitation.47

4.23  However, some tribunals have indicated that other events may interrupt the running of time. In Feldman the investment treaty tribunal held that ‘an acknowledgment of the claim under dispute by the organ competent to that effect and in the form prescribed by law would probably interrupt the running of the period of limitation’ as would ‘exceptional circumstances includ[ing] a long, uniform, consistent and effective behavior of the competent State organs which would recognize the existence, and possibly also the amount, of the claim’.48 In Philis v Greece the European Commission of Human Rights implicitly accepted such circumstances might exist when it noted that ‘an examination of the case does not disclose the existence of any special circumstances which might have interrupted or suspended the running of that period’.49

(p. 50) C.  General Principles of Law

4.24  When creating a tribunal or accepting its jurisdiction, states have not always imposed a time limit on the bringing of a claim.50 In these circumstances, there is broad support for the view that there are still limits.

4.25  Many international tribunals have recognized that delay can bar a claim even in the absence of a time limit provision in the relevant treaty.51 In Certain Phosphate Lands in Nauru the International Court of Justice (ICJ) stated that ‘even in the absence of any applicable treaty provision, delay on the part of a claimant State may render an application inadmissible’.52 This principle was subsequently accepted by the World Court in both the Case Concerning Armed Activities in the Territory of the Congo 53 and LaGrand.54

4.26  Commentators have supported the view of the ICJ.55 The International Law Commission (ILC) stated that: ‘[j]‌ust as private individuals cannot remain subject to obligations indefinitely and under the permanent threat of legal action without any limitation of time, so the State likewise cannot be held responsible for an indefinite duration of time, or remain under the threat of an international claim which is subject to no limitation’.56 Or, in the more colourful words of former United States Secretary of State, Thomas Bayard: ‘[t]ime … while he carries in one hand a scythe by which he mows (p. 51) down vouchers by which unjust claims can be disproved, carries in the other an hourglass, which determines the period after which, for the sake of peace and in conformity with sound political philosophy, no claims whatever are permitted to be pressed’.57

4.27  Not every tribunal has supported this view. The US–Britain Mixed Claims Commission established by the 1853 treaty between the countries refused to bar claims for the refund of import duties imposed over forty years before because ‘no statutes of limitation can be pleaded in bar of claims arising under treaties’.58 According to the Commission, ‘[w]‌here a treaty is made between two independent powers, its stipulations can not be deferred, modified, or impaired by the action of one party without the assent of another. If the parties, by their joint act, have established no barrier in point of time to the prosecution of any claims under a treaty made by them, then neither country can interpose such limit’.59 One hundred and fifty years later a similar conclusion was reached by the investment treaty tribunal in H&H Enterprises Investments v Egypt, when it held that the respondent failed to carry its burden of proving that the tribunal could bar an old claim in the absence of direction from the treaty.60

4.28  Tribunals that have held that they could bar a claim that challenged a much earlier act have drawn on different principles to support this power. One tribunal relied solely on the domestic law of the responding party61 but others have rejected this approach.62 The United Nations Human Rights (p. 52) Committee has held that the applicant’s delay can amount to an ‘abuse of right’ to claim.63

4.29  Most tribunals have relied on general principles of law.64 Indeed, domestic legal systems have long barred claims when excessive time has passed since the event. In 1944 the United States Supreme Court said that ‘no procedural principle is more familiar … than that a constitutional right may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right …’.65 Similarly, Umpire Ralston wrote in his decision in Gentini that: ‘by all nations and from the earliest period has it been considered that as between individuals an end to disputes should be brought about by the efflux of time’.66

1.  Extinctive prescription

4.30  Several tribunals that have applied general principles of law to bar an old claim have relied on the specific principle of ‘extinctive prescription’, sometimes referred to as ‘negative prescription’, ‘equitable prescription’, or simply ‘prescription’.

4.31  Extinctive prescription refers to the extinction through excessive delay of the right to claim.67 The Grand Rivers investment treaty tribunal observed that: ‘[t]‌he principle of extinctive prescription (bar of claims by lapse of time) is widely recognized as a general principle of law constituting part of international law, and has been accepted and applied by arbitral tribunals’.68 As early as 1925 the Institut de Droit International stated that:

[d]‌es considérations pratiques d’ordre, de stabilité et de paix, depuis longtemps retenue par la jurisprudence arbitrale, doivent faire ranger la prescription libératoire des obligations entre États parmi les principes généraux de droit reconnues par les nations civilisées dont les tribunaux internationaux sont appelés à faire application.69

(p. 53) 4.32  In his study of general principles of law, Bin Cheng went so far as to say that: ‘prescription stands out as one of the most instructive examples showing how general principles of law operate as a source of international law’.70

4.33  When deciding if a claim was barred by the application of the principle of extinctive prescription, tribunals have not relied solely on the length of the delay, although some have stated that a long delay created a presumption that the claim was barred.71 Indeed, claims brought well after the challenged act have not been barred. A tribunal famously decided that an eighty-three-year-old claim of the Caguya Indians against the United States was not time barred.72

4.34  In addition to examining the delay, tribunals have considered if the delay was caused by the claimant’s negligence. Bin Cheng noted that:

[t]‌he presumptions arising from the delayed presentation of a claim are, however, only presumptions of fact and are rebuttable. They do not constitute a sufficient reason for barring an action, unless … [there is] imputability of the delay to the negligence or laches of the claimant.73

4.35  Thus, in Nordzucker v Poland the claim was not time barred because the tribunal held there was no ‘unreasonable delay in Nordzucker’s pursuit of its (p. 54) claim’.74 Similarly, in Kardassopoulos and Fuchs v Georgia the tribunal asked if the claimants were negligent delaying a claim for breach of investment treaties.

4.36  The Greek and Israeli claimants had obtained a concession to develop an oil pipeline in Georgia which was then revoked and given to another company. Georgia promised to give compensation but eventually reneged on that promise after a change of government. The claimants alleged that Georgia’s actions breached its obligations in the Energy Charter Treaty and under the Georgia–Israel bilateral investment treaty.

4.37  Georgia objected that the claim was time barred because it challenged actions that occurred over ten years ago. The tribunal accepted that the delay ‘has clearly resulted in the fading of memories and loss of certain documentary evidence that may have otherwise assisted the Tribunal in shedding light on the facts in dispute’.75 However, ultimately, the tribunal was ‘not persuaded that the Claimants’ delay in bringing their claims was unreasonable or unjustified in the circumstances’76 because ‘the Claimants persistently pursued compensation from the Georgian Government’.77

4.38  In addition to considering the negligence of the claimant in failing to bring the claim earlier, international tribunals applying the principle of extinctive prescription have also considered the prejudice to the respondent. The tribunal in Kardassopoulos and Fuchs v Georgia explained that:

[d]‌espite the passage of time, the Parties … have produced thousands of pages of documentary materials and well over 30 fact witnesses. Many of these witnesses did recollect the relevant events with a reasonable degree of clarity, and in a manner that the Tribunal is satisfied has enabled it to arrive at a full understanding of the documentary evidence.78

4.39  The tribunal was ‘not persuaded by the Respondent’s argument that as a result of the Claimants’ delay in presenting their claims it has suffered harm which would justify the imposition of equitable prescription’.79

4.40  In Wena Hotels v Egypt the tribunal rejected Egypt’s argument that excessive time had passed before the claim under the Egypt–UK bilateral investment (p. 55) treaty because there was still sufficient evidence, holding that it ‘agrees with Wena that, given the voluminous evidence produced by the parties as well as the extensive testimony provided by several witnesses … neither party seems to have been disadvantaged—which, of course, is one of the equitable reasons for disallowing an untimely claim’.80 Indeed, for some tribunals, the existence of evidence was sufficient to hold that the claim was not barred.81

4.41  The consideration of both the negligence of the applicant and the prejudice to the respondent by tribunals when they decide whether a claim is barred through the application of prescription is well illustrated by a decision of the Italian–Venezuelan Mixed Claims Commission. Mr Tagliaferro was an Italian merchant, jailed in 1872 in Venezuela after he refused to pay an illegal payment requested by the local military. He petitioned the local judge, who said he was unable to help because ‘the military power was superior to the civil’, and then the Attorney General, who claimed he was unable to help until Mr Tagliaferro could prove he was Italian.82 He was eventually released but over thirty years later applied to the Commission for compensation. The Commission held that, despite the delay, the application was not time barred because:

[t]‌he injured party at once appealed to the judicial authority, which denied relief, and then to the immediate representative of the nation, who, upon a subterfuge, refused his assistance. The responsible constituted authorities knew at all times of the wrongdoing, and if the complaint was baseless—an impossible conclusion under the evidence—judicial, military, and prison records must exist to demonstrate the fact. When the reason for the rule of prescription ceases, the rule ceases, and such is the case now.83

4.42  The Commission went on to find Venezuela liable for unjust imprisonment and denial of justice.

2.  Acquiescence

4.43  Although the principle of extinctive prescription has been widely applied, its future role is unclear. The principle was not recognized in the ILC’s 2001 (p. 56) Articles on Responsibility of States for Internationally Wrongful Acts, which focused instead on the principle of acquiescence and the principle of waiver when addressing limits on old claims. Jan Wouters and Sten Verhoeven, writing in the Max Planck Encyclopedia of International Law, relied partly on the ILC’s Articles to state that: ‘[e]‌xtinctive prescription only applies to claims brought by or on behalf of individuals for breach of contract or torts or to State claims for breaches of contract or torts when the claimant State has acted in private capacity’. They state that the principle ‘does not play a role in claims between States concerning violations of public international law’, which is reserved for the principles of waiver and acquiescence.84

4.44  In his treatise on international law, Georg Schwarzenberger went further and argued that there is no independent role for the principle of extinctive prescription since it is merely an application of the principle of acquiescence.85 Similarly, Professor Christian Tams argued that the principle of extinctive prescription is subsumed within the principles of acquiescence and estoppel and ‘the concept of extinctive prescription thus seems unnecessary’.86

4.45  The principle of acquiescence is recognized in the ILC’s Articles on Responsibility of States for Internationally Wrongful Acts, where Article 45(b) states:

The responsibility of a State may not be invoked if: … (b) the injured State is to be considered as having, by reason of its conduct, validly acquiesced in the lapse of the claim.87

4.46  The commentary to the Article explains that the elements to consider when applying the principle of acquiescence are similar to those that have been applied under the principle of extinctive prescription. When applying the principle of extinctive prescription, tribunals have considered not only the length of the delay but also the negligence of the claimant behind the (p. 57) delay and the prejudice to the respondent, as explained above. Similarly, the commentary to Article 45(b) of the ILC’s Articles on Responsibility of States for Internationally Wrongful Acts states that: ‘[m]‌ere 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’.88 It also states that ‘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’.89

3.  The limits of general principles of law

4.47  Not all claims or applications can be barred by general principles of law.

4.48  The Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity states that ‘war crimes and crimes against humanity are among the gravest crimes in international law’ and that ‘[n]‌o statutory limitation shall apply to [those crimes] irrespective of the date of their commission’.90 Similarly, Article 29 of the International Criminal Court Statute provides that the ‘crimes within the jurisdiction of the Court [which are genocide, crimes against humanity, war crimes, and the crime of aggression] shall not be subject to any statute of limitation’. These examples illustrate that treaty provisions or general principles of law that limit the period within which a claim must be brought can be overridden in a treaty91 but they also illustrate the view that challenges to particular crimes should never be barred, regardless of the delay.

4.49  Commentators have argued that, independent of the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, claims challenging such crimes cannot be time barred. Freidl Weiss argued in the 1982 British Yearbook of International Law that: ‘genocide … by its very nature … is exempt from the operation of (p. 58) limitation periods’.92 More recently, Yale Law Professor Michael Reisman stated that: ‘[e]‌fforts by states to create a lex specialis treaty provision limiting the time for bringing claims in such a way as to be in violation of a jus cogens norm would fail’.93 This view was applied by the Inter-American Court of Human Rights in the Almonacid-Arellano case.94

4.50  Luis Almonacid-Arellano was active in the Chilean Communist Party in the early 1970s. He was arrested at his home following General Pinochet’s coup d’état and shot as he was leaving his house to get into the police truck, dying the following day. Investigations into his death were interrupted by a 1978 Decree, which granted amnesty for crimes committed during, and immediately after, the coup.

4.51  Decades later, applicants challenged the failure to investigate Mr Almonacid-Arellano’s murder and the 1978 Decree. The Court rejected Chile’s argument that the application was barred by the time limitation provision in the American Convention on Human Rights because:

[t]‌he State may not invoke the statute of limitations … to decline its duty to investigate and punish those responsible. Indeed, as a crime against humanity, the offense committed against Mr. Almonacid-Arellano is … [not] extinguishable.

4.52  The Court went on to explain that:

[c]‌rimes against humanity are intolerable in the eyes of the international community and offend humanity as a whole. The damage caused by these crimes still prevails in the national society and the international community, both of which demand that those responsible be investigated and punished.

4.53  The Court held that there is no time limit on claims concerning crimes against humanity, regardless of whether the crime is committed by a state that is a party to the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity:

Even though the Chilean State has not ratified said Convention, the Court believes that the non-applicability of statutes of limitations to crimes against humanity is (p. 59) a norm of General International Law (ius cogens), which is not created by said Convention, but it is acknowledged by it. Hence, the Chilean State must comply with this imperative rule.95

4.54  The Court concluded that Chile had breached its obligations in the American Convention.

D.  Summary

4.55  Treaties regularly limit the period within which a claim must be brought. The key elements of these provisions—the event that triggers the running of that period and its length—are different in most treaties and there is little commonality in their application.

4.56  There is some uniformity in the application of general principles of law to late claims. Several (but not all) commentators and tribunals have stated that such principles bar late claims even if there is not a specific treaty provision with that application. While there is some disagreement over the precise principle that has this effect, most tribunals and commentators agree that the negligence of the claimant in delaying the claim and the prejudice to the respondent from that delay are critical elements in its application.

4.57  The negligence of the claimant has also been central to the application of some treaty provisions, even when the provisions have not expressly directed tribunals to consider it. Both the African Commission on Human and Peoples’ Rights and the Inter-American Commission on Human Rights have examined the negligence of the applicant when applying provisions that bar claims where the delay was ‘unreasonable.’ Recently, the European Court of Human Rights has considered the negligence of the applicant when deciding whether or not to bar applications that challenge continuing acts, as explained in the next chapter.(p. 60)

Footnotes:

1  See eg European Convention on Human Rights (ECHR) (adopted 4 November 1950, entered into force 3 September 1953) art 35; American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July 1978) 1144 UNTS 143 (Pact of San José, Costa Rica) art 46. See also Jan Paulsson, ‘Jurisdiction and Admissibility’ (2005) Global Reflections on International Law, Commerce and Dispute Resolution 601, 609, stating that ‘whether the claim was formally submitted within the time limits provided for in the relevant treaty’ is a ‘matter of admissibility’.

2  The time limit provision in Chapter 11 of the North American Free Trade Agreement (NAFTA) has been described as affecting the tribunal’s jurisdiction. See Glamis Gold Ltd v The United States of America, UNCITRAL, Procedural Order No 2 (31 May 2005) [18]; Marvin Roy Feldman Karpa v United Mexican States, ICSID Case No ARB(AF)/99/1, Award (16 December 2002) [53] (Feldman v Mexico, Award); and Apotex Inc v United States of America, UNCITRAL, Award on Jurisdiction and Admissibility (14 June 2013) [314]. See also the position of Canada in Merrill & Ring Forestry LP v Canada, UNCITRAL, Canada’s Counter-Memorial (13 May 2008) [144].

3  Varnava and Others v Turkey, App no 16064/90 and others (18 September 2009) [156]. See also the statement of the court in Utsmiyeva and Others v Russia, App no 31179/11 (26 August 2014) [30].

4  See eg the statement of the Inter-American Commission on Human Rights in María Eugenia Morales de Sierra v Guatemala, Report, IACHR No 4/01 (19 January 2001) [29]: ‘[t]‌his rule [in Article 46(1)(b) of the Pact of San José, Costa Rica (n 1)] exists to allow for juridical certainty while still providing sufficient time for a potential petitioner to consider her position’.

5  Special Claims Convention for the Settlement of Claims of American Citizens Arising from Revolutionary Acts in Mexico from 20 November 1910 to 31 May 31 1920 (signed 10 September 1923, entered into force 19 February 1924) art VII. Note that the article provided an exception to this rule, if ‘reasons for the delay, satisfactory to the majority of the Commissioners, shall be established’ but that ‘in any such case the period for filing the claim may be extended not to exceed six additional months’.

6  Declaration of the Government of the Democratic and Popular Republic of Algeria Concerning the Settlement of Claims by the Government of the United States of America and the Government of the Islamic Republic of Iran (adopted 19 January 1981) art III(4).

7  Riahi v Iran (27 February 2003) 28 Iran–USCTR 176 [68].

8  Vera-Jo Miller Aryeh and Others v Iran (22 May 1997) 33 Iran–USCTR 272 [64]–[69].

9  Zwuschen der Bundesrpublik Deutschland und Rumänien über die Förderung und den gegenseitigen Schutz von Kapitalanlagen (signed 25 June 1996, entered into force 12 December 1998) Agreement between the Federal Republic of Germany and Romania for the Promotion and Reciprocal Protection of Investments art 3(3).

10  Rules of Procedure of the Human Rights Committee, CCPR, CCPR/C/3/Rev. 8 (22 September 2005) art 96(c).

11  Pact of San José, Costa Rica (n 1) art 46(1).

12  ECHR (n 1) art 35.

13  Tribunals have often had to determine which of several judicial acts actually exhausted local remedies for the purposes of a time limit provision. See eg Wallishauser v Austria, App no 156/04 (17 July 2012) [42]–[44]; Pavlenko v Russia, App no 42371/02 (1 April 2010) [73]–[79]; Maria Elena Macedo Garcia De Uribe v Mexico, Report, IACHR No 24/12 (20 March 2012) [33]–[34]; and Victor Eladio Lora Bolivar v Peru, Report, IACHR No 18/11 (23 March 2011) [20]–[31]. Both the Inter-American and European Courts of Human Rights have started the six-month period from the applicant’s (or the applicant’s lawyer’s) knowledge of this final judicial act. See eg Marta Lucía Álvarez Giraldo v Colombia, Report, IACHR No 71/99 (4 May 1999) [18]; and Çelik v Turkey, App no 52991/99 (23 September 2004).

14  Pact of San José, Costa Rica (n 1) art 46(2).

15  See eg Kevin McDaid and Others v United Kingdom, App no 25681/94 (9 April 1996) 5; Edwards v United Kingdom, App no 46477/99 (7 June 2001).

16  See eg Dennis and Others v United Kingdom, App no 76573/01 (2 July 2002).

17  Bernadotte v Sweden, App no 69688/01 (3 June 2004).

18  Treaty for the Establishment of the East African Community (adopted 30 November 1999, entered into force 7 July 2000) 255 UNTS 2144 art 30(2). The Appellate Division for the East African Court of Justice clarified in Attorney General of Uganda v Omar Awadh and Others (Appeal Judgment) East African Court of Justice, Appeal No 4/2011 (15 April 2013) [33]–[34]: ‘[that] by the phrase “in the absence thereof”, the drafters of the Treaty meant “in the absence of any known date thereof”. The second limb would then apply where the claimant does not know the exact date of the action complained of’.

19  See eg the Agreement between the United Mexican States and the Federal Republic of Germany on the Promotion and Reciprocal Protection of Investments (Germany–Mexico BIT) (signed 25 August 1998, entered into force 23 February 2001) 393 UNTS 2140 art 12(3).

20  Grand River Enterprises Six Nations Ltd and Others v United States of America, UNCITRAL, Decision on Objections to Jurisdiction (20 July 2006) [66] (Grand River v US).

21  Ibid [68]. See also Spence International Investments LLC, Berkowitz and Others v Republic of Costa Rica, ICSID Case No UNCT/13/2, Interim Award (25 October 2016) [209].

22  See eg NAFTA (n 2) (Canada–Mexico–United States) (adopted 17 December 1992, entered into force 1 January 1994) CTS 1994/2 art 1116(2).

23  Pope & Talbot Inc v Canada, UNCITRAL, Preliminary Award (24 February 2000) [12] (Pope & Talbot Inc v Canada). See also Peter A Allard v The Government of Barbados, UNCITRAL, Award on Jurisdiction (13 June 2014) [108].

24  On this point see also De Franceschi SpA Monfalcone v Council and Commission of the European Communities [1982] ECLI:EU:C:1982:20 [12], interpreting the limitation provision in the European Court of Justice Statute: ‘[t]‌he commencement of the period of limitation cannot be the date on which the unlawful measures adopted by the community entered into force or, a fortiori, the date of their publication’.

25  Grand River v US (n 20) [76].

26  Ibid [77].

27  Ibid.

28  Mobil Investments Canada Inc and Murphy Oil Corporation v Canada, ICSID Case No ARB(AF)/07/4, Decision on Liability and on Principles of Quantum (22 May 2012) [427]. Note that the tribunal was considering the meaning of ‘incurred’ in NAFTA art 1116(1) and not in the time limit provision that is contained in art 1116(2).

29  Ibid [429].

30  See also William Ralph Clayton, William Richard Clayton, Douglas Clayton, Daniel Clayton and Bilcon of Delaware Inc v Canada, UNCITRAL, Award on Jurisdiction and Liability (17 March 2015) [275]; Grand River v US (n 20) [77]; Mondev International Ltd v United States of America, ICSID Case No ARB(AF)/99/2, Award (11 October 2002) [87]; United Parcel Service of America Inc v Government of Canada, UNCITRAL, Award on Jurisdiction (22 November 2002) [29]; and Spence International Investments, LLC, Berkowitz and Others v Republic of Costa Rica, ICSID Case No UNCT/13/2, Interim Award (25 October 2016) [213].

31  ECHR (n 1) art 35; Pact of San José, Costa Rica (n 1) art 46(1)(b).

32  Iran–US Claims Tribunal (n 6) art III(4).

33  See eg NAFTA (n 2) art 1116(2).

34  African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986) 1520 UNTS 217 art 56(6). See also the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (adopted 9 June 1998) art 6(2).

35  Luke Munyandu Tembani and Benjamin John Freeth v Angola and Others, African Commission on Human and Peoples’ Rights, Comm No 409/12 (30 April 2013) [110] (two month delay); Zimbabwe Lawyers for Human Rights and Associated Newspapers of Zimbabwe v Zimbabwe, African Commission on Human and Peoples’ Rights, Comm No 284/03 (3 April 2009) [120] (two month delay); Lehlohonolo Bernard Kobedi v Botswana, African Commission on Human and Peoples’ Rights, Comm No 277/03 (12 October 2013) [109] (four month delay); Egyptian Initiative for Personal Rights and Interights v Egypt, African Commission on Human and Peoples’ Rights, Comm No 334/06 (1 March 2011) [99] (ten month delay); Tanganyika Law Society and The Legal and Human Rights Centre and Reverend Christopher Mtikila v United Republic of Tanzania, African Court on Human and Peoples’ Rights, App no 009&011/2011 (3 October 2015) [83] (one year delay); and Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, African Commission on Human and Peoples’ Rights, Comm No 323/06 (12 October 2013) [66] (eighteen month delay).

36  Zitha and Zitha v Mozambique, African Commission on Human and Peoples’ Rights, Comm No 361/08 (1 April 2011) [110]–[114]; Southern Africa Human Rights NGO Network and Others v Tanzania, African Commission on Human and Peoples’ Rights, Comm No 333/06 (26 May 2010) [76] (eleven year delay); Darfur Relief and Documentation Centre v Republic of Sudan, African Commission on Human and Peoples’ Rights, Comm No 310/2005 (25 November 2009) [77]–[79] (thirty month delay); Priscilla Njeri Echaria v Kenya, African Commission on Human and Peoples’ Rights, Comm No 375/09 (7 November 2011) [61] (thirty month delay); Article 19 and Others v Zimbabwe, African Commission on Human and Peoples’ Rights, Comm No 305/05 (22 May 2012) [97] (two year delay); Michael Majuru v Zimbabwe, African Commission on Human and Peoples’ Rights, Comm No 308/07 (24 November 2008) [109] (twenty-two month delay); and Farouk Mohamed Ibrahim v Sudan, African Commission on Human and Peoples’ Rights, Comm No 386/10 (18 October 2013) [77] (fifteen months).

37  Pact of San José, Costa Rica (n 1) art 46(2). Rules of Procedure of the Inter-American Commission on Human Rights (adopted 13 November 2009, entered into force 1 August 2013) art 32(2).

38  Florencio Chitay Nech and Others v Guatemala, Report, IACHR No 7/07 (27 February 2007) [57]–[58] (twenty year delay); Jineth Bedoya Lima v Colombia, Report, IACHR No 50/14 (21 July 2014) [45] (one year delay); José Orlando Girlado Barrera and Family v Colombia, Report, IACHR No 17/14 (3 April 2014) [47] (six week delay); Emilia Morales Campos and Jennifer Emilia Morales Campos v Costa Rica, Report on Admissibility, IACHR No 19/14 (3 April 2014) [51] (four month delay); Baptiste Willer and Frédo Guirant v Haiti, Report on Admissibility, IACHR No 21/14 (4 April 2014) [25] (two month delay); Marcelo Fabián Nievas and Family v Argentina, Report, IACHR No 88/13 (4 November 2013) [52] (six year delay); and Nam Qom Indigenous Community of the Qom (Toba) People v Argentina, Report, IACHR No 5/13 (19 March 2013) [41] (seven month delay).

39  Joel Arriaga Navarro v Mexico, Report, IACHR No 174/11 (4 November 2011) [25] (thirty year delay); Iris Martínez and Others v Uruguay, Report, IACHR No 159/10 (1 November 2010) [44] (thirty-four year delay); Aturo García Bran, Erasmo Sánchez Arce, Norman Lind, and Klaus Herold v Guatemala, Report, IACHR No 101/06 (21 October 2006) [34] (twenty year delay); Fernando A Colmenares Castillo v Mexico, Report, IACHR No 36/05 (9 March 2005) [45] (four year delay); Romeel Eduardo Diaz Luna v Peru, Report, IACHR No 85/05 (24 October 2005) [27] (six year delay); and Santos Hernán Galeas González v Honduras, Report, IACHR No 20/02 (27 February 2002) [28] (two year delay).

40  Michael Majuru v Zimbabwe, African Commission on Human and Peoples’ Rights, Comm No 308/07 (24 November 2008) [110]. See also Farouk Mohamed Ibrahim v Sudan, African Commission on Human and Peoples’ Rights, Comm No 386/10 (18 October 2013) [77].

41  Egyptian Initiative for Personal Rights and Interights v Egypt, African Commission on Human and Peoples’ Rights, Comm No 334/06 (1 March 2011) [99].

42  Florencio Chitay Nech and Others v Guatemala, Report, IACHR No 7/07 (27 February 2007) [57]–[58].

43  Ibid [56].

44  Ibid [58].

45  Ibid [59].

46  Note that in other cases the Commission has simply concluded that the delay was ‘reasonable’ without explaining its reasons. See eg Joe Luis Castillo Gonzalez and Others v Venezuela, Report on Admissibility, IACHR No 259/06 (9 March 2007) [46]; Marie Carmel Moise Bley v Haiti, Report on Admissibility, IACHR No 18/04 (26 February 2004) [29].

47  On the precise action that is required for the NAFTA (n 2) see Pope & Talbot v Canada, Preliminary Award (n 23) [13] and Marvin Roy Feldman Karpa v United Mexican States, ICSID Case No ARB(AF)/99/1, Interim Decision on Preliminary Jurisdictional Issues (6 December 2000) [44], holding that the time of the filing of the Notice of Arbitration, and not of the Notice of Intent to Arbitrate, is the time of the ‘claim’ for the purposes of NAFTA arts 1116 and 1117. With regard to the ECHR (n 1) see Rules of Court, European Convention on Human Rights (1 January 2016), Rule 47(6)(a) and Buscarini and Others v San Marino, App no 24645/94 (18 February 1999) [23].

48  Feldman v Mexico (n 2) [63]. But note Grand River v US (n 20) [29], where the tribunal simply repeated the first, categorical statement from Feldman that: ‘Articles 1116(2) and 1117(2) introduced a clear and rigid limitation defence—not subject to any suspension, prolongation or other qualification …’. See also Attorney General of Uganda v Omar Awadh and Others (Appeal Judgment) East African Court of Justice, Appeal No 4/2011 (15 April 2013) [59]: ‘[n]‌owhere does the Treaty provide any power to the Court to extend, to condone, to waive, or to modify the prescribed time limit for any reason …’.

49  Philis v Greece, App no 12750/87 (7 December 1988). See also X v Sweden, App no 3071/67 (7 February 1968); and X v Austria, App no 6317/73 (10 July 1975), where the applicant argued that his application should not be barred even though he filed after the six month window given by the ECHR (n 1) because of: ‘… his bad state of health and morale during the period in question’. Although the Commission rejected this excuse, partly because it: ‘… was not supported by any substantial evidence such as medical reports …’, it did not reject the possibility that the time period could have been interrupted.

50  For example, there is no time limit in the Optional Protocol to the International Covenant on Civil and Political Rights or the Statute of the International Court of Justice.

51  See eg Ann Eulogia Garcia Cadiz (Loretta G Barberie) v Venezuela (5 December 1885), XXIX UNRIAA 293, 298; Gentini Case, X UNRIAA 555, 557; and in a more recent example, Interocean Oil Development Company and Interocean Oil Exploration Company v Nigeria, ICSID Case No ARB/13/20, Decision on Preliminary Objections (29 October 2014) [125].

52  Certain Phosphate Lands in Nauru (Nauru v Australia) (Preliminary Objections) [1992] ICJ Rep 240 [32].

53  Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) (Judgment) (19 December 2005) [2005] ICJ Rep 168 [295].

54  LaGrand (Germany v United States of America) (Judgment) 27 June 2001, [2001] ICJ Rep.

55  For a review of older commentary see Williams’ Case in John Bassett Moore, History and Digest of the International Arbitrations to Which the United States Has Been a Party (US Government Printing Office, Washington 1898) 4181, 4183–93 (Moore, History and Digest).

56  ILC, ‘State Responsibility: International Responsibility, by F. V. Garcia Amador, Special Rapporteur’ (1956 Vol II) UN Doc A/CN.4/96 [189]. See also the Report of the Institute of International Law on General Rules in the Matter of Limitation of Actions in International Relations (August 1925) 19 American Journal of International Law 760.

57  Commissioner Bainbridge in Spader and Others Case (US v Venezuela), Mixed Claims Commission Constituted under the Protocol of 17 February 1903, IX UNRIAA 223 at 224 (Spader and Others Case).

58  See Moore, History and Digest (n 55) 4180.

59  Ibid 4179–80. But see Jackson Ralston, The Law and Procedure of International Tribunals: Being a Résumé of the Views of Arbitrators upon Questions Arising under the Law of Nations and of the Procedure and Practice of International Courts (Rev edn, Stanford University Press 1926) 380; Edwin Montefiore Borchard, The Diplomatic Protection of Citizens Abroad; or the Law of International Claims (Kraus Reprint Co 1970) 831 (Borchard, Diplomatic Protection of Citizens Abroad).

60  H&H Enterprises Investments Inc v Arab Republic of Egypt, ICSID Case No ARB/09/15, Decision on Respondent’s Objections to Jurisdiction (15 June 2012) [86]–[88]. See also SGS Société Générale de Surveillance SA v Republic of Paraguay, ICSID Case No ARB/07/29, Award (10 February 2012) [166]; Alsop Claim (Chile v United States) (5 July 1911), XI UNRIAA 349, 370; Pious Fund Case (United States of America v Mexico) (14 October 1902), IX UNRIAA 1, 13; and Carlos Butterfield Claim (United States of America v Denmark) in Moore, History and Digest (n 55) 1205.

61  Yury Bogdanov v Republic of Moldova, SCC Arbitration No V (114/2009), Award (30 March 2010) [94].

62  For an older example see Spader and Others Case (n 57) 22. More recent examples include Wena Hotels Ltd v Arab Republic of Egypt, ICSID Case No ARB/98/4, Award (8 December 2000) [106]; and Emilio Agustín Maffezini v The Kingdom of Spain, ICSID No ARB/97/7, Award (13 November 2000) [92]–[93].

63  See eg Gobin v Mauritius, CCPR, Comm No 787/1997 (16 July 2001) [6.3]. See also, Rules of Procedure of the Human Rights Committee, CCPR, CCPR/C/3/Rev.8 (22 September 2005) art 96(c). See also M S v The Philippines, CEDAW, Comm No 30/2011 (Separate Opinion of Patricia Schulz) (16 July 2014) [17].

64  See eg Spader and Others Case (n 57) 224.

65  Yakus v United States 321 US 414 (1944) 444.

66  Gentini Case X UNRIAA 555, 557.

67  Black’s Law Dictionary (8th edn, Thomson West 2004) 1220. See also Max Planck Encyclopedia of Public International Law; and Borchard, Diplomatic Protection of Citizens Abroad (n 59) 825.

68  Grand River v US (n 20) [33].

69  L’Institut de Droit International, ‘La prescription libératoire en droit international public’ (La Haye 25 July 1925) art I. My translation is: ‘practical considerations of order, stability and peace, long accepted by arbitral jurisprudence, ensures that extinctive prescription of obligations between States is among the general principles of law recognized by civilized nations that international tribunals are called on to apply’.

70  Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals (Cambridge University Press 1987) 375. However, note Georg Schwarzenberger, International Law: International Law as Applied by International Courts and Tribunals (3rd edn, Stevens and Sons 1957) 570, arguing that customary international law supports the time limit rule. See also A R Ibrahim, ‘The Doctrine of Laches in International Law’ (1997) 83(3) Virginia Law Review 647, 685 (Ibrahim, ‘The Doctrine of Laches’), where Ibrahim criticizes Schwarzenberger’s approach. The rule is more often identified as a general principle of law, including by the 1987 Restatement (Third) of the Foreign Relations Law of the United States at §102.

71  Stevenson Case (1903), IX UNRIAA 385, 386. Indeed, several claims that challenged acts that occurred a long time before have been barred. See eg Williams’ Case in Moore, History and Digest (n 55) 4181 (delay of twenty-eight years); Ann Eulogia Garcia Cadiz (Loretta G Barberie) v Venezuela (5 December 1885), XXIX UNRIAA 293, 293 (delay of fifty-seven years); Mechanic Case in Moore, History and Digest (n 55) 3210 (delay of thirty-three years); Gentini Case (1903) X UNRIAA 555 (delay of thirty-two years); and Spader and Others Case (n 57) 223 (delay of forty-three years).

72  Christopher Greenwood (ed), International Law Reports: Annual Digest of Public International Law Cases 1925–1926 (Cambridge University Press 2003) 246. Tribunals have also refused to bar claims delayed thirty-one years (Tagliaferro Case (1903) X RIAA 593) and thirty-two years (Giacopini Case (1903) X RIAA 594).

73  See Cheng, General Principles of Law as Applied by International Courts and Tribunals (n 70) 375, 381. ‘Laches’ means ‘slack’ in French and is defined by Black’s Law Dictionary (n 67) 891: ‘[as] [u]‌nreasonable delay in pursuing a right or claim—almost always an equitable one—in a way that prejudices the party against whom relief is sought’. The term is used interchangeably with the term ‘extinctive prescription’ in Ibrahim, ‘The Doctrine of Laches’ (n 70). See also Marjorie Whiteman, Damages In International Law (Vol 2, United States Government Printing Office 1937) 236; and Sadie Blanchard, ‘State Consent, Temporal Jurisdiction, and the Importation of Continuing Circumstances Analysis into International Investment Arbitration’ (2011) 10(3) Washington University Global Studies Law Review 419, 459.

74  Nordzucker AG v Republic of Poland, UNCITRAL, Partial Award on Jurisdiction (10 December 2008) [223], emphasis added.

75  Ioannis Kardassopoulos and Ron Fuchs v Republic of Georgia, ICSID Case Nos ARB/05/18 and ARB/07/15, Award (3 March 2010) [259] (Ioannis Kardassopoulos v Georgia).

76  Ibid [261].

77  Ibid [263]. See also Borchard, Diplomatic Protection of Citizen Abroad (n 59) 828–829; Ibrahim, ‘The Doctrine of Laches’ (n 70) 678; Certain Phosphate Lands in Nauru (Nauru v Australia) (Preliminary Objections) [1992] ICJ Rep 240 [36]; Chamizal Case (Mexico v United States) (15 June 1911) XI UNRIAA 309, 329.

78  Ioannis Kardassopoulos v Georgia (n 75) [265].

79  Ibid [264].

80  Wena Hotels Ltd v Arab Republic of Egypt, ICSID Case No ARB/98/4, Award (8 December 2000) [104]. See also Ioannis Kardassopoulos v Georgia (n 75) [267]. Note also that several international tribunals have explained that preventing prejudice to the respondent due to an absence of evidence is a primary reason to bar old claims: for example, Bergauer and Others v Czech Republic, App no 17120/04 (13 December 2005); Vannessa Ventures Ltd v Bolivarian Republic of Venezuela, ICSID Case No ARB(AF)/04/6, Decision on Jurisdiction (22 August 2008) 31.

81  See eg Giacopini Case (1960) X RIAA 594. See also Ralston, The Law and Procedure of International Tribunals (n 59) 380.

82  Tagliaferro Case (1960) X RIAA 593.

83  Ibid.

84  Jan Wouters and Sten Verhoeven, ‘Extinctive Prescription’ in Max Planck Encyclopedia of Public International Law Online (Oxford University Press 2012) [8]‌.

85  See Schwarzenberger, International Law (n 70) 566. Contrast with Ibrahim, ‘The Doctrine of Laches’ (n 70) 650; Ian Brownlie, Principles of Public International Law (5th edn, Clarendon Press 1998) 507; and John Simpson and Hazel Fox, International Arbitration Law and Practice (Stevens & Sons 1959) 126.

86  Christian Tams, ‘Waiver, Acquiescence and Extinctive Prescription’ in James Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge University Press 2002) 21.

87  On the principle of ‘acquiescence’ in international law, generally, see Ibrahim, ‘The Doctrine of Laches’ (n 70) 652; Nuno Sérgio Marques Antunes, ‘Acquiescence’ in Max Planck Encyclopedia of Public International Law Online (Oxford University Press 2012) and the decisions and commentary referred to there. See also Black’s Law Dictionary (n 67) 25, which defines ‘acquiescence’ as: ‘Passivity and inaction on foreign claims that, according to customary international law, usu. call for protest to assert, preserve, or safeguard rights. The result is that binding legal effect is given to silence and inaction’.

88  See Crawford, The International Law Commission’s Articles on State Responsibility (n 86) 267.

89  Ibid 268.

90  Note also that some domestic laws remove limitation periods for the gravest crimes: eg, 18 USC § 3281 (2006): ‘An indictment for any offense punishable by death may be found at any time without limitation’; New York Criminal Procedural Law, § 30.10; New Jersey Stat. § 2C:1-6(a); and Ontario’s Limitations Act, 2002, SO 2002, c 24 Sched B, s 16(1): ‘There is no limitation period in respect of, … (h) a proceeding arising from a sexual assault if at the time of the assault one of the parties to it had charge of the person assaulted, was in a position of trust or authority in relation to the person or was someone on whom he or she was dependent, whether financially or otherwise’.

91  Note also that in their arbitration of the mid-nineteenth century concerning the ship called the Macedonian the US and Chile instructed the arbitrator not to consider if the claim was time barred: Macedonian (US) v Chile (10 November 1858), Moore’s Arb. 1449, 1461.

92  Freidl Weiss, ‘Time Limits for the Prosecution of Crimes Against International Law’ (1982) 53(1) British Yearbook of International Law 162, 194.

93  Merrill and Ring Forestry LP v Government of Canada, UNCITRAL, Opinion of W Michael Reisman with Respect to the Effect of NAFTA art 1116(2) on Merrill & Ring’s Claim (22 April 2008) [48]. See also J Fawcett, ‘A Time Limit for Punishment of War Crimes’ (1965) 14(2) International and Comparative Law Quarterly 627; Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law Volume I: Rules (Cambridge University Press 2005) rule 160: ‘Statutes of limitation may not apply to war crimes’. See also the references at pp 614–18.

94  Almonacid-Arellano and Others v Chile, Judgment, IACtHR (Series C) No 145 (26 September 2006).

95  Ibid [151]–[153].