Time limitations in international justice: doctrine and practice

Abstract

The article examines the approaches elaborated in the decisions of international courts and arbitration tribunals as well as in the writings of the researchers in international law towards stale claims, i.e. claims submitted after a passage of considerable time. The courts and arbitration tribunals dealing with the stale claims applied the doctrine of extinctive prescription as a tool to deny such claims in case where the applicable international treaty does not contain any fixed rime limits. Nevertheless, current practice reveals that the status of the doctrine of extinctive prescription as one of the principles of International law remains vague and problematic due the position of the International Law Commission reflected in its Commentary to the Draft of the Articles of state responsibility for internationally wrongful acts and some recent decision of the investment arbitration tribunals. It’s argued that the treaty-based time limitations appear in all cases of establishment of the permanent courts with compulsory jurisdiction and access of private persons. One of main rationale for such time limitations is a necessity to ensure legal certainty and procedural fairness. A current practice of the modern international courts especially of the courts of the regional integration and human rights courts shows a high degree of convergence that in full analogy with national legal systems there are different treaty-based time limitations for different claims and different types of claimants.