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31 Brit. Y.B. Int'l L. 143 (1954)
The Scope of Acquiescence in International Law

handle is hein.journals/byrint31 and id is 149 raw text is: THE SCOPE OF ACQUIESCENCE IN INTERNATIONAL LAW By I. C. MACGIBBON, M.A., LL.B. (EDINBURGH) Meaning of the term 'acquiescence' ACQUIESCENCE, in the accepted dictionary sense of tacit agreement or con- sent, is essentially a negative concept. In the present article it is used to describe the inaction of a State which is faced with a situation constituting a threat to or infringement of its rights: it is not intended to connote the forms in which a State may signify its consent or approval in a positive fashion. Acquiescence thus takes the form of silence or absence of protest in circumstances which generally call for a positive reaction signifying an objection. The scope of the doctrine of acquiescence Rights which have been acquired in clear conformity with existing law have no need of the doctrine of acquiescence to confirm their validity. However, the line which divides conduct which international law permits from that which it prohibits is in many cases not susceptible of precise delimitation. A course of action which in one period may have been ex- pressly prohibited may, by dint of its continued repetition coupled with the consent of other States, be acceptable under the rules obtaining in a later period. It is not surprising that, in a system of law which is not fully developed, the extent to which a novel practice may be regarded as being in conformity with existing law should be unpredictable. In the absence of a satisfactory compulsory procedure for authoritative judicial ascertain- ment the legality of such practices may depend upon the measure in which they enjoy the express approval of other States, or, in the course of time, their acquiescence. Tribunals may be called upon to resolve the conflict inherent in the rival claims to consideration of the maxims ab injuria jus non oritur and exfactisjus oritur. It is the purpose of this article to indicate the circumstances in which the doctrine of acquiescence may assist in this reconciliation. Acquiescence operates in the sphere to which the maxim ex injuria jus non oritur is least applicable, that is, where the vindication of a claim or course of action depends on the consent of the States affected. The pre- sumption of consent which may be raised by silence is strengthened in proportion to the length of the period during which the silence is main- tained. The passage of time is an essential element in prescriptive and historic rights; in the formation of rules of customary international law it

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