Limitation period is a common concept in domestic law systems, both in civil law and common law traditions even if its implementation differs across jurisdictions. However, this widespread domestic practice does not appear to have found a parallel in the realm of public international law. Without prejudice to conventions governing private international law relationships—such as those applicable to international trade—treaties dealing with inter-State relations in public international law do not seem to incorporate the concept of limitation period.
Prima facie, we see that neither the ICJ Statute nor any other international convention governing public international law relations between states contains a provision regarding limitation periods or their duration. That leaves us to search for a legal basis for the concept of limitation period in other sources of international law, either as customary international law or a general principle.
This post will briefly analyze the questions surrounding the limitation period doctrine alongside the ICJ jurisprudence.
Customary International Law and General Principles
1. Customary International Law
While there has been doctrinal debate over the existence of a customary rule of prescription, particularly in the context of territorial acquisition, this concept must be clearly distinguished from that of extinctive limitation periods.
Prescription, which may confer title over time through acquiescence or effective control, has occasionally been recognized as a customary rule – albeit one whose relevance has significantly diminished in contemporary international law. (see, Palmas Island Arbitration)
In contrast, extinctive limitation periods, which simply extinguish a legal claim after a certain period, do not enjoy similar status. There is neither consistent and widespread state practice nor a corresponding opinio iuris to support the existence of a customary international rule on extinctive limitation. Since the states have invoked extinctive limitation as a defense before the ICJ and other international courts only on a few occasions, it is clear that there has been neither consistent and widespread State practice in this regard, nor sufficient evidence of opinio iuris.
2. General Principles of Law
Although the concept of limitation periods is common in domestic legal systems, this fact alone may not be sufficient to qualify it as a general principle of law.
It is quite rare to see States invoking limitation periods as a defense argument before international courts such as the ICJ, the ECtHR, or other tribunals. Even when this argument is raised, the ICJ has typically remained silent (see, Barcelona Traction) or addressed the issue indirectly by referring to other general principles such as legal certainty, fairness of proceedings, or good faith.
In the only case where the potential effect of limitation periods was acknowledged – Nauru v. Australia (1992) – the concept was not directly addressed, and additional conditions were required for it to produce legal consequences.
Likewise, there is no clear and consistent position in legal doctrine supporting the classification of limitation periods as a general principle of law.
There are various views on the methodology that should be applied to determine whether a concept qualifies as a general principle. The most comprehensive framework in this regard is compiled in the 2021 ILC Report (72nd Session), particularly in Chapter VIII, which addresses the topic of general principles of law. According to the report, a general principle of law may emerge through two distinct procedures, as outlined in Draft Conclusions 4–6 and Draft Conclusion 7.
2.1. Draft Conclusions 4-6
This report sets out a two-stage test for identifying general principles of law (see Draft Conclusions 3 and 4):
(1) a test of commonality among national legal systems, and
(2) a test of transposability into the international legal system.
- Test of “Commonality”
According to draft conclusion article 5 and paragraph 184 of the ILC Report, for a concept to qualify as a general principle of law, a comparative analysis of national legal systems must be conducted for determining “commonality”. This analysis must demonstrate that the principle in question is common to different legal families and various regions of the world. Such a comparative assessment is to be carried out based on national legislation and decisions of national courts. (For discussions about the method of comparison, see para. 201-202) In paragraph 184, subparagraph (e), the ILC proposes the following for determining the result of the test: “The test of commonality was relatively straightforward, consisting of comparing existing rules in national legal systems and identifying the legal principle common to them”
This phrase confines the applicability of a concept, in the event that it is recognized as a general principle, to the rules and characteristics that can be commonly identified across national legal systems. However, at the same time, describing the test as “relatively straightforward” also reflects an intention for the test to be flexible and practically applicable. In summary, the Commission focuses on the common elements in practice but does not require a strict or rigid uniformity in identifying those features.
When subjected to the commonality test, the concept of limitation periods is found to exist in a wide and representative range of domestic legal systems. However, identifying the common features of the concept proves to be particularly challenging.
There is no uniformity in either the manner of application (such as its effects, legal classification or procedural implementation) or the duration of limitation periods: none between the limitation periods applicable to criminal and civil matters, nor is there consistency in the time-limits for various torts and contractual breaches, which vary significantly across legal systems. The differences between common law and civil law traditions are clear in this regard; indeed, even within civil law jurisdictions, a unified approach is non-existent.
Furthermore, there is no consensus on the legal nature of limitation periods. Some systems – particularly in common law – treat limitation periods as purely procedural, while others recognize that they may also have substantive consequences. This fundamental difference reflects divergent goals and “essences” of the same legal concept. The common law system views limitation periods as strictly procedural, aiming to ensure legal certainty and court efficiency, while the civil law tradition treats them as substantive in nature and links them to public order. Because of this lack of formal and substantive coherence, it is particularly difficult to determine how the principle of limitation periods would apply as a general principle of law.
When examining the differences in the application of the concept, aspects such as the duration of the period or its starting point may fall outside the scope of the “relatively straightforward” analysis referred to in Draft Conclusion 5, as they do not alter the essence or purpose of the concept.
However, variations concerning the legal nature of the limitation period – particularly whether it gives rise to procedural or substantive consequences – reflect a deeper divergence that does affect the essence of the principle.
A helpful comparison for understanding the approach of ICJ is the recognition of estoppel as a general principle. Despite being a concept developed within common law, estoppel has been accepted as a general principle due to its functional equivalence to doctrines in other systems, such as good faith or legitimate expectations. (see, North Sea Continental Shelf Case, 1969) While the terminology differs, the function and purpose of these doctrines converge, allowing the Court to adopt a functional rather than a formal approach in identifying general principles.
According to this approach, when the concept is interpreted considering its underlying purpose, it becomes increasingly difficult to evaluate the limitation period as a general principle of law, since it is hard to identify a truly wide, representative, and common core across legal systems. In result, it is unclear how to apply a sustainable model of limitation period as a general principle.
- Test of “Transposability”
The applicability of the concept as a general principle within international law remains limited. As discussed above, when attempting to apply limitation periods as a general principle of law, it appears difficult – if not impossible – to determine a common purpose and a shared consequence (whether procedural or substantive) across legal systems.
Moreover, international law is based on mechanisms that encourage the peaceful settlement of disputes through diplomatic means. Diplomatic negotiations are, by their nature, long and complex processes. In some cases, no resolution is reached, and the dispute may be postponed indefinitely. So, recognizing limitation periods as a general principle would discourage states from engaging in such diplomatic processes due to fear that the limitation period may expire.
2.2. Draft Conclusion 7
The recognition of limitation periods as a general principle of law through the approach set out in Draft Conclusions 4–6 appears unlikely. At this point, the alternative test that may be applicable is provided in Draft Conclusion 7.
As noted in paragraph 194 of the Commission’s report, although there is no hierarchy among the sources of international law, general principles are considered to have a subsidiary or supplementary character. These principles are designed to fill gaps in international law and to resolve situations of non liquet. (see also, Draft Conclusions 10 & 11)
For resolving non liquet situations, Draft Conclusion 7 affirms that, in addition to general principles derived from domestic legal systems, the international legal system itself may give rise to general principles. However, for such a principle to exist and have legal content, it must be recognized by the community of nations as intrinsic to the international legal system. In this context, “intrinsic” means that the principle must be inherent to the functioning and coherence of the international legal system itself, rather than imported from domestic practice. Besides, the concept must additionally satisfy the requirement of recognition by the community of nations.
Furthermore, paragraph 210, which elaborates on this draft conclusion, observes that with the increasing maturity and complexity of international law, there is a declining reliance on general principles derived from domestic legal systems. Therefore, intrinsic concepts should no longer be defined as narrowly as in the past, but rather interpreted independently in view of the evolving needs of international law.
For limitation periods to be recognized as a general principle of law through this route, it must be examined whether they are considered intrinsic to the international legal system by the community of nations.
At this point, we may examine the statute of a concept as general principle by the Conventions of customary status or those that have been widely ratified, widely ratified treaties, records of the General Assembly, jurisprudence and the arguments submitted before international courts.
- Conventions and Customs:
Due to the absence of a rule on limitation periods in both conventions and customary international law, it may be argued that this issue gives rise to a potential non liquet.
Although no explicit rule on limitation periods exists, international law explicitly prohibits the application of limitation periods to certain crimes. Article 1 of the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity (1968) states that no limitation period shall apply to genocide, war crimes, and crimes against humanity—both in terms of prosecution and enforcement. In addition, Article 29 of the Rome Statute affirms that limitation periods shall not apply to crimes within the jurisdiction of the International Criminal Court.
This express exclusion of limitation periods in certain circumstances may seem to imply, by argumentum e contrario, that limitation could apply in other cases.
- Other Indicators:
The fact that states rarely invoke limitation periods as a defense in proceedings before the Court may indicate the absence of an “intrinsic” consensus among the community of nations on this matter.
However, it may also be argued that only a small portion of the cases brought before the Court involve disputes submitted after a significantly long period of time, which suggests that States tend to avoid referring prolonged disputes to the Court in the first place.
Still, the recognition of limitation periods as a general principle through this route remains unpersuasive.
The ICJ Jurisprudence
Following these assessments, the final issue to be examined in this post is the jurisprudence of the ICJ concerning limitation periods.
The invocation of limitation periods as a procedural defense before the ICJ is relatively rare, and even in these rare cases, States often refrain from explicitly referring to limitation and instead invoke it implicitly.
In the Barcelona Traction (1970) case, Spain argued (see, page 14-15) that Belgium, by initiating proceedings after an excessive delay, had committed an abuse of process. However, the ICJ did not directly address this argument, choosing instead to base its decision on the rules of diplomatic protection. Even in that case, Spain’s argument was not framed strictly in terms of a limitation period and was supported by other claims.
The only case in which the ICJ directly addressed the concept of limitation was Certain Phosphate Lands in Nauru (Nauru v. Australia, 1992). In this case, Australia, as the respondent State, argued (see, para. 31) that bringing the claim after over 20 years after the events constituted a “delayed invocation of responsibility.” Accordingly, allowing Nauru to proceed with the case would undermine “procedural fairness” and amount to an “abuse of rights.” Once again, we observe that the respondent State refrained from invoking the concept of “limitation” directly and instead relied on implicit legal arguments. Yet this time, the ICJ explicitly clarified the legal relevance of time or delay in adjudication.
The Court addressed the potential inadmissibility of the claim as follows: “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.” (see, para. 32)
Accordingly, delay may constitute a ground of inadmissibility even without a treaty-based time-limit. However, in the absence of a specific time-limit under international law, the Court cannot declare a claim inadmissible without first examining the merits; thus, the limitation period cannot function as a procedural bar preventing access to the merits.
In examining the merits, the Court noted that Nauru’s unilateral declarations and its efforts to engage in negotiations with Australia effectively precluded the application of any limitation period. (see, paras. 32–36) Although the limitation defense was not upheld, the Court emphasized two key considerations (see, para.36):
“…Nevertheless, it will be for the Court, in due time, to ensure that Nauru’s delay in seising it will in no way cause prejudice to Australia with regard to both the establishment of the facts and the determination of the content of the applicable law.” In other words, the Court undertook to ensure that Australia would not be disadvantaged by the delay – particularly in those two areas.
Accordingly, the ICJ acknowledges that the passage of time may become legally relevant where the integrity of evidence is compromised, witness testimony is inaccessible, the conditions for a fair hearing are undermined, or the factual context has significantly deteriorated.
The ICJ’s cautious approach has also influenced the International Law Commission’s treatment of limitation periods. In its commentary to Article 13 of the ARSIWA, the Commission cited paragraph 36 of the Nauru judgment and emphasized that the mere passage of time does not constitute laches and, therefore, cannot by itself render a claim inadmissible.
Similarly, in its commentaries on Articles 44 and 45, the Commission again referred to the Nauru case, analyzing the implied waiver of rights through acquiescence—just as the ICJ had done in paragraphs 32 to 36 of its judgment.
Both bodies reaffirm that time alone is insufficient to invalidate a claim without first examining the merits. However, where a delay clearly exceeds what may be deemed reasonable, it must also meet an additional threshold—such as creating procedural unfairness or undermining legal certainty—to justify a finding of inadmissibility.
In summary, the Court does not consider the mere passage of time as a procedural bar to proceed to the merits. Rather, it assesses the consequences of delay not under the heading of limitation, but within the framework of fundamental principles such as the right to a fair hearing and legal certainty. That said, where judicial efficiency or legal certainty is threatened, the passage of time may still lead to an implied waiver of rights. Unless a specific time-limit is provided for in a treaty, this period remains indeterminate, and it is for the Court to assess, based on the circumstances of the case, whether the delay affects admissibility.
Conclusion
Limitation periods are not explicitly recognized by the ICJ as a general principle of law. However, in the Nauru case, the Court did attribute a certain effect to the passage of time, suggesting that, even in the absence of a specific treaty provision, undue delay may render an application inadmissible. This reasoning arguably reflects a binding dimension as well, particularly given that it aligns with a notion also found in ARSIWA, many provisions of which have attained customary status. However, the state practice is insufficient to reach that conclusion.
Although the Court substitutes limitation with other legal concepts, ICJ’s reliance on procedural fairness and legal certainty effectively gives rise to a sui generis principle of time-related admissibility control.
For this reason, accepting the effects of limitation periods implicitly amounts to recognizing the concept as a general principle of law, as there would otherwise be no alternative legal basis for such effects.
In modelling its approach to limitation periods, The ICJ adopts an approach more closely aligned with the Common Law tradition. Similar to the doctrine of limitations in Common Law systems, the ICJ’s model is not designed to produce substantive legal consequences. Rather than extinguishing the underlying right, it focuses on procedural concerns such as legal certainty and the reliability of adjudication. As in Common Law, the rationale behind the time-related assessment before the Court is rooted in the protection of procedural fairness and legal predictability, not in the nullification of the claim itself.
However, the ICJ’s approach to limitation exhibits several features that clearly distinguish it from both common law and civil law traditions. For instance, the mere passage of time does not bar the Court from examining the merits of a case; there is no fixed statutory period, but rather a flexible “reasonable time” standard, which is further conditioned by additional contextual factors. These elements reflect the unique character of the ICJ’s model.
This notable divergence and originality suggest that the notion of limitation has been applied “in so far as it is compatible with the international legal system.” In this regard, the method suggested in Draft Conclusion 7 provides the most appropriate route for grounding such unique features. As previously discussed, international law constitutes a normative order that is, by its nature, distinct from domestic systems – capable of generating its own general principles where domestic concepts fail to resolve non liquet situations. It responds to different needs and dynamics and increasingly operates independently from domestic legal frameworks. Even though the recognition as “intrinsic” feature of the concept by community of nations may be moderately weak, Given the increasing number of disputes brought before the ICJ, it is possible that the concept of limitation is needed to fill the gaps, as was the case in the Nauru judgment.
Therefore, defining the limitation period as a general principle of law based on the method set out in Draft Conclusion 7 could be a step toward enhancing the coherence and effectiveness of international law in the future.
