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The Doctrine of Intertemporal Law

Published online by Cambridge University Press:  27 February 2017

T. O. Elias
T. O. Elias*
Affiliation:
International Court of Justice
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Extract

After the break-up of western Christendom following the Treaty of Westphalia of 1648, a number of historical changes took place in customary international law. One of the most important changes, if not the most important, was the emergence of the nation-state and the political philosophy to which it gave rise, that is to say, the theory of political sovereignty as the cornerstone of the rights and duties of the various states that came into existence. The political sovereignty of states resulted in the gradual replacement of the old international relations within Christendom, which were based upon a theocratic system of law, by a wider legal system that later embraced nations outside Christendom and engendered a universalization of international relations and, therefore, of international law.

Type
Research Article
Information
American Journal of International Law , Volume 74 , Issue 2 , April 1980 , pp. 285 - 307
Copyright
Copyright © American Society of International Law 1980

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References

1 See, e.g., G. Schwarzenberger's Manual of International Law, at p. 559, where the author says that international intertemporal law is the “determination of international law at successive periods in their application of a particular case.”

2 W. Friedmann, the Changing Structure of International Law 130-31 (1964).

3 Compare, e.g., H. Lauterpacht, The Function of Law in the International Community, 283-85 (1933); G. Schwarzenberger's International Law: International Law as Applied by International Courts and Tribunals I, at 21-24 (3d ed. 1957); R. Jennings, the Acquisition of Territory in International Law 28-31 (1963); Waldock, Disputed Sovereignty in the Falkland Islands Dependencies, 25 Brit. Y.B. INT'L L. 311, 320 ff. (1948); W. Blum, Historic Titles in International Law 194 (1965). 285

4 The Grisbadarna Case (Norway, Sweden), Hague Ct. Rep. (Scott) 121 (Perm. Ct. Arb. 1909), 4 AJIL 226 (1910); for the original French version, see Hague Ct. Rep. (Scott) at 487, or 11 R. Int'l Arb. Awards 155.

5 The North Atlantic Coast Fisheries Case (Great Britain, United States of America), 11 R. Int'l Arb. Awards 167, 196 (Perm. Ct. Arb. 1910).

6 Island of Palmas Case (Netherlands, United States), 2 R. Int'l Arb. Awards 831, 845.

7 Ibid.

8 Jessup, The Palmas Island Arbitration, 22 AJIL 735 (1928).

9 W. Vebsfelt, The Miangas Arbitration 14-16 and also 149 (1933).

10 This is the view expressed by Ian Brownlie in Principles of Public International Law (2d ed. 1973) at pp. 132-33

11 2 R. Int'l Arb. Awards 845

12 Id. at 839.

13 A. G. Roche, The Minquiers And Ecrehos Case 83 (1959).

14 Vienna Convention on the Law of Treaties, UN Doc. A/CONF.39/27 (1969), reprinted in 63 AJIL 875 (1969), 8 ILM 679 (1969).

15 Ambatielos Case (Greece v. United Kingdom), Preliminary Objection, [1952] ICJ Rep. 27, 40.

16 Alabama Claims Arbitration, 1872 (Great Britain v. United States), 1 J. Wetter, The International Arbitral Process 48 (1979).

17 [1952] ICJ Rep. 40.

18 [1924] PCIJ, ser. A. No. 2.

19 Id . at 34.

20 Hague Ct. Rep. (Scott) 127, 4 AJIL 231 (1910).

21 Fisheries Case (United Kingdom v. Norway), [1951] ICJ Rep. 116 et seq.

22 Id. at 142.

23 The Minquiers and Ecrehos Case (France/United Kingdom), [1953] ICJ Rep. 47.

24 See [1953] ICJ Rep. 53-56.

The Minquiers and Ecrehos case, it may be noted, posed the question of temporal conflict of laws, because both sides based their case on what they believed was the prevailing rule at the time when the rights claimed had been created. Both agreed that the case was one to which the intertemporal law should be applied. The Court would appear to have agreed to such a conclusion when it said:

[E]ven if the Kings of France did have an originalߪ titleߪ in respect of the Channel Islands, such a title must have lapsed as a consequence of the events of the year 1204 and following years. Such an alleged originalߪ title of the Kings of France in respect of the Channel Islands could to-day produce no legal effect, unless it had been replaced by another title valid according to the law of the time of replacement. [1953] ICJ Rep. 56; see also pp. 60-62.

25 A. G. Roche, supra note 13, at 83.

26 Jessup, supra note 8, at 740. See also Versfelt, supra note 9, at 14-16.

27 It seems as if Judge Huber himself was in doubt in the Island of Palmas award as to whether the United States's title was inchoate, as having been derived from theprobably inchoate title of Spain.

28 North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmarkand Federal Republic of Germany v. the Netherlands), [1969] ICJ Rep. 3, 44, para. 74.

29 [1977] 1 All E.R. 881, reprinted in 16 ILM 471 (1977).

30 Owners of the Ship Philippine Admiral v. Wallem Shipping (Hong Kong) Ltd., [1976] 2 W.L.R. 214, [1976] 1 All E.R. 78, reprinted in 15 ILM 133 (1976).

31 This is a departure from the rule of absolute sovereign immunity as adumbrated in The Parlement Belge ([1880] 5 P.D.197) and The Porto Alexandre ([1920] P. 30).

32 [19771 2 W.L.R. 365-66.

33 Id. at 366.

34 Letter of May 19, 1952, addressed to Acting Attorney General Philip B. Perlman by the Acting Legal Adviser of the Department of State, Jack B. Tate, 26 Dep'T State Bull. 984 (1952).

35 [1977] 2 W.L.R. at 367, citing 425 U.S. 682, 698 (1976) (the date of the “attached” ; letter referred to by the Supreme Court was November 26).

36 [1977] 2 W.L.R. 369, citing [1976] New Juristic Weekly J. 1044; the German case, Nonresident Petitioner v. Central Bank of Nigeria, is reprinted at 16 ILM 501 (1977).

37 Aegean Sea Continental Shelf Case (Greece v. Turkey), [1978] ICJ Rep. 1.

38 We shall not touch this second ground of jurisdiction here invoked by Greece as no problem of intertemporal law is involved.

39 This should not delay us, as it is not in question in the case.

40 Translation quoted by Court, [1978] ICJ Rep. 20-21, para. 48.

41 Id. at 29, para. 71.

42 Id. at 31, para. 74.

43 Id. at 31, para. 75.

44 Id. at 32, para. 77.

45 [1951] I.L.R. 144, 152.

46 [1978] ICJ Rep. 32, para. 77

47 Ibid.

48 ibid.

49 Id. at 33,para. 78.

50 Ibid.

51 Ibid.

52 Id. at 33, para. 79.

53 Id. at 33-34, para. 80.

54 Id. at 34, para. 80.

55 Per contra de Castro:

It is not at the level of interpretation that the evolution of law can have consequences but at another level: if a new peremptory norm (jus cogens) emerges, tiie [Vienna] Convention considers that any existing treaty which is in conflict with that norm becomes void and terminates (Art. 64).

It therefore seems permissible to conclude that the task of interpretation is to verify what was or could have been the will of Greece in 1931 when it used the expression “territorial status” in reservation (b) to its accession to the General Act. The function of intertemporal law is different; it is by the operation of the rules of intertemporal law that new sovereign or exclusive rights over the continental shelf have been attributed to Greece and Turkey [1978] ICJ Rep.

68 (footnote omitted)

56 Id. at 35, para. 83

57 The Greek Government's argument was that there could be no question of the applicability of reservation (b) with respect to the present dispute. (See text at notes 45 and 46.) The Court, however, did not find this argument convincing.

58 [1964] 2 Y.B. Int'l L. Comm'n 199

59 Case Concerning Rights of Nationals of the United States of America in Morocco (France v. United States of America), [1952] ICJ Rep. 176, 189.

60 [1964] 2 Y.B. Int'l L. Comm'n 202.

61 Id. at 203.

62 See id. at 202.

63 [1966] 2 Y.B. Int'l L. Comm'n 222.

64 Ibid.

65 Ibid.

66 Article 27 on General Rule of Interpretation, para. 3, id. at 218.

67 Id. at 222, para. 16.

68 Id. at 211.

69 [1952] ICJ Rep. 40.

70 [1924] PCIJ, ser. A, No.

71 B. Jennings, supra note 3, at 30.

72 H. Lauterpacht, supra note 3, at 284.

73 In order to appreciate the reference to earlier writers we would do well to refer to J. Westlake, 1 International Law 114 (2d ed. 1910-13); C. C. Hyde, 1 International Law 320 n.5 and 329 n.27 (2d rev. ed. 1945); G. H. Hackworth, 1 Digest of International Law 393-95 (1940); M. F. Lindley, Acquisition and Government of Backward Territory in International Law, at v-vi (1926), quoted in Hackworth at 395-96.

74 H. Lauterpacht, supra note 3, at 284.

75 In his Principles Of Public International Law, supra note 11, at 132

76 G. Schwarzenberger, supra note 3, at 21-24. Veloz-Mariana and Other Ships (1852) is cited at id., p. 23.

77 [1952] ICJ Rep. 189.

78 ? [1953] ICJ Rep. 56.

79 There has been some argument as to whether or not the examination of feudal law by the Court should be interpreted as an application of this law. Verzijl seems ti to hold the view that the Court in fact applied feudal law in this case. Verzijl, Territorial Controversies before the International Court of Justice, 1 Netherlands Int'L L, Rev. 356, 362 (1953-54). See also id. at 234-68 and 356-64; and Verzijl, La validity et la nullits des actes juridiques internationaux, 15 Rev. Droit Int'L 284-339 (1935). Roche, on the other hand, thinks that what the Court did in this case merely amounts to “ascertaining as a fact the content of another system of law.” See A. G. Roche, supra note 13, at 81 n.5.

80 See G. Schwarzenberger, supra note 3, at 23-24.