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The Application of the Doctrine of Intertemporality in Contentious Proceedings
Schriften zum Völkerrecht, Vol. 245
(2021)
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Having commenced his studies in Hamburg in 2007, Edward Martin has spent an exchange year in Paris I, Panthéon-Sorbonne in 2010, where he attended the specialization courses in international law. After returning to Germany, he attended the specialization course in International Law at the Humboldt University of Berlin from 2011-2012, where he also had the privilege of working as a student assistant at the chair of Prof. Dr Georg Nolte. After an internship at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg, Edward Martin returned to Hamburg, where he completed his first and second state examination.Abstract
The doctrine of intertemporality prohibits the retroactive application of norms of international law in contentious proceedings and obliges the deciding court to positively ascertain the applicable historic rules. In situations in which the historic interaction between a European and a non-European entity needs to be litigated, problems arise. International law is lacking a universally recognised methodology, particularly regarding its unwritten rules. Also, the historic non-European peoples were often relied on oral tradition and did not produce any documentary evidence of their historic legal orders. Historically, different regions of the world produced independent legal regimes. »Meta law« governing the interactions between entities of different regimes was non-existent since no regional order did claim global rule. Hence there were no rules governing the interactions between European and non-European entities.The applicable historic law is presently ascertained by recourse to specific European phenomena. In contentious proceedings, this methodology leads to a situation of »différend« - a situation in which the method of solving the dispute already vindicates the position of one of the parties to the dispute.
Table of Contents
| Section Title | Page | Action | Price |
|---|---|---|---|
| Preface | 5 | ||
| Inhaltsverzeichnis | 7 | ||
| List of Abbreviations | 10 | ||
| A. Introduction | 11 | ||
| I. Intertemporality as a Problem | 13 | ||
| II. Distinguishing the Principle of Non-Retroactivity from Positively Ascertaining Historic Rules | 14 | ||
| III. Outlining the Research Thesis | 15 | ||
| IV. Current Relevance of the Doctrine of Intertemporality | 19 | ||
| B. International Courts and History – The Problem of “Différend” | 20 | ||
| C. The Problem of Method in International Law | 23 | ||
| I. General Methodology in International Law | 23 | ||
| II. Methodology of International Legal History | 23 | ||
| D. Preconceptions in the History of International Law | 25 | ||
| I. Subjects | 26 | ||
| II. Sources | 28 | ||
| III. Genealogy | 29 | ||
| IV. Conclusion | 30 | ||
| E. Problems Ascertaining Historic Law from the Viewpoint of Historiography | 32 | ||
| I. General Problems in Historiography | 32 | ||
| 1. “Ideengeschichte” and its Methodology | 33 | ||
| a) Selection of Material | 34 | ||
| b) Interpreting the Material | 34 | ||
| c) The Problem of Context | 36 | ||
| d) The Problem of Oral Tradition | 38 | ||
| aa) Oral Tradition as a Source | 39 | ||
| bb) Oral Tradition as the Foundational Framework of a Society | 42 | ||
| 2. Conclusion | 44 | ||
| II. The Problematic Historiography in Cameroon v. Nigeria | 45 | ||
| III. Conclusion | 47 | ||
| F. Juridical Difficulties Ascertaining Historic Law and the Problem of Normativity | 48 | ||
| I. Problems in the Ascertainment Process | 48 | ||
| 1. The Problem of Historic Subjects | 49 | ||
| a) General Problems of Identifying Historic Subjects of International Law | 49 | ||
| b) International Legal Personality in the Cameroon v. Nigeria Case | 52 | ||
| c) Conclusion | 56 | ||
| 2. The Problem of Historic Legal Sources | 56 | ||
| a) General Problems in Identifying of Historic Legal Sources | 57 | ||
| b) The Peculiar Relationship between Historic Sources, the Doctrine of Intertemporality and Art. 38 (1) ICJ-Statute | 60 | ||
| c) Legal Sources in the Cameroon v. Nigeria Case | 62 | ||
| d) Mitigating the Non-Existence of “Meta-Sources” | 64 | ||
| 3. Conclusion | 66 | ||
| II. Burden of Proof and Intertemporality | 67 | ||
| 1. Fact-Finding in International Litigation | 67 | ||
| a) The Procedure of Fact-Finding and Producing Evidence | 67 | ||
| b) Burden of Proof and Standard of Proof in International Litigation | 68 | ||
| c) Problems in Finding Historic Facts | 69 | ||
| aa) Indistinguishability of Fact and Law | 69 | ||
| bb) The Reoccurring Problem of Oral Tradition | 70 | ||
| cc) Presumptions and the Burden of Proof | 72 | ||
| 2. The Fair-Trial-Principle | 76 | ||
| III. The Futility of the Doctrine of Intertemporality | 76 | ||
| G. The Doctrine of Intertemporality and its Relation to Non Liquet | 78 | ||
| I. Lacunae, Non Liquet and International Law | 78 | ||
| 1. The (In-)Completeness of International Law | 79 | ||
| 2. Historic International Law and Non Liquet | 81 | ||
| II. The Duty to Prevent Non-Liquet | 83 | ||
| III. Conclusion | 85 | ||
| H. Reconceptualising the Intertemporality | 86 | ||
| I. The Basis for Reconceptualising the Doctrine of Intertemporality | 86 | ||
| II. Reconceptualising the Underlying Assumption of the Doctrine of Intertemporality | 89 | ||
| III. Shifting the Relationship Between Intertemporality and Equity | 90 | ||
| 1. Equity in International Law | 91 | ||
| 2. Equity in Time | 93 | ||
| a) Filling the Gap with Equity | 93 | ||
| b) The Point in Time from which Equity is Assessed | 94 | ||
| 3. The Argument for Applying Equity in Contentious Proceedings with an Intertemporal Dimension | 97 | ||
| 4. Conclusion | 98 | ||
| IV. The Possibility of Choosing a Legal Order | 98 | ||
| I. Conclusion | 100 | ||
| Bibliography | 102 | ||
| I. Books and Monographs | 102 | ||
| II. Journal Articles | 107 | ||
| III. Other Publications | 109 | ||
| IV. Table of Cases | 109 | ||
| V. Documents | 110 | ||
| VI. Online Sources | 110 | ||
| Subject Index | 112 |