Abstract
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 change, 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 the States produced the result that the old international relations within Christendom which were based upon one theocratic system of law was gradually replaced henceforth by a wider legal system which later embraced nations outside Christendom and which engendered a universalisation of international relations and, therefore, of international law.
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References
E.g. see G. Schwarzenberger’s Manual of International Law, at p. 559 where the author says that international inter-temporal law is the “determination of international law at successive periods in their application of a particular case.”
Judge Max Huber himself so described it in the Island of Palmas case.
W. Friedman in: The Changing Structure of International Law,1964, London, at pp. 130–131.
Cf. e.g. H. Lauterpacht, The Function of Law in the International Community,1933, pp. 283–285; G. Schwarzenberger, International Law,Vol. I, 3rd ed., pp. 21–24; R. Jennings in Acquisition of Territory in International Law,1963, pp. 28–31; H. Waldock in XXV The British Yearbook of International Law,1948, pp. 320 ff.; W.Z. Blum’s Historic Titles in International Law,1965, at p. 194.
P.C.A., The Hague Court Reports (1916), p. 129.
UNRIAA XI; op. cit.,p. 196.
Reports of International Arbitral Awards,Vol. II, p. 845.
A.J.I.L., Vol. 22 (1928).
A.J.LL.,Vol. 22 (1928).
W.J.B. Versfelt, in his: The Maingas Arbitration1933, Utrecht, pp. 14–16 and also p. 149; see also “Study of the Island of Palmas case.”
This is the view expressed by Ian Brownlie in Principles of Public International Law2nd ed., at pp. 132–133.
UNRIAA, Vol. II,p. 845.
Preliminary Objection I.C.J. Reports 1952,p. 40.
Alabama Arbitration, 1872, Gt. Britain v. U.S.) Moore, I International Arbitration, p. 495.
Article 38 of the Act.
P. C I.J. Series A, No. 2, 1924, p. 34.
A.G. Roche, Minquiers and Ecrehos Case,T.J.I., I., 1959, p. 83. 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 inter-temporal law should be applied. The Court would appear to have agreed to such a conclusion when it said: “if the Kings of France did have an original… title… in respect of the Channel Islands, such a title must have lapsed as a consequence of the events of the year 1204 and the following years. Such an alleged original… title of the Kings of France in respect of the Channel Islands could today produce no legal effect, unless it had been replaced by another title valid according to the law of the time of replacement.” I.C.J. Reports 1953,p. 47 at p. 56; also pp. 60–62.
A.J.I.L., 1928, pp. 735 and 740. See also Versfelt, The Miangas Arbitration,1933, Utrecht, pp. 14–16.
It seems as if Judge Huber himself was in doubt in the Island of Palmas Award as to whether the United States’ title was inchoate, as having been derived from the probably inchoate title of Spain.
I.C.J. Reports 1969,p. 44, para. 74.
The three cases do not involve a direct application of the doctrine of inter-temporal law, but are cited to illustrate an analogous trend.
Philippine (Admiral) Owners v. Wallen Shipping (Hong Kong) Ltd. [197611. All E.R., p. 78.
This is a departure from the rule of absolute sovereign immunity as adumbrated in The Parlement Belge (1880) 5 P.D., p. 197; The Porto Alexandre [1920] P., p. 30 ff.
] 2 W.L.R., pp. 365, 366.
The point is that Nigeria, through its lawyers in the High Court, claimed that the rule of absolute immunity still prevailed in 1975 to 1977, whereas the English Court of Appeal based its decision on the point that the law on the subject has evolved from the doctrine of absolute immunity to one of restrictive immunity in the last 50 years; and that the Courts must follow this evolution of the concept. The preceding analysis follows closely Lord Denning’s opinion in Trendex.
Ibid.,p. 366.
May 1952, addressed to the Acting Attorney-General of the State Department. (Department of State Bulletin, 1952, Vol. 26, p. 984.)
May 1976 U.S. Supreme Court.
Cf. 48 L.Ed., 2nd., p. 313/314.
N.J.W. 1976, 1044; Int’1 Legal Mat.,XVI (1977), pp. 501 ff.
I.C.J. Reports 1978,p. 3 ff.
We shall not touch this second ground of jurisdiction here invoked by Greece as no problem of inter-temporal law is involved.
This should not delay us, as it is not in question in the case.
ICJ. Reports 1978, p. 30, para. 71.
LCJ. Reports 1978, p. 32, para. 74.
ICJ. Reports 1978, p. 32, para. 75.
International Law Reports, 1951, p. 144, at p. 152.
I.C.J. Reports 1978, p. 33, para 77.
P.C.I.J Series B, No. 4, p. 24.
I.C.J. Reports, p. 34, para. 78.
I.C.J. Reports 1978, p. 34, para. 79.
I.C.J. Reports 1978, p. 34, para. 80.
I.C.J. Reports 1978, p. 34, para. 80.
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 parentary norm (jus cogens) emerges, the [Vienna] Convention considers that any existing treaty which is in conflict with that norm becomes void and terminates (Article 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 international law is different; it is by the operation of the rules of inter-temporal law that new sovereign or exclusive rights over the continental shelf shall have been attributed to Greece and Turkey.
CJ. Reports, 1978,p. 36, para. 83.
But the Greek Government’s argument was that there could be no question of the applicability of reservation (b) with respect to the present dispute. The argument was that the very idea of the continental shelf was wholly unknown in 1928 when the General Act was concluded, and in 1931, when Greece acceded to the Act. Greece also referred in this connection to the arbitral award in the Petroleum Development Ltd. v. Sheikh of Abu Dhabi case (International Law Reports 1951,p. 144, at p. 152), where the arbitrator held that the grant of a mineral oil concession in 1939 was not to be understood as including the continental shelf. The Court, however, did not find this argument convincing.
Yearbook of the International Law Commission, 1964, Vol. II, p. 199.
I.C.J. Reports 1952, p. 189.
See ibid., p. 202.
Yearbook of the International Law Commission, 1966, Vol. II, p. 222.
Article 27 on General Rule of Interpretation, para. 3.
Yearbook of the International Law Commission, 1966, Vol. II, at pp. 218–222, para. 16.
1.CJ. Reports 1952, p. 40.
P.C.I.J. Series A, No. 2, 1924, p. 34.
Function of Law in the International Community, 1933, p. 284.
In order to appreciate the reference to earlier writers we would do well to refer to Westlake, 2nd ed., VoL I, p. 114; Hyde, VoL I, p. 320, footnote 5 and p. 329, footnote 27; Hackworth, Vol. I, 393–395; Lindley, Acquisition and Government of Backward Territory in International Law, 1926, pp. v—vi, (quoted in Hackworth), pp. 395–396.
Loc. cit., ibid.
In his Principles of Public International Law, 2nd ed., at p. 132.
Schwarzenberger, International Law. International Courts, Vol. I, 1957, pp. 21–24. Veloz-Mariana and Other Ships (1852) cited at p. 23 of Schwarzenberger, op. cit.
I.C.J. Reports 1952, p. 189.
LC.J. Reports 1953, p. 56.
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 to hold the view that the Court in fact applied feudal law in this case (loc. cit., p. 362). See also his La validité et la nullité des actes juridiques internationales, R.D.I., Vol. 15, 1935, pp. 284–339; also Territorial Controversies Before the International Court of Justice, Netherlands, T.I.R., Vol. 1, 1953–1954, pp. 234–268 and 356–364. 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” (cf. op. cit., p. 81, footnote 5).
See G. Schwarzenberger: International Law, VoL I, 3rd ed., 1957, at pp. 23–24.
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Elias, T.O. (1983). The doctrine of inter-temporal law. In: The International Court of Justice and some contemporary problems. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-4865-0_7
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