Non-Retroactivity as a General Principle of Law

Yarik Kryvoi,Shaun Matos

doi:10.36633/ulr.604

Abstract

This article examines the principle of non-retroactive application of law, which prohibits the application of law to events that took place before the law was introduced. The application of this principle has become particularly controversial as states adopt stricter regulations to tackle climate change with retroactive effect, and investors challenge such regulations before international courts and tribunals. In the context of criminal law, the principle is widespread and has become a binding norm of international law. However, a survey of domestic jurisdictions and decisions of international courts and tribunals shows that that there is no general principle of international law which forbids the retroactive application of administrative law. Despite pronouncements of some international courts and tribunals to the contrary, states can conclude treaties and adopt administrative regulations with retroactive effect to pursue legitimate public policy objectives.

Highlights

International courts and tribunals often refer to the principle of non-retroactive application of law as general principle of law, they rarely explain what precisely this principle entails.[1]
A survey of domestic jurisdictions and decisions of international courts and tribunals shows that that there is no general principle of international law which forbids the retroactive application of administrative law
The Vienna Convention on the Law of Treaties[74] provides that, in the absence of a contrary intention, international treaties do not apply to situations which occurred before the treaty entered into effect: Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party.[75]

Summary

Introduction

International courts and tribunals often refer to the principle of non-retroactive application of law as general principle of law, they rarely explain what precisely this principle entails.[1]. The most litigated form of administrative regulations related to retroactive measures either imposing liability for environmentally harmful effects that have already occurred, or retroactively removing subsidies or related economic incentives.[12] On the one hand, states are under pressure to comply with their climate change commitments On the other, they have to live up to the expectations of investors, protected by domestic law and international investment agreements, many of which include the fair and equitable treatment standard. It sets the scene with the history and the rationale of the principle non-retroactive application of law in domestic legal systems from around the world. The Article calls on international courts and tribunals to be cautious about making pronouncements on the invalidity of laws with retroactive effect under general international law in the absence of explicit treaty provisions or promises to that effect

The history and the rationale behind the principle

International Law

International law

95 Best Practices in Regulatory Reform

Conclusion