Retroactivity in the law of treaties

Abstract

Problem setting. One of the most ambiguous issues in the law of treaties is retroactivity of international treaties. The principle of non-retroactivity of legal norms is recognized both in national legal systems and in international law. This principle is codified in the Vienna Convention on the Law of Treaties, which states that a treaty, unless a different intention appears from the treaty or is otherwise established, does not have retroactive effect. The dispositive nature of this norm causes difficulties, which makes it necessary to study this issue in order to determine the prerequisites for the retroactivity of international treaties and to analyze practice in this area. Analysis of recent researches and publications. Scholars such as O.V. Pushnyak, I.I. Lukashuk, R.A. Kalamkaryan have studied this issue. However, there is the need for further study of this issue due to the dispositive nature of the provisions on the non-retroactivity of an international treaties, which gives states the right to act at their own discretion, thereby causing uncertainty in this matter. Purpose of research is to determine the grounds in the presence of which international treaty may have retroactive effect; examine the practice of international tribunals on this matter. Article`s main body. This study examines history of the principle of non-retroactivity of legal norms and its codification in the Vienna Convention on the Law of Treaties. Provisions of article 28 of forecited Convention are precisely analyzed. Meaning of the terms “act”, “fact” and “situation” is set. Three main grounds in the presence of which Attention is given to the examination of the Convention on the Prevention and Punishment of the Crime of Genocide and its retroactivity. Practice of international tribunals on this matter is examined. Conclusions and prospects for the development. According to the general rule, which is codified in the provisions of article 28 of the Vienna Convention on the Law of Treaties, treaties do not have retroactive effect. However, given the dispositive nature of this norm, issue of the retroactivity of this or that international treaty should be studied separately. For this purpose tribunal must in each case analyze in detail both the action/fact/situation to which treaty should be applied, as well as the treaty itself, in order to decide whether the retroactivity of the treaty is expressly formulated in its provisions, results from the interpretation of a treaty or emanates from the nature of the treaty