Abstract
There is a tension in the doctrine of intertemporal law outlined by Max Huber in the Island of Palmas case. The first branch demands that the legality of an act be judged by the law in force at the time the act occurs; the second that we take into account any change in the law over time. We see the problem in the 2019 Chagos Archipelago proceedings. The UK argued that the detachment of the Archipelago from Mauritius in 1965 was not unlawful, because it was not regarded as unlawful at the time. The International Court of Justice (ICJ) disagreed, deciding that the detachment was unlawful at that time, but it relied on the 1970 Declaration on Friendly Relations to confirm this conclusion. This article explains why the ICJ’s use of dynamic logic to reach its decision was correct—and what this tells us about the intertemporal doctrine.
Highlights
The objective of this article is to resolve the tension between the first and second branches of the intertemporal doctrine outlined by Max Huber in the 1928 Island of Palmas case
The United Kingdom argued that its detachment of the Chagos Archipelago from Mauritius in 1965, just prior to Mauritian independence in 1968, was not unlawful, because international lawyers would not have recognized the existence of the right of peoples to self-determination at this time
International lawyer would have agreed in 1960 that resolution 1514 (XV) reflected customary international law; second, it is difficult to make the case the ICJ would have reached the same conclusion in the late 1960s; and, those lawyers advising the UK government on the legality of the proposed detachment could not see into the future – and the adoption of the Declaration on Friendly Relations
Summary
The objective of this article is to resolve the tension between the first and second branches of the intertemporal doctrine outlined by Max Huber in the 1928 Island of Palmas case. To make sense of the doctrine of intertemporal law, we have to explain the role of time in the process of change in customary international law, because explicit recourse to the intertemporal rule is only required when the law has changed over time.[1] But in order to do this, we have to be clear how we think about the notion of time.[2] Philosophers have shown that we can either see events moving through time, from the future, through the present, and onto the past (this is the ‘A-series’ conception of time); or we can reject the idea that time passes, as an objective reality, and focus instead on the timeline of events, which can be described in terms of being ‘later than’, ‘earlier than’, or ‘simultaneous with’ each other (this is the ‘B-series’) Both the A- and B-series conceptions of time come with their own language and logic. The second part explains that our conclusions about the applicable law on a given day can change, depending on When we examine the available evidence of state practice and opinio juris (change in time)
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