Ratione Temporis Research Articles

The South China Sea Arbitration (The Philippines v. China): Potential Jurisdictional Obstacles or Objections

This article first highlights in Part I the procedural posture of the South China Sea Arbitration (the Philippines v. China) case and the affirmative duty of the Arbitral Tribunal under Article 9 of Annex VII to the UNCLOS, faced with the absence of China, to investigate conscientiously its own jurisdiction by taking notice of all available information and materials whether or not they are submitted to the Tribunal. Part II summarizes the Philippines’ claims and highlights their nature as well as the delimitation geographical framework and the delimitation situation inthismatter. The Philippines “skillfully”fragments a big dispute with China into various free-standing-appearing entitlement claims and activities claims in order to conceal the sovereignty-delimitation nature of the dispute or claims. Part III discusses the jurisdictional obstacles or objections ratione temporis and ratione materiae. The dispute is outside the jurisdiction of Section 2 courts and tribunals, because it predated the entry into force of the UNCLOS with respect to China. Furthermore, the Philippines’ claimsareessentiallylandterritorialsovereigntymatters,notconcerningtheinterpretationorapplicationoftheUNCLOS,oraredependentontheresolution oflandterritorialsovereigntyclaims.PartIVdiscussesthejurisdictionalobstacles orobjectionsbasedonArticle298oftheUNCLOSandChina’s2006optional exceptions declaration as well asthe Philippines’ relatedUnderstanding. When

Janowiec and Others v. Russia: A Long History of Justice Delayed Turned into a Permanent Case of Justice Denied

The European Court of Human Rights ruled on whether Russia is responsible for human rights violations in relation to the Katyn massacre. Two of the major issues that had to be dealt with were the Court’s competence ratione temporis to assess the violation of the procedural obligations related to the right to life, and whether the applicants could be considered victims of inhumane treatment because of the failure of Russian authorities to provide information on the fate and whereabouts of their relatives. If the first judgment issued by the Chamber on 16 April 2012 was criticized because of its restrictive approach, the one issued by the Grand Chamber on 21 October 2013 took an even more controversial turn. The reasoning of the Court does not seem to be particularly sound and the outcome is a denial of justice. The comparison with the jurisprudence of the Inter-American Court of Human Rights in similar cases makes this all the more evident, suggesting that the application of different interpretative criteria would have been possible.

The Katyy Massacre Before the European Court of Human Rights: A Personal Account

The author of this article, the lead lawyer for the applicants in the case relating to the 1940 Katyn massacre (Janowiec and Others v. Russia), provides a personal account of the case that was heard twice by the European Court of Human Rights, first as a chamber of seven judges and then in its Grand Chamber formation. The case concerned the key question of whether the Strasbourg Court is competent to adjudicate on the effectiveness of a domestic investigation when the triggering act (killing) precedes the ratification date of the European Convention on Human Rights. For the first time in its entire history, the Strasbourg Court examined whether its competence could be based on the “need to ensure the respect for the Convention’s founding values”, one prong of the test elaborated in the Silih judgment in 2009. The critical assessment of the Grand Chamber’s Katyn judgment offered in this article is based on two considerations: what the Court omitted (the applicants’ arguments referring to the relevant international law practice) and what the Court finally elaborated as its understanding of the two tests establishing the Court’s competence ratione temporis (the “genuine connection” test and “Convention values” test).

Enforced Disappearance and the European Court of Human Rights’ ratione temporis Jurisdiction

The article examines the Grand Chamber judgment of the European Court of Human Rights in the case of Janowiec and Others v. Russia, which constitutes a case of enforced disappearance. The judgment is placed in the context of the case law of the European Court of Human Rights and, regarding jurisdiction ratione temporis, of other international bodies. A critique of the Grand Chamber’s argumentation under Article 2 of the European Convention on Human Rights (the right to life) finds that the Court’s restrictive approach to its temporal jurisdiction, in adherence to the principles first set out in the Šilih v. Slovenia judgment, was neither legally necessary nor practically advisable in Janowiec and Others. These arguments are followed by an excursus on the Court’s approach to Article 3 of the European Convention on Human Rights (the prohibition of torture and inhuman and degrading treatment and punishment).

The Rights of the Victims of Past Atrocities in Spain: Reparation Without Truth and Justice?

This paper analyzes the issue of enforced disappearances occurred in Spain during the civil war in the light of the international standards of reparation for serious human rights violations. The authors focus on the legal controversy relating to the international regulation of enforced disappearance as a continuing crime, the state’s obligations to investigate, criminally prosecute and punish such crimes or extradite the possible culprits and its peculiar application by the Spanish Supreme Court and the Audiencia Nacional. In the opinion of the authors, that domestic interpretation implies for the victims the denial of adequate reparation under the applicable international legal regimes and a breach of Spain’s international obligations. The paper subsequently examines the role played by the European Court of Human Rights in guaranteeing the victim’s rights to a legal remedy through access to a court in its controversial and the restrictive interpretation of the limits ratione temporis of its own jurisdiction with regard to human rights violations of a continuing nature. Finally, the authors give some suggestions for implementing a truth commission in relation to past human rights abuses in Spain.

The European Court of Human Rights. A Few Considerations Regarding its Juridical Reasoning

Abstract Reasoning refers to the application of the rule, once interpreted, to the facts of the cause established by the Court and to the deduction of the conclusion of an infringement or non-infringement – in the respective case – of the rule invoked. The order of the examination of the questions – classical according to the opinion of a French judge – is the following: the competence of the Court, the admission of the petition, a good substantiation of the demand. The competence can be denied for incompatibility ratione materiae, if the litigation is outside the material domain of application of the Convention, ratione personae, if the defendant State is not part of the Convention or if the defendant is not the State or State-related; finally, ratione temporis, if the defendant State did not ratify the Convention or the pertinent protocol at the date when the facts were committed. The issue of the incompetence ratione loci is out of the question. Certainly, we can mention that renunciation exists and it triggers the disappearance of the case from the Court's roll; yet, the priority of this situation over that of incompetence is not solved as clearly as via the French administrative jurisprudence. Actually, the competence-related issues are dealt with by the Convention organs, the Commission and then the Court, as admission issues, which the State solves with the help of some preliminary exceptions or which the Court solves ex officio. Finally, it is essential that the European Court of Human Rights must defend the persons against the abusive violation of their rights by States, without condemning them systematically and a priori. And after 50 years of jurisprudence, we consider that, neither systematic, nor dogmatic, the reasoning of the Court of Human Rights, Strasbourg tends to evolve towards a pragmatic syncretism, which seems to us to be an acceptable possible approach.

Admissibility and the International Criminal Court

Jurisdiction refers to the legal parameters of the Court’s operation, in terms of subject matter (jurisdiction ratione materiae), time (jurisdiction ratione temporis) and space (jurisdiction ratione personae). The question of admissibility arises at a later stage and seeks to establish whether matter over which the court properly has jurisdiction should be litigated before it. In reality the line between jurisdiction and admissibility is not always clear, this could be a matter of concern for those involved. The article makes an attempt to analyse admissibility and the potential challenges in this regard before the International Criminal Court. The article specifically emphasizes Article 17 of the Rome Statute and its scope with regard to issues of admissibility and complementarity principle of the International Criminal Court. The author, in his article, discusses the legal basis for challenging the admissibility and problems faced in self-referrals by the states. The article concludes with the three visions of admissibility, viz., admissibility as a personal right of the accused, admissibility as the protection of the rights of states and admissibility as a limitation on the power of the ICC.

Right for the Wrong Reasons: Silih v Slovenia and Jurisdiction Ratione Temporis in the European Court of Human Rights

Right for the Wrong Reasons: Silih v Slovenia and Jurisdiction Ratione Temporis in the European Court of Human Rights

The Committee on Enforced Disappearances and Its Monitoring Procedures

The International Convention for the Protection of All Persons from Enforced Disappearances establishes the Committee on Enforced Disappearances to oversee its implementation. Its reporting, individual communications and inter-state communications procedures have enhanced features that build on the experiences of other monitoring bodies with similar procedures. Its urgent visit and referral procedures contain novel elements that can promote compliance with the right not to be subjected to enforced disappearance. While issues of duplication, lack of enforcement powers, competence ratione temporis and time and resource constraints set the parameters of what it can and cannot do, the Committee, as part of a system of international and regional bodies, has the potential to induce respect for human rights and to help move states toward the goal of compliance with the right not to be subjected to enforced disappearance.

The Special Tribunal for Lebanon: An Introduction and Research Guide

This research guide provides an overview about official documents related to the Special Tribunal for Lebanon (STL). The guide comprises four parts: The first part (I.) gives a brief introduction into the historical background of events leading to the establishment of the STL, elaborates on the STL Statute, the particularities and organization of the Court. The second part (II.) explains matters of jurisdiction (ratione temporis, ratione materiae, ratione personae), provides links to the STL rules and procedure, and the 2011 interlocutory decision. The third part (III.) touches on the latest trial proceedings, such as the indictment Ayyash et al. (2011), the trial in absentia decisions (2012), the motions on the legality of the STL (2012), the connected cases Hamadeh, Hawi and El-Murr (2011) and the request by Jamil El Sayed to access documents. The fourth part (IV.) links to the STL annual reports, offers a list of links to relevant websites, access to legal terminology and a comprehensive bibliography of academic publications about the STL from 2006 to 2011. Each part provides direct links to the mentioned official documents and recommendations for further reading.

The Domestication of International Criminal Law: A Proposal for Expanding the International Criminal Court’s Sphere of Influence

This Article addresses the question of how to evaluate the effectiveness of the International Criminal Court (ICC). Beyond focusing on the number of arrest warrants, indictments, and prosecutions credited to the Court since 2002, this Article proposes a broader criterion of asking whether the ICC helps to combat impunity and deter future human rights atrocities across the globe. While the ICC aims to end impunity for the most serious crimes, it is unrealistic that it would ever achieve this ambitious goal on its own, given limited resources and capacity to handle more than a handful of investigations and trials. Additionally, as a treaty-based international organization, the ICC enjoys limited jurisdiction over cases that occurred after the Rome Treaty entered into force in 2002 (and even then from the date that a state party ratifies the treaty). Thus, many of the world’s most serious offenders whose crimes occurred before this time will never be hailed to the ICC chambers, leaving prosecution entirely up to domestic courts. This Article examines this dynamic building on the theory of “proactive complementarity.” Normally scholars who propose this type of collaboration take as their starting point the temporal and geographic treaty restrictions imposed by the Rome Statute. This orientation leads to two notable consequences that undermine the overall effectiveness of the ICC in attaining its broader mission: First, the ICC will remain completely removed from many local efforts to harmonize national systems with international norms. At the same time, the ICC will also be removed from many important domestic criminal proceedings, although these trials involve serious offenders whose trials constitute important contributions to international jurisprudence that directly impacts the ICC’s own work to assure uniformity in prosecutions of international crimes. Secondly, this strict interpretation of the ICC’s mandate also means that it will miss the opportunity to offer the subtle type of international support that can often create a “moral suasion” that helps assure the momentum of transitional justice schemes. In response, I propose a widening of the concept of proactive complementarity to include engagement with States Parties, even if it regards matters that technically fall outside the jurisdiction ratione temporis found in the Rome Statute’s Article 11 and admissibility requirements of Article 17. I use the case study of Peru to show how the ICC could have exerted more influence on the criminal trial of former President Alberto Fujimori (1990-2000) by lending political support as the government sought to harmonize the domestic criminal justice system to the standards of the Rome Statute and to assume a more active presence with regard to the historic human rights trials of Fujimori.

Enforced Disappearances of Persons as a Violation of Jus Cogens: The Contribution of the Jurisprudence of the Inter-American Court of Human Rights

The consolidation of the international regime of absolute prohibitions (belonging to the domain of jus cogens) of torture, summary and extra-legal executions, and enforced disappearances of persons has counted on the contribution of the case-law of contemporary international tribunals, such as, notably, the Inter-American Court of Human Rights (IACtHR). The jurisprudential construction of the IACtHR to this effect has taken place mainly in the period 1999–2004. The IACtHR began by addressing issues pertaining to its competence ratione temporis, duly distinguishing their bearing on responsibility and jurisdiction. The IACtHR singled out the aggravating circumstances surrounding enforced disappearances of persons, bringing about the enlargement of the notion of victim (comprising the next of kin). The IACtHR duly acknowledged and asserted the absolute prohibitions of jus cogens in the conformation of an international legal regime against grave violations of human rights and international humanitarian law (such as enforced disappearances of persons). The IACtHR became the first contemporary international tribunal, in this connection, to sustain that the enlarged material content of jus cogens encompasses nowadays the victims’ right of access to justice lato sensu, properly understood as the imperative of the realisation of objective or material justice.

THE APPLICATION OF INTERNATIONAL LEGAL NORMS OVER TIME: THE SECOND BRANCH OF INTERTEMPORAL LAW

Intertemporal law governs the applicability of international legal norms ratione temporis. According to often used terminology, intertemporal law has two different branches. This article provides clarification of the so-called ‘second branch of intertemporal law’. It does so by refuting two commonly held assumptions. First, as established in section 2 of the article, the second branch of intertemporal law is not an exception to the first branch of that law. It cannot be, since both branches of intertemporal law centre on the same legal principle: an action or a factual state of affairs must be assessed in the light of the law which is contemporary with it. Secondly, as implicated by the line of reasoning in section 2, and further confirmed by the inferential evidence cited in section 3, the practical relevance of the second branch of intertemporal law is not confined to the application of the law on the acquisition to territory. It pertains to a more widely defined group of norms in international law.

Temporal jurisdiction of international judicial and arbitral courts

Author explores different temporal aspects of jurisdiction of International Court of Justice, European Court for Human Rights and international investment arbitrations. Temporal limitations are two-fold: non-retroactivity of international acts, on one hand, and ratione temporis conditions for each and every international forum, on the other. Despite differences courts tend to conceptualize common elements across the borders of different jurisdictional rules. The rule of non-retroactivity will find its application before different fora, but discrepancies will emerge with respect to concepts of continuous and composite acts which potentially may overcome temporal limitations. This article explores intertemporal rule and non-retroactivity within the meaning of Article 28 of the Vienna Convention on the Law of Treaties and Articles 13-15 of ILC Articles on State Responsibility.

Grand River Enterprises Six Nations Ltd and Others v. United States of America

503Jurisdiction — Jurisdiction ratione materiae — For merits phase — Jurisdiction ratione temporis — Actual and constructive knowledge — Time when loss or damage incurred — Burden of proof — NAFTA, Articles 1116(2) and 1117(2)Admissibility — Amendment of claim — UNCITRAL Arbitration Rules, Article 20

BIT Clauses Bearing on the Ratione Temporis Jurisdiction of ICSID Tribunals. A Survey on the Constituent Elements of Investor-State Legal Disputes under BITS

BIT Clauses Bearing on the Ratione Temporis Jurisdiction of ICSID Tribunals. A Survey on the Constituent Elements of Investor-State Legal Disputes under BITS

Ratione temporis application of the preliminary rulings procedure

Until the greatest enlargement of the European Union in 2004, the question of inter–temporal application of the preliminary procedure had not raised any particular controversies. The ECJ adopted a very liberal approach towards the questions submitted by the courts of the new Member States, even if the application of the EC law in a particular case was doubtful. This line of judgments changed after the “big enlargement” in 2004. There are striking examples of this in the judgments issued on preliminary questions referred by the courts of the new Member States, in which the ECJ seemed to ignore the rules pertaining to the principles of the EU law application ratione temporis and the binding force of the national court?s assessment of whether the question is necessary to adjudicate the case. The article analyses first the principles of the applicability of EU law ratione temporis. Then it deals with the ECJ’s views as to the applicability of Article 234 EC in inter–temporal situations. This section is divided in two parts – dealing with the ECJ’s jurisprudence before the enlargement in 2004 and afterwards. In conclusion, it proposes how to define the boarderline for the use of the preliminary ruling procedure in inter–temporal situations for the benefit of both EU law and the national courts of the new Member States.

A Review of the Legal Consequences Arising from ECJ and CFI's Judgments

No study has so far systematically explored the legal consequences arising from the formal release of a judgment by the European Court of Justice (ECJ) and the Court of First Instance (CFI). Yet, a cursory examination of the case-law indicates that ECJ and CFI judgments trigger a myriad of legal implications over time (ratione temporis), over parties and third parties (ratione personae) and raise difficult implementation issues. A judgment rendered in the field of EU tax law may, for instance, give rise to a right to reimbursement of the unlawful national tax scheme as well as to a claim for damages against a Member State. Our paper seeks to fill this gap in legal literature. First it reviews the direct effects (res judicata, etc.) of the most common types of ruling adopted by the ECJ and the CFI. We mainly focus on judgments rendered over annulment actions, infringement proceedings against Member States and in the context of the preliminary ruling procedure (I). Second, we elucidate in a consistent fashion the various indirect effects arising from those decisions and, in particular, the right to obtain reimbursement, the possibility to recast binding national court decisions and the ability to claim damages against the European Community or Member States (II).

« Si le fait l’accuse, le résultat l’excuse » : l’arrêt de la CIJ sur les exceptions préliminaires dans l’affaire Croatie/Serbie

On 18 November 2008, the ICJ ruled that it did have jurisdiction to hear the dispute between Croatia and Serbia, which was accused of violating the 1948 Genocide Convention during the Balkans War. The Court dismissed all of the preliminary objections raised by Serbia. It confirmed first its jurisdiction ratione personae : although Serbia only became a party to the Statute of the Court after the application had been filed, it did have the capacity to act on the day the decision was entered. The Court then acknowledged it had jurisdiction ratione materiae : Serbia has been a party to the Genocide Convention since 27 April 1992 as successor state to the former Yugoslavia. On the objections ratione temporis and the objections relating to the judgment of individuals presumed guilty of international law crimes, to the identification of missing persons and to the return of cultural property, the Court reserved them for examination along with the merits

A Lifeline in Time – Non-retroactivity and Continuing Violations under the ECHR

AbstractThe protective shield of a human rights treaty in principle only works once it has entered into force. But what about the frequent problem of human rights violations that occurred or started before that time; can one complain about those on the international level? In other words, what are the limitations of the ratione temporis jurisdiction of supervisory human rights mechanisms? This article explores this question in the context of general public international law through a case study of the European Convention on Human Rights. It argues that the European case law's variations on principles of international law can be explained by the special nature of human rights treaties.