Inter-temporality of international law

The doctrine of inter-temporal law Art. 28 of VCLT: “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.” Art. 13 of ARSIWA: ”An act of a State does not constitute a breach of an intrernational obligation unless the State is bound by the obligation in question at the time the act occurs.”

What is the doctrine all about? In what sense does the doctrine of inter-temporal law help to resolve conflicts of norms? Compare: Lex superior Lex specialis Lex posterior

The two branches of the doctrine First branch: “[A] juridical fact must be appreciated in the light of the law contemporaneous with it” (UNRIAA, Vol. 3, p. 845) Second branch: “[T]he existence of a right … shall follow the conditions required by the evolution of law” (ibid.) Why is the second branch not an exception to the first?

Operating the doctrine of inter-temporal law What law shall be used for the assessment of the following? The validity of the conclusion of a treaty The validity of a reservation to a treaty The termination or suspension of a treaty The succession to a treaty

Continuos breaches of obligations How assess an action extending over a longer period of time? Operation Enduring Freedom is launched on 7 October 2001 UNSC res 1386, establishing ISAF, is adopted on 20 december 2001

When an action forms a condition for the application of a norm Operation Enduring Freedom (OEF) and alleged changes of the right of self-defence OEF as a response to the 9/11 attack OEF as a response to an ongoing attack (which started with the Embassy bombings in 1998) OEF as a measure of anticipatory self-defence

Inter-temporality and treaty interpretation Aegean Sea Continental Shelf Case What is the meaning of ”rights” and ”the territorial status of Greece” and why? The resort in law to generic referring expressions

What rules are applicable? Guinea – Guinea-Bissau Maritime Delimitation Special Agreement concluded 18 February 1983 Boundary Treaty concluded 12 May 1886

Scope of the doctrine of inter-temporal law Ijzeren Rijn Arbitration Treaty concluded by Belgium and the Netherlands in 1839 Tribunal held: ”Article 31, paragraph 3, subparagraph (c) of the Vienna Convention also requires there to be taken into account ’any relevant rules of international applicable in the relations between the parties’. The intertemporal rule would seem to be one such ’relevant rule’. By this, regard should be had in interpreting Article XII to juridical facts as they stood in 1839.” (p 36)

What do we need the doctrine for? What purpose or purposes does it serve? Can we conceive of an international legal system without a doctrine of inter-temporal law?