TIME FOR A REAPPRAISAL? THE INTERTEMPORAL PRINCIPLE OF INTERNATIONAL LAW EXAMINED.

• Author: Gruber, Manuel

I THE INTERTEMPORAL PRINCIPLE

Public international law is not a stationary set of norms but is in constant flux. Treaties are negotiated and renegotiated. Custom changes with State practice. It is inescapable that the salient issue of a legal dispute may not be the content or substantive applicability of a legal rule, but the question of whether a defunct norm or its replacement should find application to given circumstances. Therein lies the intertemporal problem of international law. The solution to the intertemporal problem is the intertemporal principle' of international law. Put succinctly, the intertemporal rule provides that legally relevant circumstances should be judged by the law contemporary to them. (2)

A. Genesis

The principle was first stated as an abstract rule of law in the Island of Palmas (3) arbitral case which came before the Permanent Court of Arbitration ('PCA') in 1928, a decision which has become synonymous with the intertemporal rule. (4) The sole arbitrator, Swiss jurist Max Huber, was tasked with deciding a dispute between the United States and the Netherlands, both of whom claimed sovereignty over the island of Palmas (Miangas in Spanish), located between the Philippine island of Mindanao and northerly outliers of what is now Indonesia (then the Dutch East Indies). (5) Spain had, in the 16th century, 'discovered' the island. For the relevant passage of his award, Huber was prepared to assume that discovery could lead to an acquisition of title according to the international law then in force. Following discovery, the Spanish failed to exercise actual sovereign power over the island. Meanwhile, the Netherlands incorporated Palmas into the Dutch East Indies and peacefully and continuously displayed their authority over the island between 1700 and 1906. (6) By the end of the 19 (th) century, the international law of territory had developed to require such effective occupation as a condition for territorial sovereignty. (7) Following defeat in the Spanish-American war, Spain ceded the Philippines, which nominally included Palmas, to the United States in the 1898 Treaty of Paris. (8) The legal dispute before the PCA arose when a United States general visited the purportedly American territory in 1906, (5) only to find the Dutch flag flying. (10) The intertemporal problem was salient: only if Spain's title to Palmas was to be judged by the law in force at its discovery and was unaffected by the passage of time and the Netherlands' actions could sovereignty have passed to the United States at the critical date, the Treaty of Paris' entry into force. (11)

In his judgment, Huber directly confronted the intertemporal problem, stating what have (misleadingly, but conveniently) become known as the two 'branches' of intertemporal law. (12) He found that:

... a juridical fact must be appreciated in the light of the law contemporary with it, and not of the law in force at the time when a dispute in regard to it arises or falls to be settled. The effect of discovery by Spain is therefore to be determined by the rules of international law in force in the first half of the 16th century. (13)

He further held:

As regards the question which of different legal systems prevailing at successive periods is to be applied in a particular case (the so-called intertemporal law), a distinction must be made between the creation of rights and the existence of rights. The same principle which subjects the act creative of a right to the law in force at the time the right arises, demands that the existence of the right, in other words its continued manifestation, shall follow the conditions required by the evolution of law. (14)

Applying these rules, Huber found that the Dutch claim of acquisition of sovereignty via prescription, that is the peaceful and continuous display of authority over the island, prevailed over any merely inchoate title acquired by Spain via discovery. (15)

B. Content

While it is embedded in a territorial dispute, the dictum's wording suggests that it was intended for general application in international law. (16) It cannot be properly appraised without clarifying its meaning in the abstract.

If for nothing else, then Huber deserves criticism for failing to clearly state the intertemporal rule's intended effects, which have been the subject of debate. The first branch of intertemporal law appears to be largely uncontroversial in its meaning, but the content of the second branch and its interaction with the first branch that have led to difficulty. Some regard the second limb as a qualification of the first. (17) It has also been asserted that only the first branch is a generally applicable rule, and that the second branch is confined to territorial disputes. (18) The most convincing analysis of the content of the rule laid down by Huber comes from Ulf Linderfalk. To summarise his findings in his own words:

[T]here is only one legal principle: an action or a factual state of affairs must be assessed in the light of the law which is contemporary with it. (19)

Huber's dictum itself implies the possibility of such a unifying statement of principle. He makes clear that 'the same principle' which demands that acts creating rights be judged by contemporary norms also demands that their continued existence be dependent on the evolution of the law. (20)

According to Huber, the intertemporal principle concerns the application of legal norms to 'juridical facts'. (21) For the purposes of this article, a juridical fact is any 'action or factual state of affairs' (22) capable of having a legal effect. The first branch of the intertemporal rule refers to facts that occur at a set point or period of time: contemporaneity--non-retroactivity by another name--is upheld, the legal effect of those facts will always be assessed according to the law as it stood during their occurrence. (23) As Huber's second statement makes clear, this rule applies to facts which create rights (eg discovery as the foundation of a title to territory). For the sake of clarity, the juridical facts to which this facet of the rule applies will hereinafter be referred to as 'closed circumstances', and their legal effects referred to as 'closed questions'.

Sometimes, juridical facts do not have a singular legal effect at a single point or delineable period of time but (also) have a bearing on the continuing existence of a right, status or legal relationship. (24) According to the second branch of the intertemporal principle, how circumstances with a bearing on such 'open questions' are judged by the law may change over time. (25) For instance, if the law changes to dictate that legal title over land depends on the continued incidence of an actual display of authority, then the maintenance of said title can suddenly depend on such a display, even if the underlying factual circumstances remain unchanged and title was created and initially maintained according to valid law. (26)

The application of the two parts of Huber's principle does not depend on the nature of the juridical facts being examined, but on the nature of the legal question being asked. If the question is whether a right continues to exist, the rule on open questions applies. The legal assessment of an open question will usually depend on the assessment of different closed circumstances, the difference being that the answer to an open question may change over time. This can be illustrated by reference to the validity of treaties: as per the rule on closed circumstances, a treaty's valid conclusion is not open to legal re-evaluation as long as the juridical facts at any point in time were such that they could 'create' a valid treaty at said point in time. (27) However, as an open question, whether a right can be claimed from a valid treaty must continually be re-evaluated according to the current state of the law. (28) Such validity in part depends on the non-occurrence of certain closed circumstances: treaties' suspension and termination must be judged according to the law contemporaneous to the relevant (time-limited) circumstances, (29) insofar as the suspension and termination depend on rules external to the treaty and not on the interpretation of internal treaty provisions agreed on by the parties. (30)

The misconception has arisen that the rule on open questions means a retroactive operation of law. (31) It is true that a legal state of affairs brought about by an action may, as a result of this part of the second branch, find itself modified without a change in the underlying factual circumstances. However, retroactivity is the application of new norms to past circumstances. (32) The emergence of new customary legal rules that allowed for the acquisition of title through prescription and demanded that territorial sovereignty be displayed in order to be valid only superseded Spain's title to Palmas from the point at which the rules emerged. The legal effect of the acquisition of title by Spain via discovery--closed circumstances--was not retroactively invalidated. (33) Only when customary international law demanded the continuous display of sovereign authority did Spain's inchoate title cease to have effect, the open question was judged anew. If Spain had transferred sovereignty to the United States before this new legal doctrine emerged, and if the United States had subsequently exercised such sovereignty, then Huber's doctrine would argue for an effective transfer of title to the USA despite the fact that title could no longer be acquired by discovery.

There are not two rules between which courts and tribunals may decide. (34) Closed questions, including the question whether a legal right has been created, are fixed in their legal assessment, while the assessment of open questions is subject to change with the law. The unifying principle is that of contemporaneity. (35) States may deviate from the rule by agreement. (36)

C. Status in International Law

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