A. Introduction
Intertemporal law is a problem for reparation claims. Or, at least, this has become a generalized assumption when faced with the question whether international law is a practicable terrain for reparation claims for past wrongs. This Article challenges this assumption and posits that it is ill-conceived to think of the intertemporal doctrine merely as an obstacle to reparation claims, arguing instead that the doctrine could open the door to more dynamic assessments regarding the legality of past wrongs by placing emphasis on colonial wrong’s continuing harm and the development of legal principles over time.
For colonialism and slavery are hardly “mere” events but processes that do not belong to a liquidated past. While colonization and chattel slavery are specific periods or events, colonialism or slavery are processes “whose perpetuation [are] explained by the persistence of social formations” deriving from these periods,Footnote 1 As Edward Said put it, “there is no just way in which the past can be quarantined from the present.”Footnote 2 Therefore, we argue that “understanding the pastness or not of the past”Footnote 3 is the role of intertemporal law.
But according to a widely held idea, which correlates with a hermetic separation between the past and the present, intertemporal law represents the authority of the past over the present. And as much as reparations would be morally justified for past injustices, it would hardly be legally required as the law of the past was maybe unjust, definitely racist and colonialist, but still the law. This understanding was demonstrated once again in October 2024 during the Commonwealth Summit in Samoa, when the United Kingdom Prime Minister and the Labour government vehemently refused to apologize for historic injustices or to participate in conversation about reparations, emphasizing the desire “to look forward” instead of having “very, very long, endless discussions about reparations on the past.”Footnote 4 The discipline of international law has often mediated and rationalized this state of affairs as a mere expression of historiographical and legal expedients aimed at shielding us from the dangers of anachronismsFootnote 5 and the retroactivity of the law. Who would want to distort the past with our present standards and be so historically amateur, or destroy the edifice of the rule of law which implies legal security?
For some who do not accept this false neutralityFootnote 6 emerges the need to challenge this writing of the past and to argue that past laws were different, or at least more pluralistic, ambiguous, and indeterminate than the dominant narrative concedes. But in the end, the rule of the game remains that the past decides. As we will argue, this is largely due to a conservative interpretation of intertemporal law.
As is the case with many fundamental concepts and principles of international law, the doctrine of intertemporal law emerged authoritatively during the interwar period, in what, at first glance, might look like an obscure and trivial case. In the 1928 Island of Palmas case at the Permanent Court of Arbitration, the sole arbitrator, Max Huber, declared that “a juridical fact must be appreciated in the light of the law contemporary with it, and not the law in force at the time when a dispute in regard to it arises…”Footnote 7
That is the first limb, and arguably, a consensual translation of the principle of the non-retroactivity of the law.Footnote 8 The second limb, however, has proven more controversial:
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 manifestations, shall follow the conditions required by the evolution of law.Footnote 9
The legal certainty cemented by the first limb’s static approach to time is seemingly tarnished by the second limb. But it is in this apparent contradiction, we argue, that the largely disregarded emancipatory potential of the doctrine lies. Without acknowledgement of this potential, the general tendency is to reduce the intertemporal doctrine either to an obstacle to reparation claims, or to a justification for the contemporary legacies of colonialism and slavery.
One may interject that the specificity of the Island of Palmas case can render dubious a decolonial and emancipatory interpretation of intertemporal law as well as the attempt which is made later in this Article to harness the doctrine in favor of colonial reparation claims. Huber was first and foremost settling a dispute in which two competing colonial powers claimed sovereignty over a colonized territory. He did not set out to question colonialism, but to determine how to best exercise it, and consequently, the colonized people of the Palmas Island—or Miangas, which is now part of Indonesia—are glaringly absent from this story. For the Island of Palmas case is mostly known for its definition of sovereignty,Footnote 10 Huber had to determine which past law should be used to decide whether it was the Netherlands or the U.S. that held sovereign title over the Palmas Island. The U.S. mainly based its claim to sovereignty on the right of discovery—a right exercised by Spain in the sixteenth century, which then transferred title to the U.S. by way of cession under the 1898 Treaty of Paris following the Spanish-American War.Footnote 11 The Netherlands claimed sovereignty on the basis of their “peaceful and continuous exercise of state authority over the island” since at least 1677.Footnote 12
As put by Martti Koskenniemi, even though Huber’s formulation of the first limb excluded the date of the dispute, 1906, he still had to decide between different critical dates to determine the applicable law: “(1) [T]he acquisition of Spanish sovereignty in the sixteenth century; (2) U.S. succession to Spanish rights in 1898; and (3) the moment of the award, 1928.”Footnote 13 Huber chose the second option and as such, determined that the Netherlands had sovereign title over the Palmas island as “discovery was no longer a valid basis for title but had been replaced by the rule of ‘effective occupation’…introduced in the 1885 Berlin Final Act.”Footnote 14 The U.S. merely had an “inchoate” title of sovereignty which had not been maintained or subsequently acquired through effective occupation by Spain which then theoretically transferred its title. In other words, discovery alone may have been sufficient to establish a sovereign title over a territory in the sixteenth century, but this was no longer the case, at least since 1885. For this reason, Huber asserted that it was only necessary to consider whether the Netherlands had effectively occupied the Island in the “critical period” that preceded 1898.Footnote 15
In the immediate context of the Palmas case, there is no emancipatory promise of making “context move across time,”Footnote 16 only to choose between different colonial rules of international law. But, as this Article will show, intertemporal law, as received and interpreted by the discipline of international law, is far from being unidirectional. Decolonizing international law also means detaching intertemporal law from a static interpretation that makes it an invariable obstacle to reparation claims.
To do so, this Article focuses on three moves that reconstruct intertemporal law as a concept that can strengthen rather than hinder reparation claims for past wrongs. Section B examines how intertemporal law has been interpreted in the context of these claims so far, giving an overview of both conservative and more dynamic approaches and demonstrates their shared constraints. This same method is applied to the doctrine of intertemporal law itself in Section C, showing that the conservative interpretation of the doctrine has always coexisted alongside a more dynamic and potentially emancipatory approach within the discipline of international law. To realize this emancipatory potential in the context of reparation claims for past wrongs, Section D will finally suggest anchoring the notion of continuing violation of international law to the doctrine of intertemporal law. The results of this will be two-fold. First, this more dynamic interpretation will overcome the often-unpromising attempts of supporting reparation claims for past wrongs by merely seeking to reconstruct a more complex past legality. Second, it will demonstrate that the first and the second limb of intertemporal law should be considered jointly, and that their relationship is neither one of exception nor of relegation of one in relation to the other. It is acknowledged at the outset that this critical reconstruction of the intertemporal doctrine will not be a silver bullet for the successful judicialization of reparation claims in international law. For it remains a common trope to assert that the question of reparation and reparatory justice requires political rather than legal answers. But even though they may appear modest, legal considerations play a significant role in the political choice to either advocate for or oppose reparation demands for past wrongs. More precisely, a conservative interpretation of the doctrine of intertemporal law more often than not constitutes a convenient cloak for hiding political opposition to reparation demands. And as much as legal arguments are made to look different from political arguments,Footnote 17 a critical intervention in the contemporary international legal discourse is nonetheless required to deconstruct this deeply political conceptualization of the intertemporal doctrine as a mere obstacle to reparation claims.
B. Constrained Interpretations
Intertemporal law has widely been interpreted as a hurdle to reparation claims for past wrongs, upholding the argument that because conquest, colonization and chattel slavery were legal under the laws at the time, no legal obligation for reparations arises. This conservative interpretation and its accompanying notion that colonialism and slavery are a past issue, have been challenged just as widely by critical interventions in scholarship and practice. But as this section will show, intertemporal law is so internalized as a hurdle even by proponents of reparation claims that their legal arguments remain constrained by an overemphasis on the doctrine’s first limb.
I. Of Dominant Approaches…
The most adamant opponents to reparation claims have, unsurprisingly, been the former colonial powers. Now the self-conceptualized Western liberal democratic bloc, these states have met efforts to address past wrongs and their legacies with considerable political and legal resistance.Footnote 18 The reparation claim of the Ovaherero and Nama against Germany is symptomatic of this. Between 1904 and 1908, following a period of confrontation in the former colony of “German South West Africa,” today’s Namibia, the German colonial regime issued extermination orders and German imperial military forces systematically targeted and killed over 65,000 Ovaherero and 10,000 Nama peoples.Footnote 19 During these four years, an estimated eighty percent of the Ovaherero and fifty percent of the Nama died and their persecution was later qualified as the first genocide of the twentieth century.Footnote 20 Representatives of the Ovaherero and Nama have long sought redress for the systematic dispossession of property and genocide both at national and international level, and have twice filed complaints in U.S. courts against Germany to demand reparations for these crimes.Footnote 21 Even though both cases were dismissed on procedural grounds,Footnote 22 they have triggered bilateral negotiations between the Namibian and German governments, which importantly did not include representatives of the Ovaherero and Nama, culminating in the contentious 2021 Joint Declaration.Footnote 23 The legality of the Joint Declaration and the ongoing exclusion of the affected communities is currently being challenged in the Namibian High Court.Footnote 24
Germany has continuously denied that a genocide in the legal sense occurred and refused legal responsibility for these colonial crimes.Footnote 25 It has interpreted the intertemporal doctrine narrowly and with exclusive reliance on the first limb to argue that the acts committed by the German imperial forces did not constitute a violation of the laws in force at the time from which a corresponding right to reparations for the Ovaherero and Nama would derive.Footnote 26 The legal reasoning goes as follows: Because the Ovaherero and Nama, as indigenous peoples, were considered “uncivilized” in the contemporary colonial legal discourse, they did not have legal subjectivity in European international law and were legally without protection.Footnote 27 Therefore, international customary law and international humanitarian law that was in force at the beginning of the twentieth century are deemed inapplicable.Footnote 28 Furthermore, international treaties and conventions, such as the Preamble of the Second Hague Convention on the Laws and Customs of War and Annexed Regulation of 1899, the Final Act of the Berlin Conference of 1885, and the Geneva Convention of 1864 are interpreted to have only applied inter parties between sovereign signatory states and in international conflicts.Footnote 29 Germany further claims that genocide did not exist as a legal crime before 1948 and dismisses attempts to base legal responsibility on the retroactive application of later international law, such as the 1948 Genocide Convention, natural law, or violations of jus cogens norms.Footnote 30
Numerous, predominantly German, scholars have supported this line of reasoning. Notably, Jörn Kämmerer and Jörg Föh argue that past wrongs should be judged purely on the rules of international law applicable at the time and unaffected by subsequent legal developments.Footnote 31 After all, if the non-European “latecomers” seek to invoke contemporary public international law as a remedy, they cannot go beyond its “functional limitations” and “temporal relativity.”Footnote 32 Without acknowledging the second limb, they similarly conclude that no prohibition of genocide on colonial peoples existed one hundred years ago, rendering international law unfit to retroactively administer justice for historical wrongs.Footnote 33
Mirroring this approach, Stefan Talmon and Andreas Buser define the intertemporal doctrine merely by the first limb, and without acknowledgement of the second limb.Footnote 34 Buser emphasizes that “the intertemporal principle prohibits retroactive application of international law, the question of legality has to be answered by referring to the law in force at the time of the conduct” and that “[t]he telos of the intertemporal principle is legal stability and certainty.”Footnote 35 Pointing further to Articles 64 and 71(2) of the Vienna Convention on the Law of Treaties, both Talmon and Buser argue that substantive international legal norms, including those of jus cogens in the Genocide Convention, do not apply retroactively, as the termination of a treaty and the emergence of a new peremptory norm of general international law have no effect on rights, obligations or legal situations that were created by execution of the treaty prior to its termination.Footnote 36
In defining and interpreting the intertemporal doctrine exclusively by its first limb, former colonizing states, practitioners, and scholars can invoke discriminatory past laws to avoid a legal obligation to provide reparations for colonial wrongs in the present. This conservative approach, Ntina Tzouvala rightly argues, gives contemporary legal significance to the racist distinction between the “savage” and the “civilized”, thereby perpetuating the normative consequences of the “standard of civilization.”Footnote 37 This continues the simultaneous construction and exclusion of the “uncivilized” in the present day, in the guise of it being the unavoidable cost of the universalization of international law.
II. …And Critical Interventions
These conservative interpretations have been challenged by various critical interventions, which will be distinguished here between, first, attempts to prove that past wrongs were not lawful and constituted unlawful acts at the time they were committed, second, efforts to demonstrate the indeterminate, ambiguous, and pluralistic notions of the colonial laws in force at the time, and third, exceptions that were made to the principle of non-retroactivity in the past.
First, Nora Wittman opposes the reliance on the principle of non-retroactivity in international law in conjunction with the claim that past wrongs were “all legal” as “scientifically untenable.”Footnote 38 In the context of transatlantic chattel slavery, she argues that reparation claims can indeed be based on unlawfulness, “according to the relevant laws—African, European, international—of that time,” even though these laws were not adhered to in the colonies.Footnote 39 Wittmann outlines that “virtually all legal systems restricted the legality of enslavement to cases of captivity in just wars” and that enslaved persons retained some basic rights, such as the right to life and the right to seek protection, in “virtually all legal systems.”Footnote 40 Therefore, as transatlantic slavery was illegal from the beginning, a legal obligation to reparations exists in international law.Footnote 41
For the period between 1450 to 1550 and by focusing specifically on the practice of all actors involved in chattelization, Mamadou Hébié similarly argues that chattel slavery was unlawful at the time it was committed, based on the limitations of the two main doctrines, “natural slavery” and “just war,” which were regularly invoked during that period as justifications.Footnote 42 However, Hébié points out, there was insufficient support for and practice of both doctrines by the European colonial powers for them to actually serve as a legal basis.Footnote 43 He also stresses that the just war doctrine only provided legal justification for enslavement if an entity was first attacked and was then waging a just war, and these requirements were not met by the slave trade in that period.Footnote 44
Contrastingly, in his most recent article, Matthias Goldmann claims to adopt a post-colonial and pluralistic approach to the intertemporal doctrine to collapse the narrative that “it was all legal.”Footnote 45 He argues that colonial international law was too ambiguous in terms of its universality and primacy to support this narrative.Footnote 46 Instead, “[a]ll that exists are competing claims and visions of inter-polity law, European and non-European ones,” rendering the question of whether past wrongs violated international law “substantively insoluble.”Footnote 47 In lieu of reparation claims, Goldmann suggests a duty to negotiate and a reversal of the burden of proof in order to “reassign to former empires the risk deriving from the ambiguity of colonial international law that there may be no clear legal basis for reparation claims.”Footnote 48 Without making reference to the second limb, Goldmann seemingly concludes that intertemporal law cannot be applied to cases of past wrongs.
Andreas Von Arnauld, in a somewhat different approach, seeks to stretch the “dogmas” of intertemporal law and to deconstruct an overly “monolithic” conception of the law in force at the time.Footnote 49 For this, he suggests pluralizing contemporary legal discourse by reconstructing express public contestation of certain historical wrongs, arguing that where an allegedly legal practice was met with almost universal public outrage, the practice can be held illegal at the time of its conduct for the purposes of state responsibility.Footnote 50 However, for less clear-cut cases in which dissenting voices conflict with the prevailing contemporary legal opinion, historical wrongs cannot be qualified as a definite violation of international law ab initio, and no obligations to full reparations arise.Footnote 51 To avoid the denial of any form of reparations in these ambiguous cases and to transcend the question of illegality, von Arnauld also suggests a state obligation to negotiate with victims and descendants.Footnote 52 For this, he argues that the law in force at the time and corresponding ethical-legal principles must be considered to establish a violation of international law and the corresponding duty to give satisfaction.Footnote 53 Intertemporal law thus has a role to play, but von Arnauld remains similarly constrained by the first limb. His suggestion that only the modalities of the duty to give satisfaction will follow the evolution of international law—and thus the second limb—cannot convince.
Karina Theurer also emphasizes the ambivalent role of international law and proposes a decolonial interpretation of the intertemporal doctrine that deconstructs eurocentrism in international law and considers the existence of a pluralistic legal order before European international law became universalized.Footnote 54 For this, she effectively reframes the first limb’s question of “which law was in force at the time” to one asking whether the colonizer’s laws or those of the colonized were in force at the time.Footnote 55 Theurer argues that a legally correct application of the intertemporal doctrine cannot ignore the existence of “other” legal norms existing prior to and during colonization and that more research into this pre-colonial polycentric legal order is needed.Footnote 56 Joining von Arnauld and Tzouvala, Theurer also challenges the portrayal of the “civilization” criterion as a prevailing opinion at the start of the twentieth century, emphasizing its contested status as a legal principle at the time, and rightfully criticizes Germany’s reproduction of this racist principle in the present day.Footnote 57 It is here that she engages directly with the second limb of the intertemporal doctrine. For this she draws on Steven Wheatley, who has recently argued that a dynamic interpretation of the law is inscribed in the second limb of the intertemporal doctrine, confirming that the determination of the applicable law for a scenario can change, depending on when the available evidence of state practice and opinio juris are examined.Footnote 58 Following this, Theurer thus argues that more research is required on when the “civilization” criterion appeared and disappeared from international law, as it may “not fulfill the requirements of the second element of intertemporal law, and as a consequence, might not be rightfully taken as a basis to determine the laws in force at the beginning of the 20th century.”Footnote 59 Consequently, Theurer rightfully cautions, the application of the intertemporal doctrine faces numerous theoretical and practical challenges and is more complex than Germany’s legal reasoning concedes.Footnote 60 Overall, it is important to note that Theurer engages comparatively widely with the second limb and is indeed the first to affirm Wheatley’s legal argument for a more dynamic approach to the doctrine of intertemporal law in the context of reparation claims for past wrongs.
Lastly, Makau Mutua and several UN Special Rapporteurs have pointed to exceptions to the intertemporal doctrine and non-retroactivity.Footnote 61 In the past, natural law arguments have been used in German legal doctrine to address Nazi crimes that were either not prohibited at the time they occurred or legally justified by contemporary inhumane and discriminatory laws.Footnote 62 Similar legal arguments were used after German unification to establish legal responsibility for the shooting of refugees at the internal border between the Federal Republic of Germany and the former Democratic Republic of Germany.Footnote 63 The Nuremberg trials, the London Charter, and the financial restitution and compensation paid by Germany to Holocaust victims all demonstrate that states can indeed choose to account for past wrongs ex post factum, prompting Mutua to wonder if “the West would have had the same response if these crimes had been committed against black people.”Footnote 64 However, notably, in a very recent decision of the Brussels Court of Appeal, Belgium has been found guilty of crimes against humanity and ordered to make reparations to five mixed-race women who were forcefully removed from their Congolese mothers by the colonial state between 1948 and 1952.Footnote 65 It was initially ruled that such acts were not unlawful during colonization, but the Court of Appeal reversed this decision and qualified the forced removals as “persecution constituting a crime against humanity.”Footnote 66 The policy of forced removals was thus found to contradict the concept of crime against humanity enshrined in the Nuremberg Tribunal Statute of 1946 to which Belgium was a signatory.Footnote 67 And even though the application of the concept of a crime against humanity to the colonial context was less than probable during the 1948–1952 period, the concept was nevertheless part of a pluralist international legal discourse which was not merely reducible to the colonial law applicable at the time.
These legal arguments are important critical interventions, and they rightly emphasize that past international law is considerably more indeterminate than Germany and other reparation opponents would like to concede. But they too remain constrained by the question of the applicable law in force at the time when past wrongs were committed. The belief that reparation claims can be resolved by authoritatively deciding over how the past is to be written seems hard to shake, and, accordingly, most of the critical approaches outlined are hesitant to place colonial crimes in the “wrong” context or time, which would be to commit the dreaded “sin of anachronism.”Footnote 68 This results in little acknowledgement of the second limb’s existence, let alone its dynamic interpretive potential.
C. Complexifying Intertemporal Law
The method of critical reconstruction of past law discussed above, strangely, does not seem to extend to the very concept of intertemporal law. However, it is very dubious, even in the context of the Island of Palmas case, to interpret the intertemporal law doctrine as a mere reflection of non-retroactivity and solely as the authority of the past over the present. As noted by Judge Al-Khasawneh before before the ICJ, “intertemporal law as formulated by Max Huber is not as static as some would like to think.”Footnote 69 In 1951, Georg Schwarzenberger thus defined the doctrine as the “determination of international law prevailing at successive periods and applicable to a particular case.”Footnote 70 This is arguably not a deviation from what was done by Huber in 1928. And from this definition arises the “irretrievably elusive” nature of intertemporality, which has been variously received and interpreted within the discipline of international law, oscillating between conservative and emancipatory approaches, reflecting “the combination by Max Huber of evolutionary and static elements in his formulation of the concept.”Footnote 71
I. A Dangerous Concept?
One symptomatic example that shows that intertemporal law cannot be reduced to its conservative dimension and its first limb are certain criticisms addressed to the doctrine by Huber’s contemporaries. In a 1933 volume dedicated to the Island of Palmas arbitration, and while the author agreed with the decision, it was nevertheless oddly suggested that the “arbitrator’s theory of intertemporal law and its corollary, the distinction between the creation and the existence of rights, must be rejected.”Footnote 72 It is indeed odd as Huber’s decision directly derives from its application of the intertemporality doctrine. This anguish vis-à-vis the doctrine can be explained by its emancipatory potential, and the perception that intertemporality was thrown into the international legal discourse and made available for use outside the context of competing colonial claims. Philipp Jessup and Hersch Lauterpacht are probably the two most preeminent international lawyers who voiced their anxiety or opposition vis-à-vis the “dangerous” precedent that constituted the enunciation of the intertemporal law doctrine in 1928.
For Jessup, intertemporal law was dangerous for the very reason that it had “important implications far more extensive than the limits of Palmas Island” and that “[s]uch a retroactive effect of law would be highly disturbing.”Footnote 73 But what Jessup saw as disturbing might be what one can see as emancipatory. The example he gave to illustrate “the chaos” it could create if the doctrine were to be applied “to private law and private titles” is in that regard illuminating. Intertemporal law, he went on, would legalize domestic legislations “destructive of property rights.”Footnote 74 Using the example of the Mexican nationalization of natural resources and Romanian land reform, Jessup ended up interpreting intertemporal law not as the authority of the past over the present but the opposite. He thus argued that the “logical corollary” of intertemporal law would be that “land titles, valid under pre-existing national laws, can be wholly disregarded (i.e., confiscated) if a new system of land tenures is instituted by the state.”Footnote 75 What is chaos for Jessup and the capitalist interests and land owners that intertemporal law was apparently menacing, is, from another perspective, redistributive justice and, in a sort, reparations for past injustice and inequality.
Lauterpacht, on his end, considered the doctrine a “clear departure” from classical international law.Footnote 76 Less outraged than Jessup, he nevertheless seemed to similarly suggest that this deviation might give precedence to present law at the expense of past law. More specifically, he pointed out the possible outcome the application of intertemporal law could have for specific litigations:
[I]t has been suggested…that if, for instance, a tribunal had to decide upon a claim for damages arising out of interference with slave traffic at a time when it was not generally condemned by international law, it would be entitled to base its decision on the law as existing at the time of the award.Footnote 77
Analogies can obviously be drawn with current claims for reparations, and with what one might call continuing damages if dwelling on the example chosen by Lauterpacht. Ultimately, the arguments deployed by Jessup and Lauterpacht show that the emancipatory potential of the doctrine of intertemporal law, if not desired by these two authors, was present from the origin and not seen as a legal aberration. And it is the fact that this possibility was genuinely feared that confirms that intertemporal law is not condemned to be indefinitely interpreted as an obstacle to reparation claims.
II. Intertemporality at the World Court
For Lauterpacht, the question of intertemporal law was part of the change and stability dichotomy.Footnote 78 It is through this prism that the various uses of the doctrine by the ICJ can be approached. Indeed, different judgments, advisory opinions, judges’ opinions, or states’ arguments addressing the question of intertemporal law show explicit and implicit interpretations of the doctrine oscillating between these two poles. The corollary of this oscillation is thus the opposition between a conservative approach consecrating the force of past law over the present, and a more dynamic approach of past and present laws.
If the Court has most recently adopted a dynamic approach to time and law in the Chagos case, the attitude of the court vis-à-vis intertemporality hardly follows a linear course. In the 1960 Right of Passage over Indian Territory and 1966 South-West Africa cases, the Court firmly refused to go beyond past law, that is, the international colonial law of the eighteenth century in the first case, and the mandate system when it was “instituted” and “framed” in the aftermath of WWI in the second case.Footnote 79 In the 1971 Namibia case, however, the Court adopted a radically different approach and contended that “its interpretation cannot remain unaffected by the subsequent development of law.”Footnote 80 Unlike the 1966 South-West Africa case, the Court did not confine itself to the immediate context of the establishment of the mandate system. Instead, it interpreted the concept of “sacred trust of civilization” in the light of the contemporary law of decolonization and self-determination.Footnote 81 For it was an interpretation that could not be available for the people of the interwar period—self-determination was still an embryonic legal concept—the Court gave a meaning to the concept that could not have been reached by a mere resort to the first limb of the intertemporal law doctrine. The Namibia case is thus one enlightening example of how the two limbs of the doctrine can be applied altogether: resort to the first limb permitted to identify the critical concept of “sacred trust of civilization” through which the legality of South Africa’s presence in Namibia could be assessed, while the second limb permitted to interpret such an “evolutionary”Footnote 82 concept against the backdrop of international law’s development.
Yet the Court took a major step back in the 1975 Western Sahara case. The questions addressed to the Court by the General Assembly (“GA”) were, truthfully, restrictive and implicitly rooted in a conservative reading of intertemporal law: “Was Western Sahara…at the time of colonization by Spain a territory belonging to no one (terra nullius),” and if no, “[w]hat were the legal ties between this territory and the Kingdom of Morocco and the Mauritanian entity?”Footnote 83 The questions were obviously framed with the hope that the answers would reinforce the legitimacy of Moroccan and Mauritanian claims over the territory. The questions were, in a sort, exemplary of a situation of a non-self-governing territory trapped between a dying colonial power, Spain, and a power with colonial aspiration, Morocco. The Court answered the questions—Western Sahara was not terra nullius and the legal ties between Morocco and Mauritania with the territory did not amount to sovereign titles—by emphasizing the need to refer “to the law in force at that period”Footnote 84—that is to resort to a legal tool forged by colonizers in order to justify colonialism. The questions put to the Court were far from innocent—though the reaffirmation of the Sahrawi people’s right to self-determination saved the dayFootnote 85—and the fact that they did not refer explicitly to a contemporary legal problem put the very notion of intertemporal law at odds. As noted by Judge Dillard in his separate opinion, “it seemed difficult to discern any contemporary legal relevance to any answer the Court might give if it were confined to the status of a territory some 90 years ago the title to which was not in dispute then or now.”Footnote 86 In other words, what would be the relevance of determining past law if not to subsequently question either its ongoing validity, its evolution and interpretation through time, its disappearance or its replacement?
In the 1986 Frontier Dispute case between Burkina Faso and Mali, the Court emphasized the need to respect the uti possidetis juris principle, that is, the intangibility of the frontiers inherited from the colonial period.Footnote 87 But as noted by Judge Abi-Saab in his separate opinion as regard to some frontier lines, “no visible outline of the ‘photograph of the territory’ on the critical date can…be discerned…either from regulative texts, or from any sufficiently conspicuous body of administrative practice. It was up to the Chamber to give concrete shape to the line.”Footnote 88 The Court used its freedom by resorting to maps dating back to the colonization to settle the issue.Footnote 89 Because such maps did not “in themselves constitute a legal title,” Abi-Saab would have preferred if the Court had resorted to “considerations of equity infra legem in the interpretation and application of law, given that the region concerned is a nomadic one, subject to drought, so that access to water is vital.”Footnote 90 Instead of using contemporary standards of equity to mitigate potential “historical injustices,” the ICJ “expressly refused to look beyond the frontiers drawn by the colonial powers.”Footnote 91 The underlying idea of such a choice was that the authority of the past represented by the uti possidetis juris principle was more likely to preserve the “independence and stability of new States being endangered by fratricidal struggles provoked by the challenging of frontiers following the withdrawal of the administering power.”Footnote 92 This was not disputed by Abi-Saab, who recognized the historical importance of the principle in consolidating newly independent states, while noting that no principle was “absolute” and immune from being “interpreted in the light of its function within the international legal order.”Footnote 93 In that case, Abi-Saab believed that contemporary standards of equity would have certainly served the interests and well-being of certain communities better than the resort to colonial maps drawn during colonization, a period during which such considerations were obviously hardly central.
In the 2012 Jurisdictional Immunities of the State (Germany v. Italy) judgment, the Court used Article 13 of the International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts (“ARSIWA”) to justify that the relevant German acts—war crimes—of 1943 to 1945 could only be analyzed “by reference to the law in force at the time [they] occurred.”Footnote 94 Article 13 of the ARSIWA indeed provides that “[a]n act of a State does not constitute a breach of an international obligation unless the State is bound by the obligation in question at the time the act occurs.”Footnote 95 Italy, however, had put forward that the German wrongful acts constituted a “breach of an international obligation by an act of a State having a continuing character” as provided by Article 14 of the ARSIWA.Footnote 96 What was continuous according to Italy was “Germany’s continuing violation of its obligations under international law to provide appropriate and effective reparation to Italian victims of war crimes.”Footnote 97 As the case touched upon the sensitive question of state immunities, the Court unsurprisingly sided with Germany’s reasoning, which, regarding intertemporality, would be replicated in the case concerning the genocide of the Ovaherero and Nama peoples. Whether the compensation claim was well founded in substance was left unaddressed by the Court. Germany emphasized that “[i]nternationally wrongful acts belong to the past [and] do not bring into being a dynamic regime that requires being adapted continually to changing circumstances.”Footnote 98 And if human rights or connected regimes existed as “a moral and philosophical ideal” in the past, “history cannot be rewritten” as introducing the law of the twenty-first century “back into the [twentieth] century” would be mere “judicial activism.”Footnote 99
In the 2019 Chagos case, the United Kingdom advanced a similar argument explicitly referring to the first limb of intertemporal law. Although the 1965 separation of the Chagos archipelago would be unlawful today, and would have been so shortly after Mauritius gained independence in 1968, the argument goes, international law, in the period of 1965 to 1968 nevertheless authorized the United Kingdom to proceed in this way, thus enabling it today to maintain its administration over the archipelago in complete legality.Footnote 100 In a complete rejection of the second limb, the British interpretation of intertemporal law posited that the Court “should look at a legal concept as it stood at the relevant time, and not in the light of how the law subsequently developed.”Footnote 101 Cyprus, still occupied by Turkey in its northern part and amputated of its territory by the so-called British “sovereign base areas,” knows too well that a post-colonial situation is not equivalent to an a-colonial one and clearly recognized this conservative approach to intertemporality to be a mere justification for the preservation of colonial vestiges:
[T]he question before the Court refers to the lawful completion of the process of decolonisation. Decolonisation is a process, not a single act; and until the process is entirely completed it generates continuing obligations for both the administering State and the international community of States as a whole, intertwined as it is with the principle of self-determination.Footnote 102
In finding the unlawfulness of the separation of the archipelago, the Court certainly relied on its most dynamic approach to date and rejected the British approach to intertemporal law that severed it of its second limb. The Court thus decided that it “may also rely on legal instruments which postdate the period in question, when those instruments confirm or interpret pre-existing rules or principles.”Footnote 103 By adopting this more dynamic approach, the Court was for instance able to resort to the 1970 Declaration on Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations to interpret the right to self-determination in the 1965–1968 period.Footnote 104
III. Bedjaoui’s Intertemporal Law
All these cases illustrate how intertemporal law is the object of a struggle over its interpretation, oscillating between conservative, and sometimes frankly reactionary, interpretations, and more progressive and dynamic ones. But even in cases that consecrated a conservative approach, the Court still provided opportunities for resistance. Mohammed Bedjaoui—not yet a Judge nor President of the ICJ, but already a major figure among Third World lawyers and then representative of Algeria—certainly offered the most elaborate decolonial interpretation of the doctrine of intertemporal law during the Western Sahara case.
For Bedjaoui, the questions addressed to the Court by the GA were problematic for the very reason that they were neglecting the “intertemporal problem,” thereby making it impossible to “change context.”Footnote 105 In other words, relying solely on the first limb of the intertemporal law doctrine and past law, as implied by the questions addressed to the Court, might be a temporal issue, but not an intertemporal one. In the context of Western Sahara, Bedjaoui contended that the Court should have envisaged two options. The first one entails “rejecting colonialist law and referring to the legal system that existed at the time, but which was submerged by European legal imperialism,”Footnote 106 that is the interpolity law approach eventually followed by the Court and discussed above in the work of Goldmann and Theurer.Footnote 107 This approach would have allowed a counter-argument to the European claim that Western Sahara was terra nullius.Footnote 108 The problem with it, according to Bedjaoui, is that it simultaneously prevents the claim that Western Sahara had been a state at this time as it would require importing the European legal concept of state, right after having rejected this very European legality.Footnote 109 The second option, more promising for Bedjaoui, is to use “the principles developed by international law” and especially those preoccupying the international community at the moment of the proceedings.Footnote 110 Intertemporal law thus required taking into account the right of self-determination—a jus cogens norm—as it had become the cornerstone of a new international legal order ambitioning to overcome its colonial origins.Footnote 111
Intertemporal law, for Bedjaoui, only has a function in situations where a conflict between a “new title” and an “ancient title” can be identified.Footnote 112 A conservative approach focusing only on the first limb and rooted in a static approach to time would not only ignore the function of the doctrine but would ultimately lead to absurd results. Implicitly referring to Moroccan claims over Western Sahara, Bedjaoui asserted that the purpose of intertemporal law “is not to give new legal life to a title that predates the title that has now expired or is in the process of expiring.”Footnote 113 In this frantic search for authoritative answers in past law and the “endless historical arguments” it potentially entails, he argues that Huber might have been justified in rejecting the right to discovery not in favor of effective occupation, but of the 16th century papal bull, while Turkey could have claimed Algeria on the basis of the sovereignty the Ottoman Empire exercised over the territory before French colonization.Footnote 114 This last example chosen by Bedjaoui, while being intentionally provocative, demonstrates how he understood the right to self-determination—exercised by the Algerian people during the war of independence and during the referendum of 1962—as a way to “resolve any conflict in our time based on historical titles.”Footnote 115 In doing so, he did not repudiate the first limb of intertemporal law and the need to identify the law in force at the time. But once identified, this past law should nevertheless pass through the filter of the second limb in order to assess whether this past law and its legal consequences conflict with subsequent developments of international law.
If Costas Douzinas asked whether law can decide history, and answered in the negative,Footnote 116 Bedjaoui on his end was unconvinced that the past could decide the law by the simple virtue of being the past. His position was close to Rose Parfitt’s one when she contends that the “past does not…offer us the option of acting, but rather demands that we take action to transfigure it.”Footnote 117 And even if the Court “was unpersuaded by Bedjaoui’s suggestion that the legal consequences of a past situation should be assessed in light of contemporary international law,”Footnote 118 he certainly offered the most compelling reinterpretation of Huber’s concept to adapt it to the new reality of an international law of decolonization.
D. Intertemporal Law and Continuing Violations of International Law
What to do then with Bedjaoui’s reinterpretation of intertemporal law in the context of colonial reparation claims brought forth in an international law of decolonization? Following his approach, it is important to note that reconstructing pre-colonial or indigenous laws that have been erased, subjugated, or “sclerosed”Footnote 119 by colonialism has meaning for the interpretation of the intertemporal law doctrine. These critical interventions not only deconstruct the narrative that it was all legal, they also challenge past international law’s claim to universality by unearthing its colonial roots and thereby “provincializing”Footnote 120 it. In this way they contribute to a more inclusive practice of legal history that breaks with the systemic silencing of “other” non-Western voices, legal orders and epistemologies.
But Bedjaoui’s approach goes even further by emphasizing the emancipatory potential of contemporary international law. In some of its manifestations, it can offer better routes to address past wrongs than past laws do, as the latter, even if they are non-colonial, cannot necessarily create adequate rights to reparations or emancipation in the present day. Contemporary international law therefore has a role to play and its emancipatory potential can be accounted for by the second limb of the intertemporal doctrine. After all, Khan rightly observes that:
Most likely, the only way out is to frankly admit that the gist of what Huber writes here lies somewhere else…To allow century-old titles or rights, rooted in an entirely different social and political environment, to continue to claim validity today certainly constitutes a challenge to the credibility and acceptability of the international legal order…Huber’s jurisprudence is perfectly in line with his theoretical conviction that international lawyers should strive for a dynamic understanding of international law.Footnote 121
To interpret the first and the second limb together, instead of marginalizing the latter to the outskirts of legal thought and practice, is not only necessary to account for the emancipatory potential of contemporary international law, but crucial for the function of the intertemporal doctrine itself. This more comprehensive interpretation demonstrates that the notion of the doctrine as a “defense” or “hurdle” to reparation claims for past wrongs is indeed overstated.
I. The Centrality of Continuing Harm
Contemporary international law can sustain more legal accountability for past wrongs than its discourse currently concedes, and we posit that this can be accounted for with the concept of continuing harm. Often overlooked, even in critical scholarship, it can establish a causal nexus between past wrongs and their direct present-day consequences.Footnote 122 Even though this concept has generally been met with the concern that too much time has passed between the past wrong and the present claim, and that in complex, potentially multifactorial settings, causality could not possibly be established,Footnote 123 it has been conclusively shown that colonialism and slavery are the cause of numerous contemporary racially discriminatory legacies and human rights violations.Footnote 124 In her 2019 report, then-UN Special Rapporteur Tendayi E. Achiume emphasized that:
[T]he formal abolition of slavery and colonialism has not addressed the ongoing racially discriminatory structures built by those practices…many contemporary manifestations of racial discrimination must be understood as a continuation of insufficiently remediated historical forms and structures of racial injustice and inequality.Footnote 125
In other words, slavery and colonialism cannot be reduced to titles—the right to possess slaves or colonies for instance—whose abolition would automatically also end the ongoing legal consequences of the social formations that slavery and colonialism were part of.Footnote 126 The legal prohibition of slavery and colonialism should not be considered as historically completed or to apply just once to formerly enslaved and colonized peoples. Instead, contemporary international legal norms that prohibit slavery and colonialism must be recognized to play a key role in ending socio-economic systems that, when they do not simply maintain racial, political or economic subjugation, still reward former colonizers and the descendants of slave owners, while continuously disadvantaging and discriminating against the descendants of colonized and enslaved peoples.
Regarding the reparation claim of the Ovaherero and Nama peoples, the UN Special Rapporteurs, in their joint communications to the Namibian and German governments, highlighted that the socio-economic impact of the expropriation of property and land, the racial discrimination and the transgenerational trauma of the aftermath of colonialism and genocide have continued on to the present day.Footnote 127 Victims’ descendants lack access to their land, natural resources, water, and other basic rights.Footnote 128 Irreparable damage has been caused by the loss of names, religion, practices, and group organization resulting in the loss of cultural identity and belonging.Footnote 129 Unaddressed trauma from the institutional sexual violence against women and girls has resulted in continuing gender-based violence.Footnote 130 The colonial genocide has reduced the population size and significance of the Ovaherero and Nama peoples to a dispossessed minority, and many were forced to flee or fled Namibia, while white settlers’ descendants continue to possess most of the commercial agricultural land and the commensurate wealth and economic benefits.Footnote 131 The harm suffered by the victims of the colonial genocide can therefore clearly be linked to the victims’ descendants lives in present-day Namibia.
II. Continuing Violations and the Second Limb
This causal nexus between the past and the present in the form of continuing harm requires transposition into a continuing violation of international law of which the second limb of intertemporal law could then take account—irrespectively of whether the original act in question was unlawful—to give rise to a right to reparations.Footnote 132
The interpretive approach suggested here does not imply that the first limb becomes irrelevant or that the application of the second limb necessarily equates to a destruction of past legal norms. Instead, the first and second limbs are considered jointly, and while the first limb may determine the legal status of an initial act, the application of the second limb necessitates the continued manifestation of the right in question to be considered.
This approach can arguably result in a number of different legal scenarios. First, the old legal norm may be found to remain valid as it does not conflict with the evolution of international law, or, in the case of a now-prohibited act or obsolete norm, to not create ongoing effects that could still conflict with present international law. Second, the old legal norm may remain valid but ought to be interpreted differently by considering current international law, as demonstrated by the ICJ in the Namibia case. Third, the old legal norm, or lack of norm on the basis of which certain past acts are held lawful,Footnote 133 may be found to conflict with a new legal norm, which could require the destruction of the old norm or of its ongoing effects as they constitute inherent violations of contemporary international law from the point in time at which they became unlawful.
The discriminatory practices that characterized slavery and colonialism have continued on long after their formal prohibition.Footnote 134 They have been ongoing to a time when international law considers them to be in violation of, for example, Article 1(3) of the UN Charter, Articles 4 and 7 of the Universal Declaration of Human Rights, the International Covenants, and the International Convention for the Elimination of All Forms of Racial Discrimination (“CERD”).Footnote 135 What follows further is that for a reparation claim such as that of the Ovaherero and Nama, numerous heads of damage exist. The extensive and ongoing systematic violations of civil, political, economic, and cultural rights all require effective remedies and full reparations, as established by Article 2 of the Covenant on Civil and Political Rights, the Basic Principles and Guidelines on the Right to a Remedy and Reparations for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, and Article 6 CERD.
The principle of self-determination is simultaneously illustrative of scenarios 2 and 3. First, self-determination is often destructive of past laws inherited from the colonial era. The typical example is when colonized people gain national independence and self-determination destroys the legal norm according to which the metropole had a territorial title over the newly independent territory. Whatever legal norms the first limb of intertemporal law can permit to identify in this case, be it the right of discovery, effective occupation, or terra nullius, the consideration of the evolution of international law required by the second limb creates a conflict which is resolved through the precedence taken by the contemporary right to self-determination.Footnote 136
At the same time, self-determination is an evolutionary concept whose content has rapidly evolved with the requirements of a genuine decolonization. Initially understood as a mere right to self-government, decolonization, and self-determination have evolved to encompass other dimensions, most importantly, economic and not only political ones.Footnote 137 As the end of formal colonialism in the economic sphere remained largely fictional in many newly independent states,Footnote 138 self-determination was progressively associated not only with the right to self-government, but also with the principle of permanent sovereignty over natural resources (“PSNR”).Footnote 139 This implies that decolonization, as colonialism, is not a mere event but a process whose completion remains often partial and for which reparations are still required. In situations of self-determination exercised by means of national independence, it was often assumed, however, that self-determination was fulfilled with formal political independence.
But in cases where newly independent states denounced so-called acquired rights or concessions granted before independence, or even at the moment of independence, an intertemporal problem may arise.Footnote 140 And while the first limb might help to identify self-determination as a legal principle through which the legality of a potential abrogation or revision of a concession can be assessed, the second limb might help to highlight how self-determination has considerably evolved. Schematically, a resort to self-determination as understood prior to the development and crystallization of the legal principle of PSNRFootnote 141 as custom, might lead to the conclusion that the abrogation or revision of a concession by a newly independent state is unlawful as self-determination was mainly concerned with the right to self-government. But the application of the second limb could lead to conclude that even if the grant of a concession prior the independence or even after the independence was not contradicting the principle of self-determination then, the maintenance of such concession would eventually violate the right to self-determination and the principle of PSNR at the moment of the dispute. For the maintenance of such concessions, depending on their nature, might still deprive the state and its population from enjoying the benefits of their natural resources and still limit their exercise of the right to self-determination.Footnote 142 As such, the nationalization, expropriation, or abrogation of a concession could be seen, in certain circumstances, as “unilateral reparative action,” that is, an action aimed at “recover[ing] part of what is owed to victims of colonialism and transatlantic slavery (and their descendants), and [at pushing] responsible parties (such as former colonizing states) to discharge further reparative duties.”Footnote 143
Lastly, the second limb can also facilitate the consideration of the existing right to reparations, first formulated in the Factory at Chorzów case,Footnote 144 in conjunction with the broader evolution of international law. Firstly, Andreas Fischer-Lescano argued that Article 11(2) of the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) points to the creation of an international opinio juris which no longer deems acceptable the twentieth century legal norms of dominance and exclusion, such as the racist “civilization” criterion, when addressing past wrongs.Footnote 145 This presents a direct stumbling block to Germany’s reliance on the “civilization criterion” via the first limb in 2024. Secondly, Article 28(1) UNDRIP arguably demonstrates a more dynamic approach to the right for reparations as it can accommodate past situations of indigenous land deprivation, notwithstanding the heated debate on retroactivity during the travaux préparatoires.Footnote 146 This is because, Frederico Lenzerini argues, “the communities concerned continue to suffer today the grief resulting from the fact of having been dispossessed of their land in the past, they are actually entitled to redress due to a wrong that they are experiencing at present.”Footnote 147 In other words, once it is accepted that most cases of past indigenous land deprivation entail continuing harmful effects to the present day, it becomes clear that this is not a question of retroactive application at all, but one of considering these ongoing, persisting violations of international law for which reparations are due under Article 28(1). Although UNDRIP is generally presented as not legally binding,Footnote 148 the 2012 Resolution by the International Law Association found several key provisions under UNDRIP to correspond to existing state obligations under customary international law, including the rights to traditional lands, territories and resources, and to reparations for wrongs suffered.Footnote 149 On the basis of continuing harm, Article 28 can thus create wider obligations to provide reparations for the violation of indigenous land rights, and we suggest that this can be transposed to past wrongs more generally via the second limb of intertemporal law.
E. Conclusion
Our interpretation of intertemporal law, while largely drawing on interpretations available within the discipline of international law, might still be seen as too radical by advocates of the conservative approach to intertemporality. But this alleged radicality is worth considering in light of reparations that have been made by former colonies to the former metropoles for centuries, for committing the grave mistake of being colonized. To various extents, this “Western law of reparations” as Antony Anghie calls it, with its outrageous inversion of the victim and perpetrator dialectic, is far more radical than any “Third World system” for reparations could possibly be.Footnote 150 For instance, as Liliana Obregón outlines, Haiti never received reparations for the millions of people who were enslaved, died due to enslavement or centuries of forced free labor, but, in 1825, France forcefully imposed a debt of 150 million francs for the recognition of the Haitian revolution and independence as well as for indemnification of French plantation and slave owners for their “lost property.”Footnote 151 This debt was not paid off until 1947. Similarly, after the abolition of slavery in 1833, the UK paid the equivalent of today’s sixteen billion pounds to approximately three thousand families of enslavers for their “lost property” and this tax-funded compensation was not finished being paid off until 2015.Footnote 152 Similar payments were made to enslavers in the U.S. following the Compensated Emancipation Act in 1862.Footnote 153 Notably, Haiti is symptomatic of many postcolonial states having to pay reparations for gaining freedom and independence, and subsequently, for alleged violations of foreign corporations’ acquired rights upon nationalization.Footnote 154 These payments have turned into often never-ending debt, disrupting their social and economic orders legitimized by the existing international legal system.Footnote 155
Ultimately, the argument laid down in this Article does not suggest that a better interpretation of intertemporal law constitutes a turnkey method to successfully obtain reparations for past wrongs. It is more likely that greater forces will eventually convince states to address the ongoing injustices they participated in creating. In another context, Bedjaoui nonetheless wished to “give lawyers…a useful mission to accomplish” within the shared effort to promote and realize a new international economic order (“NIEO”).Footnote 156 He added that “[l]egal considerations constitute an attempt, together with others in the other disciplines, to clarify the factors which can either help or hinder the implementation of the NIEO.”Footnote 157 The same can be said to be true in the context of reparations, and this Article modestly tries to contribute to, or at least not to hinder, the reparations movement through the narrow issue of intertemporal law. By challenging the conservative approach, it is thus at minima hoped that even if a more emancipatory interpretation will not embark international law on toward asserting more clearly an obligation to provide reparations for past wrongs, it will render weaker those arguments opposing reparation claims based on the authority of intertemporal law.
Acknowledgements
A previous version of this Article was presented at the Transnational Junior Faculty Forum organized by the German Law Journal and Max Planck Law in Berlin in September 2024. We would like to thank all the participants for their generous engagement with our paper. We particularly thank Professors Florian Hoffman and Niels Petersson for having commented our paper and for all the feedback and suggestions. All translations from French and German are our own.
Author Information
Rémi Furhmann is a PhD candidate from the University of Glasgow, School of Law, Glasgow, United Kingdom. Melissa Schweizer is a recent LLM graduate from the University of Brighton, School of Law, Brighton, United Kingdom.
Competing Interests
The authors declare none.
Funding Statement
No specific funding has been declared for this article.
Open access
