Gail J. Boling is a U.S.-licensed attorney and legal researcher working in the West Bank, including in association with Birzeit University’s Institute of Law and the Palestine Yearbook of International Law, as Assistant Editor. J.D., Ohio State University College of Law; B.A., University of Chicago; member of the Illinois Bar.
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Island of Palmas Case (Netherlands, United States), Reports of International Arbitral Awards 2, 831 et seq. (845), award of 4 April 1928.
There are various uses of the phrase “critical date.” I am using it with reference to the process of determining when a breach arose. It can also be used with reference to the process of determining what the cut-off date for jurisdiction is under a jurisdictional limitations clause ratione temporis (which is actually the more common usage of the phrase). Because I am focusing on the choice of law function of the intertemporal doctrine, I would like to follow T.O. Elias in using the term “critical date” to refer to the point in time at which the state actions comprising the breach of an international obligation occurred, because that time period will determine which substantive rules of law to select. See T.O. Elias, “The Doctrine of Intertemporal Law”, American Journal of International Law 74 (1980), 285 et seq., 292.
See R. Jennings, The Acquisition of Territory in International Law, 1963
Island of Palmas Case, See note 4, 845. Emphasis added.
Elias, see note 5, 286 (citing P. Jessup and W.J.B. Versfelt, who published a 1928 article and a 1933 book, respectively, on the Island of Palmas arbitration decision and both expressed this fear); Jennings, see note 6, 30: “If indeed the second branch of the rule of intertemporal law is allowed to mean more than this, the result is not only that title ceases to have significance, it also means that the first part of the rule is itself virtually cancelled of its effect. It means that title has so to speak to be earned again at every moment of time. Under these conditions no title would be secure and the supposed aim of the law — stability — would be utterly defeated.”
Elias, see note 5.
Ibid., 305. Emphasis added.
See, e.g., The Minquiers and Ecrehos Case (France, United Kingdom), ICJ Reports 1953, 47 et seq. (where the ICJ followed the rule of Huber’s second prong in deciding that maintenance of territorial title, as distinct from its abstract acquisition, must be in conformity with the relevant rules of law as they evolve over time and not merely with the law contemporaneous with the acquisition of title); Aegean Sea Continental Shelf Case (Greece, Turkey), ICJ Reports 1978, 1 et seq. (where the ICJ interpreted specific terms in Greece’s jurisdictional reservation to the 1928 General Act for the Pacific Settlement of International Disputes in light of their “evolving” meaning over time, since they were generic terms, rather than viewing their meaning as frozen in content as of the filing of the reservation in 1931).
Elias, see note 5, 307. Emphasis added.
R. Higgins, “Time and the Law: International Perspectives on an Old Problem”, ICLQ 46 (1997), 501 et seq.
See, e.g., South West Africa cases, ICJ Reports 1966, 294 et seq. (where Judge Tanaka rejected the suggestion that the mandate should be interpreted only by the law of 1920, and that contemporary law did not apply, stating “In the present case, the protection of the acquired rights of the Respondent is not the issue, but its obligations, because the main purposes of the mandate system are ethical and humanitarian. The Respondent has no right to behave in an inhuman way today as well as during these 40 years.”); Legal Consequences for States of the Continued Presence of South Africa in Namibia, ICJ Reports 1971, 31 et seq. (where the ICJ took the position that the League of Nations Covenant Article 22 guarantees that the mandate was a “sacred trust for civilization” should be assumed to be understood by the parties as having an evolving, rather than static, content); Aegean Sea Continental Shelf Case, see note 11.
Higgins, see note 13, 516. Emphasis added.
Draft Articles on Responsibility of States for Internationally Wrongful Acts, in Report of the International Law Commission on the Work of Its Fifty-third Session, GAOR 56th Sess., Suppl. No. 10, at 43, UN Doc. A/56/10 (2001), available at <http://www.un.org/law/ilc>, hereinafter “ILC Draft Articles on Responsibility” (this document also contains the official ILC commentary on the draft articles). The ILC’s commentary to Article 13, para. 1 reads as follows: “Article 13 states the basic principle that, for responsibility to exist, the breach must occur at a time when [the] State is bound by the obligation. This is but the application in the field of state responsibility of the general principle of intertemporal law, as stated by Judge Huber in another context in the Island of Palmas case: ‘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.’ Article 13 provides an important guarantee for States in terms of claims of responsibility. Its formulation (‘does not constitute... unless...’) is in keeping with the idea of a guarantee against the retrospective application of international law in matters of State responsibility.” Citations omitted.
In U.S. law, the “continuing violations” doctrine is most commonly invoked in the context of employment discrimination and sexual harassment lawsuits, where the plaintiff will often need to demonstrate a “pattern” of prohibited acts in order to make out a complaint. As long as one of the complained of acts falls within the statute of limitations period, the complaint will be considered filed timely. Each of the United States Circuit Courts of Appeal have recognised the validity of the continuing violation doctrine in the context of sexual harassment cases. See, e.g., Sabree, 921 F.2d at 400; Quinn, 159 F.3d at 165; West v. Philadelphia Electric Co., 45 F.3d 744, 754 (3d Cir. 1995); Tinsely v. First Union Nat. Bank, 155 F.3d 435, 442–443 (4th Cir. 1998); Huckabay, 142 F.3d at 238–239; Jackson v. Quanex Corp., 191 F.3d 647, 667–668 (6th Cir. 1999); Filipovic v. K&R Exp. Systems, Inc., 176 F.3d 390, 395–396 (7th Cir. 1999); Jenson v. Eveleth Taconite Co., 130 F.3d 1287, 1303 (8th Cir. 1997); Fielder v. UAL Corp., 281 F.3d 973, 983 (9th Cir. 2000); Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1310–1311 (10th Cir. 1999); Calloway v. Partners Nat. Health Plans, 986 F.2d 446, 448 (11th Cir. 1993); Palmer v. Kelly, 17 F.3d 1490, 1496 (D.C. Cir. 1994).
Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, Art. 28, UNTS Vol. 1155 No. 331. Emphasis added.
Ibid., Art. 71 para. 2 (b). Emphasis added.
ILC Draft Articles on Responsibility, see note 18, Article 14 para. 1.
Ibid., Article 14 para. 2.
The ILC defines a second type of continuing violation in Article 14 para. 3 as the failure of a state “to prevent a given event.” Such a breach lasts for as long as the prohibited event occurs in violation of the obligation. See ibid., Article 14 para. 3. Emphasis added.
J. Pauwelyn, “The Concept of a ‘Continuing Violation’ of an International Obligation: Selected Problems”, BYIL 66 (1995), 415 et seq., 448, (an a contrario interpretation of this rule (that cessation can only be ordered if the violation still continues) offers a useful criterion to determine whether a continuing violation exists at all. Indeed the remedy of cessation is only of any use if the violation is a continuing one.”)
Ibid., 421.
Idem. Emphasis in original.
De Becker v. Belgium, Yearbook of the European Convention on Human Rights 2 (1958–1959), 214 et seq.
Ibid., 231.
ILC Draft Articles on Responsibility, see note 18, Article 15.
Ibid., commentary to Article 15 para. 2.
Idem.
Idem.
Idem.
Ibid., Article 13. Emphasis added.
Unfortunately, there is something a bit circular in this logic, and it may simply be unavoidable. Since the intertemporal doctrine is a choice of law rule, in all likelihood the outcome of the entire case will turn upon the choice of substantive law selected, so everything hangs upon this selection. However, observe the process by which the “critical date” is selected by which to identify the appropriate law. First, the “act of state” is isolated, in order to identify the “critical date,” i.e., time period from which to select the relevant principles of applicable law. Once the applicable law has been identified, it is used to analyse whether an obligation bound the state and if so, whether the state breached it. In making this analysis, the substantive law itself is used to identify the relevant facts to be used in characterising the conduct of the state actor. This characterisation in turn may well extend to the issue of the characterisation of the facts of the initial “act” itself, including its initiation, duration and completion. However, this rather circular logical process simply points to the difficulty of characterising facts in any case. This is a reality with which legal decision-makers have to deal routinely. In the case of the intertemporal doctrine, then, Elias is correct in pointing out that “the doctrine of intertemporal law may be regarded as a substantive rule of law in one sense, and as a rule of interpretation in another sense.” See Elias, see note 5, 285.
In these cases, liability accrues for the period during which the prohibited state action coincided with the international obligation. Since the breach has ceased before the dispute is brought for settlement, the aggrieved party must strive to file in a timely manner to avoid a bar by laches or unreasonable delay. There are two commonly discussed international cases that fit this category. The first is the Rainbow Warrior case (arbitral award of 30 April 1990), where France was held to be in continuing violation of its obligations to New Zealand, but only for a specific time period in the past, for refusing to return two of its agents responsible for the sinking of the Rainbow Warrior to the Island of Hao. The second case is the ICJ decision in Certain Phosphate Lands in Nauru, where the ICJ ruled admissible a decades-old claim based on Australia’s joint administration of the trust territory of Nauru (1947–1968), even though the Trusteeship Agreement upon which the claim was based had terminated in 1968 when Nauru achieved independence. See Rainbow Warrior (New Zealand, France), Reports of International Arbitral Awards 20 (1990), 217 et seq.; Certain Phosphate Lands in Nauru (Nauru, Australia), Preliminary Objections, ICJ Reports 1992, 240 et seq.
K. Wolfram, “The Time Factor in the Law of State Responsibility”, in: M. Spinedi/ B. Simma (eds), United Nations Codification of State Responsibility, 1987, 107 et seq. Citations omitted, emphasis added.
Pauwelyn, see note 25, 443. Citations omitted.
Ibid., 446 et seq. Citations omitted, emphasis added.
U.S. Diplomatic and Consular Staff in Teheran, ICJ Reports 1980, 3 et seq.
Military and Paramilitary Activities in and against Nicaragua, ICJ Reports 1986, 14 et seq.
Loizidou v. Turkey, Merits, RJD 1996-VI, 2216.
Article 159 para. 1 (b) reads: “All immovable properties, buildings and installations which were found abandoned on 12 February 1975 when the Turkish Federated State of Cyprus was proclaimed or which were considered by law as abandoned or ownerless after the above-mentioned date, or which should have been in the possession or control of the public even though their ownership had not yet been determined... and... situated within the boundaries of the TRNC on 15 November 19 shall be the property of the TRNC notwithstanding the fact that they are not so registered in the books of the Land Registry Office; and the Land Registry Office shall be amended accordingly.” As cited in decision of Loizidou v. Turkey, see note 45, para. 18.
Ibid., para. 41.
The Court cited Papamichalopoulos and Others v. Greece, judgment of 24 June 1993, Series A no. 260-B, 20 et seq., 46; Agrotexim and Others v. Greece, judgment of 24 October 1995, Series A no. 330, 22, 58.
Loizidou v. Turkey, see note 45, para. 41. Emphasis added.
Ibid., para. 46.
Ibid., para. 47.
In a subsequent 1998 ruling, the European Court of Human Rights ordered Turkey to pay compensation and to restore possession (“peaceful enjoyment,” as guaranteed by Protocol I of the European Convention) of her property to the applicant, Titina Loizidou. Turkey has subsequently paid US$ 1.4 million in compensation to Loizidou, but only after the Council of Europe threatened sanctions. Turkey has been allowed to delay restoration of Loizidou’s “peaceful enjoyment” of her property until 2005. See M. Jansen, “An Invaluable Precedent”, The Jordan Times, 11 December 2003.
ILC Draft Articles on Responsibility, see note 18, commentary on article 15, para. 11. Emphasis added.
Lovelace v. Canada, Human Rights Law Journal 2 (1981), 158 (decision of 29 December 1977).
Ibid., 166. Emphasis added.
De Becker v. Belgium, see De Becker v. Belgium, Yearbook of the European Convention on Human Rights 2 (1958–1959) note 28, 234.
See, e.g., X and Y v. Switzerland, decision of 8 October 1976, Decisions and Reports 6, 107; X v. Switzerland, decision of 12 July 1976, Decisions and Reports 6, 124; X v. Belgium, decision of 3 December 1979, Decisions and Reports 18, 250.
Roy & Alice Fletcher v. United Kingdom, Decision of the Commission, Collection of Decisions 25 (1968), 76.
Pauwelyn, see note 25, 440. Emphasis in original.
See 2 Trial Of The Major War Criminals Before The International Military Tribunal, Nuremberg, 1945–1946, 49 (42 vols. 1947–1949) (statement of Pierre Mounier, assistant prosecutor for the French Republic, in opening remarks on 20 November 1945: “These deportations were contrary to the international conventions, in particular to Article 46 of the Hague Regulations, 1907, the laws and customs of war, the general principles of criminal law as derived from the criminal laws of all civilized nations, the internal penal laws of the countries in which such crimes were committed, and to Article 6 (b) of the Charter [of the International Military Tribunal at Nuremberg]”).
See Charter of the International Military Tribunal, Annexed to the London Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, 1945, reproduced in D. Schindler/ J. Toman (eds), The Laws of Armed Conflict, 1988, 3rd ed., 911.
See 3 Trial of the Major War Criminals Before the International Military Tribunal, Nuremberg, 1945–1946, 596 (42 vols. 1947–1949) (Captain S. Harris, assistant prosecutor for the United States, introduced evidence on 14 December 1945 on the illegality of preventing the return of forcibly expelled persons: “The first expulsion action was carried out in Alsace in the period from July to December 1940; in the course of it, 105,000 persons were either expelled or prevented from returning”). Emphasis added.
Nationality Law, 5712/1952, Official Gazette 93 (1952), 22.
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Boling, G.J. (2007). The Question of “Timing” in Evaluating Israel’s Duty Under International Law to Repatriate the 1948 Palestinian Refugees. In: Benvenisti, E., Gans, C., Hanafi, S. (eds) Israel and the Palestinian Refugees. Beiträge zum ausländischen öffentlichen Recht und Völkerrecht, vol 189. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-540-68161-8_8
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