The Application of the Doctrine of Intertemporality in Contentious Proceedings [1 ed.] 9783428581863, 9783428181865

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Schriften zum Völkerrecht Band 245

The Application of the Doctrine of Intertemporality in Contentious Proceedings By

Edward Martin

Duncker & Humblot · Berlin

EDWARD MARTIN

The Application of the Doctrine of Intertemporality in Contentious Proceedings

Schriften zum Völkerrecht Band 245

The Application of the Doctrine of Intertemporality in Contentious Proceedings By

Edward Martin

Duncker & Humblot · Berlin

The Faculty of Law of the University of Hamburg accepted this work as thesis in the year 2019.

Bibliographic information published by the Deutsche Nationalbibliothek The Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbibliografie; detailed bibliographic data are available in the Internet at http://dnb.d-nb.de.

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Preface This book is based on my dissertation, which I wrote at the University of Hamburg and which was accepted for a doctorate. My doctoral supervisor Prof. Dr. Armin Hatje wrote the first accompanying report. The second report was prepared by Prof. Dr. Markus Kotzur. I would like to thank Mr. Armin Hatje for the patient and always constructive support! My thanks also go to Mr. Markus Kotzur for the critical and careful preparation of the second report. I would also like to thank my wife, Ama Martin, who provided me with encouraging advice throughout the entire process. Most sincere thanks to my two sons. Their zest for life always gave me hope to bring the project to a successful conclusion. This opportunity should also be used to thank Hannfried Leisterer for the always challenging and stimulating discussions on the subject. I would also like to thank Moritz von Rochow for sharing with me his invaluable knowledge in long discussions over the years. And of course, my entire family! Thank you. “Who ain hear their name, I hope they ain bawl, there just too much good people’s names to call!” (Lord Pretender)

Hamburg, December 2020

Edward Martin

Table of Contents A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 I. Intertemporality as a Problem . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 II. Distinguishing the Principle of Non-Retroactivity from Positively Ascertaining Historic Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 III. Outlining the Research Thesis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 IV. Current Relevance of the Doctrine of Intertemporality . . . . . . . . . . . . . . . . . . . . 19 B. International Courts and History – The Problem of “Différend” . . . . . . . . . . . . . 20 C. The Problem of Method in International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 I. General Methodology in International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 II. Methodology of International Legal History . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 D. Preconceptions in the History of International Law . . . . . . . . . . . . . . . . . . . . . . . . 25 I. Subjects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 II. Sources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 III. Genealogy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 IV. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 E. Problems Ascertaining Historic Law from the Viewpoint of Historiography . . . . 32 I. General Problems in Historiography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 1. “Ideengeschichte” and its Methodology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 a) Selection of Material . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 b) Interpreting the Material . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 c) The Problem of Context . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 d) The Problem of Oral Tradition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 aa) Oral Tradition as a Source . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 bb) Oral Tradition as the Foundational Framework of a Society . . . . . . . . 42 2. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 II. The Problematic Historiography in Cameroon v. Nigeria . . . . . . . . . . . . . . . . . . 45 III. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

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F. Juridical Difficulties Ascertaining Historic Law and the Problem of Normativity 48 I. Problems in the Ascertainment Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 1. The Problem of Historic Subjects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 a) General Problems of Identifying Historic Subjects of International Law 49 b) International Legal Personality in the Cameroon v. Nigeria Case . . . . . . . 52 c) Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 2. The Problem of Historic Legal Sources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 a) General Problems in Identifying of Historic Legal Sources . . . . . . . . . . . . 57 b) The Peculiar Relationship between Historic Sources, the Doctrine of Intertemporality and Art. 38 (1) ICJ-Statute . . . . . . . . . . . . . . . . . . . . . . . . . . 60 c) Legal Sources in the Cameroon v. Nigeria Case . . . . . . . . . . . . . . . . . . . . . 62 d) Mitigating the Non-Existence of “Meta-Sources” . . . . . . . . . . . . . . . . . . . 64 3. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 II. Burden of Proof and Intertemporality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 1. Fact-Finding in International Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 a) The Procedure of Fact-Finding and Producing Evidence . . . . . . . . . . . . . . 67 b) Burden of Proof and Standard of Proof in International Litigation . . . . . . 68 c) Problems in Finding Historic Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 aa) Indistinguishability of Fact and Law . . . . . . . . . . . . . . . . . . . . . . . . . . 69 bb) The Reoccurring Problem of Oral Tradition . . . . . . . . . . . . . . . . . . . . . 70 cc) Presumptions and the Burden of Proof . . . . . . . . . . . . . . . . . . . . . . . . . 72 2. The Fair-Trial-Principle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76 III. The Futility of the Doctrine of Intertemporality . . . . . . . . . . . . . . . . . . . . . . . . . 76 G. The Doctrine of Intertemporality and its Relation to Non Liquet . . . . . . . . . . . . . 78 I. Lacunae, Non Liquet and International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78 1. The (In-)Completeness of International Law . . . . . . . . . . . . . . . . . . . . . . . . . . 79 2. Historic International Law and Non Liquet . . . . . . . . . . . . . . . . . . . . . . . . . . . 81 II. The Duty to Prevent Non-Liquet . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83 III. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85 H. Reconceptualising the Intertemporality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 I. The Basis for Reconceptualising the Doctrine of Intertemporality . . . . . . . . . . . 86 II. Reconceptualising the Underlying Assumption of the Doctrine of Intertemporality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 III. Shifting the Relationship Between Intertemporality and Equity . . . . . . . . . . . . . 90 1. Equity in International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 2. Equity in Time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 a) Filling the Gap with Equity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 b) The Point in Time from which Equity is Assessed . . . . . . . . . . . . . . . . . . . 94

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3. The Argument for Applying Equity in Contentious Proceedings with an Intertemporal Dimension . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97 4. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98 IV. The Possibility of Choosing a Legal Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98 I. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100 Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102 I. Books and Monographs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102 II. Journal Articles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107 III. Other Publications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109 IV. Table of Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109 V. Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110 VI. Online Sources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110 Subject Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112

List of Abbreviations AJIL ASIL AustYBIL AVR BritYBIL BrookJIL CARICOM ColumJTransnatlL DSt ECJ ECSC EJIL GLJ HarvHumRtsJ HT ICJ ICLQ IO IsrLRev JHistIntlL LRevIntlL MichLRev NordicJIL NTIR RBDI Rg RRIAS TICLJ TWAIL UCLA JILFA Washington L Rev WResLRev ZaöRV

American Journal of International Law American Society of International Law Australian Year Book of International Law Archiv des Völkerrechts British Year Book of International Law Brooklyn Journal of International Law Caribbean Community Columbia Journal of Transnational Law Der Staat European Court of Justice European Coal and Steel Community European Journal of International Law German Law Journal Harvard Human Rights Journal History and Theory International Court of Justice International and Comparative Law Quarterly International Organization Israel Law Review Journal of the History of International Law London Review of International Law Michigan Law Review Nordic Journal of International Law Nordisk Tidsskrift for International Ret Revue Belge de Droit International Rechtsgeschichte Institute of African Studies: Research Review Temple International and Comparative Law Journal Third World Approaches to International Law UCLA Journal of International Law and Foreign Affairs Washington Law Review Western Reserve Law Review Zeitschrift für ausländisches öffentliches Recht und Völkerrecht

A. Introduction The doctrine of intertemporality has been described as an under-researched notion of international law.1 It is a recognized doctrine (or principle, or rule; the literature on the terminology is ambiguous)2 of international law.3 However, its legal source remains unclear. The most famous formulation of the doctrine was made by Judge Max Huber in the Island of Palmas Case.4 According to Huber, the doctrine of intertemporality contains two elements. The first element requires that: “a juridical fact [is] appreciated in the light of the law contemporary with it, and not the law at the time when a dispute in regard to it arises.”5

The second requires that: “[t]he 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.”6

The second element of the doctrine of intertemporality could therefore be summed up as follows: acquired rights have to be maintained in a fashion consistent with the evolving law. Questions remain as to the hierarchy between these two elements, the possibility of applying just one of the two elements and the general relationship between them.7 However, for deciding contentious cases with an intertemporal dimension, the first of the two elements – the obligation to ascertain the law contemporary with the judicial facts – is of utmost importance and has achieved universal acceptance in international

1

See Krause-Ablaß, Wolf-Dietrich: Intertemporales Völkerrecht, p. 13. Kotzur, Markus: The temporal dimension, p. 159. 3 For the doctrine of intertemporality generally see, Tavernier, Paul: Recherches; Elias, Taslim Olawale: The Doctrine of Intertemporal Law, AJIL 74, 2 (1980); Higgins, Rosalyn: Some Observations; Krause-Ablaß, Wolf-Dietrich: Intertemporales Völkerrecht; McWhinney, Edward: Time Dimension. 4 Island of Palmas (United States v. Netherlands), 4 April 1929, II RIAA p. 845. 5 Ibid. 6 Ibid. 7 See Tavernier, Paul: Relevance of the Intertemporal Law, p. 397, where it is stated that while some authors only mention one aspect of the doctrine, the choice to do so is not a neutral one. 2

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legal scholarship.8 Yet, the obligation to ascertain the law contemporary to the judicial facts is by no means free of uncertainties in its application. At least one aspect of the doctrine of intertemporality is unambiguous: the prohibition of retroactive application of law. Treaties and customary international law ought not to be applied retroactively.9 The consequence is the obligation to positively ascertain the historic law applicable between the parties in a contentious proceeding. The ascertainment of modern international law in present disputes has its challenges; especially non-written law, such as custom cannot be ascertained in a manner completely satisfying strictly formal criteria.10 The challenges faced when needing to ascertaining historic law – sometimes law as far back as several centuries needs to be ascertained –11 are numerous. Also, the aspect of deciding a case based on law, which does not reflect the moral consensus of the time it is decided in – i. e. the present – has been discussed as a particular problem of applying the doctrine of intertemporality.12 Ascertaining the applicable historic law becomes even more problematic in constellations in which the parties do not share a common legal heritage and tradition.13 Law is not an abstract formalistic, but rather a social phenomenon, reflecting an underlying social reality.14 With differences in social reality come differences in law and the perception of it. Can a particular regional – a European – conceptualization of (international) law perceive and understand legal phenomena outside its own web of reasoning and socio-political reality? If yes, by the use of 8

See, inter alia, Crawford, James: Brownlie, p. 218; Shaw, Malcolm Nathan: International Law, p. 497; Koskenniemi, Martti: From Apology to Utopia, p. 455; Crawford, James: The Creation of States, p. 271; Jennings, Robert Yewdall: The Acquisition of Territory in International Law, p. 28. 9 See, Tavernier, Paul: Rechèrches, pp. 115 – 124; Elias, Taslim Olawale: The Doctrine of Intertemporal Law, AJIL 74, 2 (1980), p. 288; for the prohibition of retroactive application of treaty provisions see Art. 28 Vienna Convention on the Law of Treaties. 10 For a brilliant account on the difficulties and challenges of formally ascertaining contemporary international law in general and unwritten instruments in particular, see D’Aspremont, Jean: Formalism, pp. 161 – 178. Also, for a deconstruction of international legal argument, highlighting the pull of from two ends of a spectrum – one being apology for state behavior, the other being the formulation of an imagined utopia – in ascertaining the actual content of a rule see Koskenniemi, Martti: From Apology to Utopia. 11 As was required in the The Minquiers and Ecrehos case, Judgment, ICJ Reports 1953, p. 47 ff., in which France for example relied on a legal title dating as far back as 1066. Another example would be the Case concerning Right of Passage over Indian Territory (Merits), Judgement ICJ Reports 1960, p. 6 ff., in which the ICJ needed to interpret the legal content of a treaty which was concluded in 1779. 12 See, McWhinney, Edward: Time Dimension p. 197 ff. who proposes “progressive interpretation” as a means to bridge the gap of time. 13 For example in the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, ICJ Reports 2002, p. 303, the International Court of Justice needed to interpret treaty concluded between Britain and the Kings and Chiefs of Old Calabar in the 1880’s. 14 Koskenniemi, Martti: From Apology to Utopia, p. 474.

I. Intertemporality as a Problem

13

which methods could this be achieved? Is the methodology identifying international law – which was developed over centuries within Europe –15 an apt tool for identifying the (historic) law of peoples who have a differing underlying reality constituting their legal framework?16 And if not, what are possible solutions? In introducing the problems discussed in this thesis, it is of use to parse why, generally speaking, the doctrine of intertemporality can be viewed as problematic. In a second step take a closer look at the two sides of the coin of the doctrine of intertemporality – the prohibition of retroactive application of law and the obligation to ascertain the applicable historic law is undertaken.

I. Intertemporality as a Problem In the application of the doctrine of intertemporality, starkly different legal views clash. An ancient or historic view of legal relations between subjects of international law collides with the perception of international law at the time the dispute is litigated – the present. International courts and tribunals therefore find themselves in a position to litigate judicial facts sometimes dating back several centuries with direct effects in the present for the parties to the dispute and indirect effects for the international community as a whole. These anachronistic results are discussed in international legal literature as a moral conflict.17 No concrete, methodologically justifiable solution has been presented to date. The problem of anachronistic results is accompanied with problems in the ascertainment process. A particular historic rule governing the conflict of two parties needs to be conclusively ascertained. Since this thesis focuses on disputes involving a (historic) European and a non-European legal framework, “meta-law” regulating 15 For the history of European international law and its methodology generally, see inter alia Grewe, Wilhelm Georg: Epochen der Völkerrechtsgeschichte; Schmitt, Carl: Der Nomos der Erde. 16 This discrepancy between the perceived history and genealogy of international law as being decisively European and the actual diverse historic legal phenomena throughout different regions of the world has been termed “Eurocentrism”. The question of the “Eurocentricity” of international law, especially its history, and the neglected developments of international law in regions outside of Europe have been appropriately critiqued by several scholars. See inter alia Anghie, Antony: Imperialism, Sovereignty and the Making of International Law; Kämmerer, Jörn Axel: Introduction. Imprints of Colonialism in Public International Law: On the Paradoxes of Transition, JHistIntlL 18 (2016); Koskenniemi, Martti: Histories of International law: Dealing with Eurocentrism, Rg 19 (2011); Butkevych, Olga: History of Ancient International Law: Challenges and Prospects, JHistIntlL 5 (2003); Levitt, Jeremy: The African Origins of International Law: Myth or Reality?, UCLA JILFA 113 (2005); Orford, Anne: The Past as Law or History?. 17 See McWhinney, Edward: Time Dimension, p. 195 f.; Orford, Anne: On International Legal Method, LRevIntlL 1 (2013), p. 170 ff.; Orford, Anne: The Past as Law or History?, p. 100 ff.

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historic interactions between European and non-European people’s needs to be identified.18

II. Distinguishing the Principle of Non-Retroactivity from Positively Ascertaining Historic Rules The obligation to positively ascertain the applicable historic rules is the flipside of the prohibition of retroactive application of international law. Clearly distinguishing these two components and emphasizing their difference is helpful for this thesis. The prohibition of retroactive application of law (as part of the doctrine of intertemporality)19 in essence regulates the application of international law over time, accepting the presupposition that time in fact can be divided into past, present and future.20 Debates are still ongoing in international legal scholarship with regards to possible exceptions to the principle of non-retroactivity. The arguments in favor of such exceptions invoke the gap in time and see exceptions to the principle of non-retroactivity as a means to bridging these gaps and reconciling supposed anachronistic results.21 Those arguments can hardly surmount the assessment of the International Law Commission that “even when a new peremptory norm of general international law comes into existence, as contemplated by article 64 of the 1969 Vienna Convention, this does not entail any retrospective assumption”22

thereby confirming that not even peremptory norms of international law – ius cogens – possess any retroactive qualities. Following the presupposed division of time into past, present and future, the logical consequence of the principle of non-retroactivity is the obligation to positively ascertain rules that lay in the past. If present rules cannot be applied to historic circumstances the historic rules need to be ascertained.

18

The necessity of “meta-law” regulating the interactions between European and nonEuropean peoples and their legal traditions will be discussed in more detail below. 19 Elias, Taslim Olawale: The Doctrine of Intertemporal Law, AJIL 74, 2 (1980), p. 286. 20 The application of different instruments of law over time was at the core of the treatises of Paul Tavernier, including the question of the divisibility of time; see Tavernier, Paul: Recherches, p. 12 ff. For the universal acceptance of the principle of non-retroactivity of law, see: Kotzur, Markus: The temporal dimension, p. 153; Villiger, Mark: Vienna Convention, p. 381; Tavernier, Paul, Relevance of the Intertemporal Law, p. 400 views the principle of non-retroactivity as a complement of the principle tempus regit actum. 21 For the realm of international criminal law see: Higgins, Rosalyn: Some Observations, p. 508; for international law generally see McWhinney, Edward: Time Dimension, p. 195 f. 22 Yearbook of the International Law Commission, 2001, p. 58.

III. Outlining the Research Thesis

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The question under which circumstances and conditions present rules might be retroactively applicable23 and the methodology for this inquiry differs from the question of the existence of particular historic rules applicable between the parties to a dispute. It is obvious that the latter necessitates an according methodology.

III. Outlining the Research Thesis The history of international law or international legal history is an ever growing field of research. It is studied and analysed from various standpoints and angles. Authors such as Arthur Nussbaum and Wilhelm Grewe focus on the broad picture of international legal history and make an attempt at depicting the evolution of international law from antiquity to the present.24 Other authors focus on a particular epoch of history, such as Martti Koskenniemi in The Gentle Civilizer of Nations.25 A comparatively new line of research focuses on the imperial character of international law through the analysis of its (imperial) history.26 And sometimes specific individuals or the origins of a particular rule are the matter of the historic research.27 However, the doctrine of intertemporality, when applied in a contentious proceeding, requires a very precise historic inquiry: the existence and content of a rule applicable between the two parties needs to be ascertained for an exact point in time.28 The judicial body has to ascertain the relevant rule in a contentious proceeding with binding effects for the parties concerned. The approach to international legal history when a particular rule at a particular time, applicable between two concrete entities needs to be ascertained necessarily differs from the more general research of international legal history mentioned above. The methodology needed comes with its own difficulties. The obvious challenge is establishing the historic context. The (historic) surrounding of the dispute needs to be conclusively established for an according legal appraisal. The difficulties lie not only in neatly separating historic facts from legal claims, but in actually identifying the legal framework (historic legal sources and rule generating processes in particular) governing the dispute. This thesis will focus on a particularly problematic dimension of ascertaining historic law. Difficulties arising in constellations in which the historic legal framework of a European and a non-European people clash will be parsed. Several cases decided by

23

This question was intensely discussed by Tavernier, Paul: Recherches, pp. 38 – 54. Grewe, Wilhelm Georg: Epochen der Völkerrechtsgeschichte; Nussbaum, Arthur: A Concise History of the Law of Nations. 25 Koskenniemi, Martti: The Gentle Civilizer. 26 A good overview of this literature can be found in fn. 16. 27 Craven, Matthew: Introduction: International Law and Its Histories, p. 6, gives a good summary of the different angles from which international legal history can be studied. 28 Physicists can determine whether or not a “point” in time is even conceivable. This thesis is referring to a concrete situation which needs to be assessed and decided juridically. 24

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A. Introduction

international courts and tribunals have such a dispute at their core.29 One of them, the 2002 Land and Maritime Boundary between Cameroon and Nigeria case30 (hereinafter Cameroon v. Nigeria) decided by the International Court of Justice will serve as a concrete example throughout this thesis. At the heart of the Cameroon v. Nigeria case lies the question of sovereignty over the Bakassi Peninsula, a peninsula on the Gulf of Guinea between the Oyono River (Cross River) estuary near Calabar and the Rio del Rey estuary. Both, Cameroon and Nigeria were claiming sovereignty over said peninsula and produced historic documents as evidence of their respective title. Undisputedly the original title and sovereignty over the Bakassi Peninsula was laid with the Kings and Chiefs of Old Calabar, a class of rulers of Efik people, who have historically inhabited the Bakassi Peninsula and have exercised rule over the territory. On 10 September 1884 the Kings and Chiefs of Old Calabar signed a “Treaty of Protection” with Great Britain. The essential provisions of the treaty with regards to protection and supposed transfer of sovereignty read as follows: “Article1: Her Majesty the Queen of Great Britain and Ireland, in compliance with the request of the Kings, Chiefs, and people of Old Calabar, hereby undertakes to extend to them, and to the territory under their authority and jurisdiction, her gracious favour and protection. Article 2: The Kings and Chiefs of Old Calabar agree and promise to refrain from entering into any correspondence, Agreement, or Treaty with any foreign nation or Power, except with the knowledge and sanction of Her Britannic Majesty’s Government.”31

The question the court had to decide was whether or not the Kings and Chiefs of Old Calabar have transferred title and sovereignty over the Bakassi Peninsula to Great Britain. The court concluded that such transfer has taking place, providing the following argument: “[204.] Nigeria has contended that the very title of the 1884 Treaty and the reference in Article I to the undertaking of ‘protection’, shows that Britain had no entitlement to do more than protect, and in particular had no entitlement to cede the territory concerned to third States: ‘nemo dat quod non habet’. [205.] The Court calls attention to the fact that the international legal status of a ‘Treaty of Protection’ entered into under the law obtaining at the time cannot be deduced from its title alone. Some treaties of protection were entered into with entities which retained thereunder a previously existing sovereignty under international law. This was the case whether the 29 One prominent example is Case concerning Right of Passage over Indian Territory (Merits), Judgement, ICJ Reports 1960, p. 6 ff. 30 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, ICJ Reports 2002, p. 404 ff. 31 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, ICJ Reports 2002; Counter Memorial of the Federal Republic of Nigeria, para. 6.63.

III. Outlining the Research Thesis

17

protected party was henceforth termed ‘protectorat’ (as in the case of Morocco, Tunisia and Madagascar (1885; 1895) in their treaty relations with France) or “a protected State” (as in the case of Bahrain and Qatar in their treaty relations with Great Britain). In sub-Saharan Africa, however, treaties termed ‘treaties of protection’ were entered into not with States, but rather with important indigenous rulers exercising local rule over identifiable areas of territory. In relation to a treaty of this kind in another part of the world, Max Huber, sitting as sole arbitrator in the Island of Palmas case, explained that such a treaty ‘is not an agreement between equals; it is rather a form of internal organisation of a colonial territory, on the basis of autonomy of the natives … And thus suzerainty over the native states becomes the basis of territorial sovereignty as towards other members of the community of nations.’ (RIIA, Vol. II, pp. 858 – 859.) The Court points out that these concepts also found expression in the Western Sahara Advisory Opinion. There the Court stated that in territories that were not terra nullius, but were inhabited by tribes or people having a social and political organization, ‘agreements concluded with local rulers … were regarded as derivative roots of title’ (Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 39, para. 80). Even if this mode of acquisition does not reflect current international law, the principle of intertemporal law requires that the legal consequences of the treaties concluded at that time in the Niger delta be given effect today, in the present dispute. [206.] The choice of a protectorate treaty by Great Britain was a question of the preferred manner of rule. Elsewhere, and specifically in the Lagos region, treaties for cession of land were being entered into with local rulers. It was precisely a reflection of those differences that within Nigeria there was the Colony of Lagos and the Niger Coast Protectorate, later to become the Protectorate of Southern Nigeria. [207.] In the view of the Court many factors point to the 1884 Treaty signed with the Kings and Chiefs of Old Calabar as not establishing an international protectorate. It was one of a multitude in a region where the local Rulers were not regarded as States. Indeed, apart from the parallel declarations of various lesser Chiefs agreeing to be bound by the 1884 Treaty, there is not even convincing evidence of a central federal power. There appears in Old Calabar rather to have been individual townships, headed by Chiefs, who regarded themselves as owing a general allegiance to more important Kings and Chiefs. Further, from the outset Britain regarded itself as administering the territories comprised in the 1884 Treaty, and not just protecting them. Consul Johnston reported in 1888 that ‘the country between the boundary of Lagos and the German boundary of Cameroons’ was ‘administered by Her Majesty’s Consular Officers, under various Orders in Council’. The fact that a delegation was sent to London by the Kings and Chiefs of Old Calabar in 1913 to discuss matters of land tenure cannot be considered as implying international personality. It simply confirms the British administration by indirect rule. Nigeria itself has been unable to point to any role, in matters relevant to the present case, played by the Kings and Chiefs of Old Calabar after the conclusion of the 1884 Treaty. In responding to a question of a Member of the Court Nigeria stated ‘It is not possible to say with clarity and certainty what happened to the international legal personality of the Kings and Chiefs of Old Calabar after 1885.’

18

A. Introduction The Court notes that a characteristic of an international protectorate is that of ongoing meetings and discussions between the protecting Power and the Rulers of the Protectorate. In the case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain) the Court was presented with substantial documentation of this character, in large part being old British State papers. In the present case the Court was informed that ‘Nigeria can neither say that no such meetings ever took place, or that they did take place … the records which would enable the question to be answered probably no longer exist …’ [208.] As to when the Kings and Chiefs ceased to exist as a separate entity, Nigeria told the Court it ‘is not a question susceptible of a clear-cut answer’. The Court notes in this regard that in 1885 Great Britain had established by proclamation a ‘British Protectorate of the Niger Districts’ (which subsequently changed names a number of times), incorporating in a single entity the various territories covered by the treaties of protection entered into in the region since July 1884. The Court further notes that there is no reference to Old Calabar in any of the various British Orders in Council, of whatever date, which list protectorates and protected States. The same is true of the British Protected Persons Order of 1934, the Schedule which refers to ‘Nigerian Protectorate and Cameroons under British Mandate’. Nor is there any reference to Old Calabar in the Second Schedule to the British Protectorates, Protected States and Protected Persons Order in Council, 1949, though in the First Schedule there is a reference to the ‘Nigerian Protectorate’. Moreover, the Court has been presented with no evidence of any protest in 1913 by the Kings and Chiefs of Old Calabar; nor of any action by them to pass territory to Nigeria as it emerged to independence in 1960. [209.] The Court thus concludes that, under the law at the time, Great Britain was in a position in 1913 to determine its boundaries with Germany in respect of Nigeria, including in the southern section.32”

In essence the International Court of Justice contended that at the time of the conclusion of the treaty, rulers over identifiable areas of territory in sub-Saharan Africa were not regarded as states.33 And since “from the outset Britain regarded itself as administering the territories comprised in the 1884 Treaty, and not just protecting them”34 a transfer of title had to have taken place through the treaty. The legal position of the Kings and Chiefs of Old Calabar at the time of the conclusion of the treaty was not considered.

32 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, ICJ Reports 2002, p. 404 ff., para. 204 – 209. 33 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, ICJ Reports 2002, p. 404 ff., para. 205 – 207.This assertion already begs the question: by whom? Who is the relevant entity that must regard rulers over identifiable areas of territory as states in order for these entities to be such? 34 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, ICJ Reports 2002, p. 404 ff., para. 207.

IV. Current Relevance of the Doctrine of Intertemporality

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IV. Current Relevance of the Doctrine of Intertemporality Presently, a multitude of international situations are loaded with an intertemporal dimension. One popular example is the dispute over the sovereignty of islands located in the South China Sea. China, Vietnam, Indonesia, Japan and the Philippines claim sovereignty over different islands located in the South China Sea, invoking historic title dating back as far as the 17th Century.35 For solving the conflict juridically, these historic claims, which are based on the doctrine of intertemporality, cannot be discarded. Another popular case is the class action complaint the Ovaherero and Nama have filed against the Federal Republic of Germany. This case addresses a multitude of legal issues. Besides the unlawful taking of property, it is the genocide of the Ovaherero and Nama from 1904 until 1908 by the German colonial authorities that is at the core of the complaint.36 The legal problem with the claim of genocide is the absence of codified international law of the time. There were neither treaties nor conventions explicitly prohibiting genocide. One question which therefore needs to be answered is whether any unwritten rules of international law (customary or otherwise) prohibiting genocide existed and can be applied.37 A notable example of current relevance can also be found in the claim of the Caribbean Community against states which historically were engaged in the TransAtlantic Slave Trade. In 2013 the CARICOM member states have established the CARICOM Reparations Commission, mandated to prepare a case for reparatory justice before international legal bodies.38 Questions the reparations commission seeks to have legally answered include the lawfulness of the Trans-Atlantic Slave Trade, the lawfulness of genocide carried out on the indigenous populations of the Caribbean islands and the lawfulness of the institution of slavery itself. Each of these legal questions is of vast broadness. They involve European states, African peoples and native Caribbean peoples. The time in which said actions have taken place exceeds two centuries. Any court litigating these claims is obliged by the doctrine of intertemporality to positively identify legal rules applicable between the peoples mentioned.

35 For a good overview of the intertemporal of the South China Sea Dipute, see Ma, Xuechan: The Intertemporal Principle In International Judicial Practice And Its Implications For The South China Sea Dispute, Edinburgh Student Law Review 1 (2016), pp. 102 – 114. 36 The question if a genocide has taken place is answered in the affirmative by the German government, see Bundestagsdrucksache 18/9152, p. 2. 37 Another question which needs to be answered is the relationship between the German Reich and the Ovaherero and Nama; particularly the question if it was governed by international law and by who’s international law. 38 An overview of the claims and the status of the proceedings can be found on http://car icomreparations.org/ [last accessed: 06. 02. 2019]

B. International Courts and History – The Problem of “Différend” The doctrine of intertemporality, while of current relevance, lacks scholarly attention and scrutiny. Particularly, the relationship between international courts and tribunals on one hand, and history and historiography on the other, needs to be carefully parsed. Interestingly, the question of the relationship between courts and history as well as the influence of their judgements on historical narratives has been intensely discussed in the field of “transitional justice”, rather than in relation to the doctrine of intertemporality.39 In order to illustrate the relationship between courts and history in the context of judicial proceedings with intertemporal aspects, a brief detour to the findings in the field of transitional justice is of aid. Transitional justice can be understood as “[J]ustice associated with periods of political change, characterized by legal responses to confront the wrongdoings of repressive predecessor regimes”40.

The “legal response” lying at the core of transitional justice is the criminal trial. International criminal proceedings seek to identify culpability and guilt of individuals accused of committing crimes. Popular examples of such trials are the Nuremberg Trials and the International Criminal Tribunal for the former Yugoslavia. However, the transitional value of these proceedings lies in outcomes beyond the individual culpability of the defendant. The trials serve as demarcations between the oppressive regime of the past and the “just” future order.41 Therefore, a broader (international) context needs to be established in which to locate the actions of the defendant. One reason for the need of a broader context is to weave the state seeking transition into greater (historical) contexts, thereby giving the “transitional moment” additional significance. The other and legally more interesting reason for establishing a broader context is that for the very question whether or not a punishable crime was committed the context and the narrative is of fundamental significance.42 39

This, again, is due to the under researched state of the doctrine of intertemporality. Teitel, Ruti: Transitional Justice Genealogy, HarvHumRtsJ 16 (2003), p. 69. 41 Priemel, Kim Christian: The Betrayal, p. 8 has stated that transitional trials have a retrospective and a prospective dimension: “By indicting the crimes of the predecessor regime … the succeeding government claims moral superiority and emphasizes the difference between those in the defendants’ dock and those on the judges’ benches, thereby seizing the opportunity to turn the trial itself into a ‘cornerstone of the new order’”. 42 For a good analysis of the need to establish a broader international context in which to place individual actions in order to identify individual culpability see Koskenniemi, Martti: The Politics of International Law, pp. 171 – 197. 40

B. International Courts and History – The Problem of “Différend”

21

The creation of a broader narrative therefore serves a double purpose. On one hand it enables criminal prosecution. Often, the crime the defendant is accused of having committed was not punishable under the law of the regime the defendant was a part of.43 On the other hand, it serves as a means to distill “historic truths”, which in the best case scenario leads to “Aufarbeitung” of past injustices and a clear demarcation for what is to come. The proceedings therefore also aim at granting people a “fresh start”.44 It is the context, which is of fundamental necessity for transnational justice, but it is the same context which makes transnational justice a target for intense criticism.45 In domestic criminal law the relevant context rests on a common understanding of the people subject to a national legal order. For example: taking away someone’s purse with the intent of keeping it is considered theft. In this example, there is little room for contextualisation, since the concept of property and infringements thereof rest on broad consensus. In the international sphere however, context is often lacking or at least highly disputed and needs to be established positively. The historical setting and context in which major international political events take place is not given. In fact, in several criminal cases aiming at transitional justice, defendants sacrifice the prospect of being acquitted for the opportunity to publicly set the events in dispute into their own context, as individually perceived.46 This is a familiar sight at said trials: rather than bringing forward arguments which would exclude personal culpability, defendants attack the broader context and narrative established by the prosecution. For this very reason, trials with transitional justice elements are often accompanied with concerns about giving the defendant a “stage”. Proceedings aiming at transitional justice can therefore also be understood as a battle over the interpretation of the context. Therein lays the parallel to proceedings with an intertemporal dimension and clashing legal views of European and non-European peoples. There is no a priori agreed upon historical context. Jean Casimir, a Haitian historian has aptly put the problem as follows: “When you write the history of Columbus arriving in what the indigenous people then called Ayiti, you have to make a decision: are you on the boat or on the shore?”47

Courts are the entities entrusted with the task of conclusively determining a context. By rendering a judgement, a court also makes a fundamental decision about 43

This might be due to rather technical details, such as statutory periods of limitation. See Priemel, Kim Christian: The Betrayal, pp. 6 – 10. 45 For a discussion on different points of (legal) criticism of the Nuremberg Trials, see Priemel, Kim Christian: The Betrayal, p. 9 ff. See also Koskenniemi, Martti: The Politics of International Law, p. 179 f. 46 In The Politics of International Law, p. 180 – 185, Martti Koskenniemi gives convincing examples for differing and conflicting narratives surrounding the collapse of Yugoslavia. No narrative a priori trumps the other. 47 As quoted by Dubois, Laurent: Atlantic freedoms. 44

22

B. International Courts and History – The Problem of “Différend”

the historical context. Courts therefore are in a position to conclusively frame a particular historical narrative. This is the reason the relationship between courts and history is a very delicate one. In proceedings with intertemporal elements, courts need to branch off into the field of historiography in order to determine the facts of the case and the context of the relevant acts.48 Determining the relevant facts and their context is a necessary step to ascertain the applicable law between disputing parties. The methodology (or lack thereof) with which historic contexts are being determined is key for the outcome of the dispute. Jean-François Lyotard termed a situation in which accepting a method reaching settlement means accepting the position of one of the disputing sides while negating the other side’s position “différend”: “A la difference d’un litige, un différend serait un cas de conflict entre deux parties (au moins) qui ne pourrait pas être tranche équitablement faute d’une règle de jugement applicable aux deux argumentations. Que l’une soit légitime n’impliquerait pas que l’autre ne le soit pas. Si l’on applique cependant la même règle de jugement à l’autre pour trancher leur différend comme si celui-ci était un litige, on cause un tort à l’une d’elles […].”49

When two conflicting broader narratives of the historical context (and the therefore applicable law) collide – as is the case in contentious proceedings with an intertemporal dimension with a European and non-European legal point of view – it is of utmost importance that the process and method reaching a judgement does not a priori confirm the legal argument of one of the parties, while neglecting the others’. In other words: in proceedings in which European and non-European historic legal traditions clash, courts deciding on the basis of intertemporality are in danger of creating a situation of “différend” when, by applying a methodology and criteria for settlement, they implicitly accept the position of one of the disputing parties. In more concrete terms, using the example of the Cameroon v. Nigeria judgement of the ICJ: if the methodology applied by the ICJ to establish the historic facts, and the historic rules governing the dispute already confirms the position of one of the historic signatories to the “Treaty of Protection”, while negating the other, a situation of “différend” would have been created. Whether under such circumstances courts should be conceived as instruments of history and memory therefore is more than doubtful.50

48 In the following sections I will analyse the difficulty courts have in determining historical facts as well as the historical context. I will point out the augmented difficulties of determining facts and context when non-European parties are involved. 49 Lyotard, Jean-François: Le Différend, p. 9. Also, in Koskenniemi, Martti, The Politics of International Law, p. 183, Koskenniemi makes a connection between a situation of “différend” and criminal proceedings in transitional justice contexts. 50 On the difficulty of conceiving courts as instruments of history and memory, see Koskenniemi, Martti, The Politics of International Law, p. 196.

C. The Problem of Method in International Law I. General Methodology in International Law A firmly established and universally recognised method ascertaining international law is still lacking.51 Regarding the sources of international law however, broad consensus exists that Art. 38 of the Statute of the International Court of Justice enumerates the sources of international law.52 Sources are the basis from which an international rule can be ascertained. A source serves as a point of departure in the ascertainment process. Through the entry into force of the Vienna Convention on the Law of Treaties ascertaining a rule from the source “treaty” through interpretation now rests on a codified foundation.53 However, even authors promoting a rejuvenation of strict formalism in ascertaining international law have to concede the absence of a formal method in ascertaining rules deriving from unwritten sources such as custom and general principles.54 Yet the need for a coherent methodology as a vehicle to achieve justice and neutrality, move decisions away from the fog of arbitrariness or political interest and persuasion, is continually stressed.55

II. Methodology of International Legal History The general methodology in international law is as ambiguous as the methodology regarding its history. This section will focus on the problem of preconceptions and presuppositions in the research of international law’s history. Here, I will briefly 51 See, Oppenheim, Lassa: The Science of International Law: Its Task and Method, AJIL 2 (1908), p. 313 ff.; Rosenne, Shabtai: Practice and Methods of International Law, p. 1; Bleckmann, Albert: Grundprobleme und Methoden des Völkerrechts, p. 9 f.; Schüle, Adolf: Methoden der Völkerrechtswissenschaft, AVR 8, 2 (1959), p. 129; Sauer, Ernst: Zur völkerrechtlichen Methode, p. 166; idem: Zur Grundlegung einer völkerrechtlichen Methodologie, NTIR 33 (1963), p. 121. 52 See, Crawford, James: Brownlie, p. 22; Verdross, Alfred/Simma Bruno, Universelles Völkerrecht, p 322; Shaw, Malcolm Nathan: International Law, p. 50; Daillier, Patrick/Pellet, Alain: Droit International Public, p. 114. 53 However, particularly the temporal dimension of treaty interpretation still poses difficulties. For the problem of treaties over time see inter alia: Bjorge, Eirik: Evolutionary interpretation; Djeffal, Christian: Static and Evolutive Treaty Interpretation. 54 See, D’Aspremont, Jean: Formalism, pp. 161 – 174. 55 See, Bleckmann, Albert: Grundprobleme und Methoden des Völkerrechts, p. 12 f.; Sauer, Ernst: Zur völkerrechtlichen Methode, p. 164; Schüle, Adolf: Methoden der Völkerrechtswissenschaft, AVR 8, 2 (1959), p. 132.

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C. The Problem of Method in International Law

outline one fundamental methodological choice which needs to be made in this undertaking: is the past viewed as law or as history? While the obvious answer to this question seems to be “both”, upon a closer examination of the question, challenges surface.56 The main question surrounds the problem of universal normativity. International law claims international (universal) applicability and validity. Aims at establishing a legal framework covering the entire historic globe raise questions of normativity. While classical accounts of international legal history perceive international law as having “originated” in Europe and then expanded throughout the world through the imperial agenda of European nation states,57 this view cannot legally frame encounters of European and non-European peoples in history.58 The “classical” view of an expanding European international law proves – under strict scrutiny – not only ahistorical but juridically inapplicable. The historic international legal reality was polycentric: multiple (regional) legal orders existed, of which non claimed global rule.59 And therefore “rules applying to the conflict of ‘public international laws’ cannot be imagined.”60 This conclusion is poison for any assertion of normativity. Normativity (or more aptly supposed normativity) in international legal history therefore is produced by focusing on one particular historic phenomenon – the European legal historic experience – and inflating it with the claim of global reach and applicability. The methodological consequence is that the past is in fact seen as history – history, which, in a second step, is being normatively inflated.61

56 For a good introduction into the debate whether the past should be perceived as law or history, see Orford, Anne: The Past as Law or History?. 57 Such is the view outlined in treatises such as Grewe, Wilhelm Georg: Epochen der Völkerrechtsgeschichte; Schmitt, Carl: Der Nomos der Erde; Nussbaum, Arthur: A Concise History of the Law of Nations. 58 This point was convincingly made by Anghie, Antony: Imperialism, Sovereignty and the Making of International Law, pp. 17 – 23. 59 This argument was brought forward by Kämmerer, Jörn Axel: Introduction. Imprints of Colonialism in Public International Law: On the Paradoxes of Transition, JHistIntlL 18 (2016), p. 241 f. 60 Ibid. p. 242. 61 This methodology in international legal history, which has obvious traces of Eurocentricity does not remain without criticisms. For a critique of the present methodology in international legal history see Koskenniemi, Martti: Victoria and Us. Thoughts on Critical Histories of International Law, Rg 22 (2014); idem: Histories of International Law: Significance and Problems for a Critical View, TICLJ 27 (2013); idem: Histories of International law: Dealing with Eurocentrism, Rg 19 (2011); Lesaffer, Randall: International Law and Its History; Butkevych, Olga: History of Ancient International Law: Challenges and Prospects, JHistIntlL 5 (2003), pp. 189 – 195; Craven, Matthew: Introduction: International Law and Its Histories; Kemmerer, Alexandra: The Turning Aside. On International Law and Its History.

D. Preconceptions in the History of International Law “What we study as history of international law depends on what we think ‘international law’ is in the first place; it is only once there is no longer any single hegemonic answer to the latter question, that the histories of international law, too, can be expected to depart from their well-worn paths and open our eyes to experiences of rule that have hitherto remained in darkness.”62

Studying the history of international law entails the need to look back. The first difficulty in looking into the past is the identification of the research subject. In order to identify international law’s past or historic international law, a preconception of international law needs to serve as the basis for the inquiry.63 This preconceived notion of international law necessarily rests on certain presuppositions. The judicial bodies which need to conclusively decide on contentious cases with an intertemporal dimension are burdened with the task of identifying the historic law applicable between two parties. On one hand the question posed is therefore rather specific – ascertaining one rule or rules at a certain point in time between the two parties. While on the other hand it is situated in a broader framework of historic international law. A historic rule cannot be ascertained without a priori determinations on what constitutes international law. The subjects of historic international law need to be determined and the sources, as well as the lawmaking process itself need to be established. Even in cases in which a particular legal instrument, such as a treaty, is available, the instrument itself is not situated in a legal vacuum. It is placed in a particular factual and legal context. Therefore questions such as: ‘What were the rules regarding the validity of a treaty and how is its interpretation regulated?’ arise. The court therefore needs some idea of the phenomenon it is looking for in history; a preconception of the phenomenon “international law” is needed. The historian Quentin Skinner has put this general problem in historiography as follows: “For if there must be at least some family resemblance connecting all the instances of a given activity, which we need first of all to apprehend in order to recognize the activity itself, it becomes impossible for any observer to consider any such activity, or any instance of it, without having some preconception about what he expects to find.” 64

62

Koskenniemi, Martti: A History of International Law Histories, p. 970. The problem of preconception in the study of the history of international law has been elaborated upon by Steiger, Heinhard: Probleme der Völkerrechtsgeschichte, DSt 26, 1 (1987), p. 106 ff. and Fassbender, Bardo: Das Völkerrecht als Ordnung des Westens, p. 37. 64 Skinner, Quentin, Meaning and Understanding in the History of Ideas, HT 8, 1 (1969), p. 6. 63

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D. Preconceptions in the History of International Law

In this thesis it is being argued that international lawyers in their determination of historic law are guided by a preconception which is neither compelling nor inherently plausible. This preconception is the result of broader socialization international lawyers underwent and manifests itself unconsciously. Critics of this unconscious socialization, manifesting itself in the work of international lawyers have termed it “Eurocentrism”, since the geographic origins of what international law “is” are seen in Europe and any engagement with its history revolves around Europe.65 It is methodologically helpful to detangle the present conception of international law which is resting on broad consensus. The focus will therefore be on the following points: subjects, sources and genealogy of international law. These three points are interconnected, which will be highlighted in a concluding subsection.

I. Subjects States are seen as the primary subjects of international law.66 Regarding the criteria for statehood however, ambiguity and controversy remain. Population, a defined territory and an effective government are virtually undisputed criteria for statehood, while the question of recognition by other states as a constitutive criterion for statehood still is intensely discussed.67 Beyond the debate regarding recognition as a constitutive criterion for statehood, a historic idea of what a state is, a “blueprint” exists. For there is no ambiguity as to where to look for the origins of the statehood.68 James Crawford in his highly acclaimed treatise The Creation of States in International Law dedicates six-and-a-half pages to the topic Statehood in early international law.69 On these few pages Crawford describes the different concepts and notions European scholars such as Grotius, Pufendorf, Vitoria and Vattel developed regarding statehood. Not a single word is wasted for developments outside of Europe.70 Europe, its historic entities as well as its scholars are the point of departure when looking for the possibility of statehood in other regions of the world. This 65

For a summary of the literature on “Eurocentrism”, see fn. 16. See, Shaw, Malcolm Nathan: International Law, p. 143; Verdross, Alfred/Simma, Bruno: Universelles Völkerrecht, p. 222 f.; Daillier, Patrick/Pellet, Alain: Droit International Public, p. 407; Crawford, James: Brownlie, p. 116. 67 For a good overview of the discussion of recognition as a constitutive criterion for statehood in modern international law, see: Crawford, James: The Creation of States, pp. 19 – 28. 68 This point is elegantly made by Koskenniemi, Martti: Histories of International law: Dealing with Eurocentrism, Rg 19 (2011), p. 155, where he states that although the exact time of the emergence of statehood is disputed, “there is no quarrel about the place one has to look at.” 69 Crawford, James: The Creation of States, p. 6 – 12 70 The reference to treaty practice of with the Ottoman Empire in fn. 30 on page 9, as well as the reference to the “breakaway of the South American Provinces from Spain in the 1820s” on p. 11 do not suffice as depictions of organic developments of the notion of statehood outside of Europe. 66

I. Subjects

27

becomes evident in the research of modern scholars looking into the past of other regions of the world for insights regarding the existence and development of statehood. Wolfgang Preiser is one of the few authors to have explicitly researched historic international legal orders outside of Europe.71 But as mentioned above, such research cannot take place in a vacuum. In order to identify the phenomenon “state” in the history of foreign regions, Preiser compares historic European entities and the criteria established by “classic” European scholars with the phenomena he has identified in other regions of the world.72 Of course Preiser is not the only modern scholar using European preconceptions as a stencil for researching culturally foreign phenomena. Other scholars inter alia include Carl Schmitt: while recognising the existence of African peoples and African cultures, Schmitt implicitly denies, without giving any further explanation, that African entities possess any traces of statehood or normative orders which could be termed international law.73 Also, Wilhelm Georg Grewe has placed the birth of international law itself in Medieval Europe. He concludes that therefore no reason exists to delve into regions outside greater Europe.74 The European preconception of subjects isn’t foreign to courts either. The ICJ in its Cameroon v. Nigeria decision contends that the Kings and Chiefs of Old Calabar at the time of concluding the treaty with Great Britain, while regarded as “notable personage”75 were not regarded as states.76 Since the wording implies that entities other than the Kings and Chiefs themselves needed to arrive at this conclusion, the finding begs the question: Who needed to regard the Kings and Chiefs as states for them to acquire said status? From the judgement it becomes clear that indeed it is not how the Kings and Chiefs regarded themselves77 or how neighboring entities perceived them was important, but solely how European powers (using European criteria) regarded the Kings and Chiefs mattered. This leads to the rather paradoxical conclusion that while finding that the Kings and Chiefs of Old Calabar were lacking statehood, they still had sovereignty over their territory and were able to transfer title by concluding an international treaty with Great Britain. This paradox did not go 71

See especially Preiser, Wolfgang: Frühe völkerrechtliche Ordnungen. See in particular, Preiser, Wolfgang: Frühe völkerrechtliche Ordnungen, p. 72 f., 79; Idem: Die Völkerrechtsgeschichte, p. 31. 73 Schmitt, Carl: Der Nomos der Erde, p. 112 ff., 189 f., 204. 74 Grewe, Wilhelm Georg: Epochen der Völkerrechtsgeschichte, p. 29. 75 See, Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, ICJ Reports 2002, p. 404, para. 203. 76 Ibid., p. 405, para. 207. 77 The court continues to elaborate that the Kings and Chiefs of Old Calabar “regarded themselves as owing a general allegiance to more important Kings and Chiefs”, ibid., p. 405, para. 207. The precise relationship between the Kings and Chiefs of Old Calabar and the “more important Kings and Chiefs” however has not been elaborated upon. Since it could have been an allegiance comparable to the relationship between France and Monaco, in which latter retains its sovereignty, this question is not trivial. It could also have been a relationship of mutual allegiance and therefore comparable to defence alliances such as the North Atlantic Treaty Organization in which members retain sovereignty. 72

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D. Preconceptions in the History of International Law

unnoticed by Judge Al-Khasawneh and was elaborated upon in his Separate Opinion. Al-Khasawneh even makes the point that the erroneous conception of the Kings and Chiefs of Old Calabar was due to European hubris: “Thirdly, such an approach is clearly rooted in a Eurocentric conception of international law based on notions of otherness, as evidenced by the fact that there were at the time in Europe protected principalities without anyone seriously entertaining the idea that they had lost their sovereignty to the protecting Power and could be disposed of at its will. Intertemporal law is general in its application, its underlying rationale and unity of purpose being time (tempore) as its name implies, not geography, and cannot be divided into regional intertemporal law, all the more so when no State in the concerned region, be it sub-Saharan Africa or South-East Asia, participated in its formation.”78

The research of the history of international law regarding its subjects is guided by a preconception of what criteria a subject needs to fulfill in order to be considered a state. These criteria, which seem to be applied also by international courts, rest upon regional European phenomena of a particular historic epoch. Every non-European entity needs to let itself be measured against this blueprint.79

II. Sources Art. 38 of the Statute of the International Court of Justice enumerates the sources of international law.80 The sources of international law consist of custom, treaties and general principles. Here the importance of statehood becomes apparent, since it is the behavior of states, combined with an opinion juris which creates customary international law. The status of being a state also is important for the other two sources of international law. Treaties are concluded by states81 and general principles are derived from municipal orders of states.82 Entities not meeting the threshold of statehood are therefore barred from contributing to the formation of international norms.83

78

Separate Opinion of Judge Al-Khasawneh, p. 496. In the late 19th and early 20th century the mechanism by which Europe decided whether or not a non-European entity would be accepted into the “family of states” or into the “international society” was the “standard of civilization”; see, Gong, Gerrit Walter: The Standard of “Civilization” in International Society; idem: China’s Entry into International Society, p. 179; Fisch, Jörg: Die europäische Expansion und das Völkerrecht, p. 284 – 348. 80 See, Crawford, James: Brownlie, p. 22; Verdross, Alfred/Simma Bruno, Universelles Völkerrecht, p. 322; Shaw, Malcolm Nathan: International Law, p. 50; Daillier, Patrick/Pellet, Alain: Droit International Public, p. 114. 81 Art. 2 para. 1 lit. a) of the Vienna Convention on the Law of Treaties, which reflects customary international law defines treaty as “an international agreement concluded by States”. 82 While there is some debate in international legal scholarship whether “general principles” refers to rules beyond the consent of states – signaling natural law – it is agreed that “general principles” can be derived from municipal orders of states. For a discussion on this issue see Degan, Vladimir Duro: Sources of International Law, p. 72 ff. 79

III. Genealogy

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III. Genealogy “Historiographies of international law have been as Eurocentric as the world they describe.”84

What is perceived as the historical development of international law (as a discipline and regarding the content), or its genealogy, also rests on broad consensus. Despite the Peace of Westphalia’s foundational character for international law having been debunked as a myth,85 it is still commonly referred to as the inception of “modern” international law. While some authors include earlier periods of humankind and regions outside of Europe in their research of the development of international law,86 consensus is that the origin of “modern” international law, of its concepts and notions lies in Europe and has been developed in Europe.87 Here the importance of preconception resurfaces. The preconceived notion the historians of international law have of international law, persuades them to identify a historic order resembling their preconception.88 Several authors did not hesitate to explicitly state that “modern” international law is a European phenomenon and that it is sufficient to study its expansion into non-European territories, rather than the legal concepts of same non-European territories.89 The desire to create a clean narrative regarding the genealogy of international law is understandable when realising that one function of law is not only the pacification of conflicting interests and parties, but also creating a stable, reliable and predictable 83 Also, the content of emerging rules, as well as the agent matters for practice and opinion juris to become law. Rules attempted to be established through custom by states of the so-called third world failed to be lifted into the realm of established international law although all criteria were fulfilled. One prominent example of this failure is the arbitration involving Libya and Texaco, Texaco Overseas Petroleum Co. & California Asiatic Oil Co. v. The Government of the Libyan Arab Republic, 53 ILR 389. Discussions on the decision in the broader context of barring newly “independent” states of the so-called third world from participating in the norm creation process can be found by Anghie, Antony: Imperialism, Sovereignty and the Making of International Law, pp. 211 – 226. 84 Koskenniemi, Martti: Histories of International law: Dealing with Eurocentrism, Rg 19 (2011), p. 168. 85 Osiander, Andreas: Sovereignty, International Relations, and the Westphalian Myth, IO 55, 2 (2001); see also Lesaffer, Randall: International Law and Its History, p. 39 (with further references in fn. 40). 86 Like Grewe, Wilhelm Georg: Epochen der Völkerrechtsgeschichte, pp. 26 – 32. 87 See inter alia Crawford, James: The Creation of States, p. 6; Nussbaum, Arthur: A Concise History of the Law of Nations, p. 2; Grewe, Wilhelm Georg: Epochen der Völkerrechtsgeschichte, p. 72 f. 88 Koskenniemi, Martti: Histories of International law: Dealing with Eurocentrism, Rg 19 (2011), p. 168, has described this problem in the following terms: “historiographies of international law have been as Eurocentric as the world they describe.” 89 See, Steiger, Heinhard: Quellenkunde und Quellenedition für die Völkerrechtsgeschichte, DSt 37, 4 (1989), p. 576 and Grewe, Wilhelm Georg: Epochen der Völkerrechtsgeschichte, pp. 72 – 82.

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order. Uncertainty is poison to normativity. Rather than delving into the legal concepts of non-European entities and exploring the “histories of international law”, for the sake of stability and normative legitimacy a familiar European narrative is being reconfirmed. Resting the genealogy of international law on a European foundation therefore also has the aspect of creating normativity and legitimacy for the order itself.90 Phenomena outside of Europe therefore do not serve as a reference point for a system or order which could be termed international law, since they lack the necessary resemblance. If they appear, they do so on the periphery.

IV. Conclusion It is fair to say that the perception international lawyers hold, influences the outcome of historical research. The European preconception of international law serves as a structure with which historical phenomena in regions outside of Europe are being compared.91 Also, there seems to be the urge or the need to establish some continuity between past phenomena and the present phenomenon of international law. Philip Allot beautifully describes how the idea of what international law is has been handed down by international law scholars and practitioners into the present preconception.92 Allot first detangles classic international legal argument93 and detects an underlying implied consensus.94 International legal scholars and practitioners, in making arguments and establishing principles implicitly assume shared political and social values with their audience and further assume agreement on the fundamentals of international law.95 The observation that international legal arguments rest on certain premises the audience is believed to agree upon was also explicitly made by Judge Al-Khasawneh in his Separate Opinion in the case Cameroon v. Nigeria, in which he criticizes that the court in its judgement has taken for granted 90

This is one consequence of the above-mentioned methodological choice which needs to be made. It becomes evident that resting international law’s genealogy on a European foundation goes necessarily as viewing the past as history and not as law. 91 Steiger, Heinhard: Quellenkunde und Quellenedition für die Völkerrechtsgeschichte, DSt 37, 4 (1989), p. 576 elaborates that sources for the history of international law can only be found in international law of “European origin”, since historical phenomena outside of Europe cannot be termed “international law”. 92 Allot, Philip: Language, Method and the Nature of International Law, BritYBIL 45 (1971), summarizes how the framework of language permits certain arguments but excludes other. Not necessarily through an explicit prohibition, but rather through an implicit agreement on what the international law “is” and by shared assumptions regarding the field. 93 An exercise also masterfully undertaken almost two decades later by Koskenniemi, Martti: From Apology to Utopia (the first edition was published in 1989). 94 See for example Allot, Philip: Language, Method and the Nature of International Law, BritYBIL 45 (1971), pp. 79, 84 and 94. 95 Ibid., p. 94 f.

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certain premises concerning historic law which lie at the very core of the case and which, secunda facie, are all but clear.96 The preconception I have tried to outline can best be described as a discourse – a discourse with clear but unspoken boundaries. Some questions and arguments just aren’t permissible. Not because there is an explicit prohibition of making these arguments, but because of the implied consensus between the participants of the discourse. It is obvious that a state is a state in the same way a house is a house. No further debate is needed concerning its characteristics since the term itself provides sufficient association. This is not only true for the subjects of international law but also for the phenomenon “international law” in general. How could international law be anything else than the ideas and principles handed down to us through scholars like Grotius, Victoria and Pufendorf, and particular events that have taken place in Europe since the time of same scholars? In modern international law this narrative is being consolidated through the language of universality. Looking for the phenomenon “international law” in the past requires having some form of concept of international law. The researcher needs to know what exactly he or she is looking for. The preconception, molded by European historical phenomena, guides the practitioner in his research of the past.

96

See p. 494 of the separate opinion of Judge Al-Khasawneh.

E. Problems Ascertaining Historic Law from the Viewpoint of Historiography “L’histoire n’est jamais sûre.”97

Delving into the past in order to ascertain historic rules necessitates some form of historiographical approach. I will therefore now outline problems ascertaining historic law from the viewpoint of historiography. While the viewpoint of historiography is taken, this section does not attempt to solve the methodological disputes and problems entrenched in historiography. It should be understood that historiography is the tool for arriving at a legal conclusion. This section thus aims at highlighting the difficulty in drawing legal conclusions with the available historiographic toolkit. The emphasis will lay on the difficulties of precisely assessing culturally foreign legal traditions with the increased problem of elapsed time. How can a foreign culture and its historic perception of rule creation and application be understood with a toolset foreign to its own tradition?

I. General Problems in Historiography “Europe works as a silent referent in historical knowledge.”98

In this subsection the general problems current historiography is facing will be outlined. A broader and ongoing debate has the question of “objective” historical truth at its center. The argument persisting on the ability of historians to reach an “objective” historical truth through research is formulated as follows: Through paying careful attention to “historical facts” an “objective” truth is detectable. This truth also is virtually void of the researcher’s interpretation, since it is the facts that speak (through the researcher).99 The method of focusing on “facts” and letting these “facts” speak for themselves guarantees results which are close to the “objective” historical truth. The position against an “objective” truth in historiography argues

97

De Certeau, Michel: La Possession de Loudun, title of the introduction. Chakrabarty, Dipesh: Provincializing Europe, p. 28. 99 See for example Elton, Geoffrey Rudolph: The Practice of History, pp. 46 – 60; see also Lesaffer, Randall: International Law and Its History, p. 38. Goldstein, Leon: Historical Knowing, p. 39 argues that while a process of interpretation takes place in the historiographic process, objective facts can be known. 98

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that history is produced through the interpretative work of the researcher.100 Although the historian should follow a transparent method in order to arrive at a given conclusion about the past, this very conclusion cannot be more than a dialogue the historian holds with the sources and facts surrounding the subject of investigation.101 History therefore should be perceived as a narrative. However, for the advocates of both positions facts and context are relevant and cannot be neglected.102 I will now elaborate upon the problems establishing historical facts and context with regard to non-European societies and answer the question if precisely identifying legal traditions in culturally foreign (historic) societies is possible. But first, I will set the research subject, the history of international law, in its proper historiographical frame: the realm of “Ideengeschichte” or intellectual history103. While the scope of the field “intellectual history” is rather broad, it provides the toolkit for identifying ideas and frameworks in history. 1. “Ideengeschichte” and its Methodology International law is not tangible. International law consists of rules and processes creating these rules – it is a normative structure. There is no physical structure, no building of international law to be visited. There may be buildings accommodating international institutions involved in the creation and enforcement of international law. However, in the future analysis and research of contemporary international law, these buildings themselves will be of little value in the quest of determining the applicable law. Same can be said for historic international law. If indeed the task is ascertaining historic rules, searching for old artefacts is of no help. Even historic texts and documents alone are not sufficient for ascertaining historic law. A process identifying ideas, notions and principles from the text needs to be followed. Detecting and identifying historic ideas and patterns of thought is the self-proclaimed goal of a field within historiography commonly referred to as “Ideengeschichte”, or “history of ideas”. I will outline the method and discuss its limits with regard to the problem of grasping concepts and ideas which are culturally foreign to one’s own.

100

See Skinner, Quentin: Visions, p. 15 f.; Fasolt, Constantin: The Limits of History, p. XVIf. 101 Fasolt, Constantin: The Limits of History, p. XVI argues in this vein. 102 For a discussion on the importance of context for the work of historians, see Hume, Robert: Reconstructing Contexts, pp. 61 – 71 and 137 ff. 103 Sometimes also referred to as “history of ideas”.

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a) Selection of Material How can we delve into the minds and ideas individuals or even societies collectively have held?104 Selecting texts, literature and other documents of the epoch in question may seem as an apt point of departure for any further process. Yet, warnings about the lack of objectivity already ring loudly at this early stage of research. The critique is that the process of selecting subject and relevant material has partiality built into it.105 The process of selecting relevant material and preparing it for further interpretation is in fact preceded by a preconception of the historical society under scrutiny: “Anybody who has the slightest experience of working with historical documents or sources knows that these so-called raw materials cannot be understood unless the historian has some prior knowledge of the kind of society and its economic, intellectual, religious, and technical conditions to which they belong. The historian is therefore not a scholar who starts with raw material but a scholar who has some knowledge prior to the raw material. A character, chronicle, an election return […] or a treaty is quite unintelligible without a vague preconception of the situation that gave rise to it.”106

In the context of historiography therefore, the researcher approaches the “raw material” with a preconception of the society under scrutiny. It is of great importance for the further elaboration of the problem to recognise the existence of such bias. Moreover, bias is already built into the “raw material”: “[T]here is no genuinely raw material at all. Everything that has come down to us is cooked by somebody for some purpose.”107

The historic author had his or her intentions, constraints and world views. This is a great challenge to the very idea of unbiased sources or sources that speak for themselves. There is bias; firstly from the perspective of the historic author and secondly, from the perspective of the (contemporary) researcher. Historical sources are approached from an angle and this angle is of relevance for the outcome. b) Interpreting the Material “Without such prior knowledge, the sources would speak a language as full of meaning as the wind.”108

The actual procedure of identifying a specific and particular idea begins with the interpretation of the relevant documents and other sources. Extracting meaning from 104

For ideas that seem absurd or unreasonable from the present point of view, see Skinner, Quentin: Visions, p. 40 f. 105 See inter alia Hume, Robert: Reconstructing Contexts, p. 142. 106 Munz, Peter: The Shapes of Time p. 157. 107 Munz, Peter: The Shapes of Time p. 177; Thompson, Paul: The Voice of the Past, p. 150 puts it as follows: “Every historical source derived from human perception is subjective […]”. 108 Fasolt, Constantin: The Limits of History, p. 10.

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texts is the métier of classical hermeneutics. At this point broader explanations of hermeneutics seem misplaced. It suffices to briefly outline the so-called “hermeneutic circle”, which lies at the core of the hermeneutic process. The circle can be described as the process of understanding the whole through single pieces and the single pieces through the whole.109 Here the notion of preconception resurfaces, as this preconception serves as the basis for any first step in “understanding” a text. What this preconception entails and consists of in detail may vary from researcher to researcher as well as from research subject to research subject. A preconception that however is of more general quality is at the center of what has been termed “whig history” or “whig interpretation”.110 The term describes a method of interpreting history in which historical events are seen as necessary and inevitable steps towards even greater progress and enlightenment.111 In other words: lapse of time inevitably leads towards an ever developing and progressing liberal democracy. Past events are interpreted in a fashion as hinting towards this inevitable development. A famous critic of this unidimensional interpretation of history – history viewed as following strict rules, leading to a predictable future – was Karl Popper. In his work Das Elend des Historizismus he rebutted arguments in favor of the possibility of describing history and societal evolution in categories of law of nature.112 The reason for especially stressing “whig interpretation” as a pitfall in interpreting historic documents lies in the subject of this research thesis: the struggle to ascertain historic rules developed by non-European peoples. Approaching historic documents such as treaties between non-European and European peoples with a whig preconception of progress and enlightenment frames historic events in categories of “civilized” and “uncivilized” or “forward” and “backward” which, when applied, work to the detriment of the non-European peoples, as I seek to highlight. Whig interpretation is tantamount to taking sides: “The whig method […] tends to misconceive both parties to any struggle that takes place in any given generation. The party that is more analogous to the present is taken to be more similar, more modern than close examination would justify, for the simple reason that the historian is concentrating upon likeness […]”113

109

Gadamer, Hans-Georg: Vom Zirkel des Verstehens, p. 24. The name “whig” comes from one of the two Parties (the other Party being the Tories) in British parliament during the 18th and 19th century. The term was famously coined by Herbert Butterfield in his work The Whig Interpretation of History. 111 Butterfield, Herbert: The Whig Interpretation of History, p. 34 ff. 112 See Popper, Karl Raimund: Das Elend des Historizismus, pp. 83 – 94 and p. 115 ff. On p. 85, Popper rebutted a linear view of history, following laws of nature as follows: “Ich bin der Ansicht, daß diese Frage mit ‘nein’ beantwortet werden muß und daß die Suche nach dem Gesetz der ‘unabänderlichen Ordnung’ der Entwicklung keineswegs in den Aufgabenbereich der wissenschaftlichen Methode fallen kann […]. Die Entwicklung des Lebens auf der Erde und der menschlichen Gesellschaft ist ein einzigartiger historischer Prozess. […] Seine Beschreibung ist jedoch kein Gesetz, sondern ein singulärer historischer Satz.“ 113 Butterfield, Herbert: The Whig Interpretation of History, p. 34. 110

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How can any researcher overcome these preconceptions when interpreting historic material? Conscious of the pitfalls of interpreting historic texts, especially the impact perceptions have on their understanding, historians of ideas such as Quentin Skinner, best known for his work on contextualisation, advocates taking “whatever is said [and] however bizarre it may seem, as far as possible at face value.”114 Since Skinner has thoroughly discussed the difficulties preconceptions pose to interpretation of historic texts.115 Taking what is read at “face value” therefore needs to be understood as a mental exercise: the attempt to be intellectually open to ideas and beliefs, however foreign or alien they may seem. This intellectual openness is of great importance in avoiding the pitfall of anachronism. But, how far can the ordinary meaning of terms as understood at “face value” carry the interpretative process? If the researcher is confronted with terms as simple “wife”, the face value does not give him or her any hint as to how to understand the term; for “wife” most certainly described a different reality in 17th century Ottoman Empire than in 21st century Germany. A context therefore needs to be established in order to delineate a belief or idea. Identifying and delineating beliefs or concepts with an almost over boarding broadness such as “sovereignty” or “property” makes establishing context particularly important in the process of interpretation and understanding. For the example of “sovereignty” Martti Koskenniemi has made the following statement: “To invoke ‘sovereignty’ in 1873, 1919, 1965 or 2006 is completely different, it is the performance of an act which apart from its most insignificant aspect – namely its verbal surface – has a completely different meaning to the speaker and to the audience. Historians involved in Begriffsgeschichte know very well that political and legal words are expressed in contexts and that their meaning depends on what claims are made by them in respect to other claims.”116

Establishing the relevant context however poses difficulties of an enhanced degree, as will be discussed in the following section. c) The Problem of Context “Historical contexts as they are available to us are our constructs. To pretend otherwise is dangerous nonsense.”117

Context serves a twofold purpose. On one hand context serves as an interpretative background for a given belief, idea or concept. Through contextualisation the understanding of an idea and its content should increase. On the other hand it provides the background against which a given belief or idea is tested. Testing of the idea or 114

Skinner, Quentin: Visions, p. 42. See ibid., pp. 1, 10 ff.; Skinner, Quentin, Meaning and Understanding in the History of Ideas, HT 8, 1 (1969), p. 6. 116 Koskenniemi, Martti: A Response, GLJ 7 (2006), p. 1106. 117 Hume, Robert: Reconstructing Contexts, p. 61. 115

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concept should be understood as a process of verification: Does the initial meaning as perceived and understood by the contemporary researcher still hold after having been placed in a wider context or does the context obliges abandoning the meaning established through any first reading? Both purposes may be perceived as two sides of the same coin. For both purposes a stable and reliable context is needed. But how is historic context reconstructed? Herein lies a significant problem, since context is a construct of the historian.118 Context does not lie around, ready to be picked up and made use of by the researcher. It needs to be established actively. Establishing and constructing a context necessarily entails a decision on where the context ends. A decisive question therefore is whether the historian had any a priori assumptions which guided the delineation of context.119 If a priori assumptions guide the choices necessary to delineate the context, the researcher is in danger of getting the results he or she expected.120 The problem of a priori assumptions, premises and preconceptions is a reoccurring one. At every step of the interpretative process lies the pitfall of polluting outcomes with subjective bias.121 Ever cognisant of the danger of subjectivity, historians recommend the broadest possible context for the inquiry.122 This recommendation however merely shifts the problem – what is the broadest conceivable historical context for interpreting a “Treaty of Protection” between Great Britain and the Kings and Chiefs of Old Calabar in 1884 and the ideas it entails? In every attempt of context reconstruction a decision on where the context ends necessarily needs to be made; and be it for the sake of practicability (i. e. concluding the research).123 The decision on where the specific context ends can be guided by a plethora of plausible reasons, but it still is a subjective decision of the researching entity. How then can the spectre of subjectivity be dealt with? It appears as though subjectivity, which can manifest as bias or a preconception, cannot be destroyed or overcome. It needs to be accepted as existing in every step and layer of the historic interpretative process. The historian Robert Hume likened the quest of authentically reconstructing historic viewpoints to the task of learning a foreign language in adulthood:

118

See Hume, Robert: Reconstructing Contexts, p. 62 f. Robert Hume suggests that the inadmissibility of a priori assumptions is the “most crucial principle of context-reconstruction”, Reconstructing Contexts, p. 63. 120 On this point see Hume, Robert: Reconstructing Contexts, p. 140. 121 I would go so far as stating that no research can ever be free from subjectivity. 122 Hume, Robert: Reconstructing Contexts, p. 52; Elton, Geoffrey Rudolph: The Practice of History, p. 60, where he recommends the historian to “never consider less than the total of the historical material which may be conceivably be relevant to [the] inquiry.” 123 Practicability as a limitation for context is of special importance for courts, since the task of courts is reaching a decision. 119

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E. Problems Ascertaining Historic Law “He or she will endeavour to reconstruct and enter into viewpoints of the past, attempting to do so as well as possible even while knowing that it can never be done completely.”124

An open mind and the genuine desire to replicate a historic horizon of meaning and understanding through contextualisation are essential for the enterprise of identifying ideas in the past and historic concepts. Yet, the own perception is the very limit of the possibility to identify a historic idea. By “own perception” I mean the very essential human experience of perceiving the world through sensory organs, creating a reality through neurological procedures and the evaluation of this reality through a complex interplay of biochemical procedures as well as experience. In fact the entire discourse in modern historiography about the possibility of historical knowledge and knowing revolves around the question of how to deal with subjectivity.125 The very banal conclusion therefore is: the limit of delving into a historic mind is our own. d) The Problem of Oral Tradition Having pointed out the difficulties in identifying ideas in history through the interpretation of historic documents, this section will parse an additional problem that specifically arises when dealing with non-European peoples and cultures: oral tradition. “Oral source” is the umbrella term for two main approaches ways of establishing historical knowledge. One consists of creating a historical narrative through personal recollections of persons (mostly in the form of interviews) about the recent past or recent events in which the interviewed individuals have participated in or have witnessed. This path is commonly referred to as “oral history”.126 The other part, commonly referred to as “oral tradition”, refers to spoken, sung or musically called out statements, which must be transmitted over at least one generation.127 Some 124

Hume, Robert: Reconstructing Contexts, p. 46. Hume, Robert: Reconstructing Contexts, p. 45 f. concedes: “I readily acknowledge that all of us are situated in our own world and that we cannot simply shed it like a snake skin. We carry our own ideological luggage, and given the inaccessibility of the past, we are permanently estranged from it in important ways.”; Butterfield, Herbert: The Whig Interpretation of History, p. 9 states: “The primary assumption of all attempts to understand the men of the past must be the belief that we can in some degree enter into minds that are unlike our own.”; also Goldstein, Leon: Historical Knowing, p. xiii maintains: “If philosophy is an a priori discipline, then the actuality of historical objectivity cannot be established philosophically.”; Fasolt, Constantin: The Limits of History, p. 9 f., 15 f. finds that “history” is a phenomenon inconceivable without subjectivity; Skinner, Quentin: Visions, p. 58 f. concludes: “the resulting dilemma may be stated […] in the form of the proposition that the models and preconceptions in terms of which we unavoidably organise and adjust our preconceptions and thoughts will themselves tend to act as determinants of what we think and perceive. We must classify in order to understand, and we can only classify the unfamiliar in terms of the familiar.” 126 See Henige, David: Oral Historiography, p. 2; Vansina, Jan: Oral Tradition as History, p. 27 f; Ritchie, Donald: Introduction, p. 3. 127 See Vansina, Jan: Oral Tradition as History, p. 27 f. 125

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authors restrict oral tradition to conscious historical statements and recollections commonly or universally known in a given society or culture.128 Oral tradition therefore also has a methodological component to it. Since this thesis focuses on the method ascertaining historic international law in contentious proceedings with a nonEuropean party, it should be noted that several non-European peoples have oral tradition next to or instead of written manifestations.129 Particularly the people who inhabited the Bakassi Peninsula – the land mass at the core of the Cameroon v. Nigeria case – the Efik people, cultivated oral tradition.130 If a legal instrument concluded between a European and a non-European people – such as the Treaty of Protection between Great Britain and the Kings and chiefs of Old Calabar – is being scrutinised, it is self-evident that the perspective of the non-European party needs to be established for a proper legal interpretation of the treaty.131 In some cases, literature on non-European peoples and their social life exists. Yet, this literature in most cases is inconclusive in the sense that it fails to answer questions about specific rules and perceptions of norms of the given societies.132 Also, as I will demonstrate below, written accounts of the history of an oral people distorts their understanding of self, and more importantly prevents seeing their experience in their own idea of selfhood. Therefore more immediate and direct measures need to be taken in order to identify historic norms of an oral people. aa) Oral Tradition as a Source “We must classify in order to understand, and we can only classify the unfamiliar in terms of the familiar.”133

European historiography, especially the field of “Ideengeschichte”, relies heavily on written sources and therefore has difficulties extracting historical knowledge from oral tradition. Virtually the entire methodology in European historiography seeks to gain historical knowledge through material relicts of the past, whether it is a building, art, jewelry or a text.

128 Henige, David: Oral Historiography, p. 2; Miller, Joseph: Introduction: Listening for the African Past, p. 2. 129 Especially African Peoples use oral tradition as a means of producing history and identifying their position in the realm of space and time. See inter alia Miller, Joseph: Introduction: Listening for the African Past. 130 Amoah, F. E. K.: Oral Tradition and Ethnicity in the Creation of New States in Nigeria: The Case of Akwa Ibom, RRIAS 8 (1992), pp. 76 – 89. 131 Geertz, Clifford; Local Knowledge, pp. 55 – 70 has aptly termed the chapter on the nature of anthropological understanding “From the Native’s Point of View”. 132 Also, the existing literature on oral societies necessarily depends on methods that will be outlined in this thesis. It is in any event crucial to examine the problems these methods have in acquiring and establishing information sufficient to be applied in a contentious proceeding. 133 Skinner, Quentin: Visions, p. 59.

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Cultural anthropology and its methodology provide the toolkit for identifying structures and norms in culturally different societies in history.134 The methodological toolkit cultural anthropology provides can be applied in a way in which oral tradition (understood as the passing of known information through generations) serves as a historical source. To be more precise: if the goal or aim is to gain knowledge about the beliefs of an oral society in a certain period in the distant past, cultural anthropology’s methodology provides the means to make their oral tradition function as a historical source. I will outline the techniques cultural anthropology has developed to pierce through the membrane of a foreign culture and study the particular society’s normative framework. Then, I will discuss the difficulties and problems cultural anthropology faces in reaching that goal. The first task in extracting historical knowledge from oral tradition is getting access to the relevant information. Since the information is oral or displayed through performance, direct contact is needed for a first hand analysis. Making contact with peoples of a foreign culture and gaining access to circumstances in which the relevant information can be obtained is the endeavor of fieldwork. Fieldwork in fact lies at the very center of anthropological work. David Henige in his foundational work Oral Historiagraphy intelligently leads the interested reader through the process necessary to produce history using oral tradition as a source.135 He divides fieldwork into the known three stages: preparation, collection and interpretation. In the preparatory stage the researcher needs to develop a strategy or approach on how to collect his data. Since ethnographers and cultural anthropologists often do research in distant and foreign countries and regions, language is a very specific barrier that has to be taken into consideration during the preparatory phase. The researcher has to decide whether or not some form of language training should be undergone, or if an interpreter should be relied upon for direct communication.136 Both options bear their own risks and pitfalls. Learning a new language in adulthood is a comparatively difficult task. Learning a foreign language to a degree which permits penetrating the cultural membrane is an endeavor which might take several years if not a lifetime.137 Also, if language is understood as the interplay between operative vocalisations and the reality they describe, classroom training alone isn’t sufficient.138 Experience and exposure to the lived everyday culture is necessary. It 134

David Henige has coined the term “Oral Historiography”. While pointing out differences in the approach of anthropologists and historians, Henige sees the fieldwork at the center of both disciplines and in fact describes using (slightly modified) anthropological methods to receive historiographic results. 136 Henige, David: Oral Historiography, p. 28 f. 137 Henige, David: Oral Historiography, p. 29 advocates acquiring “as deep an acquaintance as possible with the relevant language before leaving for the field.” This deep acquaintance however has no limit. It very well may take a lifetime. 138 Henige, David: Oral Historiography, p. 29 also makes the point that classroom training as a means to learn a language only is available to languages that are widely spoken. Since oral 135

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seems trite to highlight the connection between lack of language and lack of understanding. Letting rudimentary language skills suffice, bears the danger of miscommunication. Making use of an interpreter bars the researcher from interacting with the relevant sources in a way that would permit a thorough and personal evaluation and appreciation of the testimony.139 The preparatory stage already forces the researcher to make important decisions which heavily impact the outcome. Conducting the actual fieldwork – the collection of data in the given society – isn’t met with fewer obstacles than the preparatory phase. The researcher now has to decide whether it is preferable to attempt to understand the views of the studied society from the “inside” or to approach the interviews and the people interviewed through the lens of a “disinterested observer”.140 Neither standpoint is ideal or the ultimate solution to understanding the foreign society.141 Both entail the need of weighing the advantages with the disadvantages and having to reflect upon bearing the goal in mind.142 Whichever of the two alternatives the researcher opts for, it is by far not the last decision he or she needs to take while on the ground collecting the necessary data. There is a long chain of choices lying ahead. Interviewees or “informants” need to be identified and selected. Finding suitable informants, however, requires a rather in depth understanding of the society studied, since members of different strata of society have a different understanding or perspective on historical events. I will merely mention the problem of properly identifying the different strata of the given society, which in itself is a research of its own.143 Also, multiple interviews need to be scheduled. The decision on how many interviews should be conducted is by no means banal. Not only does the researcher need to give bearers of oral history the time to unfold and elaborate, but additional interviews can serve as a means of verification and clarification.144 And questions for these interviews need to be prepared. Since information is gathered through dialogue, an answer always is a result related to the specific questions asked. Which questions are asked and how they are formulated and communicated therefore is of great significance.145 Each individual decision is suitable to tilt the outcome towards a particular result. It should be noted that the issue of credibility of informants and information given has not been tackled as yet. How societies also have strong and significant dialect deviations, classroom teaching is limited to very standard forms. 139 This danger is highlighted in Henige, David: Oral Historiography, p. 28. 140 Henige, David: Oral Historiography, p. 39. 141 The first may be perceived as unattainable and the second as “too clinical”, see Henige, David: Oral Historiography, p. 39. 142 The researcher needs to navigate the middle ground between the possible and the desirable, see Henige, David: Oral Historiography, p. 40. 143 See Henige, David: Oral Historiography, p. 47 f. and Vansina, Jan: Oral Tradition as History, p. 59. 144 See Henige, David: Oral Historiography, p. 52 f. 145 See Henige, David: Oral Historiography, p. 54.

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exactly can the researcher verify the validity of the information given? Why should the researcher assume informants trust him or her with (sometimes sacred) information about the past of the people?146 As of today no convincing solution has been found to the problem of credibility. Having collected the data, the interpretative work in terms of content and context can begin. For the main difficulties connected with interpretation and context, it can be referred to the section above dealing with interpretation in general historiography. There however are additional difficulties in oral historiography. The first is the apparent lack of context. Actually establishing the relevant context in terms of time and region can be rather challenging for researchers which aren’t part of the oral society themselves. Secondly, any existing broader context that is available in writing has been gathered through means described above and, as oral historiographers admit, has to be consumed with caution.147 All of the above highlights that in every step of the process of gaining historical knowledge using oral tradition as a source, significant difficulties prevent researchers from drawing an exact image of history of the culture and peoples studied. What can be achieved is a comparatively vague sketch. This is particularly due to the issue I will discuss in the following sub-section. bb) Oral Tradition as the Foundational Framework of a Society “Tete are ne nne (Ancient things are today).”148 “Tete ka asom ene Kakyere (Ancient things remain in the ear).”149

In the sub-section above, the difficulties of oral tradition as a historical source approached with the methodology of cultural anthropology (or oral historiography) were pointed out. The aim of oral historiography is gaining “accurate” historical knowledge, preferably exact datable historical knowledge, through piercing the membrane of the foreign society and attempting to understand their ways and outlook. The task of understanding the foreign culture therefore is a means to the end of acquiring historical evidence through “facts”. This knowledge gained from the evidence is then embedded into a pre-existing view of world history and historic events. In other words: “blind spots” in world history should come to light and then be embedded into an already existing narrative of (European) world history.

146 Also, informants might carve out time of their life to help the researcher with his or her endeavor. The intuitive response to reward informants for their time might also have distorting effects. For a good analysis of this problem, see Henige, David: Oral Historiography, p. 56 f. 147 For the danger of “outmoded” ethnography in preparing for the filed, see Henige, David: Oral Historiography, p. 47. 148 Vansina, Jan: Oral Tradition as History, p.xi. 149 Daaku, Kwame Yeboah: History in the Oral Traditions of the Akan, p. 45

I. General Problems in Historiography

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This subsection will highlight the immense task of intellectually understanding the embodied historical legal outlook of an oral people. The subject of gaining a conclusive understanding of a foreign culture touches upon the difficulties of interpreting collected data. However, the worldview and perceptions of oral societies of time, space and what constitutes community in the first place differ so fundamentally from those of literate societies that separate elaboration is needed. The immense difficulty for “outsiders”150 to understand the perception of oral societies, particularly their past, is vastly appreciated in ethnographic literature.151 Oral tradition is more than a way of remembering and conserving history. It can be perceived as a fundamental form of organizing community and society. In fact, oral tradition can be seen as the underlying premise on which a society is constructed; a way of communication and of self-understanding as well as self-perception.152 Tales and myths of an oral people do not only contain the historical experience of the people, but also the (sometimes “divine”) purpose of their existence as a community.153 The tales, myths and stories are woven into the present which can be seen as manifestations of the ancient or eternal.154 If a precise set of rules an oral society held at a given time in the past needs to be identified and ascertained, the process of gaining such knowledge is accompanied by the danger of compartmentalising historical knowledge of the given oral society. Attempting to single-out a specific historic event and extract meaning from a saga or myth risks destroying it and the meaning it entails. These tales and myths consist of inextricably linked narratives which become a whole, exceeding the meaning of its parts.155 Time and the perception thereof are subject to culturally differing appreciations. Again, a saga, myth or tale of the past might manifest in present-day life with no clear line distinguishing ancient (or eternal) past from the present.156 That is the very reason why “ancient 150 By “outsiders” I primarily refer to literate societies. I am using “literate societies” without imposing any form of hierarchy, but in the literal sense of societies based on written documents. 151 See, Henige, David: Oral Historiography, p. 5 “Even greater than the differences between written and oral sources are the disparities in understanding and conceiving the past by societies that rely on writing and those that must depend only on the spoken word …”; Vansina, Jan: Oral Tradition as History, p.xi “How is it possible for a mind to remember and out of nothing to spin complex ideas, messages, and instructions for living … is one of the greatest wonders one can study…Because the wonder is so great, it is also very complex.”; Thompson, Paul; The Voice of the Past, p. 1 f. first stipulates that all history has a social purpose and “depends ultimately upon its social purpose.” He then continues to say that the difficulty coping with oral history lies “in relation to this essential social purpose of history.” 152 See Henige, David: Oral Historiography, p. 5; Thompson, Paul; The Voice of the Past, p. 1 f. 153 Vansina, Jan: Oral Tradition, p. 34 ff. 154 Vansina, Jan: Oral Tradition, p. 100 ff. has described the different perception of time and its passing by oral societies. 155 Vansina, Jan: Oral Tradition, p. 34 ff. 156 Ibid.

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things are today”157. Therefore oral tradition for a pre-literate people is not merely a historical source of knowledge. It can be more aptly regarded as a way to make sense of the being in time and space.158 This point is being stressed in order to highlight the discrepancy between the aims with which historical anthropologists approach oral culture – i. e. to gain further information for an already existing world history – and the holistic component oral tradition has in oral societies.159 Therefore, attempting to extract a precise legal rule from a historic source of an oral people, such as a tale or a myth, risks destroying the value of the tale or myth as a source. 2. Conclusion Arriving at precise legal conclusions utilising historiographic methodology is a challenge. This is because a discrepancy exists between what historiography as a field of research is able to achieve and what it would need to achieve in order to conclusively ascertain historic law in general and historic rules of a culturally foreign people in particular. One has to bear in mind that a juridical body needs to conclusively decide on facts and law in a contentious proceeding. A specific rule, applicable to the case needs to be ascertained. It is questionable whether historiography provides to apt toolkit for this endeavor. The merits and benefits of historiography lie in the possibility of making the past approachable and conceivable. One can gain a vague understanding of how people in a particular point of time lived; what they ate, how they dressed and how they housed. Trying to understand historic patterns of thought however – the métier of “Ideengeschichte” – is more problematic. This intangible world of thoughts and ideas is rather difficult to reconstruct. The problem of reconstructing ideas and thoughts becomes particularly pressing if the society studied is foreign in terms of region, ideas and the way in which “history” is produced therein. Yet, oral historians have developed a methodology allowing for some exchange of narratives with a foreign people. However, these oral historians themselves are well aware of the very pitfalls that lay at every single one of the very small and detailed steps towards reconstructing such a narrative. The range in which historical thoughts and narratives of a foreign (oral) people can be depicted lie, figuratively speaking, between paintings of Wassily Kandinsky and Claude Monet. The accuracy needed to actually ascertain a historic legal rule applicable in a contentious proceeding however is more in the sphere of a high-reso157

Vansina, Jan: Oral Tradition as History, p. xi. For the holistic and sometimes esoteric nature of oral tradition see Vansina, Jan: Oral Tradition, p. 34 ff. Vansina has dedicated several chapters to the problem of meaning of oral tradition to the society in question. 159 In fact, oral tradition for many oral cultures is a means of transcending the “time barrier”. Within this fundamentally differing conception of past and time, oral tradition is the tool for perceiving past, present and future as an inextricably linked “one”. For the profoundly different conceptualization of measurement of time, historical truth and historical development, see Vansina, Jan: Oral Tradition, p. 100 ff. 158

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lution digital picture. Heinhard Steiger, a historian of international law therefore concluded: “Nothing can be learnt from the histories of international law, at least nothing concrete.”160

II. The Problematic Historiography in Cameroon v. Nigeria The historiographic problems in ascertaining a historic rule manifested in the Cameroon v. Nigeria decision of the ICJ. The ICJ does not explain or outline the methodology it applies to reach a decision. The methodology used has to be deduced from statements and arguments made by the court. In this section the Cameroon v. Nigeria judgement will be analysed. Particularly the courts analysis of the “Treaty of Protection” concluded between the Kings and Chiefs of Old Calabar and Great Britain in 1884 and the historical context the court has established for the treaty will be parsed. The court made several statements regarding the historic setting in which the treaty between the Kings and Chiefs of Old Calabar and Great Britain was concluded. The first statement relates to the uncertainty concerning the exact territory over which the Kings and Chiefs exercised power: “The Treaty with the Kings and Chiefs of Old Calabar did not […] indicate the territories over which each of the Kings and Chiefs signatory to the Treaty exercised his powers.”161

How can factual historic uncertainty regarding an essential aspect of the treaty – the territory over which the former rulers exercised their power and which should be transferred – be remedied? The court moved to rely on statements of the British consul, who negotiated and signed the treaty, as well as on statements of another British consul made to the British Foreign Office in 1890.162 To be clear: the court relied on statements of British officials, which are representatives of one of the parties to the treaty and therefore can be assumed to have had strong interests concerning the size of the territory. There is now evidence in the judgement that the court has taken into consideration perceptions of the Kings and Chiefs themselves concerning the territory they have exercised power over. The reason for this omission by the court remains unclear. The court has established a historic fact with legal implications by relying on the statements of one of the parties to the treaty under scrutiny. In any event the European perspective remained unquestioned and has prevailed. The court also made statements concerning the relationship between the individual Kings and Chiefs. It points out that: 160

Steiger, Heinhard: Was heißt und zu welchem Ende studiert man Völkerrechtsgeschichte?, p. 222 (translated by the author). 161 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, ICJ Reports 2002, p. 404 ff., mn. 203. 162 Ibid.

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E. Problems Ascertaining Historic Law “[T]here is not even convincing evidence of a central federal power. There appears in Old Calabar rather to have been individual townships, headed by Chiefs, who regarded themselves as owing a general allegiance to more important Kings and Chiefs.”163

This statement describes the internal organizational structure of the Kings and Chiefs of Old Calabar. Its legal implications will be discussed below. However, from a historiographical perspective no effort was made to set the terms “central federal power”, “allegiance” and even “Kings and Chiefs” in their local context or interpret them through it. The court has assumed a European understanding of the terms without considering a possibly different understanding of the notions in question within the societies of Old Calabar. There is ample scholarly work suggesting that the notion of “allegiance”, “federal power” and “Kings and Chiefs” in the societies of Old Calabar were distinctly different to European conceptualisations. Regarding the term “king” for example, the literature suggests that it cannot easily be equated with what is understood as European monarchy.164Also, particularly in the 19th century the conceptualization of rule within the Efik people, who have inhabited the Bakassi Peninsula, has considerably changed: “During the nineteenth century, however, the associations of the title seem to have changed and the office of king came to be regarded […] as a distinct if alien institution.”165

As demonstrated, the court repeatedly made statements which can only be understood as rendering the non-European perspective at hand irrelevant.166 The judgement of the court therefore unveils the difficulties non-European perceptions and narratives have in being considered or even recognised by an international judicial body.167 The before-mentioned preconception seemed to have guided the court in its historiography. The pitfalls of historiography, the dangers of bias and subjectivity well known to historians, are overlooked by the court and the result works to the detriment of the non-European narrative. The “différend” – a situation in which the method to settle a conflict already is a statement in favor of one of the parties and excludes the narrative of the other – begins to appear on the horizon.

163

Ibid., mn. 207. Gwilym, Iwan: The Political Organization of Old Calabar, p. 125 ff. where he states that “The use of the European term ‘king’ carried no implications of monarch …”. See also Latham, Anthony: Old Calabar 1600 – 1891, p. 42. 165 Gwilym, Iwan: The Political Organization of Old Calabar, p. 125 ff. 166 See Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, ICJ Reports 2002, p. 404 ff., mn. 203 – 208, where the court continuously states how Great Britain regarded the factual circumstances. 167 This difficulty did not go unnoticed to individual members of the ICJ in the case Cameroon v. Nigeria. See the dissenting opinion of Judge Ajibole, the dissenting opinion of Judge Koroma and the separate opinion of Judge Al-Khasawneh. 164

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III. Conclusion The field of historiography comes with its very own methodology. While it is the only methodology available to parse historic events and ascertain historic rules, it is questionable whether historiography can fulfill this task. At every step of the process of producing historical knowledge, particularly the process of producing precise knowledge about past rules and norms, the scholar or judge has to be aware of his or her own preconceptions. As demonstrated, there is no such thing as a “raw historic source” – a source untouched by the human mind or human intentions. Historians draw attention to these preconceptions and intentions and make an attempt to analyse in how far their own preconceptions and intentions influenced the outcome of their work. The problem of ascertaining a specific historic rule through establishing the relevant historic context intensifies, when the subject of investigation is not only foreign in time, but foreign in region and culture. Historiography then needs to be supplemented with cultural anthropology. In dealing with different cultures and their legal outlook, not only the barrier of language needs to be overcome, but the fundamental difference of how the given society produces history, passes on historical knowledge and conceives time need to be taken into account and pose particular difficulties in the assessment. Historians as well as cultural anthropologists are well aware of the obstacles and limitations of their respective methodologies. Yet, the ICJ, which needed to arrive at a conclusion concerning a particular past which involved a sub-Saharan people, did not as demonstrated, concern itself with the problems and difficulties of identifying historic beliefs, ideas and concepts of that foreign people. However, it rather made bold statements about the historical surrounding of the “Treaty of Protection” of 1884 between Great Britain and the Kings and Chiefs of Old Calabar established solely through the statements of British officials. The historical narrative constructed by the court has normative substance and implications. The certainty and stability needed to draw normatively valid historical conclusions is achieved by omitting the non-European perspective surrounding the 1884 events in the Bakassi Peninsula. This methodological omission constitutes a “differénd” in the very original meaning of the term.

F. Juridical Difficulties Ascertaining Historic Law and the Problem of Normativity “European stories, myths and metaphors continue to set the conditions for understanding international law’s past.”168

As seen above, the historiographic problems in establishing historic facts and ascertaining historic rules are numerous as they are difficult to solve. The genuinely juridical problems are no less. This is partly due to the nature of international law. Separating fact from law is particularly difficult in international law. It oscillates between the factual and the normative.169 Historic facts carry normative weight. Historic narratives are used to make a normative argument. While the relationship is close, making the effort of untangling both will prove fruitful. This section will therefore focus on the problems of ascertaining historic law from the legal perspective.

I. Problems in the Ascertainment Process Identifying or ascertaining a historic rule at first glance sounds like a rather straight-forward task: one needs to look at the period in question and then identify the relevant law through the available sources. But making a statement concerning a historic norm entails – either explicitly or implicitly – making broader claims regarding subjects, sources and the rule-generation-process. Which entity may participate in generating a rule or claim the existence of a rule? What is the due process? And which outcomes are from the outset impermissible and therefore are located outside the realm of what can be considered law? Although the question of historic subjects of international law is closely linked to the problem of historic sources of international law, for reasons of clarity and structure the problem of subjects will be discussed first. Secondly, the problem of historic sources of international law will be tackled. The section will be concluded by illustrating the difficulties of attempting to identify the apt historic rule-generationprocesses and the consequences of these difficulties in international disputes with an intertemporal dimension. 168

Koskenniemi, Martti: Histories of International law: Dealing with Eurocentrism, Rg 19 (2011), p. 155. 169 For a brilliant analysis of the “requirements of normativity and concreteness” in international law, see Koskenniemi, Martti: From Apology to Utopia, pp. 17 – 23.

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1. The Problem of Historic Subjects Before analysing specifically how the ICJ in its Cameroon v. Nigeria decision dealt with the problem of subjects of international law in 1884 – the time of the conclusion of the “Treaty of Protection” between Great Britain and the Kings and Chiefs of Old Calabar – I will highlight the problematic endeavour of identifying or conceptualising historic subjects of international law in general terms. a) General Problems of Identifying Historic Subjects of International Law Determining historic subjects of international law is closely linked to the question of how international law is being delineated. Any delineation will exclude certain entities from achieving the status of subjects. I have outlined above how the present process of delineation is guided by a certain preconception of what constitutes international law in the first place.170 But even when a conscious effort is made to move beyond the existing Eurocentric preconception, the task of delineation remains necessary for conceptualising historic subjects. It seems trite to state that not every interaction between entities in history should be considered to have produced “international law”. The interaction must be of a certain quality. The interaction somehow has to be perceived as binding by the entities participating in the interaction – it has to be normative.171 Also, the binding interaction needs to form part of a broader framework in order to make it “international”. The term “international”, presupposes the existence of nations, or nation states. However, if the doctrine of intertemporality should be applied seriously, limiting its application, the interactions between nation states seems too narrow, since the nation state is a rather new phenomenon in international legal history. The relevant entities of the time in question need to be identified. The term “international law” itself gives no indication as to whether it suffices to be an individual to become a (historic) subject of international law,172 or if international law only permits some sort of collective as a subject.173 The second option, the collective, raises the question of the quality the collective has to possess in order 170 And as we will see below, the ICJ in Cameroon v. Nigeria in determining historic subjects seemed to have been guided by and influenced by that preconception as well. 171 Touching upon the binding quality of an interaction between two entities goes to the core of the question: what is law? This isn’t a question this section, or thesis, seeks to answer. However, raising the question demonstrates how delicate the process of delineation is. 172 The question of the status of the individual in international law is also debated in modern international law and analyzed by Peters, Anne: Beyond Human Rights. 173 While more than two options are conceivable – some scholars have argued in favor of international legal personality of nature, see Niehaus, Manuela: Nature as a bearer of rights – a legal construction in pursuit for better environmental protection?, Völkerrechtsblog, 27 December 2017 – I will trod along more orthodox lines and focus on two possibilities: individual and (some form of) community.

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to be considered a subject of international law. The most common answer is that the collective needs to possess qualities that make it a state. Yet, upon further reflection, by recourse to the concept of statehood the question of how the collective needs to be structured in order to be considered a subject is merely shifted. What are the relevant criteria for statehood and where are they derived from? It is evident that these criteria cannot be established by the supposed subjects of international law – states – through practice, since one needs to know which entities can be considered “states” and are therefore entitled to establish law through their practice. We reach the very edges and unspoken boundaries of the international law discourse I have mentioned before. To be clear: criteria for statehood are being stipulated (territory, population, government), as I have stated above, yet it is impossible to normatively establish these criteria within a positivist framework.174 In practice, particularly in the history of international law, the criteria are simply being assumed – often with recourse to the “Myth of Westphalia” – and not normatively established. They are axiomatically set. James Crawford, for example, initiates his contribution to the Max Planck Encyclopedia of Public International Law on states and statehood as follows: “International law originated amongst the States of Europe following the Peace of Westphalia of 1648.”175

The moment international law comes into existence its subjects are already present.176 The criteria for statehood need not to be normatively established; a look at Europe suffices to extract the criteria from “historic facts”.177 Some scholars however are aware of the difficulty of framing and conceptualising historic international law and thus identifying its subjects. For this very reason Stephan Verstora advocates looking for entities in history which have effectively acted on an international level,178 thereby broadening the scope of possible subjects. Also, Heinhard Steiger recommends making a conscious effort to conceptualise 174 The difficulty of positively establish criteria for statehood (or sovereignty) was not lost on the wave of 19th Century positivists such as William Hall and Lassa Oppenheim, who tried to solve the problem by translating supposedly existing cultural hierarchies between European and non-European peoples (i. e. civilized and uncivilized) into legal differences. Anghie, Antony: Imperialism, Sovereignty and the Making of International Law, p. 56 f. gives a good account of the effort of 19th Century positivists to exclude non-European peoples from the realm of statehood and thereby from the realm of international law. 175 Crawford, James: State, Max Planck Encyclopedia of Public International Law, mn. 1. 176 It remains ambiguous whether Crawford sees the state preceding international law. His work The Creation of States sees legal criteria necessary for a territorial entity to become a state, thereby suggesting a necessary existence of international law for the existence of states; see particularly Crawford, James: The Creation of States, p. 5. 177 Other scholars, especially of the history of international law, also regard the criteria for international law and its actors as a matter of course, see, Preiser, Wolfgang: Die Völkerrechtsgeschichte, p. 31; Steiger, Heinhard: Quellenkunde und Quellenedition für die Völkerrechtsgeschichte, DSt 37, 4 (1989), p. 576. 178 See Verstora, Stephan: Der Vertrag zwischen Portugal und dem Marathen-Staat von 1779, p. 95 f.

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historic international law and its subjects without reference to modern international law, which, according to Steiger, is inextricably linked to the concept of sovereign statehood.179 Yet, Steiger claims that normative international law, international law worthy of the term “law” and of being studied as a scientific discipline, only can consist of the framework of rules and processes developed within Europe. For Steiger, non-European phenomena are merely functional equivalents.180 Two forces seem to be pulling from different ends. One argument favours a narrow interpretation of what comprises historic international law, thereby limiting the scope of possible subjects. This line of argument essentially suggests that historic international law, if indeed a legal framework is meant, can only consist of the framework historically developed within Europe.181 The consequence being that only territorial entities within Europe or such resembling the European blueprint may be deemed states and therefore subjects of international law. The force pulling towards a broader conceptualisation of historic international law and its subjects seeks to encompass non-European phenomena and entities which have effectively acted beyond their region.182 While this approach is closer to actual historic practice (it is undisputed that for at least the past six centuries non-European [territorial] entities engaged and interacted with European entities),183 it yet fails to identify reliable normative criteria applicable to both, European and non-European entities. The first line of argument, through invoking a supposed “Standard of Civilisation” which supposedly governed international law in its entirety,184 effectively excludes vast portions of the world from participating in – being subjects of – international law. This is unconvincing since the regions of the world not being considered to possess the required degree of civilisation to become part of the international community for

179 See Steiger, Heinhard: Probleme der Völkerrechtsgeschichte, DSt 26, 1 (1987), p. 106 f. However, Steiger himself seems reluctant in going beyond a European perception of international law, since in the same article he describes international law as a scientific discipline has originated with Hugo Grotius, ibid., p. 107. 180 See Steiger, Heinhard: Probleme der Völkerrechtsgeschichte, DSt 26, 1 (1987), p. 106; idem: Quellenkunde und Quellenedition für die Völkerrechtsgeschichte, DSt 37, 4 (1989), p. 576. 181 Steiger, Heinhard: Quellenkunde und Quellenedition für die Völkerrechtsgeschichte, DSt 37, 4 (1989), p. 576; Partiff, Rose: The Spectre of Sources, EJIL 25, 1 (2014), p. 299. 182 See Verstora, Stephan: Der Vertrag zwischen Portugal und dem Marathen-Staat von 1779, p. 95, where he describes entities such as clans, whether nomadic or not need to be seen as sovereign, since their internal legal order isn’t derived from any other order and they interacted with other entities. 183 For an account and legal categorization of interactions between Christian and nonChristian entities in the 16th-18th Century see Alexandrowicz, Charles Henry: An Introduction to the Law of Nations in the East Indies, pp. 83 – 94. 184 For the consequences of this legal categorization see Anghie, Antony: Imperialism, Sovereignty and the Making of International Law, p. 56 ff.

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centuries have engaged in legal relations beyond their own region.185 The second line of argument, while including entities which have effectively acted externally, fail to establish criteria which can be universally applied to establish international legal personality. The difficulty for both lines of argument to establish universally applicable criteria is connected to the fact – which will be discussed below – that the historic international legal order was polycentristic. b) International Legal Personality in the Cameroon v. Nigeria Case In the case Cameroon v. Nigeria the ICJ had to determine whether title over the Bakassi Peninsula was transferred from the Kings and Chiefs of Old Calabar to Great Britain through the “Treaty of Protection” signed in 1884 between said parties. In answering this question, the court made statements regarding the international legal personality of the Kings and Chiefs of Old Calabar. The court states that generally in sub-Saharan Africa “treaties termed ‘treaties of protection’ were entered into not with States, but rather with important indigenous rulers exercising local rule over identifiable areas of territory”186 and contends that the particular treaty in question was concluded in a region “where local Rulers were not regarded as States.”187 These assertions beg a number of questions. Firstly, it appears as if the court implicitly made the size of the territory (“indigenous rulers exercising local rule”) over which rule is exercised a criterion for statehood at the time of the conclusion of the treaty. If size of a territory indeed was a criterion for statehood in 1884,188 it still is not understandable why the court would find the Kings and Chiefs of Old Calabar not to meet the criterion. Even when compared to particular European states of the time – which also were indigenous rulers exercising local rule over identifiable areas of territory – the territory over which the Kings and Chiefs of Old Calabar have exercised their rule does not seem particularly small. The court found that although the exact size of the territory could not be determined during the time of conclusion of the treaty, it was agreed to cover the entire peninsula and stretch eastwards, close to Mount Cameroon.189 The size of

185

Alexandrowicz, Charles Henry: The European-African Confrontation; idem: An Introduction to the Law of Nations in the East Indies. 186 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, ICJ Reports 2002, p. 404 ff., mn. 205 187 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, ICJ Reports 2002, p. 404 ff., mn. 207. 188 There is no evidence in present international law that size is a relevant criterion for statehood. 189 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, ICJ Reports 2002, p. 404 ff., mn. 203.

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the Bakassi Peninsula alone amounts to approximately 700 square kilometers190 and does not have to shy comparison to Monaco (2 square kilometers),191 San Marino (61 square kilometers)192 or Liechtenstein (160 square kilometers)193, all of which existed as independent states during the time of the conclusion of the treaty between Great Britain and the Kings and Chiefs of Old Calabar. In fact, judge Al-Khasawneh in his Separate Opinion generally pointed out: “[S]uch an approach is clearly rooted in a Eurocentric conception of international law based on notions of otherness, as evidenced by the fact that there were at the time in Europe protected principalities without anyone seriously entertaining the idea that they had lost their sovereignty to the protecting Power and could be disposed of at its will”.194

Secondly, by who did the Kings and Chiefs of Old Calabar needed to be regarded as states? The wording “were not regarded as States” suggests some form of recognition as essential for the Kingdoms and Chiefdoms to become states. Which were the relevant entities to perform such recognition and what was the actual process required? The wording of the court reads as if a hierarchy existed in international law of 1884. The court seems to suggest that non-European territorial entities can only ascend into the realm of statehood by the grace – recognition – of European states. The court seems to lay particular importance on the view of European states, because no reference was made in the judgement to the view of the Kings and Chiefs of Old Calabar themselves, or their regional counterparts regarding their statehood. It would indeed be rather odd if neither the Kings and Chiefs of Old Calabar nor their regional counterparts would see and describe themselves as “states” or the regional equivalent notion. The court thereby perpetuates the notion that the original subjects and actors of international law – states – are European and whether a non-European entity can be regarded as a state depends on recognition by European states. Non-European legal traditions and their perspectives of their own subjectivity within an international legal framework seem to be of no relevance whatsoever. If, for the sake of argument, it is being accepted that the Kings and Chiefs of Old Calabar needed to be regarded as states by European states to become such, by reference to how Great Britain – the representative of Queen Victoria, to be exact – acted, and more importantly which legal significance the ICJ has attributed to these 190

This size was presented by Nigeria, see Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, ICJ Reports 2002; Counter Memorial of the Federal Republic of Nigeria, para. 3.2. 191 CIA World Factbook – Monaco: https://www.cia.gov/library/publications/the-worldfactbook/geos/mn.html [last accessed: 31. 01. 2019]. 192 CIA World Factbook – San Marino: https://www.cia.gov/library/publications/the-worldfactbook/geos/sm.html [last accessed: 31. 01. 2019]. 193 CIA World Factbook – Liechtenstein: https://www.cia.gov/library/publications/theworld-factbook/geos/ls.html [last accessed: 31. 01. 2019]. 194 Separate Opinion of Judge Al-Khasawneh, mn. 5.

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actions, makes it more than difficult to conceptualise the Kings and Chiefs of Old Calabar as being anything else than a state in the European sense of the term.195 The court concluded that through the Treaty of Protection of 1884, title was transferred from the Kings and Chiefs of Old Calabar to Great Britain, implying that the Kings and Chiefs of Old Calabar were the entity exercising exclusive rule over the territory in dispute – possessing sovereignty. Also, the Kings and Chiefs of Old Calabar could act on an international plane and enter into treaties with other states. The Kings and Chiefs of Old Calabar therefore can be described as entities exercising exclusive rule over a particular territory and possessing the ability of concluding binding international treaties in which they could transfer rights – sovereignty in particular – to other subjects. Yet, the court concluded that Great Britain – the entity which approached the Kings and Chiefs of Old Calabar through the explicit and direct representative of Queen Victoria,196 entered into a binding international treaty with the Kings and Chiefs and accepted a transfer of rights the Kings and Chiefs previously possessed in regard with the territory – did not regard the Kings and Chiefs of Old Calabar as a state. This conclusion strikes the careful reader as rather odd. I repeat, the court in its decision seems ascribe to European territorial rulers a different quality than non-European territorial rulers. Another example is the court indirectly referring to the Kings and Chiefs of Old Calabar as “indigenous rulers”197. The Oxford English Dictionary defines indigenous as “originating or occurring naturally in a particular place”. I am uncertain which purpose the description of the Kings and Chiefs of Old Calabar as “indigenous” serves. According to the definition above, the contemporary ruler of Great Britain is as indigenous as the historic ruler of Germany or the Austro-Hungarian Empire. A possible purpose of describing the Kings and Chiefs of Old Calabar as “indigenous rulers” however could lie in distinguishing genuinely African rulers from European rulers in Africa. If indeed the purpose of using the term “indigenous” is making a distinction between genuinely African and European rulers, one has to ask why such distinction would be of relevance? From whichever angle the formulation “indigenous rulers” is approached, it leads to drawing a line between European rulers of the time and African rulers which justified withholding the status of statehood from African entities. African rulers, in the words of the court, “were not regarded as States” not because they were lacking the relevant criteria for statehood – whether one seeks to apply the criteria established by the Kings and Chiefs of Old Calabar and other regional entities themselves, which the court did not even investigated, or if one 195 The legal problem treaties of European states with supposedly non-existent entities posed, was brilliantly discussed in Anghie, Antony: Imperialism, Sovereignty and the Making of International Law, p. 74 ff. See also Gong, Gerrit Walter: The Standard of “Civilization” in International Society, p. 60. 196 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, ICJ Reports 2002, p. 404 ff., mn. 203. 197 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, ICJ Reports 2002, p. 404 ff., mn. 205.

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seeks to derive criteria from existing European states of the time – but because they weren’t European. The normative relationship between the Kings and Chiefs of Old Calabar and Great Britain was solely reflected upon by recourse to the European perspective. The lack of statehood on part of the Kings and Chiefs of Old Calabar was contended by the court without any basis in the normative relationship between Great Britain and the Kings and Chiefs of Old Calabar.198 The finding that the Kings and Chiefs of Old Calabar, while not being a state possessed some form of international legal personality may be in line with literature on historic subjects of international law indicating that non-European entities possessed international legal personality short of statehood,199 however, both the court and the literature presenting such arguments have not convincingly stipulated a threshold for statehood other than being an entity located in Europe. The court has further complicated the question of subjectivity, statehood and the transfer of rights, by the following statement: “[A]part from the parallel declarations of various lesser Chiefs agreeing to be bound by the 1884 Treaty, there is not even convincing evidence of a central federal power. There appears in Old Calabar rather to have been individual townships, headed by Chiefs, who regarded themselves as owing a general allegiance to more important Kings and Chiefs”.200

The court, in a merely superficial manner, stated that the Kings and Chiefs of Old Calabar “regarded themselves as owning allegiance to more important Kings and Chiefs”, without properly investigating the legal significance of the “allegiance”.201 If indeed the “lesser Chiefs” signed the treaty, while owing allegiance to more important Kings and Chiefs, resulting in the negation of their own statehood, how then could title be transferred to Great Britain without evidence of consent of the “more important Kings and Chiefs”? The complex underlying legal and factual situation of the Kings and Chiefs of Old Calabar and the according difficulties arising in their legal appraisal were ignored by the court. This led Judge Al-Khasawneh to state: “if the Judgement is to constitute a legally […] defensible scheme, it cannot merely content itself with a formalistic appraisal of the issues involved”.202 The court has avoided confronting the factual and legal complexities surrounding the contemporary international legal subjectivity and statehood of the Kings and Chiefs of Old Calabar by reaffirming a European narrative. This narrative may convey a 198

In fact the normative relationship between the Kings and Chiefs of Old Calabar and Great Britain was not investigated by the court. The assessment of the relationship was entirely based on the European perspective. 199 See on the topic of terminology applied Fisch, Jörg: Peoples and Nations; or for the argument that the criteris for and examples of statehood can be found solely in Europe and evolved therein see Cassese, Antonio: States: Rise and Decline. 200 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, ICJ Reports 2002, p. 404 ff., mn. 207. 201 Such allegiances might be structured in a way resembling federal rule. 202 See, Separate Opinion of Judge Al-Khasawneh, mn. 3.

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supposed legitimacy of the legal reasoning and outcome, but fails to withstand basic methodologic scrutiny. c) Conclusion Who are the historic subjects of and in international law? This question cannot be answered without delineating the notion of international law. Opting for a narrow delineation of international law is in favour of deriving criteria for normativity of actions and for statehood from a regional –European – legal tradition. According to this view, the criteria entities need to possess in order to be subjects of international law are found in European states of the time. A broader conceptualisation of international law and its subjects in contrast pulls entities which have effectively acted on the international plane in the realm of international legal subjectivity. This view however remains silent on the quality entities need to possess besides having effectively acted on the international plane. Since European entities entered into treaties with non-European entities – which the European as well as the non-European parties saw as binding –,203 it is impossible to argue against non-European entities being subjects of international law, without a priori assumptions regarding boundaries of international law and its origins. In other words: if an entity acting on the international plane can enter into a treaty in which sovereign rights the entity possessed and which are acknowledged by the other party to the treaty are being transferred cannot be regarded as a primary subject of international law, a state, the other characteristics, such as global location, seem to make the difference. The ICJ in its decision was guided by such assumptions, since it concluded that the Kings and Chiefs of old Calabar “were not regarded as states”, neglecting not only the actions of the Kings and Chiefs with regard to Great Britain, but also their entire narrative and perspective, concerning their own subjectivity. The court thereby illustrated a prime example of a “différend”. The foundation and basis on which the decision on the subjectivity of the Kings and Chiefs of Old Calabar was taken, from the outset excluded any possibility for the non-European perspective to prevail. The European position is vindicated, without any possibility for the non-European perspective to be appreciated. 2. The Problem of Historic Legal Sources I will now proceed discussing the difficulties and problems of identifying sources of historic international law. Here again I will first generally parse the problems of identifying the sources of historic international law and will secondly, using the 203 Alexandowicz, Charles Henry: An Introduction to the Law of Nations in the East Indies; idem: The European-African Confrontation.

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example of the Cameroon v. Nigeria Case, demonstrate how such difficulties detrimentally manifest in judicial decisions to the disadvantage of the non-European legal perspective, effectively leading to a situation of “différend”. a) General Problems in Identifying of Historic Legal Sources “We use reference points in our heads […] and start building beliefs around them because less mental effort is needed to compare an idea to a reference point than to evaluate it in the absolute. We cannot work without a point of reference.”204

The present sources doctrine is codified in Art. 38(1) of the ICJ-Statute.205 Sources of international law consist of state practice with corresponding opinion juris, treaties, and general principles of law “recognized by civilized nations”206. All difficulties in ascertainment of the law207 and method aside, the enumeration of sources in Art. 38(1) ICJ-Statute – which is universally regarded as enumerating the sources of international law –208 serves as a rather precise point of departure in the journey of law ascertainment. In historic international law such an anchor is lacking. Of course, viewing Art. 38 (1) ICJ-Statute as an expression of eternal and timeless sources of international law is tempting. Yet, the doctrine of intertemporality obliges the deciding body to ascertain the historic law based on the historic sources and according to a historic sources doctrine. Retroactively applying Art. 38 (1) ICJStatute therefore is not an available option. The hypothesis of the sources enumerated in Art. 38 (1) ICJ-Statute being constrained by time, would need to be backed by historical evidence – which in light of strong literature on historic natural international law is more than difficult. How then can the problem of a lack of a clear enumeration of historic legal sources be solved? Historians of international law generally tend to categorise epochs of international legal history as either being governed by natural or positive law – more precisely, they describe international law as having developed from a natural law system into a positive law system.209 Yet, how is the determination that at a given 204

Taleb, Nassim Nicholas: The Black Swan, p. 159. See, Crawford, James: Brownlie, p. 22; Verdross, Alfred/Simma Bruno, Universelles Völkerrecht, p. 322; Shaw, Malcolm Nathan: International Law, p. 50; Daillier, Patrick/Pellet, Alain: Droit International Public, p. 114. 206 It is interesting that Alain Pellet in his commentary to Art. 38 ICJ-Statute referred to the requirement of being “civilized” as merely “archaistic”, neglecting the entire colonial and imperial undercurrent and worldview of this formulation; Pellet, Alain: Article 38, mn. 261. 207 For an argument in favour of a formalist approach in law ascertainment see: D’Aspremont, Jean: Formalism. 208 See, Crawford, James: Brownlie, p. 22; Verdross, Alfred/Simma Bruno, Universelles Völkerrecht, p. 322; Shaw, Malcolm Nathan: International Law, p. 50; Daillier, Patrick/Pellet, Alain: Droit International Public, p. 114. 209 For the “evolution” of international law from naturalism to positivism, see inter alia Anghie, Antony: Imperialism, Sovereignty and the Making of International Law, p. 40 ff. 205

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epoch of international legal history natural law or positive law prevailed made? A glance at the research on international legal history indicates that the presumption underlying the research is as follows: look at Europe! The question if a certain period in international legal history was governed by natural law, can be answered by exclusively focusing on Europe. The presumption Europe guards the answers exclusively limits the regional scope for the research and therefore functions as an anchor for the research and thus allows for an easier assessment of whether natural or positive law prevailed in the international sphere. However, the decision to focus on Europe is by no means compelling. Especially in situations of interaction between European and non-European entities, it is more than doubtful whether the question of law governing the interaction can, or should be answered by solely looking at what constituted a source of law for the European side. The question whether a particular period was governed by natural or positive law therefore cannot be conclusively answered. Even if a determination in favor of natural or positive law governing a period could be made, problems of delineating the source and establishing content remain. Natural law, according to the Max Planck Encyclopedia of Public International Law consists of eternal and immutable rules of (sometimes) divine origin with universal applicability.210 The aspect of universality, inherent in the idea of natural law, should oblige scholars of international legal history to consider legal traditions and conceptions outside of Europe in determining if natural law as a source prevailed in a certain period and what it actually constituted. The content of natural law, or the ability, through reason, to formulate this “eternal law” with universal applicability is vested, according to scholars of international legal history, in the region of the world in exclusive possession of reason (or the “true” faith, since rules of natural law have often been deducted from religious principles)211: Europe.212 The close connection between a certain conception of natural law and Christianity made it easy to exclude all peoples not following the Christian faith and therefore being infidels from the realm of (international) law. If, however, the presupposition that international law worth the term can exclusively be found in Europe is not shared, then researching a particular region – Europe – at a given period in history is less than exhaustive. Paradoxically, focusing on Europe to assert normativity213 in fact moves the research away from the realm of normativity, towards merely analysing a regional historic phenomenon. 210

2019]. 211

See, Orakhelashvili, Alexander: Natural Law and Justice, mn. 1 ff. [last accessed: 01. 02.

Grewe, Wilhelm Georg: Epochen der Völkerrechtsgeschichte, p. 108 f. In a broader context, Martti Koskenniemi commented on this hubris as follows: “Europe [is] always imagining its values as universal and its knowledge and science as not only valid for itself but for all.”, see, Histories of International law: Dealing with Eurocentrism, Rg 19 (2011), p. 160. 213 As expressed earlier, scholars of international legal history tend to exclusively focus on Europe, implying the lack of normative structures in the periphery. Rose Partiff explicitly states 212

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Legal positivism also fails to clear the fog. If the definition of legal positivism laid out in the Max Planck Encyclopedia of Public International law is followed, international law within a positivist framework necessarily has to emanate from state will through a “pre-set legal procedure” (also referred to as “unity of sources”).214 However, which entities are considered states and what constitutes a source needs to be axiomatically set, as numerous scholars pointed out.215 Legal positivism itself cannot positivistically set its framework. One vivid example is the impossibility of positively setting the meta-criteria for statehood. This problem does not disappear in historic perspective. And again, in the practice of international courts the immense uncertainties regarding the sources of international legal history, also existent within a positivist framework, are simply overridden. This is done by elevating European historic phenomena to be the blueprint for what constitutes a “state” and how the will of a state can be determined in order to lift (legally) willed actions of states into the realm of a source. Authors such as Jörn Axel Kämmerer argue that the historic international legal order was polycentristic, meaning that several different legal systems existed, of which none claimed global rule.216 In addition to the difficulties in historiography (and cultural anthropology) – researching culturally foreign legal orders, as I have discussed above, the question of sources reappears from a different angle. What were the sources of law governing the interactions between the different legal systems? Jörn Axel Kämmerer contends that “rules applying to the conflict of ‘public international laws’ cannot be imagined.”217 He even draws the stark conclusion that agreements between entities of different legal orders, due to a lack of a common legal ground, cannot even be called treaties.218 The question of which legal framework – a natural law or a positive law framework – governed a particular point in international legal history cannot be that moving the focus away from Europe bears the risk of dissolving the normative character of the undertaking: “Discard the methodology dictated by the classic approach to sources, on the other hand, and the possibility of ‘challenging Eurocentrism’ emerges – but at the risk of dissolving the specifically international legal character of the historical undertaking.” Partiff, Rose: The Spectre of Sources, EJIL 25, 1 (2014), p. 299. I strongly disagree with this view. In fact, this view presupposes a conception of normativity which is being derived from historic phenomena. Therefore normativity, and consequently historic international law, are treated rather as historic phenomena and not, as argued, as legal ones. 214 Lachenmann, Frauke: Legal Positivism, mn. 1 ff. [last accessed: 01. 02. 2019]. 215 Anghie, Antony: Imperialism, Sovereignty and the Making of International Law, p. 56 ff.; Partiff, Rose: The Spectre of Sources, EJIL 25, 1 (2014), p. 298; Koskenniemi, Martti: From Apology to Utopia. 216 See, Kämmerer, Jörn Axel: Introduction. Imprints of Colonialism in Public International Law: On the Paradoxes of Transition, JHistIntlL 18 (2016), p. 241 f. My research leads me to the conclusion that viewing the historic “international” legal order as polycentristic, is in fact the most accurate. 217 Kämmerer, Jörn Axel: Introduction. Imprints of Colonialism in Public International Law: On the Paradoxes of Transition, JHistIntlL 18 (2016), p. 242. 218 Ibid.

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conclusively answered with regards to the entire globe. Yet, if two different legal systems like a European and a non-European legal system interacted at a given point in international legal history, the question of the legal framework governing the interaction becomes more specific and therefore easier to answer. Since there is no conceivable way in a polycentristic global legal order to set one legal order above the other, the answer has to be that in fact no framework which could be called legal governed the interactions of two different legal systems. b) The Peculiar Relationship between Historic Sources, the Doctrine of Intertemporality and Art. 38 (1) ICJ-Statute Aside from the problems of identifying historic legal sources, the relationship of Art. 38 (1) ICJ-Statute and the doctrine of intertemporality itself has ample problematic aspects. In contentious proceedings with an intertemporal dimension, the ICJ is in the peculiar situation of being bound to the sources enumerated in Art. 38 (1) ICJ-Statute,219 but also having to abide by the doctrine of intertemporality. Why is this a problem? The court has a specific understanding of “international conventions” and “international custom” and by the virtue of Art. 38 (1) ICJ-Statute is bound to apply these sources in the ascertainment of law applicable between the parties, however, the sources of law in Art. 38 (1) ICJ-Statute and historic sources might differ to a great extent. Do the historic legal sources which need to be taken into account when applying the doctrine of intertemporality need to mirror the sources of Art. 38 (1) ICJ-Statute in order for the court not to be in breach of same article? Let us first take a closer look at the ICJ’s understanding of “international conventions” and “international custom”. Within the statute of the ICJ there is no definition of “international conventions”. However, the court has on several occasions referred to the definition of treaties in Art. 2 (1) lit. a) VCLT,220 which reads: “For the purposes of the present Convention: (a) ‘treaty’ means an international agreement concluded between States in written form and governed by international law […]”.

219 Pellet, Alain: Article 38, mn. 79 has demonstrated how the ICJ itself has referred to Article 38 (1) ICJ-Statute to demonstrate that they were bound to the list of sources enumerated in Art. 38 (1) ICJ-Statute. 220 The court did so even in the Cameroon v. Nigeria case, see Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, ICJ Reports 2002, p. 404 ff., para. 205; see also Aegean Sea Continental Shelf, Judgment, ICJ Reports 1978, p. 3 ff., para. 96; Maritime Delimitation und Territorial Questions between Qatar and Bahrain, Judgement, ICJ Report.7 1994. p. 112 ff., para. 23.

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This indicates that the court defines “international conventions” as is stipulated in Art. 2 (1) lit. a) VCLT.221 A treaty therefore is a written agreement concluded between states, governed by international law. If the ICJ, however reaches the conclusion that one party to a historic treaty was not regarded as a state, as the court did in its Cameroon v. Nigeria decision, it is questionable if one can even speak of a treaty in the court’s own definition.222 It is conceivable that agreements falling short of the threshold for being an “international convention” could be categorised as “international custom”, since agreements often reflect existing customary rules.223 However, the ICJ defines “international custom” as “the practice and opinion juris of States”224. Only states can create law through their practice and corresponding opinion juris. Yet, as shown above, the court in its Cameroon v. Nigeria decision found that the Kings and Chiefs of Old Calabar “were not regarded as states”. The Statute of the ICJ is based on a certain conception of international law and its sources.225 Having to rely on the sources enumerated in Art. 38 (1) ICJ-Statute constrains the ICJ to the outlook, spirit and presupposition with which the Statute was devised. The doctrine of intertemporality, if one looks at what it aims to achieve, actually forces the court to break with the contemporary, modern concept and perception of international law and look at the legal situation surrounding the historic facts. The ICJ therefore finds itself in a situation in which it on one hand is bound by Art. 38 (1) of its Statute but on the other hand is obliged to break with its conceptualisation of international law and its sources. Yet, as we have seen from the Cameroon v. Nigeria decision, the court does explicitly apply the doctrine of intertemporality without methodological concerns. The court however cannot, due to the doctrine of intertemporality, as stated above, apply Art. 38 (1) ICJ-Statute retroactively. The ICJ therefore has to somehow circumvent the binding force of Art. 38 (1) ICJ-Statute in order to apply historic sources. No methodological solution is offered by the ICJ.

221 Even more, Alain Pellet is of the opinion that “international Conventions” refers to treaties in force; see Pellet, Alain: Article 38, mn. 184. This conclusion would make it difficult at least to consider historic treaties a source of law. 222 It also needs to be governed by international law. I will touch on the topic of a lack an underlying common legal framework between two differing “international laws” in the subsection below. 223 See, Pellet, Alain: Article 38, mn. 292. 224 Instead of many see Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgment, ICJ. Reports 1986, p. 14 ff., para. 183. 225 The ICJ was established in 1945 and began its work in 1946, with the intention of creating continuity between the ICJ and the PCIJ. This is the reason for basing the ICJ-Statute on the final version of the Statute of the PCIJ, Jennings, Robert/Higgins, Rosalyn: General Introduction, mn. 2.

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c) Legal Sources in the Cameroon v. Nigeria Case This leads to the broader question of how the ICJ approached the problem of sources of historic law in its Cameroon v. Nigeria decision, in which the court interpreted a treaty – if it indeed can be aptly termed a treaty since, as demonstrated, in the eyes of the court it lacks the criterion of having been concluded between states – concluded between Great Britain and the Kings and Chiefs of Old Calabar. The court did not explicitly ask the question of what were the sources of law in 1884. It recognised the treaty between Great Britain and the Kings and Chiefs as the source of rules applicable between said parties with regard to the question of transfer of sovereignty over the Bakassi Peninsula form the Kings and Chiefs to Great Britain. It therefore, as a matter of course, moved to interpret the treaty. However, the court did not lay out the rules for treaty interpretation applicable in 1884. The doctrine of intertemporality prohibits the retroactive application of the rules of interpretation stipulated in the Vienne Convention on the Law of Treaties, which required the court to assert mechanisms of interpretation applicable at the time the treaty was concluded. Neglecting such considerations the court simply stipulated that “the international legal status of a ‘Treaty of Protection’ entered into under the law obtaining at the time cannot be deduced from its title alone”.226 The court then contends that “[i]n sub-Saharan Africa, however, treaties termed ‘treaties of protection’ were entered into not with States, but rather with important indigenous rulers exercising local rule over identifiable areas of territory”.227

Two points are methodologically striking regarding these statements. Firstly, in the courts view, how the non-European party was perceived at the time (which, again, begs the question “by whom?”) frames the interpretative process and determines the meaning of the words chosen in the treaty. The perception of Europe in general and Great Britain in particular regarding the statehood – or in the courts view lack thereof – of the Kings and Chiefs of Old Calabar therefore has significant consequences for the interpretation of the treaty the Kings and Chiefs are party to. In other words, the content of the treaty is determined by the view party A to the treaty has regarding party B, while party B not only doesn’t have any means of changing the view of party A. Their understanding and meaning of the terms of the treaty is irrelevant. This process of historic treaty interpretation by the court begs the question if in cases of treaty interpretation with a European and non-European party to the dispute the wording even matters? If it is the “status” of the Kings and Chiefs of Old Calabar and how they are viewed by Great Britain which frames the interpretation, would the outcome of the interpretative process be different if the title were “Treaty of OpenEnded Lease”? As Judge Al-Khaswaneh in his Separate Opinion rightly observed: 226 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, ICJ Reports 2002, p. 404 ff., para. 205. 227 Ibid.

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“[S]uch an approach is clearly rooted in a Eurocentric conception of international law based on notions of otherness, as evidenced by the fact that there were at the time in Europe protected principalities without anyone seriously entertaining the idea that they had lost their sovereignty to the protecting Power and could be disposed of at its will”.228

If as a matter of method, the meanings of the terms used in the treaty are not being established through an investigation of what both parties of the treaty meant and willed, but solely by recourse to the worldview of the European party to the treaty, this is evidence of a prime example of a “différend”. There is no conceivable way in which the perspective of the non-European party, the Kings and Chiefs of Old Calabar, can be appreciated by the court, since the court states that their perspective is irrelevant in determining their very own legal ties.229 Secondly, the court, by asserting that the law of the time needs to be taken into account and not the title of the treaty alone, opens the door for a contextual interpretation of the treaty. However, in the very same and following paragraphs the court contends that the only context that matters with regards to interpretation of treaties at the time concluded between a European and a non-European party is the context with regard to the European perspective (“were not regarded as states”230). This is not only an implicit admission of the presumption that at the time of the treaty, only Europe could produce “law”, but is also an imposition of European legal categories upon peoples, which not only haven’t participated in their making, but who might have categories and concepts which stand in conflict with those of Europe. Interpreting the treaty between Great Britain and the Kings and Chiefs of Old Calabar would entail identifying what both parties meant by the words chosen in the treaty. This in turn would mean that concepts such as sovereignty needed to be traced in the legal system of the Kings and Chiefs entailing the same content.231 Also, a process by which sovereignty can be transferred from the viewpoint of the Kings and Chiefs of Old Calabar would need to be identified. 228

See, Separate Opinion by Judge Al-Khasawneh. Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, ICJ Reports 2002, p. 303 ff., para. 205 ff., the court contends that the Kings and Chiefs were not regarded as a state, while making statehood the threshold for their legal perspectives to be appreciated. The paradox of supposed lack of international legal personality by the Kings and Chiefs of Old Calabar on the one hand and the treaty-making-power and exercise of rule on the other was pointed out by Judge Rezek in his Declaration to the judgement. 230 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, ICJ Reports 2002, p. 404 ff., mn. 207. 231 Bardo Fassbender has parsed the problem of cultural relativity in an article in which he discussed the problems with international law being an order of the West. “But what does ‘interstate traffic’ mean, for example, for Africa at the beginning of the 15th century, before the first Portuguese expeditions that led to the first colonization of Africa? Isn’t this a mere backward projection of present European international law to pre-colonial situations of other continents?”, Fassbender, Bardo: Das Völkerrecht als Ordnung des Westens, p. 37 [translated by the author]. 229

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Discrepancies in the meaning and understanding of a treaty in situations in which a European and a non-European party is involved become apparent when the treaty is available in the local as well as the European language. One prominent example is the 1887 Treaty of Uccialli between Italy and Ethiopia. The Italian text referred to a “Treaty of Protection”, while the Ethiopian Amharic text termed the treaty as one of “friendship”.232 The treaty was later denounced by Emperor Menelik of Ethiopia because in the Italian text the Emperor ”consents to avail himself of the Italian Government for any negotiations which he may enter into with other powers or governments”, while in the Amharic version the Emperor “may use” the Italians as intermediaries.233 If we indeed take the idea presented by Jörn Axel Kämmerer, that historically there was no “universal” international law, but rather a polycentristic international legal order with differing or even conflicting legal systems seriously, then there were no legal sources conceivable from which law governing the relationship between Great Britain and the Kings and Chiefs of Old Calabar could be derived. How did the court bridge the uncertainty (not to say non-existence) regarding the sources and law governing the treaty? As shown above, the court has relied on a European preconception of international law, which did not go unnoticed by authors commenting on the decision,234 and judges who formulated Separate or Dissenting Opinions to the decision.235 The court has started its assessment of the source at hand from a point of flawed, or at least inaccurate, presumptions.236 If there is no source, no “underlying legal order” available to determine the law governing the treaty between Great Britain and the Kings and Chiefs of Old Calabar, but the court still makes a decision on the content of the treaty, it has, in analogy to the quote by Jean Casimir cited at the beginning of this thesis, decided that it writes from the perspective of the boat. d) Mitigating the Non-Existence of “Meta-Sources” Historic international law necessarily needs to be ascertained through a process which has to make statements regarding sources. Whether, regarding historic international law, one takes a naturalist or a positivist stance, certain positions need to 232

Jones, Arnold Hugh Martin/Monroe, Elizabeth: A History of Ethiopia, p. 139 f. Ibid. 234 See, Van der Linden, Mieke: The Inextricable Connection between Historical Consciousness and International Law; and Milano, Enrico: Unlafwul Territorial Situations in International Law, p. 71 ff. 235 See the Dissenting Opinions of Judge Koroma and Judge ad hoc Ajibola, as well as Separate Opinion of Judge Al-Khasawneh and Declaration of Judge Rezek. 236 The reason for relying on an ahistorical European preconception of international law is not only convenience, but the need for a coherent and stable genealogy of international law, evading any signs of uncertainty, which is connected with a reluctance of acknowledging the incompleteness of international law, a point I will discuss later in this thesis. 233

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be axiomatically taken in order to even delineate sources and set the frame for the law-ascertainment process. A point of reference is needed. If historic international law is to be identified from a naturalist standpoint, decisions need to be made regarding the entity or person entitled to identify and formulate the universally applicable law. From a positivist standpoint the main question is: which are the entities able to create law through their actions and corresponding opinion juris? Since the entities themselves “create” the law, criteria for being such have to derive from nonexistent meta-sources. From both perspectives these questions cannot be answered from within the legal framework but rather need to be answered before on can even speak of a legal framework. These axiomatically set presuppositions are of utmost importance for the outcome – they lead to either in- or exclusion of entities and arguments. In its Cameroon v. Nigeria judgement the ICJ, in order to avoid uncertainty regarding sources, sought recourse to the European narrative and conception of law, which then served as the delineating factor, enabling a (rather shallow) law-ascertainment process. The treaty the court claimed to have interpreted in fact merely served as placeholder, which then was filled with the view the court believed Great Britain had of the legal relationship with the Kings and Chiefs. Judge Rezek in his declaration highlighted the inherent contradiction of denying the Kings and Chiefs of Old Calabar the status of statehood, but at the same time accepting the “Treaty of Protection” between the Kings and Chiefs and Great Britain as valid: “[I]f the Kings and Chiefs of Old Calabar did not have capacity to enter into an international agreement, if the 1884 Treaty was not a treaty and had no legal force whatsoever, it must be asked what was the basis for Great Britain to assert its authority over these territories, by what mysterious divine right did it set itself up as the protecting State of these areas of Africa.”237.

A treaty cannot be a source in and by itself, since it makes claims about rights and duties meaning that each party to a treaty needs to have an understanding and conception of said rights and duties. It would require investigating the underlying notions of title, sovereignty, statehood and protection from the perception of both parties. Inquiries into the law governing the treaty have not taken place. Since, as demonstrated above, it is methodologically difficult to ascertain legal notions of a culturally foreign people, looking at sources through a European lens in order to create legal certainty might seem understandable. However, this coerced certainty comes at the cost of the legal conception and narrative of the Kings and Chiefs of Old Calabar and factually works to their detriment. It would be unthinkable to determine the validity of the American Declaration of Independence from 1776 solely from the perspective of the British Crown.

237

See Declaration of Judge Rezek, p. 489.

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Also, if indeed the historic international legal order is to be perceived as polycentristic as research does suggest,238 then not only has the court neglected an entire legal perception, but within the methodological framework of the court – favoring a European narrative – there was no possibility for the perception of the Kings and Chiefs to even be acknowledged, making it a prime example for a case of a “différend”.

3. Conclusion In international disputes with an intertemporal dimension, specific historic rules applicable to the case need to be ascertained. Any rule-ascertainment process necessarily needs to determine subjects and sources, since the ascertainment process is interplay between both. What is considered a subject and a source is connected to the question of what international law is or what international law is perceived to be. Lifting actions of particular entities into the realm of normativity and therefore law would be a positivist stance on the question of what constitutes international law and its sources. Identifying historic entities eligible to create law however, isn’t met without difficulty. What constituted a state – the premier subject in international law – in international legal history cannot be determined within a positivist framework. The criteria need to be axiomatically set. To determine statehood the ICJ in its Cameroon v. Nigeria decision has relied on criteria inherent in European entities at the time of the conclusion of the treaty between Great Britain and the Kings and Chiefs of Old Calabar. The court thereby elevated regional European phenomena into the realm of universally applicable criteria for statehood.239 Even from a naturalist perspective – which would describe international law more in terms of its eternal nature and its universal applicability due to the fact that it derived from reason or religious belief – the difficulty of law-ascertainment is not eased. Some agent is needed to conclusively formulate the norms which “naturally” exist. These norms need to be deducted from “true” reason or the “true” faith in order to render the norms universally applicable. In legal literature, it has been individual scholars from Europe which were seen in possession of the kind of reason necessary to formulate the universal, natural law. If, however, we perceive the historic international legal order as polycentristic, meaning that multiple legal orders existed simultaneously without any single one claiming rule, no underlying system of sources or law is conceivable governing interactions of entities of differing legal orders. Before discussing the consequence and possible solutions for the non-existent law governing the interactions of different legal orders, it is important to point put the difficulties arising from the burden of 238

See instead of many Kämmerer, Jörn Axel: Introduction. Imprints of Colonialism in Public International Law: On the Paradoxes of Transition, JHistIntlL 18 (2016), p. 241 f. 239 At the same time the court denied the Kings and Chiefs of Old Calabar the status of statehood merely because they were indigenous rulers in sub-Saharan Africa.

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proof; particularly the difficulties for non-European entities in a dispute with an intertemporal dimension.

II. Burden of Proof and Intertemporality Another juridical difficulty in the application of the doctrine of intertemporality lies in discharging the burden of proof. The present conceptualisation of burden of proof and evidence, as well fact finding in international dispute settlement sets demands to parties of a dispute which are in conflict with the obligations of the doctrine of intertemporality. 1. Fact-Finding in International Litigation “Any lawyer who has litigated motor vehicle accident cases knows that there is no such thing as a fact: there are only perceptions.”240

One problem built into discharging the burden of proof is presenting the necessary facts. There is a distinction made between fact and law. The law is expected to be known by the court. As the Permanent Court of International Justice has stated in the Brazilian Loans Case: “The Court […] is a tribunal of international law, and […] in this capacity is deemed to know what the law is”.241 Facts on the other hand are a more peculiar matter. The burden of proof only applies to facts underlying a claim. But these facts still need to be established. First, how fact-finding is carried out in international disputes in general, and by the International Court of Justice in particular will be described. In a second step the problems in fact finding in disputes with an intertemporal dimension including a nonEuropean narrative will be illustrated, with special focus on the unsustainability of distinguishing fact and law in said cases. a) The Procedure of Fact-Finding and Producing Evidence Fact-finding in international litigation is usually met with a large degree of openness regarding methods and means of collecting facts. This is due to the nature of the dispute: sovereign nations are party to a dispute and their municipal legal rules on producing facts for a dispute, which kind of documents are permitted to produce facts may vary. Accordingly international courts and tribunals have to accommodate a wide variety of different approaches to fact-finding.242 240

Franck, Thomas Martin/Cherkis, Laurence: The Problem of Fact-Finding in International Disputes, WResLRev 18 (1967), p. 1483. 241 [1929], PCIJ Series A, Nos. 20/21, p. 124. 242 Riddell, Anna/Plant, Brendan: Evidence Before the International Court of Justice, p. 1 ff.

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Before the International Court of Justice, documentary evidence is primarily produced through the memorials of the party, annexed with the relevant documents.243 However, the International Court of Justice through rules in its Statute (Articles 49 and 50 ICJ-Statute)244 is equipped with the authority to proprio motu gather facts and evidence either by requesting facts and evidence from the parties245 or by entrusting an expert commission with the fact finding246. b) Burden of Proof and Standard of Proof in International Litigation Evidence is the means by which facts are proven.247 Proof therefore is the result of evidence.248 The burden of proof refers to the obligation to prove a fact in accordance with the relevant standard.249 Each party to a dispute is charged with the burden of proving factual claims made.250 The standard of proof is the “measure against which the value of each piece of evidence as well as the overall value of the evidence in a given case should be weighed and determined”251.

Which is the standard satisfying the International Court of Justice in relation to the burden of proof? At what point has a claim been proven to the satisfaction of the ICJ? The court’s constitutive documents are mute on the question of standard of proof. The court is left to elaborate the relevant parameters. The difficulty in setting the standard seems to lie in the differing legal traditions of the judges on the bench.252 Judges from common law legal traditions and from civil law traditions appear to not be able to provide a definitive and conclusive common standard.253 The jurisprudence of the ICJ regarding standard of proof therefore is rather inconsistent.254 This of course leads to a great amount of uncertainty for the parties to a dispute. 243

Art. 43 ICJ-Statute and Arts. 50, 51 Rules of the Court. In Articles 61, 62, 66, 67 and 68 of the Rules of the Court, these provisions are expanded and specified. 245 See Art. 49 ICJ-Statute. 246 See Art. 50 ICJ-Statute. 247 Riddell, Anna/Plant, Brendan: Evidence Before the International Court of Justice, p. 70. 248 Ibid. 249 Riddell, Anna/Plant, Brendan: Evidence Before the International Court of Justice, p. 70 250 Amerasinghe, Chittharanjan Felix: Evidence in International Litigation, p. 37; “There will be no decision in favour of the party that bears the burden of proof of an essential issue, if he is unable to discharge the burden successfully. The burden of proof concerns the allocation of the duty to prove the disputed facts.” Ibid., p. 36. 251 Kazazi, Mojtaba: Burden of Proof and Related Issues, p. 323. 252 Riddell, Anna/Plant, Brendan: Evidence Before the International Court of Justice, p. 123. 253 Ibid. 254 Benzing, Markus: Evidentiary Issues, mn. 108. The court sometimes refers to “convincing evidence” as the applicable standard, such as in Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgment, ICJ Reports 1986, 244

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c) Problems in Finding Historic Facts Establishing historic facts is met with particular difficulties related to the lapse of time. aa) Indistinguishability of Fact and Law As concluded above, in contentious cases with an intertemporal dimension, international tribunals position themselves as the ultimate guardian of history. They conclusively decide what the historic situation surrounding the claim was. Historians refrain from drawing ultimate conclusions from primary historic sources and perceive their craft more as building a refutable and falsifiable narrative which is supported by primary sources. International tribunals in general and the ICJ in particular do not shy back from definitively determining a historic situation. Fact finding and the rules regarding proof and evidence are the process by which courts attempt to assess the historic circumstances. However, in international law, fact and law are not easily distinguishable. An apt example of the difficult distinction between fact and law is the question of statehood. Is statehood a question of fact or of law?255 Same is true for the general practice of states. Not only can such practice bind the acting state, if it is met with opinion juris, it may also affect obligations of the given state, since subsequent practice is a means of interpreting the content of a treaty.256 In situations of intertemporality distinguishing fact from law becomes even more problematic, as every “fact” may carry normative weight and be of normative value. This is partly due to the uncertainty regarding sources of historic law – it needs to be noted that, as mentioned above, it is doubtful if one can even conceive of sources and law existing between two different legal systems. If the sources and therefore the agents able to create binding norms are unknown, every fact is potentially normative. In its Cameroon v. Nigeria decision the ICJ took actions of the parties to the treaty as an indication of how the treaty – the supposed law regulating the relationship between Great Britain and the Kings and Chiefs of Old Calabar – is to be interpreted.257 The behaviour of the Kings and Chiefs and Great Britain behaved was of p. 14 ff., para. 29 and Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, ICJ Reports 2005, p. 168 ff., para. 83. Or to “conclusive evidence” like in Corfu Channel Case, Judgment, ICJ Reports 1949, p. 4 ff., pp. 4, 17 and Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, ICJ Reports 2005, p. 168 ff., para. 303. 255 For the debate of statehood being a matter of facto or law see Crawford, James: The Creation of States, pp. 4 – 28. 256 For subsequent practice as a means of interpreting a treaty, see Art. 31 (3) lit. b VCLT. 257 The question of lack of statehood of the Kings And Chiefs of Old Calabar in fact also is an apt example of the indistinguishability of fact and law. Since “facts” linked to the socio-legal organization of the Kings and Chiefs, as well as the perception Europe has of same Kings and Chiefs carries normative weight and, in view of the court, determines whether the Kings and Chiefs possess statehood.

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great significance for the determination of the legal effect of the treaty they have concluded – their actions therefore were not merely factual but also legal. The ICJ has analysed subsequent actions of the parties to the treaty and has drawn normative conclusions from them.258 The court concluded that Great Britain “regarded itself as administering the territories comprised in the 1884 Treaty, and not just protecting them”259. The court then turned to factual actions of the Kings and Chiefs, stating: “The fact that a delegation was sent to London by the Kings and Chiefs of Old Calabar in 1913 to discuss matters of land tenure cannot be considered as implying international personality. It simply confirms the British administration by indirect rule”.260

Concluding that a delegation which was sent to Great Britain to discuss land tenure is an affirmation of indirect British rule is, at least, far stretched.261 Especially in situations of intertemporality the assertion that the law is known by the court and therefore the burden of proof only applies to facts, does not resolve the underlying problem. In submitting evidence regarding factual circumstances, a legal position is taken. Therefore submitting factual evidence does not merely discharge the burden of proof, but through the assertion of the fact itself as true, a legal claim is simultaneously made and a legal conclusion is drawn. bb) The Reoccurring Problem of Oral Tradition Also merely technical problems can inhibit the court from assessing the historic situation and establishing historic facts. One aspect worth mentioning is the risk of a lack of reliable historical sources and information surrounding the legal claim. This could be due to the fact that insufficient sources may have survived the passing of time, or the sources may be incomplete and ambiguous.262 A particular problem arising when historical facts need to be established involving non-European peoples, is that of oral tradition. Non-literate peoples, as were the Efik people which inhabited the Bakassi Penninsula at the time of the treaty between Great Britain and the Kings and Chiefs of Old Calabar, did not produce documents which could serve as sources for evidence to discharge the burden of proof. Their legal system in general, and their understanding of the treaty concluded with Great Britain in particular, cannot be understood or interpreted by documents the Kings and Chiefs themselves have left for future generations. Historic accounts of regions in sub-Saharan Africa inhabited 258 While the Art. 31 (3) lit. b VCLT prescribes subsequent practice as a possible means of interpretation, the doctrine of intertemporality forbids the retroactive application of the VCLT. The ICJ therefore needed to establish rules of interpretation applicable in 1884. 259 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, ICJ Reports 2002, p. 404 ff., mn. 207. 260 Ibid. 261 The issue of presumptions and their effect on the burden of proof will be discussed below. 262 Riddell, Anna/Plant, Brendan: Evidence Before the International Court of Justice, p. 301.

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by non-literate peoples are made by foreigners and travelers, predominantly of European descent. These accounts are made by “outsiders” and underwent an interpretative process by the individual researcher.263 Up to the present day oral tradition is practiced in several regions of the world, including sub-Sahara Africa. The question with regard to this research thesis would be if it is possible to submit the spoken accounts of a bearer of oral tradition as evidence before the ICJ in order to discharge the burden of proof. Generally speaking, with minor exceptions, all evidence is admissible.264 The usual procedure with which oral accounts are submitted as evidence is through expert or witness testimony, which however the ICJ has been very reluctant to utilise.265 Whether an oral historical account can be considered witness testimony is more than doubtful. Witnesses are individuals giving accounts of events they have personal knowledge from, gained through their own perception.266 In the case of bearers of oral tradition, the accounts were not perceived first hand, but rather handed down by other bearers of the history. However, such accounts may be permissible as expert evidence. Expert evidence can either be submitted by the parties to the dispute, or experts can be appointed by the court on their own initiative.267 In several decisions the court has specified the qualifications experts need to possess. Experts need to have special knowledge of the subject matter in question, exceeding the normal level of knowledge.268 If expert evidence is given by the parties to the dispute, doubt surrounds their testimony, since these experts could be perceived as paid agents of a party to the dispute.269 In its Cameroon v. Nigeria decision the ICJ refrained from appointing an expert – a bearer of oral tradition –270 to determine the unclear factual and indeed legal question of the historic setting, particularly questions surrounding the territory the Kings and Chiefs of Old Calabar exercised rule over. The court stated:

263

For the dangers of using existing ethnographical literatur, see Henige, David: Oral Historiography, p. 47. 264 See Riddell, Anna/Plant, Brendan: Evidence Before the International Court of Justice, p. 152 ff. 265 Ibid., p.309. 266 Benzing, Markus: Evidentiary Issues, mn. 63. 267 Arts. 57, 63 and 64 lit. b of the Rules of the Court; Riddell, Anna/Plant, Brendan: Evidence Before the International Court of Justice, p. 332; Benzing, Markus: Evidentiary Issues, mn. 82. 268 See Riddell, Anna/Plant, Brendan: Evidence Before the International Court of Justice, p. 331 with citations of relevant ICJ decisions. 269 Ibid., p. 339. For the problem of experts apponited by parties see also Lachs, Manfred: Evidence in the Procedure of the International Court of Justice, p. 273. 270 In said case, a bearer of Oral Tradition could have been able to shed some light on the question of the actual territory the Kings and Chiefs of Old Calabar have exercised their rule over.

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F. Juridical Difficulties Ascertaining Historic Law “The Treaty with the Kings and Chiefs of Old Calabar did not specify the territory to which the British Crown was to extend ‘gracious favour and protection’, nor did it indicate the territories over which each of the Kings and Chiefs signatory to the Treaty exercised his powers.”271

The essential question of territory is not answered in the treaty itself. The court therefore sought additional evidence to determine the territory. Instead of calling an expert with (traditional) knowledge of the territories “over which each of the Kings and Chiefs signatory to the Treaty exercised his powers”, the court in fact relied on accounts of the British consul who negotiated the treaty for Great Britain.272 Additionally, the court based its determination of the territory in question on another British consul’s report to the Foreign Office in 1890.273 It is worth criticising the reliance on partial accounts of representatives of one of the parties of the treaty under scrutiny. With all difficulties categorising oral tradition within the framework of expert evidence,274 the principle of equality of the parties,275 as well as the general admissibility of evidence276 enable oral accounts of bearers of oral tradition to be submitted as evidence. cc) Presumptions and the Burden of Proof “Every writer of sufficient intelligence to appreciate the difficulties of the subject matter has approached the topic of presumptions with a sense of hopelessness, and has left it with a feeling of despair.”277

A presumption is a procedural rule in which conclusions about unknown facts are drawn from known facts.278 There are two basic ways in which a fact can serve as the basis from which conclusions about unknown facts are drawn. Firstly, if the basic fact related to the claim is proven, the unproven fact can be presumed to exist. Secondly, a fact is generally held true unless the contrary is proven.279 While presumptions form part of national and municipal legal orders, it is disputed whether presumptions form 271 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, ICJ Reports 2002, p. 404 ff., mn. 203. 272 Ibid. 273 Ibid. 274 This is mostly due to questions regarding the accuracy of the accounts. 275 For the principle of equality of the parties to the case, see Benzing, Markus: Evidentiary Issues, mn. 9. 276 See Riddell, Anna/Plant, Brendan: Evidence Before the International Court of Justice, p. 152 f; Kazazi, Mojtaba: Burden of Proof and Related Issues, p. 180 f. 277 Morgen, Edmund: Presumptions, Washington L Rev 12 (1932), p. 255. 278 See Riddell, Anna/Plant, Brendan: Evidence Before the International Court of Justice, p. 99; Kazazi, Mojtaba: Burden of Proof and Related Issues, p. 239. 279 Kazazi, Mojtaba: Burden of Proof and Related Issues, p. 239.

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part of international law.280 Yet, the International Court of Justice has repeatedly and expressively relied on presumptions in their decisions.281 The famous Lotus Case in which the Permanent Court of International Justice, the predecessor of the ICJ, has found that “[r]estrictions upon the independence of States cannot therefore be presumed”282 demonstrates that presumptions are not only made with regard to facts, but also with respect to questions of law.283 The effect of presumptions is a shift in the burden of proof. Presumptions create “evidence or proof in favour of the party that benefits from them”,284 effectively relieving the benefiting party from initiating proof through evidence. Presumptions therefore can have a significant effect on the process of evidence evaluation and law determination. In the case Cameroon v. Nigeria the court relied on certain presumptions with regard to the interpretation of the “Treaty of Protection”. The proven fact that the “treaty” was termed “Treaty of Protection” did not lead the court to presume that the content of the agreement was Great Britain granting the Kings and Chiefs of Old Calabar protection. On the contrary, the court concluded that title to the territory over which the Kings and Chiefs exercised their rule was transferred through the “Treaty of Protection”. According to the court, this is due to the fact that rulers in this region were not regarded as states. And also, the behavior of Great Britain towards the territory in question after conclusion of the “treaty” would indicate the will of Great Britain to exercise sovereignty over the territory, rather than just protection.285 Great Britain saw itself as administering the territory and acted as if it administered the territory. Again, it is interesting to note that the court merely considered Great British interests with regard to treaty interpretation, which led the court to conclude that a transfer of title has taken place. However, the behavior of Great Britain with regards to the territory in question subsequent to treaty conclusion could also indicate a breach of the treaty by Great Britain. Therefore, the presumption by the court that title was transferred was in no way compelling.

280 For the discussion of the existence of presumption in international law see Riddell, Anna/ Plant, Brendan: Evidence Before the International Court of Justice, p. 101 f. 281 The predecessor of the ICJ, the PCIJ has already made presumptions; see [1927] PCIJ Series A, No. 9, The Case of the SS Lotus, p. 18: “Restrictions upon the independence of States cannot therefore be presumed.”; for the ICJ see Case concerning Right of Passage over Indian Territory, Judgement, ICJ Reports 1960, p. 6 ff. (Dissenting Opinion Judge Moreno Quintana). Also, Kazazi, Mojtaba: Burden of Proof and Related Issues, p. 255 notes that generally international tribunals rely on assumptions without clearly distinguishing between presumptions of fact and presumptions of law. 282 [1927] PCIJ Series A, No. 9, The Case of the SS Lotus, p. 18. 283 See also Kazazi, Mojtaba: Burden of Proof and Related Issues, p. 254. 284 Kazazi, Mojtaba: Burden of Proof and Related Issues, p. 371. 285 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, ICJ Reports 2002, p. 404 ff., mn. 207.

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Since the court presumed that title was transferred through the treaty, the burden of proof shifted towards Nigeria now obliged to provide proof to the contrary. Responding to a question by the court, Nigeria stated: “It is not possible to say with clarity and certainty what happened to the international legal personality of the Kings and Chiefs of Old Calabar after 1885.”286

The court therefore concluded that Great Britain administered the territories through indirect rule. But how could Nigeria have proven international legal personality of the Kings and Chiefs of Old Calabar after 1885, challenging the presumption of transfer of title? Three obstacles are of significant importance. Firstly, the court itself set the Kings and Chiefs of Old Calabar in a peculiar legal status by on one hand denying them statehood, yet on the other hand acknowledging their rule exercised over certain territories and their ability to transfer title to the territories they possessed. Which acts of the Kings of Chiefs therefore would in the eyes of the court suffice to accept continuous international legal personality is in no way clear.287 The court did not deny the fact that the Kings and Chiefs have sent a delegation to the capital of Great Britain in 1913. From this fact a continued international legal personality could also be presumed. There is no indication whatsoever, that the Kings and Chiefs subsequent to the treaty have changed their internal order or external actions. Solely Great Britain’s actions towards the territories have changed, which could also constitute a breach of treaty. However, due to the presumption that title was transferred through the “Treaty of Protection”, which shifted the burden of proof, Nigeria had to rebut the claim that international legal personality of the Kings and Chiefs has ceased to exist. This leads to the second major obstacle: the lack of documentary evidence. The lack of archival and documentary evidence is of great hindrance in discharging the burden of proof or rebutting presumptions drawn by the court. As stated above, the Efik people, who inhabited the Bakassi Peninsula at the time of reign of the Kings and Chiefs of Old Calabar, were non-literate, meaning that archival, documentary evidence was merely produced by outsiders. The court itself exclusively relied on archival and documentary evidence produced by Great Britain, a party to the treaty in question. Thirdly, the presumptions Nigeria had to rebut were in fact multilayered and interconnected. Nigeria found itself in a position having to rebut broader presumptions regarding the history of international law and the statehood of sub-Saharan African rulers. These presumptions are vested in a bigger context of the under286 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, ICJ Reports 2002, p. 404 ff., mn. 207. 287 For the general difficulty of identifying a standard of proof in cases before the International Court of Justice, see Benzing, Markus: Evidentiary Issues, mn. 107 ff.; Riddell, Anna/ Plant, Brendan: Evidence Before the International Court of Justice, p. 125 ff.

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standing of international law, its history and its subjects in history. To rebut the presumption of the court that rulers in sub-Saharan Africa were not regarded as states, Nigeria would have to dismantle Eurocentric preconceptions of international law and its history.288 Antony Anghie in his work Imperialism, Sovereignty and the making of International Law, undertook the task of dismantling the Eurocentric hypocrisy surrounding the issue of statehood and sovereignty of non-European entities. Anghie pointed out the paradox that by the same means through which African political entities gained international legal personality and sovereignty (treaties with European states) they have lost their sovereignty and international legal personality.289 Also, the presumption that title was transferred through the treaty was, as stated above, drawn from Great Britain’s behavior with regards to the territories subsequent to treaty conclusion. However, the actions subsequent to the conclusion could also constitute a breach. It is therefore important to argue that the treaty permitted Great Britain to carry out their subsequent actions, because Great Britain subsequently behaved in that particular manner. The question was whether Great Britain through the treaty was permitted to act in the way it did subsequent to the treaty. Rebutting the presumption that title was transferred would require detangling the larger context of Eurocentric perception of international law and its history in which it is embedded. In essence, through the shift in the burden of proof, Nigeria now had to rebut presumptions, with little to no documentary evidence stemming from the Kings and Chiefs of Old Calabar themselves. These presumptions were vested in a broader context of perceptions of international law and its history which laid an additional burden on Nigeria to discharge the burden of proof. Beyond the case of Cameroon v. Nigeria the effect of presumptions entails the danger of working to the disadvantage of non-European parties to a dispute with an intertemporal dimension due to a lack of documentary evidence. The burden of proof can be discharged by providing evidence meeting the standard of proof of the court. In cases with an intertemporal dimension the party which can provide documentary evidence is in the advantage, effectively shifting the burden of proof to the other party. If the other party is non-European with a non-literate history, historical documentary evidence cannot be produced.

288 Judge Al-Khaswaneh in his Separate Opinion in fact has criticised the court for perpetuating a historiographically untenable Eurocentric view on international legal history. 289 For the legal paradox (or “legal twilight”) created through treaties of European states with non-European entities see Anghie, Antony: Imperialism, Sovereignty and the Making of International Law, p. 74 ff.; for the creation of sovereignty through the destruction of sovereignty of the post-colonial state, see Anghie, Antony: Imperialism, Sovereignty and the Making of International Law, p. 219, “they come into existence as a result of the very act which nullified their sovereignty”.

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2. The Fair-Trial-Principle The difficulties encountered in finding historic facts and discharging the burden of proof for the non-European party may be mitigated through the fair-trial-principle. The principle that the parties are entitled to a fair trial generally refers to the impartiality of the judicial body, as well as equality of arms of the parties, meaning that each party “must have an equal opportunity to make its case in regard to facts and evidence”.290 If such an equality of arms is not given, the burden of proof may be alleviated, meaning, that a less strict standard of proof can be applied.291 The ICJ itself advocates a flexible approach to the burden of proof. It states that the burden of proof depends on the “subject-matter and the nature of each dispute brought before the Court; it varies according to the type of facts which it is necessary to establish for the purpose of the decision of the case”292. However, there is no indication in the jurisprudence of the ICJ of such alleviation in proceedings with an intertemporal dimension and scarce documentary historical evidence of the non-European party to the dispute. It is also questionable if such alleviation would be sufficient in situations of scant historical sources and lack of research of the historical people in question. Even when a less strict standard of proof is applied, the evidence still needs to be submitted in order to prove facts and substantiate the law (or lack thereof) and its interpretation. Due to the lack of documentary evidence, the court as demonstrated above, then relies on presumptions drawn from the evidence submitted by the European party to the dispute. These presumptions need to be rebutted and therefore pose an additional burden to the nonEuropean party to the dispute. While the fair-trial-principle could serve as a means of establishing symmetry, the non-application of this principle in cases with an intertemporal dimension leaves it in the realm of theoretical solutions.

III. The Futility of the Doctrine of Intertemporality In contentious proceedings with an intertemporal dimension involving a European and a non-European legal perspective, uncertainty is in fact multidimensional. Historiography itself, can seldomly if ever, provide an unambiguous and exact depiction of thoughts and webs of beliefs of generations long gone. Also, cultural anthropology is well aware of its own limitations in understanding culturally foreign societies and their histories. Additionally, ascertaining historic legal rules with a

290

Amerasinghe, Chittharanjan Felix: Evidence in International Litigation, p. 14. Benzing, Markus: Evidentiary Issues, mn. 40. 292 Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Judgment, ICJ Reports 2010, p. 639 ff., para. 54. 291

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claim to universal applicability would entail certainty regarding historic legal sources, which is not given. The question therefore is, can the doctrine of intertemporality in such situations be of any use? There are situations in which the doctrine of intertemporality indeed can fulfill its self-proclaimed goal of justice – not binding the actions of subjects of international law to norms that were not in force at the time of said actions. Disputes between parties with a common legal heritage indeed fare better with the application of the doctrine of intertemporality.293 In the polycentristic global legal order of the past, there is no conceivable basis for an interaction between subjects of different legal orders based on law. Accepting the fact that the law applicable between the parties is non-existent or due to the multidimensional uncertainty cannot be conclusively determined undermines the task of ascertaining legal rules and render that task rather futile. An attempt to mitigate this conclusion will be made in the following section.

293 One such example would be The Minquiers and Ecrehos case, Judgment, ICJ Reports 1953, p. 47 ff., in which France and Great Britain were in dispute regarding the sovereignty of islands and in which evidentiary documents were submitted dating as far back as 1066.

G. The Doctrine of Intertemporality and its Relation to Non Liquet In proceedings with an intertemporal element involving a non-European party, the historic law governing their encounter is unascertainable at best and non-existent at worst. Yet, international tribunals decide such cases based on supposedly historic law ascertained entirely from the European perspective.294 Uncertainties regarding the ascertainment of the applicable law or even lack of any applicable law are overlooked. In order to establish certainty with regards to the law and the genealogy of international law, a questionable Eurocentric methodology is applied in the ascertainment process. The result is a disadvantage for the non-European legal perspective to be aptly appreciated by the court. This is the reason such disputes have left the realm of “litige” and entered the realm of “différend”, since the non-European legal position is not signified in the analytical context of the ascertainment process. What is the reason to sacrifice an entire legal perspective? Why do international courts and tribunals do not confront the problem of uncertainty in the ascertainment process? An answer to this question may be found in international law’s problem with lacunae and non liquet.

I. Lacunae, Non Liquet and International Law Non liquet refers to situations, in which the law does not permit a conclusive decision on the issue in question.295 This can be due to a substantive gap in the law, a lacuna.296 The question of, whether a substantive gap in international law is even conceivable, remains and links to the perceived completeness of international law.

294 This superficial appreciation of the relevant historic law and the neglect of the nonEuropean perspective is being criticised by members of the ICJ themselves, as can be seen by the Dissenting and Separate Opinions in the Cameroon v. Nigeria case. 295 Bodansky, Daniel: Non Liquet and the Incompleteness of International Law, p. 153. A non liquet is also defined as “the failure of a competent tribunal to pronounce upon the merits of an admissible claim”, Fitzmaurice, Gerald: The Problem of Non-Liquet, p. 93. 296 For the question of lacunae in international law see Fastenrath, Ulrich: Lücken im Völkerrecht; Bodansky, Daniel: Non Liquet and the Incompleteness of International Law; Fitzmaurice, Gerald: The Problem of Non-Liquet; Lauterpacht, Hersch: Some Observations on the Prohibition of ‘Non Liquet’ and the Completeness of the Law; Salmon, Jean: Quelques Observations sur les Lacunes du Droit International Public, RBDI 3 (1967); Siorat, Lucien: Problème des Lacunes en Droit International.

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The supposed completeness of international law is one reason for the continuing discussion on the prohibition of international courts to declare non liquet. 1. The (In-)Completeness of International Law There is debate, whether a substantive gap in international law is even conceivable. The two main arguments put forward for the completeness of international law are, firstly, the “Lotus Principle” or “residual negative principle”297, stating that acts, which are not prohibited are permitted, which would fill any supposedly existing material gap in international law. Secondly, it is being argued that the existence of general principles of international law have the purpose and the ability to fill gaps in international law and thereby prevent findings of non liquet.298 Sir Hersch Lauterpacht even went as far as calling the principle of the completeness of international law “one of the most indisputably established rules of positive international law”299. The result of the supposed completeness of international law is the inconceivability and in fact prohibition of a pronouncement of non liquet.300 If the law is complete, a tribunal cannot decline giving a judgement on the basis that the law is silent or nonconclusive.301 The Nuclear Weapons Advisory Opinion302 of the ICJ added a new dimension to the debate surrounding the completeness of international law and non liquet.303 Debates concerning the completeness of international and the prohibition of non liquet were reinvigorated. In the Advisory Opinion the ICJ stated: 297 Stone, Julius: Non Liquet and the Function of Law in the International Community, BritYBIL 35 (1959), p. 135. 298 See Bodansky, Daniel: Non Liquet and the Incompleteness of International Law, pp. 161 – 167; for an argument in favour of the completeness of international law, see Lauterpacht, Hersch: Some Observations on the Prohibition of “Non Liquet” and the Completeness of the Law, p. 197, 200. 299 Lauterpacht, Hersch: Some Observations on the Prohibition of “Non Liquet” and the Completeness of the Law, p. 200. 300 Bodansky, Daniel: Non Liquet and the Incompleteness of International Law, p. 159; Lauterpacht, Hersch: Some Observations on the Prohibition of “Non Liquet” and the Completeness of the Law, p. 218 f; Weil, Prosper: “The Court Cannot Conclude Definitively …” Non Liquet Revisited, ColumJTransnatlL 36 (1998), p. 110. 301 Even authors willing to conceive material gaps in international law, resort to the general principles to justify the prohibition of non liquet; see Fitzmaurice, Gerald: The Problem of NonLiquet, p. 91. 302 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, IC.J Reports 1996, p. 226 ff. 303 For the debate surrounding the Nuclear Weapons Advisory Opinion and non liquet see Weil, Prosper: “The Court Cannot Conclude Definitively …” Non Liquet Revisited, ColumJTransnatlL 36 (1998); Aznar-Gomez, Mariano: The 1996 Nuclear Weapons Advisory Opinion and Non Liquet International Law, ICLQ 48 (1999); Dekker, Ige/Werner, Wouter: The Completeness of International Law and Hamlet’s Dilemma. Non Liquet, The Nuclear Weapons Case and Legal Theory, NordicJIL 68 (1999).

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G. Doctrine of Intertemporality and its Relation to Non Liquet “However, in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake”.304

This paragraph in the judgment was considered a non liquet by the Judges Bedjaoui, Vereshchetin, Schwebel and Higgins.305 It has however been argued that Advisory Opinions differ from contentious proceedings and that the nature of an Advisory Opinion does not preclude the ICJ from pronouncing non liquet, while the principle of consensual jurisdiction bars the court from finding a non liquet in contentious proceedings.306 Whether non liquet is a possibility in contentious proceedings therefore remains a topic of debate. Arguments in favour of the possibility of non liquet in contentious proceedings point towards substantial structural and material gaps in international law unable to be bridged by general principles or the “Lotus Principle”. One prime example is the lack of rules regarding the continental shelf. Daniel Bodansky mentions the example of the lack of rules regarding the continental shelf before the Truman Proclamation of 1945.307 Bodansky asks, if before the declaration states were, according to the “Lotus Principle” free to do as they wished with regards to the continental shelf? This assumption would result in the odd situation of land-locked state being able to claim continental shelves. Also, state A, for example the United States of America, could claim the continental shelf of faraway state B, for example France.308 The gap in law concerning the continental shelf therefore could not be bridged by mere recourse to the “Lotus principle”. A positive rule regulating questions regarding the continental shelf was needed. This also reflected in the later jurisprudence of the ICJ. In its early decision, the ICJ viewed the continental shelf as a matter of fact.309 However, since no fact “can be normative without an anterior criterion”,310 and the liberty and freedom of one state necessarily is delineated by the freedom and liberty of another state, recourse to facts alone is not sufficient to solve conflicting claims to the continental shelf. The court 304

Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, IC.J Reports 1996, p. 226 ff., para. 105 (2). 305 For the discussion on the Advisory Opinion being as an example of non liquet, see Bodansky, Daniel: Non Liquet and the Incompleteness of International Law, p. 153 with the relevant footnotes to the opinions of said Judges. 306 For the argument in favour of the impossibility (and prohibition) of non liquet in contentious proceedings see Weil, Prosper: “The Court Cannot Conclude Definitively …” Non Liquet Revisited, ColumJTransnatlL 36 (1998), p. 119. 307 Bodansky, Daniel: Non Liquet and the Incompleteness of International Law, p. 157 f. 308 Ibid. 309 See North Sea Continental Shelf, Judgment, ICJ Reports 1969, p. 3 ff., paras. 19 – 20, in which the court concluded that the “rights of the coastal State in respect of the area of continental shelf … constitute[…] a natural prolongation of its land territory into and under the sea exist ipso fucto and ab initio, by virtue of its sovereignty over the land, and as an extension of it”. 310 Koskenniemi, Martti: The Politics of International Law, p. 50.

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has realised this and moved to applying “equitable principles” to solve disputes surrounding the continental shelf of coastal states.311 Equity thus served as a means of completing international law and thereby avoided having to pronounce non liquet. Even in the example that Bodansky made, equity could be applied to arrive at a decision within the realms of international law.312 While gaps in international law are conceivable, which might not be able to be resolved by recourse to the “Lotus Principle”, other general principles of international law, equity can serve as a means to bridge the gap and complete international law, thus avoiding non liquet in contentious proceedings. 2. Historic International Law and Non Liquet If historic law is the subject of inquiry, can one in certain instances speak of a substantive gap in the law? It is trite to say that the body of what constitutes international law develops over time. Taking the sources doctrine enshrined in Art. 38 of the ICJ-Statute into account, it is rather obvious that practice of states, flanked by opinion juris creates ever increasing custom over time. Also, treaties between states increase over time. International law becomes denser.313 The consequence is that the historic body of international law was less dense and therefore might have been less “complete”.314 The question is, if principles are available to bridge conceivable gaps in material (historic) law. The problem with the established principles of modern international law is the prohibition of retroactive application – a constitutive element of the doctrine of intertemporality. The “Lotus Principle”, which encompasses the negative residual principle, was established by the Permanent Court of International Justice in 1927. If material gaps in international law before 1927 should be bridged by recourse to the “Lotus Principle”, the principle would need to be positively established as applicable at the time in question. Positively establishing historic general principles of international law itself is a problematic undertaking. Any such ascertainment process however presupposes that the material body of historic law can be ascertained. As was elaborated above, in proceedings in which the historic law of a non-European people needs to be as311 The court has already done so in its North Sea Continental Shelf, Judgment, ICJ Reports 1969, p. 3 ff., para. 98, and confirmed this method in Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, ICJ Reports 1982, p. 18 ff., para. 70. 312 The principle of equity will be discussed below in greater detail as a possible solution to the problem posed by the indeterminacy of the historic law involving a non-European party to the dispute. 313 Weiler, Joseph Halevi Horowitz: The Geology of International Law – Governance, Democracy and Legitimacy, ZaöRV 64 (2004), p. 548 ff. 314 In a historic context, the example of lack of rules regarding the continental shelf becomes virulent again.

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certained, scarce historical documents, the limits of historiography and the cultural difference inhibit the ascertainment process. Also, as it was established above, the historic international legal order was factually polycentristic, meaning that several different legal systems existed, of which none claimed global rule.315 Therefore “rules applying to the conflict of ‘public international laws’ cannot be imagined.”316 Thus, regarding the (in-)completeness of historic international law two options are conceivable: 1. Either the material law cannot be ascertained conclusively. 2. Or there is no law existing between the parties. The “Lotus Principle” is of no help filling the gap in the first scenario317 and cannot serve as the basis for bridging the gap between different “international laws” in the second. At best, the court finds itself in a situation where the law is not ascertainable; at worst, the law is non-existent. In the Cameroon v. Nigeria decision the ICJ did not pronounce non liquet regarding the question if title was transferred through the 1884 Treaty of protection between Great Britain and the Kings and Chiefs of Old Calabar. However, in separate and dissenting opinions, concerns about the simplicity with which the court brushed over the question of the applicable law in general and the legal content of the “Treaty of Protection” in particular were aired. Judge Al-Khasawneh in his separate opinion stated that state the questions raised by Sir Arthur Watts, counsel for Nigeria: “Who gave Great Britain the right to give away Bakassi? And when? And how?” were not answered by the court. These questions are central to the case, since Cameroonian sovereignty over the Bakassi Peninsula depends on the transfer of title from Great Britain to Germany through the Anglo-German Agreement of 11 March 1913.318 Judge Al-Khasawneh contends that the historical and legally unfounded European presuppositions led the court to reach the conclusion that the “Treaty of Protection” in and by itself could transfer title over the Bakassi Peninsula from the Kings and Chiefs of Old Calabar to Great Britain.319 Also, the Judge ad hoc Mbaye for Cameroon, the party which eventually was granted sovereignty over the Bakassi Peninsula by the ICJ, contends that such treaties of protection had “no validity in international law”320. Judge Mbaye then concludes that due to the difficulty in ascertaining historic law, the court should merely “note the characteristics […] of the 315 See, Kämmerer, Jörn Axel: Introduction. Imprints of Colonialism in Public International Law: On the Paradoxes of Transition, JHistIntlL 18 (2016), p. 241 f. 316 Kämmerer, Jörn Axel: Introduction. Imprints of Colonialism in Public International Law: On the Paradoxes of Transition, JHistIntlL 18 (2016), p. 242. 317 As stated, due to the prohibition of retroactive application of international law as part of the doctrine of intertemporality, the “Lotus Principle” would have to be positively established in the period of question. 318 See Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, ICJ Reports 2002, p. 404 ff., para. 200 ff. 319 For the broader discussion of the insufficient ascertainment of the court regarding the law contemporaneous to the facts, see Separate Opinion of Judge Al-Khasawneh. 320 Separate Opinion of Judge Mbaye, para. 71.

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various phases in the development of international law”321. Judge Rezek in his declaration highlighted the inherent contradiction of denying the Kings and Chiefs of Old Calabar the status of statehood, but at the same time accepting the “Treaty of Protection” between the Kings and Chiefs and Great Britain as valid: “[I]f the Kings and Chiefs of Old Calabar did not have capacity to enter into an international agreement, if the 1884 Treaty was not a treaty and had no legal force whatsoever, it must be asked what was the basis for Great Britain to assert its authority over these territories, by what mysterious divine right did it set itself up as the protecting State of these areas of Africa.”322.

Judge Rezek’s statement points to the inherent difficulty of conclusively identifying the international legal regime applicable between a European and a non-European entity, even in a very specific situation. The contradicting decision of the court – concluding that the Kings and Chiefs were not regarded as states but at the same time can enter into an agreement under international law, transferring sovereign rights they have possessed – can only be resolved by either contending that the Kings and Chiefs were not regarded as states, which would make claims regarding treatymaking power and the ability to transfer title previously held difficult to sustain, or by accepting the statehood of the Kings and Chiefs, rendering the argument of the court that transfer of title has taken place through the “Treaty of Protection” precisely because of a lack of statehood of the Kings and Chiefs of Old Calabar, futile.323 The mentioned separate opinions and the declaration indicate that applicable law between Great Britain and the Kings and Chiefs of Old Calabar was lacking. A lack of applicable historic law constitutes a material gap, a lacuna, raising the question if finding non liquet can be avoided.324

II. The Duty to Prevent Non-Liquet International law generally being perceived as being complete – either because the possibility of the existence of material gaps in international law is denied since every possible gap in the material law can be filled with recourse to the “Lotus Principle” or 321

Ibid., para. 72. See Declaration of Judge Rezek, p. 489. 323 One argument made by the court in favour of transfer of title was connected to the lack of statehood of the Kings and Chiefs of Old Calabar; see Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, ICJ Reports 2002, p. 404 ff., para. 203 ff. 324 Even if the position that the law is non-existent is not shared, conclusively ascertaining historic rules applicable between a European and a non-European party are accompanied with the historiographic and ethno-anthropological problems outlined above – the law is factually unascertainable. According to Daniel Bodansky, such situation – a situation in which a rule might exist but cannot be conclusively ascertained – constitutes an “epistemological non liquet”; Bodansky, Daniel: Non Liquet and the Incompleteness of International Law, p. 156 f. 322

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other general principles of international law – it is being argued that international tribunals cannot refrain from rendering a decision in contentious cases. However, in situation where historic international law serves as the basis for a decision, the question presenting itself is whether a finding of non liquet must also be avoided when the law is factually non-existent or unascertainable due to the fact that the means by which gaps in modern international law are filled – by recourse to general principles – are not available in historic contexts, since these principles would need to be positively established. In other words: is there a duty to prevent non liquet independent of the completeness of the law? Regional Courts, such as the European Court of Justice have recognised a duty to prevent rendering a decision of non liquet. In the first decade of its existence, the ECJ in the Algera case of 1957325 had to decide, whether withdrawing administrative measures giving rise to individual rights is lawful under the ECSC-Treaty. The treaty however was mute on this question. Yet, the ECJ saw an obligation to not deny the parties justice and render a decision based on “rules acknowledged by the legislation, the learned writing and the case-law of the member countries”.326 The court thereby reaffirmed the principle that even in the absence of applicable (treaty) law, a court cannot refrain from rendering a decision. A duty to prevent non liquet could also derive from the “general principle of consensual jurisdiction”327. International adjudication as one form of dispute settlement relies on disputing parties to choose to settle their dispute in a judicial manner, according to international law. International courts need the parties to confer jurisdiction upon it in order to be able to exercise it.328 Consent between the parties to a dispute, which are sovereign states, is the main pillar of international adjudication. The agreement (or compromise) between the parties delineates the jurisdiction of the tribunal – it cannot decide beyond what the parties have agreed to. Does the agreement between the parties as a manifestation of the general principle of consensual jurisdiction oblige the court to render a decision and refrain from pronouncing non liquet? Prosper Weil states: “Jurisdiction is not only a right – it imposes on the tribunal the duty to exercise the authority the parties have granted to it.”329

The ICJ in the Arbitral Awards Case between Guinea-Bissau and Senegal, made a statement, which can be read in favour of a duty to render a decision when called to do so by the parties through an agreement: 325

ECJ, Judgment of 12 July 1957, Algera – EU:C:1957:7. Ibid., p. 55. 327 Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Application to Intervene, Judgment, ICJ. Reports 1990, p. 92 ff. 328 See Weil, Prosper: “The Court Cannot Conclude Definitively …” Non Liquet Revisited, ColumJTransnatlL 36 (1998), p. 114 f. 329 Ibid., p. 115. 326

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“[The Court] has simply to ascertain whether by rendering the disputed Award the Tribunal acted in manifest breach of the competence conferred on it by the Arbitration Agreement, either by deciding in excess of, or by failing to exercise, its jurisdiction.”330

The agreement to bring a dispute before an international court and thus grant the court jurisdiction therefore can be seen as entailing an obligation to exercise the jurisdiction granted. If however no law which can serve as the basis for resolving the dispute exists, the court is confronted with a duty to decide but no law to base its decision on. This is the situation the ICJ found itself in its Cameroon v. Nigeria decision. The court did not pronounce non liquet but rather relied on the “Treaty of Protection” between Great Britain and the Kings and Chiefs of Old Calabar as the a source for the applicable law. As stated above, the cursory ascertainment of the treaty was criticised by other members of the court. In fact, it is doubtful whether law applicable between Great Britain and the Kings and Chiefs of Old Calabar even existed in 1884. To circumvent the uncertainties at hand the court opted for a Eurocentric and ahistorical appreciation of the situation in 1884 in order to avoid pronouncing non liquet. The actual decision taken by the court concerning the transfer of sovereignty over the Bakassi Peninsula from the Kings and Chiefs of Old Calabar to Great Britain through the “Treaty of Protection” is not founded in the law of the time applicable between the Kings and Chiefs and Great Britain. The problem of no existing applicable law or no ascertainable law must not be solved by recourse to eurocentrically established rules leading to a situation of “différend”.

III. Conclusion The argument in favor of a duty of an international tribunal to prevent non liquet rests mainly on the view that international law is complete since every conceivable gap in material law can be bridged by general principles of international law, especially the “Lotus Principle”. However, since retroactive application of modern international law is prohibited, historic rules and norms – including principles such as the “Lotus Principle” – need to be established positively. If the presupposition that the historic international legal order was polycentric and no legal system did or could claim rule over the others is followed, there in fact was no applicable law between parties of different legal systems. This would constitute a material gap in the (historic) law. Since literature indicates a duty to prevent pronouncing non liquet deriving from the agreement of the parties to judicially settle their dispute, it is also independent for the question of international law’s completeness. The tension between a general duty of preventing non liquet and conceivable gaps in the material historic law therefore needs to be resolved. Possible solutions will be discussed in the following section. 330

Arbitral Award of 31 July 1989, Judgment, ICJ Reports 1991, p. 53 ff., para. 47.

H. Reconceptualising the Intertemporality The ratio behind obliging international courts to ascertain the law contemporary to the judicial facts is linked to considerations of justice. Every subject should be in knowledge of the rules and norms it needs to follow. If a norm is applied retroactively, historic subjects would be in no position to behave according to such norms since they would lack knowledge of them. Therefore the doctrine of intertemporality prohibits retroactive application of modern law but rather requires the ascertainment of specific norms and rules applicable at the time of the juridical facts.

I. The Basis for Reconceptualising the Doctrine of Intertemporality A cursory depiction of the historic international legal framework does not suffice as a legal basis for a juridical decision. Concrete rights and duties governing the dispute need de be identified. However, ascertaining historic rules applicable between two parties is met with challenges. The problems in the rule-ascertainment process increase when historic rules of a non-European people need to be identified and ascertained. Historiographic methodologies need to be applied. The self-professed goal of historians and historiography lies in depicting falsifiable narratives of certain periods of time, grounded on “primary sources”, which can never be void of the historian’s individual presuppositions and assumptions. The task of identifying applicable rules in history therefore is not something historians would be particularly comfortable with.331 Also, any inquiry into historic rules of non-European people requires penetrating the membrane of the legal perception of a culturally foreign people. The cultureanthroposophical toolkit necessary for such an undertaking has its limits. Foreign and historic legal perceptions are not only difficult to identify due to difficulties arising from a lapse in time, but especially because the fieldwork required gaining any anthropological insight is at best a journey of attempting to make the least methodologically flawed decision. Then the results of the fieldwork need to be interpreted. Cultural anthropologists are consciously aware of their very own (cultural) pre-

331 The aim of demonstrating what historiography cannot achieve was the aim of Fasolt, Constantin: The Limits of History.

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conceptions which inhibit the process of interpretation and cannot be avoided but only accepted.332 From a legal perspective the quest of ascertaining specific rules relies on a certain preconception of international law. A regionally occurring historic phenomenon is framed the universal blueprint. This preconception is the point of departure for any further ascertainment process and also guides the investigation. The axiomatically set notion of this preconception is neither compelling nor convincing. A new wave in international legal literature challenges the preconceptions with which international law’s history is being approached.333 Research suggests that the historic international legal order was in fact polycentristic, with no legal system claiming rule over another.334 Challenging existing preconceptions and following the historically defendable route of a historically polycentristic legal order leads to great uncertainties in the rule ascertainment process. If the applicable law is either indeterminable or non-existent, fundamental questions regarding the necessity of the doctrine of intertemporality and its ability to achieve its self-professed goal need to be raised. International courts and tribunals circumvent uncertainties in the ascertainment process, particularly with regard to the non-European legal perspective. They seek to solve the problem of problematic ascertainment through recourse to a continental European understanding of international law, its subjects, its sources and its genealogy. The Cameroon v. Nigeria decision of the ICJ is an apt example for circumventing difficulties and uncertainties in the law-ascertainment-process by relying on a Eurocentric understanding of international law. In interpreting the “Treaty of Protection” between the Kings and Chiefs of Old Calabar and Great Britain the Court decided that local rulers in sub-Sahara Africa were not regarded as states and that through said treaty sovereignty over the Bakassi Peninsula was transferred from the Kings and Chiefs to Great Britain. This “merely … formalistic appraisal of the issues involved”335, led to vehement criticism of other Judges on the bench. Judge AlKhasawneh for example criticized the court inter alia for not taking into consideration the state practice (including the practice of African states, which also challenges the claim of a lack of statehood in sub-Sahara Africa) of the time. Judge ad hoc Mbaye even stated that so-called treaties of protection “had no validity in in-

332

This is the reason Quentin Skinner stated: “We must classify in order to understand, and we can only classify the unfamiliar in terms of the familiar”, Skinner, Quentin: Visions, p. 59. 333 Marrti Koskenniemi thus stated “What we study as history of international law depends on what we think ‘international law’ is in the first place; it is only once there is no longer any single hegemonic answer to the latter question, that the histories of international law, too, can be expected to depart from their well-worn paths and open our eyes to experiences of rule that have hitherto remained in darkness.”, Koskenniemi, Martti: A History of International Law Histories, p. 970. 334 Kämmerer, Jörn Axel: Introduction. Imprints of Colonialism in Public International Law: On the Paradoxes of Transition, JHistIntlL 18 (2016), p. 241 f. 335 See Seperate Opinion of Judge Al-Khasawneh, para. 3.

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ternational law”336, which demonstrates, that ascertainment of a historic norm, even the (legal) content of a treaty, is by no means a straight-forward endeavour. Circumventing the highly problematic task of ascertaining specific historic rules applicable between parties of a dispute by relying on a Eurocentric narrative is convenient for several reasons. Firstly, the need to delve into the historic legal perception of a culturally foreign people is eliminated. Secondly, acknowledging the uncertainty regarding existence and content of historic international rules and norms could bring international tribunals in conflict with the duty to avoid pronouncing non liquet in international proceedings. Thirdly, creating supposed legal certainty through recourse to a Eurocentric narrative leads to a clean and uninterrupted genealogy of international law, which in turn is perpetuated through decisions of international courts and tribunals. The supposed foundation of present international law does not have to be regarded as shaky and avoiding uncertainty provides international legal framework with a robust pedigree. Avoiding uncertainty however comes at a cost. The main goal of the doctrine of intertemporality, the very reason it should be applied is justice.337 If an entire legal perspective to a dispute is not considered in the rule-ascertainment-process, then not only is the methodology underlying the ascertainment process flawed, but justice, which was the reason to ascertain the historic rules applicable between the parties in the first place, cannot be achieved. The Eurocentric methodology which needs to be applied in order to overcome the uncertainty in ascertaining specific historic rules works to the detriment of the non-European legal narrative. This is a genuine case of a “différend”. The dilemma with the present application of the doctrine of intertemporality may be summed up as follows: the doctrine of intertemporality should be applied because historic actors mustn’t be confronted with modern rules. They could not have any knowledge about and therefore could not have followed. Yet, historic norms are being ascertained in a way in which one party to the dispute could not have participated in and have any knowledge of the rules. In hindsight it is said to should have obliged and therefore finds itself in the situation the doctrine of intertemporality seeks to avoid. A reconceptualisation the doctrine of intertemporality may enable an application actually achieving the goal of justice.

336

See Separate Opinion of Judge Mbaye, para. 71. For the ratio of the doctrine of intertemporality see Tavernier, Paul: Recherches; Elias, Taslim Olawale: The Doctrine of Intertemporal Law, AJIL 74, 2 (1980); Higgins, Rosalyn: Some Observations; Krause-Ablaß, Wolf-Dietrich: Intertemporales Völkerrecht; McWhinney, Edward: Time Dimension. 337

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II. Reconceptualising the Underlying Assumption of the Doctrine of Intertemporality Before outlining how an adequate conceptualisation of the doctrine of intertemporality could avoid the danger of creating a situation of “différend”, a brief reminder of the different elements of the doctrine of intertemporality and their functioning is needed. At the core of the doctrine of intertemporality lies the principle of non-retroactivity of international law. This principle could be described as the constitutive element of the doctrine of intertemporality and is accepted as a general principle of international law. For the non-retroactive application of treaties, Article 28 of the Vienna Convention of the Law of Treaties stipulates that provisions of a treaty “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 the party.” The principle of non-retroactivity therefore functions as and presupposes a divide between the present and the past – drawing a line in the passing of time. If present and past are seen as two distinct entities with differing properties, it is consistent to demand positive ascertainment of the law of the past. This is the other main element of the doctrine of intertemporality – the obligation to actively and positively ascertain the norms and rules contemporary to the judicial facts. The ratio of the doctrine of intertemporality is – as mentioned before – justice; or as WolfDietrich Kraus-Ablaß has termed it: “intertemporalrechtliche Gerechtigkeit” . And it is working with the assumption that since the present and the past are two distinct entities, historic law has to differ from present law. For this very reason historic law needs to be positively ascertained in contentious proceedings. The assumption of difference in law corresponds with the intuition that change comes with passage of time. The question is, whether the assumption that historic law differs from present law is legally required. What is left of the doctrine of intertemporality, if it is ridded of said assumption and can the doctrine still function according to its goal? The suggestion made in this thesis is reversing this assumption. Historic law is seen as identical to current law, until otherwise proven. The problem of ascertaining historic law therefore has a different spin. Historic norms only need to be ascertained, if there is reason to believe that the content of the norms differed. Any party to the dispute is free to present evidence of a different law existing in the time which surrounded the judicial facts. In other words: the doctrine of intertemporality is applied, if at least one party to the dispute contests that the present norms are the same as they were at the time surrounding the judicial facts. The party then would have to present the evidence for the existence of the differing claimed historic norm. This solution does not impose the application of current international law on the parties to a contentious proceeding, since it leaves for each party the possibility to prove the existence of different norms applicable between the parties at the time of

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the dispute. Also, international tribunals would comply with the duty of avoiding non liquet, since the party challenging the application of current law needs to positively demonstrate the existence of applicable norms at the time surrounding the judicial facts. This assumption would also apply to current treaty law, even if not signed by the parties to the dispute. If it is assumed that the treaty merely codifies already existing customary rules dating back to the time surrounding the judicial facts. The legal basis for this shift in the assumption lies in the doctrine of intertemporality itself. The shift in the underlying assumption would give the ratio of the doctrine of intertemporality full effect and would not contradict the prohibition of retroactive application. The Cameroon v. Nigeria decision will be used to demonstrate the effects of shifting the assumptions underlying the doctrine of intertemporality in the manner described above. In the Cameroon v. Nigeria case, the ICJ needed to establish whether sovereignty over the Bakassi Penninsula was transferred from the Kings and Chiefs of Old Calabar to Great Britain through the “Treaty of Protection” signed between the two parties in 1884. Here modern international law with its rules regarding treaties and treaty interpretation would be applied unless a party can produce evidence of a different legal regime applicable between the parties. If modern international law would be applied, the Kings and Chiefs of Old Calabar would have to be regarded as a state until proven otherwise. The main questions regarding the content of the treaty then would be: 1. Can sovereignty over territory be transferred through a treaty? 2. If the first question is answered on the affirmative, was sovereignty transferred through said treaty? These questions would be answered by recourse to present law. It should be emphasised that present law would not be applied retroactively. A shift in assumption would take place – it would be assumed that present law governed the interaction of the parties to the dispute at the time in question. As stated, this assumption could of course be disproven by either of the parties.

III. Shifting the Relationship Between Intertemporality and Equity The present application of the doctrine of intertemporality in cases in which nonEuropean legal traditions need to be assessed turns a contentious proceeding into a situation of “différend”. Reconceptualising intertemporality’s relationship to equity could provide a solution to the problem.

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1. Equity in International Law In the domestic legal systems with an Anglo-Saxon tradition, equity is a firmly established principle.338 In the realm of international law however, equity holds various meanings, which need to be distinguished for the purpose of my argument. Alain Pellet in his commentary of Art. 38 of the ICJ-Statute listed the different dimensions of equity.339 In international law equity can be understood in the sense of Art. 38 (2) ICJ-Statute as the equivalent to ex aequo et bono, which can also be applied contra legem.340 Equity can also be understood as the principle filling lacunae in international law and therefore is termed equity praeter legem.341 Another category would be equity infra legem, as formulating the intrinsic attributes of legal rules.342 This category corresponds with equity intra legem, constituting the very content of a norm.343 However, equity in international law is not undisputed. Equity touches upon the delicate relationship between positive law and general considerations of justice.344 These two spheres can even pull towards different directions. The very nature and reason for having a legal order is predictability of outcome and consistence in the decision making process. General considerations of justice however operate on a more individual level and can stand in opposition to the need and want for predictable decisions. While equity is seen as a possible solution of solving unwanted outcomes of a rigid legal order by highlighting the individual justice at hand, its application also stirs up fears of judges creating law themselves. These concerns considered, international courts in general and the International Court of Justice in particular, are no strangers to the principle of equity. In its Frontier Dispute Judgement345 the ICJ has not only affirmed the existence of above mentioned categories of equity in international law, but explicitly applied equity infra legem.346 The ICJ does not apply equity as a form of abstract justice, but bases its application in

338 See, Janis, Mark Weston: The Ambiguity of Equity in International Law, BrookJIL 9, 7 (1983), p. 7 f. 339 See Pellet, Alain: Article 38, mn. 140. 340 Ibid. 341 Ibid. 342 Ibid. 343 Ibid. 344 For a good discussion of the problems of reconciling positive law and equity, see Lapidoth, Ruth: Equity in International Law, IsrLRev 22, 2 (1987); Lowe, Vaughan: The Role of Equity in International Law, AustYBIL 12 (1989); Janis, Mark Weston: The Ambiguity of Equity in International Law, BrookJIL 9, 7 (1983); Weil, Prosper: L’équité dans la jurisprudence de la Cour Internationale de Justice. 345 Frontier Dispute, Judgement, ICJ Reports 1986, p. 554 ff. 346 Ibid., para. 28.

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a rule permitting such – the application of equity needs to be embedded in the applicable law. In its Fisheries jurisdiction Case347 the court stated that “It is not a matter of finding simply an equitable solution, but an equitable solution derived from the applicable law”348.

In the North Sea Continental Shelf Case,349 the ICJ argued in the same vein that “[…] it is not a question of applying equity simply as a matter of abstract justice, but of applying a rule of law which itself requires the application of equitable principles”350.

Well aware of the inherent tension surrounding the principle of equity, the ICJ attempts to demonstrate that when equity is applied, it is still based on the applicable law and not on abstract justice. However, the ICJ has applied the principle of equity in its decisions more liberally. Alain Pellet argues that equity indeed is a principle on which the ICJ also relies to fill lacunae.351 The Court therefore, while acting with the utmost caution when doing so, applies the principle of equity beyond situation where it is being derived from the applicable law.352 A prominent example of the ICJ applying equity beyond the realm of the applicable law is its invocation of “elementary considerations of humanity” in the Corfu Channel Case.353 Even when invoking such considerations, which not only echo equity but lie at its very core, the Court is hesitant to admit that it is thereby going beyond the realm of applicable law and formal sources doctrine. It seeks to embed “elementary considerations of humanity” within the realm of custom or at least general principles of law.354 However, it is more than unclear where to methodologically place “elementary considerations of humanity”. The literature and commentary on “elementary considerations of humanity” is inconclusive as to where to methodologically place it.355 The ICJ when invoking equity (expressly or implicitly) stresses the point of deriving it from the applicable law in question; even when commentators agree that the 347

p. 3 ff. 348

Fisheries Jurisdiction (United Kingdom v. Iceland), Judgement, ICJ Reports 1974,

Ibid., para. 78. North Sea Continental Shelf, Judgment, ICJ Reports 1969, p. 3 ff. 350 Ibid., para. 85. 351 Pellet, Alain: Article 38, mn. 142 f. 352 “This measure of caution has never prevented the Court from finding grounds for its decisions in considerarions based on equity, quite often by just asserting its conclusion without giving detailed explanations”, Pellet, Alain: Article 38, mn. 144. 353 Corfu Channel Case, Judgment, ICJ Reports 1949, p. 4 ff., 22. 354 For an argument in favor of the Court materially going beyond the sources enshrined in Art. 38 ICJ-Statute, yet attempting to argue that it remained within, see Pellet, Alain: Article 38, mn. 144 ff. 355 For a good discussion on the different opinions on the question where “elementary considerations of justice” lie within the doctrine of sources, or if they even have a place within the realm of positive law, see Zagor, Matthew: Elementary considerations of humanity, p. 266 f. 349

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court materially goes beyond the scope of the applicable law and even the classical sources doctrine. This exemplifies the tension inherent in the concept of equity and the seeming need for the court to shield itself against possible accusations of “creating” law. 2. Equity in Time If indeed courts insist on basing and deriving any application of equity on existing law, there would be particular problems in contentious cases with an intertemporal dimension. a) Filling the Gap with Equity The argument supported in this thesis is that in contentious proceedings with an intertemporal dimension in which a European and a non-European legal perception clash, no underlying law exists, which is applicable between the parties and could serve as a means to resolve the dispute. Therefore, insisting on equity infra legem is not an option. Attempting to derive equity solely from a particular norm is a futile undertaking if there is no legal order governing the dispute; or the legal rules which could govern the dispute are unascertainable. Following this premise, other dimensions of equity may be invoked for above-mentioned disputes. One reason for which the application of other dimensions of equity, particularly equity praeter legem, in cases with an intertemporal dimension and a non-European legal tradition could be justified lies in the agreement of peaceful dispute settlement. This reason would also satisfy voices in literature, calling for an authorization when equity is applied praeter legem.356 Agreeing to peacefully settle a dispute through judicial means entails the implicit agreement to permit the court to apply the principle of equity if the issue cannot otherwise be resolved. Since international adjudication is not compulsory, each state party has to actively submit to the jurisdiction of international courts and tribunals such as the ICJ. In contrast to compulsory jurisdiction, both parties have explicitly expressed the desire for resolution of the dispute. This pro-active and consensual element of international adjudication is a strong indication for the willingness of having the dispute resolved by the court or tribunal, even if concrete rules governing the (historic) situation are lacking. As Prosper Weil stated: “Jurisdiction is not only a right – it imposes on the tribunal the duty to exercise the authority the parties have granted to it.”357

356 For a discussion of the question if special authorization is needed when equity is being applied praeter legem, see Lapidoth, Ruth: Equity in International Law, IsrLRev 22, 2 (1987), p. 173 f, with further references. 357 Weil, Prosper: “The Court Cannot Conclude Definitively …” Non Liquet Revisited, ColumJTransnatlL 36 (1998), p. 115.

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This is also in line with the duty in international law to avoid non liquet, which is also justified by recourse to the voluntary nature of international adjudication as discussed above. There is a counter argument to be made in the specific case of the ICJ by pointing to Art. 38 (2) ICJ-Statute. If the court can only decide ex aequo et bono with the explicit consent of the parties, implicit consent to the application of equity through the agreement therefore cannot be presumed – express consent for invoking equity is needed. This counter argument however fails to recognize that a decision ex aequo et bono can be rendered contra legem. Accepting that the agreement of the state parties to settle their dispute judicially entails approval of the court deciding on the basis of equity if applicable law is lacking cannot be equated to agreeing to let the court decide ex aequo et bono which would also entail a possible decision contra legem. It can however mean going beyond the scope of equity infra legem. The concern of the ICJ and single commentators of applying equity in general and to equity praeter legem in particular, is blurring or even crossing the lines of the separation of powers. But as seen above, the agreement between the parties to settle the dispute peacefully before an international court, obliges this court to render a decision and not – even in absence of a clear and precise rule applicable – pronounce non liquet. Also, the very reason for the proposal of applying equity to contentious proceedings with an intertemporal dimension is the lack of any legal order which could provide stability or predictability. The lack of any legal foundation regulating the relationship of the historic parties eliminates concerns of sacrificing predictability. Also, since the belief of the historic parties, from their historic point of view, in a predictable stable order cannot be shattered through a future application of equity, the tensions between a stable legal order and individual justice are eased. b) The Point in Time from which Equity is Assessed If applying equity in disputes with an intertemporal dimension revealing a material gap in the (historic) law is being accepted, the question perspective equity needs to be applied – from the perspective of the time which surrounds the judicial facts or the time in which the dispute is being litigated – arises. Does the doctrine of intertemporality itself provide an answer? In an attempt to answer these questions one has to again look at the structure and ratio of the doctrine of intertemporality. As explained, the doctrine of intertemporality prohibits retroactive application of law, obliging courts to identify the law applicable at the time which surrounded the judicial facts. This might tempt making the prima facie conclusion that the doctrine of intertemporality not only favors, but forces the application of equity from the historic standpoint, the point in time surrounding the judicial facts. This conclusion however would demonstrate a rather narrow understanding of equity. There is a strong case to be made for the principle of equity to transcend time.

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Presently, equity is applied in a time-transcending manner in specific legal contexts. The most prominent example is the principle of intergenerational equity.358 Intergenerational equity is a principle of international environmental law, which states that present generations, while entitled to benefit from the environment and its natural resources, need to conserve it for future generations.359 While this is a principle limited to international environmental law, it entails an element instructive for the question at hand. It obliges present subjects to take into consideration future (unknown) generations. Therefore the principle of intergenerational equity transcends time – and the notion of equity is the enabling factor. Therefore international law is no stranger to the notion of equity transcending time. The aspect of the principle of equity transcending time and therefore enabling its application from the present standpoint is of great importance. As concluded above, the present conceptualization of international law’s history and the application of this notion by courts lead to a situation of “différend”; a situation “in which to accept a method or criterion of settlement is already to have accepted the position of one of the disputing sides”360. Or in the words of Jean-François Lyotard, who has coined this notion: “A case of ‘différend’ between two parties takes place when the ‘regulation’ of the conflict that opposes them is done in the idiom of one of the parties while the wrong suffered by the other is not signified in that idiom.”361 Applying equity from a present perspective is a way of eliminating and overcoming the situation of “différend”, which arises when international courts and tribunals attempt to avoid pronouncing non liquet through a Eurocentric conceptualisation of historic international law. It is also more in line with the knowledge gained about different historic societies. Since knowledge cannot be unknown, it is counter-intuitive to attempt arriving at an equitable solution from the historic point in time. Applying equity from the present enables taking into account the diversity of legal histories and traditions including their proper contextualization history. Also, finding a solution which equitably resolves the dispute the parties are presently litigating can increase acceptance of the decision by the parties. International legal scholarship has neglected the issue of intertemporality.362 Yet, modern international legal scholarship is slowly developing a new outlook on the 358

For the concept of intergenerational equity, see Brown Weiss, Edith: Intergenerational Equity in International Law, ASIL 81 (1987). 359 Ibid., p. 127. 360 Koskenniemi, Martti: The Politics of International Law, p. 183. 361 “A la difference d’un litige, un différend serait un cas de conflict entre deux parties (au moins) qui ne pourrait pas être tranche équitablement faute d’une règle de jugement applicable aux deux argumentations. Que l’une soit légitime n’impliquerait pas que l’autre ne le soit pas. Si l’on applique cependant la même règle de jugement à l’autre pour trancher leur différend comme si celui-ci était un litige, on cause un tort à l’une d’elles.”, Lyotard, Jean-François: Le Différend, p. 9. 362 See Krause-Ablaß, Wolf-Dietrich: Intertemporales Völkerrecht, p. 13, in which he describes the doctrine of intertemporality as a neglected field of international law.

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history, or histories, of their discipline.363 Of the scholars reflecting upon the history of international law and its imperial and colonial origins some could be described as forming a decentralized network: Third World Approaches to International Law (TWAIL).364 This group of scholars of international law’s (imperial) history argue that the colonial and imperial past is not only present in modern international law, but very much ingrained in it.365 From this perspective, an equitable solution from the present standpoint seems favorable to decide and resolve disputes with an intertemporal dimension. It would entail the element of overcoming the past and shaking of the imperial ghosts which are haunting present international law. Disputes which are presently litigated would not be stained by applying a Eurocentric, or even colonial framework to resolve the dispute, which in the case of Cameroon v. Nigeria led to such vehement criticism from within the court in several separate and dissenting opinions. Even the faction arguing that present international law has overcome its imperial past and presently has truly achieved universal status366 should be in favor of refraining from making recourse to Eurocentric frameworks in order to circumvent factually existing gaps in the material historic law. This would prove its universal, non-biased character by applying equity from a present standpoint. Edward McWhinney, the Canadian international lawyer was a staunch critic of a narrow understanding of the time-dimension in the doctrine of intertemporality. He was of the opinion that mechanisms were needed to bridge the gap of “classic”, Eurocentric international law and modern “universal” international law and suggested the following: “The contemporary acceptance of the relevance of the Time dimension in International Law stems from the increasing latter-day recognition of the historical relativism of so many rules of ‘classical’ International Law. These rules arose, of course, in particular eras in World history, in response to particular societal conditions, needs, and expectations, as perceived and recorded by the dominant political forces of those times. It is on this basis that so much of 363

Results of this research include inter alia Fassbender, Bardo/Peters, Anne (eds.): The Oxford Handbook of The History of International Law; Anghie, Antony: Imperialism, Sovereignty and the Making of International Law; Orford, Anne (ed.): International Law and its Others; Toufayan, Mark/Tourme-Jouannet, Emmanuelle/Ruiz Fabri, Hélène (eds.): International Law and New Approaches to the Third World: Between Repetition and Renewal. 364 For a good overview of the structure and aims of TWAIL, see Gathii, James Thuo: TWAIL: A Brief History of its Origins. 365 See inter alia Ghatii, James Thuo: Neoliberalism, Colonialism and International Governance: Decentering the Law of Governmental Legitimacy, MichLRev 98 (2000), p. 2020; Anghie, Antony: Imperialism, Sovereignty and the Making of International Law; Kämmerer, Jörn Axel: Introduction. Imprints of Colonialism in Public International Law: On the Paradoxes of Transition, JHistIntlL 18 (2016); Koskenniemi, Martti: Histories of International law: Dealing with Eurocentrism, Rg 19 (2011); Orford, Anne: The Past as Law or History? 366 For an argument in favor of international law having overcome imperial tendencies see Roth, Brad Richard: Governmental Illegitimacy and Neocolonialism: Response to Review by James Thuo Gathii, MichLRev 98 (2000).

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‘classical’ International Law – both old treaties and old rules of customary International Law – is now rejected or questioned by the ‘new’ countries of the Third World as ‘Western’ or ‘Eurocentric’ in Character and chence [sic] as no longer authoritative and binding in the new, more richly pluralistic and inclusive World Community of today that has transcended its original, narrowly Western political base […].”367

This argument – the deficit in material justice when historic rules, which reflect particular circumstances at particular times, are embedded into the present, with its own societal conditions – is the basis for the argument laid out in the following section. 3. The Argument for Applying Equity in Contentious Proceedings with an Intertemporal Dimension The application of the doctrine of intertemporality aims at satisfying concerns of material justice. No subject should be bound to rules not in existence at the time in question. However, as can be seen in the argument brought forward by McWhinney, when historic rules are available, they often reflect a historic political consensus which does not reflect the present order. Accepting such rules for the settlement of a dispute leads to a situation in which two conflicting and maybe even contradicting legal views – the historic legal perspective contra the present legal perspective – need to be reconciled. The problem is the strict prohibition of any reconciliation of these two opposing views by the doctrine of intertemporality. The doctrine rather obliges the parties and the international community to accept this conflict of legal perspectives. When the historic law applicable between the parties is ascertainable, the scale weighing the disadvantages of binding subjects to law they could not have any knowledge of and the disadvantages of accepting the conflict of the different, if not opposing legal perspectives of different eras, might tilt towards the former, making the strict application of the doctrine of intertemporality advisable.368 If one party acted according to the law of the time, that party should not fear consequences in the future from acting lawfully. The circumstances scrutinized in this thesis however differ. Here situations are analysed in which regionally and culturally different legal regimes collide. Again, in such distinct situations the applicable law is either unascertainable or inexistent. If the fact that the law is unascertainable or inexistent is being accepted, the assessment of possibilities to reconcile the legal views of different eras changes. Considerations which might lead to favoring the disadvantages of obliging the parties of a dispute and the international community to accept the conflict of present legal views and historic legal views no longer apply. Since no historic law governing the interactions 367

McWhinney, Edward: Time Dimension, p. 195. However, instances in which historic law between parties can unequivocally be ascertained under the methodological standards discussed in this thesis are rare, if not inexistent. 368

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exists, manufacturing rules from a Eurocentric perspective perpetuates overcome understandings of the international legal order. This not only has detrimental effects of the culturally foreign legal perspective, but on the present international legal order as a whole. Applying the principle of equity therefore is an opportunity not only to resolve the material legal conflict, but to pacify perspectives of newer and older members of the international community. 4. Conclusion Equity is firmly rooted in international law. Yet, there is debate amongst scholars and commentators not only with regards to the limits of equity, but also the legal source for its application by international judicial bodies. Judicial bodies, such as the ICJ however have applied and still apply equity in their decisions. In contentious proceedings with an intertemporal dimension in which legal perspectives of European and non-European societies clash, equity can be a solution for dealing with the problems arising in such proceedings. If the law is either unascertainable or non-existing, it obviously cannot be applied. Circumventing methodological problems in the ascertainment process by recourse to a Eurocentric perspective and understanding of international law and its history leads to a situation of “différend”. It is therefore advisable – and methodologically justifiable – for international courts and tribunals to apply equity as a means of filling the material (historic) gap in the law.

IV. The Possibility of Choosing a Legal Order The constellations which have been parsed so far are such in which the law of the non-European party is not ascertainable. This could be due to the lack of methodological tools to pierce the cultural membrane of a foreign people, or due to the lack of documentary, historic evidence to reconstruct the given society and its rules and norms. The scenario which has not been thoroughly discussed yet is the situation in which the law of the non-European party can be firmly ascertained. In constellations in which sufficient material and evidence are available to ascertain the relevant historic rule from the non-European perspective the question of non-existent law due to the polycentricity of the historic international legal order arises is posed from a different angle. If indeed the law of the non-European party can be firmly ascertained then a choice between the European and the non-European legal orders is presented, even in the absence of a legal order regulating the interaction between the two regional orders.369 The question therefore is whether one legal order can take primacy over the 369 This is the difference to Private International Law, which itself provides rules in case of collision of different legal orders.

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other. Kämmerer contends that in an abstract sense, no legal order could, and even did, claim rule over the other.370 While the author agrees that this indeed is true in an abstract sense – no regional system of “international law” can be set above another –, the situation might differ in the concrete. Actions of the parties involved the choice of method of interaction between them and statements of the parties could indicate a choice regarding the exclusive application of one of the legal orders. No legal rules which could serve as a foundation for legally scrutinizing such a choice exist, equity in general and equity praeter legem in particular. As a fundamental consideration of justice, the will of the parties needs to be appraised. Application of the doctrine of intertemporality in these situations therefore may entail a mechanism to choose between different – and possibly conflicting – legal orders. Application to historic circumstances reveals that the process is not a merely academic exercise. Actions of the parties involved – if expressed statements of choice are lacking – need to indicate the choice of one legal order over the other. While the choice against one’s own legal order might be possible, such a choice should not be lightly claimed. A choice in favour of the culturally different legal order would presuppose awareness of the existence of differing legal order and awareness of the possibility to choose. Also a choice, if not to lead to a dissent, needs to entail knowledge of the (foreign) legal order chosen. In actual historic encounters these criteria are not met. While the cognition of differing legal traditions might be intuitive when interacting with a culturally foreign people, knowledge of the foreign legal order cannot be presumed. In such encounters knowledge of the other legal order, their concepts used, their processes of dispute resolution are non-existent.371 It can be concluded that while when applying the doctrine of intertemporality, one has to determine whether a choice of legal orders has taken place, such a determination is rather theoretical, since in historic practice the members of each legal order were lacking sufficient information of their respective counterpart’s order.372

370 Kämmerer, Jörn Axel: Introduction. Imprints of Colonialism in Public International Law: On the Paradoxes of Transition, JHistIntlL 18 (2016), p. 241 f. 371 For the argument of mutual incoprehensability of legal orders in said situations see Kämmerer, Jörn Axel: Introduction. Imprints of Colonialism in Public International Law: On the Paradoxes of Transition, JHistIntlL 18 (2016), p. 242. 372 One historical occasion apt to serve as an example is the 1887 Treaty of Uccialli between Italy and Ethiopia. The Italian text referred to a “Treaty of Protection”, while the Ethiopian Amharic text termed the treaty one of “friendship”. Even in a literal society as the Ethiopian, which also was a Christian nation, the knowledge of the respective legal orders was not sufficient to bridge the gap necessary to conclude a treaty. For more information on the Treaty of Uccialli, see Jones, Arnold Hugh Martin/Monroe, Elizabeth: A History of Ethiopia, p. 139 f.

I. Conclusion The doctrine of intertemporality is understudied in international law. The doctrine in its present state has been formulated by Max Huber in the Island of Palmas Arbitration. There is no consensus among scholars on where to precisely fit the doctrine of intertemporality into the sources doctrine. Most commonly the doctrine is described as a general principle of international law. The doctrine is applied when judicial facts lying in the past are being litigated in the present. On one hand it entails the prohibition of retroactively applying present law to historic circumstance. And on the other hand it obliges the judicial body to ascertain the law contemporary to the judicial facts. It is the second aspect, the obligation to positively ascertain the law, applicable for both historic parties, is what is problematic in its application. Especially in situations in which a European and a non-European people have interacted, ascertaining the legal basis of the interaction is challenging. It is the fundamental relationship of courts, their judgement and history that already is problematic. Any court investigating historic law needs to also determine the historic facts and context of the case. The court thereby conclusively determines what history was, making methodological choices with consequences for the following steps of the ascertainment process. The inquiry by courts into international legal history is guided by a preconception of what constitutes international law and the subjects thereof: international law was developed in Europe and was expanded globally through the colonial enterprise. Other regions and entities therein might have had some practices, but these practices could by no means be termed “international law”. This delineation of the subject of research already excludes regions and peoples from the realm of “international law”. This delineation and hence exclusion however does not stand up to a deeper methodological analysis. While aiming at a juridical outcome, the methodological toolkit of historiography, especially “Ideengeschichte”, does not make possible concrete and precise assertions regarding a particular (legal) belief of an entire people at a particular point in history. This is even more the case if a historical (legal) belief of a culturally foreign illiterate people is being investigated. This is due to the unfamiliarity of the culture under scrutiny and to the lack of reliable documented evidence. Historians of oral tradition have developed methodologies of fieldwork to inquire into the history of an oral people, they themselves however are very cautious of the accuracy of the results produced.

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From a juridical perspective it is of utmost difficulty to ascertain historic normativity. Neither the question of historic legal sources, nor the question of historic subjects can be answered without presuppositions. These presuppositions are not legally compelling but rather arbitrary. Presently, international courts deduct them from European historic phenomena. What happened in historic Europe is practically used as a stencil to investigate other (regional) legal orders. If their internal composition and external actions do not live up to the “standard” or threshold set by historic European practice, lack of normativity is the consequence. The disregard for the problems stated by the courts and their unwillingness to implement solutions has tangible consequences. In its Cameroon v. Nigeria decision the ICJ did not appraise the problems arising when ascertaining the law applicable between a European and a non-European entity. A treaty between Great Britain and the Kings and Chiefs of Old Calabar, which permitted Great Britain to extend to the Kings and Chiefs “and to the territory under their authority and jurisdiction, [the Queen’s] gracious favour and protection” and which also was termed “Treaty of Protection” was interpreted by the court to have granted Great Britain sovereignty over said territories on the basis that such local rulers were not regarded as states. No attempts were made to ascertain the legal framework of the Kings and Chiefs of Old Calabar by the court. This thesis contends that the hesitation of international courts to also ascertain historic legal rules “from the native’s point of view” lies in the international law’s prohibition of finding non liquet. Ascertaining legal rules governing oral, illiterate people is close to impossible. But even if such rules can be ascertained, courts are met with another problem. The historic international legal order was polycentristic, meaning a multitude of (regional) legal orders existed with none claiming global rule. Therefore ascertaining a rule governing the interactions of two differing legal orders is inconceivable. While the problems applying the doctrine of intertemporality are manifold, a reconceptionalisation of the doctrine would entail much needed solutions. The underlying assumption of historic law differing from present law should be reversed, which would enable the application of present law unless evidence for applicable historic law can be produced by one of the parties. Also equity and elementary considerations of justice can be used in situations in which the law applicable between different historic legal orders is non-existent, practically solving the disputes by recourse to said principles. The Eurocentric method of ascertaining historic rules by viewing the doctrine of intertemporality merely as a tool to vindicate the European position cannot continue. “In case of a differend, everything is at stake and the context is always part of the dispute itself.”373

373

Koskenniemi, Martti: The Politics of International Law, p. 183.

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III. Other Publications Van der Linden, Mieke: The Inextricable Connection between Historical Consciousness and International Law: New Imperialism, the International Court of Justice and Its Interpretation of the Inter-temporal Rule, in: Binder, Christian/Pazartsis, Photini/Prost, Mario (eds.): European Society of International Law. Conference Paper Series 2/2014. [cited as: Van der Linden, Mieke: The Inextricable Connection between Historical Consciousness and International Law]

IV. Table of Cases European Court of Justice Judgment of 12 July 1957, Algera – EU:C:1957:7

International Court of Justice Aegean Sea Continental Shelf, Judgment, ICJ Reports 1978, p. 3 ff. Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Judgment, ICJ Reports 2010, p. 639 ff. Arbitral Award of 31 July 1989, Judgment, ICJ Reports 1991, p. 53 ff. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, ICJ Reports 2005, p. 168 ff. Case concerning Right of Passage over Indian Territory (Merits), Judgement ICJ Reports 1960, p. 6 ff. Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, ICJ Reports 1982, p. 18 ff.

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Permanent Court of International Justice [1929], PCIJ Series A, Nos. 20/21, Barcelona Loans Case [1927] PCIJ Series A, No. 9, The Case of the SS Lotus

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VI. Online Sources CARICOM Reparations Commission – http://caricomreparations.org/ [last accessed: 06. 02. 2019] Crawford, James: State, Max Planck Encyclopedia of Public International Law – http://opil.oup law.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1473?rskey=HgQ Hag&result=3&prd=EPIL [last accessed: 14. 03. 2018] CIA World Factbook – Liechtenstein: https://www.cia.gov/library/publications/the-world-fact book/geos/ls.html [last accessed: 31. 01. 2019]

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Subject Index burden of proof

67 ff.

Caribbean 19 CARICOM 19 Carl Schmitt 27 China 19

Nama see Ovaherero and Nama non liquet 78 ff. non-retroactivity 14 f. North Atlantic Treaty Organization

equity 90 ff. Eurocentrism 26 France genocide

80

Herero see Ovaherero and Nama historiography 32 ff.

Liechtenstein 53 litigation 67 f.

23 ff.

27

Oral Tradition 38 ff. Ovaherero and Nama 19

19

Ideengeschichte ius cogens 14

meta-law 13 meta-sources 64 f. methodology in international law Monaco 53

33 ff.

polycentristic legal order 24, 52, 59 f., 64, 66, 77, 82, 85, 87, 98, 101 reparations

19

San Marino 53 Slave Trade 19 transitional justice

21 f.