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The Temporal Jurisdiction of International Tribunals by Gallus, Nick (4th May 2017)

7 The Effect of Acts before the Main Temporal Limits on the Determination of Breach through Later Acts

From: The Temporal Jurisdiction of International Tribunals

Nick Gallus

Subject(s):
Time limitations (and jurisdiction) — International courts and tribunals, decisions — International courts and tribunals, jurisdiction — International courts and tribunals, powers — Extinctive prescription (and admissibility)

(p. 113) The Effect of Acts before the Main Temporal Limits on the Determination of Breach through Later Acts

A.  Introduction

7.01  The previous two chapters explored the importance of acts before the entry into force of the obligation, the acceptance of the tribunal’s jurisdiction and the period of limitation on the determination of the tribunal’s temporal jurisdiction over later acts. The chapters explained that some tribunals have found that in certain circumstances those prior acts can prevent the tribunal from taking jurisdiction over later acts.

7.02  Acts before the temporal limits described in this book are important for another reason: they can help to determine if later acts breach the obligation. This chapter addresses the effect of acts before the entry into force of the obligation allegedly breached, before the acceptance of the tribunal’s jurisdiction, and before the period of limitation, on the decision whether or not a later act has breached the obligation.

7.03  The chapter begins in section B by explaining that tribunals have accepted that they can take into account acts before the main temporal limits when (p. 114) deciding if later acts breached an obligation. Section C demonstrates that there is little uniformity on the degree to which a prior act has been taken into account when the prior act is part of a series, or part of a single act, that continues past the critical date.

B.  Tribunals Have Taken into Account Acts before the Main Temporal Limits When Deciding if Later Acts Breach an Obligation

7.04  International tribunals have considered acts that occurred before each of the temporal limits previously described in this book to help determine if there was a breach through later acts.

1.  Acts before the entry into force of the obligation allegedly breached

7.05  The International Law Commission (ILC)1 and several tribunals2 have expressly acknowledged that tribunals can take into account acts that occurred before the entry into force of the obligation allegedly breached. The principle has been applied by many tribunals, including the European Court of Human Rights (ECtHR) in Harutyunan v Armenia, where it considered torture suffered by the applicant before the European Convention on Human Rights (ECHR) entered into force for Armenia because ‘[e]‌ven if the Court lacks competence ratione temporis to examine the circumstances surrounding the ill-treatment of the applicant … it is nevertheless not precluded from taking [it]… into account …’.3 Similarly, the African Commission on Human (p. 115) and Peoples’ Rights in Malawi Africa Association and Others v Mauritania 4 found that detention of twenty-one people after the Charter on Human and Peoples’ Rights entered into force breached the Charter obligation that ‘no one may be arbitrarily … detained’ because the trials and convictions before that date ‘would have led to violation of [the African Charter] had they taken place after’.5

2.  Acts before the acceptance of the tribunal’s jurisdiction

7.06  Several tribunals have expressly recognized that they can take into account acts before the tribunal’s jurisdiction was accepted.

7.07  Even though its temporal jurisdiction was confined to acts in 1994, the Appeals Chamber for the International Criminal Tribunal for Rwanda (ICTR) stated in Nahimana that: ‘a Trial Chamber may validly admit evidence relating to pre-1994 acts’.6 The principle recognized by the Appeals Chamber has been applied by many international tribunals, including the Extraordinary Chambers in the Courts of Cambodia. Its jurisdiction was confined to events after the Khmer Rouge took power in Cambodia, but a Chamber examined events before this date in the case against ‘Brother Number Two’, Nuon Chea (Pol Pot’s immediate subordinate and the country’s former President), to understand the context of the government’s policies.7 In the case against ‘Duch’, head of the notorious S-21 prison where many victims of the Khmer Rouge were tortured and killed, the Chamber examined earlier acts at other prisons to understand the accused’s role at S-21.8

(p. 116) 7.08  In the Gatete decision, the Appeals Chamber of the ICTR confirmed that, in particular, ‘a Trial Chamber may admit and rely on evidence relating to pre-1994 acts where such evidence is aimed at … establishing by inference the elements (in particular, criminal intent) of criminal conduct occurring in 1994’.9 The tribunal applied this principle in Bagosora. Théoneste Bagosora was a senior Rwandan military officer at the time of the 1994 genocide who was charged with conspiracy to commit genocide, together with genocide and crimes against humanity, among other crimes. In the course of convicting Bagosora the tribunal examined his 1992 request for weapons for distribution to militia because that fact ‘may tend to show the existence of an ongoing criminal plan’.10 The tribunal also considered evidence that in 1990 Bagosora appeared to use a list to arrest ‘suspicious looking Tutsis’, some of whom were later beaten to death.11

7.09  The International Criminal Court also relied on events before the acceptance of its jurisdiction to understand the intent behind later acts in the case concerning Thomas Lubanga Dyilo.12

7.10  The accused was a rebel leader trying to seize power in Ituri, a district in the north-east of the Democratic Republic of Congo. He was accused of committing war crimes by recruiting and using child soldiers. When convicting Lubanga, the Court examined events before the Court’s jurisdiction was accepted to help establish that there was a ‘common plan’ to raise an army to seize power and, therefore, the accused had the necessary mental element to commit the war crime. The Court noted that: ‘[a]‌lthough these events fall outside the period covered by the charges and are outwith the temporal jurisdiction of the Court, they provide critical background evidence on the activities of this group, and they help establish the existence of the common plan before and throughout the period of the charges’.13

(p. 117) 7.11  Tribunals have not imposed limits on which facts that fall before their jurisdiction was accepted can be taken into account. Augustin Ngirabatware was Rwandan Minister of Planning at the time of the mass killing of the Tutsi ethnic group in 1994. He was charged before the ICTR with genocide, complicity in genocide, and conspiracy to commit genocide, among other crimes. The prosecution sought to rely on evidence that in 1993 the accused had delivered a hate speech against Tutsis, distributed weapons, and participated in the planning of attacks on Tutsis. The defence argued that this evidence was inadmissible because the temporal jurisdiction of the tribunal was confined to events occurring in 1994 and the evidence did not fulfil any of the three specific purposes for which it alleged pre-1994 evidence could be admitted: clarifying a given context, establishing the elements of criminal conduct which did occur in 1994, or demonstrating a deliberate pattern of conduct. The tribunal rejected the motion14 and held that it could consider the 1993 evidence because it was ‘relevant’, had ‘probative value’, and ‘may serve to clarify a given context or a pattern of conduct’.15

3.  Acts before the period of limitation

7.12  Finally, the ability to consider acts outside the period of limitation has also been recognized.

7.13  In Apotex v United States of America the tribunal noted that: ‘any claim that these judicial decisions [falling within the three year period of limitation of the North American Free Trade Agreement] constituted a breach of the [Agreement] would require at least some consideration of the prior administrative and judicial decisions’.16 Similarly, in Clayton v Canada, the investment treaty tribunal stated that:

While Article 1116(2) bars breaches in respect of events that took place more than three years before the claim was made, events prior to the three-year bar, however, are by no means irrelevant. They can provide necessary background or context for determining whether breaches occurred during the time-eligible period.17

(p. 118) C.  The Weight Given to Acts before the Main Temporal Limits When Deciding if Later Acts Breach an Obligation

7.14  Although tribunals have universally agreed that they can take into account events outside the period of their temporal jurisdiction when deciding on a breach through an act within, there has been less consistency regarding the weight given to those prior events. This has particularly been the case when tribunals have considered earlier acts that were closely related to later acts, such as when the prior act was part of a series of acts that affected the claimant (examined in sub-section 1 below) or the initial part of a single act that continued (examined in sub-section 2). In these circumstances, some tribunals have relied on the prior act so heavily that they have been accused of ignoring their temporal limits, while others have relied on those temporal limits to give the prior act no weight at all, as discussed in the following sub-sections.

1.  The initial acts in a series

7.15  Individuals and companies can be affected by isolated acts, such as an increase in tax, and also by a series of related acts, such as successive increases in the same tax. Just as individuals and companies have challenged isolated acts as breaching international obligations, so too have they alleged that a series of related acts had the same effect.

7.16  In 1923, a tribunal concluded that the South African Republic had breached its international law obligations through the cumulative effect of measures that prevented the American Robert Brown from mining for gold in the area of Witfontein (and thereby helped cause the Boer War and subsequent British annexation of South Africa):

[o]‌n the whole case, giving proper weight to the cumulative strength of the numerous steps taken by the Government of the South African Republic with the obvious intent to defeat Brown’s claims, a definite denial of justice took place … . All three branches of the Government conspired to ruin his enterprise. The Executive department issued proclamations for which no warrant could be found in the Constitution and laws of the country. The Volksraad enacted legislation which, on its face, does violence to fundamental principles of justice recognized in every enlightened community. The judiciary, at first recalcitrant, was at length reduced to submission and (p. 119) brought into line with a determined policy of the Executive to reach the desired result regardless of Constitutional guarantees and inhibitions.18

7.17  More recently, in Vivendi v Argentina, the French claimant successfully argued that Argentina breached its investment treaty obligations through the cumulative effect of several acts on the claimant’s concession to provide drinking water,19 including repeatedly and inappropriately challenging the quality of the water and discouraging the payment of invoices. The tribunal noted that: ‘[i]‌t is well-established under international law that even if a single act or omission by a government may not constitute a violation of an international obligation, several acts taken together can warrant finding that such obligation has been breached’.20

7.18  But what if the series of acts that affect the claimant straddle the beginning of a tribunal’s temporal jurisdiction? To what degree can the prior acts colour the tribunal’s understanding of the latter acts and influence its decision on whether those latter acts breach the obligation?

7.19  Chambers of the ECtHR have sometimes heavily relied on acts before its temporal limits when deciding if there was a breach through a subsequent act.

7.20  In Rosiński v Poland, also addressed in Chapter 6, the Court examined an allegation that Poland breached its obligation not to interfere with property through a land development plan adopted before the ECHR came into force for Poland and through a series of acts after that date. In rejecting Poland’s complaint that it had no temporal jurisdiction to hear the application, the Court observed that: ‘the applicant’s complaint is not directed against a single measure or decision taken before, or even after, [the date the Convention came into force]. It rather refers to continuous restrictions imposed on the (p. 120) exercise of his ownership and arising from various legal measures, adopted both before and after that date’.21 The Court then appeared to give the same weight to Poland’s conduct before and its conduct after the Convention came into force, observing that: ‘the applicant’s situation was affected by the local land development plan … because it provided for the future expropriation of his land’.22 The Court went on to say:

[T]‌he measures complained of, taken as a whole … in practice … significantly reduced the effective exercise of that right [to continue to use and dispose of the applicant’s possessions]. The applicant’s property rights thus became precarious and defeasible … . The Court therefore concludes that there was indeed an interference with the peaceful enjoyment of the applicant’s possessions.23

7.21  Judge Mularoni observed in his separate opinion that the majority of the Court did ‘not make any distinction between measures adopted before and after … ratification’.24

7.22  This comment could equally apply to the decision in Sovtransavto Holding v Ukraine. The applicant complained that Ukraine diluted his ownership in a company in a manner inconsistent with Article 1 of the First Protocol of the ECHR. Ukraine objected that the Court had no temporal jurisdiction because the dilution occurred in three equal stages, the first two before the Protocol came into force for Ukraine. The Court rejected this objection, holding that:

[T]‌he sequence of events taken as a whole created a continuing situation with which the applicant company still has to contend, as it has yet to receive adequate compensation. In these circumstances, the Court finds that the mere fact that some of the events material to the case occurred prior to the relevant date does not render the complaint under Article 1 of Protocol No. 1 incompatible ratione temporis. Nevertheless, the Court considers that on a strict construction of the generally accepted principles of international law, it may only exercise jurisdiction ratione temporis to examine the applicant company’s complaint under Article 1 of Protocol No. 1 in respect of the third stage of the process whereby its shareholding was reduced … However, it will take the events prior to 11 September 1997 into account when examining the complaint as a whole.25

7.23  That is, the Court recognized that Ukraine could not breach the obligation through actions that occurred before the obligation entered into force but (p. 121) indicated that the Court would take the earlier actions into account. However, the Court did not go on to distinguish between the stages of dilution that occurred before from those that occurred after when it found Ukraine breached the article. Instead, the Court simply noted that: ‘[f]‌ollowing repeated increases in that company’s share capital the percentage held by the applicant company was reduced from 49% to 20.7%’26 and that: ‘the manner in which the proceedings were conducted and ended, and the uncertainty in which the applicant company was left, upset the “fair balance” that has to be struck between the demands of the public interest and the need to protect the applicant company’s right to the peaceful enjoyment of its possessions’.27

7.24  In Papamichalopoulos, the ECtHR also heavily relied on acts that occurred before the beginning of the Court’s temporal ambit, as explained in Chapter 5. The applicants in that case alleged that Greece had breached its obligation to protect the enjoyment of property by gradually confiscating the applicant’s coastal land for use as a naval base and holiday resort for officers through actions before and after Greece accepted the Court’s jurisdiction on 20 November 1985. The Court referred solely to acts before that date when agreeing with the applicant.28

7.25  Mitav v Bulgaria is similar. The applicant had been detained for theft on two occasions and challenged the length of his detentions as a breach of the ECHR. The Court added the lengths of the detentions when deciding if there was a breach even though the first had ended before the Convention’s period of limitation.29

7.26  The Tecmed investment treaty tribunal also heavily relied on acts outside its temporal jurisdiction when finding a breach through acts within. In that case, the investor obtained a permit to operate a landfill in Mexico and then claimed that Mexico’s actions, including its ultimate failure to renew the permit contrary to representations on which Tecmed had relied, breached (p. 122) Mexico’s obligations not to expropriate without fair compensation and to treat foreign investors fairly and equitably.

7.27  The investor relied on Mexico’s actions before the treaty came into force and, in particular, on its failure initially to grant the investor a longer term permit.30 The tribunal considered these facts because ‘conduct, acts or omissions of the Respondent which, though they happened before the entry into force, may be considered a constituting part, concurrent factor or aggravating or mitigating elements of conduct or acts or omissions of the Respondent which took place after such date do fall within the scope of this Arbitral Tribunal’s jurisdiction’.31 For the Tecmed tribunal, ‘[w]‌hether it be conduct that continues in time, or a complex act whose constituting elements are in a time period with different durations, it is only by observation as a whole or as a unit that it is possible to see to what extent a violation of a treaty or of international law rises [sic] or to what extent damage is caused’.32 The tribunal applied these principles to rely on acts that occurred before the treaty came into force and found that Mexico had breached its obligations through the actions of Mexico’s agent, the National Ecology Institute (INE):

INE’s contradictory and ambiguous conduct at the beginning of the relationship between INE … and Tecmed before the entry into force of the Agreement has the same deficiencies as those encountered in such conduct during the last stage of the relationship, immediately preceding the Resolution. Thus, INE’s conduct during such time is added to the prejudicial effects of its conduct during the last stage, which breached Article 4(1) of the Agreement [which contained the obligation to provide fair and equitable treatment].33

7.28  The MCI and New Turbine v Ecuador tribunal gave less weight to events outside its temporal jurisdiction.

7.29  In that case, the claimants argued that Ecuador breached its treaty with the United States through a series of acts that began with Ecuador’s refusal, before the treaty came into force, to pay amounts owed under a contract. The claimants alleged that after the treaty came into force Ecuador refused to resolve the contractual dispute in good faith and harassed its employees.

7.30  The tribunal acknowledged that it could consider earlier acts ‘for purposes of understanding the background, the causes, or scope of violations of the BIT that occurred after its entry into force’34 and noted that, before this date, Ecuador allegedly refused to pay amounts owed under a contract. The tribunal then appeared to ignore this fact and examined only Ecuador’s conduct after that date, before concluding it did not amount to a breach of the treaty.35

(p. 123) 7.31  There is limited commentary on the impact of the initial acts in a series that occur before the period of a tribunal’s temporal jurisdiction but the ILC has addressed the effect of the initial parts of a ‘composite act’. Such acts are addressed in Article 15 of the Commission’s Articles on the Responsibility of States for Internationally Wrongful Acts:

Breach consisting of a composite act

  1. 1.  The breach of an international obligation by a State through a series of actions or omissions defined in aggregate as wrongful, occurs when the action or omission occurs which, taken with the other actions or omissions, is sufficient to constitute the wrongful act.

  2. 2.  In such a case, the breach extends over the entire period starting with the first of the actions or omissions of the series and lasts for as long as these actions or omissions are repeated and remain not in conformity with the international obligation.36

7.32  In its commentary to an earlier draft of Article 15, the Commission suggested that the effect of earlier actions or omissions that are part of a ‘composite act’ is limited:

[S]‌ome of the actions or omissions which in the aggregate would probably constitute an act conflicting with what is required by the international obligation invoked, may have occurred before the obligation was laid on the State … [In such a case] the only actions or omissions to be taken into consideration are those which occurred while the obligation was incumbent on the State. If these actions or omissions, taken together, although less than the whole are nevertheless sufficient by themselves to constitute an (p. 124) act prohibited by the obligation, it must be concluded that the obligation has been breached; if not, the opposite conclusion must be reached.37

7.33  The ILC went on to state:

To revert to the example of an obligation which prohibits the State from engaging in a discriminatory practice with regard to the admission of foreign nationals to certain professions, it seems evident that if, during the period for which the obligation was in force, foreigners have been denied admission to those professions in only one or two cases, there can be no question of a ‘discriminatory practice’ and, consequently, no breach of the obligation. This holds good even if a great many such cases occurred before the entry into force of the obligation for the State …38

7.34  This impact described by the Commission appears different to that attributed to the prior acts in Rosiński, Sovtransavto Holding, Papamichalopoulos, Mitav, and Tecmed, identified above.

2.  The initial part of a continuing act

7.35  Jurisprudence on the impact of the part of a single continuing act that occurred before an international tribunal’s temporal limits has also been mixed.39

7.36  Some tribunals have heavily relied on the first part of a continuing act. In Yağci and Sargin v Turkey, the applicants alleged that Turkey breached Article 5(3) of the ECHR, which states that detainees ‘shall be entitled to trial within a reasonable time’, by detaining them on 16 November 1987 and not releasing them until 4 May 1990. The Court agreed with the applicants, even though Turkey did not recognize the jurisdiction of the ECtHR until almost the end of this period, on 22 January 1990. The Court noted that: ‘when determining whether the applicants’ continued detention after 22 January 1990 was justified under Article 5(3) of the Convention, it must take (p. 125) into account the fact that by that date the applicants, having been placed in detention on 16 November 1987, had already been in custody for two years and two months’40 and held that the subsequent detention of three months and thirteen days breached Turkey’s Article 5(3) obligation.41

7.37  The European Court adopted a similar approach in Guber v Russia when finding a breach of Article 6(1) of the Convention, which states that: ‘[i]‌n the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time …’.42 The proceedings at issue in Guber lasted over six years, from 11 November 1996, when the applicant brought the claim, until 25 March 2003, when the appeal was dismissed. The Court noted that the Convention only entered into force for Russia on 5 May 1998 and, thus, ‘in the present case four years, ten months and twenty days fall within the Court’s competence ratione temporis’.43 However, the Court also noted that ‘in assessing the reasonableness of [that] time … account must be taken of the state of proceedings at the time, which by then had been pending for approximately one year and six months’44 and concluded that: ‘an overall period of over six years for one level of jurisdiction could not, in itself, be deemed to satisfy the “reasonable time” requirement in Article 6 § 1 of the Convention’.45 Hence, when concluding that the length of the proceedings was unreasonable, the Court did not appear to distinguish between the period before the Convention entered into force and the period after.

7.38  In Bennich-Zalewski v Poland the European Court found a breach of Article 6(1) through proceedings that started in 1991 and ended on 12 January 2001, partly on the basis that ‘the proceedings … remained practically dormant from 1991 to 1997’,46 even though Poland only accepted the Court’s jurisdiction from 1 May 1993.

7.39  Similarly, in Igariené and Petrauskiené v Lithuania the ECtHR found a breach of Article 6(1), partly through the delay caused by the Lithuanian courts’ ‘failure to assess all the relevant circumstances in the case’, even though this failure occurred before the Convention entered into force for Lithuania on 20 June 1995.47

(p. 126) 7.40  In these instances, the ECtHR relied on its ability to ‘take into account’ events before the ECHR entered into force, or a state accepted the jurisdiction of the Court, to find the state took an unreasonably long time to act. The Inter-American Commission on Human Rights adopted a similar approach in João Canuto De Oliveira v Brazil.48

7.41  The applicant in João Canuto De Oliveira v Brazil argued that the long delay in investigating the murder of labour union leader João Canuto on 18 February 1985 breached Article 8 of the American Convention on Human Rights, which states that ‘[a]‌ll persons have the right to be heard … within a reasonable period of time’ and Article 25, which states that ‘[a]ll persons have the right to a simple, prompt remedy to protect them against acts that violate their fundamental rights …’. The American Convention on Human Rights did not come into force for Brazil until much later, on 25 September 1992, but the Commission ignored this date and found that the delay since 1985 breached the Convention:

[t]‌he unjustified delay in both the police investigation and the procedures conducted by the Office of the Public Prosecutor, which amounted to a total of ten years … is a violation of Article 8 of the American Convention on Human Rights, in that it deprived the victim and his family of the right to obtain justice ‘within a reasonable time,’ as stated in those provisions, and of Article 25, which establishes that all persons are entitled to a ‘simple and speedy remedy.’49

7.42  The decision of the United Nations Human Rights Committee in Paraga v Croatia is similar.50 The Committee found that a delay from 1992 to 1999, before the applicant was tried for slander after calling the President a ‘dictator’, breached Croatia’s obligation in Article 14(3)(c) of the Covenant on Civil and Political Rights to try the application ‘without undue delay’, even though Croatia did not accept the Committee’s jurisdiction until 12 January 1996.51

(p. 127) 7.43  Investment treaty decisions in Chevron and in Walter Bau are consistent with these human rights decisions.

7.44  In Chevron the tribunal found that a delay of fifteen years to issue court decisions breached Ecuador’s investment treaty obligation, even though the treaty had only been in force for nine years.52

7.45  The claimant in Walter Bau v Thailand challenged Thailand’s delay in increasing tolls on the road built by the claimant to help reduce the city’s notorious traffic jams. The delay began in 1996 but the Germany–Thailand investment treaty did not enter into force until 2004. Nevertheless, the tribunal held that this eight-year delay breached the treaty as soon as it entered into force.53 That is, the tribunal wholly relied on the part of the continuing act that occurred before the obligation entered into force.

7.46  These decisions contrast with others that appear to have given less weight to the initial period of a continuing act. In Mõtsnik v Estonia, the applicant was charged before a local court with ‘satisfying his sexual desire in an unnatural manner’54 and attempted rape.55 He applied to the ECtHR, alleging that the proceedings against him were not concluded within a reasonable time, in breach of Article 6(1) of the ECHR. The Court noted that the proceedings started on 1 June 1994 and ended on 9 December 1998 but that the Convention only entered into force for Estonia on 16 April 1996.56 Addressing only the period after this date, the Court held that the delay was insufficient to breach the Convention.57

7.47  Two decisions involving Serbia are similar. In Skočajić and Bjelić v Serbia, the Court concluded that Serbia had not breached its obligation under Article 6(1) through a delay of three years after the Convention came into force but did not mention the additional four-year delay before that date.58 When considering a breach of the same Article in Nikolić-Krstić v Serbia, the Court stated that: ‘the [ten year] period before the ratification of the Convention by the respondent State … being outside the Court’s jurisdiction ratione temporis, has not been taken into account’ (although the Court went on to find that the ten-year delay within the Court’s jurisdiction was sufficient to establish a breach).59

(p. 128) 7.48  Commentary on the role of the initial part of a continuing act that falls outside a tribunal’s temporal limits has also been mixed. Professor Joost Pauwelyn advocated adding the previous period, so long as the state has not subsequently fulfilled its obligation. He argued that where the application alleges a failure to release or try a detainee within a reasonable time, the period before the obligation entered into force should be added if the state has still not released or tried the detainee at the time of the application.60 Pauwelyn claimed that this approach is consistent with the rule against retroactivity but gave no further reasons in support. Roberto Ago, as Special Rapporteur to the ILC’s Articles on the Responsibility of States for Internationally Wrongful Acts, also supported adding the previous conduct but did not explain why.61

7.49  Conversely, Max Sorensen argued against adding the earlier conduct on the ground that it is inconsistent with the rule against retroactivity62 and Eric Wyler objected to such addition in order to ensure consistency with the rule that elements of a composite act that occur before a treaty comes into force cannot be added to those that occur afterwards.63 The Institut de Droit International also rejected adding the two periods, resolving that: ‘any rule which relates to a certain period of time, or to the existence of a situation during a defined period, shall apply only to periods the initial and terminal dates of which lie within the time when the rule is in force’.64

(p. 129) 7.50  In his treatise on investment treaties, Professor Zachary Douglas advocated a middle ground when he argued that the period before a treaty entered into force should be added, but only when ‘the primary obligation includes a temporal factor as a constituent element for the breach’, as in Articles 5(3) and 6(1) of the ECHR.65 In these circumstances, he argued, ‘the factual question of how long the detainee has been detained can be answered without reference to the intertemporal principle’.66

D.  Summary

7.51  Claims that an act has breached an obligation frequently refer to earlier events that led up to that act. Indeed, it is often impossible properly to describe the challenged action without doing so. Hence, in Šilih v Slovenia the applicant could not have described for the ECtHR how Slovenia failed to investigate her son’s death properly without noting that her son had died. International tribunals have consistently taken into account such earlier events, even when they occurred before the tribunals’ temporal limits.

7.52  The weight given to such earlier events has been less consistent. Tribunals have given different weight to acts that occurred before the beginning of the tribunal’s temporal limits that were part of a series that extended beyond this date, as well as to the prior part of a single continuing act.

7.53  The consequences of this contrasting jurisprudence are significant since sometimes the earlier acts or part of an act will transform the later acts or act into a breach of the obligation. This means that parties to a dispute are unable to understand the merit of a potential challenge to an act or series of acts that straddle the beginning of a tribunal’s temporal jurisdiction. Similarly, states considering whether or not to sign on to a new obligation are uncertain if they will immediately breach that newly accepted obligation through part of a preceding continuing act or series of acts.(p. 130)

Footnotes:

1  James Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge University Press 2002) 134 (Crawford, ILC’s Articles on State Responsibility): ‘[t]‌he principle of the intertemporal law [does not] mean that facts occurring prior to the entry into force of a particular obligation may not be taken into account where these are otherwise relevant’.

2  See eg Técnicas Medioambientales Tecmed SA v United Mexican States, ICSID Case No ARB (AF)/00/2, Award (29 May 2003) [66] (Tecmed v Mexico); Mondev International Ltd v United States of America, ICSID Case No ARB(AF)/99/2, Award (11 October 2002) [70]; Ioannis Kardassopoulos and Ron Fuchs v Republic of Georgia, ICSID Case No ARB/05/18 and ARB/07/15, Award (3 March 2010); MCI Power Group LC and New Turbine Inc v Republic of Ecuador, ICSID Case No ARB/03/6 (31 July 2007) [93] (MCI Power Group v Ecuador); Walter Bau v Thailand, UNCITRAL (5 October 2007) [9.85] (Walter Bau v Thailand); Victor Pey Casado and the President Allende Foundation v Chile, ICSID Case No ARB/98/2, Award (8 May 2008) [611]; Judge Fitzmaurice’s separate opinion in Case concerning the Northern Cameroons (Cameroon v United Kingdom) (Separate Opinion of Judge Sir Gerald Fitzmaurice) [1963] ICJ Rep 15, 130.

3  Harutyunan v Armenia, App no 36549/03 (28 June 2007) [64].

4  Malawi Africa Association and Others v Mauritania, African Commission on Human and Peoples’ Rights, Comm No 54/91 (11 May 2000).

5  Ibid [104].

6  Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze v The Prosecutor (Judgment in Appeals Chamber) ICTY-99-52-A (28 November 2007) [315] (Nahimana v The Prosecutor). Nahimana was relied on in the decision of the Extraordinary Chambers in the Courts of Cambodia in The Prosecutor v Chea Nuon and Samphan Khieu (Trial Judgment) ECCC-2007-002/01 (7 August 2014) [fn 195] (The Prosecutor v Chea Nuon and Samphan Khieu): ‘The evidence discussed in this section is for the purpose of establishing the historical and factual context of events within the temporal jurisdiction of the ECCC. Such may include: clarifying a given context, establishing by inference the elements of criminal conduct within the temporal jurisdiction of the ECCC, or demonstrating a deliberate pattern of conduct’.

7  The Prosecutor v Chea Nuon and Samphan Khieu (n 6) [79]: ‘The events during the Democratic Kampuchea era must be understood within the context of events that preceded it and in particular the development of the Communist Party of Kampuchea …’.

8  The Prosecutor v Kaing Guek Eav alias Duch (Trial Judgment) ECCC-2007-001 (18 August 2007) [111], [115]. See also decisions of the Inter-American Court of Human Rights in Moiwana Village v Suriname (Judgment), IACtHR (Series C) No 124 (15 June 2005) [70]; Manuel Cepeda Vargas v Colombia (Judgment), IACtHR (Series C) No 213 (26 May 2010) [44]–[46].

9  Prosecutor v Jean-Baptiste Gatete (Decision on Defence Motion on Admissibility of Allegations Outside the Temporal Jurisdiction of the Tribunal) ICTR-2000-61-T (3 November 2009) [5]‌. See also Nahimana v The Prosecutor (n 6) [315]; Aloys Simba v The Prosecutor (Decision on Interlocutory Appeal Regarding Temporal Jurisdiction) ICTR-01-76-AR72.2 (29 July 2004) 3; The Prosecutor v Bagosora, Kabiligi, Ntabakuze and Nsengiyum va (Decision on Admissibility of Proposed Testimony of Witness DBY) ICTR-98-41-T (18 September 2003) [13] (The Prosecutor v Bagosora); and Crawford, ILC’s Articles on State Responsibility (n 1) 144.

10  The Prosecutor v Bagosora (n 9) [21].

11  Ibid [13], [26]–[27]. See also The Prosecutor v Akayesu (Judgment) ICTR-96-4-T (2 September 1998); Carsten Stahn, Mohamed El Zeidy, and Hector Olásolo, ‘The International Criminal Court’s Ad Hoc Jurisdiction Revisited’ (2005) 99 Am J Int’l L 421, 431.

12  The Prosecutor v Thomas Lubanga Dyilo (Judgment) [2012] ICC-01/04-01/06.

13  Ibid [1352]. See also The Prosecutor v Chea Nuon and Samphan Khieu (n 6) [725]; ST-AD GmbH v Republic of Bulgaria, UNCITRAL PCA Case No 2011-06, Award on Jurisdiction (18 July 2013) [308]; and Société Générale In respect of DR Energy Holdings Limited and Empresa Distribuidora de Electricidad del Este SA v The Dominican Republic, UNCITRAL, LCIA Case No UN 7927, Award on Preliminary Objections to Jurisdiction (19 September 2008) [55].

14  The Prosecutor v Augustin Ngirabatware (Decision on Defence Motion to Exclude Evidence Falling Outside the Temporal Jurisdiction of the Tribunal) ICTR-99-54-T (3 February 2011) [15].

15  Ibid [16].

16  Apotex Inc v United States of America, UNCITRAL, Award on Jurisdiction and Admissibility (14 June 2013) [333].

17  William Ralph Clayton, William Richard Clayton, Douglas Clayton, Daniel Clayton and Bilcon of Delaware, Inc v Canada, UNCITRAL, Award on Jurisdiction and Liability (17 March 2015) [282]. See also Marvin Roy Feldman Karpa v United Mexican States, ICSID Case No ARB(AF)/99/1, Interim Decision on Preliminary Jurisdictional Issues (6 December 2000) [179]; and Rusoro Mining Limited v The Bolivarian Republic of Venezuela, ICSID Case No ARB(AF)/12/5, Award (22 August 2016) [233].

18  Robert E. Brown (United States) v Great Britain, VII UNRIAA 120, 219. The tribunal went on to conclude that Great Britain was not responsible for these actions of the South African Republic.

19  Compania de Aguas del Aconquija SA and Vivendi Universal SA v Argentine Republic, ICSID Case No ARB/97/3, Award (20 August 2007) [7.4.46] (Vivendi v Argentina): ‘[w]‌e are in no doubt that Respondent’s many acts and omissions cumulatively … infringed the “minimum standard of treatment …’; and [7.5.33]: ‘[t]he Province’s actions—from the very opening months of the concession, continuing through its wrongful regulatory action and culminating in the unilateral amendments to the 8 April Agreement—had the necessary consequence of forcing CAA to terminate the Concession Agreement’. See also El Paso Energy International Company v Argentine Republic, ICSID Case No ARB/03/15, Award (31 October 2011) [519]: ‘The Tribunal, taking an all-encompassing view of consequences of the measures complained of by El Paso … concludes that, by their cumulative effect, they amount to a breach of the fair and equitable treatment standard’.

20  Vivendi v Argentina (n 19) [7.5.31].

21  Rosiński v Poland, App no 17373/02 (17 July 2007) [43].

22  Ibid [70].

23  Ibid [72]–[73].

24  Rosiński v Poland (Concurring Opinion of Judge Mularoni) App no 17373/02 (17 July 2007) [18].

25  Sovtransavto Holding v Ukraine, App no 48553/99 (25 July 2002) [58].

26  Ibid [92].

27  Ibid [98].

28  Papamichalopoulos and Others v Greece, App no 14556/89 (24 June 1993) [37]–[46]. See also the decisions of the European Commission and ECtHR in Phocas v France, App no 17869/91 (4 July 1994 and 23 April 1996), and in particular the dissenting opinion of Judges Foighel and Palm; the decision in Pakshayev v Russia, App no 1377/04 (13 March 2014), where the Court found a breach of art 6(3)(c) of the ECHR, even though the period in which the applicant was denied a lawyer was before the Convention entered into force for Russia. Article 6(3)(c) states: ‘Everyone charged with a criminal offence has the following minimum rights: … (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require’.

29  Mitev v Bulgaria, App no 40063/98 (22 December 2004) [103]: ‘The Court will proceed on the basis that the relevant period was at least three years and eight months (26 October 1993–8 April 1994 and 5 August 1994–23 October 1997)’. Other decisions of the Court also followed this approach; see eg Kemmache v France (No 1 and No 2), App nos 12325/86 and 14992/89 (27 November 1991) [71]. But it was rejected in subsequent decisions and ultimately by the Grand Chamber in Idalov v Russia, App no 5826/03 (22 May 2012) [127]–[133].

30  Tecmed v Mexico (n 2) [57].

31  Ibid [68].

32  Ibid fn 26.

33  Ibid [172].

34  MCI Power Group v Ecuador (n 2) [93].

35  Ibid [253]–[371].

36  Note that in its commentary to the article the ILC focused on obligations that can only be breached through a series of measures (such as genocide and apartheid). See also Scott Vesel, ‘A “Creeping” Violation of the Fair and Equitable Treatment Standard?’ (2014) 30(3) Arbitration International 553, where he partly drew from this commentary to conclude that: ‘[t]‌he term “composite act” refers to obligations which can only be breached through a series of measures rather than through an individual act’ (emphasis in original). See also ILC, ‘Report of the International Law Commission on the work of its twenty-eighth session’ (3 May–23 July 1976) UN Doc A/31/10, 93 (ILC, ‘Report of 28th session’): ‘The distinctive characteristic of such an [composite] act is thus the systematic repetition of actions having the same purpose, content and effect, but relating to specific cases which are independent of one another’. Nonetheless, some tribunals have interpreted art 15 and the concept of ‘composite acts’ as referring to all acts that can breach an obligation through their cumulative effect. See eg Sergei Paushok, CJSC Golden East Company and CJSC Vostokneftegaz Company v Mongolia, UNCITRAL, Award on Jurisdiction and Liability (28 April 2011); and Pac Rim Cayman LLC v Republic of El Salvador, ICSID Case No ARB/09/12, Decision on the Respondent’s Jurisdictional Objections (1 June 2012) [2.70]–[2.74]: ‘[a] composite act is not the same, single act extending over a period of time, but is composed of a series of different acts that extend over that period; or, in other words, a composite acts results from an aggregation of other acts that acquires a different legal characterization from those other acts …’.

37  ILC, ‘Report of 28th session’ (n 36) 94 (emphasis added).

38  Ibid 87. See also Joost Pauwelyn, ‘The Concept of a “Continuing Violation” of an International Obligation: Selected Problems’ (1995) 66 British Yearbook International Law 415, 446–7 (Pauwelyn, ‘The Concept of a “Continuing” Violation’): ‘[o]‌nly those individual cases or acts which occurred after the obligation came into force can be taken into account to determine whether the obligation in question has at all been breached … Indeed, once it has been determined that the ‘composite act’ breaches the obligation, the breach will necessarily operate retroactively and start from the date of the first act of the series of acts taken into account … Therefore if the court took into account acts prior to the date of entry into force of the obligation and found that a practice has been established, it would automatically act contrary to the principle of non-retroactivity since the breach would then start on a date at which the obligation was not yet in force’. See also Eric Wyler, ‘Quelques réflexions sur la realisation dans le temps’ (1991) 95 RGDIP 881, 896 (Wyler, ‘Quelques réflexions sur la realisation dans le temps’: ‘[s]eules doivent entrer en ligne de compte les decisions rendues pendant que l’obligation international était en vigueur’.

39  The effect of continuing acts on temporal jurisdiction was addressed in Chapter 5.

40  Yağci and Sargin v Turkey, App nos 16419/90 and 16426/90 (8 June 1995) [49].

41  Ibid [55].

42  Guber v Russia, App no 34171/04 (23 October 2008).

43  Ibid [14].

44  Ibid [13].

45  Ibid [17].

46  Bennich-Zalewski v Poland, App no 59857/00 (22 April 2008) [66].

47  Igariené and Petrauskiené v Lithuania, App no 26892/05 (21 July 2009) [43]. See also Barantseva v Russia, App no 22721/04 (4 March 2010) [59], relying partly on: ‘[t]‌he failure to notify the applicant of the hearing of 18 March 1998 …’ when finding a breach of art 6(1), even though the Convention entered into force for Russia in May 1998.

48  João Canuto De Oliveira v Brazil, Report, IACHR No 24/98 (7 April 1998).

49  Ibid [63]. See also Ovelário Tames v Brazil, Report, IACHR No 19/98 (13 April 1999) [53]–[54], where the Commission held that a delay of eight years before investigating a death in custody was unreasonable and inconsistent with Brazil’s obligations under the American Convention on Human Rights.

50  Paraga v Croatia, CCPR, Comm No 727/1996 (4 April 2001).

51  Ibid [9.7]. See also the decision of the African Commission on Human and Peoples’ Rights in Haregewoin Gabre-Selassie and IHRDA v Ethiopia, African Commission on Human and Peoples’ Rights, Comm No 301/05 (12 October 2013) [209], finding that the length of the detention of the complainants from 1991 breached Ethiopia’s obligations in the African Charter on Human and Peoples’ Rights, even though the Charter entered into force for Ethiopia in 1998 (but note that Ethiopia did not appear to have raised the issue of retroactivity); the decision of the African Court on Human and Peoples’ Rights in Wilfred Onyango Nganyi and Others v United Republic of Tanzania, African Court on Human and Peoples’ Rights, App no 006/2013 (18 March 2016) [133], [155], finding that the length of time after detention in 2006 was unreasonable and in breach of Tanzania’s obligations in the same charter, even though Tanzania did not accept the Court’s jurisdiction until 2010 (but note again that Tanzania does not appear to have raised the issue of retroactivity).

52  Chevron Corporation (USA) and Texaco Petroleum Company (USA) v Republic of Ecuador, UNCITRAL PCA Case No 34877, Partial Award on Merits (30 March 2010) [250]–[260].

53  Walter Bau v Thailand (n 2) [13.2].

54  Mõtsnik v Estonia, App no 50533/99 (29 April 2003) [9]‌.

55  Ibid [10].

56  Ibid [33].

57  Ibid [39]–[43].

58  Skočajić and Bjelić v Serbia, App no 9460/05 (18 September 2007).

59  Nikolić-Krstić v Serbia, App no 54195/07 (14 October 2014) [32]. See also Timotiyevich v Ukraine, App no 63158/00 (18 May 2004), where the Court ignored a period of nine years before the Convention entered into force when finding that a period of almost four years after this date was reasonable.

60  Pauwelyn, ‘The Concept of a “Continuing” Violation’ (n 38) 445.

61  ILC, ‘Fifth Report on State Responsibility, by Mr. Roberto Ago, Special Rapporteur—the internationally wrongful act of the State, source of international responsibility’ (1976) UN Doc A/CN.4/291 [22]: ‘If … the obligation had entered into force at a time when detention had already commenced, the extension of such detention for more than a generally reasonable time, would, in our view, be internationally wrongful, even if much of the period of detention had occurred prior to the entry into force of the obligation’.

62  M Sorensen, ‘Le problème inter-temporel dans l’application de la Convention Européenne des droits de l’homme’ in Mélanges offerts à Polys Modinos (Editions A Pedone 1968) 304, 309–10: ‘Avant l’entrée en vigueur les autorités nationals n’étaient pas soumises à l’obligation internationale de mettre fin à la detention preventive dans un délai quelconque; tenir compte de leur conduit pendant cette période pour determiner si la detention a dépassé les limites raisonnables au sens de la Convention serait donc appliquer les disposition de celle-ci à des faits antérieurs. Cela ne signifie pas cependant que dans une telle situation, la detention d’une personne avant l’entrée en vigueur de la Convention ne pourrait pas imposer une certain rigueur dans l’appréciation de la période subséquente considérée séparément’.

63  Wyler, ‘Quelques réflexions sur la realisation dans le temps’ (n 38): ‘Ne pouvant faire deux poids deux measures, nous optons pour la seconde solution. Par consequent, la période de detention antérieure à l’entrée en vigueur de l’obligation ne saurait être comptée dans l’évaluation du caractère “déraisonnable” de la detention au meme titre que, dans le premier exemple, l’attitude antérieure des autorités de l’Etat auteur de discriminations ne pouvait influer sur l’illicéité du comportement considéré dans son ensemble’.

64  Institut de Droit International, ‘The Intertemporal Problem in Public International Law’ (Wiesbaden 11 August 1975) art 2(d).

65  Zachary Douglas, The International Law of Investment Claims (Cambridge University Press 2009) [643].

66  Ibid.