1 See eg the declaration of Albania (2 October 1996): ‘The Republic of Albania declares … that it recognizes the competence of the European Court of Human Rights to interpret and apply the Convention for the Protection of Human Rights and Fundamental Freedoms, and its Additional Protocols No. 1, No. 4 and No. 7, in cases where the violation of the rights guaranteed in these documents has occurred after they have come into force for the Republic of Albania’.
2 Paul Krueger, Theodor Mommsen, and Alan Watson (eds), The Digest of Justinian (University of Pennsylvania Press 1985) 845.
3 ILC, ‘Third Report on the Law of Treaties, by Sir Humphrey Waldock, Special Rapporteur’ (Vol II, 1976) UN Doc A/CN.4/167, 90 (Waldock, ‘Third Report 1976 Vol II’). See also Rosalyn Higgins, ‘Time and the Law: International Perspectives on an Old Problem’ (1997) 46 International and Comparative Law Quarterly 501, 507: ‘The principle of nullum crimen, nulla poena sine lege is indeed so widely accepted that it may properly be described as a general principle of law—that is, one common to all developed legal systems and thus itself a source of international law’.
4 Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III) art 11(2); Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 4 November 1950, entered into force 3 September 1953) 213 UNTS 221 art 7; International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 art 15; Geneva Convention Relative to the Treatment of Prisoners of War (adopted 8 December 1949, entered into force 21 October 1950) 75 UNTS 135 art 99; Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of Non-international Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 609 (Protocol II) art 6(2)(c); American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July 1978) 1144 UNTS 143 (Pact of San José, Costa Rica) art 9; African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986) 1520 UNTS 217 art 7(2).
5 See also Institut de Droit International, ‘The Intertemporal Problem in Public International Law’ (Wiesbaden 11 August 1975) art 1: ‘Unless otherwise indicated, the temporal scope of application of any norm of public international law shall be determined in accordance with the general principle of law by which any fact, action or situation must be assessed in the light of the rules of law that are contemporaneous with it’.
6 The Enterprize v Great Britain in John Bassett Moore, History and Digest of the International Arbitrations to Which the United States Has Been a Party (US Government Printing Office, Washington 1898) 4349 at 4373. See also the similar decisions in The Hermosa v Great Britain, ibid 4374; and The Creole v Great Britain, ibid 4375.
7 The Lawrence v Great Britain, ibid 2825. For a discussion of these slave cases see Waldock, ‘Third Report 1976 Vol II’ (n 3) 89.
8 Waldock, ‘Third Report 1976 Vol II’ (n 3) 12.
10 James Fry and Odysseas Repousis, ‘Intertemporality and International Investment Arbitration: Protecting the Jurisdiction of Established Tribunals’ (2015) 31(2) Arbitration International 213, 221.
11 See eg the Agreement between the Government of the Kingdom of the Netherlands and the Government of the Republic of Indonesia on Promotion and Protection of Investment (adopted 6 April 1994, entered into force 1 July 1995) 2240 UNTS 323 art 15(2): ‘In respect of investments made prior to the date of termination of the present Agreement, the foregoing Articles shall continue to be effective for a further period of fifteen years from the date of termination of the present Agreement’.
12 Eastern Sugar BV v Czech Republic, SCC No 088/2004 (27 March 2007)  (Eastern Sugar BV v Czech Republic). See also Rumeli Telekom AS and Telsim Mobil Telekomikasyon Hizmetleri AS v Republic of Kazakhstan, ICSID Case No ARB/05/16, Award (29 July 2008) , where the tribunal stated that it had jurisdiction over a claim under the Kazakh foreign investment law, even though it had been repealed, because of a clause providing that it applied for ten years from the date of the investment. For an analysis of the effect of these provisions in investment treaties see Tania S L Voon, Andrew D Mitchell, and James Munro, ‘Parting Ways: The Impact of Investor Rights on Mutual Termination of Investment Treaties’ (2014) 29(2) ICSID Review 451.
13 Rainbow Warrior (New Zealand v France), XX UNRIAA 217, Decision (30 April 1990) . See also Eastern Sugar BV v Czech Republic (n 12) , where the tribunal drew from art 70(1) when rejecting an argument that the alleged termination of the Czech Republic–Netherlands treaty through the Czech Republic’s accession to the European Union undermined a claim under that treaty. See also Case concerning the Northern Cameroons (Cameroon v United Kingdom) (Preliminary Objections)  ICJ Rep 15, 35; Certain Phosphate Lands in Nauru (Nauru v Australia) (Preliminary Objections)  ICJ Rep 240; and Benjamin and Others v Trinidad and Tobago (Preliminary Objections) IACtHR (Series C) No 94 (1 September 2001).
14 This rule is sometimes repeated in the text of treaties. See eg ECHR art 58(2). For the drafting history of art 70 see Geraldo Eulálio do Nascimento e Silva, ‘Le Facteur Temps et les Traités’ (1977) 154 Recueil des cours 215 (Silva, ‘Le Facteur Temps et les Traités’).
15 James Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge University Press 2002) 133.
16 The original reads: ‘Nul ne peut être puni qu’en vertu d’une loi etablie et promulguée antérieurement au délit et légalement appliquée’.
17 Lauri v Renad  3 Ch 402, 421.
18 Oliver Dörr and Kirsten Schmalenbach (eds), Vienna Convention on the Law of Treaties: A Commentary (Springer 2012) 479 (Dörr and Schmalenbach, Vienna Convention Commentary): ‘Most likely, the principle of non-retroactivity is to be considered as both a rule of customary international law and a general principle of law’. See also Mark Eugen Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (Martinus Nijhoff Publishers 2009) 386.
19 For the drafting history of art 28 see Silva, ‘Le Facteur Temps et les Traités’ (n 14) 215.
20 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, 90 (ILC, ‘Report of 28th session’). For a discussion of the reason for the rule as it is applied in domestic law see Ben Juratowitch, Retroactivity and the Common Law (Hart Publishing 2008).
21 ILC, ‘Report of 28th session’ (n 20) 90: ‘[a]n examination of international practice and jurisprudence shows that this principle has hitherto been constantly applied, being either explicitly mentioned or implicitly followed. In affirming or denying the existence of responsibility of a State, reference has always been made to an international obligation in force at the time when the act or omission of the State took place. No significance has even been attached, for the purpose of reaching a conclusion on the basis of general international law, to the fact that an obligation has subsequently arisen and was thus incumbent on the State at the time of settlement of the dispute’.
22 WTO, Brazil—Measure Affecting Desiccated Coconut—Report of the Appellate Body (21 February 1997) WT/DS22/AB/R, 15: ‘Article 28 [of the Vienna Convention on the Law of Treaties] states the general principle that a treaty shall not be applied retroactively “unless a different intention appears from the treaty or is otherwise established”. Absent a contrary intention, a treaty cannot apply to acts or facts which took place, or situations which ceased to exist, before the date of its entry into force’.
23 Cantos v Argentina (Preliminary Objections) IACtHR (Series C) No 85 (7 September 2001) , referring to art 28 of the Vienna Convention on the Law of Treaties as ‘codif[ication of] general law’.
24 Amco International Finance Corp v Islamic Republic of Iran (1987) 15 Iran–USCTR 189 , emphasizing that: ‘[t]he pertinent facts have to be assessed in the light of the law governing them at the time they occurred …’.
25 Emmanuel Mwakisha Mjawasi and Others v Attorney General of the Republic of Kenya (Appeal Judgment) East African Court of Justice, Appeal No 4/2011 (27 April 2012) 27 (Emmanuel v AG of the Republic of Kenya): ‘[t]he principle of non retroactivity is a well known doctrine. It is generally applied in the jurisprudence of Public International Law’.
26 Chevron Corporation (USA) and Texaco Petroleum Company (USA) v Republic of Ecuador, UNCITRAL, PCA Case No 34877, Interim Award (1 December 2008) ; Mondev International Ltd v United States of America, ICSID Case No ARB(AF)/99/2, Award (11 October 2002) ; Salini Construttori SpA and Italstrade SpA v Hashemite Kingdom of Jordan, ICSID Case No ARB/02/13, Decision on Jurisdiction (29 November 2004) ; Generation Ukraine Inc v Ukraine, ICSID Case No ARB/00/9, Award (15 September 2004) [11.2]; Kardassopoulos v Georgia, ICSID Case No ARB/05/18, Decision on Jurisdiction (6 July 2007) ; Victor Pey Casado and the President Allende Foundation v Chile, ICSID Case No ARB/98/2, Award (8 May 2008) .
27 For example, the decision of the investment treaty tribunal in Feldman v United Mexican States, ICSID Case No ARB(AF)/99/1, Interim Decision on Preliminary Jurisdictional Issues (6 December 2000) ; the decision of the European Court of Human Rights (ECtHR) in Kerojärvi v Finland, App no 17506/90 (19 July 1995) ; the decision of the Inter-American Commission of Human Rights in Ivan Rocha, Report, IACHR No 5/11 (22 March 2011) ; the decision of the European Court of Justice in Gennaro Currà and Others v Bundesrepublik Deutschland, Case C-466/11 (12 July 2012) –; the decision of the Appellate Division of the East African Court of Justice in Emmanuel v AG of the Republic of Kenya (n 25).
28 For example, Partly Concurring and Partly Dissenting Opinion of Judge Wojtyczek of the ECtHR in Case of Janowiec and Others v Russia, App nos 55508/07 and 29520/09 (21 October 2013); the decision of the investment treaty tribunal in Sergei Paushok, CJSC Golden East Company and CJSC Vostokneftegaz Company v Mongolia, UNCITRAL, Award on Jurisdiction and Liability (28 April 2011)  (Paushok v Mongolia); Judge Fitzmaurice’s separate opinion in Case concerning the Northern Cameroons (Cameroon v United Kingdom) (Preliminary Objections)  ICJ Rep 15, 130.
29 X v Federal Republic of Germany, App no 4523/70 (23 July 1971).
30 Victor Pey Casado and the President Allende Foundation v Chile, ICSID Case No ARB/98/2, Award (8 May 2008) : ‘Les dispositions de fond de l’API ne sont pas applicables ratione temporis aux actes d’expropriation commis avant l’entrée en vigueur du traité …’. Note that at paragraph 674 the tribunal found a breach of the treaty’s fair and equitable treatment provision through the discriminatory compensation for the expropriation after the treaty entered into force.
31 Tradex Hellas SA v Albania, ICSID Case No ARB/94/2, Decision on Jurisdiction (24 December 1996), ICSID Review (1999) 14(1) 161, 178–80: ‘As both the alleged expropriation and the Request for Arbitration in this procedure occurred before the entry into force of the Bilateral Treaty, that Treaty cannot establish jurisdiction in this case’.
32 Mondev International Ltd v United States of America, ICSID Case No ARB(AF)/99/2, Award (11 October 2002) –.
33 Emilio Agustín Maffezini v Kingdom of Spain, ICSID Case No ARB/97/7, Award (13 November 2000) , .
34 Middle East Cement Shipping and Handling Co SA v Arab Republic of Egypt, ICSID Case No ARB/99/6, Award (12 April 2002) –.
35 Haregewoin Gabre-Selassie and IHRDA v Ethiopia, African Commission on Human and Peoples’ Rights (ACHPR), Comm No 301/05 (12 October 2013) . See also Krishna Achuthan and Others v Malawi, ACHPR, Comm No 64/92 (27 April 1994), where the Commission found Malawi breached the Charter through actions, including the conduct of the trial of political dissidents Orton and Vera Chirwa in the early 1980s, well before the Charter entered into force.
36 Malawi Africa Association and Others v Mauritania, ACHPR, Comm No 54/91 (11 May 2000) , , .
38 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Application Instituting Proceedings) (20 March 1993) .
39 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Preliminary Objections) (11 July 1996)  ICJ Rep 595 .
40 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Dissenting Opinion of Judge ad hoc Kreća) (11 July 1996)   ICJ Rep 595.
41 Adrian Chua and Rohan Hardcastle, ‘Retroactive Application of Treaties Revisited: Bosnia-Herzegovina v Yugoslavia’ (1997) 44 Netherlands International Law Journal 414, 417: ‘On its face, paragraph 34 of the majority’s judgment appears to be inconsistent with the non-retroactivity principle as applied in the Ambatielos case and codified in Article 28 of the Vienna Convention’.
43 Ibid. They note that art I of the Convention states that: ‘[t]he Contracting Parties confirm that genocide … is a crime under international law which they undertake to prevent and to punish’ (emphasis added).
44 Ibid 418. See also Eirik Bjorge, ‘Right for the Wrong Reasons: Silih v Slovenia and Jurisdiction Ratione Temporis in the European Court of Human Rights’ (2013) 83(1) British Yearbook of International Law 115. See also Higgins, ‘Time and the Law’ (n 3).
45 ILC, ‘Report of the International Law Commission on the second part of its seventeenth session and on its eighteenth session’ (3 January–28 January 1966) UN Doc A/6309/Rev.1, 211.
46 Convention between Belgium and France for the Avoidance of Double Taxation and the Establishment of Rules of Reciprocal Administrative and Legal Assistance with Respect to Taxes on Income (signed 10 March 1964, entered into force 17 June 1965) 557 UNTS 13 art 26(2). See also Vienna Convention on Succession of States in Respect of Treaties (adopted 23 August 1978, entered into force 6 November 1966) 1946 UNTS 3 art 7(2); Treaty between Her Majesty and the United States of America, for the Amicable Settlement of all Causes of Difference between the Two Countries (Treaty of Washington) (United Kingdom–United States of America) (signed 8 May 1871, entered into force 17 June 1871) art VI.
47 Chamizal Case (Mexico v United States) (15 June 1911), XI UNRIAA 309, 325. See also the discussion in Dörr and Schmalenbach, Vienna Convention Commentary (n 18) 481.
48 The Mavrommatis Palestine Concession (United Kingdom v Greece) (Judgment, Objection to the Jurisdiction of the Court) PCIJ Rep Series A No 2, 34.
49 Treaty between the Government of the Republic of Slovenia and the Government of the Republic of Croatia on the Regulation of the Status Relations and Other Legal Relations Regarding Investment in and the Utilization and Decommissioning of Nuclear Power Plant Krško (signed 19 December 2001, entered into force 11 March 2003) 2368 UNTS 349.
50 Hrvatska Elektroprivreda DD v Republic of Slovenia, ICSID Case No ARB/05/24, Decision on the Treaty Interpretation Issue (12 June 2009) –. See also the dissenting opinion of Jan Paulsson in Hrvatska Elektroprivreda DD v Republic of Slovenia, ICSID Case No ARB/05/24, Dissenting Opinion of Jan Paulsson (12 June 2009) –.
51 WTO, European Communities and Certain Member States—Measures Affecting Trade in Large Civil Aircraft—Report of the Panel (30 June 2010) WT/DS316/R [7.19]–[7.25].
53 WTO, European Communities and Certain Member States—Measures Affecting Trade in Large Civil Aircraft—Report of the Appellate Body (18 May 2011) WT/DS316/AB/R –.
54 See eg the decision of the East African Court of Justice in Emmanuel v AG of the Republic of Kenya (n 25). For an example of a domestic court decision see Victrawl Pty v Telstra Corporation Ltd (1995) 183 CLR 595 – (High Court of Australia). Here, the High Court of Australia found there was nothing in the text, nor the ‘objectives or the general context’ of the Convention on Limitation of Liability for Maritime Claims, to rebut the presumption against retroactivity.
55 Société Générale In respect of DR Energy Holdings Limited and Empresa Distribuidora de Electricidad del Este SA v Dominican Republic, UNCITRAL, LCIA Case No UN 7927, Award on Preliminary Objections to Jurisdiction (19 September 2008) .
56 Victor Pey Casado and the President Allende Foundation v Chile, ICSID Case No ARB/98/2, Award (8 May 2008) , ; Técnicas Medioambientales Tecmed SA v United Mexican States, ICSID Case No ARB (AF)/00/2, Award (29 May 2003) , –; SGS Société Générale de Surveillance SA v Republic of the Philippines, ICSID Case No ARB/02/6, Decision of the Tribunal on Objections to Jurisdiction (29 January 2004) .
57 Paushok v Mongolia (n 28) –.