2.2 HISTORY WITHIN INTERNATIONAL LAW

It is common to think about the nature of law and legal practice by focusing on cases and courts. This may not capture the centre of every lawyer's professional life, of course, but the properties of law and legal argument may be usefully illuminated by what courts say and do.

And as they engage with history, they do this in ways that cannot be framed within the strictures of historiography. Take, for instance, the Island of Palmas case (1928) where the sole arbitrator Max Huber declared that ‘a juridical fact must be appreciated in the light of the law contemporary with it, and not of the law in force at the time when a dispute in regard to it arises or falls to be settled'.^{^[64]} The issue arose in the context of a dispute between the United States and the Netherlands concerning sovereignty on the island of Palmas (Miangas) in the Philippine archipelago that the United States claimed had been part of the Spanish cession to the United States in the Treaty of Paris of 1898. According to the Dutch, the Dutch East India Company had exercised continuous and peaceful authority on the island from at least 1677, possibly even from the Peace of Westphalia. The Spanish were not entitled to dispose of the island. The United States based its claim on Spanish ‘discovery' in the sixteenth century.

According to the sole arbitrator the matter was to be decided in light of the law ‘contemporary with' the ‘juridical fact' of sovereignty. What is that law? In the dictum cited above, the arbitrator excluded the date of the award, the date of signature of the Arbitration Treaty (1925), as well as the moment when the dispute ‘arose' (1906) as the first US officer set foot on the island. This left three moments of potential relevance: (1) the acquisition of Spanish sovereignty in the sixteenth century; (2) US succession to Spanish rights in 1898; and (3) the moment of the award, 1928.

According to Huber, whatever may have been the legal status of discovery in the sixteenth century, the ‘critical date' for the case was the Treaty of Paris (1898), the moment when the United States had purportedly received its right. By that time, discovery was no longer a valid basis for title but had been replaced by the rule of ‘effective occupation’. As Huber explained, when there are two successive periods with different legal principles, both prima facie relevant for a case, then:

a distinction must be made between the creation of rights and the existence of rights. The same principle which subjects the act creative of a right to the law in force at the time the right arises, demands that the existence of the right, in other words its continued manifestation, shall follow the conditions required by the evolution of law.^{^[65]}

The so-called intertemporal law is continuously invoked in international practice.^{^[66]} It expresses the intense relationship that international law practice has with history from what could be called a ‘contextual’ view, but, one that makes that context move across time.^{^[67]} The first thing it does is to relativise the normative power of the historical origin, the intention of the ‘founding fathers’. Whatever the understanding of the Spaniards, the Dutch or the indigenous inhabitants in the sixteenth century, it no longer bound us today. A legal relationship must keep up to date with the changes in the world, even when they (as is almost always the case in international law) do not emerge from legislative enactment but through the elusive process that international lawyers call ‘custom’. A sixteenth-century understanding (whatever it was) had lost its force by the late nineteenth century. We can only speculate why Huber did not choose the time of the award (1928) as the critical date. Perhaps he believed that the law in 1928 was the same as it had been thirty years before.

Perhaps he actually did not construct his rule historically at all, but believed effective occupation to be the better rule for other reasons. And indeed, alongside the historical point, Huber added what could perhaps be called a functional explanation. ‘Effective occupation’ was the governing rule because it expressed the idea of sovereignty as protection. In a famous and influential statement, he summarised:

Territorial sovereignty... involves the exclusive right to display the activities of a State. This right has as corollary a duty: the obligation to protect within the territory the rights of other States, in particular their right to integrity and inviolability in peace and in war, together with the rights which each State may claim for its nationals in foreign territory.^{^[68]}

Huber's use of the protection concept framed the dispute in utterly Eurocentric terms.^{^[69]} The objects of protection were nationals of other colonial powers that had business on the island. Nothing was said about indigenous inhabitants, though no doubt, had Huber been asked, he would have extended the benefits of ‘continuous and peaceful exercise of effective authority' to them as well. But neither they nor the inhabitants of what later became the Philippines played any role in his argument.

Huber's choice of 1898 as the critical date led him to extrapolate from the developments of old customary law and freed him from looking around in 1928. By that time, of course, the League of Nations had been set up, and the first legal recognition of colonised peoples was included in article 22 of the Covenant, which set up the mandates system and described the ‘well-being and development' of former colonial territories of Germany and Turkey as a ‘sacred trust of civilisation'.^{^[70]} This was a novelty, of course, and it was limited to the colonial territories of the defeated powers. But the idea was out, and it would have been possible (though perhaps unrealistic) to expect some recognition of that fact had the critical date chosen been 1928.

Because it was not, the nineteenth-century principle of ‘effective occupation' that had been introduced in the 1885 Berlin Final Act became the applicable law.^{^[71]}

A different reading emerged famously in 1971, at the end of the long line of cases on South Africa's administration of South West Africa. The International Court of Justice, in an advisory ruling concerning the legal status of that territory, formerly a League of Nations mandate, refused to interpret that mandate in view of the ideas prevailing at the time it was concluded (1922). Whatever agreements may have been reached when the mandates system was created had been overtaken by subsequent developments that included provision for non-self-governing territories in the UN Charter as well as the stream of resolutions and UN actions on decolonisation. The Court noted that it was ‘mindful' of the ‘primary necessity' of interpreting an instrument in view of the intentions of its drafters. Nevertheless, when it came to the characterisation of the mandates as a ‘sacred trust of civilisation', it could not remain unaffected by later developments: ‘an international instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time of the interpretation'.^{^[72]}

Here now the critical date was that of the Advisory Opinion itself. Whatever the drafters of the mandate or the Covenant had meant was irrelevant for the present. Instead, the context in which the concept of ‘sacred trust' was to be understood was now decolonisation. To the immense relief of the great majority of UN members, the court chose to interpret the relations of South Africa and South West Africa (Namibia) from the perspective of the ideological sensitivities of the present. The decision underwrote the law's effort to respond to social and political change, notwithstanding rules of interpretation designed to uphold legal stability. But the present is no less complex than the past, its normative message no less pointing in varying directions.

In a 1986 case concerning a boundary dispute between Burkina Faso and Mali, the proposal had been made that the existing frontier had been drawn by colonial powers in a way that had distorted demographic and economic patterns in the territory. It was suggested in the pleadings that the court might now apply equity (infra legem) to correct the injustices created by the colonial border.^{^[73]} But the Court refused to do this. Instead, it applied the so-called uti possidetis principle that consecrated the principle of ‘intangibility of frontiers', explaining that:

It is a general principle, which is logically connected with the phenomenon of the obtaining of independence, wherever it occurs. Its obvious purpose is to prevent the independence and stability of new States being endangered by fratricidal struggles provoked by the challenging of frontiers following the withdrawal of the administering power.^{^[74]}

Here now the Court expressly refused to look beyond the frontiers drawn by the colonial powers. Whatever the historical injustices, there was no reason to speculate about them. The principal task of the law was to prevent ‘fratricidal struggles'.^{^[75]}

The point of these three cases (and others could be cited) is both to show the ubiquitous presence and variable use of arguments from history in the practice of international law as well as to stress the specificity of ‘history' as it appears in international law. The demands of any method are subordinate to the pragmatics of the legal intervention operating in the context of institutional authority and decision-making. The profession itself addresses these variations in terms of the demands of ‘stability' and ‘change' but behind these words are much more fundamental (political) choices about the values, interests or actors that the appropriate institution wishes to prefer at any moment.³⁴ As Anne Orford has often stressed, maintaining a critical standpoint within international law requires that the demands of practice, history and theory are dealt with together so that none of them is expected to dictate the conditions of what good legal work is to others.³⁵

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Source: Brett Annabel, Donaldson Megan. History, Politics, Law: Thinking through the International Cambridge University Press,2021. — 450 p.. 2021

2.2 HISTORY WITHIN INTERNATIONAL LAW

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