How to Illegalize Past Injustice: Reinterpreting the Rules of Intertemporality
Forthcoming in: European Journal of International Law, Volume 32, Issue 2, May 2021, pp. 401–432, https://doi.org/10.1093/ejil/chab037
Posted: 8 Dec 2020 Last revised: 15 Sep 2021
Date Written: December 4, 2020
Attempts to legally tackle cases of historical injustice are often confronted with the problem that the events in question were not considered illegal at their time and that, in general, legal rules should not be applied retroactively. The present paper suggests a conceptual framework to carefully stretch the dogmas of intertemporal law by introducing, via ethical principles as part of positive law of the time, contemporary contestation of inhumane actions and practices. Even though such contestation might not yet be enough to overturn a widely shared apologetic view among lawyers and states, it is argued that the violation of ethical-legal principles as such should give rise to a duty to give satisfaction under the law of state responsibility. In most cases of historical injustice brought to court members of victimized groups aim at acknowledgment of their plight and at a reappraisal of the past that includes their experiences. In line with this objective, the present paper makes a special case for a state obligation to negotiate with the victims of historical injustice or their descendants.
The final version of the paper is available at: https://academic.oup.com/ejil/advance-article/doi/10.1093/ejil/chab037/6293899?login=true.
Keywords: historical injustice, intertemporal law, ethical-legal principles, state responsibility, negotiations, jurisgenesis
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