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Ius Gentium: Comparative Perspectives on Law and Justice 101 Klara Polackova Van der Ploeg Luca Pasquet León Castellanos-Jankiewicz Editors International Law and Time Narratives and Techniques Ius Gentium: Comparative Perspectives on Law and Justice Volume 101 Series Editors Mortimer Sellers, University of Baltimore, Baltimore, MD, USA James Maxeiner, University of Baltimore, Baltimore, MD, USA Editorial Board Myroslava Antonovych, Kyiv-Mohyla Academy, Kyiv, Ukraine Nadia de Araújo, Pontifical Catholic University of Rio de Janeiro, Rio de Janeiro, Brazil Jasna Bakšic-Muftic, University of Sarajevo, Sarajevo, Bosnia and Herzegovina David L. Carey Miller, University of Aberdeen, Aberdeen, UK Loussia P. Musse Félix, University of Brasilia, Federal District, Brazil Emanuel Gross, University of Haifa, Haifa, Israel James E. Hickey Jr., Hofstra University, South Hempstead, NY, USA Jan Klabbers, University of Helsinki, Helsinki, Finland Cláudia Lima Marques, Federal University of Rio Grande do Sul, Porto Alegre, Brazil Aniceto Masferrer, University of Valencia, Valencia, Spain Eric Millard, West Paris University, Nanterre Cedex, France Gabriël A. Moens, Curtin University, Perth, Australia Raul C. Pangalangan, University of the Philippines, Quezon City, Philippines Ricardo Leite Pinto, Lusíada University of Lisbon, Lisboa, Portugal Mizanur Rahman, University of Dhaka, Dhaka, Bangladesh Keita Sato, Chuo University, Tokyo, Japan Poonam Saxena, University of Delhi, New Delhi, India Gerry Simpson, London School of Economics, London, UK Eduard Somers, University of Ghent, Gent, Belgium Xinqiang Sun, Shandong University, Shandong, China Tadeusz Tomaszewski, Warsaw University, Warsaw, Poland Jaap de Zwaan, Erasmus University Rotterdam, Rotterdam, The Netherlands Ius Gentium is a book series which discusses the central questions of law and justice from a comparative perspective. The books in this series collect the contrasting and overlapping perspectives of lawyers, judges, philosophers and scholars of law from the world’s many different jurisdictions for the purposes of comparison, harmonisation, and the progressive development of law and legal institutions. Each volume makes a new comparative study of an important area of law. This book series continues the work of the well-known journal of the same name and provides the basis for a better understanding of all areas of legal science. The Ius Gentium series provides a valuable resource for lawyers, judges, legislators, scholars, and both graduate students and researchers in globalisation, comparative law, legal theory and legal practice. The series has a special focus on the development of international legal standards and transnational legal cooperation. · · Klara Polackova Van der Ploeg Luca Pasquet León Castellanos-Jankiewicz Editors International Law and Time Narratives and Techniques Editors Klara Polackova Van der Ploeg Luca Pasquet University of Nottingham School of Law Utrecht University School of Law Nottingham, UK Utrecht, The Netherlands León Castellanos-Jankiewicz Asser Institute for International and European Law The Hague, The Netherlands ISSN 1534-6781 ISSN 2214-9902 (electronic) Ius Gentium: Comparative Perspectives on Law and Justice ISBN 978-3-031-09464-4 ISBN 978-3-031-09465-1 (eBook) https://doi.org/10.1007/978-3-031-09465-1 © Springer Nature Switzerland AG 2022 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland Preface Although time is all-pervasive in international law, international lawyers have seldom explored the relationship between international law and time in depth from the perspective of their particular discipline. Pervasiveness does not imply noticeability. Quite to the contrary, international lawyers largely seem to have taken for granted the temporal framework of international law and the temporalities involved in international law’s norms, concepts, and processes, or have treated them as largely technical legal issues. However, behind the seeming familiarity of time in international law hides a universe of meanings, applications, and implications worthy of exploration. This book has its origins in a conference that we organized on the topic of ‘Interna- tional Law and Time’, which was held on 12–13 June 2015 at the Graduate Institute of International and Development Studies in Geneva, Switzerland, under the auspices of the Graduate Institute’s International Law Department. As one chapter observes, particular moments in history often define the lens through which past, present, and future are constructed, and the conference was certainly momentous for this project even though the journey ahead was extensive. The Geneva conference brought together the Graduate Institute’s unique international law community with colleagues from academia and legal practice from around the world to consider the complex relationship between international law and time in the inspiring venue of Auditorium Jacques-Freymond, which overlooks Lake Geneva from Parc Barton. The conference allowed us to meet others, who were equally fascinated by the topic of time and international law and its various manifes- tations and who contributed to this project. The responses to a broad call for papers, the roundtable featuring faculty members from the International Law Department, panel presentations, as well as the discussions of more than 100 participants helped to identify the most pertinent themes and issues of international law and time and gave direction to this book project. The conference also enabled to explore the fundamentals of international law with some of the doyens of the discipline at the Graduate Institute. Professors emeriti Vera Gowlland-Debbas, Georges Abi-Saab, and Peter Haggenmacher generously contributed to the debates with their characteristic sharpness and eloquence. The conference was in fact the last international law event at the Graduate Institute that v vi Preface Professor Gowlland attended before her passing in September 2015. Professor Gowl- land made a lasting impact on international law and generations of Graduate Insti- tute students who remember her brilliance, generosity, and dedication as a teacher. She remained very much present in the life of the Graduate Institute even after her retirement from the faculty in 2009, including by chairing—with her usual insight- fulness—one of the panels of the conference. We would like to dedicate this book to her. We owe a number of thanks in relation to the Geneva conference: to Prof. Andrea Bianchi, the then Head of the International Law Department and our then Ph.D. super- visor, for supporting the initial idea and providing practical help and guidance along the way; to Professors Andrew Clapham, Zachary Douglas, Marcelo Kohen, Nico Krisch and Joost Pauwelyn for contributing to the conference’s opening roundtable; to H.E. Ambassadors Valentin Zellweger and Jürg Lindenmann, then of the Direc- torate of International Law of the Swiss Federal Department of Foreign Affairs, for their trust in the endeavor; and to the Swiss Federal Department of Foreign Affairs and a private Swiss foundation for providing generous financial support. Finally, our thanks go to Prof. Maks Del Mar and the Springer law editors for believing in and supporting this book project, to Melanie Schneider for helpful assis- tance with footnoting, and to Joshua Van der Ploeg, who kindly proofread the whole manuscript with us and greatly improved many parts of the text. Nottingham, UK Klara Polackova Van der Ploeg Utrecht, The Netherlands Luca Pasquet The Hague, The Netherlands León Castellanos-Jankiewicz Contents The Multifaceted Notion of Time in International Law ................ 1 Klara Polackova Van der Ploeg and Luca Pasquet Constructing and Attributing Meaning to Time in International Law Lawyers as Creators of Law’s Temporal Reality: A Pragmatic Approach to International Law ..................................... 27 Eric Wyler and Arianna Whelan Human Rights in Time: Temporalization of Human Rights in Historical Representation ........................................ 51 Juhana Mikael Salojärvi Interstellar Justice Now: Back to the Future of International Law ...... 71 Bérénice K. Schramm Digressing Towards Justice: International Criminal Law’s Narrative of Moral Transit Through Violence ........................ 99 Timothy William Waters Time in International Lawmaking How Instant and Universal International Law Is Born and How It Dies: The 1856 Declaration of Paris ................................. 113 Jan Martin Lemnitzer Incrementalism in International Lawmaking: The Development of Normative Frameworks of Protection for Forcibly Displaced Persons ........................................................... 135 Rob Grace The Politics of Time in Domestic and International Lawmaking ........ 153 Tommaso Soave vii viii Contents Life Cycles of International Law as a Noetic Unity: The Various Times of Law-Thinking ............................................ 175 Thomas Schultz Time and the Operation of International Law Time-Traveling Rules of Interpretation: Of ‘Time-Will’ and ‘Time-Bubbles’ ................................................ 195 Panos Merkouris Time and Tide Wait for No One: The Curious Consideration of Time in International Investment Treaty Law ...................... 221 Robert Howse and Barry Appleton The Relevant Time for Assessing Jurisdiction and the Ratione Temporis Objection in the Genocide (Croatia v. Serbia) Case ........... 237 Lorenzo Palestini Of Relevant Dates and Political Processes: State Succession and the Dissolution of the Former Yugoslavia ........................ 263 Asier Garrido-Muñoz China, Confucian Time and International Law: A Normative and Behavioral Account ............................................ 283 Matthias Vanhullebusch International Law Between Change and Stability International Law Through Time: On Change and Facticity of International Law ............................................... 313 Klara Polackova Van der Ploeg The Development of International Law, Perception, and the Problem of Time ........................................... 335 Gregory Messenger Change and Adaptation in International Environmental Law: The Challenge of Resilience ............................................. 357 Jaye Ellis Transformations of International Legal Concepts in Time: Continuity, Discontinuity, Recurrence The ‘Minimum Standard of Treatment’ in International Investment Law: The Story of the Emergence, the Decline and the Recent Resurrection of a Concept ........................... 381 Patrick Dumberry Contents ix Peace Agreements Between Rupture and Continuity: Mediating Time in International Law ......................................... 405 Philipp Kastner Overlooking Continuity: National Minorities and ‘Timeless’ Human Rights .................................................... 421 León Castellanos-Jankiewicz Self-determination as Ideology: The Cold War, the End of Empire, and the Making of UN General Assembly Resolution 1514 (14 December 1960) ................................................... 441 Victor Kattan