Intertemporality and Public Policy - Rethinking Temporal Conflict of Laws in Addressing Historic Injustices

Abstract

As reparations claims for historic injustices such as transatlantic chattel slavery receive increased attention, the focus has been on a historical analysis of legality at the time. This appears essential because the doctrine of intertemporality is commonly understood as preventing any consideration of current rules or perspectives on slavery and its consequences. Intertemporality, however, leads us back to a past international law which created or legalised the very injustice subject to the reparation claim. Alternative norms of the oppressed tend to be less visible; and trying to unearth past laws and customs other than those of the powerful is an uphill battle as research conventionally turns to accessible written records and archives of the dominant powers. However, increasing contestation in legal, historiographic and post-colonial scholarship shows the indeterminacy of past laws and calls into question the very foundation of intertemporality. Against this backdrop, we question whether intertemporality, as a guiding principle for determining the law applicable to conflicts in time, remains underdeveloped and incomplete. We review decisions of international courts and tribunals on intertemporality and contrast its application with the relatively more sophisticated system of spatial conflict of laws as part of private international law. We argue for an analogous application of the latter where the international law on temporal conflicts leaves gaps. In particular, questions of public policy and morality can be addressed via ordre public as a corrective device, displacing laws that generate outcomes manifestly incompatible with the forum’s fundamental values. As our analysis shows, similar solutions have been considered for temporal conflicts in international law, albeit in a less coherent way. This comparative analysis allows us to suggest a more nuanced approach to intertemporality in international law – especially for scenarios of severe past injustices with significant current consequences such as transatlantic chattel slavery.