2
2
with the emergence of the concept of jus cogens , as this chapter of international law still
persists strongly impregnated with State voluntarism and an undue weight attributed to the
forms and manifestations of consent."
II.
The Time and the Law.
4.
The limitation ratione temporis to the competence of the Court raises a
legal question the grave implications of which transcend the circumstances of the
present Blake case, thus requiring the greatest attention. In fact, the examination
of the incidence of the temporal dimension in law in general has not been
sufficiently developed in contemporary legal science. This is all the more
surprising if we consider that the element of foreseeability is inherent to legal
science as such, the time element underlying all of the law. As far as Public
3
International Law is concerned, the examples are clearly identifiable . In the
International Law of Human Rights, in the ambit of which the matter begins to be
4
studied more in depth , perhaps the most striking illustration is to be found in the
jurisprudential construction
5
of the notion of victim (both direct and indirect),
6
comprising the potential victim .
5.
As to the relation between the passing of time and the law, in one of the
most lucid pleadings that I know of before an international tribunal, that of Paul
Reuter as one of legal counsel to Cambodia in the case of the Temple of Preah
Vihear (Cambodia versus Thailand, International Court of Justice, 1962), that
jurist had this to say, with a certain literary flair:
1.
Vienna Convention on the Law of Treaties (of 1969), Articles 53 and 64; Vienna Convention
on the Law of Treaties between States and International Organizations or between International
Organizations (of 1986), Articles 53 and 64.
2.
The notion of time is underlying, for example, almost all the basic element of the law of
treaties (not only the process of treaty-making, but also the terms or conditions themselves
established for the application of the treaties, e.g., if by stages, progressively, etc.). Also in the
domain of peaceful settlement of international disputes one has devised distinct methods of settlement
of disputes which may occur in the future. In the field of regulation of the spaces (e.g., law of the sea,
law of outer space) the intertemporal dimension marks presence (taking into account the interests of
present and future generations); such dimension is of the very essence, e.g., of international
environmental law.
3.
The Compilation of International Instruments of human rights, prepared by the Centre for
Human Rights of the United Nations, for example, lists in fact not less than 13 international
instruments turned to the prevention of discrimination of distinct types (cf. U.N. doc. ST/HR/1/Rev.3,
of 1988, pp. 52-142). The prevention is of the essence of the three Conventions against Torture (the
Inter-American of 1985, Articles 1 and 6; the European of 1987, Article 1; that of the United Nations
of 1984, Articles 2(1) and 16), as well as of the Convention on the Prevention and Punishment of the
Crime of Genocide of 1948 (Article 8). And, in relation to the struggle against extra-legal, arbitrary
and summary executions, cf. United Nations, Manual on the Effective Prevention and Investigation of
Extra-Legal, Arbitrary and Summary Executions, N.Y., U.N., 1991, pp. 1-71.
4.
5.
Above all under the European Convention of Human Rights.
Cases Kjeldsen versus Denmark (1972), Donnelly and Others versus United Kingdom
(1973), H. Becker versus Denmark (1975), G. Klass and Others versus Germany (1978), Marckx
versus Belgium (1979), Dudgeon versus United Kingdom (1981), J. Soering versus United Kingdom
(1989). The jurisprudential evolution on the matter is examined in my course at the Academy of
International Law of The Hague, volume 202 of its Recueil des Cours, of 1987, chapter XI, pp. 271283.
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