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Retroactive Application of Treaty to Treaty-Based Claim

Published online by Cambridge University Press:  10 March 2017

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Abstract

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Type
Contemporary Practice of the United States Relating to International Law
Information
American Journal of International Law , Volume 97 , Issue 2 , April 2003 , pp. 437 - 438
Copyright
Copyright © American Society of International Law 2003

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References

1 North American Free Trade Agreement, Dec. 17, 1992, Can.-Mex.-U.S., Art. 1105(1), 32 ILM 605, 639 (1993). Article 1105(1) provides: “Each Party shall accord to investments of investors of another Party treatment in accordance with international law, including fair and equitable treatment and full protection and security.”

2 U.S. Counter-Memorial on Competence and Liability at 20–24 (June 1, 2001), Mondev Int’l v. United States (NAFTA Ch. 11 Arb. Trib. Oct. 11, 2002). The United States’ countermemorial, its rejoinder on competence and liability, the transcripts of the hearings on competence and liability, and the arbitral award are available online at <http://www.state.gov/s/1/c3758.htm>.

3 Vienna Convention on the Law of Treaties, May 23, 1969, Art. 28, 1155 UNTS 331, 339 (“Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party.”).

4 Draft Articles on Responsibility of States for Internationally Wrongful Acts, in Report of the International Law Commission on the Work of Its Fifty-third Session, UN GAOR, 56th Sess., Supp. No. 10, Art. 13, at 46, UN Doc. A/56/10/10 (2001), at <http://www.un.org/law/ilc/>, reprinted in Crawford, James, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (2002)Google Scholar (“An act of a State does not constitute a breach of an international obligation unless the State is bound by the obligation in question at the time the act occurs.”).

5 Feldman v. United Mexican States, Interim Decision on Prelirninary Jurisdictional Issues, para. 62 (NAFTA Ch. 11 Arb. Trib. Dec. 6, 2000) (“Given that NAFTA came into force on January 1, 1994, no obligations adopted under NAFTA existed, and the Tribunal’s jurisdiction does not extend, before that date. NAFTA itself did not purport to have any retroactive effect.”).

6 Northern Cameroons (Cameroon v. UK), 1963 ICJ Rep. 15, 129 (Dec. 2) (separate opinion of Judge Fitzmaurice) (“An act which did not, in relation to the party complaining of it, constitute a wrong at the time it took place, obviously cannot ex post facto become one.”).

7 Mondev Reply on Competence and Liability at para. 200 (Aug. 1, 2001), Mondev Int’l v. United States.

8 U.S. Rejoinder on Competence and Liability at 7–8 (Oct. 1, 2001), Mondev Int’l v. United States.

9 Mondev Int’l v. United States, Award, para. 70.

10 Id., para. 75.