Legal Literacy - This article discusses the override of the non-retroactive principle in legislation. Is it possible to apply the override of the non-retroactive principle? Let's look at the explanation in the following article.

Understanding the non-retroactive principle

The non-retroactive principle is a legal principle that prohibits the retroactive application of a law, that is, it applies to actions that were taken before the law was enacted. This principle is also known as the principle of legality or the principle of nulla poena sine lege.

The non-retroactive principle has several objectives, namely:

  1. Protecting legal certainty. Legal certainty means that everyone must know what is prohibited and what is permitted by law. The non-retroactive principle guarantees that no one can be subject to criminal sanctions for actions they took before the law prohibiting those actions was enacted.
  2. Protecting human rights. The non-retroactive principle protects human rights from being subject to criminal sanctions for actions that were not prohibited by law at the time the actions were taken.
  3. Preventing abuse of power by the authorities. The non-retroactive principle prevents the authorities from using their power to establish laws that are detrimental to human rights.

Override of the Non-Retroactive Principle

Although in general both national laws and international conventions stipulate a prohibition on applying the retroactive principle, there are actually exceptions to this. This can be understood because constitutional provisions as the highest law and international legal provisions actually provide the possibility to deviate from these principles.

The first deviation can be seen in Article 28 of the Vienna Convention on the Law of Treaties 1969 and Article 28 of the Vienna Convention on the Law of Treaties 1986 which reads

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.

Interestingly, Article 64 of the Vienna Convention on the Law of Treaties regulates the Emergence of a new peremptory norm of general international law (jus cogens) which results in the possibility of applying the retroactive principle for certain conditions. Article 64 explains

If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates.

Another provision regarding the override of the non-retroactive principle can be seen in Article 15 paragraph (2) of the International Covenant on Civil and Political Rights which reads “Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations."