1 Introduction
âTimeâ can have a significant impact in determining the winner and loser in games.1 This same effect applies to the resolution of territorial and border disputes under international law. Time rules events (tempus regit factum)2 because of its role in defining facts and events related to territorial title and legal assessment. That being the case, the question of what kind of impact the concept of âtimeâ has in such territorial disputes, and how that in turn influences the assertions of the parties involved in the dispute, as well as the decision of the dispute-resolving body and the reasoning for reaching said decision, are key points to consider in territorial disputes, not only for stakeholders asserting their own positions, but also for those in a position to propose measures for resolving a dispute.
Particularly in the field of the acquisition of territorial sovereignty, observers have cited critical date and intertemporal law as rules that regulate facts and acts from such a âtimeâ perspective.3 However, some are also of the view that the judgments and awards of courts and tribunals related to territorial disputes following the Second World War have not been successful in clarifying these two rules.4 Furthermore, there are still considerable points of uncertainty about what kind of relation these two rules, which are applied to territorial disputes and have temporal elements, have with the actual judicial process.
2 Effect of Critical Date and Intertemporal Law in Judicial Practice
Critical date and intertemporal law are typically presented as rules that include temporal elements in relation to territorial disputes as explained above. Since these two rules have been formed and further clarified within international judicial practice, this section will look next at both the content and purpose of these rules in past judicial precedents.5
Critical date refers to âthe date after which the actions or inaction of the parties cannot affect the legal situation.â6 Its main function, according to the Judgment by the International Court of Justice (icj) in the Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea case, is
distinguishing between those acts performed à titre de souverain which are in principle relevant for the purpose of assessing and validating effectivités, and those acts occurring after such critical date, which are in general meaningless for that purpose, having been carried out by a State
which, already having claims to assert in a legal dispute, could have taken those actions strictly with the aim of buttressing those claims. Thus a critical date will be the dividing line after which the partiesâ acts become irrelevant for the purposes of assessing the value of effectivités.7
As the icj explained in the Sovereignty over Pulau Ligitan and Pulau Sipadan Indonesia / Malaysia case, acts taken after the critical date do not have evidentiary value that contributes to assessing the existence of effectivités prior to the critical date, and from the icjâs position, it âcannot take into consideration acts having taken place after the date on which the dispute between the Parties crystallized.â8
In this way, the significance of the critical date lies in distinguishing between those acts à titre de souverain occurring prior to the date of crystallization of the dispute and those acts occurring after that date,9 so that the critical date has the effect of instructing courts to consider only the former for the purpose of establishing and confirming sovereignty. Nevertheless, the function of the critical date is not necessarily applied strictly in actual territorial disputes. Even if the acts or facts come after the critical date, courts might consider them as long as they do not alter the legal relation at the time of the critical date and they do not improve the claims and territorial titles asserted by the parties to the dispute. In other words, the critical date has the value of confirming the situation at the time of the critical date in relation to subsequent facts and acts, while at the same time functioning to prevent any change to the situation that existed at that time.10
However, courtsâ leeway to use acts following the critical date to conditionally confirm a territorial title has relativized the designation of the time of the critical date and its effect, and this has given courts some flexibility in making decisions on substantive matters related to the creation and elimination of a territorial title.11 In other words, since the designation of the critical date
Intertemporal law, the other rule that contains temporal elements, meanwhile, was defined in the Arbitral Award in the Island of Palmas case. According to the first principle, âa juridical fact must be appreciated in light of the law contemporary with it, and not of the law in force at the time when a dispute in regard to it arises or falls to be settled.â This means an act should be assessed by laws in force at the time of the act. The second principle, based on the premise that âa distinction must be made between the creation of rights and the [continued] existence of rights,â states that the continued existence of the right shall follow the conditions required by the evolution of law, and rights should adhere to the law in force at the respective times.12 It can be said that intertemporal law is aimed at ensuring both the stability of the system of legal norms and the dynamism of law. However, the inclusion of the first principle as well as the second principle of intertemporal law resulted in the treatment of the modern international legal order, with established legal principles for territorial title, and the preceding pre-modern normative order as a single integrated normative system from the perspective of the abovementioned purpose. In particular, in response to the dynamism of law within this system, it acknowledged âcontinuous and peaceful display of territorial sovereigntyâ as a type of effective possession, and aimed to legally connect the stages of the creation of the right with the continued existence of the same right.
In this way, rational analysis of rules that contain temporal elements shows that, on the one hand, the critical date defines some delineation, albeit incomplete, within the timeframe of applicable laws, and, on the other hand, intertemporal law stipulates the content of the applicable law in the timeframe leading up to the critical date.13
However, while both rules deal with temporal elements, how they relate to each other in their practical application cannot be said to be unambiguous.
3 Application of the Doctrine of Critical Date and Intertemporal Law Principle in Judicial Practices regarding Territorial Disputes and Its Features
3.1 Strict Application of the Critical Date and Court Perspective
3.1.1 Application of Intertemporal Law from a âCurrentâ Perspective
If the critical date function explained above takes strict effect, and if there has been evolution of international law and a shift in the legal order up until that date, the application of intertemporal law specifically becomes an issue. In other words, facts and acts that occurred prior to the critical date are subject to the law from their particular era. Regarding the acquisition of territorial title in territorial disputes, courts apply the law at the time to determine the legality of the acquisition and use the evolution of law to determine the legality of the subsequent retention of the title. When doing this, courts apply facts and acts from each period and the laws that regulate them. Therefore, they end up considering the evolution of law, applying, in particular, the second principle of intertemporal law. On the other hand, one of the purposes of the intemporal law principle is ensuring legal stability within the legal order, so it can be considered to be premised on the diachronic and sustained continuation of said
A typical example is the Permanent Court of International Justiceâs (pcij) Judgment in the Legal Status of Eastern Greenland case. In this Judgment, the pcij set the critical date as July 10, 1931, the time of Norwayâs attempted occupation,15 and then reviewed the events in the period leading up to the critical date, particularly from the perspective of whether Denmark displayed authority to a degree sufficient to confer a valid title to the sovereignty. The pcij noted that from 1814 to 1915, Denmark exercised authority in the relevant area sufficiently to give it a valid claim to sovereignty therein16 and cited applications which the Danish Government addressed to foreign governments between 1915 and 1921 seeking the recognition of Denmarkâs position in Greenland.17 Ultimately, the pcij assessed Denmarkâs acts during the period from 1921 to the critical date of July 10, 1931 and concluded that âduring this time Denmark regarded herself as possessing sovereignty over all Greenland and displayed and exercised her sovereign rights to an extent sufficient to constitute a valid title to sovereignty.â18
However, it is important to note that, in judicial practice, critical date and intertemporal law are typically used by a court from the âcurrentâ time at which the laws and facts related to the subject of the claim are handled by the court. In fact, many judicial precedents in which the court has clarified the critical date rely on the perspective of evolution of law and transition in normative order from the âcurrentâ time at which the decision is being made. In cases where a party asserts territorial rights based on a historic title, the court does not rely simply on titles based on the laws and norms of the relevant time, but also replaces them with titles under subsequent modern international law or titles considered to be valid at the time of the critical date, to make a decision on whether territorial rights exist.
For example, in the Minquiers and Ecrehos case, the icj clarified the critical dates as being when France asserted sovereignty over Ecrehos and Minquiers in 1886 and 1888, respectively. At the same time, however, the icj determined
A similar mechanism that has the function of connecting premodern and modern title is also found in agreements between the European powers and local rulers. In the Land and Maritime Boundary between Cameroon and Nigeria case, the icj recognized, regarding territorial rights to the Bakassi Peninsula, that the title originally lay with the Kings and Chiefs of Old Calabar, that sovereignty was transferred to Great Britain under the Treaty of Protection concluded between Great Britain and the Kings and Chiefs of Old Calabar in 1884, and that the Bakassi Peninsula passed from Great Britain to Germany under the Anglo-German Agreement of 1913 and subsequently became part of Cameroon.21 Furthermore, in the Sovereignty over Pulau Ligitan and Pulau Sipadan case, the icj, pointing out that the dispute crystallized in 1969, interpreted that the island possessions of the Sultan under the 1878 contract concluded between the Netherlands and the Sultan of Bulungan did not include Pulau Ligitan and Pulau Sipadan, and rejected Indonesiaâs assertion that it inherited title to the islands from the Netherlands through these contracts
In almost all precedents, the courts reviewed laws that should apply within the framework of the modern international legal order from the perspective of the timing of the proceedings or the âcurrentâ perspective. In cases in which there was a split from the premodern normative order, courts consider a method for the replacement of the premodern normative concept related to territory with a concept under modern international law. Furthermore, utilizing âagreementâ between the parties, a concept in modern international law, they seek to link the normative logic that existed previously and the legal principles used by courts, and assume the existence, albeit an artificial one, of a diachronic legal order that ensures legal stability, which is the purpose of applying intertemporal law. Strict application of the critical date sets the timing of the existence as close as possible to the modern era for the laws that are to be applied to the territorial dispute in question, while intertemporal law takes changes in law in the preceding period also into account when designating the laws that should be applied.
3.1.2 Respect for Contemporaneous Title and Supplementation with Modern Concepts
However, in certain exceptional cases, there are also times when courts place emphasis on the law prior to its evolution and the title based on such law, particularly assertions of rights under the premodern normative order, and reach decisions based on such grounds. In such cases, courts highlight and apply the first principle of intertemporal law. This approach respects the respective laws and normative orders of different eras.
For example, the Arbitral Tribunal in a case between Eritrea and Yemen concerning a matter of sovereignty ruled against the assertion by Yemen of ancient title and historic title to Red Sea islands that were part of Yemeni territory under the sovereignty of the Imam of Yemen over many centuries, pointing out that there is some question whether the Imam had sway over the islands, that it is not possible to assert territorial sovereignty by attributing to such a tribal, mountain and Muslim medieval society the modern Western concept of
From an intertemporal law perspective, this Award demonstrates that even if a historical right exists under a premodern normative order at the stage of right creation, the Arbitral Tribunal cannot acknowledge a legitimate title to the disputed territory unless the right is exercised as territorial sovereignty such that it is maintained under the modern international order that subsequently emerged in the region. Furthermore, in cases of an assertion of historic title as the basis of territorial title, courts and tribunals can be seen to apply the law at the time of the act based on the first principle of intertemporal law, while also supplementing the historic title based on the premodern normative order with effective control by a modern sovereign State.24
The case concerning sovereignty over Pedra Branca / Batu Puteh between Malaysia and Singapore acknowledged a new development in the content of original title.25 In this case, the icj set the critical dates at February 14, 1980, when Singapore protested against Malaysiaâs publication of a map with Pedra Branca26 and February 6, 1993, when Singapore submitted its claim regarding Middle Rocks and South Ledge,27 on the one hand, and acknowledged the possession of the original title to the islands by the Sultanate of Johor dating back to the 17th century.28 On the other hand, it also reviewed whether Malaysia retained sovereignty over Pedra Branca following 1844 or whether sovereignty
It should be noted that the icjâs confirmation of the possession of the original right by the Sultanate of Johor included the condition of âcontinuous and peaceful display of territorial sovereigntyâ on the basis that it was never challenged by other Powers in this controlled territory. The expression used by the icj is obviously the same as the concept adopted in the Arbitral Award in the Island of Palmas case,30 and the icj explained that the Sultanate of Johor, which had a confirmed existence from 1512, was a sovereign State in terms of the modern European concept,31 noted that the title that passed to Malaysia and Singapore in later years was the original title, and considered that possession of the islands based thereon satisfied the condition of âcontinuous and peaceful display of territorial sovereignty.â32 In invoking original title, the icj applied the first principle of intertemporal law and thereby applied law from the time of the act to conduct an assessment from a premodern perspective, while at the same time supplementing this with modern terminology by deeming that the original title premised on the premodern normative order satisfies the condition of âcontinuous and peaceful display of territorial sovereigntyâ by a âsovereign Stateâ in order to create the legal fiction of the continuous evolution of the normative order that underlies the application of intertemporal law.
While the icj decision in this case does indeed mention the standard of âcontinuous and peaceful display of territorial sovereignty,â it does not actually review the sufficiency of effective control and simply has the âappearance of the recognition of original title and recognition of the conventional acquisition of title being fundamentally the same.â It is therefore open to the criticism that the original title in this case differs from the âcontinuous and peaceful display of territorial sovereigntyâ that seeks grounds for territorial rights in the actual exercise of state authority.33 In such a case, from a contemporaneous
3.2 Easing of the Critical Date Function and Intertemporal Law Principle
3.2.1 Consideration of Facts and Acts That Occur after Critical Date and Applicability of Intertemporal Law Principle
The critical date function explained above is not always applied rigorously. Albeit on an exceptional basis, courts have taken into consideration acts that took place after the critical date in some cases as described above.36 According to the icjâs Judgment in the Minquiers and Ecrehos case, such an act could be used as a factor in deciding the attribution of a disputed territory, unless the act in question was taken with a view to improving the legal position of the party concerned.37
Furthermore, even if these conditions are met, facts and acts after the critical date should only be considered in order to confirm the legal relation at the critical date timing. Moreover, even if legal rules evolve with the lapse of time after the critical date, they are only invoked for interpreting the legal rules at the time of the critical date in order to confirm the legal relation at that time.
However, it must be noted that there is actually only a fine line between the task of confirming said legal relation by using facts and acts after the critical date for the sake of interpreting the legal relation at the time of the critical date, and the task of factoring in the legal evolution after the critical date and applying the evolved law in assessing the legal relation at the time of the critical date, as part of the application of the second principle of intertemporal law. In some cases, it is difficult to clearly distinguish between the consideration of subsequent facts and acts for the purpose of confirming an assessment of the legal relation at the time of the critical date and the assessment of the legal relation at the time of the critical date based on the legal evolution after the critical date. Under the critical date function, courts cannot directly acknowledge the application of evolved law after the critical date along the lines of the
3.2.2 Avoiding Designation of a Critical Date and Application of Intertemporal Law Principle
In territorial disputes, even if a party to the dispute asserts a specific critical date, a court may, in some cases, not accept it and avoid designation of a critical date. In the Arbitral Award in the Rann of Kutch case involving a dispute over the attribution of the Kutch region between India and Pakistan, the Tribunal did not accept any singular critical date based on the respective assertions of the two parties, but instead considered both to be relevant.42 Additionally, the Arbitral Award in the Dubai-Sharjah Border Arbitration stated that if a critical date existed, it could only be that of the date of the signature of the Arbitration Agreement of November 30, 1976, while also pointing out that the critical date concept, although sometimes invoked in State practice, has not played a major role in territorial disputes.43
Courtsâ reluctance to adopt critical dates asserted by parties reflects a tendency to exclude assertions of a critical date that interfere with their discretion in reviewing all related evidence up to the reaching of a decision related to territorial attributions, including setting its own critical date that differs from the critical dates asserted by the parties.44 Furthermore, the determination that
If a court does not designate a critical date, it can consider all facts and party activities that occurred until the submission of the claims to the court. In fact, although the courtâs review covers matters leading up to a designated fact or act that makes clear that the disputed territory is attributed to one of the parties to the dispute,47 the application of intertemporal law could be conducted in parallel to said review. In that case, the closer the threshold of the timeframe of the courtâs review is to the present, the higher the probability of emphasis being placed on the effect of the second principle of intertemporal law and a decision being made that factors in legal evolution.
4
4.1 Significance of Critical Date and Intertemporal Law in Territorial Disputes
As explained above, a territorial title held by a party is grounded in facts and acts prior to the critical date, and while facts and acts after the critical date cannot create title to the disputed territory, these facts and acts occurring after the critical date are within the scope of legal assessment under certain conditions. If an act by a party to a dispute continues from before the critical date to after it and does not improve the partyâs own legal position, this act has evidentiary value in terms of consistently supporting a position that existed from prior to the critical date.48
Therefore, when parties to a dispute present the critical date, it is important that they assert a critical date that secures evidence that is advantageous to assertions premised on their current position. The critical date is a tool that a court can utilize at its discretion to reach an effective resolution to a dispute. At the same time, because of its flexibility as a standard, it is also something that the parties to the dispute can adapt to their assertions in a way that is favorable to their position. This means it could play roles that are suited to the characteristics of specific case and parties to a dispute. This also applies to territorial disputes in East Asia.49
Intertemporal law, which delineates the application timeframe based on the critical date, consists of its first principle of assessing an act in terms of law at the time of the actâs occurrence and its second principle of the continued existence of a right needing to adhere to conditions regulated by the evolution of law. Due to its inclusion of these principles, intertemporal law enables the legal connection of territorial title across the stages of the creation of a right to the continued existence of said right, in response to the dynamism of law, in the form of effective possession via âcontinuous and peaceful display of territorial sovereignty.â From a chronological perspective of order, it also facilitates the treatment of the modern order based on international law, with established legal principles for territorial title and the preceding premodern normative order as a single integrated normative system that retains legal stability.50 This
The following section will review territorial issues involving Japan from this perspective, particularly the Takeshima (Dokdo) issue and the Senkaku Islands (Diaoyu Islands) issue.51 (The term âissuesâ is used because the question of whether disputes actually even exist is contested.)
4.2 Takeshima Issue
4.2.1 Critical Date
As candidate critical dates in the Takeshima (or, by its Korean name, Dokdo) issue, some observers assert January 28, 1952, when Japan voiced opposition to the establishment of a maritime boundary based on the Maritime Sovereignty Proclamation issued by the President of the Republic of Korea (rok) Rhee Syngman (referred to as the Syngman Rhee Line).52 Meanwhile, others assert
Key issues related to the critical date in a territorial dispute are when the dispute emerged between the parties due to a clear act, such as the act of claiming sovereignty over the disputed territory by one of the parties and when the dispute crystalized.
Both Japan and the rok have long asserted a historical basis for their assertions that Takeshima is their own territory.56 Japan bases its assertion in its measure to incorporate Takeshima as a territory from 1905 and its subsequent effective control, while the rok bases its assertions in measures taken by the Allied Powers starting from the Cairo Declaration and its own subsequent effective control. Opposition between the two sides regarding Takeshimaâs attribution first emerged with the establishment of a maritime boundary based on the Syngman Rhee Line on January 18, 1952 and Japanâs response thereto. The rok established a large maritime space around the Korean Peninsula with the Syngman Rhee Line. Since the space included Takeshima, the Japanese Government lodged a protest on January 28, 1952 that it did not recognize the rokâs territorial rights to Takeshima. The rok counterargued that Takeshima was rok territory. The opinions of the two sides were in direct opposition. The rok subsequently stationed coast guard forces on Takeshima from 1954 and took other measures such as building a lighthouse there. Japan proposed the
Although the rok has, since the 1965 Treaty on Basic Relations Between Japan and the Republic of Korea, consistently asserted that there is no dispute between the two States regarding Takeshima, it is not difficult to prove, based on the definition of the âdisputeâ concept adopted by the icj, that a dispute does exist between Japan and the rok even while respecting the subjective perceptions of each party.58
When is the critical date in this dispute? The prevailing view in the Takeshima case is that the rokâs establishment of the Syngman Rhee Line and Japanâs protest initiated the dispute between the two sides.59 From the standpoint of the crystallization of the dispute, the critical date could also be set in 1954 when Japan first called for referral of the issue to the icj, as this indicated the possibility of a legal resolution of the dispute. Regardless of which timing is designated as the critical date, if the issue of effectivités is involved,60 a key point in determining whether the acts by the rok, which currently has effective control of Takeshima, have any legal significance is whether the acts possess temporal continuity from before the critical date to after it. Hence, determining which of the parties (the rok or Japan) had âcontinuous and peaceful display of territorial sovereigntyâ prior to 1952 or 1954 and which acts should be deemed to be continuous acts extending from before to after the critical date are of decisive importance. If it is proven that the establishment
However, the timing of the emergence of a dispute and its crystallization might not necessarily constitute the critical date. Other important events related to territorial rights to Takeshima include the conclusion of the San Francisco Peace Treaty and the Treaty on Basic Relations Between Japan and the Republic of Korea. It might also be argued, based on the relativity of the critical date, that all evidence should be acknowledged without deciding a clear timing.63
4.2.2 Application of Intertemporal Law
Both Japan and the rok cite original title as a basis for territorial rights to Takeshima.64 This means that the parties asserted their rights to this territory in the process of joining the modern international order, based on the premise that the territory at issue was positioned within the normative order of the East Asian region, prior to the regionâs acceptance of modern international law originating in Europe.65 It is necessary to consider separately the characteristics of
However, if the applicable legal rules change in the transition from a premodern normative order to the modern order based on international law and there is an assertion of territorial sovereignty under modern international law, which has been accepted at least in East Asia, according to the application of intertemporal law, the conditions required by modern international law must be fulfilled. Based on judicial precedents to date, effective possession of the islands being disputed replaces or supplements the original title asserted by the parties.68 The reason is that â[t]he modern international law of the acquisition (or attribution) of territory generally requires that there be: intentional display of power and authority over the territory, by the exercise of jurisdiction and state functions, on a continuous and peaceful basis,â69 according to the Arbitral Award in the case between Eritrea and Yemen concerning a matter of sovereignty.70
Whether Japan and the rok are capable of arguing convincingly to satisfy the abovementioned conditions in the Takeshima issue hence depends on the intertemporal law function. The Japanese Government argues that its measure to incorporate Takeshima as a territory in 1905 reaffirmed its historic title, and that the incorporation measure and subsequent continuous display of state
4.3 Senkaku Islands (Diaoyu Islands) Issue
4.3.1 Critical Date
According to Japanâs assertion, it incorporated the Senkaku Islands as Japanese territory based on the Cabinet Decision of January 14, 1895. It asserts territorial rights to the Senkaku Islands premised on the legal principle of occupation of terra nullius.72 China, on the other hand, argues that the Diaoyu Islands are its inherent territory from ancient times.73 China explains that it held historic title to these islands in 1895 and hence that Diaoyu Islands were not terra nullius when Japan incorporated them as Japanese territory through occupation.74 In fact, the Ministry of Foreign Affairs of the Peopleâs Republic of China officially asserted Chinaâs sovereignty to Diaoyu Dao on December 30, 1971. Taiwan conveyed its own stance to the Japanese side on February 24, 1971.75
The Japanese Government has consistently asserted that no dispute exists regarding the Senkaku Islands. Based on the icjâs Judgment regarding the Preliminary Objections in the South West Africa cases that a mere assertion by one party is not sufficient to prove the existence of a dispute and that it must be shown that the claim of one party is positively opposed by the other,76 some observers agree with the Japanese Governmentâs stance that there is no dispute because exaggerated and unilateral claims that lack even the slightest bit
If a dispute over the Senkaku Islands exists between Japan and China or between Japan and Taiwan, there then arises the issue of when the critical date is. In a case in which one of the parties asserts acquisition by occupation, the point of contention is then whether the disputed area is terra nullius, and the critical date should therefore generally be the timing of the asserted acquisition by occupation.81
However, there did not exist a dispute when Japan asserted acquisition by occupation because there is no evidence of China lodging a protest against
4.3.2 Application of Intertemporal Law Principle
Looking at the Senkaku Islands issue from the standpoint of the critical date, Japan is clearly in an advantageous position vis-Ã -vis China and Taiwan considering its current effective control. This view reflects the fact that if the acts by China and Taiwan prior to the critical date explained above86 do not have continuity/cohesion with their acts after it, the current assertions of territorial
Furthermore, if, hypothetically, a court does not acknowledge a critical date and takes the position of considering all facts and acts by the parties as evidence, unless it acknowledges the existence of a clearer title, such as a treaty between the relevant parties that recognizes the islands as Chinese territory, or concludes that the actual occupation of the Senkaku Islands was the result of acts that are illegal under international law, the assertions by the Japanese side, which currently occupies the islands, are likely to carry more weight. However, in order to communicate Japanâs assertion to the court even more reliably, it is important for Japan to call for a critical date to be designated and for it to have a strict effect, and to undermine the evidentiary value of acts occurring after the critical date.
Additionally, if the historic title asserted by the Chinese side is based on the premodern East Asian normative order,88 it should be possible to question whether the title has been replaced or supplemented by measures provided for under the modern order based on international law that are capable of confirming the legal relation at the timing of the critical date â effective possession as seen in the âcontinuous and peaceful display of territorial sovereignty,â agreement between the relevant parties, and the transfer or inheritance of
4.4 Meaning of Exemption from Application of Intertemporal Law Principle in the Context of the Decolonization Process
The above review clarifies that critical date and intertemporal law play important roles in the Takeshima (Dokdo) issue as well as the Senkaku Islands (Diaoyu Islands) issue. Because of this, depending on the content of the assertion, there might be some benefit if, among these two rules, the intertemporal law function in particular is excluded. A notable characteristic of territorial disputes that have emerged since decolonization has been the increase in territorial and border disputes between States that were formerly colonies and had achieved independence. From the standpoint of intertemporal law, there is a tendency to apply it less strictly to territorial disputes between such States than to territorial disputes between European powers. The Advisory Opinion of the icj in the Western Sahara case is an example of the application of international law on territory that reflects the evolution of modern international law in view of progress in decolonization. While this could be considered a reformulation based on the second principle of intertemporal law that was formulated by the Arbitral Award in the Island of Palmas case, it could also be an
That is not to say that the territorial issues involving Japan are disputes between newly independent States and their shared former colonizer following the decolonization process. Nevertheless, in the context of linking territorial issues to colonialism, it is necessary to be aware of the possibility of political assertions about history, such as that Japanâs colonial control was unjust or that oneâs territory was invaded by Japan, being made in the trial process. While the question can be asked whether such assertions are valid legal arguments, it should nevertheless be noted that, through differences in the historical perceptions of the parties, there does exist an impetus for legal issues, in the context of modern international law, to be reformulated in favor of the side asserting that it was a colony.92 However, it should also be noted that the standpoint of criticizing the conservative nature of intertemporal law from the perspective of decolonization has only been expressed as a minority opinion in the icj.93
Nevertheless, this does not imply a rejection of historical reviews in territorial disputes in general, nor is such a rejection even possible. The degree of
5 Conclusion
The critical date concept is practical in its content and is used flexibly to achieve resolutions deemed appropriate by the courts and tribunals. In particular, although there is the rule that facts and acts occurring after the critical date should not be considered, it is possible to deviate from this rule in exceptional circumstances, provided doing so does not affect the legal relation at the time of the critical date. Under this formula, depending on the logics of the courts and tribunals in seeking a dispute resolution, it might acknowledge an inverted logical structure of setting the critical date at a time that would have a legal relation suited to a dispute resolution upon with the understanding that it will include facts and acts after the critical date in its considerations. However, in the ruling that it discloses publicly, it will designate the critical date first and seek subsequent facts and acts capable of confirming the legal relation at that time.
On the other hand, from the standpoint of a party, if it deems that it is preferable to obtain the courtâs acknowledgement of critical date to legitimize its own claims, the party needs to clarify whether it should take the position that, through the designation of the critical date, subsequent facts and acts should not be given any consideration, or if it should take the position that it is only possible to consider subsequent facts and acts for the purpose of confirming the legal relation at the time of the critical date. Furthermore, in the case of an assertion of historic title that depends on the premodern normative order, this must be replaced or supplemented with title under the modern order based on international law or a comparable concept.
However, independent of such intentions of the parties, the court might not designate critical date and instead seek to obtain information that it deems to be appropriate and would be useful for resolving the dispute. In this case, since the timeframe of the applicable laws theoretically widens to the timing
Despite limited opportunities to refer territorial disputes to the icj, the parties to the dispute should pay attention to the courtâs precedents and consciously align their own practices with these in the diplomatic process and the international arena. The rules of critical date and intertemporal law addressed in this chapter have evolved in judicial practice, and the underlying foundation of these rules consists of maintaining legal stability and the principle of good faith.95 Generally speaking, for diplomatic negotiations between the relevant parties to produce some sort of result, it is essential that there be a relation built on mutual trust and respect for related rules of international law. Therefore, the parties should ensure that their acts and assertions outside the court are, as much as possible, consistent with those within the judicial proceedings. This is particularly true of territorial disputes in which critical date and intertemporal law play important roles.96
M. Bennouna, Le droit international entre la lettre et lâesprit (Leiden: Brill, 2017), 264.
A. X. Fellmeth and M. Horwitz, Guide to Latin in International Law, Second Edition (Oxford: Oxford University Press, 2021), 287.
M. G. Kohen and M. Hébié, âTerritory, Acquisition,â in The Max Planck Encyclopedia of Public International Law, Volume ix, R. Wolfrum (ed.) (Oxford: Oxford University Press, 2012), 896â897.
Y. Onuma, International Law in a Transcivilizational World (Cambridge: Cambridge University Press, 2017), 310.
The following explanation overlaps with some of the content in Sakai Hironobu
D. H. N. Johnson, âThe Minquiers and Ecrehos Case,â International and Comparative Law Quarterly, vol. 3 (1954), 208; L. F. E. Goldie, âThe Critical Date,â International and Comparative Law Quarterly, vol. 12 (1963), 1251.
Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), icj Reports 2007, 697â698, para. 117.
Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia / Malaysia), icj Reports 2002, 682, para. 135.
Territorial and Maritime Dispute (Nicaragua v. Colombia), Merits, icj Reports 2012, 652, paras. 67â68.
Kohen and Hébié, supra note 3, 897. See also, The Minquiers and Ecrehos case, icj Reports 1953, 59â60; Case concerning the Location of Boundary Markers in Taba between Egypt and Israel. (Egypt / Israel), Reports of International Arbitral Awards, vol. xx, 45, para. 175.
D. Bardonnet, âLes faits postérieurs à la date critique dans les différends territoriaux et frontaliers,â in Le droit international au service de la paix, de la justice et du développement. Mélanges Michel Virally (Paris: Pedone, 1991), 78.
The Island of Palmas Case (Netherlands / the United States of America), Reports of International Arbitral Awards, vol. ii, 845.
Therefore, critical date âplays a preliminary role for the purposes of application of the principle of intertemporal lawâ (G. Distefano, âTime Factor and Territorial Disputes,â in M. G. Kohen and M. Hébié (eds.), Research Handbook on Territorial Disputes in International Law (Cheltenham: Edward Elgar, 2018), 398) and âen précisant dans le temps le moment constitutif du différend, lâorgane juridictionnel fixera de même, en termes de droit intertemporel, les principes et les normes juridiques applicables pour le règlement du litigeâ (L. I. Sánchez RodrÃguez, âLâuti possidetis et les effectivités dans les contentieux territoriaux et frontaliers,â Recueil des cours, Tome 263 (1997), 280â281).
Sakai Hironobu
Legal Status of Eastern Greenland (Denmark v. Norway), pcij Series A/B, no. 53, April 5th, 1933, 45. The Court decided that the critical date must be the point at which Denmark lodged its protest against occupation by Norway, and selected the modern legal system as the applicable legal system. G. Cohn, âStatut juridique du Groënland oriental,â Revue de Droit international et de Législation comparée, 1933, 566â567.
pcij Series A/B, no.53, 54.
Ibid., 62.
Ibid., 63.
icj Reports 1953, 56.
According to the icj, Ecrehos was seen and treated as part of the Fief of the Channel Islands held by the King of England at the start of the 13th century and positioned under the premodern legal system at that time. The King of England exercised jurisdiction at the start of the 14th century, and British authorities exercised State functions in these islands in the 19â20th centuries. These acts placed Ecrehos under the modern legal system. Ibid., 67. Similar logic was applied to the Minquiers. Ibid., 70.
Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), icj Reports 2002, 404â405, para. 205.
Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia / Malaysia), ibid., 669, para. 96.
The Eritrea-Yemen Arbitration, First Stage: Territorial Sovereignty and Scope of the Dispute (Eritrea / Yemen), Reports of International Arbitral Awards, vol. xxii, 310â311, paras. 441â447. According to the Arbitral Tribunal, classical Islamic law concepts practically ignored the principle of âterritorial sovereignty,â a basic feature of international law in 19th Western Europe. Ibid., 245, para. 130.
In the above-mentioned Qatar-Bahrain case, Bahrain claimed possession of Zubarah based on historic title with a basis in the non-European normative order. However, the icj rejected Bahrainâs assertion because Great Britain, of which Qatar and Bahrain were former protectorates, did not recognize Bahrainâs sovereignty over the whole peninsula, including Zubarah, in the Anglo-Ottoman Convention of 1913. Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qater v. Bahrain), Merits, icj Reports 2001, 66â69, paras. 82â97.
M. Kohen, âOriginal Title in the Light of the icj Judgment on Sovereignty over Pedra Branca / Batu Puteh, Middle Rocks and South Ledge,â Journal of the History of International Law, vol. 15 (2013), 151â171.
Sovereignty over Pedra Branca / Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia / Singapore), icj Reports 2008, 28, para. 33.
Ibid., 28, para. 36.
Ibid., 35, para. 59.
Ibid., 50, para. 119.
Reports of International Arbitral Awards, vol. ii, 839â840, 846, 855, 857, 867â870.
However, the icj emphasized that both parties were not contesting such a characterization of the Sultanate of Johor. icj Reports 2008, 33, para. 52.
Ibid., 37, paras. 68â69.
Fukamachi Tomoko
However, in the case of issues of territorial attribution after decolonization, even if intemporal law is applied, todayâs icj cannot adopt the logic of the Arbitral Award in the Island of Palmas case, which was made in a colonial context. See S. Huh, âTitle to Territory in the Post-Colonial Era: Original Title and Terra Nullius in the icj Judgments on Cases Concerning Ligitan / Sipadan (2002) and Pedra Branca (2008),â European Journal of International Law, vol. 26 (2015), 724.
There is also a view that this is done in response to the unique characteristics of title grounded in the premodern normative order. K. Y. L. Tan, âThe Role of History in International Territorial Dispute Settlement: The Pedra Branca Case (Singapore v Malaysia),â in J.-H. Paik, S.-W. Lee and K. Y. L. Tan (eds.), Asian Approaches to International Law and the Legacy of Colonialism. The Law of the Sea, Territorial Disputes and International Dispute Settlement (New York: Routledge, 2013), 76.
Kohen and Hébié, supra note 3, 897.
icj Reports 1953, 59â60. In the Judgment in the Pulau Ligitan and Pulau Sipadan case, even if the critical date is defined as the date of the crystallization of the dispute and subsequent acts are excluded, âsuch acts [that] are a normal continuation of prior acts and are not undertaken for the purpose of improving the legal position of the Party which relies on themâ are deemed to not be excluded. icj Reports 2002, 682, para. 135.
Reports of International Arbitral Awards, vol. ii, 866.
icj Reports 1953, 59â60.
Ibid., 59.
R. Y. Jennings, The Acquisition of Territory in International Law (Manchester: Manchester University Press, 1963), 34.
Both parties agreed to 1947, the year of Indiaâs independence, as one of the ârelevant datesâ (Case concerning the Indo-Pakistan Western Boundary (Rann of Kutch), (India / Pakistan), Reports of International Arbitral Awards, vol. xvii, 18â19). However, Pakistan also argued that 1819, when Kutch became a vassal of the British, was a critical date (ibid., 64â65). According to the final Award of the Tribunal, the acts of the British Government during its rule was deemed by both parties to be of significance. In that sense, Indiaâs independence is of decisive importance. However, agreement on a precise critical date could not be reached (ibid., 528). See also, A. L. W. Munkman, âAdjudication and Adjustment â International Judicial Decision and the Settlement of Territorial and Boundary Disputes,â British Year Book of International Law, vol. xlvi (1972â1973), 74â75.
According to the same Arbitral Award, the concept of the critical date has only played a significant role in cases where it was necessary to establish exactly and precisely when in the past sovereignty was exercised by a State over a given territory, as in the Island of Palmas and Eastern Greenland cases, which was not the case in this dispute. Dubai-Sharjah Border Arbitration (Dubai / Sharjah), International Law Reports, vol. 91, 594.
Sir Robert Jennings and Sir Arthur Watts (eds.), Oppenheimâs International Law. Ninth Edition. vol. 1. Peace. Parts 2 to 4. (London: Longman, 1992), 711.
In the Arbitral Award in the Argentine-Chile Frontier case, since the parties agreed that the notion of the critical date is not a rigid one and that a good deal is left to the appreciation of the Court of Arbitration, and moreover that the critical date is not necessarily the same for all purposes, the Court deemed âthe notion of the critical date to be of little value in the present litigation,â and decided to âexamin[e] all the evidence submitted to it, irrespective of the date of the acts to which such evidence relate.â Argentine-Chile Frontier Case (Argentine / Chile), Reports of International Arbitral Awards, vol. xvi, 167.
Fukamachi Tomoko
Therefore, this timing is the effective critical date designated by the court, and subsequent review aims to confirm the legal relationship at the time of the critical date. In the Cameroon-Nigeria case regarding a territorial issue related to the Bakassi Peninsula, while Cameroon asserted the date of the completion of the decolonization process (October 1, 1961) as the critical date (Memoire de la Republique du Cameroun, par. 3.384) and Nigeria, which had effective possession, called for January 1994, when Cameroon protested and the dispute emerged, to be the critical date (Counter-Memorial of the Federal Republic of Nigeria, para. 10.19), the icj did not specify a critical date. However, the icj decided that under the Anglo-German Agreement of 1913, the Bakassi Peninsula passed from Britain to Germany and subsequently became part of Cameroon, confirmed that the transfer of sovereignty based on the 1913 Agreement had a decisive influence on the attribution of the territory, and hence reviewed subsequent facts and State acts. icj Reports 2002, 407, para. 209, 409â412, paras. 212â217.
Kohen and Hébié, supra note 3, 897.
S. Lee, âIntertemporal Law, Recent Judgments and Territorial Disputes in Asia,â in S.-Y. Hong and J. M. Van Dyke (eds.), Maritime Boundary Disputes, Settlement Processes, and the Law of the Sea (Leiden: Brill, 2009), 124â126.
See Sakai, supra note 5, 125.
Japan also has the Northern Territories issue with Russia. The Northern Territories issue involves a complex interweaving of issues related to the effectiveness and interpretation of a number of related documents, including confirmation of territorial rights via the application of general rules of international law seen in many other territorial disputes, the effectiveness of the Yalta Agreement toward Japan, and interpretation of the scope of the Kuril Islands for which Japan abandoned its claims in accordance with Article 2 (c) of the San Francisco Peace Treaty (see Sugihara Takane
Minagawa Takeshi
Serita KentarÅ, âSome Legal Aspects of Territorial Disputes over Islands,â in Hong and Van Dyke (eds.), supra note 49, 142.
There is the view that the Japanese Government has indicated that, because it proposed to the rok that the matter should be referred to the icj, it believes the timing of the proposal should be the critical date. H. K. Lee, âKoreaâs Territorial Rights to Tokdo in History and International Law,â Korea Observer, vol. 29 (1998), 89.
Ha Yonsu
Regarding the rok Governmentâs assertion, see Ministry of Foreign Affairs, rok, âThe Korean Governmentâs Basic Position on Dokdo,â
See Taijudo Kanae
While a mere assertion of a dispute is not sufficient to prove its existence (South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, icj Reports 1962, 328), if the validity or strength of the assertion need not be put to a plausibility or other test (Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Ukraine v. The Russian Federation), Preliminary Objections, pca Case no. 2017â06, para. 188.), then it should not be too difficult to prove the existence of a dispute based on the Japanese sideâs legal assertions, including its territorial title to Takeshima.
Nakano Tetsuya
There is the view that, from the position of the rok side, its effectivités, comprising its subsequent acts following discovery, would not only cure inchoate title but also confirm the validity of the original title (L. Mayali and J. Yoo, âResolution of Territorial Disputes in East Asia: The Case of Dokdo,â Berkeley Journal of International Law, vol. 36 (2018), 536), but such a view does not include a critical date perspective.
The situation in this case is comparable to the Legal Status of Eastern Greenland case and the Minquiers and Ecrehos case. Miyoshi Masahiro
Serita KentarÅ
In particular, from the standpoint of the rok side, which emphasizes its current effective control, the assertion would be made that all historical facts related to Takeshima (Dokdo) should be considered without setting a critical date. J. M. van Dyke, âLegal Issues Related to Sovereignty over Dokdo and Its Maritime Boundary,â Ocean Development & International Law, vol. 38 (2007), 164.
Ha, supra note 55, 228.
Pae Keun Park
As an example of research that examined the premodern normative order in East Asia and the acceptance of modern European international law, see Yanagihara Masaharu, âSignificance of the History of the Law of Nations in Europe and East Asia,â Recueil des cours, vol. 371 (2015), 317â349.
It has been mentioned above that there may be views that consider the possibility of the existence of normative orders separate from modern international law, in light of the content of the Pedra Branca and other cases. At the same time, the Separate Opinion of Judge Fortier accompanying the Judgment in the Qatar-Bahrain case indicates, while quoting from the Advisory Opinion in the Western Sahara case, that there exist different regional concepts of sovereignty as basis for territorial sovereignty. Separate Opinion of Judge Fortier, icj Reports 2001, 456â457, para. 28.
icj Reports 1953, 56â57.
Reports International Arbitral Awards, vol. xxii, 268, para. 239.
However, Nakano Tetsuya argues that âmodern international law generally did not demand reaffirmation of territorial intent by States that, like Japan, became members of the âinternational communityâ regulated by modern international law originating in Europe at a particular point in history.â Nakano Tetsuya
TaijudÅ, supra note 57, 143.
Ministry of Foreign Affairs of Japan, âSenkaku Islands Q & A,â
State Council Information Office, The Peopleâs Republic of China, âDiaoyu Dao, an inherent Territory of China (26 September 2012),â
Ministry of Foreign Affairs of the Peopleâs Republic of China, âStatement of the Ministry of Foreign Affairs of the Peopleâs Republic of China (10 September 2012),â
Tomabechi Masato
icj Reports 1962, 328.
Nakatani Kazuhiro
âZadankai â Tanaage ni yoru Kaiketsu wa Kanoukaâ
Interpretation of Peace Treaties, icj Reports 1950, 74.
This point is likely to be important in determining whether it can be convincingly shown that there does not exist a dispute in the case in question based on the definition of âdisputeâ in recent international judicial precedents. Regarding icj precedents on deciding the existence of a âdispute,â refer to EtÅ Junichi
Sir Gerald Fitzmaurice, The Law and Procedure of the International Court of Justice, vol. i (Cambridge: Cambridge University Press, 1993), 270. Therefore, the question of whether the Senkaku Islands were terra nullius when the Japanese Government implemented its measure to incorporate them as part of its territory is an important one. If the islands were terra nullius, China loses the legal basis it asserts. Conversely, there is a view that if China can prove that the islands were Chinese territory up to that time, Japan can no longer argue territorial possession based on effective possession (T. Cheng, âThe Sino-Japanese Dispute Over the Tio-yu-tai (Senkaku) Islands and the Law of Territorial Acquisition,â Virginia Journal of International Law, vol. 14 (1974), 262). In that case, the critical date would be January 14, 1895.
R. M. Scoville, âA Defense of Japanese Sovereignty over the Senkaku / Diaoyu Islands,â The George Washington International Law Review, vol. 46 (2014), 585.
G. Poissonnier and P. Osseland, âà qui appartiennent les îles Senkaku / Diaoyu?,â Journal du Droit International, Tome 135 (2008), 483.
Regarding the invocation of Chinaâs acquiescence as the legal basis for Japanâs assertion, see C. Ramos-Mrosovsky, âInternational Lawâs Unhelpful Role in the Senkaku Islands,â University of Pennsylvania Journal of International Law, vol. 29 (2008), 923â924.
Matsui YoshirÅ
For an argument that references the Arbitral Award in the Clipperton Island case due to the characteristics of the Senkaku Islands, such as a lack of permanent residents, and considers Chinese acts, such as the use of the Senkaku Islands as navigation markers, prior to 1895 to constitute symbolic acts and evidence that the Senkaku Islands were not terra nullius in 1895, see H. Schulte Nordholt, âDelimitation of the Continental Shelf in the East China Sea,â Netherlands International Law Review, vol. 32 (1985), 147â148.
Miyoshi Masahiro
Regarding the point that the Meiji Government itself linked these uninhabited islands to Chinese sovereignty when it conducted the survey of the Senkaku Islands in November 1885 and was aware that they were âprobably under the influence of the fading idea of tribute system,â see X. Zhang, âDiaoyu / Senkaku Dilemma: To Be or not to Be?,â KokusaihÅ GaikÅ Zasshi
However, there is also the view that since land and maritime space had been legitimately demarcated over many years in relations with adjacent lands as part of the Hua-Yi distinction under the Sinocentric tribute system and there therefore did not exist a clear concept of territorial title held by a single sovereign, it might be possible to argue for the existence of a unique international order in East Asia and make a territorial claim based on such an order, rather than a territorial claim based on Western-centric international law. H. Nasu and D. R. Rothwell, âRe-Evaluating the Role of International Law in Territorial and Maritime Disputes in East Asia,â Asian Journal of International Law, vol. 4 (2014), 64â65.
Matsui YoshirÅ, âBetween History and International Law: Senkaku / Diaoyu Dispute Revisited,â KokusaihÅ GaikÅ Zasshi
Separate Opinion of Vice-President Ammoun, Western Sahara, icj Reports 1975, 85â87; Separate Opinion of Judge Forster, ibid., 103; Separate Opinion of Judge Boni, ibid., 173â174. The same criticism is seen in Separate Opinions on the Judgment in the Cameroon-Nigeria case. Separate Opinion of Judge Ranjeva, icj Reports 2002, 469â471, paras. 2â6; Separate Opinion of Judge Al-Khasawneh, ibid., 495â496, para. 5.
For example, regarding Takeshima (Dokdo), there is the view that the period of Japanese control of the Korean Peninsula during 1905â45 cannot be considered in the current Japan-rok dispute because âthat control is now recognized as having been wrongful and highly injurious to the Koreansâ (van Dyke, supra note 63, 181). This reflects a stance of assessing past acts in the context of current laws.
Although not in the context of a territorial dispute, in its Advisory Opinion on the legal consequences of the separation of the Chagos Archipelago from Mauritius in 1968, the icj relied on the first principle of intertemporal law and deemed it necessary to identify, by reference to the period of the decolonization process between the separation in 1965 and Mauritiusâ independence in 1968, the rules of international law that are applicable to that process. At the same time, however, the icj also effectively included content from the second principle of intertemporal law and deemed that it would rely on legal instruments which postdate the period in question in order to confirm or interpret whether the law on self-determination, which has evolved since the adoption of the Charter of the United Nations and of the 1960 resolution entitled âDeclaration on the Granting of Independence to Colonial Countries and Peoples,â has been established as customary law. Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, icj Reports 2019, 130, paras. 140â143. That the icj considered the evolution of international law following the decolonization process, while maintaining the existing framework of intertemporal law, is noteworthy.
In his Separate Opinion regarding the icjâs Judgment in the Qatar-Bahrain case, Judge Kooijmans criticized the ruling, stating that only by taking into account the full spectrum of the partiesâ history can their present rights be properly evaluated and that by not giving the full historical context its due, the icj had unnecessarily curtailed its scope for settling the dispute in a legally convincing way. Separate Opinion of Judge Kooijmans, icj Reports 2001, 226, para. 4.
The introduction of intertemporal law in the field of international law area arose, to some extent, from the need to stabilize the status quo (V. Z. Blum, Historic Titles in International Law (The Hague: Martinus Nijhoff, 1965), 206â207), with the stability thus argued for being legal stability (M. G. Kohen, âLâinfluence du temps sur les règlements territoriaux,â in Société Française pour le Droit International (ed.), Colloque de Paris, Le Droit international et le Temps (Paris: Pedone, 2001), 155). Regarding the relation between critical date and the good faith principle, see R. Kolb, Good Faith in International Law (Oxford: Hart Publishing, 2017), 156â157.
It might be important for a State to maintain continuity of a policy, rather than legal continuity, even if it means sacrificing the latter, and, in such cases, the State might seek to avoid referring the dispute in question to a court so that it is not criticized for a lack of legal continuity. While this type of political expediency runs contrary to the law, it is widely recognized because of the limited role of international law in international relations. R. Kolb, Réflexions sur les politiques juridiques extérieures (Paris: Pedone, 2015), 26. However, even if a Stateâs behavior is in fact contradictory, either synchronically or diachronically, depending on the factual nature of the issue that requires legal resolution, it is still important for the State to maintain continuity in its legal positions. In particular, for issues that address geographical features with few changes over time, consistent theory should be considered to be almost automatically required. G. de Lacharrière, La politique juridique extérieure (Paris: Economica, 1983), 189.
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