Some Benevolent Remarks Regarding the Theory of Historical Consolidation of Territorial Titles

Abstract

Time plays an important role in territorial disputes, maritime and land alike, from three yet interrelated standpoints. First, critical date is a habitue of international adjudication so that it would be hardly impossible to conceive a judicial settlement of disputes without reference to it. Elsewhere, I noted that “[by] determining the date at which the dispute is definitively ‘crystallized’ – namely the main effect of critical date – a judicial organ will be able at the same time to set within the framework of inter-temporal law, the principles and rules applicable for the settlement of the dispute”.1 A the same time, the determination of the critical date allows the tribunal to distinguish between those facts that may be brought before it by the Parties to prove their claim and those that must be, in principle, be rejected for they are “carried with the sole purpose of establishing its sovereignty while the latter is precisely and overtly challenged by another state”.2 The second dimension is that of the evolution of applicable Law. Since public international law does evolve continuously, a legal fact which admittedly produces some legal effects at a given time (and thus at a corresponding phase of the evolution of the Law) must, in order for these effects to continue to exist, fulfill relevant conditions to this effect that the Law imposes. Hence, one ought to distinguish – with regard to territorial disputes in public international law – between the birth of the title (upon which stands territorial sovereignty)3 and its continued existence. In other words, the evolution of the law interacts with two different (temporal) stages in the life of a territorial title. Therefore, and as a general rule, it shall be noted that the need to uphold the title in conformity with the “legal systems prevailing at successive periods”4 of time flows from the composite structure of most (if not all) of the territorial titles. Law requires then that other “vesting facts” add up to the first “vesting fact”, having given birth to the original title, in order for the territorial title to strengthen and at the same time to be at consonance with the prevailing legal system, thence the close intertwining of the principle of inter-temporal law with the very notion of “better title”. The third dimension is that precisely of conflicting territorial titles over time and it will be the focus of this short study. It will be shown in the following pages that these three dimensions “Time” are intimately and ultimately intertwined.