The Law and Procedure of the International Court of Justice, 1951-4: Points of Substantive Law, Part II
![handle is hein.journals/byrint32 and id is 28 raw text is: THE LAW AND PROCEDURE OF THE
INTERNATIONAL COURT OF JUSTICE, 1951-4:
POINTS OF SUBSTANTIVE LAW. PART II'
By SIR GERALD FITZMAURICE, K.C.M.G.
Legal Adviser to the Foreign Office
I. TERRITORIAL SOVEREIGNTY. DISPUTED CLAIMS TO
TERRITORY (THE CASE OF THE MINQUIERS AND
THE ECREHOS)
§ i. THE 'CRITICAL DATE'
[NOTE-This section breaks some new ground, and the views put forward are
tentative.]
(i) GENERAL ASPECTS
(a) Definition. The 'critical date' in relation to any dispute has been
defined as the date after which the actions of the parties can no longer affect
the issue.2 Such a date must obviously exist in all litigated disputes, if only
for the reason that it can never be later than the date on which legal pro-
ceedings are commenced. The actions of the parties after that date cannot
affect their legal positions or rights as they then stood. In the case of dis-
puted claims to territory the question of the critical date tends to assume
special prominence, both because so much may turn on that date, and be-
cause the question of what it should be, may itself be one of the principal
issues in the case. The point was put on behalf of the United Kingdom in
the Minquiers case as follows :3
.... the theory of the critical date involves.., that, whatever was the position at the date
The reader is referred to footnote i on p. 37, of the author's corresponding article in the
previous issue of this Year Book, 31 (1954). In the cycle of studies on the workof the International
Court during the period 31 March 1951 to 31 March 1954, the first article, in this Year Book,
30 (1953), dealt with the subject of General Principles. Last year's article on Points of Substantive
Law, Part I, dealt with Maritime Law and Territorial Waters, with particular reference to the
Norwegian Fisheries case. The present article completes the subject of Substantive Law under
the two heads of (I) Territorial Sovereignty and Disputed Claims to Territory, with particular
reference to the case of the Minquiers and the Ecrdhos; and (II) Miscellaneous Points of Sub-
stantive Law.
2 Cf. the article by Mr. D. H. N. Johnson on 'Acquisitive Prescription' in this Year Book,
27 (1950). Other possible definitions, derived from the United Kingdom argument in the case
of the Minquiers and the Ecrdhos (I.C.J. Pleadings and Oral Arguments in the case, vol. ii, pp. 48
and 61) might be:
'... the date by reference to which-or ... by reference to the legal and factual position exist-
ing at which-the merits of the parties' claims are to be determined';
the date on which the situation is deemed to have become crystallized';
.... the date [after which] the acts of the parties ... cannot alter the legal position so as either
to improve or prejudice the claim of either party';
t... the date . . . on the basis of the position [at which], as it [then] existed . .., the respective
claims of the parties will . . . have to be evaluated';
.. the date as at which the issue of sovereignty falls to be determined'.
In the speech of the present writer-I.C.J. Pleadings in the case, vol. ii, p. 64.](ViewImageLocal?handle=hein.journals/byrint32&div=5&collection=&method=preview&ext=.png&size=3)
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The Law and Procedure of the International Court of Justice, 1951-4: Points of Substantive Law, Part II
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