SABARIMALA TEMPLE: THE ANTAGONISM OF FAITH AND LAW
March 2, 2019
SECTION 377 UNNATURAL OFFENCE
March 17, 2019

JUSTIFYING THE UNJUST: AN ANALYSIS OF INTERTEMPORAL LAW

INTRODUCTION
Treaty of Westphalia (1648) marked the emergence of sovereign state system and led to the universalization of international relations which in turn initiated the development of international law.This evolving nature of international law has posed a dilemma before the judicial forums to decide the applicable legal regime out of the various regimes dealing with a subject matter. In international law it is a common scenario that an act which is valid at one point of time stands invalidated over a period of time. For instance, annexation was a valid mode of acquisition of territory before the Kellogs-Briand pact and Charter of United Nations. It may also happen that a contemporary dispute involves not only reliance upon the exercise of state authority but the invocation of an ancient, original and historic title. At times application of these different legal regimes leads to conflicting decisions. In the cases involving such transition of law, the doctrine of inter-temporal law has been evolved as an adjudicatory tool.
Inter-temporal law became part of the international law after the celebrated dicta of Judge Huber in the Island of Palmas Case. He promulgated the doctrine in two limbs. In the first limb he observed, “a juridical fact must be appreciated in accordance with law contemporary with it and not in accordance with law when a dispute in regard to it arises or falls to be settled.”
He further opined, “The same principle which subjects the act creative of a right to the law in force at the time the right arises, demands that the existence of the right, in other words its continued manifestation, shall followthe conditions required by the evolution of law”. This is the second limb of the doctrine of inter-temporal law (also known as evolutionary principle of inter-temporal law) which remains controversial and the scholarly opinion is divided in this regard. One faction consisting of notable scholars like Phillip C Jessup and W. Fersfelt argues that this rule will lead to a chaotic society since there would be a requirement of continuous verification of one’s rights being in accordance with the evolving principles of law notwithstanding its legitimate inception. Whereas, the other faction comprising T. O. Elias and Schwarzenberger argues that both limbs of inter-temporal law are complementary to each other and ensure a proper balance between the rights of rivals.
Notwithstanding the disagreement as to the jurisprudential validity of the second limb of inter-temporal law, the doctrine has been widely applied by the adjudicatory bodies in a series of cases. However, the widespread and unconditional use of the doctrine by the judicial forums have at times resulted in grave injustice or provided a potential justification to do so.
CLAIM OF CHINA OVER SOUTH CHINA SEA
South China Sea has been a strategically and economically important area and has been central to the conflicting interests of several states. China has every now and then made its presence felt in the region. It claims maritime entitlements more than that prescribed under United Nations Convention on Law of Sea (hereinafter UNCLOS) along with claiming sovereignty over various islands in the region. Beijing says that several islands in the stretch were discovered and mapped by Chinese sailors thousands of years ago during various naval expeditions andare in present an integral parts of China.
Although China has never given any official explanation for its extended maritime entitlement, opinions of two renowned Chinese scholars ZhiguoGao and BingbingJia place reliance upon inter-temporal law doctrine. According to them, China invokes the historic regime that preceded the UNCLOS to draw the U-shaped line, called 9-dash line and to claim extended maritime entitlement and sovereignty over the disputed islands. They cite centuries of Chinese naval voyages and expeditions including one led by famous Ming Admiral ZhengHe and maritime regulations over the area by various dynasties starting from Yuan dynasty to Qing dynasty.
Although in the year 2016, the Permanent Court of Arbitration (hereinafter PCA) rejected the claim of China for extended maritime entitlements but it needs to be emphasized that the claim of China was rejected since the tribunal concluded that the state practice of China does not show that it was enjoying any historic rights instead, it was enjoying freedom of high seas in the region
Thus, the PCA entertained the claim of China on the basis of intertemporal law and did not reject the claim on the ground of inapplicability of the concerned doctrine but on merits of the case thereby, widening the scope of claim over land on historical grounds. This has also opened the floodgates for more such claims wherein a territory is claimed by a nation on the basis of a historical proposition, howsoever unjustified it may appear to be in the present context. To this day, China claims that its rights over the maritime zones and islands in South China Sea arise under the historical regime preceding UNCLOS and that according to intertemporal law, principles of historical regime rather than the UNCLOS should be applied in its case.
Giving precedence to the historic position over UNCLOS is bound to severely affect rights of the interested nations in the dispute. So far China has been able to check the opposition from the countries by awe of its military strength and the doctrine of intertemporal law allows for its legal validation.
ISRAEL CLAIMING VALIDITY FOR ITS ESTABLISHMENT
At the outset, one needs to assess the course of three international events that lead to the creation of Israel:
  1. 1922 British Mandate for Palestine
  2. United Nations General Assembly Resolution 181 of 1947
  3. Israel Declaration of Independence on 14-15 May, 1948
The 1922 mandate is a binding resolution of Council of League of Nations which required Great Britain to fulfill the terms of Balfour Declaration, 1917 which was issued by British Foreign Secretary of Zionist Organization, Lord Balfour promising to create a ‘national home’ for Jewish people in Palestine while safeguarding the rights of the inhabitants of Palestine.
In the year 1947, United Nations General Assembly (UNGA) adopted for the partition of the then Palestine into three parts – a Jewish state, an Arab state and an International administration of a corpus seperatumin Jerusalem area (for a period of 10 years). Thereafter, Israel unilaterally declared independence on 14 May, 1948 (made hours before the relinquishment of British mandate, 1922). The unilateral declaration of Independence led to the Arab- Israel war of 1948 as a result of which, Israel gained control of the area proposed as Jewish land under the UNGA resolution along with almost 60% of the proposed Arab nation and consequently, no nation was ever created for people of Palestine.
A forceful ground for challenging the validity of the unilateral declaration of independence by Israel is violation of the right of self- determination of the people of Palestine. However, backed by scholars like Crawford and O’ Keefe, Israel contends that in 1948 when the unilateral declaration was made, the right to self-determination was not recognized in international law with such persistence as it is recognized today.  It has gained its roots in international law sometime around 1960. Therefore, with the application of doctrine of inter-temporal law, it can be easily inferred that the unilateral declaration of independence of Israel cannot be invalidated for compromising the right of self- determination of people of Palestine.
This claim of Israel has been recognized by most of the countries including United States. American Senator, James Inhofe, said in his speech that “every time there is a dig in Israel, it does nothing but support the fact that Israelis have had a presence there for 3,000 years. The coins, the cities, the pottery, the culture — there are other people, groups that are there, but there is no mistaking the fact that Israelis have been present in that land for 3,000 years. It predates any claims that other peoples in the region may have”
Thus, the principle of self-determination is well imbedded in Public International Law today, but Isreal has been successfully been able to evade the obligations arising from the well rooted principle of self-determination by using the principle of intertemporal law as a cloak.
PROBLEM WITH THE APPROACH
Widespread and unconditional application of the doctrine of inter-temporal law has at times led to results which have shaken the roots of the existing international law principles. For instance,invocation of the doctrine has validated the establishment of Israel and straight away denied the right of self-determination to people of Palestine notwithstanding the gross human right violations by Israel in Palestine. Similarly, PCA may have denied the extended maritime entitlement to China owing to its inability to prove its historic rights over South China Sea but in the same arbitral award PCA observed that if China is able to prove its sovereignty over the disputed islands in South China Sea on the basis of historic title (through the application of inter-temporal law), it may claim maritime jurisdiction on the basis of same.  Consequently, the claim of other nations would be prejudiced even if based on settled principles of International law.
CONCLUSION
The doctrine if at all is applied by the adjudicatory bodies, should be in a restricted manner and to the extent that it is not given precedence over the settled principles of the international law like the right of self-determination. The international judicial forums while applying the doctrine of inter-temporal law should not be completely indifferent to the existing conditions and consequences that the application of inter-temporal law would ensue.For instance, contemporary conduct of the parties should be taken into considerationif the case involves gross human rights violations by the nation claiming right based on the application of inter-temporal law. In other words, equity and justness should not be sacrificed at the altar of intertemporal law.

ABOUT THE AUTHORS

Anubhav Bijalwan is a third-year student at Dr. Ram Manohar Lohiya National Law University, Lucknow. His areas of interest include Constitutional Law, Criminal law and Public International Law.

 

 

 

 

Deeksha Gupta is a third-year student at Dr. Ram Manoher Lohia National Law University, Lucknow. She is  keen towards pursuing academic research in matters involving the interplay between criminal law and constitutional law.

 

 

 

 

In Content Picture Credit: Devdiscourse

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