|II.||Substantive International Law - Second Part|
|1.||TERRITORY OF STATES|
|1.1.||Acquisition and Loss|
Case Concerning Maritime
Delimitation and Territorial
Question between Qatar and
Bahrain (Qatar v. Bahrain)
Judgment of 16 March 2001
[pp. 99-100] 196. Bahrain claims
that Qit'at Jaradah comes under Bahraini sovereignty,
since it has displayed its authority over it in various
ways, and that this was recognized by the British Government
in 1947. In this respect it has referred to a number
of activities, including the erection of a beacon,
the ordering of the drilling of an artesian well, the
granting of an oil concession, and the licensing of
fish traps. Qatar contends that Qit'at Jaradah, being
a low-tide elevation, cannot be appropriated, and that,
since it is situated in the part of the territorial
sea which belong to Qatar, Qatar has sovereign rights
197. The Court first notes that Qit'at Jaradah is a very small island situated within the 12-mile limit of both States. According to the report of the expert commissioned by Bahrain, at high tide its length and breadth are about 12 by 4 metres, whereas at low tide they are 600 and 75 metres. At high tide, its altitude is approximately 0.4 metres.
Certain types of activities invoked by Bahrain such as the drilling of artesian wells would, taken by themselves, be considered controversial as acts performed à titre de souverain. The construction of navigational aids, on the other hand, can be legally relevant in the case of very small islands. In the present case, taking into account the size of Qit'at Jaradah, the activities carried out by Bahrain on that island must be considered sufficient to support Bahrain's claim that it has sovereignty over it.
198. In this context the Court recalls that the Permanent Court of International Justice observed in the Legal Status of Eastern Greenland case that
"It is impossible to read the records of the decisions in cases as to territorial sovereignty without observing that in many cases the tribunal has been satisfied with very little in the way of the actual exercise of sovereign rights, provided that the other State could not make out a superior claim." (P.C.I.J., Series A/B, No. 53, p. 46.)
[p. 159 J.D.O. Bedjaoui, Ranjeva and Koroma] 38. In the present case, the indivisibility of the consent has not been established; it is simply presumed. In political terms, the nature of the relationship between the protecting Power and the protected State did not permit the use of any language other than the deferential terms in which the local rulers expressed themselves; thus to interpret that language as evidence of consent to the renunciation of territorial jurisdiction is in reality to give the opposite sense to the natural meaning of the words and conduct in 1939. In legal terms, when the Judgment invokes against Qatar its consent to the substance of the 1939 decision - a consent that was in reality hypothetical - , it reproaches Qatar with its failure to abide by a decision with which it had already been threatened in veiled terms since 1937. Independently of the fraudulent nature of the manoeuvres of the British representatives, the question is whether Qatar was legally bound to abide by the decision. The answer must be a negative one. In the matter of territory, consent to a renunciation of sovereignty cannot be presumed; the renunciation must be expressed and established in unequivocal terms. This is an absolute rule in international law. Agreement to a power on the part of the United Kingdom to dispose of sovereignty over the Hawar Islands has not been established. Consent to the proceedings, even supposing that it was validly given - quod non - did not signify automatic consent to the final decision. There is nothing in the evidence submitted to the Court, and in particular in the letters of Qatar cited in the Judgment, to show that Qatar gave its consent to be legally bound by the future decision.
[pp. 168-169 J.D.O. Bedjaoui, Ranjeva
and Koroma] 69. International jurisprudential practice
sets great store by the conduct of States. A State's
silence, its consent, its acquiescence, any waiver
of its rights, any protest, any effect of estoppel
upon its actions, all represent important elements
in the creation or extinction of a title over a territory.
In the present case, Qatar has always protested, and
never ceased to do so, on the one hand against the
British decision of 1939 and on the other against the
activities of Bahrain in the Hawar Islands. This consistent
course of conduct by Qatar is such as to prevent any
title arising in favour of Bahrain.
70. Qatar's refusal to acquiesce in Bahrain's potential effectivités over the Hawar Islands is manifest. It cannot be disputed that since 1938 Qatar has never ceased to protest against the "illegal occupation" of the Hawars. In 1939, when the British decision was notified to him, the Ruler of Qatar protested. Given the unequal relationship between his country and the United Kingdom, and looking beyond the language of courtesy and deference, Qatar's position could not be interpreted otherwise than as a refusal to acquiesce and as a request for a re-examination of the decision, all of which prevented Bahrain's effectivités - assuming that there was any substance to them - from producing any effects in law.
71. Since then, a number of clear manifestations of lack of acquiescence can be noted. They have taken various forms, such as proposals for mediation, arbitration or judicial settlement.
[p. 169-170 J.D.O. Bedjaoui, Ranjeva and Koroma] 75. In sum, Qatar's protests, in all their forms, with regard to all kinds of actions undertaken by Bahrain in the Hawar Islands, are both numerous, varied and persistent. They show that Qatar did not allow Bahraini effectivités to be acquired by remaining silent. Moreover, ever since the case was brought before the Court, Qatar has consistently protested against the non-observance of the status quo by Bahrain. Between the filing of its Memorial and that of its Counter-Memorial, that is to say over a period of a mere two years (1996-1997), we note no less than 13 protests in the form of note verbales concerning:
(i) Bahraini legislation whenever it affects the Hawar Islands;
(ii) violations of airspace in those islands;
(iii) advertisements published by Bahrain in the press relating to its activities in the islands and its claims to sovereignty over the group1.
[pp. 172-173 J.D.O. Bedjaoui, Ranjeva
and Koroma] 87. What first strikes the man in the
street when glancing at a map of the region is the
indisputable fact that, physically, the Hawar "Islands"
belong to the same continental mass as Qatar. When
the tide goes out each day, Qatar's whole land mass
resembles a hand, whose thumb is the Hawars. As shown
by British Admiralty Chart No. 2886 of 1994, entitled
"Jazireh-Ye Lavan and Jazirat Das to Ra's Tannurah"2,
there is no break between the thumb and the rest of
the hand. The Hawar "Islands" are not actually islands
but an indivisible part of the land mass of Qatar,
cut off by the sea when the tide comes in and joined
to the land again when the tide goes out. This elementary
lesson in macrogeography seems to have escaped the
Court. In reality, and with a certainty beyond the
power of even the most rigorous Thomist to dispute,
the Hawar Islands are simply a peninsula which, in
geographical terms, forms an integral part of the rest
of the mainland.
88. It would even be superfluous in this connection, not to say inappropriate, to invoke the principle based on the strong legal presumption that islands situated in a coastal State's territorial sea belong to that State, because the Hawars cannot be said to be "islands" in the true sense, but rather a peninsula - firmly attached to the mainland - emerging daily when the tide goes out.
89. No legal reasoning, however ingenious - and certainly no reasoning in this Judgment - can overcome this inescapable fact. Long before the Court, macrogeography determined, and for all time, that the peninsula of the Hawars belongs to the Qatari mainland, of which it is an integral part. Such a decree of nature cannot be abrogated. The enormous map file submitted to the Court by Qatar, containing maps from a wide variety of sources and eras, confirms this geomorphological reality and clearly shows, as will be seen below, that the Hawars were and are recognized to belong to Qatar.
[pp. 189-190 J.D.O. Bedjaoui, Ranjeva and Koroma] 137. The Court's Judgment has almost as little to say on the issues of proximity, contiguity and territorial integrity as it does on the question of historical title.
There exists, however, a strong legal presumption under international law that islands lying within the territorial waters of a State belong to that State.
"There is a strong presumption that islands within the twelve-mile coastal belt will belong to the coastal State, unless there is a fully-established case to the contrary (as, for example, in the case of the Channel Islands). But there is no like presumption outside the coastal belt, where the ownership of the islands is plainly at issue."
So states the Award of 9 October 1998 made by the Arbitration Tribunal in the Eritrea/Yemen case under the presidency of Sir Robert Jennings (para. 474). This Award applied the principle of international law that an island situated in the territorial waters of a State is deemed to form part of the territory of that State.
138. This is a "strong presumption" in law - one which admittedly is not irrebuttable but which cannot be overcome except:
- in terms of procedure, by reversing the burden of proof; and
- substantively, by invoking a superior title.
139. The presumption concerns islands situated within territorial waters. Today the breadth of the territorial sea is 12 miles. The Eritrea/Yemen Award of course took this into account. If we go by this figure, all the Hawar Islands belong to Qatar. And if we go by the 3-mile breadth which applied at the time of the Anglo-Qatari Treaty of 3 November 1916, the majority of the islands and islets of the Hawars lie totally or partially within Qatar's territorial sea. The claim made by Bahrain on 29 May 1938 concerned 17 islands and islets, 11 of which are within the 3-mile limit.
140. Bahrain denied the existence of this principle in positive law and cited no fewer than 11 instances worldwide in which the principle has not prevailed. But Bahrain's argument is irrelevant, since the situations mentioned all derive from special circumstances and were created by treaty. Anything - almost anything - can be done by treaty, since the contractual freedom of sovereign States is a fundamental principle. The Eritrea/Yemen Award took good care to say "unless there is a fully-established case to the contrary".
141. What is more, proximity alone does not constitute a title. It supplements or combines with other elements to constitute a title. This is clearly the case here.
It will also be noted that the concept of proximity is not as alien to the law as might at first be thought. The notion of "distance" is clearly present in the law of the sea. That of "proximity" derives from it. After all, the title of a coastal State to its territorial sea stems exclusively from proximity. What is more, an "archipelagic" State, which is what Bahrain claims to be, is nothing more than a collection of islands having in common "proximity" alone.
142. In the present case we are simply recalling the strong presumption that an island belongs to a coastal State if it is situated within the limits of its territorial sea. This presumption exists, and calling it the "principle of proximity" or by any other name cannot detract from its existence merely because the principle comes cloaked in a new guise, such as "contiguity", or because a section of the doctrine - in truth, a rather small one - on occasion challenges it.
|1||See Counter-Memorial of Qatar, Appendices 1 and 2, Vol. 5.|