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II. Substantive International Law - Second Part
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. 66-67] 82. The Court notes that both Parties agree that the Al-Khalifah occupied Zubarah in the 1760s and that, some years later, they settled in Bahrain, but that they disagree as to the legal situation which prevailed thereafter and which culminated in the events of 1937. Bahrain maintains that it continued to rule Zubarah through members of a Naim-led tribal confederation, while Qatar denies this.

83. In the opening paragraph of the agreement of 6 September 1868 concluded between Ali Bin Khalifah and the British Political Resident in the Gulf (see paragraph 40 above), the parties acknowledged that Mohamed bin Khalifah had "repeatedly committed acts of piracy and other irregularities at sea" and that after "his recent piratical act" he had fled from Bahrain. In consequence, Ali Bin Khalifah accepted the following conditions: (1) to deliver immediately to the British all "war buglas and buteels belonging to Mahomed bin Khalifeh and [him]self"; (2) to pay the sums indicated in paragraph 2 of the agreement; (3) "to consider Mahomed bin Khalifeh as permanently excluded from all participation in the affairs of Bahrain and as having no claim to that territory"; and (4) to appoint an agent in Bushire in order to keep the British Resident informed, "in view of preserving the peace at sea, and precluding the occurrence of further disturbance".

84. In the Court's view, the terms of the 1868 Agreement show that any attempt by Bahrain to pursue its claims to Zubarah through military action at sea would not be tolerated by the British. The Court finds that thereafter, the new rulers of Bahrain were never in a position to engage in direct acts of authority in Zubarah. Moreover, in 1895, only an armed intervention by the British stopped the Al-Thani and the Ottomans from attempting to invade Bahrain from Zubarah.

85. Bahrain maintains, however, that the Al-Khalifah continued to exercise control over Zubarah through a Naim-led tribal confederation loyal to them, notwithstanding that at the end of the eighteenth century they had moved the seat of their government to the islands of Bahrain.

86. The Court cannot accept this contention. While there may have been, at different times, ties of personal allegiance between some members of the Naim and the Ruler of Bahrain, there is also evidence that some members of the Naim served both the Al-Khalifah and the Al-Thani. In any event, there is no evidence that members of the Naim exercised sovereign authority on behalf of the Sheikh of Bahrain within Zubarah. Indeed, they came under the jurisdiction of the local territorial sovereign, which was not Bahrain and had not been Bahrain at least since the events of 1868.

[p. 222 Decl. Higgins] I further believe that, had it so chosen, the Court could also have grounded Bahraini title in the Hawars on the law of territorial acquisition. Among acts occurring in the Hawars were some that did have relevance for legal title. These effectivités were no sparser than those on which title has been founded in other cases.
Even if Qatar had, by the time of these early effectivités, extended its own sovereignty to the coast of the peninsula facing the Hawars, it performed no comparable effectivités in the Hawars of its own.
These elements are sufficient to displace any presumption of title by the coastal State.

[pp. 244-245 S.O. Kooijmans] 76. At first sight, therefore, the effectivités presented by Bahrain seem hardly sufficient to provide conclusive evidence of what the Permanent Court of International Justice in the Eastern Greenland case called two elements, each of which must be shown to exist, namely "the intention and the will to act as sovereign and some actual exercise of or display of such authority" (P.C.I.J. Reports, Series A/B, No. 53, pp. 45-46), even if it is considerably more than has been presented by Qatar. These two concepts, however, must be appraised in relation to the legal and political context of the relevant period and of the region concerned. And these concepts had at that time definitely a different connotation in the Gulf area than they had in the relations between Western and European States. It would, therefore, in my opinion be wrong in the present case to draw a parallel with the Court's finding in the Kasikili/Sedudu Island (Botswana/Namibia) case to the effect that - in spite of the fact that links of allegiance might have existed between the Masubia tribe and the Caprivi authorities - it had "not been established that the members of this tribe occupied the Island à titre de souverain, i.e., that they were exercising functions of State authority there on behalf of those authorities" (Judgment, I.C.J. Reports 1999, p. 1105, para. 98). In that case the authorities concerned were the authorities of European colonial powers which were well acquainted with notions of sovereignty and exclusive jurisdiction.

77. Much more appropriate for the present case seems to be the Permanent Court's finding in the Eastern Greenland case that

"it is impossible to read the records of the decisions in cases on 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. Reports, Series A/B, No. 53, p. 46; emphasis added).

The correct conclusion in my opinion is that one can be "satisfied with very little in the way of the actual exercise of sovereign rights" by Bahrain, since the other State, Qatar, "could not make out a superior claim". Tertium non datur according to the submissions of both Parties.

78. To put it in other words, 1916, the year of the final withdrawal of the Ottomans from the peninsula and of the establishment of a special relationship with Great Britain, may be seen as the year of Qatar's coming-of-age, providing it with a potential comprehensive legal title to the whole of the peninsula. Whereas Qatar, both before 1916 (when that potential title was not yet complete because of Ottoman sovereignty) and after, succeeded in consolidating its authority in the Zubarah part of the peninsula, it never even tried to do so with regard to the Hawars. The rather meagre effectivités, built up in that period by Bahrain, must be deemed to prevail over Qatar's potential title to the islands, since there was not even a vestige of display of authority by that State.

[pp. 255-256 S.O. Al-Khasawneh] 20. In the absence of clear guidance from the Anglo-Ottoman Convention, Qatar's claim to the Hawars would rest on the strong presumption that islands proximate to the mainland appertain to that mainland. This presumption is however rebuttable. Geographic proximity cannot displace a clearly established title. It would be crucial therefore to examine the subtle interplay between the concept of geographic proximity on the one hand and that of established title on the other; taking into account the weight of effectivités which cannot in themselves displace title, but come to the forefront when that title or its territorial expanse are not clear. As the Court cogently put it:

"Finally, there are cases where the legal title is not capable of showing exactly the territorial expanse to which it relates. The effectivités can then play an essential role in showing how the title is interpreted in practice."

21. Bahrain has claimed to have demonstrated effectivités on the Hawars for a period of almost a century and a half, including the claim that the original Dawasir settlement on Hawars was effected through grant by a Qadi of Zubara (circa 1800) when that town was still under Al-Khalifah rule. The evidence surrounding this particular effectivité is however so clouded in uncertainty and hearsay that not much probative value can be attached to it. What is more pertinent are the Bahraini effectivités carried out in the period 1872-1913, i.e., during the Ottoman presence in Qatar, for it is most unlikely that the Ottomans who were the title-holders in Qatar would have acquiesced to such effectivités had they not been carried out on territory to which their claims of sovereignty were nominal. One may cite in this regard the 1909 Bahraini court decisions relating to land rights and fishing traps in the Hawars, as well as the arrest and compelled attendance in Bahraini courts of Hawar Island residents. As to external supporting evidence, one may also cite the use of the same colour for the Hawars and Bahrain in a survey carried out in 1878 by Captain Izzet Bey, an officer of the Ottoman Army. Unlike the map annexed to the Anglo-Ottoman Convention of 1913, the Izzet Bey map leaves no room for different interpretations.

22. These facts carry an important evidentiary value, for they confirm that the Ottomans, the sovereigns of Qatar at that time, recognized that the Ruler of Bahrain, although he had no title to the peninsular mainland, nevertheless continued to have ownership rights over the islands on the western coast of Qatar, a view not at all unreasonable in view of the fact that for a seafaring people the links of these islands were perceived as being greater with the main islands of Bahrain than with Doha, which is separated from the Hawars by a daunting desert.

23. Additionally, until 1936, the date of the provisional British decision, Bahrain continued to show a number of other effectivités on the Hawars. For example, the licensing of gypsum quarrying, which, in addition to being normally a governmental activity, also suggests the settled nature of the presence on the Hawars of persons closely linked with Bahrain. To be sure such effectivités are not numerous and in some cases are not free of controversy. However, by contrast Qatar could not demonstrate any comparable effectivités, indeed any effectivités at all, over the islands. In the period 1936-1939 there was a flurry of effectivités by Bahrain, but these should be discounted as no more than attempts to introduce new evidence after the commencement of the dispute.

24. In conclusion, lack of clarity regarding Qatar's original title to the Hawar Islands gives to the effectivités, adduced by Bahrain in support of its contention that it continued to have original title over the Hawars, a crucial role notwithstanding their small number and modest status; for under similar circumstances international law has been satisfied with little evidence, undoubtedly as a reflection of the varying standards of time and place. Following this line of reasoning, I concur with the majority view.

[pp. 269-270 D.O. Torres Bernárdez] 22. The determination in the Judgment of the elements of fact in the present case – which should be distinguished from the elements of law – likewise poses certain problems deserving mention in this Introduction. For example, the Judgment is in my opinion particularly restrictive in taking into account historical facts, which are of some relevance and importance in ascertaining the process of consolidation and recognition of the original title in the disputed land territories while, at the same time, it is apparently somewhat liberal with respect to the possible admissibility and effects of minor individual events alleged as evidence of effectivités.

23. I cannot share such a general approach. In international law governing the attribution of sovereignty over land territory, the concept and definition of effectivités is by no means reduced to mere material activities varying in intensity. The material activities concerned should be accompanied by the subjective element of acting à titre de souverain and manifest themselves in a public, peaceful and continuous manner. Moreover, the possible taking into consideration by the law of public, peaceful and continuous acts effected à titre de souverain in a given territory does not necessarily lead to the birth of territorial title to that territory when, in the territory concerned, another State already has prior territorial title, duly consolidated and recognized, opposable to the newcomer State or enforceable as against all States.

[pp. 285-286 D.O. Torres Bernárdez] 72. As to the relationship between "title" and effectivités the normative mandate of international law is clear, namely in the presence of a title the role of the effectivités is always subordinate. The legal primacy of title is unquestionable in international law. When the effectivités are contrary to the title, they lose the legal value that they may possibly have in other situations. It is only in the absence of title, or of its proof, that the effectivités may play a determinative role, other circumstances permitting, in the process of ascertaining the holder of the title. Otherwise, the effectivités may serve either to confirm the title or possibly, if the title is not perfectly clear, as a means of interpreting it, and always bearing in mind in concrete cases the nature of the "title" invoked and the features of the norm of international law applicable to the case.

73. In principle, it seems that the Parties are in agreement that "title" prevails over the effectivités as a factor generating sovereignty. But I am less sure about the meaning they have given to the term effectivités. In fact, the term effectivités has been used by counsel in the current proceedings, particularly by counsel for Bahrain, as meaning everything short of "title" and, even in some contexts and not without contradictions, as "title" itself. I cannot accept such an abuse of legal language. Generally, in international law, the term describes the fact of the intentional exercise of jurisdiction or State functions in a given territory independently of the right to do so, namely of the question of the holder of the title. Thus, the effectivités are not per se "title" but an element of fact that may be confirmatory of "title", or which even in certain circumstances and in accordance with certain conditions provided for by international law, may be conducive to the acquisition of "title". Thus, the effectivités may be a "mode" of acquisition of "title" in the said circumstances and conditions, but they are not "title" in themselves even in those cases. For cases of effectivités becoming "title" one must look to international law and take due account of the particular circumstances of the case (nature of the acts, absence of a previous title, etc.).

[p. 286 D.O. Torres Bernárdez] 75. In addition to the case of the effective, peaceful and continuous occupation of a terra nullius, the effectivités may also have a role to play as proof of alleged title to a territory acquired by a mode other than occupation or as an exercise of title. But again not every act invoked as an effectivité is necessarily in international law an effectivité capable of being admitted as proof of title or of the exercise of title. The acts must be actes publics et paisibles de nature étatique, namely a manifestation of State authority imputable to the State in question. If the act has not been performed à titre de souverain or is not imputable as such to the State concerned it would not be a proof of title to territory or of its exercise.

76. Furthermore, effectivités are by no means the only manifestation or form of evidence of title to be taken into account. The general conduct of the Parties, including, as the case may be, admissions, and instances of recognition by interested third parties are often more revealing as to the holder of the title, particularly in the case of original title, than alleged effectivités which are more frequently than not quite flawed. Lastly, there is the intertemporal factor. "Critical dates" and "critical periods" are applied by international courts and tribunals for distinguishing effectivités admissible in casu from other possible alleged effectivités. Moreover, the status quo agreed by the parties to the dispute also has a role to play in this respect.

[p. 385 D.O. Torres Bernárdez] 357. This obliges me to recall the obvious, namely that even an admissible State effectivité is no more than a material manifestation of a given unilateral conduct of the State concerned, whose possible legal effects need to be defined in concreto in the light of the various circumstances and, first of all, of the operating norm or norms of international law relevant in the final analysis to an evaluation of the said unilateral conduct. The connection between the unilateral conduct manifest in an admissible effectivité and a given norm of international law is of paramount importance for ascertaining the possible legal effects of that unilateral conduct in international law. It is not at all the same thing to invoke an admissible effectivité in connection, for example, with the acquisition of title over a terra nullius through occupation as it is to invoke the same effectivité in order to transform an unlawful occupation of foreign territory into something else, namely into a lawful title under international law.

[p. 455 S.O. Fortier] 25. International law recognizes that in certain territories that are possessed of exceptional circumstances such as low habitability, of which the Zubarah region is undoubtedly one, a Ruler might establish and maintain title to his territory by manifestations of dominion or control through tribes who gave him their allegiance and looked to him for assistance.

[p. 457 S.O. Fortier] 29. In my opinion, sovereignty over Zubarah appertained to Bahrain through the period from 1868 to 1937 as a result of the presence in the region of the Naim tribe, which clearly manifested its allegiance to the Ruler of Bahrain and accepted his political authority. The record provides numerous examples of this relationship.