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II. Substantive International Law - Second Part
2.7. Islands / Low-tide elevations

¤ Case Concerning Maritime
Delimitation and Territorial
Question between Qatar and
Bahrain (Qatar v. Bahrain)
Judgment of 16 March 2001

[p. 99] 195. The Court recalls that the legal definition of an island is "a naturally formed area of land, surrounded by water, which is above water at high tide" (1958 Convention on the Territorial Sea and Contiguous Zone, Art. 10, para. 1; 1982 Convention on the Law of the Sea, Art. 121, para. 1). The Court has carefully analysed the evidence submitted by the Parties and weighed the conclusions of the experts referred to above, in particular the fact that the experts appointed by Qatar did not themselves maintain that it was scientifically proven that Qit'at Jaradah is a low-tide elevation. On these bases, the Court concludes that the maritime feature of Qit'at Jaradah satisfies the above-mentioned criteria and that it is an island which should as such be taken into consideration for the drawing of the equidistance line.

[pp. 100-103] 200. Both Parties agree that Fasht ad Dibal is a low-tide elevation. Whereas Qatar maintains - just as it did with regard to Qit'at Jaradah - that Fasht ad Dibal as a low-tide elevation cannot be appropriated, Bahrain contends that low-tide elevations by their very nature are territory, and therefore can be appropriated in accordance with the criteria which pertain to the acquisition of territory. "Whatever their location, low-tide elevations are always subject to the law which governs the acquisition and preservation of territorial sovereignty, with its subtle dialectic of title and effectivités."
201. According to the relevant provisions of the Conventions on the Law of the Sea, which reflect customary international law, a low-tide elevation is a naturally formed area of land which is surrounded by and above water at low tide but submerged at high tide (1958 Convention on the Territorial Sea and the Contiguous Zone, paragraph 1 of Article 11; 1982 Convention on the Law of the Sea, paragraph 1 of Article 13).
Under these provisions, the low-water line of a low-tide elevation may be used as the baseline for measuring the breadth of the territorial sea if it is situated wholly or partly at a distance not exceeding the breadth of the territorial sea from the mainland or an island. If a low-tide elevation is wholly situated at a distance exceeding the breadth of the territorial sea, it has no territorial sea of its own. The above-mentioned Conventions further provide that straight baselines shall not be drawn to and from low-tide elevations, unless lighthouses or similar installations which are permanently above sea level have been built on them (1958 Convention, paragraph 3 of Article 4; 1982 Convention, paragraph 4 of Article 7). According to Bahrain this is the case with regard to all low-tide elevations which are relevant in the present case for the delimitation process.
202. When a low-tide elevation is situated in the overlapping area of the territorial sea of two States, whether with opposite or with adjacent coasts, both States in principle are entitled to use its low-water line for the measuring of the breadth of their territorial sea. The same low-tide elevation then forms part of the coastal configuration of the two States. That is so even if the low-tide elevation is nearer to the coast of one State than that of the other, or nearer to an island belonging to one party than it is to the mainland coast of the other. For delimitation purposes the competing rights derived by both coastal States from the relevant provisions of the law of the sea would by necessity seem to neutralize each other.
203. In Bahrain's view, however, it depends upon the effectivités presented by the two coastal States which of them has a superior title to the low-tide elevation in question and is therefore entitled to exercise the right attributed by the relevant provisions of the law of the sea, just as in the case of islands which are situated within the limits of the breadth of the territorial sea of more than one State.
Bahrain contends that it has submitted sufficient evidence of the display of sovereign authority over all the low-tide elevations situated in the sea between Bahrain's main islands and the coast of the Qatar peninsula.

204. Whether this claim by Bahrain is well founded depends upon the answer to the question whether low-tide elevations are territory and can be appropriated in conformity with the rules and principles of territorial acquisition. In the view of the Court, the question in the present case is not whether low-tide elevations are or are not part of the geographical configuration and as such may determine the legal coastline. The relevant rules of the law of the sea explicitly attribute to them that function when they are within a State's territorial sea. Nor is there any doubt that a coastal State has sovereignty over low-tide elevations which are situated within its territorial sea, since it has sovereignty over the territorial sea itself, including its sea-bed and subsoil. The decisive question for the present case is whether a State can acquire sovereignty by appropriation over a low-tide elevation situated within the breadth of its territorial sea when that same low-tide elevation lies also within the breadth of the territorial sea of another State.

205. International treaty law is silent on the question whether low-tide elevations can be considered to be "territory". Nor is the Court aware of a uniform and widespread State practice which might have given rise to a customary rule which unequivocally permits or excludes appropriation of low-tide elevations. It is only in the context of the law of the sea that a number of permissive rules have been established with regard to low-tide elevations which are situated at a relatively short distance from a coast.

206. The few existing rules do not justify a general assumption that low-tide elevations are territory in the same sense as islands. It has never been disputed that islands constitute terra firma, and are subject to the rules and principles of territorial acquisition; the difference in effects which the law of the sea attributes to islands and low-tide elevations is considerable. It is thus not established that in the absence of other rules and legal principles, low-tide elevations can, from the viewpoint of the acquisition of sovereignty, be fully assimilated with islands or other land territory.

207. In this respect the Court recalls the rule that a low-tide elevation which is situated beyond the limits of the territorial sea does not have a territorial sea of its own. A low-tide elevation, therefore, as such does not generate the same rights as islands or other territory. Moreover, it is generally recognized and implicit in the words of the relevant provisions of the Conventions on the Law of the Sea that, whereas a low-tide elevation which is situated within the limits of the territorial sea may be used for the determination of its breadth, this does not hold for a low-tide elevation which is situated less than 12 nautical miles from that low-tide elevation but is beyond the limits of the territorial sea. The law of the sea does not in these circumstances allow application of the so-called "leap-frogging" method. In this respect it is irrelevant whether the coastal State has treated such a low-tide elevation as its property and carried out some governmental acts with regard to it; it does not generate a territorial sea.

208. Paragraph 3 of Article 4 of the 1958 Convention on the Territorial Sea and the Contiguous Zone and paragraph 4 of Article 7 of the 1982 Convention on the Law of the Sea provide that straight baselines shall not be drawn to and from low-tide elevations unless lighthouses or similar installations which are permanently above sea level have been built on them. These provisions are another indication that low-tide elevations cannot be equated with islands, which under all circumstances qualify as basepoints for straight baselines.

209. The Court, consequently, is of the view that in the present case there is no ground for recognizing the right of Bahrain to use as a baseline the low-water line of those low-tide elevations which are situated in the zone of overlapping claims, or for recognizing Qatar as having such a right. The Court accordingly concludes that for the purposes of drawing the equidistance line, such low-tide elevations must be disregarded.

[pp. 124-125 S.O. Oda] 7. I believe that the questions of whether sovereignty over an islet or a low-tide elevation may be acquired through appropriation by a State and how such features can affect the extent of the territorial sea or the boundary of the territorial sea remain open matters. The Court appears to take the position that the provision concerning low-tide elevations in the 1982 United Nations Convention on the Law of the Sea (Art. 13), which is identical to the relevant provision (Art. 11) of the 1958 Convention on the Territorial Sea and the Contiguous Zone, reflects customary international law as it stands today. I might add that already in 1930, at the Hague Conference for the Codification of International Law, a similar idea was proposed for "an elevation of the seabed which is only uncovered at low tide" (League of Nations, Acts of the Conference for the Codification of International Law, Vol. I, p. 131).
But it is important to note that at the time of the Hague Codification Conference (1930) and of the adoption of the Convention on the Territorial Sea (1958) the 3-mile rule prevailed; that the 1982 United Nations Convention was not adopted until nearly 50 years and 25 years later, respectively, and that the 1982 United Nations Convention simply copied the relevant 1930 and 1958 texts on those issues without any in-depth discussion at the Third United Nations Conference on the Law of the Sea (UNCLOS III) on the effect which would follow from the broadening of the territorial sea from 3 miles to 12 miles.
In 1930 and 1958, low-tide elevations located in the rather narrow (3-mile) seabelt off the coast would not have had much effect on the extent or the boundary of the territorial sea, and these provisions might have reflected customary international law prevailing at that time. But how could they have the same minor effect if the territorial sea were to be widened to 12 miles? This matter has been given very little thought in academic and judicial circles. Since there is no practice in this area, the question is better left for future discussion with a view to formulating the governing law.
8. The provisions on islands in the 1982 United Nations Convention on the Law of the Sea come from the 1930 text of the Hague Codification Conference and the 1958 Convention on the Territorial Sea. But small islands and islets did not receive specific attention and the provision on islands in general would have applied. In UNCLOS III there were some efforts, although at an unofficial level, to define "island" more cautiously so that the title granted under the 1958 Convention would not extend to small islands or islets. These efforts did not produce any clear result. I wish to mention this, as I have some doubts as to whether Article 121 concerning the régime of island of the 1982 United Nations Convention which does not refer to islets or small island may as a whole be considered the customary international law in the age when the 12-mile territorial sea prevails.
9. My further concern is that modern technology might make it possible to develop small islets and low-tide elevations as bases for structures, such as recreational or industrial facilities. Although the 1982 United Nations Convention does contain some relevant provisions (e.g. Arts. 60 and 80), I consider that whether this type of construction would be permitted under international law and, if it were, what the legal status of such structures would be, are really matters to be reserved for future discussion. The statements in the present Judgment concerning Qit'at Jaradah, as an island, and Fasht ad Dibal and certain other low-tide elevations could have an enormous impact on the future development of the law of the sea. The Court, in my view, should have been more circumspect in handing down its decision in this respect.

[p. 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.

[pp. 208-210 J.D.O. Bedjaoui, Ranjeva and Koroma] 196. It is not for the Court to settle a dispute involving theoretical discussions of physical geography. But, irrespective of the legal and political dimension of the question whether or not Qit'at Jaradah is an island in law, we must not lose sight of a consideration of basic common sense: one cannot have contradictory answers to one and the same question. According to the Dictionnaire Robert: "An island is an area of terra firma which emerges permanently from the water"; The Cambridge International Dictionary of English speaks of "a piece of land completely surrounded by water". For its part, the first paragraph of Article 121 of the Montego Bay Convention defines an island as "a naturally formed area of land, surrounded by water, which is above water at high tide". Over and above editorial differences inherent in the aims of the respective disciplines, it will be noted that the problem turns on considerations of hydrography (high tide) and geomorphology (a naturally formed area of land).
197. First, the hydrographic element: "high tide" is an important factor in the definition of an island under the 1982 Convention; this criterion is more precise than that used in everyday language. Here, appearance above the waterline at high tide is the essential condition in order for a naturally formed area of land to be characterized as an "island" rather than as a low-tide elevation.
198. Next, geomorphological considerations, which entail examination of the question of the composition of the "land" comprising an island: "natural area of land", "area of terra firma". The "naturalness" of an insular feature has been the subject of fierce debate, both in doctrine and in the work of codification. Is the land - a product of nature - the consequence of geological action or of sedimentation? A proposal by H. Lauterpacht to insert the adjective "natural" before "area of land" was rejected by the International Law Commission in 19541. It was on a proposal by the United States, who were hostile to any artificial, abusive extension of the territorial sea and to any encroachment on the freedom of the high seas, that an amendment was adopted providing for the insertion of the word "natural" in the paragraph dealing with the definition of an island2. The sense of the term has itself changed. Since the Anna case, it would seem that it had been accepted that the geomorphological composition of a feature was irrelevant: sediment, mud, coral, madrepore, or terra firma properly so-called3. But contrary to the judgment of Sir William Scott in that case, the Montego Bay Convention departed quite significantly from those principles.
The fact that the land lies above the high-water line is not enough in itself for a feature to be characterized as an island; only areas of terra firma can be accorded the status of island under Article 121 of the Law of the Sea Convention. In the first place, Article 121 introduces a distinction between islands and "rocks", whose legal régime is dealt with in the third paragraph. The treatments of rocks and islands are not identical, even though both are features permanently above the high-water line and of stable geomorphological composition.
Secondly, areas of land lying above the high-water line are not confined to islands. The 1982 Convention expressly refers to atolls, but provides no legal definition of these; in geographical terms, they are "ring-shaped coral reefs in warm seas, enclosing a lagoon communicating with the high sea" (Dictionnaire Robert). In terms of their geomorphological composition, atolls are not terra firma, and therefore cannot be accorded the status of islands. In short, atolls are features or elevations consisting of a mixture of sediment, mud, coral and madrepore.
Cays are also areas of land lying permanently above sea level. "A cay is an islet or elevation composed of sand compacted to a greater or lesser degree" (Grand Larousse universel). This is a category of maritime feature which remains above the waterline at high tide but which is not terra firma in the ordinary, traditional sense of the term. Unlike islands, atolls, or even artificial islands, the Montego Bay Convention does not refer to cays as a geographical category recognized by law.
199. As regards Qit'at Jaradah, the various changes which this feature has undergone can be explained on the one hand by the absence of terra firma and on the other by the fact that it has been formed by accretion, that is to say, "a process of agglomeration of inorganic elements, solid or liquid" (Dictionnaire Robert). Thus the question is whether it can be assimilated to an island within the meaning of Article 121 of the 1982 Convention. The answer must be a negative one, for its geomorphological characteristics place it in a category not provided for in the Montego Bay Convention.

200. The assimilation of islands to land territory is moreover explicable purely in terms of geomorphological considerations: in both cases, by contrast with atolls and cays, the stable underlying element is terra firma; thus they have a physically durable base which ensures their permanence. In the case of Qit'at Jaradah, how otherwise to explain the ease with which the upper surface could be removed and subsequently restored? In law, this assimilation must be understood in conjunction with the notion of effectiveness of sovereignty; sovereignty, in international law, implies a minimum stable terrestrial base, which is not to be found in maritime features above the waterline which are not islands.
In support of this difference in treatment as between an island and other maritime features which appear above the waterline at high tide, we may cite official marine charts. These documents, because of the need to meet the safety requirements of marine navigation, offer the best descriptions and evidence of the location and status of features situated within maritime waters.

[pp. 220-221 Decl. Vereshchetin] 13. I regret also being unable to concur with another finding of the Court relating to the characterization of the maritime feature Qit'at Jaradah as "an island" (paras. 195 and 252 (4) of the Judgment). The opposing views of the experts, the absence of any evidence whatsoever to the effect that Qit'at Jaradah has ever been shown on nautical charts as an island, the alleged attempts of both States to artificially change the upper part of its surface, do not allow me to conclude that Qit'at Jaradah has the legal status of an island as provided for in the 1982 Convention on the Law of the Sea. In my assessment, this tiny maritime feature (see para. 197 of the Judgment), constantly changing its physical condition, cannot be considered an island having its territorial sea. Rather, it is a low-tide elevation, whose appurtenance depends on its location in the territorial sea of one State or the other. Therefore the attribution of Qit'at Jaradah should have been effected after the delimitation of the territorial seas of the Parties and not vice versa.

[p. 224 S.O. Parra-Aranguren] 6. Nor does the construction of navigation aids constitute acts of sovereignty, as the Court stated in its Judgment of 17 November 1953. In that case, the Court considered the significance of the lighting and buoying of the Minquiers by the French Government, concluding that:

"The Court does not find that the facts, invoked by the French Government, are sufficient to show that France has a valid title to the Minquiers. As to the above-mentioned acts from the nineteenth and twentieth centuries in particular, including the buoying outside the reefs of the group, such acts can hardly be considered as sufficient evidence of the intention of that Government to act as sovereign over the islets; nor are those acts of such a character that they can be considered as involving a manifestation of State authority in respect of the islets." (Minquiers and Ecrehos (France v. United Kingdom), Judgment of 17 November 1953, I.C.J. Reports 1953, p. 71).

7. Paragraph 199 of the Judgment states that "Similar acts of authority have been invoked by Bahrain in order to support its claim that it has sovereignty over Fasht ad Dibal". However, for the above-stated reasons such acts, even if proved, cannot support the sovereignty claimed by Bahrain over Fasht ad Dibal.

[p. 342 D.O. Torres Bernárdez] 240. As to international law, there is a norm, already in existence in the nineteenth century, to the effect that islands lying wholly or partly within the territorial sea of a given country are to be regarded as part of that country. This norm is formulated in the form of a strong juris tantum presumption and is not therefore an absolute rule in the sense that it is capable of being rebutted by evidence of superior title. However, during the period of historical consolidation and recognition of the original title of Qatar over the whole peninsula of Qatar and its adjoining islands (1868-1915), Bahrain did not rebut that presumption by claiming or submitting evidence of superior title or indeed any evidence at all. As already indicated, Bahrain remained silent. It is thus an objective geographical fact that the majority of the islands and islets constituting the Hawar Islands and Janan Island lie wholly or partly within a three-mile territorial sea limit from the mainland coast of Qatar (recognized at the relevant time here considered) and all of them lie within a twelve-mile territorial sea limit from the mainland coast currently applied by Qatar in conformity with international law.

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