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II. Substantive International Law - Second Part
11.2. Judicial and Arbitral Decisions

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

[pp. 76-77] 111. Bahrain maintains that the British decision of 1939 must be considered primarily as an arbitral award, which is res judicata. It claims that the Court does not have jurisdiction to review the award of another tribunal, basing its proposition on

"a virtual jurisprudence constante, not to review, invalidate or even confirm awards taken by other international tribunals, unless there is specific, express, additional consent to reopen the award".

Thus Bahrain refers to the decision of 15 June 1939 by the Permanent Court of International Justice in the case of the Société Commerciale de Belgique (P.C.I.J., Series A/B, No. 78, p. 160); and to those rendered by the present Court on 18 November 1960 in the case concerning the Arbitral Award made by the King of Spain on 23 December 1906 (Honduras v. Nicaragua) (I.C.J. Reports 1960, p. 192), as well as on 12 November 1991 in the case concerning the Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal), (I.C.J. Reports 1991, p. 53).

112. Qatar denies the relevance of the judgments cited by Bahrain. It contends that

"[N]one of them are in the slightest degree relevant to the issue which the Court has to determine in the present case, namely, whether the procedures followed by the British Government in 1938 and 1939 amounted to a process of arbitration which could result in an arbitral award binding upon the parties".

Qatar also advances in support of its position the 19 October 1981 arbitral award rendered by the Court of Arbitration in the Dubai/Sharjah Border case; in that award, which in Qatar's view was rendered under circumstances comparable to those of the present case, the Court of Arbitration concluded that boundary delimitation decisions taken by the British Government were not arbitral awards but rather administrative decisions of a binding character (International Law Reports, Vol. 91, p. 579; see also pp. 577, 583 and 585).

113. The Court will first consider the question whether the 1939 British decision must be deemed to constitute an arbitral award. The Court observes in this respect that the word arbitration, for purposes of public international law, usually refers to "the settlement of differences between States by judges of their own choice, and on the basis of respect for law". This wording was adopted in Article 15 of the Hague Convention for the Pacific Settlement of International Disputes, dated 29 July 1899. It was repeated in Article 37 of the Hague Convention dated 18 October 1907, having the same object. It was adopted by the Permanent Court of International Justice in its Advisory Opinion of 21 November 1925, interpreting Article 3, paragraph 2, of the Treaty of Lausanne (P.C.I.J., Series B, No. 12, p. 26). It was reaffirmed in the work of the International Law Commission, which reserved the case where the parties might have decided that the requested decision should be taken ex æquo et bono (Report by Mr. Georges Scelle, Special Rapporteur of the Commission, Document A/CN.4/113, of 6 March 1958, Yearbook of the International Law Commission, 1958, Vol. II, p. 2). Finally, more recently, it was adopted by the Court of Arbitration called upon to settle the border dispute between Dubai and Sharjah in a dispute bearing some similarities to the present case (Dubai/Sharjah Border Arbitration, arbitral award of 19 October 1981, International Law Reports, Vol. 91, pp. 574 and 575).

114. The Court observes that in the present case no agreement existed between the Parties to submit their case to an arbitral tribunal made up of judges chosen by them, who would rule either on the basis of the law or ex æquo et bono. The Parties had only agreed that the issue would be decided by "His Majesty's Government", but left it to the latter to determine how that decision would be arrived at, and by which officials. It follows that the decision whereby, in 1939, the British Government held that the Hawar Islands belonged to Bahrain, did not constitute an international arbitral award.

[pp. 83-85] 139. The Court will begin by recalling that the 1939 decision is not an arbitral award (see paragraphs 113-114 above). This does not, however, mean that it was devoid of all legal effect. Quite to the contrary, the pleadings, and in particular the Exchange of Letters referred to above (see paragraphs 118 and 119 above), show that Bahrain and Qatar consented to the British Government settling their dispute over the Hawar Islands. The 1939 decision must therefore be regarded as a decision that was binding from the outset on both States and continued to be binding on those same States after 1971, when they ceased to be British protected States (see paragraph 65 above).

140. The validity of that decision was certainly not subject to the procedural principles governing the validity of arbitral awards. However as the British Political Agent undertook on 20 May 1938, and as was repeated in the letter of the Ruler of Qatar of 27 May 1938 (see paragraphs 119 and 120 above), this decision was to be rendered "in the light of truth and justice".

141. In this connection, the Court observes in the first place that the Ruler of Qatar in that last letter entrusted the question of the Hawar Islands to the British Government for decision, notwithstanding that seven days before the British Political Agent had informed him that "by their formal occupation of the Islands for some time past the Bahrain Government possess a prima facie claim to them" and that it was therefore for the Ruler of Qatar to submit a "formal claim ... supported by a full and complete statement of the evidence" on which he relied (see paragraph 119 above). This procedure was followed and the competent British officials found that "[t]he Shaikh of Qatar ha[d] produced no evidence whatsoever" to counter the effectivités claimed by Bahrain, in particular its occupation of the islands since 1937 (see paragraph 128 above). Under these circumstances, while it is true that the competent British officials proceeded on the premise that Bahrain possessed prima facie title to the islands and that the burden of proving the opposite lay on the Ruler of Qatar, Qatar cannot maintain that it was contrary to justice to proceed on the basis of this premise when Qatar had been informed before agreeing to the procedure that this would occur and had consented to the proceedings being conducted on that basis.

142. The proceedings leading to the 1939 British decision summarized above (see paragraphs 118 to 133 above) further show that Qatar and Bahrain both had the opportunity to present their arguments in relation to the Hawar Islands and the evidence supporting them. Qatar presented its claim in its letters of 10 and 27 May 1938. Bahrain's opposing claims were presented on 22 December 1938, with an annex containing the declarations of several witnesses. Qatar commented on this statement of Bahrain in its letter of 30 March 1939, to which testimonial evidence to support its arguments was also annexed. Thus the two Rulers were able to present their arguments and each of them was afforded an amount of time which the Court considers was sufficient for this purpose; Qatar's contention that it was subjected to unequal treatment therefore cannot be upheld.

143. Finally, the Court notes that, while the reasoning supporting the 1939 decision was not communicated to the Rulers of Bahrain and Qatar, this lack of reasons has no influence on the validity of the decision taken, because no obligation to state reasons had been imposed on the British Government when it was entrusted with the settlement of the matter.

144. Moreover, in the present case the reaction of the Ruler of Qatar was to inform the British Political Resident that he was "deeply astonished" by the decision, but he did not claim that it was invalid for lack of reasons. Qatar stated that it had provided enough evidence to support its position, and limited itself to requesting the British Government to re-examine its decision. Therefore, Qatar's contention that the 1939 British decision is invalid for lack of reasons cannot be upheld.

145. Finally, the fact that the Sheikh of Qatar had protested on several occasions against the content of the British decision of 1939 after he had been informed of it is not such as to render the decision inopposable to him, contrary to what Qatar maintains.

146. The Court accordingly concludes that the decision taken by the British Government on 11 July 1939 is binding on the Parties.

[pp. 158-160 J.D.O. Bedjaoui, Ranjeva and Koroma] 34. We agree with the majority of the Court that the British decision of 1939 is not an arbitral award and therefore does not have the force of res judicata. We support the Court's reasoning and agree with it that the characteristic features of an arbitral award are lacking here. The British decision is a political or administrative decision and, as such, constitutes a simple historical fact.
35. However, according to the Judgment, that decision is still legally binding today on the two Parties, as a result of the consent given by each of them in 1938 to the local representatives of the United Kingdom. We wish to state our total disagreement on this point.
36. As the Judgment pointed out, correctly noting in passing the similarity between the present case and the Dubai/Sharjah case, the consent of the Rulers was of course required. We accept that, in the circumstances of this case and taking due account of the nature of the relationship between Bahrain and Qatar and the United Kingdom, such consent was necessary. But, in the Judgment now handed down by the Court, that consent is artificially examined, detached from its temporal context and, in sum, analysed in a totally abstract manner.
37. In order to reach the conclusion that the British decision was and remains binding on the Parties, the Judgment deemed the consent of the Ruler of Qatar to be indivisible. Since consent to the procedure implied consent to the substantive decision, the protests of the Sheikh of Qatar were accordingly held to be without legal force: made "after the event", they simply expressed the disappointment of their author.
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.
39. We repeat that, in a case such as this, consent had to be express, informed and freely given. This was not the case. Paragraph 141 of the Judgment, which deals with the question of the formal validity of Qatar's consent, is determinative in that it demonstrates, with a certain surrealism, the construction, unfounded in reality, which the Judgment places upon that consent. This paragraph is worth quoting:

"while it is true that the competent British officials proceeded on the premise that Bahrain possessed prima facie title to the islands and that the burden of proving the opposite lay on the Ruler of Qatar, Qatar cannot maintain that it was contrary to justice to proceed on the basis of this premise when Qatar had been informed before agreeing to the procedure that this would occur and had consented to the proceedings being conducted on that basis"1.

In effect, already in this one paragraph, the Court's Judgment stands at the threshold of the issue of fraud, only then to shy away from it.

[p. 237 S.O. Kooijmans] 45. In its pleadings Bahrain contended that the 1939 decision, by which the Hawar Islands were attributed to it, is an arbitral award which has the character of res judicata and consequently must be respected by the Court. The Court has rejected this argument and has found that the decision does not constitute an arbitral award since it has not been taken by judges chosen by the Parties and ruling either on the basis of the law or ex aequo et bono (Judgment, para. 114). I share this aspect of the Court's perception of the 1939 decision. The concept of arbitration may be used in a very broad sense in that it encompasses all kinds of third-party settlement. When however the character of res judicata is attributed to a settlement awarded by a third party, a much narrower definition of the term "arbitration" is required. This does not only hold true for modern times. Arbitration as a procedure for dispute settlement with a final and binding character has for centuries been seen as requiring an agreement concluded by two parties to a dispute on the basis of formal equality to entrust the resolution of that dispute to a mutually agreed third party and to comply with the decision given by that third party. It is the combination of consent to the procedure and of commitment to compliance which produces the res judicata character of the decision, although the procedure itself is subject to certain requirements of fairness and equality of arms. What is decisive, however, is that the third party does not act on its own authority or of the instigation of only one of the parties to the dispute.

[p. 363-365 D.O. Torres Bernárdez] 302. International arbitration, judicial settlement, and other peaceful means of settlement are based upon the principle of consensuality. The parties to the dispute must give their consent to the arbitration as well as to the definition of the other elements referred to above. But Qatar and Bahrain did not conclude a convention to arbitrate in 1938, did not choose their arbitrator or arbitrators, did not conclude a compromis governing the arbitration and defining its object, the applicable law, rules of procedure, etc. Yet if it was not an international arbitration, how could the 1939 British "decision" (independently of its validity) be res judicata or have become so in international law? In fact, the 1939 British "decision" is not the product of a jurisdictional organ or of a political organ acting in casu in a jurisdictional capacity. Thus the "decision" cannot have the finality of res judicata; it does not express the legal truth (vérité légale) non-varietur. Political decisions may have binding effects but not res judicata binding effects. For example, the binding decision which the Security Council of the United Nations may adopt under Chapter VII of the United Nations Charter are binding for Member States but they lack the force of res judicata. The Council may change those decisions at any moment.
303. The two separate letters of 11 July 1939 sent by the British political authorities in the Gulf to the respective Rulers of Qatar and Bahrain referred to above are mere diplomatic communications or notifications. They do not enclose or append any arbitral award (sentence), whether reasoned or not. International arbitral awards, such as the Judgments of this Court, are however formal international documents and are the result of equally formal international procedures. Res judicata is precisely a notion of procedural law intrinsically linked to the form adopted by the procedure and decision concerned and the jurisdictional character of the organ adopting it. Independently of the name given to it (arbitration, adjudication, enquiry, etc.), the 1938-1939 British "procedure" was somewhat far removed from that, as recognized in British documents subsequent to the 1939 "decision". For example, the concluding paragraph of Long's confidential Foreign Office minutes of 10 June 1964 contains the following:

"Neither of the two Rulers was asked beforehand to promise his consent to the award, nor afterwards to give it. HMG simply 'made' the award. Although it followed the form of an arbitration to some extent, it was imposed from above, and no question of its validity or otherwise was raised. It was quite simply a decision which was taken for practical purpose in order to clear the ground for oil concessions." (Reply of Bahrain, Vol. 2, Ann. 2, p. 4; emphasis added.)

304. The purpose was not therefore to decide the matter through an arbitration consented to by the Rulers of Qatar and Bahrain. There was no international arbitration between Qatar and Bahrain in 1938-1939 and the 1939 British "decision" communicated to the Rulers was not an international arbitral award carrying with it an international legal obligation to submit in good faith to the "decision". The main consequence of this conclusion for the present case is, in my view, that the 1939 British "decision" is not applicable law between the States Parties to the present case. Internationally, the "decision" is no more than an historical fact or event like many others in the present case. It does not make law governing the Parties' mutual relations. Within the British domestic order, it may be an act of the British Government or of the British Administration or something else, but at the international level it is certainly not a legally binding international arbitral award for any of the Parties to the present case.

1Emphasis added.