|III.||The International Court of Justice|
|3.||THE PROCEDURE OF THE INTERNATIONAL COURT OF JUSTICE|
Case Concerning Maritime
Delimitation and Territorial
Question between Qatar and
Bahrain (Qatar v. Bahrain)
Judgment of 16 March 2001
[p. 191 J.D.O. Bedjaoui, Ranjeva and Koroma] 148. The existence of a collection of map evidence as extensive as that presented to the Court by Qatar, drawn from such varied sources and covering both the nineteenth and the twentieth centuries, cannot fail to be significant. Where this evidence gives a virtually uniform description of the political and geographical situation of Qatar and Bahrain over such a long period, it is impossible not to accord it substantial weight in confirming the existence of a title which Qatar possesses to the Hawar Islands (and to Zubarah as well). It is in any event impossible to ignore that evidence completely, as the Court's Judgment does, without providing any explanation.
[pp. 274-275 D.O. Torres Bernárdez]
37. The weight of maps as evidence depends on a
range of considerations such as their technical reliability
and accuracy determined by how and when they were drawn
up, their official or private character, the neutrality
of their sources towards the dispute in question and
the parties to that dispute, etc. In general, the value
as evidence attached to them by international courts
and tribunals is corroborative or confirmatory of conclusions
arrived at by other means unconnected with the maps,
because the maps as such are not a legal title. However,
if map evidence produced by third parties is reliable,
uniform and voluminous it may even constitute a highly
important evidential element, of recognition or general
opinion or repute, as to the fact of a territorial
situation in a given period (see, for example, Chapter
VIII of the 1998 Arbitral Award in the Eritrea/Yemen
38. Moreover, maps may on occasion be a physical expression of the will of a State or States, for example, when annexed to a legal title such as a treaty, or when prepared and used by a State for the purpose of diplomatic negotiations with other States, or when they are the object of written annotations by States' representatives or officials. In any case, maps expressing the will of States have of course superior evidenciary weight to ordinary maps. Moreover, when annexed to a treaty, maps constitute a context for the interpretation of the treaty concerned. There are some maps belonging to these categories in the present case. In its Judgment in the Frontier Dispute case, the Chamber of the Court distinguishes between these two categories of maps as follows:
"Whether in frontier delimitations or in international territorial conflicts, maps merely constitute information which varies in accuracy from case to case; of themselves, and by virtue solely of their existence, they cannot constitute a territorial title, that is a document endowed by international law with intrinsic legal force for the purpose of establishing territorial rights. Of course, in some cases maps may acquire such legal force, but where there is so the legal force does not arise solely from their intrinsic merits: it is because such maps fall into the category of physical expressions of the will of the State or States concerned. This is the case, for example, when maps are annexed to an official text of which they form an integral part. Except in this clearly defined case, maps are only extrinsic evidence of varying reliability or unreliability which may be used, along with other evidence of a circumstantial kind, to establish or reconstitute the real facts" (I.C.J. Reports 1986, p. 582, para.54).
39. The Judgment remains somewhat aloof from the map evidence submitted by the Parties and this has been quite detrimental to Qatar because the Bahraini map evidence was practically nil. Even as regards the maritime aspect of the case, it was Qatar not Bahrain which provided the Court with large-scale charts officially recognized by maritime Powers such as the United Kingdom and the United States, Bahrain limiting itself to submitting sketches (which Bahrain refers to as "maps") drawn by itself and without any indication of an official source.
[p. 277 D.O. Torres Bernárdez]
47. ... [T]he State which claims an island in the territorial
sea of another State must prove its title over that
island, and must also prove that the alleged title
is likely to supplant the title of the coastal State
derived from the said presumption of international
law and/or other possible legal principles and rules.
48. The burden of proof against a juris tantum presumption lies with the Party that alleged a contrary proposition. One of the greatest legal inadequacies of the 1938-1939 British "procedure" on the Hawar Islands was precisely to have been conceived and organized the other way round. It does not makes sense unless one takes account of the prior British "provisional decision" of 1936. It was through that initial and then undisclosed "provisional decision" that the juris tantum presumption of international law referred to was actually ignored. Thus, in this opinion, we will refer to the British "procedure" of the 1930s as a whole, namely to the whole "1936-1939 period".