|II.||Substantive International Law - Second Part|
|1.||TERRITORY OF STATES|
|1.2.4.||Principle of "uti possidetis"|
Case Concerning Maritime
Delimitation and Territorial
Question between Qatar and
Bahrain (Qatar v. Bahrain)
Judgment of 16 March 2001
[pp. 230-232 S.O. Kooijmans] 18. I disagree with the Court's evaluation of the legal effect to be given to the 1939 decision. My vote in favour of paragraph 2 (a) of the dispositif is based on considerations relating to title to sovereignty, geographical proximity and effectivités. Since, however, Bahrain explicitly invoked the principle of uti possidetis juris - though at a very late stage - and since this argument is of a preliminary character, as counsel for Bahrain correctly stated, I deem it necessary to give first my views on the question whether this principle is applicable in the present case. If it were, all other grounds submitted by the Parties would have become redundant.
19. In its famous statement in the case concerning the Frontier Dispute (Burkina Faso v. Mali), the Chamber of the Court called the principle of uti possidetis
"a general principle, which is logically connected with the phenomenon of the obtaining of independence, wherever it occurs. Its obvious purpose is to prevent the independence and stability of new States being endangered by fratricidal struggles provoked by the challenging of frontiers following the withdrawal of the administering power." (I.C.J. Reports 1986, p. 565, para. 20; emphasis added.)
20. The Chamber's statement in my opinion presumes a transfer of sovereignty from the former colonial power to a newly independent State. Malcolm Shaw is of a similar opinion when, in his seminal article "The Heritage of States: The Principle of Uti Possidetis Juris Today" he says that: "The principle of uti possidetis functions in the context of the transmission of sovereignty and the creation of a new independent State and conditions that process"1.
21. Shaw's formulation is broader than that used by the Chamber of the Court, as it also covers the situation where parts of an already independent State achieve independence as the result of the (partial) dissolution of that State. Under those circumstances the principle has been declared applicable (i.a., by the Arbitration Commission of the European Conference on Yugoslavia) with regard to administrative boundaries between the component units of the dissolving State. As the Commission said:
"Except where otherwise agreed, the former (administrative) boundaries become frontiers protected by international law. This conclusion follows from the principle of respect for the territorial status quo and in particular from the principle of uti possidetis."2
According to Shaw the rationale for application of the principle in such non-colonial situations is the same as that underlying the Chamber's position in the Burkina Faso/Mali case: "the same dangers resulting from the break-up of existing States are evident".
22. What the two situations just mentioned have in common is that administrative, i.e., non-international boundaries are turned into international boundaries. It would be nonsensical to apply the principle to a boundary separating the colonial territories of two different colonial powers. That boundary was already an international boundary and as such protected by international law. What distinguishes the present case from the situations in which the principle was applied is of a similar character.
23. The crucial question in my view is: is there (a) a transfer of sovereignty from one State to another State as a result of which (b) administrative boundaries are invested "with a significance and a purpose that they were never intended to have"3. In the present case neither of these questions can be answered affirmatively.
24. As already mentioned (para. 16 above), there was no transfer of sovereignty in 1971 by the United Kingdom to either Bahrain or Qatar; these States kept the same identity as they had before relations with the Protecting Power were terminated. It is often said that the uti possidetis principle is only applicable when there is a succession of States. Bahrain has contended that this concept must be interpreted also to mean "replacement of one State by another in the responsibility for the international relations of territory" and that this is what actually occurred in 1971.
25. It is true that both Gulf States were not capable of conducting a foreign policy without a "droit de regard" of the Protecting Power and that in this respect their sovereignty was restricted. But more important than the question whether there was a succession of States in the narrow or the broad sense of the word, is the fact that there was no transfer of sovereignty. From a legal point of view there is a world of difference between restricted sovereignty and non-existent sovereignty. The former can be restored, the latter can only be replaced by a transferred, and therefore new sovereignty.
26. Of equal importance is the question whether there was an administrative boundary which was transformed into an international boundary. From the files it is patently clear that the British Government never intended to draw an administrative boundary or to settle a dispute between administrative officials. From the very start it was clear that a decision with regard to the "ownership" of the Hawar Islands was determinative for the international boundaries between two separate entities under international law. The potential concessionaires wanted to know to which capital they had to go in order to apply for a concession. Both parts of the crucial question I formulated earlier must, therefore, be answered in the negative. Already for these reasons the principle of uti possidetis juris is not applicable in the present case.
[pp. 250-251 S.O. Al-Khasawneh] 8. Some remarks on the uti possidetis juris principle are appropriate for two reasons: firstly, to those who doubt the reality of Qatari consent to the British decision or find that consent vitiated, the decision becomes nothing more than the uti possidetis juris principle in disguise. Hence an enquiry into the impact of the principle assumes practical relevance. Secondly, the implications of this principle, which seem to be passing through a new phase of mutation, are profound. Generally speaking, to yield too readily to its applicability would be inimical to other legally protected rights, e.g., the right of self-determination (although there is no danger of this in the present case) as well as to the very function of international courts which is not to declare, in the interests of preventing conflicts, pre-existing de facto territorial situations legal without regard to title and other relevant criterion, but to uphold justice by correcting illegalities where they occur.
9. Both Bahrain and Qatar were classified under British law not as colonies but as "protected States" or sometimes as "States in special treaty relations with His Majesty's Government". Such a formal classification notwithstanding, the British Government in fact exercised overwhelming control over the two sheikhdoms, not only in the sphere of international relations but also in domestic affairs. This control was derived from the various treaties with the two sheikhdoms and in addition from "custom, suffrage and acquiescence". However, regarding the pertinent question of territorial title, the British Government did not claim for themselves a right to alienate parts of the sheikhdoms' territories without the rulers' consent. This is clear from the Dubai/Sharjah arbitration4. Moreover, the British Government never acquired title in the various sheikhdoms of the Gulf including Bahrain and Qatar, unlike for example the Spanish Crown in Latin America, which had acquired sovereignty and title to territory. This, in itself, should lead us to conclude that the principle uti possidetis juris is inapplicable in this case.
10. In addition, in the Eritrea/Yemen Arbitral Award of 1998 the Tribunal had occasion to consider the argument that the uti possidetis juris principle applied and rejected that argument by one of the parties, noting that:
"Added to these difficulties is the question of the intertemporal law and the question whether this doctrine of uti possidetis juris, at that time thought of as being essentially one applicable to Latin America, could properly be applied to interpret a juridical question arising in the Middle East shortly after the close of the First World War."5
I find that line of reasoning both persuasive, and by analogy, applicable, to the present situation, where the crystallization of the territorial claims took place before the principle had started to lose its essentially Latin-American character and to assume a more international applicability, although it is still very doubtful whether even now it has any applicability in the Middle East.
[pp. 407-410 D.O. Torres Bernárdez] 428. ...Uti possidetis juris became a norm of international law of general application (that is, beyond the confines of relations between Spanish American Republics) only after the Second World War, to be more precise around the time of the general decolonization of the African Continent. The Eritrea-Yemen Arbitral Award of 1998 rejected the claim of uti possidetis by one of the Parties noting, inter alia, that:
"Added to these difficulties is the question of the intertemporal law and the question whether this doctrine of uti possidetis, at that time thought of as being essentially one applicable to Latin America, could properly be applied to interpret a juridical question arising in the Middle East shortly after the close of the First World War." (Para. 99 of the Award.)
429. There is a generally accepted rule of law, including international law, according to which the judicial evaluation of title resulting from historical consolidation (namely by a process, a continuum, a succession of acts, facts or situations over a given span of time) should be made on the basis of the international law in force at the time when such title ostensibly arose (see, for example, Grisbadarna, Baie de Delagoa, Clipperton Island, Island of Palmas, Minquiers and Ecrehos, etc.). It is true that in the Island of Palmas case, Huber qualified that non-retroactive principle by adding "that the existence of the right ... its continued manifestation, shall follow the conditions required by the evolution of the law", but I do not see how it would be possible to conclude in the present case that the contemporary generalization of the uti possidetis juris of the 1960s could retroactively deprive either of the Parties of any territorial rights over the Hawar Islands when for both Parties those rights in rem already formed an established territorial order of things before the generalization of uti possidetis juris as a norm of general international law.
430. Non-retroactivity in the application of its norm is a well-established principle of customary international law and not only of the law of treaties. Retroactivity in the application of a norm of international law is admissible only where the norm itself is adopted with such an intention or where the interested parties are in agreement as to the retroactive applicability of the norm in their mutual relations. In the circumstances leading to the formulation of uti possidetis juris as a norm of general international law, I did not find anything in the State practice or opinio juris to suggest that the acceptance of uti possidetis juris as a norm of general application implied any intent to give the norm retroactive effect, so as to make it applicable also to any act or fact which took place or any situation which ceased to exist before the generalization of uti possidetis juris. Moreover, in the present case, Qatar rejects the application of uti possidetis juris in its relations with Bahrain. There is therefore no agreement between the Parties as to retroactive application of uti possidetis juris by the Court to the present case.
431. Having said that, I now come to the crux of the matter, namely to the substantive conditions which must be met for uti possidetis juris to apply to a specific case. Uti possidetis juris as a principle or norm of international law has two aspects in that it concerns the delimitation of boundaries (which is not particularly relevant in the present case) and the question of title to territory. For both aspects, there should exist a situation of succession which in my view (some legal writers think otherwise) should be related to decolonization in general international law. In any case, without an event entailing succession, uti possidetis juris is inapplicable as a principle or norm of general international law. Even when uti possidetis juris is invoked or applied by virtue of a particular rule (e.g., a binding treaty or agreement, established rules of an international organization, or even domestic constitutional provisions) there must be succession in international law. I do not see any such succession in international law in the present case. Bahrain and Qatar were subjects of international law long before 1971, participating as such in international relations and agreements, as well as making laws of their own, formulating international claims and assuming international obligations.
432. It must also be noted that a situation of succession may concern various matters (treaties, debts, nationality, territorial questions, etc.) and that the rules of international law applicable to those matters are by no means the same, let alone identical. For example, the 1978 Vienna Convention on Succession of States in Respect of Treaties contains no provisions concerning the operation in that field of uti possidetis juris. On the contrary, the Convention excludes "boundary regimes" and "other territorial regimes" (Arts. 11 and 12), which are not affected as such by a "succession of States", a term defined not in general but only for the purposes of the said Convention as meaning the replacement of one State by another in the responsibility for the international relations of territory (Art. 2, para. 1(b), of the Convention). I do not see any issue in the case before the Court concerning a situation of succession in respect of treaties. These questions are not part of the subject of the dispute before the Court.
433. If uti possidetis juris is invoked, as it has been by Bahrain, the succession must concern, as indicated above, either "delimitation of boundaries" or "title to territory". There is no other aspect of uti possidetis juris. The Court certainly has before it a case concerning "title to territory". There can be no question of this. Nor can there be any confusion between "succession in respect of treaties" and "succession in respect of title to territory. Under uti possidetis juris, as a principle or norm of general international law, the question of succession in respect of title to territory depends on two cumulative legal requirements: (1) the existence of an original international law title of a predecessor State in the territory or territories concerned on the date of the succession; and (2) the existence of two or more successor States which themselves assume, after the succession date, the status of "successors" to the predecessor State (sovereignty is involved here; succession between States is by no means equivalent to succession between human beings). In the present case neither of these two indispensable legal requirements is satisfied.