225

SEPARATE OPINION OF JUDGE KOOIJMANS

Historical context of dispute — Character of British policy in Gulf region —
Maritime security main policy goal — Treaty-relations with local rulers —
Non-territorial character of these relations — Absence of colonial structures —
Political and legal changes as a result of discovery of oil — Legal framework of
treaty relations kept unchanged — Evolution of modern concept of State — No
discontinuance of State identity after termination of status British protected
State.

Non-applicability of principle of uti possidetis juris — No transfer of sover-
eignty — No transformation administrative boundaries — 1939 decision deter-
mined international boundary.

Character of relationship Protecting Power — Protected States — No treaty-
based right for Great Britain to decide unilaterally matters of territorial sov-
ereignty — Either consent of local rulers or subsequent acceptance or acquies-
cence required.

Zubarah — Dispute not territorially defined — Ties of allegiance of Naim
tribe with Ruler of Bahrain — Gradual consolidation of Qatar authority —
Acquiescence by Bahrain.

Hawar Islands — 1939 decision no arbitral award — Character of procedure
leading to 1939 decision — No consent by Ruler of Qatar in 1938 — No sub-
sequent acceptance or acquiescence. Qatar's claim based on original title by vir-
tue of 1868 agreement and proximity principle — No evidence of Qatari display
of authority — Irrelevance of cartographic evidence —Bahrain’s claim based on
ties of allegiance with Dowasir and effectivités.

Janan — not excluded from Hawar group in 1939 decision — Character of
1947 decision —Detachment from group not justified.

I. INTRODUCTORY REMARKS

1. Although I have voted in favour of all but one of the operative pro-
visions of the Judgment which deal with the territorial aspects of the dis-
pute between Qatar and Bahrain, | cannot associate myself with the rea-
soning which lies at the basis of a number of these provisions. Espe-
cially with respect to the issue of sovereignty over the Hawar Islands
and over Janan, the Court has in my view taken an unduly formalistic
approach by basing itself exclusively on the nature and the legal effect
of the so-called 1939 decision of the British Government.

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To a certain extent this formalistic approach is also reflected in the
Court’s position on sovereignty over the Zubarah region, although the
(former) Protecting Power never took a decision on the issue, as it did in
the case of the Hawars. Nevertheless the Judgment seems to give more
weight to the position taken by that Protecting Power than to considera-
tions of substantive law, in particular those on the acquisition of terri-
tory.

2. Asa result, the Judgment has a rather ambiguous character. Whereas
the part devoted to maritime delimitation deals with substantive rules of
the law of the sea, including rules regarding the (quasi-)territorial dispute
about which Party has sovereign rights over Qit’at Jaradah and Fasht ad
Dibal, the part devoted to territorial questions is singularly devoid of
considerations on the substance of the law. It deals mainly with the legal
effects to be attributed to the position adopted by a third State (Zubarah)
or the decision taken by it (on the Hawars and Janan); this third State
has beyond any doubt been a factor of primary importance in the history
of the Parties and relations between them, but has certainly not exclu-
sively determined those relations. The past surely casts a long shadow
over present and future relations between the Parties but the Court
singled out only one element from it.

3. It could be argued that this ambiguous character stems from the
nature of the dispute before the Court. The land dominates the sea —
territorial issues determine matters of maritime delimitation. Territorial
disputes have their roots in the past whereas maritime delimitation is
future-oriented once the territorial issues have been settled.

4. It is by no means my intention to suggest that the historical aspects
should not be considered. On the contrary, only by taking into account
the full spectrum of the Parties’ history, can their present rights be prop-
erly evaluated. By not giving the full historical context its due, however,
the Court has in my opinion unnecessarily curtailed its scope for settling
the dispute in a persuasive and legally convincing way. To elucidate my
viewpoint, I will start with some remarks on the historical context of the
dispute, although I certainly do not pretend to be an expert on the his-
tory of the Gulf region.

II. THE HISTORICAL CONTEXT

5. “[TJhe concept of a State with clearly defined boundaries was totally
alien to the political notions of the rulers and the tribes of the area.
Political boundaries were dependent on tribal loyalties to particular
shaikhs and consequently were subject to frequent change . . . a

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tribe’s loyalty was determined by its own interests and could, and at
this time often did, alter.” !

This quotation from a book by an Arab author on the history of the
Gulf area seems to give an accurate picture of the situation in the region
concerned in the not too distant past.

6. Colonization, which was such an overriding factor during the nine-
teenth century in other parts of the world, only had a limited effect in the
Gulf region. The Western Power which had continuously expanded its
influence in the area, Great Britain, never occupied the various sheikh-
doms located on the Arab side of the Gulf, encapsulating them in its
colonial empire. For reasons which do not need to be analysed here, the
British Government preferred to enter into treaty relations with the local
rulers and to keep these treaty relations intact, instead of allowing them
to be gradually overgrown by administrative structures of the colonial
type, as for instance was the case in parts of sub-Saharan Africa.

7. Since the main concern of the British in the nineteenth century was
maritime security rather than natural resources, they obtained — and
sometimes even imposed — commitments from the local rulers to abstain
from acts of piracy and other activities which might endanger maritime
peace. They had to intervene from time to time in situations of conflict
between the local rulers themselves and to take appropriate measures to
settle a dispute in order to prevent it from jeopardizing peace at sea and
the safety of the Gulf as a major commercial route. A case in point is the
difficulties between the Al-Khalifahs of Bahrain and the Al-Thani of
Qatar in the second half of the nineteenth century which culminated on
various occasions in clashes around (I do not use the word “about”
advisedly) Zubarah.

8. It was in the interest of the British to prevent the existence of
overlapping zones of influence for the local rulers since this could lead
to competition and tension. Zubarah was an obvious candidate for
becoming such an overlapping zone of influence and both in the 1870s
and in 1895 the British took measures to nip an armed conflict in the
bud, the first time to the detriment of the Ruler of Bahrain, the second
time to the detriment of the Ruler of Qatar. In both cases, an impor-
tant factor for the British was also presumably that a clash between the
two Rulers would in all probability also have led to problems between
the British Government and the Ottoman Empire, which in the second
half of the nineteenth century tried to re-establish its control over the

‘ Muhammed Morsy Abdullah, The United Arab Emirates: A Modern History, 1978.
p. 291. quoted by Mr. John L. Simpson, QC, in his dissenting opinion to the Award of the
Court of Arbitration in the Dubai/Sharjah Border case (International Law Reports
(ILR}. Vol. 91, p. 681).

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228 DELIMITATION AND QUESTIONS (SEP. OP. KOOIJMANS)

Arabian peninsula of which the Qatar peninsula was considered to be
part.

9. The British attitude may be seen as a recognition of Turkish
suzerainty over certain parts of the Gulf region; it would, however, be
an unwarranted assumption to interpret this attitude as a recognition of
claims of sovereignty or of territorial boundaries between the various
sheikhdoms. As the Arbitral Tribunal in the case between Eritrea and
Yemen said:

“the Tribunal has been aware that Western ideas of territorial
sovereignty are strange to peoples brought up in the Islamic tradi-
tion and familiar with notions of territory very different from those
recognized in contemporary international law” (Award, Phase One,
p. 137, para. 525)?.

10. It can therefore be said that the formation of States as territorially
based sovereign entities in the Arab part of the Gulf region was very slow
and gradual. The British policy to secure maritime peace by apportioning
areas of influence to the local rulers, at the same time prohibiting them
from interfering in each other’s domains, may have contributed to the
growth of separate, territorial entities but all this is a far cry from the
establishment of well-defined, centrally led spheres of exclusive jurisdic-
tion. In this respect it is noteworthy that the various treaties, in which the
British Government took upon itself to provide protection against
“ageression by sea” (emphasis added) were concluded with the various
rulers in their personal capacity. In no way can it be deduced from these
treaties that the British promised to guarantee the ferritorial integrity of
the sheikhdoms. That concept was simply non-existent at the time.

11. It would be highly artificial indeed to construe the various agree-
ments concluded by Great Britain in 1868 with the rulers in Manama and
Doha as providing the latter with a title to the whole of the peninsula,
including any islands off the coast. Surely it was Britain’s intention in
concluding these agreements to keep the Ruler of Bahrain from meddling
in affairs on the mainland, but it is highly improbable that the British
saw such meddling as equivalent to an intervention in the internal affairs
of another sovereign State. Preventing the Al-Khalifa from undertaking
activities in Zubarah certainly cannot be seen as recognition of Al-Thani
sovereignty over that area. British policy, however, allowed local rulers
to consolidate their control over the zones of influence allotted to them
and this facilitated the formation of States in a more contemporary sense.

? The present author has been told that the Arab word “dirah” can hardly be translated
by “territory”. See also Muhammed Morsy Abdullah (op. cit., note 1): “Dirah in Arabia
at this time (nineteenth century) was a flexibly defined area, changing in size according to
the strength of the tribe which wandered within it.”

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12. The need for such a modern concept of State was greatly enhanced
by the discovery of oil in the region in the years after the First World
War. The Court of Arbitration in the Dubai/Sharjah Border case aptly
summarized this highly important development when it said that

“the concept of a boundary in the Western sense was in the early
days quite unknown to the nomadic peoples of this region. When,
however, some recognition of the potential oil resources of the area
was possible, it became necessary to consider the establishment of
precise and clearly defined boundaries between the Emirates. It was
in the interest of both the Rulers and the concessionary companies
that the extent of each concession be capable of exact determination.
The prospect of the future exploration and exploitation of oil
resources led directly to the first tentative steps toward the establish-
ment of boundaries.” (Award, ILR, Vol. 91, p. 562.)

13. The new era also led to a change in character of British involve-
ment in the area. Economic and strategic interests took the place of
maritime security as the dominant policy goals of a State which set great
store by remaining the main power in a part of the world of increasing
strategic importance. Great Britain obtained from the local rulers the
promise that no concessions for the exploration and exploitation of oil
would be granted without its consent. It was, therefore, not only in the
interest of the rulers and the concessionary companies that the extent
of each concession be capable of exact determination, as the Court of
Arbitration in the Dubai/Sharjah Border case said, but also in the interest
of the Protecting Power. The exact location of boundaries, which had
been a matter of minor concern to the British in the nineteenth century,
became an issue of direct importance in the twentieth century.

14. As a result, Great Britain’s grip on the local rulers undoubtedly
- tightened and in some aspects its relations with them may have even
assumed the features of a quasi-colonial régime, hardly leaving these
rulers room for an autonomous policy. It is noteworthy, however, that
formally nothing changed in the relationship between Great Britain
and the “Protected States”, a term which gradually came to be used to
indicate the sheikhdoms in the Gulf area.

15. For a legal evaluation of the “Special Relationship” between Great
Britain and the Gulf States the unchanged nature of these relations since
the conclusion of the original treaties with Bahrain in 1892 and with
Qatar in 1916 is highly relevant. It is difficult to give an exact characteri-
zation of this relationship. Perhaps the best description was given by
Lord Curzon, Viceroy of India, in a speech addressed to the Chiefs of the
Trucial Coast in 1903. He said: “your independence will continue to be

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upheld; and the influence of the British Government must remain
supreme” >.

And the British Government itself never ceased to refer to the Gulf
States as “independent States which Her Majesty’s Government are
under an obligation to protect”.

16. This so-called Special Relationship may have been equivocal from
a legal point of view, but it would be wholly unwarranted to place it on
a par with a colonial relationship. When in 1971 the special relations
between the United Kingdom on the one hand and Bahrain and Qatar on
the other came to an end, it can be said that the latter two States
(re)gained full independence, but it would be inaccurate to say that they
became independent. They were the same States before and after 1971.
This is also recognized in the Court’s Judgment when it states in para-
graph 139 that

“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.” (Emphasis added.)

II]. THE PRINCIPLE OF Uti POSSIDETIS JURIS

17. The conclusion reached by the Court on the basis of the British
decision of 1939 made it, in the Court’s view, unnecessary “to rule on the
arguments of the Parties based on the existence of an original title, effec-
tivités and the applicability of the principle of uti possidetis juris to the
present case” (Judgment, para. 148).

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 dis-
positif is based on considerations relating to title to sovereignty, geo-
graphical 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 redun-
dant.

19. In its famous statement in the case concerning the Frontier Dispute
(Burkina FasolRepublic of Mali), the Chamber of the Court called the
principle of uti possidetis

“a general principle, which is logically connected with the pheno-
3 Quoted in the Award in the Dubai/Sharah Border case, ILR, Vol. 91, p. 561.

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menon of the obtaining of independence, wherever it occurs. Its obvi-
ous 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.” ULC.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 Uri Possidetis Juris
Today” he says that: “The principle of wei possidetis functions in the con-
text of the transmission of sovereignty and the creation of a new inde-
pendent State and conditions that process.” +

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 inde-
pendent State achieve independence as the result of the (partial) dissolu-
tion of that State. Under those circumstances the principle has been
declared applicable (inter alia, 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.”*

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 Fasol Republic of 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 inter-
national 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 sov-
ereignty from one State to another State as a result of which (}) admin-
istrative boundaries are invested “with a significance and a purpose that

4 British Year Book of International Law, Vol. 67, 1996, p. 98.
* Quoted in Shaw, op. cit, p. 109.

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they were never intended to have”®. 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 “replace-
ment 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 ts 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 admin-
istrative boundary which was transformed into an international bound-
ary. 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 deter-
minative 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 | 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.

IV. THE TERRITORIAL ISSUES: THE GENERAL CONTEXT

27. Since the uti possidetis principle cannot be considered to be appli-
cable, the various territorial issues (Zubarah, the Hawar Islands and
Janan) must be dealt with separately and on their own merits.

In view of the fact that the position of the British Government has had
a considerable impact on the course of events leading to the dispute
before the Court, one preliminary point must be made.

28. Neither the Treaties of 1880 and 1892 with Bahrain nor the Treaty
of 1916 with Qatar conferred upon the Protecting Power, Great Britain,

6 Shaw, op. cit. p. 117.

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the right to unilaterally determine the boundaries of the sheikhdoms or to
decide upon matters of territorial sovereignty. Such decisions could there-
fore only be made with the consent of the protected States themselves
and this seemed not to be in dispute between the Parties, since the ques-
tion which bitterly divided the Parties was whether such consent to
authorize the British Government to decide to which of the Parties the
Hawar Islands belong, was actually given. In this respect the protected
States had therefore retained their sovereignty. The Court of Arbitration
in the DubailSharjah Border case explicitly stated with regard to the Tru-
cial States, with which similar treaties had been concluded:

“It is therefore clear that no treaty authorised the British authori-
ties to delimit unilaterally the boundaries between the Emirates and
that no British administration ever asserted that it had the right to
do so.” (Award, ILR, Vol. 91, p. 567.)

29. In this respect it is useful to recall the viewpoint of the Ruler of
Bahrain who, after the British Government had informed him in 1947 of
the decision on the division of the sea-bed between the Parties, wrote to
the British Political Agent: “we ask under which of the treaties between
us and the British Government it is laid down that the British Govern-
ment may make decisions regarding the boundaries without reference or
consultation with the Ruler of Bahrain”.

30. The fact that the Protecting Power had not been authorized under
the relevant treaties to determine unilaterally and on its own initiative the
boundaries of the protected States or to settle territorial issues, is in itself
an indication that the uti possidetis principle is not applicable. The ensu-
ing situation is, namely, completely different from a colonial situation
where the administering power had full discretion to draw an adminis-
trative boundary and from situations in dissolved or partially dissolved
federal States, where the federal organs by internal legal measures estab-
lished the boundaries separating the various federal units.

31. For our present purposes, however, it is particularly relevant to
point out that territorial issues could not be resolved without the consent
of the local rulers. If it is not possible to satisfactorily substantiate
that such consent was given or that there was subsequent acceptance or
acquiescence, a territorial settlement by the British authorities has no
legal validity per se; any remaining issue must be resolved in the light
of the general principles of international law.

32. This in no way implies that the Protecting Power by definition
acted ultra vires if it acted on its own initiative or unilaterally when con-
fronted with factors of instability originating in a dispute over territory
and which might threaten peace in the region. Within the context of the
special relations established by the treaties, Great Britain was under an
obligation to protect the local rulers and in most cases this might imply

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protection against their unfriendly intentions and/or activities with respect
to one another. In order to be able to honour its commitments, the Pro-
tecting Power acted well within its powers if it tried to defuse existing
tensions by taking a position with regard to competing claims or even
imposing a settlement. An example of the former approach is British
policy with regard to Zubarah, an example of the latter is the 1939 “deci-
sion” on the Hawars and the 1947 “decision” on Janan. In order to give
such an arrangement legal validity, prior consent or subsequent accept-
ance or acquiescence is required. In this respect it is irrelevant whether
the Protecting Power acted intra vires within the context of the Special
Relationship. That question simply lies outside the Court’s scope.

V. THE QUESTION OF ZUBARAH

33. It is difficult to characterize the dispute concerning sovereignty
over Zubarah as a dispute over territory or over the location of territorial
boundaries. Even in the beginning of the twenty-first century it still car-
ries the nature of contested hegemonic spheres or disputed entitlements
to ties of allegiance rather than that of conflicting claims to exclusive
spatial authority over a certain piece of land. That peculiar character of
this part of the dispute is even today illustrated by the fact that Bahrain
neither in the written nor in the oral pleadings defined the extent of
the area over which it claimed sovereignty, but simply referred to the
Zubarah region. Only on maps annexed to the pleadings did it indicate
what was to be understood by that term. But it was only after an explicit
request from the Bench to give an accurate description of the territory
that the co-ordinates for the locations establishing the perimeters of the
Zubarah region were provided.

34. Bahrain bases its claim mainly on historic rights and ties of alle-
giance with the Naim tribe, which has frequented the Zubarah region
over the last two centuries without it being clear whether it is actually
settled there. Qatar for its part maintains that these ties of allegiance have
only existed with a particular branch of the Naim tribe, although this
allegiance by the Al-Jabr branch has not been constant and was at least
formally terminated after 1937.

35. As for the historical aspects, it is not disputed that Zubarah was
the power base of the present ruling family of Bahrain in the area before
they moved to the main island in the Bahrain group where they stayed
until the present day, with a number of short interruptions in the nine-
teenth century when they temporarily returned to Zubarah. Nor is it
disputed that until the 1870s Zubarah was considered part of that
ruling family’s domain.

36. After Great Britain had concluded the agreements with the local

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rulers in 1868, it became British policy to look unfavourably on Bahraini
incursions into the Qatar peninsula. As I made clear with respect to the
historical context, it would be an anachronism to interpret the 1868
Agreement with the Sheikh of Doha as providing this ruler with a sov-
ereign title to the whole of the peninsula. But this certainly does not mean
that Bahrain had original title to a rather well-defined territory, a title
which even survived an alleged illegal occupation by Qatar in 1937.

37. In this respect it is useful to recall what was said by Mr. Muhammed
Morsy Abdullah, namely, that “the concept of a State with clearly defined
boundaries was totally alien to the political notions of the rulers and the
tribes of the area” (see para. 5 above). Against this backdrop certain
effects of post-1868 British policy can be observed: it became more diffi-
cult for the Al-Khalifah to maintain their traditional relations with the
area, whereas the Al-Thani were in a position to gain control over this part
of the peninsula, acting under the umbrella of the Ottomans who (re-)-
established their authority over the greater part of the Arabian peninsula.

38. Although this consolidation of power by Qatar’s ruling family may
not have been continuous in character, it was periodically reaffirmed. It
was acknowledged by the Protecting Power which only tried to smooth
out such frictions between the two ruling families potentially leading to
serious conflicts without, however, contesting the claims or rights of
Qatar’s ruling family to Zubarah at any moment.

39. As for the purported ties of allegiance of the Naim (or at least the
Al-Jabr branch) with the Ruler of Bahrain, such ties as have existed —
and there is no reason to doubt that they did —seem to have been rather
ambivalent. In the Western Sahara case the Court stated that ties of alle-
giance have frequently formed a major element in the composition of a
State but that in order to afford indications of the ruler’s sovereignty,
they must clearly be real and be manifested in acts evidencing acceptance
of his political authority (Z. C.J. Reports 1975, p. 42, para. 88).

40. I have serious doubts whether these criteria are met. From the
rather casuistic and often inconsistent evidence presented to the Court,
I get the impression that the Naim used these ties of allegiance with the
Ruler of Bahrain primarily to serve their own purposes, often to resist the
expanding authority of the Ruler of Qatar. Moreover, Bahrain has been
unable to demonstrate that such ties of allegiance also existed with other
tribes regularly frequenting the Zubarah region or that it even tried to
extend its authority over these tribes also: for only in that case could
the ties of allegiance transform themselves into a title to territorial
sovereignty.

41. In the Western Sahara case the Court, though not denying that
there had been legal ties of allegiance between the States in the region and
some of the Western Sahara tribes, concluded that the materials and
information presented to it did not establish any tie of territorial sover-

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eignty between the territory of Western Sahara and the neighbouring
States (C.J. Reports 1975, p. 68, para. 162). A similar conclusion may
be drawn for the present case.

42. It must, therefore, be said that, whatever historical rights Bahrain
may have had in the past, they have long since been set aside by the rights
of Qatar, at least as far as their character of rights under public inter-
national law is concerned. For it is by no means impossible that these
“historic rights” must rather be seen as a reflection of traditional links
between the ruling family of Bahrain and Zubarah which call for a dif-
ferent solution than one based on public law. Even members of the ruling
family of Bahrain seem to have admitted that their interest in Zubarah 1s
primarily an emotional one which could be satisfied by granting them
certain privileges. Also the fact that the Zubarah region was not included
in oil negotiations by Bahrain with a number of oil companies in the
1930s (an inclusion which the Protecting Power would never have allowed)
and the fact that in the 1944 Agreement between the Parties (the result of
mediation by the Protecting Power) the concession agreement concluded
between Qatar and the oil company concerned for the whole of the
peninsula mainland is explicitly recognized (although the remainder of
the 1944 agreement is couched in extremely ambiguous terms) seem to
indicate that — at least during a certain period — Bahrain or its Ruler
recognized that their claim was not a claim to sovereign rights. Just as
indicative is the fact that Bahrain, when it expressed its discontent with
the 1947 British decision on the delimitation of the sea-bed, did not claim
to be entitled to the sea-bed adjacent to the coast of the Zubarah region.

43. Consequently I agree with the Court that sovereignty over Zuba-
rah appertains to Qatar. However, I am less inclined than the Court to
give paramount importance to the position taken by third States, in par-
ticular Great Britain and the Ottoman Empire. For me it is more relevant
that Bahrain has been unable to transform the rights it may have had
over Zubarah in a period when governmental authority had a different
connotation than it has nowadays, into sovereign rights in the modern
sense of the word (even if that was partly attributable to external factors),
whereas Qatar has gradually established its authoritative control over the
area even before 1937. I can therefore fully associate myself with the
Court's conclusion that the actions of the Sheikh of Qatar in Zubarah in
that year were an exercise of his authority over that territory and were
not an unlawful act of force against Bahrain (Judgment, para. 96).

VI. THE HAwar ISLANDS

44, The Court bases its finding that Bahrain has sovereignty over the
Hawar Islands (with the exception of Janan) on the British decision of

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11 July 1939. Although I am also of the opinion that the Hawar Islands
(including Janan, see VII, below) belong to Bahrain, I completely dis-
agree with the Court’s reasoning leading up to that conclusion. In my
opinion the British decision provides no basis for Bahrain's sovereignty
over the islands.

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). | 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.

46. The Court goes on to say that it will determine what is the legal
effect of the 1939 decision for the Parties after analysing the events which
preceded and immediately followed its adoption. The Court then con-
cludes that the decision was binding on both States and continued to be
so. It is on this point that my difficulties arise.

47. The Court does not deny that the Parties’ consent was necessary in
order to enable the British Government to take a decision with binding
effect. The Court construes the exchange of letters of May 1938 between
the Ruler of Qatar and the British Political Agent in Bahrain as contain-
ing such consent.

48. Before dealing with the Court’s interpretation of these letters, it
may be useful to point out that the present case fundamentally differs in
one important aspect from that of the DubaiïlSharjah Border case,
although it is in other respects very similar to it. In that case too, the
Court of Arbitration concluded that the British decisions (the so-called
Tripp decisions) of 1956 and 1957 did not constitute arbitral awards.
Thereupon the Court said that this does not mean that those decisions
were not binding upon the rulers as administrative decisions, since “[t]he
two Rulers, when consenting to the delimitation of their boundaries by

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the British authorities, did specifically undertake to respect the decisions
that would be forthcoming” (Award, ILR, Vol. 91, p. 577).

49. The situation in the Dubai/Sharjah Border case therefore differed
in two respects from the present one. First, in 1954 the Rulers of the six
Trucial States, through a resolution of the Trucial States Council, collec-
tively and formally requested the British Political Agent to determine
their respective boundaries. Second, both the Rulers of Dubai and
Sharjah explicitly promised not to “dispute or object to any decision
that may be decided by the Political Agent regarding the question of the
boundaries” between the Emirates.

50. In the present case the situation is decidedly less clear-cut. The
background is completely different. It was Great Britain, which had
reserved for itself the final say as regards granting oil concessions, that —
at the instigation of the Bahraini authorities — came to the conclusion
that it was necessary to determine whether the Hawar Islands belonged
to Bahrain or Qatar and thus initiated a procedure to settle the question.
It may have done so for very good reasons and the decision, which it
eventually took, may have been sound and correct, but all this can hardly
be called a procedure initiated by the Parties themselves. At that time
(three years before the decision was taken and two years before the pro-
cedure was formally started) Qatar was not even aware of the existence of
a dispute and of the intentions of the other party to the dispute and of the
self-acclaimed conciliator/arbiter.

51. I now come back to the exchange of letters of May 1938 between
the Ruler of Qatar and the British Political Agent in Bahrain. In a letter
dated 10 May 1938, the Ruler of Qatar, who at that moment did not yet
know that two years earlier the Ruler of Bahrain had formally laid claim
to Hawar, complained about Bahrain making interferences at Hawar. He
expressed his confidence that the Political Agent, in order to keep the
peace and tranquillity, would do “what is necessary in the matter”.

52. By letter of 20 May 1938, the Political Agent replied that “by their
formal occupation of the Islands for some time past” the Bahrain Gov-
ernment possessed a prima facie claim to them; he further informed the
Ruler that the British Government was willing to give a contrary claim
by Qatar the fullest consideration, but would not be prepared to prohibit
or restrict the occupation by the Bahraini Government unless and until
that contrary claim would be proved or accepted. He warned the Ruler
not to do anything which might lead to hostilities with the subjects of
Bahrain now in the Hawar Islands. Finally, he reminded the Ruler that
the matter would be decided “in the light of truth and justice” by the
British Government.

53. On 27 May 1938 the Ruler of Qatar wrote a letter in which he for-
mally submitted his claim to the Hawar Islands, after having expressed

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his gratitude for the promise that the British Government would decide
the matter in the light of truth and justice. He concluded the letter, saying
that he trusted that “His Majesty’s Government will administer justice
and equity”.

54. It is beyond my comprehension how this last sentence can be inter-
preted as implying the (belated) consent of the Ruler of Qatar to a dis-
pute settlement procedure. In my view, it should rather be seen as an
appeal to the British Government to honour its commitments under the
1916 Treaty. Referring to his letter of 10 May, the Ruler wrote in the
letter of 27 May:

“As I considered this (the Bahraini interference in Hawar) an
aggressive act, I deemed it incumbent on me to bring the matter first
to your notice in view of the relations existing between us, and the
right of His Majesty’s Government to look into such matters.”

55. After having been informed by the Political Agent that the British
authorities would do nothing before he would have presented a formal
claim to the Hawars, the Ruler of Qatar must have realized that he had
little choice but to accept what was happening and to try to make the
best of it. But that does not mean that on the basis of free consent he
asked the British Government to settle a dispute which had arisen between
himself and the Ruler of Bahrain. On the contrary, what actually acti-
vated the dispute was the fact that Great Britain realized that in all prob-
ability there would be reciprocal claims.

56. Nor is there any indication that the Ruler of Qatar considered the
“award” to be a decision which was unassailable. Even after he had been
informed that the British decision was final, he expressed the hope that
the British Government would reconsider its position on the Hawar
Islands and he did so again in a letter of 21 February 1948, after Britain’s
division of the sea-bed in December 1947.

57. In the light of all these events my conclusion can only be that there
was neither consent on the part of the Ruler of Qatar before the pro-
cedure was started nor acceptance or acquiescence afterwards. Only by
giving a rather imaginative interpretation of these events can the Ruler
of Qatar be said to have given his consent, but even then it is difficult to
call this free consent given in a timely fashion, as a result of which the
outcome of the procedure is opposable to him in spite of the protests he
made. I feel that the Court has largely disregarded the political context
which, in view of what had already been occurring, gave the Ruler of
Qatar hardly any choice but to request the Protecting Power to comply
with its treaty-based commitments “in the light of justice and equity”.

58. In my opinion this does not mean that the 1939 decision is without
legal relevance. To give only one example, Bahrain cannot be said to
have acted illegally with regard to the Hawar Islands as long as it acted in

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conformity with rights attributed to it. But such a decision is not immune
from legal scrutiny (nor does the Court so claim) if the party which was
wronged and whose consent was flawed, expressed its opposition to the
decision in a timely fashion and regularly reserved its rights; this is what
Qatar has done. I cannot agree with Bahrain’s claim that Qatar’s subse-
quent attitude implies that Qatar has acquiesced in Bahrain’s sovereignty
over the Hawar Islands. Before as well as after independence Qatar has
sufficiently indicated that it does not renounce its claim to the islands.

59. The Court would, therefore, in my view have been fully entitled to
determine the issue of sovereignty over the Hawar Islands had it decided
that Qatar did not give its consent. Taking account of the criteria for ter-
ritorial sovereignty which have been established in international law the
Court should, in my view, have determined which of the Parties has a
better claim to the islands, just as it was requested to do with regard to
Zubarah, which was not the subject of an administrative decision. The
1939 decision is no more than a fact, which of course has to be taken into
consideration. Whether it was validly or invalidly taken in the context of
the relationship between Protecting Power and protected States is not a
matter for the Court to decide.

*%

60. The dispute over the Hawar Islands is different from that over
Zubarah in that it arose only after the region had become economically
interesting because of the increasing importance of oil. From the very
outset therefore, the dispute, was placed in a modern setting.

The (Western-based) oil companies wished to have concessionary rights
over lots which were clearly defined and wished to obtain them from an
authority which had — preferably undisputed — territorial sovereignty
over such lots. If disputes arose between the entities which could grant a
concession for the exploitation of natural resources, such disputes were
about the precise course of boundaries or about sovereignty over well-
defined pieces of territory and such disputes lend themselves in principle
to settlement in conformity with rules and principles of contemporary
international law.

61. It should be kept in mind, however, that although the dispute itself
may have a typical twentieth-century appearance, the origins of the
claims go far back in time. In the present case both Parties base their ter-
ritorial claims on arguments which are often related to concepts of mod-
ern international law. For example, they either maintain or refute that
certain acts, performed in the nineteenth or the first decades of the twen-
tieth century, are evidence of possession @ titre de souverain. In weighing
up these arguments one should, however, constantly bear in mind that, as
the Court of Arbitration in the Dubai/Sharjah case said, “to apply these

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rules (of international law), in their contemporary form, to peoples which
have had, until very recently, à totally different conception of sovereignty
would be highly artificial” (Award, ILR, Vol. 91, p. 587).

62. As already indicated, it is an anachronism to construe the 1868
Agreement concluded by Great Britain with the Al-Thani chief in Doha,
as providing him with a title to the whole of the peninsula, including the
Hawar Islands. It simply cannot be maintained that the Hawar Islands
were part and parcel of Qatar right from its purported inception as a
sovereign State in 1868 and that Bahrain has to provide evidence of
preceding long-standing possession of the islands à titre de souverain in
order to get its claim recognized as the better one.

63. Even if it is assumed, arguendo, that Qatar has original title by vir-
tue of the 1868 Agreement read in conjunction with the agreements of
Britain with Bahrain, this would not in itself be sufficient to defeat a
claim of Bahrain based on a long-standing display of authority, unless
Qatar itself could prove that it actually exercised some authority on the
islands. As Judge Huber said (with regard to occupation) in the Island of
Palmas case:

“The growing insistence with which international law . . . has
demanded that the occupation shall be effective would be inconceiv-
able, if effectiveness were required only for the act of acquisition and
not equally for the maintenance of the right.” (United Nations,
Reports of International Arbitral Awards (RIAA), Vol. Il, p. 839.)

64. Qatar, however, has not been able to establish any facts which
would provide evidence of continued effective maintenance of the right
vested in its purported original title. Yet it has argued that its original
title to the Hawar Islands is confirmed by the principle of proximity or
contiguity. And it certainly cannot be denied that from a geographical
point of view the Hawar Islands belong to — or are even part of — the
peninsula, not only because they are very close to it, but also because
they form a fringe following the course of the coastline.

65. The principle of contiguity, although not unknown in international
law, is, however, no more than a presumption. To quote again Judge
Huber in his award in the /sland of Palmas case:

“As a rule establishing ipso jure the presumption of sovereignty in
favour of a particular State, this principle would be in conflict with
what has been said as to territorial sovereignty and as to the neces-
sary relation between the right to exclude other States from a region
and the duty to display therein the activities of a State.” (RIAA,
Vol. IL, pp. 854-855.)

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242 DELIMITATION AND QUESTIONS (SEP. OP. KOOIJMANS)

66. Much has been made of the fact that in the paragraph just quoted
from, Judge Huber seemed to refer only to islands situated outside terri-
torial waters, which would allow for an a contrario interpretation with
regard to islands situated within a State’s territorial waters. Huber’s
reasoning, however, is as pertinent to islands lying within territorial
waters. It is the display of State activities in order to exclude claims
of other States which is the decisive factor.

This also seems to be the view of the Arbitral Tribunal in the Eritrea/
Yemen case, which stated:

“there is some presumption that any islands off one of the coasts
may be thought to belong by appurtenance to that coast unless the
State on the opposite coast has been able to demonstrate a clearly
better title” (Award, Phase One, p. 119, para. 458; emphasis added).

67. In support of its claim to the Hawar Islands, Qatar also relies on
cartographic evidence. It has submitted an impressive amount of maps
and other cartographic evidence, the greater majority of which convin-
cingly indicates that, for a considerable period of time preceding the 1939
British decision, the Hawar Islands were considered to belong to what
eventually became the State of Qatar. The cartographic evidence sub-
mitted by Bahrain is, to put it mildly, sparse and rather ambiguous.

68. It does not seem necessary to recall in great detail what the Cham-
ber of the Court had to say about the value of map evidence in the case
concerning the Frontier Dispute (Burkina FasolRepublic of Mali, viz.,
that maps cannot constitute a territorial title but are usually merely
extrinsic evidence which may be used, along with other circumstantial
evidence, to establish or reconstitute the real facts (4 C.J. Reports 1986,
p. 582, para. 54). Since Qatar has in my view not been able to demon-
strate that it has title to the Hawar Islands based on the display of
authority — even in the most limited way — in combination with a
legally recognized mode of acquisition, the cartographic evidence must in
my view be discarded.

69. The latter conclusion does not mean that it might not be desirable
to try to find an explanation for the indeed remarkable consistency with
which the maps seem to apportion the Hawar Islands to Qatar; even if
this consistency can partly be explained by the fact that cartographers
often refer to already existing maps and in certain respects copy them,
this certainly cannot be the only explanation.

70. Of more relevance may be the fact that most cartographers of that
period were Westerners who were used to drawing their maps on the
basis of generally available information, which could be supplemented by
their own expertise and research, and on the assumption of the existence
of clearly defined territorial units. If maps have to be drawn of an area
where precise boundaries do not exist, and where the emanations of

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243 DELIMITATION AND QUESTIONS (SEP. OP. KOOUMANS)

governmental power do not in the first place rest on territorial exclusivity,
it is only logical to assume that islands which are only sparsely and/or
temporarily inhabited and which are situated close to the coast of the
mainland. are part of that mainland. In such a case, however, the map
is more a reflection of the geographical than of the political situation for
the simple reason that the political situation is too opaque to reproduce
it in a traditional and readily recognizable way.

71. It therefore seems useful to take to heart the words of Judge Huber
in the Island of Palmas case:

“If the Arbitrator is satisfied as to the existence of legally relevant
facts which contradict the statements of cartographers whose sources
of information are not known, he can attach no weight to the maps,
however numerous and generally appreciated they are.” (R/AA,
Vol. IT. p. 853.)

It is therefore necessary now to deal with the list of effectivités submitted
by Bahrain in order to see whether Judge Huber’s statement holds true
for the present case.

72. Just as with regard to its claim to Zubarah, it is the existence of
ties of allegiance between the Ruler of Bahrain and the tribes which
had settled on Hawar Island, in particular the Dowasir, which forms
the core of Bahrain’s argument. It has given itself great pains not only to
prove these ties of allegiance but also to present the effectivités which
evidence the “genuine display or exercise of authority”.

73. In the period before 1936 — the starting-point of the dispute —
these effectivités are nebulous and ambiguous at most, and often rest on
hearsay recorded by foreigners. It is, however, beyond doubt that links
existed between the main island of Bahrain, in particular the town of Zel-
laq (the main centre of population of the Dowasir) and Hawar, to which
these Dowasir regularly moved. Whether this translated itself into “ties
of allegiance” towards the Ruler of Bahrain is less clear from the evi-
dence submitted to the Court, although it is certainly not unthinkable
since their main residence was in Bahrain and there was no other ruler in
the area to whom they could feel allegiance, certainly not the Ruler in
Doha, of whose existence they well may have been unaware considering
that the coastal area opposite the Hawars was uninhabited.

74. It is true that such ties were not continuous and that they were
sometimes temporarily interrupted, as was regularly the case with such
ties in the region. In the 1920s, for instance, a conflict arose between the
Ruler of Bahrain and the Dowasir of Zellaq, as a result of which the
latter moved from Bahrain Island to the Arabian peninsula, returning
to Bahrain only after a number of years. It is highly improbable, however,
that the inhabitants of Hawar, which could hardly be called a hospitable

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place, were able to carry on without a basis of support on Bahrain Island
and there was no other place for them to turn to.

75. However, it is the effectivités, presented as evidence of a display of
authority, which are less persuasive. It is by now quite clear that Hawar
was inhabited, at least on a periodic basis, as proved by the existence of
cisterns, houses, cemeteries, etc. There is also no reason to doubt that
from time to time measures were taken by Bahraini officials with regard
to events which had taken place on Hawar. What is much less clear, how-
ever, is whether this is a reliable indication that the Ruler of Bahrain con-
sidered the Hawars to be part of his domain; no evidence is provided of
a continuous display of authority nor of the fact that the people in Hawar
turned on their own initiative to the Ruler of Bahrain when they felt they
needed help.

Illustrative in this respect is that, before 1936. no mention is made of
Hawar in the Annual Reports produced by the Bahraini authorities.

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.LJ., Series A/B, No. 53, pp. 45-46), even if it is
considerably more than has been presented by Qatar. These two con-
cepts, however, must be appraised in relation to the legal and political
context of the relevant period and of the region concerned. And these con-
cepts 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 ( Botswanal
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 authori-
ties” (Judgment, LC.J. Reports 1999 (11), 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 exclu-
sive jurisdiction.

77. Much more appropriate for the present case seems to be the
Permanent Court's finding in the Eustern 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 tri-
bunal has been satisfied with very little in the way of the actual exer-
cise of sovereign rights, provided that the other State could not make
out a superior claim.” (P.C.LJ., Series AIB, No. 53, p. 46: emphasis
added.)

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245 DELIMITATION AND QUESTIONS (SEP. OP. KOOIJMANS)

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 Bah-
rain, 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.

79. It is for these reasons that I concur with the Court’s finding in para-
graph 2 of the operative part of the Judgment that Bahrain has sover-
eignty over the Hawar Islands. I have found it necessary to set out the
reasons which brought me to that conclusion, since I disagree with the
Court’s reasoning.

VII. THE QUESTION OF JANAN

80. The question to which of the Parties Janan Island belongs is a
rather peculiar one. Bahrain based its claim to the island on the fact that
it was not excluded from the Hawar group when the British Government
decided in July 1939 that the Hawar Islands belonged to Bahrain. Qatar,
for its part, bases its claim on the fact that Janan was explicitly not
included in the Hawar group when Great Britain gave its “decision” on
the division of the sea-bed between the Parties in December 1947.

81. These different interpretations of the position of the British Gov-
ernment are apparently the main — if not the only — reason why sov-
ereignty over Janan has been presented as a separate issue. On more
substantive matters, the Parties invoke the same arguments as they do
with regard to the Hawar group as a whole; Qatar bases itself primarily
on the principle of proximity, Bahrain on its alleged display of sover-
eignty. There is no reason whatsoever to diverge from my views on these
issues with respect to the Hawar Islands in general when it comes to
Janan Island in particular.

82. The only remaining problem, therefore, is how to deal with the
ostensibly incongruous position taken by the British Government in 1939
and 1947 respectively. What are the legal implications involved?

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246 DELIMITATION AND QUESTIONS (SEP. OP. KOOIJMANS)

83. In the letters to the Rulers of Bahrain and Qatar of 11 July 1939
reference was only made to “the ownership of the Hawar Islands”. No
reasoning was given for the decision to award them to Bahrain.

Of more relevance is the fact that in the letter from the Political Agent
in Bahrain, Sir Hugh Weightman, to the Political Resident in the Gulf,
which contained the arguments for the British decision, no mention was
made of a special position with respect to Janan Island (Judgment,
para. 128). From the history of the oil concessions negotiated during the
1930s, it is, however, evident that Janan was considered part of the
Hawar group. This is confirmed by a letter from Colonel Hay, Political
Resident in the Gulf, to the India Office, written in 1947. In this letter, in
which he gave his recommendations with regard to the division of the
sea-bed, he wrote: “I must call attention to the point that Janan was
definitely included in the area for which Petroleum Concessions Limited
were negotiating with the Bahraini Government in 1938-39”.

84. In my view, Bahrain had every reason to believe that the British
decision included Janan in the Hawar group, and that, accordingly, it
had sovereignty over it. Neither was there any reason for the Ruler of
Qatar to believe that it was vor included and in his various letters and
protests from that period, no specific mention of Janan was made.

85. The letter of 23 December 1947 to the Rulers of Bahrain and
Qatar, containing the views of the British Government on the delimita-
tion of the sea-bed, was the very first document which made specific men-
tion of Janan Island, excluding it from the Hawar group. Its legal status
is not very clear. In the introductory paragraph, it is stated that “apart
from any other considerations” (which are not further indicated) a delimi-
tation of the sea-bed is deemed necessary because of the operations of the
oil companies in the territories of Bahrain and Qatar”.

86. Although paragraph 3 of the letter makes reference to “this deci-
sion”, the words and expressions used make clear that it only reflects the
views of the British Government on the sovereign rights the Parties
already have. It can therefore not be seen as an instrument which
attributes such rights. In paragraph 4 it is explicitly stated that the Sheikh
of Bahrain is recognized as having sovereign rights in the Hawar Islands,
it being added that “Janan Island” is not regarded as being included in
the islands of the Hawar group. At best, therefore, the letter can be seen
as a (belated) interpretation of the 1939 decision by the British authori-
ties, and not as a rectification of it with binding effect.

87. The reasons why Janan was detached from the Hawar group can
be found in the advice of the Political Agent in Bahrain of 31 December
1946 and is summarized in a letter of the Political Resident in the Persian
Gulf of 18 January 1947. I do not find these arguments very persuasive.
The decisive factor seems to have been that the channel between Hawar
(the main island of the group) and Janan was the main access to the land-
ing place of the PCL oil company in Zakarit (Zukrit) Bay, off mainland

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247 DELIMITATION AND QUESTIONS (SEP. OP. KOOIJMANS)

Qatar. It was considered undesirable that Bahrain would be able to block
this access, which it could do if it had sovereignty over both Hawar and
Janan. The decision, therefore, was taken on the basis of political con-
siderations which, moreover, did not yet play a role in 1939 when Great
Britain awarded the Hawar group to Bahrain.

88. The conclusion seems justified that, until 1947, Janan was con-
sidered by the British authorities, as well as by both Bahrain and Qatar,
to be part of the Hawar group. In this respect, it may be observed that,
when Bahrain beaconed Janan Island after the 1939 decision, the British
authorities did not protest, although they had been informed. Even if the
display of governmental authority by Bahrain must be deemed rather
weak with regard to the main island, there does not seem to be any
reason to detach one of the smaller islands from the group, unless Qatar
could demonstrate that it has a stronger claim to that particular island.
Since this is not the case, Janan should be seen as part of the Hawars and
consequently as being under the sovereignty of Bahrain. Whether this is
an application of the principle of the natural or physical unity of a group
of islands is in my opinion not relevant, since this principle is at best a
rebuttable presumption which in itself is not creative of title. Of decisive
importance is that, when in the 1930s the dispute over the Hawars arose,
both Parties as well as the Protecting Power never considered Janan
Island as separate from the group. Since Janan must be considered part
of the Hawars over which Bahrain has sovereignty, | have voted against
operative paragraph 3 of the Judgment.

CONCLUDING REMARK

89. Although I fully agree with the Court’s reasoning on the maritime
delimitation, and although I have also voted for paragraph 6 of the
operative part of the Judgment, it scarcely needs explaining that | cannot
agree with that part of the single maritime boundary that runs westward
between Jazirat Hawar and Janan. Since in my view Janan is part of the
Hawars and thus belongs to Bahrain, the boundary should run south-
westward between Janan and the coast of the peninsula. However, as the
Court ruled that Janan belongs to Qatar and drew the maritime bound-
ary in conformity with that finding, I saw no reason to express my slight
disagreement by casting a negative vote.

(Signed) P. H. KooMans.

211


                           INTERNATIONAL COURT OF JUSTICE

                             REPORTS OF JUDGMENTS,
                          ADVISORY OPINIONS AND ORDERS

                   CONSTRUCTION OF A ROAD IN COSTA RICA
                        ALONG THE SAN JUAN RIVER
                            (NICARAGUA v. COSTA RICA)

                             JOINDER OF PROCEEDINGS

                              ORDER OF 17 APRIL 2013

                                  2013
                           COUR INTERNATIONALE DE JUSTICE

                               RECUEIL DES ARRÊTS,
                        AVIS CONSULTATIFS ET ORDONNANCES

             CONSTRUCTION D’UNE ROUTE AU COSTA RICA
                   LE LONG DU FLEUVE SAN JUAN
                            (NICARAGUA c. COSTA RICA)

                              JONCTION D’INSTANCES

                           ORDONNANCE DU 17 AVRIL 2013

5 CIJ1044.indb 1                                            11/04/14 10:56

                                               Official citation :
                         Construction of a Road in Costa Rica along the San Juan River
                              (Nicaragua v. Costa Rica), Joinder of Proceedings,
                              Order of 17 April 2013, I.C.J. Reports 2013, p. 184

                                            Mode officiel de citation :
                        Construction d’une route au Costa Rica le long du fleuve San Juan
                                (Nicaragua c. Costa Rica), jonction d’instances,
                            ordonnance du 17 avril 2013, C.I.J. Recueil 2013, p. 184

                                                                                1044
                                                                 Sales number
                   ISSN 0074-4441                                No de vente:
                   ISBN 978-92-1-071159-3

5 CIJ1044.indb 2                                                                            11/04/14 10:56

                                                        17 APRIL 2013

                                                          ORDER

                    CONSTRUCTION OF A ROAD IN COSTA RICA
                         ALONG THE SAN JUAN RIVER
                          (NICARAGUA v. COSTA RICA)

                              JOINDER OF PROCEEDINGS

                   CONSTRUCTION D’UNE ROUTE AU COSTA RICA
                         LE LONG DU FLEUVE SAN JUAN
                          (NICARAGUA c. COSTA RICA)

                               JONCTION D’INSTANCES

                                                       17 AVRIL 2013

                                                       ORDONNANCE

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                    184

                                    INTERNATIONAL COURT OF JUSTICE

        2013
                                                      YEAR 2013
      17 April
     General List                                     17 April 2013
      No. 152

                    CONSTRUCTION OF A ROAD IN COSTA RICA
                         ALONG THE SAN JUAN RIVER
                                        (NICARAGUA v. COSTA RICA)

                                         JOINDER OF PROCEEDINGS

                                                        ORDER

                    Present : President Tomka ; Vice‑President Sepúlveda‑Amor ; Judges
                               Owada,     Abraham,     Keith,   Bennouna,   Skotnikov,
                               Cançado Trindade, Yusuf, Greenwood, Xue, Donoghue,
                               Gaja, Sebutinde, Bhandari ; Judges ad hoc Guillaume,
                               Simma ; Registrar Couvreur.

                        The International Court of Justice,
                       Composed as above,
                       After deliberation,
                       Having regard to Article 48 of the Statute of the Court and to Arti-
                    cle 47 of the Rules of Court,
                        Makes the following Order :
                        Whereas :
                      1. By an Application filed in the Registry of the Court on 22 Decem-
                    ber 2011, the Government of the Republic of Nicaragua (hereinafter
                    “Nicaragua”) instituted proceedings against the Government of the
                    Republic of Costa Rica (hereinafter “Costa Rica”) in the case concerning
                    Construction of a Road in Costa Rica along the San Juan River (Nicara‑
                    gua v. Costa Rica) (hereinafter referred to as the Nicaragua v. Costa Rica
                    case) for “violations of Nicaraguan sovereignty and major environmental
                    damages on its territory”, contending, in particular, that Costa Rica was

                    4

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                    185 	          construction of a road (order 17 IV 13)

                    carrying out major works along most of the border area between the two
                    countries along the San Juan River, namely the construction of a road,
                    with grave environmental consequences.
                       2. In its Application, Nicaragua reserved the right to request the join-
                    der of the proceedings in the present case and the proceedings in the case
                    concerning Certain Activities Carried Out by Nicaragua in the Border Area
                    (Costa Rica v. Nicaragua) instituted by Costa Rica against Nicaragua by
                    an Application dated 18 November 2010 (hereinafter referred to as the
                    Costa Rica v. Nicaragua case).
                       3. In its Application in the Costa Rica v. Nicaragua case, Costa Rica
                    stated that the case related to “the incursion into, occupation of and use
                    by Nicaragua’s army of Costa Rican territory”, contending, in particular,
                    that Nicaragua had “in two separate incidents, occupied the territory of
                    Costa Rica in connection with the construction of a canal across Costa
                    Rican territory . . . and certain related works of dredging on the San Juan
                    River”. Costa Rica alleged breaches by Nicaragua of its obligations
                    towards Costa Rica under a number of treaty instruments and other
                    applicable rules of international law, as well as under certain arbitral and
                    judicial decisions. In this regard, Costa Rica refers to the Charter of the
                    United Nations and the Charter of the Organization of American States ;
                    the Treaty of Territorial Limits between Costa Rica and Nicaragua of
                    15 April 1858 (hereinafter the “1858 Treaty of Limits”), namely, Arti-
                    cles I, II, V and IX ; the arbitral award issued by the President of the
                    United States of America, Grover Cleveland, on 22 March 1888 (herein-
                    after the “Cleveland Award”) ; the first and second arbitral awards ren-
                    dered by Edward Porter Alexander dated respectively 30 September 1897
                    and 20 December 1897 (hereinafter the “Alexander Awards”) ; the
                    1971 Convention on Wetlands of International Importance (hereinafter
                    the “Ramsar Convention”) ; and the Judgment of the Court of 13 July 2009
                    in the case concerning the Dispute regarding Navigational and Related
                    Rights (Costa Rica v. Nicaragua).
                       4. In its Application in the present case, Nicaragua invokes, as a basis
                    for the jurisdiction of the Court, Article XXXI of the American Treaty
                    on Pacific Settlement signed at Bogotá on 30 April 1948 (hereinafter the
                    “Pact of Bogotá”). In addition, Nicaragua seeks to found the jurisdiction
                    of the Court on the declaration it made on 24 September 1929 (and
                    amended on 23 October 2001) under Article 36 of the Statute of the Per-
                    manent Court of International Justice and which is deemed, pursuant to
                    Article 36, paragraph 5, of the Statute of the present Court, for the period
                    which it still has to run, to be acceptance of the compulsory jurisdiction
                    of this Court, as well as on the declaration which Costa Rica made on
                    20 February 1973 under Article 36, paragraph 2, of the Statute.
                       5. In accordance with Article 40, paragraph 2, of the Statute, the Reg-
                    istrar communicated a signed copy of the Application forthwith to the
                    Government of Costa Rica ; and, under paragraph 3 of that Article, all
                    States entitled to appear before the Court were notified of the filing of the
                    Application.

                    5

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                    186 	          construction of a road (order 17 IV 13)

                        6. Since the Court includes no judge of the nationality of the Parties
                    upon the Bench, each of them, in exercise of the right conferred by
                    Article 31, paragraph 3, of the Statute, chose a judge ad hoc in the case.
                     Nicaragua chose Mr. Gilbert Guillaume and Costa Rica chose
                     Mr. Bruno Simma.
                        7. By an Order of 23 January 2012, taking account of the agreement of
                     the Parties, the Court fixed 19 December 2012 and 19 December 2013 as
                     the respective time‑limits for the filing of a Memorial by Nicaragua and a
                     Counter‑Memorial by Costa Rica. Nicaragua’s Memorial was filed within
                     the time‑limit so prescribed. In a letter dated 19 December 2012, accom-
                     panying its Memorial, Nicaragua asked the Court to consider the need to
                     join the proceedings in the present case and the Costa Rica v. Nicaragua
                     case, and requested the Court to decide on this matter in the interests of
                     the administration of justice.

                       8. By a letter dated 15 January 2013, the Registrar, on the instructions
                    of the President, asked the Government of Costa Rica to inform the
                    Court, by 18 February 2013, of its views on Nicaragua’s position regard-
                    ing the proposed joinder of the proceedings in the Nicaragua v. Costa Rica
                    case and the Costa Rica v. Nicaragua case.
                       9. By a letter dated 7 February 2013, Costa Rica, with regard to the
                    question of the proposed joinder, stated that the proceedings in the two
                    cases should not be joined for the reasons previously indicated in its writ-
                    ten observations on the admissibility of Nicaragua’s counter‑claims, filed
                    in the Costa Rica v. Nicaragua case on 30 November 2012. It is recalled
                    that in those written observations, Costa Rica argued that Nicaragua was
                    “effectively seeking the joinder of the two different cases” pending between
                    both Parties before the Court and that it would be neither timely nor equi-
                    table to join the proceedings in the two cases. In particular, Costa Rica
                    contended that the Costa Rica v. Nicaragua case concerned the exercise of
                    territorial sovereignty and that, in the absence of the Court’s ruling
                    thereon, “Costa Rica [was] prevented from exercising sovereignty over
                    part of its territory”, while the present case had a different subject‑matter.
                    Costa Rica underlined that, as each of the two cases has its own proce-
                    dural timetable, the joinder of proceedings would lead to a delay in the
                    resolution of the dispute over territorial sovereignty and would thus con-
                    stitute a serious prejudice to Costa Rica. Finally, Costa Rica noted that
                    the composition of the Court is different in the two cases.
                       10. It is further recalled that in its written observations on the admis-
                    sibility of its counter‑claims, which were filed in the context of the Costa
                    Rica v. Nicaragua case on 30 January 2013, Nicaragua stated that the
                    Costa Rica v. Nicaragua case and the present case “involve the same Par-
                    ties and are tightly connected both in law and in fact” and that there was
                    “therefore no reason why they could not be joined”. Nicaragua therefore
                    again requested the Court to “decide the joinder of the proceedings” in
                    the two cases in accordance with Article 47 of the Rules of Court.
                       11. In the above‑mentioned letter dated 7 February 2013, Costa Rica

                    6

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                    187 	          construction of a road (order 17 IV 13)

                    reiterated its position that it would be neither timely nor equitable to join
                    the proceedings in the two cases. Costa Rica contended that there was no
                    close connection between the two cases such as might justify a joinder. In
                    particular, according to Costa Rica, the Costa Rica v. Nicaragua case con-
                    cerns an area which is geographically distant from the road the construction
                    of which is the subject of the present case. Costa Rica argued that “[i]t [was]
                    not sufficient that both cases [were] related — although in very different
                    respects — to the San Juan River, which is more than 205 km in length”.

                                                            *
                                                        *       *
                       12. Under Article 47 of its Rules, “[t]he Court may at any time direct
                    that the proceedings in two or more cases be joined”. That provision
                    leaves the Court a broad margin of discretion. Where the Court, or its
                    predecessor, has exercised its power to join proceedings, it has done so in
                    circumstances where joinder was consonant not only with the principle of
                    the sound administration of justice, but also with the need for judicial
                    economy (see, e.g., Legal Status of the South‑Eastern Territory of Green‑
                    land, Order of 2 August 1932, P.C.I.J., Series A/B, No. 48, p. 268 ; North
                    Sea Continental Shelf (Federal Republic of Germany/Denmark ; Federal
                    Republic of Germany/Netherlands), Order of 26 April 1968, I.C.J. Reports
                    1968, p. 9). Any decision to that effect will have to be taken in the light of
                    the specific circumstances of each case.

                       13. The two cases here concerned involve the same Parties and relate
                    to the area where the common border between them runs along the right
                    bank of the San Juan River.
                       14. Both cases are based on facts relating to works being carried out
                    in, along, or in close proximity to the San Juan River, namely the dredg-
                    ing of the river by Nicaragua and the construction of a road along its
                    right bank by Costa Rica. Both sets of proceedings are about the effect of
                    the aforementioned works on the local environment and on the free navi-
                    gation on, and access to, the San Juan River. In this regard, both Parties
                    refer to the risk of sedimentation of the San Juan River.

                      15. In the present case and in the Costa Rica v. Nicaragua case, the
                    Parties make reference, in addition, to the harmful environmental effect
                    of the works in and along the San Juan River on the fragile fluvial ecosys-
                    tem (including protected nature preserves in and along the river).
                      16. In both cases, the Parties refer to violations of the 1858 Treaty of
                    Limits, the Cleveland Award, the Alexander Awards and the Ramsar
                    Convention.
                      17. A decision to join the proceedings will allow the Court to address
                    simultaneously the totality of the various interrelated and contested issues
                    raised by the Parties, including any questions of fact or law that are com-
                    mon to the disputes presented. In the view of the Court, hearing and
                    deciding the two cases together will have significant advantages. The

                    7

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                    188 	          construction of a road (order 17 IV 13)

                    Court does not expect any undue delay in rendering its Judgment in the
                    two cases.

                      18. In view of the above, the Court, in conformity with the principle of
                    the sound administration of justice and with the need for judicial econ-
                    omy, considers it appropriate to join the proceedings in the present case
                    and in the Costa Rica v. Nicaragua case.
                      19. The Court adds that the time‑limit fixed in its Order of 23 Janu-
                    ary 2012 for the filing of the Counter‑Memorial of Costa Rica in the pres-
                    ent case, namely 19 December 2013, remains unaffected by its decision in
                    the current Order.

                                                           *
                                                       *       *
                      20. For these reasons,
                      The Court,
                      By sixteen votes to one,
                      Decides to join the proceedings in the present case with those in the
                    case concerning Certain Activities Carried Out by Nicaragua in the Border
                    Area (Costa Rica v. Nicaragua) ;
                        in favour : President Tomka ; Vice‑President Sepúlveda‑Amor ; Judges
                          Owada, Abraham, Keith, Bennouna, Skotnikov, Cançado Trindade,
                          Yusuf, Greenwood, Xue, Donoghue, Gaja, Sebutinde, Bhandari ;
                          Judge ad hoc Guillaume ;
                        against : Judge ad hoc Simma ;
                      Reserves the subsequent procedure for further decision.
                      Done in English and in French, the English text being authoritative, at
                    the Peace Palace, The Hague, this seventeenth day of April, two thousand
                    and thirteen, in three copies, one of which will be placed in the archives of
                    the Court and the others transmitted to the Government of the Republic of
                    Nicaragua and the Government of the Republic of Costa Rica, respectively.

                                                                     (Signed) Peter Tomka,
                                                                               President.
                                                                   (Signed) Philippe Couvreur,
                                                                                Registrar.

                        Judge Cançado Trindade appends a separate opinion to the Order.

                                                                              (Initialled) P.T.
                                                                             (Initialled) Ph.C.

                    8

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         COUR INTERNATIONALE DE JUSTICE

            RECUEIL DES ARRE| TS,
     AVIS CONSULTATIFS ET ORDONNANCES

PPLICATION DE L’ACCORD INTEu RIMAIRE
       DU 13 SEPTEMBRE 1995
  (EX-RE
       u PUBLIQUE YOUGOSLAVE DE MACE
                                   u DOINE
                   c. GRE
                        v CE)

       ORDONNANCE DU 20 JANVIER 2009

                2009
         INTERNATIONAL COURT OF JUSTICE

          REPORTS OF JUDGMENTS,
       ADVISORY OPINIONS AND ORDERS

APPLICATION OF THE INTERIM ACCORD
       OF 13 SEPTEMBER 1995
(THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA
                v. GREECE)

          ORDER OF 20 JANUARY 2009

                    Mode officiel de citation :
    Application de l’accord intérimaire du 13 septembre 1995
       (ex-République yougoslave de Macédoine c. Grèce),
    ordonnance du 20 janvier 2009, C.I.J. Recueil 2009, p. 58

                         Official citation :
     Application of the Interim Accord of 13 September 1995
    (The former Yugoslav Republic of Macedonia v. Greece),
      Order of 20 January 2009, I.C.J. Reports 2009, p. 58

                                         No de vente :
 N 0074-4441
BN 978-92-1-071057-2
                                         Sales number    948

                                  20 JANVIER 2009

                                  ORDONNANCE

    APPLICATION DE L’ACCORD INTEu RIMAIRE
            DU 13 SEPTEMBRE 1995
  (EX-RE
       u PUBLIQUE YOUGOSLAVE DE MACE
                                   u DOINE
                   c. GRE
                        v CE)

     APPLICATION OF THE INTERIM ACCORD
            OF 13 SEPTEMBER 1995
(THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA
                v. GREECE)

                                 20 JANUARY 2009

                                     ORDER

             COUR INTERNATIONALE DE JUSTICE

                             ANNÉE 2009

                             20 janvier 2009

APPLICATION DE L’ACCORD INTEu RIMAIRE
        DU 13 SEPTEMBRE 1995
      (EX-RE
           u PUBLIQUE YOUGOSLAVE DE MACE
                                       u DOINE
                       c. GRE
                            v CE)

                           ORDONNANCE

Présents : Mme HIGGINS, président ; M. AL-KHASAWNEH, vice-président ;
           MM. RANJEVA, SHI, KOROMA, BUERGENTHAL, OWADA, SIMMA,
           TOMKA, ABRAHAM, KEITH, SEPÚLVEDA-AMOR, BENNOUNA,
           juges ; M. COUVREUR, greffier.

  La Cour internationale de Justice,
  Ainsi composée,
  Vu l’article 48 du Statut de la Cour et les articles 31, 44, 45, para-
raphe 1, et 48 de son Règlement,
  Vu la requête enregistrée au Greffe de la Cour le 17 novembre 2008,
 ar laquelle l’ex-République yougoslave de Macédoine a introduit une
nstance contre la République hellénique
    « en vue de protéger les droits qu’[elle] tient de l’accord intérimaire
    [du 13 septembre 1995] et d’être autorisé[e] à exercer ses droits en
    tant qu’Etat indépendant agissant conformément au droit interna-
    tional, et notamment le droit de demander son admission à des orga-
    nisations internationales [en vertu du paragraphe 1 de l’article 11
    dudit accord] » ;
  Considérant que, le 17 novembre 2008, une copie certifiée conforme de
a requête a été transmise à la République hellénique ;

   Considérant que l’ex-République yougoslave de Macédoine a désigné
 omme agent S. Exc. M. Antonio Milošoski et comme coagent S. Exc.
M. Nikola Dimitrov ; et que la République hellénique a désigné comme
 gents S. Exc. M. Georges Savvaides, S. Exc. M. Constantin-John A.
Rallis et Mme Maria Telalian ;
   Considérant que, au cours d’une réunion que le président de la Cour a
enue avec les représentants des Parties le 19 janvier 2009, S. Exc. M.
Nikola Dimitrov, coagent de l’ex-République yougoslave de Macédoine,
e référant en particulier à la nature juridique de l’affaire et à l’absence de
 écessité d’effectuer des recherches factuelles ou historiques, a sollicité un
 élai de quatre ou cinq mois, à partir de la date à laquelle l’ordonnance
erait rendue, pour la préparation du mémoire de son gouvernement ; et
 onsidérant que S. Exc. M. Georges Savvaides, agent de la République
 ellénique, a notamment observé que son gouvernement n’était pas en
mesure à ce stade de faire la part des questions juridiques et autres qui
 ouvaient se poser en l’affaire et souhaitait en conséquence disposer du
emps nécessaire pour la préparation de son contre-mémoire, qu’il a
 stimé à douze mois ;
   Compte tenu des vues des Parties,
  Fixe comme suit les dates d’expiration des délais pour le dépôt des
 ièces de la procédure écrite :
  Pour le mémoire de l’ex-République yougoslave de Macédoine, le
 0 juillet 2009 ;
  Pour le contre-mémoire de la République hellénique, le 20 janvier 2010 ;

  Réserve la suite de la procédure.

  Fait en français et en anglais, le texte français faisant foi, au Palais de
a Paix, à La Haye, le vingt janvier deux mille neuf, en trois exemplaires,
 ont l’un restera déposé aux archives de la Cour et les autres seront
ransmis respectivement au Gouvernement de l’ex-République yougo-
lave de Macédoine et au Gouvernement de la République hellénique.

                                                      Le président,
                                             (Signé) Rosalyn HIGGINS.
                                                         Le greffier,
                                            (Signé) Philippe COUVREUR.

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                       ISSN 0074-4441
                       ISBN 978-92-1-071057-2