Separate opinion of Judge Al-Khasawneh | INTERNATIONAL COURT OF JUSTICE

SEPARATE OPINION OF JUDGE AL-KHASAWNEH

Soi2ereigntyover Zuhurcih und owr the Hu\tur.s - C'o~trd teclined to rule on:

uti possidetis juris, original title, und inlpuct oj'effectivités - Preference fi)r
cornprehensive treutnzent of the crrgurnent.cp.resented - Confinonent bj the
Court to the vulidity alid hinding furcc~ of' the 1939 British decision - Too
re.stric.tiil- Territoriul c1uirn.sopc1nto judic.iu1scrutin}' -- Ahsrnce of' r~fer-

cnce to substuntive luis in the pur1 of'the Judgn~ent dealing \cith flic Halsur
I.rlund.s.
No rigorou.~e'rurninution (g'the British deri.c.ionin the Judgrnc~nt - Qaturi
cluirnof bias und prc.jur/gntcntis not an.sli~erc, - Qcrturiconsent to entrust the
Briti.~hGovernn~entrsith vcsolving the dispute Douhts as to the reulity of the

consent - Consent urtiflciully held to he,freely givcn - DubailSharjaharhitrrr-
fion,funùui~ientallydiJf2rent.

Uti possidetisjurisurgunlcnt - Stutus Of ' utur und Buhrain - "Protected

State.sWor "Stutes in .speciultrccrtyreltrtions ivitlz His Majestj,'.~Covernnzent"
- Control of' the British Goi~ernnzrntover the Shcikliclor~.~ -- No right of the
British Govcrrznientto alienute pcrrtsof'tlrc,Slzeik/ido~n.s'territories ii.itliout the
Rulrv-s'consent - No British territoriul tirle to the Sheiklldorns - Uti possi-
detis juris is inupplicahle - Interteniporul luil. - Originull~~secJnas a Lutin

Arnericcrnprinciple - Douhtful upplicuhility of'theprinciple in the Middle Ecrst.

Ascrrtuining the historie tirle - N~~cessur.g ~iijcn the uncertuirity qf'the other

grounds for detern~inution»f'territoriul tirle - Al-Klzalifuh Sheik1l.srxerciscd
infience ollcr the ufjruirsof the Quturi peniti.sulunzuinltintl - In precario pos-
sessionis - Cluinl of Quturi intlepencic~nc.ie n 1868 - Not upheld - Ottonlun
sovereignty on Qatur itz 1872 - Qaturi indr~pendcncein 1913 utzdcrthe Anglo-
OttomcirrConvention - No intlicntiori of the .c.putiule.\-tentoJ'the authoritp of

the Ruler - Nojïrm evidence permits to conclude thut the Huit,urs hclonged to
Qatur - Relutionship hetiseen geogruphicbpro.uiwzity. effectivitésund title -
Evidence of' Buhrain effectivitéshrjbre 1913 - Recognition by the 0ttornt1n.s
tlzat the Rulrr of'Buhruin hud obvner.~hiprights iifflz respect to the islunds -

Other effectivités slroit~nuntil 1936 - Ahscncc,of'effectivitéa sdducrd hy Qutur.

1. 1am in substantive agreement with the majority view on the attribu-
tion of sovereignty over Zubarah to Qatar and over the Hawars to Bah-

rain. With respect to the Hawars, the Court came to itsconclusion on the
basis that, whilst the British decision of 1939 was not an arbitration that
had attained a resjudicatu character, it was nevertheless a valid political

decision that binds the Parties.
2. Having reached this conclusion, the Court expressly declined (para-
graph 148 of the Judgment) to rule on:(a) The applicability of the principle uti possidetis juris;
(h) whether one or the other Party holds an original title; and

(c) the impact of the respective weight of eflectivités which the Parties
claim to have carried out on the Hawar Islands.

3. It is of course not unusual for the Court, when faced with what

appears as alternative lines of reasoning to be satisfied, in finding its
own jurisdiction or in reaching a substantive conclusion, with only one
line of argumentation'. An analysis of the merits and demerits of
such an approach is beyond the scope of this separate opinion. Suffice
it to recall that 1 have had occasion in my dissenting opinion' in the

Aeriul Incidc~rlt (d'IO August IY9Y (Puki.~tta v. lndiu) case to express a
preference for a more comprehensive treatment of the various arguments
presented by the Parties and a reluctance to yield too readily to formalism.
These are considerations that guide me also in dealing with the present

case.
4. In confining itself to the issue of the validity and binding force of
the British decision of 1939, the Court risks the not unreasonable criti-
cism of having been excessivelyrestrictive, al1the more so since the Bah-
raini formula of 1988opened al1territorial claims to judicial scrutiny and

did not confine itself to the legal status of the British decision. Moreover,
that decision was based on an assessment, by the British officials at the
time, of substantive law, regardless of whether one agrees with that
assessment or not. The absence therefore of any reference to substantive

law in the part of the Judgment dealing with the Hawars seems to me
unwarranted.
5. More importantly, to base the disposition of territorial title to the
Hawars solely on the validity of the British decision necessitates subject-

ing that decision to the most rigorous examination, which was not
adequately attempted in the Judgment. Thus for example the Qatari
claim that there was bias and prejudgment in violation of the rule which
prohibits bias in a decision-maker on the international plane goes un-
answered in the Judgment, although there is prima facie some evidence to

support that allegation. To cite only one example, what is one to make of
the undeniable fact that Weightman, then British Political Agent, was at
one and the same time laying the ground for an enquiry on title to the
Hawar Islands, and also participating in the description of the concession

area to be offered by Bahrain which included the Hawars (Reply of
Qatar, Vol. 3, p. 389), and indeed in advising the Ruler of Bahrain
against offering a concession that would grant the entire unallotted area

'Cc,r/iiinNorit,ogicinLorrns.Juclgnzr1C:J. Reporls 1957.p. 25; Aegc.riiiScjuCoriri-
iic,n/crlSlri,lf;Jiril~rr..J. Rc.poi.t.cI.pp..16-17:AericrlInci(leof 10 Airgust 1999
(Prrkisruiv. Indiui, Judgincnr,1.CIJ. Reports 2000. pp. 23-24. para. 26.
Acricrl Itici(1of'10 Auglrst 1999 (P(rkisrnn v. Inc/j. Jucicqnit,ilt.1.C.J. Reports
2000. dissenting opinion of Judge Al-Khasawneh. p. 49. para. 6.250 DELIMITATION AND QUESTIONS (SEP.OP. AL-KHASAWNEH)

except the Hawars and three miles of sea around them? (Reply of Qatar,

Vol. 3, p. 437.)
6. As Far as Qatari consent to entrusting resolution of the dispute to
the British Government on the basis of "truth and equity" is concerned,
doubts also linger regarding the reality of that consent when set within
the context of overwhelming British control over the two sheikhdoms

and the realization on the part of the Ruler of Qatar that, faced with
what he must have seen as a fait accompli, he had no one else to turn to.
Under these circumstances, to construe his agreement to entrusting the
British Government with resolving the dispute as a freely-given consent
is possible only through a most nominal and highly artificial and dis-
connected interpretation of a series of events that started with the 1936

British provisional decision and ended in 1939 when the final decision
was made. It should be added here that while the conclusion of the
Arbitral Court in the DubuilSlzu~:juhBorder case on the validity of the
British decisions of 1956 and 1957, as administrative decisions, n~ight
recommend that conclusion as a mode1 for the present case, that deci-

sion is fundamentally different from the present one in that, consent,
thought necessary by the Court of Arbitration, had been freely given
by the six Trucial States, together with an express undertaking by the
Rulers of Dubai and Sharjah not to "dispute or object to any decision
that may be decided by the Political Agent regarding the question of the
boundaries" between the sheikhdoms.

7. For these reasons the Judgment would have been based on firmer
ground had the Court laid the British decision of 1939to rest and instead
embarked on an exploration of the, admittedly, much more arduous path
of ascertaining original title to the Hawars, which is what 1shall endeav-

our to do in this separate opinion. But before that, 1 should comment
briefly on another argument advanced on Bahrain's behalf in support of
its claim to the Hawar Islands, namely the applicability of the principle
uti possidctis juris.
8. Some remarks on the uti possi~/c>tij.u~ris principle are appropriate
for two reasons: firstly, to those who doubt the reality of Qatari consent

to the Britishdecision or find that consent vitiated, the decision becomes
nothing more than the uti po.ssick.ti.juris principle in disguise. Hence an
enquiry into the impact of the principle assumes practical relevance.
Secondly, the implications of this principle, which seem to be passing
through a new phase of mutation, are profound. Generally speaking, to

yield too readily to its applicability would be inimical to other legally
protected rights, for example, the right of self-determination (although
there is no danger of this in the present case) as well as to the very func-
tion of international courts which is not to declare, in the interests of pre-
venting conflicts, pre-existing (/cljircto territorial situations legal without
regard to title and other relevant çriterion, but to uphold justice by cor-

recting illegalities where they occur. 9. Both Bahrain and Qatar were classified under British law not as

colonies but as "protected States" or sometimes as "States in special
treaty relations with His Majesty's Government". Such a forma1classifi-
cation notwithstanding, the British Government in fact exercised over-
whelming control over the two sheikhdoms, not only in the sphere of
international relations but also in domestic affairs. This control was
derived from the various treaties with the two sheikhdoms and in addi-
tion from "custom, suffrage and acquiescence". However, regarding the
pertinent question of territorial title, the British Government did not
claim for themselves a right to alienate parts of the sheikhdoms' territo-
ries without the rulers' consent. This is clear from the DubuilSlzurjuh
arbitration'. Moreover, the British Government never acquired title in
the various sheikhdoms of the Gulf including Bahrain and Qatar, unlike
for example the Spanish Crown in Latin America, which had acquired

sovereignty and title to territory. This, in itself,should lead us to con-
clude that the principle ufi possidetis juris is inapplicable in this case.

10. In addition, in the EritrculYerîlen Arbitral Award of 1998the Tri-
bunal had occasion to consider the argument that the uti pos.~ideti.j~uris
principle applied and rejected that argument by one of the parties, noting
that:

"Added to these difficulties is the question of the intertemporal
law and the question whether this doctrine of uti possidetis juris, at
that time thought of as being essentially one applicable to Latin
America, could properly be applied to interpret a juridical question
arising in the Middle East shortly after the close of the First World

War."4

1 find that line of reasoning both persuasive, and by analogy. applicable,
to the present situation, where the crystallization of the territorial claims
took place before the principle had started to lose its essentially Latin
American character and to assume a more international applicability,
although it is still very doubtful whether even now it has any applicability
in the Middle East.
11. 1alluded earlier to the inherent difficulty ofascertaining historic or
even original title (para. 7 above) and 1 would recall in this context Jorge
Santayana's famous words "[tlhe future is relatively easy to predict. It
is the past that is well-nigh impossible to ascertain." A measure of this
difficulty may be gleaned from Sir Robert Jennings's classic work on
the acquisition of territory in international law. Commenting on the

'DnbuilShurjuI~Border Arbitration, Award 1981. hternutionul Luii Reports, Vol. 91.
p. 567.
EritreriYonlcnArbitral Tribunal. Phase One. para. 99.Minquiers und Ecrchos cases he drew attention to the fact that

"There is something a little ironic in the frequent citation of the
Minquiers und Ecrehos case as an illustration of the importance of

historical consolidation; for this was the case where p1errding.sofun-
pcrrulleled leurning dc~nio~~strufintghe qfJfectof titlcs rstublislic~din
feuclul tinîcs ii9ereulniost bruslied usiwith the observation 'what is
of decisive importance . .. is not indirect presumptions deduced
from events in the Middle Ages, but the evidence which relates
directly to the possession of the Ecrehos and Minquiers gr~ups'."~
(Emphasis added.)

In the present case, while the events surrounding the ascertainment of
title did not take place in the Middle Ages, they go back to the eighteenth
century and indeed, if the Ottoman dimension of the two Sheikhdoms'
diplomatic history is to be fully taken into account as it should have
been, to 1517when Ottoman sovereignty was extended to the whole of
Arabia regardless of the fact that, for the most part, particularly in the
Gulf region, it was a loose or nominal one.
12. Those difficultieswere compounded in the present case by the fact
that, though the Court was inundated with a mass of information, some

of doubtful probative value and some of questionable relevance, on the
crucial question of Qatar's territorial extent the indigenous sources are
more notable for their paucity of information than for their content.
Similarly the evidence on Bahraini <ffcctivité.is relatively modest. There
is nodoubt that this is a reflection of the underdevelopment of the politi-
cal and economic situation in the two Sheikhdoms at the time. These
difficulties notwithstanding, the only way to dispose of the question of
sovereignty over the Hawars is to embark on an enquiry into the two
Sheikhdoms' diplomatic history; especially in viewof the fact that what
appeared at first glance as alternative lines of reasoning, i.e., the validity
of the British decision and the applicability of theutipossidctis juris prin-

ciple, have proved on closer examination to be uncertain grounds for the
determination of territorial title.
13. What emerges with relative clarity from the historical record is that
the Al-Khalifah Sheikhs exercised considerable influence over the affairs
of the Qatari peninsular mainland from sometime in the second part of the
eighteenth century and upto 1868. Evidencealso suggests that this influ-
ence was not absolute and was exercised more strongly over the settled
segments of the population on the coastal areas than over the nomadic
tribes. Even with regard to the former, this influencewas intermittent and
occasioned violent oppositiori. Thus it is safe to Say that while the Al-

Minyuiers und Ecrc~hos(Frun(~clUt~itdingdoni), J~rtlgnirnr,I.C.J. Reports 1953.
n.47.
R. Y. Jennings, The Acyui.sitof TerritorNIIntc~rnutior~uLluiv, p. 27.Khalifah uninlus possidendiwas strong, the actual corpuspossessionis was
weak, resulting in a situation where their hold on the peninsula could be
interpreted, at best, as having been one of in prrcurio po.v.rrssionis.

14. In 1861 Mohammed bin Khalifah entered into a treaty of pro-
tection with the British in which he was styled "The Independent Ruler
of Bahrain". In return for British protection, he agreed not to disturb
maritime peace. It is obvious that at that time the British authorities
considered the Qatari peninsula to be a dependency of the Ruler of
Bahrain.
15. All this was to change in 1868when Mohammed bin Khalifah,
together with the Sheikh of Abu Dhabi, led a punitive expedition against
the eastern coast of the peninsula in the course of which the towns of
Bida'a, Wakra and Doha were destroyed. Having breached his obliga-
tions not to disturb maritime peace, Mohammed Al-Khalifah was heavily
punished by the British, who deposed him and installed his brother Ali
Al-Khalifah. At the same time the British authorities entered into a sepa-

rate treaty with the sheikhs of Qatar, paramount among whom was
Mohammed Al-Thani, in accordance with which Mohammed bin Thani
was to retire to hisabode in Doha and to continue certain payments to
Ali Al-Khalifah which were to be forwarded to the Wahabis as part of
the zukut (a religious tax)that was collected from the people and tribes of
Qatar.
16. It has been argued for Qatar that the events of 1868marked the
independence of Qatar and the consolidation of Al-Thani rule over the
peninsula. This claim cannot in my viewwithstand the test of critical
examination. In the first place, the treaties were primarily concerned
with the maintenance of maritime peace and not with territorial title;
secondly, because Mohammed Al-Thani was required to retire to Doha
and its environs; and thirdly because the continued payment of sums
to Ali Al-Khalifah, stipulated in the treaty, confirms vestigesofBahraini

authority over the peninsula.
17. But beyond these questions lies a more fundamental one. The
events of 1868 clearly confirm that the British authorities in the Gulf
thought it more expedient to deal with the sheikhs of Qatar directly. Can
this in itselfcreate title?The answer must be in the negative, for the Brit-
ish position in the Gulf itself depended on dcfucto ascendancy and not
on any recognized title. Moreover the viewsof regional powers who had
or claimed sovereignty were completely opposed to the British position.
Thus Persia, which had a long-running claim to Bahrain, abandoned only
on the eve of the termination of Bahrain's treaty relations with the
United Kingdom in 1971,never extended her territorial claim to Qatar.
Similarly, the Ottoman Empire, which undoubtedly had sovereignty over
Qatar and Bahrain - though, with regard to the latter such claims
remained nominal and were never pressed - could not have entertained

notions of Qatari dependence on ~ahrain. 18. Be that as it may, any theory of Qatari independence erga omnes
as of 1868 is gravely weakened by the fact that the Ottomans asserted
their sovereignty to the peninsula in 1872and remained there until just

before the outbreak of the First World War. The fact that for most of
their stay in Qatar, Jasim bin Thani was kaimakam, Le., district gover-
nor, does not alter this fact. The reasons for Ottoman resurgence in the
nineteenth century are beyond the scope of this opinion. Suffice it to say
that the Ottoman State's fear for its Arab possessions from encroaching
European expansion was a primary motive7. To an over-burdened empire

the CO-option of influential local leaders or families as middle-ranking
officials of the Imperia1 Ottoman Administration was a practical way of
dealing with the need to expand its control. This was a process that
was being repeated al1 over those parts of the Ottoman Empire where,
hitherto, the central administration was not directly felt.

19. The real date for Qatari independence is 1913, the date on which
the Anglo-Ottoman Convention was concluded (but not ratified).
Although the treaty was primarily concerned with the delimitation of
Qatar from Najd, Le., central Arabia, it refers to the Qatari peninsula

continuing to be ruled by Al-Thani "as in the past". However there is no
clear indication of the spatial extent of that authority, nor can the spatial
extent of that authority be ascertained from the 1914 Treaty of Aden
between the Ottoman Empire and Great Britain, which was ratified and
in fact made a renvoi to the relevant provisions of the 1913Anglo-Otto-

man Convention. Were the Hawars intended to lie within the nascent
authority of the Al-Thanis? The provisions of the Convention are silent
and the words "as in the past" are not conducive to such an interpreta-
tion, for that authority, independently of Ottoman power, was restricted
to the environs of Doha and to the north of the peninsula around Zuba-
rah. Moreover, there is no express reference to the Hawars in the Con-

vention nor do we find any expression such as "the Qatari peninsula and
the islands immediately off its coast" from which a reasonably firm infer-
ence may be drawn. There is however a map which forms Annex V to the
Anglo-Ottoman Convention of 1913 which may lend support to the
inclusion of the Hawars within the Qatari peninsula (this map is repro-

duced as map 46 in the Map Atlas of the Reply of Qatar), but even here
it is difficult to come to any firm conclusions. That map was primarily
concerned with delimiting the territories that were to remain under Otto-
man sovereignty after the conclusion of the Treaty of Aden. As far as
other territories are concerned the map seems to follow a geographic

rather than a political criterion.

-
Interestingly as it had been in 1517when the Ottoman Sultan Selim (Yildrim) inter-
rupted his successful European campaigns and moved southwards to meet Portuguese
threats to the Gulf. the Red Sea and then Ocean. 20. In the absence of clear guidance from the Anglo-Ottoman Conven-
tion, Qatar's claim to the Hawars would rest on the strong presumption
that islands proximate to the mainland appertain to that mainland. This

presumption is however rebuttable. Geographic proximity cannot dis-
place a clearly established title. It would be crucial therefore to examine
the subtle interplay between the concept of geographic proximity on the
one hand and that of established title on the other; taking into account
the weight of c/"Sctic.itt;swhich cannot in themselves displace title, but

come to the forefront when that title or its territorial expanse are not
clear. As the Court cogently put it:

"Finally, there are cases where the legal title is not capable of
showing exactly the territorial expanse to which it relates. The effk
tivitt;~can then play an essential role in showing how the title is

interpreted in practice."

21. Bahrain has claimed to have demonstrated eJ;ectiiiit~;son the
Hawars for a period of almost a century and a half, including the claim
that the original Dawasir settlement on Hawars was effected through
grant by a Qadi of Zubarah (circa 1800)when that town was still under
Al-Khalifah rule. The evidence surrounding this particular effrctiviti is

however so clouded in uncertainty and hearsay that not much probative
value can be attached to it. What is more pertinent are the Bahraini eJfic-
ticitgs carried out in the period 1872-1913,i.e., during the Ottoman pres-
ence in Qatar, for it is most unlikely that the Ottomans who were the
title-holders in Qatar would have acquiesced to such efJectii7itP.1 h.ad they

not been carried out on territory to which their claims of sovereignty
were nominal. One may cite in this regard the 1909 Bahraini court deci-
sions relating to land rights and fishing traps in the Hawars, as well as the
arrest and compelled attendance in Bahraini courts of Hawar Island resi-
dents. As to external supporting evidence, one may also cite the use of the

same colour for the Hawars and Bahrain in a survey carried out in 1878
by Captain Izzet Bey, an officer of the Ottoman Army. Unlike the map
annexed to the Anglo-Ottoman Convention of 1913, the Izzet Bey map
leaves no room for different interpretations.

22. These facts carry an important evidentiary value, for they confirm
that the Ottomans, the sovereigns of Qatar at that time, recognized that
the Ruler of Bahrain, although he had no title to the peninsular main-
land, nevertheless continued to have ownership rights over the islands on
the western coast of Qatar, a view not at al1unreasonable in view of the

fact that for a seafaring people the links of these islands were perceived as

Frontier Disput<, (Burkirlu Fuso/Rc,puof'Muli), I.C.J. Rc,port19-36,p. 587.
para.63.being greater with the main islands of Bahrain than with Doha, which is
separated from the Hawars by a daunting desert.

23. Additionally, until 1936, the date of the provisional British deci-
sion. Bahrain continued to show a number of other effbc..JJo intise
Hawars. For example, the licensing of gypsum quarrying, which, in addi-
tion to being normally a governmental activity, also suggests the settled
nature of the presence on the Hawars of persons closely linked with Bah-
rain. To be sure such c.fkctiviatrie.not numerous and in some cases are

not free of controversy. However, by contrast Qatar could not demon-
strate any comparable qflCctii?i itdeed,any c~~ectii~ at al, over the
islands. In the period 1936-1939there was a flurry of rffrctivibtyPs Bah-
rain, but these should be discounted as no more than attempts to intro-
duce new evidence after the commencement of the dispute.

24. in conclusion, lack of clarity regarding Qatar's original title to the
Hawar Islands gives to the eJfectivit aPsu,ced by Bahrain in support of
its contention that it continued to have original title over the Hawars, a
crucial role notwithstanding their small number and modest status; for
under similar circumstances international law has been satisfied with little

evidence, undoubtedly as a reflection of the varying standards of time
and place. Following this line of reasoning, 1concur with the majority
view.

(Signrd) Awn Shawkat AL-KHASAWNEH.

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