RECENT DECISIONS BY THE INTERNATIONAL COURT OF JUSTICE RELATING TO TERRITORIAL AND BOUNDARY DISPUTES (1999-2002)

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References

' To those cases, one could also add the Right ojPassage over Indian Territory case (1960), which, however, did not relate to a dispute coneerning territorial sovereignty. 2 On 6 December 2001, Nicaragua instituted proceedings against Colombia with regard to "legal issues subsisting" between the two States "concerning title to territory and maritime delimitation" in the western Caribbean. On 3 May 2002, Benin and Niger jointly seised the Court of a frontier dispute relating to "the sector of the River Niger", and the islands therein, as well as to "the sector in the river Mekrou". Finally, on 10 September 2002, El Salvador filed an application for revision of the 1992 judgment in the case concerning Land, Island and Maritime Frontier Dispute (El SalvadorlHonduras: Nicaragua intervening) in order to seek a partial revision of the course of the land boundary decided by the Court. In the two latter cases, the Court acceded to the Parties' requests that it should form a special chamber composing five judges.

3 KasikililSedudu Island (BotswanalNamibia), Judgment of 13 December 1999, ICJ Reports, 1999, p. 1045 ff. The judgment is accompanied by Declarations by Judges Ranjeva, Koroma and Higgins, Separate Opinions by Judges Oda and Kooijmans, and Dissenting Opinions by Vice-President Weeramantry and Judges Fleischhauer, Parra-Aranguren and Rezek.

4 The relevant precedents quoted by the Court are: Territorial Dispute (Libyan Arab JamahiriyalChad), Judgment of 3 February 1994, ICJ Reports, 1994, p. 21 ff., para. 41; Oil Platforms (Preliminary Objections) (lslamic Republic of Iran v. United States of America), Judgment of 12 December 1996, ICJ Reports, 1996, p. 812 ff., para. 23. 5 This approach was criticised by Judge Oda in his Separate Opinion: see KasikililSedudu Island (BotswanalNamibia) case, cit. supra note 3, p. 1116 ff., para. 4. It may be interesting to point out that, in the two precedents quoted by the Court, the rules codified in 1969 had indeed been applied, as customary rules, in order to interpret treaties concluded before the entry into force of the Vienna Convention, but in both cases those treaties were concluded in 1955, not, as in the instant case, in the nineteenth century.

6 Controversia sobre el reccorrido de la traza del limite entre el Hito 62 y el Monte Fitz Roy (ArgentinalChile) (Dispute concerning the course of the frontier between B.P. 62 and Mount Fitzroy (Argentina/Chile)], Arbitral Award of 21 October 1994, RDI, 1996, p. 732 ff., para. 157. The 1994 award actually related to the interpretation of a previous arbitral award, but the Tribunal was of the opinion that there were international legal rules of interpretation applying to every legal instrument (para. 72). In that context, the Tribunal rejected the argument whereby the application of a 1902 award in the light of "conocimientos geograficos adquiridos ultcriormente" would amount to its revision by retroactive application of "hechos nuevos", since the geographical situation had not changed since 1902. 7 ion this respect, see also S�tAw, ICLQ, 2000, p. 964 ff., pp. 969-970.

8 In this respect, the Court recalled, as a relevant precedent, the Rio Palena Arbitration: Argentina-Chile Frontier Case (1966), United Nations Reports of International Arbitral Awards, Vol. XVI, p. 109 ff., pp. 177-180. It may be interesting to recall, in this respect, that the 1966 award had laid down the "general principle that where an instrument (for example, a treaty or an award) has laid down that a boundary must follow a river, and that river divides into two or more channels, and nothing is specified in that instrument as to which channel the boundary must follow, the boundary must normally follow the major channel" (p. 117).

9 In this respect, the Court recalled some precedents it had previously listed when examining the criterion of width, in order to note that "the width has often been determined on the basis of the low water mark" (para. 33). These precedents are: Article IX of the Boundary Convention between Baden and France of 30 January 1827 (DE CLERQ, Recueil des Trailis de la France, Vol. Ill, p. 429 ff., and the judgment of the United States Supreme Court of 19 May 1933 in the case of Vermont v. New Hampshire, United States Reports, 1933, p. 619. On the other hand, the Court had cqually noted that another precedent had determined the width on the basis of the mean water level (ibid.): this is the arbitral award rendered on 23 January 1933 by the Special Boundary Tribunal constituted by the treaty of Arbitration between Guatemala and Honduras, United Nations Reports of International Arbitral Awards, Vol. II, p. 1365 ff. 10 This part of the judgment has indeed been criticised on the basis that there were really no elements allowing for the appreciation of the conditions of navigability in concreto, except for an isolated 1947 precedent: see APOSTOLIDIS, "L'affaire de I'lle Kasikili/Sedudu", AFDI, 1999, p. 434 ff., p. 443. In fact, the Court mainly relied on that precedent: in 1947, a Mr. Ker had asked for permission to transport wood through the northern channel, the southern channel being deemed inadequate for that purpose.

1 ' The fact that boundary treaties often "do no more than refer to a watershed line, or to a crest line, and... make no provision for any delimitation in addition" had already been noted by the International Court of Justice in the case of the Temple ojPreah Vihear (Merits) (Cam6odia v. Thailand), Judgment of 1 June 1962, ICJ Reports, 1962, p. 6 ff., p. 34), and the Court recalled that statement in its 1999 judgment, cit. supra note 3, para. 43.

12 See YILC, 1966, Vol. II, p. 221, para. 14, and p. 241, para. 15.

13 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion of 21 June 1971, ICJ Reports, 1971, p. 16 ff., para. 133.

'° Frontier Dispute (Burkina FasolRepublic of Mali), Judgment of 22 December 1986, ICJ Reports, 1986, p. 554 ff., para. 54. 15 Article III, para. 2, of the 1890 Treaty did refer to a map, officially prepared by the British Government in 1899, in "general accordance" with which the course of the boundary it defined was "traced". However the Court noted that no boundary was in fact drawn on that map, which was not even annexed to the 1890 Treaty, although a later version of it was subsequently bound up with it in the archives of the British Foreign Office (para. 84).

16 It is interesting to note, in this respect, that in 1949 South Africa tried to secure on the part of the Bechuanaland authorities an express recognition of its claim to "Kasikili Island", but Bechuanaland, after consultations with the Commonwealth Relations Office, declined to accept the South African proposal on the basis of legal difficulties in connection with the Mandate over South West Africa: see para. 59 of the Court's judgment. The irrelevance of South African practice for the purposes of prescription was especially stressed by Judge Fleischhauer in his

Dissenting Opinion: see KasikililSedudu Island (BotswanalNamibia), cit. supra note 3, p. 1196 ff:, para. 11. "Ibid., p. 1143 ff., para. 19. 18 In this respect, see also SHAW, cit. supra note 7, p. 977.

19 Cit. supra note 3, paras. 21 ff. 20 No judge seems to have realised the risk of ruling ultra petita. Indeed Judge Weeramantry went as far as stating, in his Dissenting Opinion, that the Court was enabled to "create a special legal regime" for the Island: see KasikililSedudu Island (BotswanalNamibia), cit. supra note 3, p. 1153 ff., para. 83. As will be seen later, the question also arose in the Cameroon v. Nigeria case. 21 Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Merits) (Qatar v. Bahrain), Judgment of 16 March 2001. The French text of the judgment is authoritative. The judgment is accompanied by a common Declaration by Judges Herczegh and Vereshchetin, a Declaration by Judge Higgins, Separate Opinions by Judge Oda and Judge ad hoc Fortier, a common Separate Opinion by Judges Parra-Aranguren, Kooijmans and Al-Khasawneh, a common Dissenting Opinion by Judges Bedjaoui, Ranjeva and Koroma, and a Dissenting Opinion by Judge ad hoc Torres Bemdrdez.

22 Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Jurisdiction and admissibility) (Qatar v. Bahrain), Judgment of I July 1994, ICJ Reports, 1994, p. 1 12 ff. 23 Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Jurisdiction and admissibility) (Qatar v. Bahrain), Judgment of 15 February 1995, ICJ Reports, 1995, p. 3 f£

24 In Qatar's view, "that payment was to be considered as a fixed contribution... to sums to be paid by both Qatar and Bahrain to the 'Wahhabis', in order to secure their frontiers against the latter, more particularly during the pearl-diving season", Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Merits) (Qatar v. Bahrain), cit. supra note 21, para. 41.

zs PLANT, AJIL, 2002, p. 198 ff., pp. 205-206. Judge Kooijmans also criticised the Court's "formalistic" approach, which seemed to give more weigh to the position taken by Great Britain than to "considerations of substantive law, in particular those on the acquisition of territory" (para. 2).

26 Of course, in the KasikililSedudu Island case, "indirect rule" through tribal chiefs had not been invoked by Namibia as evidence of the continuous exercise of sovereignty based on original title, but rather as the basis of a prescriptive title, or at least as subsequent practice confirming its interpretation of a boundary treaty. But the real question had been whether such "indirect rule" could be considered as evidence of peaceful possession a titre de souverain. One commentator pointed out that the Court did not refer to its 1975 Advisory Opinion on Western Sahara (ICJ Reports, 1975, p. 12 ff.): according to PLANT, cit. supra note 25, p. 205 and p. 206, note 74, the Court's decision not to refer to Western Sahara - which, in his view, had also dealt with a situation where "the interplay between original title, effectivites, and the proximity principle" was "complicated by its application to largely nomadic tribal societies, originally bound together by personal rather than geographic ties, but emerging during the course of the twentieth century into a world where frontiers needed to be identified and boundaries set" - might have reflected "a desire to appear less Eurocentric". 27 In this respect, Bahrain quoted the famous 1928 arbitral award in the Island ojPalmas case, United Nations Reports of International Arbitral Awards, Vol. II, p. 829 ff, p. 869.

zB The Court's refusal to examine the issue of uti possidetis was especially criticised by KOHEN, "Les questions territoriales dans I'arrdt de la CIJ du 16 mars 2001 en I'affaire Qatar c. Bahrein", RGDIP, 2002, p. 296 f3'. 29 See the Separate Opinion of Judge Kooijmans, cit. supra note 25, para. 1. See also PLANT, cit. supra note 25, p. 206. 30 See the common Dissenting Opinion of Judges Bedjaoui, Ranjeva and Koroma, para. 14. " Ibid. 32 As Bahrain pointed out, this clearly results from the findings in the Island of Palmas case (cit. supra note 27, pp. 854-855). It is true that, in this very same case, Max Huber, as sole arbitrator, pointed out that "the principle of contiguity, in regard to islands, may not be out of place when it is a question of allotting them to one state rather than another, either by agreement between the Parties, or by a decision not necessarily based on law" (ibid., emphasis added). It is significant, in this respect, that in the 1977 award in the Beagle Channel case, it was found that, where a treaty attributes to two States certain portions of territory on the sides of a channel, "an obvious principle of appurtenance required that accessory and minor formations not specifically allotted, should be deemed so to have been by implication, together with the larger pieces of territory to which they were immediately appurtenant" (Argentina- Chile: Beagle Channel arbitration, ILM, 1978, p. 632 ff., p. 673). However in the instant case there was no such treaty, and the British authorities eventually decided otherwise. A more relevant precedent could have been the 1998 award in the Eritrea-Yemen Arbitration (First Stage: Territorial Sovereignty and scope ojthe Dispute), where it was found that "there is a strong presumption that islands within the twelve-mile coastal belt will belong to the coastal state, unless there is a fully-established case for the contrary" (ILM, 2001, p. 900 ff., p. 971). But the 1998 award was not even referred to by the Court, despite the fact, emphasised by one commentator, that one judge had served in the arbitral tribunal (see PLANT, cit. supra note 25, p. 205).

33 Indeed, Judge Koojimans concurred in the Court's finding, because, in his view, Bahrain had "a better claim" to the Islands based on effectivites, see his Separate Opinion, cit. supra note 25, para.78. the wording was taken from Article 15 of the 1899 Hague Convention for the Pacific Settlement of International Disputes, but the Court observed that it was repeated in Article 37 of the 1907 Hague Convention having the same object. The Court also quoted the 1925 Advisory Opinion of the Permanent Court of International Justice on the Interpretation of Article 3, para. 2, of the Treaty of Lausanne (PCIJ Reports, Ser. B, No. 12, p. 26), the works of the International Law Commission (YILC, 1958, Vol. II, p. 2), and the 1981 arbitral award in the DubailSharjah Border case, which, the Court observed, related to "a dispute bearing some similarities to the present case" (ILR, Vol. 91, 1993, pp. 574 and 575). 35 In this respect, the Court again quoted the 1981 award in the DubailSharjah case, cit. supra note 34, p. 577.

3s At least one commentator pointed out that the mere fact that the parties to a dispute asked a third State, as opposed to judges of their own choice, to settle the dispute, either on the basis of the law or ex aequo et bono, does not by itself make it improper to speak of arbitration: see Kot-N;tv, cit. supra note 28, p. 313. 3� See the Separate Opinion by Judge Kooijmans, cit. supra note 25, paras. 47-57, and the joint Dissenting Opinion by Judges Bedjaoui, Ranjeva and Koroma, cit. supra note 30, paras. 16-46, as well as KOHEN, cit. supra note 28, p. 315, PLANT, cit. supra note 25, p. 206, and MENDELSON, "The Curious Case of Qatar v. Bahrain in the International Court of Justice", BYIL, 2002, p. 183 ff., p. 203. It was pointed out, inter alia, that the instant case differed from the DubailSharjah case, which the Court considered as a precedent, since in that case the Parties' consent to have the dispute settled by the British Political Agent and not to dispute or object to any decision he might take, had been unequivocal.

'8 The Court observed that Article 12, para. I, of the 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone contains a virtually identical provision, but neither Qatar nor Bahrain were party to that convention.

39 Indeed, the finding that the "shoal" was in fact an island allowed the Court to treat it as a "special circumstance" in order to adjust the equidistance line westward. As will be seen later, had the Court found that the "shoal" was in fact a low-tide elevation, it could not have taken it into account for that purpose, since it found that low-tide elevations lying within the limit of the territorial seas of both Parties had to be disregarded for delimitation purposes. In the opinion of one commentator, the finding was motivated precisely by the Court's desire to adjust the equidistance line, and was made "with some difficulty", see PLANT, cit. supra note 25, p. 207.

4o Gegal Status of Eastern Greenland, PCIJ Reports, Ser. A/B, No. 53, p. 46. 41 See: Minguiers and Ecrehos (FrancelUnited Kingdom), Judgment of 17 November 1953, ICJ Reports, 1953, p. 47 ff., p. 71. Indeed, the finding in that case had recently been confirmed by the 1998 award in the EritrealYemen Arbitration (First Stage: Territorial Sovereignty and Scope of the Dispute), cit. supra note 32, p. 950. This contradiction has been pointed out by some commentators: see, in particular, KOHEN, cit. supra note 28, p. 321, and PLANT, cit. supra note 25, p. 208, note 89. As will be seen later in this survey, the Court seems to have realised the need to reconcile its apparently contradictory findings in the Pulau Sigitan and Pulau Sipadan case, where it expressly distinguished the case of "very small islands" from the case referred to in the Minguiers and Ecrehos judgment, thus giving an a posteriori explanation of its finding in the Qatar v. Bahrain case.

42 This ambiguity was rightly criticised, in this writer's opinion, by Kohen,'c;7. supra note 28, p. 322, who pointed out that the fact that low-tide elevations cannot be appropriated had indeed been taken for granted by the Chamber of the Court in the EI SalvadorlHonduras case: see Land, Island and Maritime Frontier Dispute (El SalvadorlHonduras: Nicaragua intervening), 1CJ Reports, 1992, p. 570. 43 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Eguatorial Guinea Intervening), Judgment of 10 October 2002. The French text of the judgment is authoritative. The judgment is accompanied by Declarations by Judges Oda, Herczegh, Rezek, Separate Opinions by Judges Ranjeva, Parra-Aranguren, Al-Khasawneh, and by Judge ad hoc Mbaye, and Dissenting Opinions by Judge Koroma and by Judge ad hoc Ajibola.

44 Land and Maritime Boundary between Cameroon and Nigeria (Preliminary Objections) (Cameroon v. Nigeria), Judgment of 11 June 1998, ICJ Reports, 1998, p. 275 ff.

45 Requestor Interpretation of the Judgment of 11 I June 1998 in the Case concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria) (Preliminary Objections) (Nigeria v. Cameroon), Judgment of 25 March 1999, ICJ Reports, 1999, p. 31 ff.

46 See infra sub-section 4.5. Cameroon further contended that Nigeria was estopped from challenging the existing conventional delimitation, since for many years, including while the LCBC demarcation work was proceeding, it had accepted the conventional delimitation of Lake

Chad without any form of protest, and Cameroon had relied on that attitude in order to collaborate in the demarcation process. Consequently, "it would be prejudicial to it if Nigeria were entitled to invoke conduct on the ground that conflicted with its previous attitude". The Court did not however, examine Cameroon's argument based on estoppel. 47 Both have been referred to in the previous sub-section.

48 See Territorial Dispute (Libyan Arab JamahiriyalCltad), cit. supra note 4, para. 56.

49 It may be interesting to note that, in the part of the judgment dealing with maritime delimitation, the Court had to deal with a similar argument put forward by Nigeria in respect of a 1975 Declaration which had been signed by the Nigerian Head of State of the time in disregard of constitutional requirements, and that in that context it expressly referred to Article 46 of the 1969 Vienna Convention on the Law of Treaties (paras. 264-265). 50 This was the case, the Court added, whether the protected party was henceforth termed "protectorat" (as in the case of Morocco, Tunisia and Madagascar in their treaty relations with France) or a "protected State" (as in the case of Bahrain and Qatar in their relations with Great Britain). 51 Island of Palmas case, cit. supra note 27, pp. 858-859. sz Western Sahara, cit. supra note 26, p. 39.

53 See especially Judge Koroma's Dissenting Opinion, cil. supra note 43, paras. 13-18, and Judge Al-Khasawneh's Separate Opinion, ibid., passim. 54 This was indeed recognised by Judge Al-Khasawneh in his Separate Opinion, ibid., para. 22.

ss See supra sub-section 4.2. 56 See Fisheries (United Kingdom v. Norway), Judgment of 18 December 1951, ICJ Reports, 1951, p. 116 ff., pp. 130 and 137.

57 See Frontier Dispute (Burkina FasolRepublic of Mali), cit. supra note 14, para. 63. The Court also recalled the decision in the GibyalChad case, cit. supra note 4, p. 6 ff., para. 38. 58 See Gand, Island and Maritime Frontier Dispute (El SalvadorlHonduras: Nicaragua interveninp,�, cit. supra note 42, para. 80.

59 In respect of this terminology, see infra note 72. 60 Cit. supra note 43, paras. 8 and 20-30. Judge Koroma's Dissenting Opinion was actually more directly concerned with that part of the Court's judgment, which dealt with sovereignty over the Bakassi Peninsula, in respect of which the Court equally dismissed Nigeria's arguments based on historical consolidation of title. His criticism is equally relevant in respect of the part of the Court's judgment currently under examination.

61 On the doctrine of "historical consolidation" see, especially, DE VISSCHER, Theories et realites en droit international public, 2nd ed., Paris, 1955, pp. 251 ff., and ID., Les effectivit6s du droit international public, Paris, 1967, pp. 102 ff.; JOHNSON, "Consolidation as a Root of Title in International Law", Cambridge Law Journal, 1955, p. 215 f;':; BLUM, Historic Titles in International Law, The Hague, 1965, p. 335 ff. For some critical remarks see, for example, JENNINGS, The Acguisition of Territory in International Law, Manchester, 1963, pp. 23-28; BROWNLIE, Principles of Public International Law, 5th ed., Oxford, 1998, pp. 162-163. s2 In this respect, see GiolA, Titoli storici e linee di base del mare territoriale, Padova, 1990, especially p. 128 ff. s3 See Judge Koroma's Dissenting Opinion, cit. supra note 43, para. 8. 64 See supra sub-section 2.8.

65 Cit. supra note 11, p. 37.

ss Cit. supra note 43, para. 5. The judge recalled the Court's findings on the significance of the ultra petita rule in the Asylum case (1CJ Reports, 1950, p. 402), and in the recent case concerning the Arrest Warrant of 1 April 2000 (para. 43). The Court seems to have assumed that merely "taking note" of Cameroon's undertaking in the operative part of the judgment did not amount to a decision upon questions not asked of it. s� Sovereignty over Pulau Ligitan and Pulau Sipadan (IndonesialMalaysia), Judgment of 17 7 December 2002. The judgment is accompanied by a Declaration by Judge Oda, and by a Dissenting Opinion by Judge ad hoc Franck.

68 Sovereignty over Pulau Ligitan and Pulau Sipadan (IndonesialMalaysia), Application by the Philippines for Permission to Intervene, Judgment of 23 October 2001.

69 The Court's findings were strongly criticised in Judge ad hoc Franck's Dissenting Opinion, paras. 22-46. The precedents referred to by the Court were: Territorial Dispute (Libyan Arab JamahiriyalChad), cit. supra note 4, para. 4I; Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Jurisdiction and Admissibility) (Qatar v. Bahrain), cit. supra note 23, para. 33; Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion of 8 July 1996, ICJ Reports, 1996, p. 66 ff., para. 19; Oil Platforms (Preliminary Objections) (Islamic Republic of Iran v. United States of America), cit. supra note 4, para. 23; KasikililSedudu Island (BotswanalNamibia), cit. supra note 3, paras. 18 and 48.

71 See supra note 14. 72 In respect of this ambiguous terminology, which was used by the Parties in the instant case, as well as by the Parties to previously decided cases, it may be necessary to attempt a clarification. It is a well-known fact that in the relevant conventions, as well as in the legal literature, the term "State succession" is employed to denote the fad of the replacement of one State by another in respect of sovereignty over a given territory, or, more generally, "in the responsibility for the international relations" thereof. However, the term "succession" can also mean, and is often taken to mean, the transmission of rights and duties between one legal subject to another, which may, or may not, be a consequence of a "State succession", by operation of law or by some other means. In this latter respect, it may be interesting to point out that, whereas traditional legal writers often took the view that, when a State is born, it acquires an original title to its territory by virtue of the very fact of its creation as a new State, the Chamber of the Court in the El SalvadorlHonduras case, cit. supra note 42, p. 598, seemed to take it for granted that "a State succession is one of the ways in which territorial sovereignty passes from one State to another" (emphasys added), and applied this reasoning in relation to the uti possidetis juris principle. Be that as it may, the question of whether a new State's title to

its territory is in the nature of an original or a derivative title seems to be one of a purely theoretical character. Even if the traditional view is preferred, the precise extent of a newly independent State's territory may not be so clear upon its independence and both the uti possidetis juris principle and the rule that boundaries delimited by the predecessor State(s) are binding on the successor, at least in so far as the new State has emerged from (a) previously delimited territorial entity/ies, seems now to be well-established. As seen above, the Court assumed that treaty titles could be "inherited upon independence" in the Cameroon v. Nigeria case (see supra note 58 and corresponding text), where it found that Cameroon had sovereignty over the Bakassi Peninsula. In the instant case, Malaysia relied on the inheritance of a treaty title upon North Borneo's incorporation in the Federation of Malaya; for its part, Indonesia saw itself as the successor of the original title-holder and did not regard the 1821 Anglo-Dutch Convention as a treaty of cession but simply as a boundary treaty. In any case, as was pointed out by the Court itself in the Burkina FasolMali case (cit. supra note 14, p. 564), as well as by the Chamber in the EI SalvadorlHonduras case (cit. supra note 42, pp. 388-389), the term "title" can be used to refer to both "any evidence which may establish the existence of a right" and "the actual source of that right". Thus, even if the source of a newly independent State's right to its territory - or, in other words, the mode of acquisition - is considered to be the very fact of its creation as an independent State, it cannot be denied that a treaty of eession concluded by a predecessor State may well be considered as evidence of the extent of the territory upon which the State has emerged.

z3 Cit. supra note 14, para. 63. The Court also recalled its judgments in the LibyalChad case (cit. supra note 4, paras. 75-76) and in the Cameroon v. Nigeria case (cit. supra note 43, para. 68), which was examined above. �4 Cit. supra note 40, pp. 45-46. 75 In this respect, the Court quoted the arbitral award in the Palena case, cit. supra note 8, pp. 79-80.

76 In his Dissenting Opinion, Judge ad hoc Franek, who maintained that title to the islands vested in Indonesia by virtue of the 1891 Anglo-Dutch Convention, ridiculed the Court's weighing up of the effectivites adduced by the Parties as an attempt "to weigh precisely a handful of feathers against a handful of grass" (para. 17), but the Court had no alternative since it had found that neither Party had a treaty-based title to the islands. 77 Cit. supra note 41, p. 7I .

�8 Cit. supra note 21, para. 197. 79 BROWNLIE, cit. supra note 61, p. 124. 80 Ibid. 8' UN General Assembly Resolution 2625(XXV) of 24 October 1970.

82 In the 1975 opinion in the Western Sahara case, cit. supra note 26, p. 39, the Court said that, already at the end of the nineteenth century, a territory inhabited by a population having some sort of political organisation could not be considered as terra nullius open to occupation by any State, and that sovereignty over that territory could only be acquired through a derivative title consisting in an agreement with the local chiefs. As seen above, in the Cameroon v. Nigeria case, the Court found that treaties establishing "colonial protectorates", as opposed to "international protectorates", resulted in territorial acquisition. In modem international law, the principle of self-determination seems to entail that "non self-governing territories" cannot be considered as terra nullius open to occupation, even if sovereignty over them is lost by a State, and that, more generally, no territorial title, including one by cession, can be validly created in breach of self-determination: see CASSESE, Self-Determination of Peoples. A Legal Reapprisal, Cambridge, 1995, p. 185 ff. $3 As seen above, that was probably the case of Qatar, which emerged as a separate entity in the nineteenth century on territory which in part had previously belonged to Bahrain.

g° In this sense, see, e.g., BROWNLIE, cit. supra note 61, pp. 121-122. 85 Cit. supra note 14, p. 563. See also the 1994 decision in the LibyalChad case, cit. supra note 4, p. 38.

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