Unratified treaties and other unperfected acts in international law: constitutional functions.

• Author: Reisman, W. Michael

In E.M. Forster's remarkable novel, A Passage to India, there is, if my memory serves me, a brief but memorable scene. A businessman presents his card, which states his name and then his degree as "B.A. Oxford (Failed)." Like the businessman in Forster's wonderful cameo, there is a fascinating tendency in modern international law to cite, as authoritative and even "binding," acts that have not been legally completed, despite the fact that the formalities of completion are explicit requisites for their legality. I am not speaking of the wide variety of essentially non-authoritative material that counsel and idealistic law students increasingly rummage through and then assemble as proof that, thanks to the sheer quantity they amass, a customary rule of law has formed. (1) I am speaking instead of the--to me equally curious--practice of international actors relying on acts that have manifestly and intentionally not been made legal and binding according to the procedures that have been prescribed for this purpose, as if they were, nonetheless, legal and binding. In short, I am speaking of the intentional use of, and the ascription of legal value to, a class of unperfected legal acts by international tribunals and the international constitutional implications of this practice.

Let me start with a non-judicial example that is still painful to Americans. At 10:30 A.M. on November 4, 1979, Iranian militants entered the Embassy and Consulate in Teheran and took the U.S. diplomatic personnel hostage. (2) The United States rediscovered, as it had many times before and since, that although it had the capacity to destroy utterly an adversary, it did not have the capacity to make it change its behavior. The U.S. Government quite simply could not secure the release of its diplomats.

On December 31, 1979, the Security Council, on a U.S. initiative, called on Iran to secure the release of the hostages, adding that it would reconvene on January 7, 1980, to review the situation and, in case of non-compliance, to "adopt effective measures under ... the Charter." (3) As the hostages had not been released, the United States submitted a draft resolution detailing a sanctions program. (4) Ten members voted for the Resolution, but the Soviet Union vetoed it. (5) S/13735, like other vetoed resolutions, was dead.

Or was it? On April 7, 1980, with the hostage crisis going into its fifth month, President Carter announced, among other actions against Iran, the imposition of economic sanctions. (6) Part of the basis of authority for his action was the vetoed resolution. The President said: "[T]he Secretary of the Treasury will put into effect official sanctions prohibiting exports from the United States to Iran, in accordance with the sanctions approved by 10 members of the United Nations Security Council on January 13 in the resolution which was vetoed by the Soviet Union." (7) The European Common Market Foreign Ministers followed suit. On April 22, 1980, they issued a dispatch that said, in relevant part,

The Foreign Ministers of the Nine, deeply concerned that a continuation of this situation may endanger international peace and security, have decided to request their national Parliaments immediately to take any necessary measures to impose sanctions against Iran in accordance with the Security Council resolution on Iran of 10 January 1980, which was vetoed, and in accordance with international law. (8) A legal act that was unperfected--according to the rules of decisionmaking in that forum--was being given a certain legal value.

Of course, the President's announcement and the communique of the Common Market Ministers were political statements that by their nature, try to maximize their authority by the use of whatever symbols seem to promise effectiveness. No one seriously expects a high degree of legal precision in such statements. One would expect, however, that an international court or tribunal would be more precise. Yet, there are circumstances in which the International Court of Justice has found it convenient to ascribe full legal value to a manifestly unperfected legal act.

I

Let us consider three examples from the jurisprudence of the International Court of Justice in which the Court relied explicitly on an unperfected legal act. The first example is the recent decision of the International Court in the "Case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain," in which final judgment was rendered in 2001. (9) The territorial side of this long-running dispute--which was also the longest before the court--concerned a Qatari claim to an archipelago, known as the Hawar Islands, that lies just off the east coast of the Qatar peninsula, and a Bahraini claim to a region, known as Zubarah, on the east coast of the Qatar peninsula just opposite Bahrain. (10) Bahrain had held the Hawars at least since 1939, when a decision by the British Government based on authority assigned to it by separate treaties with Qatar and Bahrain had confirmed Bahraini title on the basis of long-term possession. (11) For its part, Qatar had held Zubarah at least since 1937 when it expelled the Bahraini inhabitants in a military action. (12)

It seemed clear to observers of the Court that, consistent with much recent international jurisprudence, the Court would not disturb this long-standing territorial disposition, but would, most likely, confirm Bahrain's title to the Hawars and Qatar's title to Zubarah. (13) Finding a set of persuasive reasons for both legs of this decision, however, proved difficult. Bahrain's title to the Hawars could easily and persuasively be established by virtue of the authorized British decision of 1939, which the Court confirmed. (14) The Court, however, had more difficulty with regard to Zubarah. Bahrain adduced evidence to show that the ruling family of Bahrain, the Al-Khalifa, had originally come from Zubarah, and that even after they had established themselves on the islands of Bahrain, they continued to live on the peninsula, in Zubarah, for certain seasons. (15) Moreover, the permanent inhabitants of Zubarah, members of the Naim tribe, remained part of the Bahraini political system. (16) In 1937, the ruling family of Qatar, which had been steadily expanding its control over the peninsula from its base in the then-village of Doha on the west coast of the peninsula, raided Zubarah, killing many of the inhabitants and destroying the settlement. (17) While this effectively ended Bahrain's presence on the peninsula, Bahrain contended that the clear use of force by Qatar could not serve as the basis of territorial title, the legal argument being that by 1937 international law had disallowed conquest as a means of securing title to territory. (18) Qatar argued, as against this, that its de jure control of all of the peninsula had been recognized since 1913, pursuant to a "Convention relating to the Persian Gulf and Surrounding Territories," concluded between the United Kingdom and the Ottoman Empire. (19) The Convention established, in Article 11, a line separating the Ottoman Sanjak of Nejd from the "peninsula of al-Qatar," (20) then stating:

The Imperial Ottoman Government having renounced all its claims to the peninsula of al-Qatar, it is agreed between the two Governments that the said peninsula will, as in the past, be governed by the Sheikh Jasim-bin-Sani and his successors. The Government of His Britannic Majesty declares that it will not permit the Sheikh of Bahrain to interfere in the internal affairs of Qatar, to violate the autonomy of that country or to annex it. (21) But the treaty was never ratified, so its evidentiary value was not immediately apparent. Qatar argued that the treaty had never been ratified because of the outbreak of the First World War and, not entirely consistent with that argument, that Article 11 had been incorporated in a treaty between the United Kingdom and the Ottoman Empire in 1914 that was ratified--despite the First World War. (22) Bahrain argued that the treaty was not ratified because a `"complex set of interdependent proposals ... ultimately fell apart."' (23) Shortly after the negotiation of the first treaty, Ibn Saud had expelled the Ottomans from the eastern coast of Arabia and the Al-Thani, who had allied themselves with the Turks, had lost control over Doha, while the Ruler of Bahrain had retained control over the northern part of the Qatar peninsula. (24) In any case, the language of the 1914 treaty did not track that of the 1913 treaty.

The shortest distance between two points is a straight line. The straight line in this case would have been to acknowledge that the 1937 seizure of the territory of Zubarah by the Al-Thani rulers of Qatar and the expulsion of the Bahrainis had created Qatari title, because at that time conquest was still a lawful means of acquiring title to territory. Because these events transpired before the United Nations Charter and because prohibitions on conquest then were neither universal nor customary, this would not have been a startling proposition. But it would have required a statement bordering on the politically incorrect: that late in the days of the League of Nations, title could still be acquired by conquest.

Instead of taking this course, the Court decided to rely on the 1913 Convention:

The Court observes that signed but unratified treaties may constitute an accurate expression of the understanding of the parties at the time of signature. In the circumstances of this case the Court has come to the conclusion that the Anglo-Ottoman Convention does represent evidence of the views of Great Britain and the Ottoman Empire as to the factual extent of the authority of the Al-Thani ruler in Qatar up to 1913. (25) The reasons for the Court's conclusion were, first, the clarity of the text, (26) hardly a compelling reason when the question is lack of ratification, and, second, the reference in the 1914...