Page 324 - Records of Bahrain (6)_Neat

312 Records of Bahrain
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AKA HI A
since 1783 when she cun he said to have been in elTeclivo control or occupation
of the Islands, it is apparently the case that, to mention what we think is the
last of several such incidents which can he authenticated, in 1800-01 the then
ruling iShcikh (who is thought to have been playing Persian and Turkish claims
olV against each other) purported to acknowledge Persian sovereignty. Moreover,
in 1800, in what was, to say the least, a somewhat unhappily phrased nolo, the
British Foreign Secretary wrote that " The British Government readily admit
that the Government of the Shah has protested against the Persian right of
sovereignty over Bahrein being ignored by the British authorities and they have
given i duo consideration to that protest. But . . . It was apparently not
desired ‘ at this time to raise any great issue as to the Persian claims, but it is
not surprising that this note has subsequently been used by the Persians as to
some extent admitting their claims. At all events the claims have been constantly
reasserted and protests have from time lo time been made against British acts
of sovereignty in relation to the Islands. Some of such protests have been brought
lo the notice of the League of Nations, although without any request for action
by that body. While, however, not neglecting lo assert their claims and make
their protests, the Persian Government have not hitherto sought to submit tho
matter to judicial arbitration or to invoke other international remedies.
It is in these general circumstances that we are now asked to advise whether
there is any danger that the International Court of Justice, should the matter
be submitted lo Luat 'Tribunal, would recognise the Persian claims.
l. We do not think that the Persian claim can be dismissed as wholly
unarguable. It is true, as was pointed out by the Law Officers in 1034, that
it may be doubled whether prior to 1783 Persia ever possessed a do jure
sovereignty over Bahrein. In this connexion it is Lo be observed that in previous
cases where tho point has arisen, International Tribunals have accepted as
sufficient somewhat slender exercises of sovereign rights, provided that no other
Slate was able to make out a superior claim, and this must particularly bo so
in the case of claims over countries having small populations and only a rudimen­
tary form of government; conditions which presumably existed in Bahrein in
tho seventeenth and eighteenth centuries. If, indeed, Persia fails to substantiate
a claim lo do jura sovereignty prior lo 1783, the whole basis of her present case
will go. If, on the other hand, Persia establishes do jure sovereign rights.prior
to 1783, the question arises whether that sovereignty is lo be regarded as
supplanted by that of the Sheikhs who have governed Inc islayd since 1783 and
who have entered into 'Treaty relations with this country. Put in this way, the
present Persian claim will raise an important question of principle as to tho
circumstances in which (if at all) a Stale can suller a loss of sovereign rights
without its own consent and in the absence of formal international recognition,
itself an independent and mtasi-lcgislalivc method of giving legal validity to a
da facto sovereignty, as in tlio case of the recognition of Italian sovereignty over
Abyssinia. There is certainly support for the view that where a part of the
territory of a Stale asserts its independence or is conquered or occupied by an
enemy, those* facts alone do not cIVcct any transfer of sovereignty, unless the
State previously exercising sovereign powers acquiesces in the new situation. A’.v
injuria jus non oritur. Acquiescence need not, however, consist in any formal
act of submission or treaty of cession. It may be implied from tho cessation
of hostilities or from silence. In the present case Persia has not, since 1783,
sought to assert her claims by arms : it cannot bo said, however, that she has
remained silent, and it is lor consideration lo what extent the doctrine of
prescription, which could no doubt perfect.a title originally founded on a conquest
or on a forcible assertion of independence can operate so Lo do in the face of
constantly reiterated adverse claims.
• 2. Many different views are held about the application of tho doctrine of
prescription in International Law, but it may now be regarded as giving rise
to an acquisitive title when there has been so long and undisturbed an exercise of
sovereign powers that the existing stale of affairs has come to be regarded ns
part of the generally accepted order of international affairs. There is, howovor.
no clear rule, as there normally is in Municipal systems of law, as lo tho period
necessary Lo t^ivo rise to a prescriptive title. Nor is there any clear doctrine as
to what constitutes disturbance : arc mere protests, never followed by any further
action, enough, as has spmolimos been asserted hitherto? It. seems to us that
ultimately, whether considering the doctrine of prescription from the extinctive
or the acquisitive point of view, the real question is, lias tho existing state of
affairs been in existence for so long and in such circumstances that in the courso