257

DISSENTING OPINION OF JUDGE TORRES BERNARDEZ

Introduction: Territorial and maritime aspects of the case — Applicability of
general international law — Bahrain’s reference to quieta non movere and its
contradictions — Determination of the elements of fact — Historical facts as
source of original title — Facts alleged to generate a title of effectivités — Fail-
ure to define a critical date for admissibility of effectivités — Observations on
the evidence submitted by the Parties — The definition by Qatar of the “State
of Qatar” and by Bahrain of the “State of Bahrain”.

L Territorial questions: Qatar’s original title to the entire peninsula through
historical consolidation and general recognition — The fundamental distinction
between original and derivative title to territory — The distinction between title
and mode of acquisition — Primacy of original title over effectivités — Origins
of the ruling families of Qatar and of Bahrain — Settlement of the Al-Khalifah
in the Bahrain islands in 1783 — Animus possidendi of the Al-Khalifah Rulers
— Lack of respective corpus possessionis between 1783 and 1868 — Presence
of Great Britain in the Gulf — Maintenance of peace at sea in the Gulf — Ter-
mination of the political connection between the Al-Khalifah Rulers of Bahrain
and Qatar (1868-1871) — The 1861 Agreement between Great Britain and
Bahrain — The period of historical consolidation and recognition of the Al-
Thani Rulers’ original title to the territory of the entire Qatar peninsula and its
adjoining islands (1868-1915) — The 1867 Ruler of Bahrain's acts of war
across the sea — British intervention in the conflict — Agreements concluded in
1868 by Great Britain with the new Al-Khalifah Ruler of Bahrain and with the
Al-Thani Chief of Gutter, respectively — The 1868 undertaking of the Qatari
tribal chiefs on payment of “tribute” (zakat) to the Wahhabi Amir — Arrival in
Qatar of the Ottomans in 1871 and related conduct of Great Britain and Bah-
rain — Qatar as a kaza of the Ottoman Empire and the appointment of the
Al-Thani Chief of Qatar as kaimakam — Conduct of Great Britain vis-d-vis the
AL-Thani Chief of Qatar during the Ottoman period — Development of the
effective authority of the Al-Thani Chief of Qatar over Qatari tribes and terri-
tory during the Ottoman period.

Bahrain’s unfounded claim of 1873 to Zubarah and its rejection by the British
— Zubarah as a part of the Ottoman kaza of Qatar — The effective exercise of
authority in Zubarah by the Ottomans and by the Chief of Qatar — Recogni-
tion of such exercise by the British and by the Rulers of Bahrain — British con-
cern to ensure the security of the Bahrain islands -— Critical date for ascertain-
ing the original title of Qatar over Zubarah — The 1937 events and the alleged
“ties of allegiance” of the Naim with Bahrain's Al-Khalifah Rulers — Judicial
irrelevance of the related Bahraini argument — British conduct and conduct of
the Parties subsequent to the events of 1937.

Bahrain’s late claim on the Hawar Islands and Janan Island — Legal effects
of Bahrain's silence during the period of historical consolidation of Qatar's

221
258 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

original title Recognition of Qatar's original title to territory — The 1889
definition of Bahrain" by Bent — Other definitions — Lorimer’s authoritative
testimony of 1908 -— Prideaux's approval of that testimony — The 1909 Pri-
deaux letters — Presumption under international law that islands within the ter-
ritorial sea of a given country are to be regarded as part of that country — The
role of proximity or contiguity in the establishment of title to islands — The
1913 and 1914 Anglo-Ottoman Conventions — The 1915 Anglo-Saudi Treaty
— The 1916 Treaty between Great Britain and Qatar — Maps as confirmatory
or corroborative evidence of recognition, general opinion or repute — Exercise
of authority over the islands by the Ruler of Qatar in the 1920s and 1930s.

Conclusion that Qatar is the holder of original title to the entire peninsula,
including Zubarah, the Hawar Islands and Janan Island.

Question of whether Bahrain has a derivative title to the Hawar Islands, or to
some of them, which is superior to Qatar's original title to those islands — Bah-
rain’s search for derivative titles thereto — The 1939 British “decision” on the
Hawar Islands — The “decision” is not an arbitral award with the force of res
judicata — Events to be taken into account in determining the legal effect of the
1939 “decision” — Competence of the British Government in 1938 to make a
“decision” with legally binding effects under international law for Qatar and
Bahrain — Consent of the Ruler of Qatar and the Ruler of Bahrain as only
possible basis for such authority — The Ruler of Qatar did not accept the 1939
“decision” as legally binding for him under international law — There was no
informed and free consent of the Ruler of Qatar to the 1938-1939 British pro-
cedure — The 1939 British “decision” is not a valid decision in international law
— The defects of the 1938-1939 British procedure as a ground for the formal
invalidity of the 1939 British “decision” — The internal contradiction and arbi-
trariness of the 1939 Weightman Report as a ground for the essential invalidity
of the 1939 British “decision”.

The effectivités alleged by Bahrain as a possible source of derived title over
the Hawar Islands — Definition of effectivités in international law — The
Hawar Islands were not terra nullius — Occupation of the Hawar Islands was
not the result of a peaceful and continuous unchallenged exercise of State
authority by the Ruler of Bahrain — Consent as possible basis of derivative title
to territory — No consent of Qatar in this respect — The role of the Dowasir —
The Hawar Islands were unfit for permanent habitation — Poor evidence of
alleged instances of recognition — Miscellaneous general arguments put for-
ward by Bahrain — Alleged Bahraini judicial activities relating to the Hawar
Islands — Bahrain has not proved the intentional display of authority over the
Hawar Islands at the relevant time.

Inapplicability of uti possidetis juris in the present case — Distinction between
uti possidetis juris and uti possidetis tout court — Uti possidetis juris became a
norm of international law of general application only after the Second World
War —— The question of the retroactive application of the norm — Situation of
succession as substantive condition for the applicability of the norm — The two
cumulative requirements for succession in respect of title to territory under uti
possidetis juris — Neither of the two requirements is satisfied in the present case

222
259 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

— Great Britain has no title to the territories in dispute between Qatar and
Bahrain — Effective possession is by no means legal title under uti possidetis
juris.

Conclusion that Bahrain is not the holder of the invoked derivative titles to
any islands of the Hawar group.

General conclusion on the territorial question that sovereignty over the Hawar
Islands belongs to Qatar.

I. The maritime delimitation: Rejection of Bahrain's claim to be an archi-
pelagic State — Rejection of the Bahraini contention of historic title or rights in
the delimitation area — Disagreement with the approach based upon the argu-
ment that Bahrain is a de facto archipelago or multiple-island State — Relevant
principles, rules and methods of customary or general international law appli-
cable to the maritime delimitation in the case — Equitable criteria — The
“equidistance method” — The 1947 British decision and its sea-bed dividing line
— The 1948 Boggs-Kennedy sea-hed dividing line — Identification in the Judg-
ment of the relevant coasts of the States parties — Rejection of Bahrain's rele-
vant coasts identified by the Judgment — Rejection of the method applied by the
Judgment for the construction of its “equidistance line” — Non-definition by the
Judgment of the area of delimitation — Special or relevant circumstances that
any delimitation should take into account in the present case — Length of the

relevant coasts of the Parties — General direction and configuration of those
coasts — The shoals of Qit'at Jaradah and Fasht ad Dibal are low-tide eleva-
tions — Fasht al Azm is not a part of Sitrah Island — Delimitation in the

Hawar Islands maritime area — The Hawar Islands as foreign coastal islands
— The right of innocent passage of Qatari vessels through Bahraini territorial
sea as part of the res judicata of the Judgment — Concluding consideration on
the equitableness of the single maritime boundary of the Judgment.

Final remarks of the opinion.

a
* *

I have voted for subparagraphs |, 2 {b), 3 and 5 of the operative part of the
Judgment, but regret being unable to support the conclusions of the majority
regarding the Hawar Islands and Qit’at Jaradah. As I will explain below in this
opinion, my judicial conclusions on these two latter questions are exactly the
opposite of those of the majority.

Furthermore, | am also bound to vote against subparagraph 6 of the
operative part for reasons of procedure. No vote by division was allowed on
any section or segment of the single maritime boundary line adopted. This is
my second regret. I cannot accept the whole of that line, but I would have
voted for the course of the single maritime boundary line as from Qita’a el
Erge up to its terminal point in the Parties’ northern sector, because of the
Judgment’s findings on sovereignty and also because the said part of the
single maritime boundary may be considered as falling within the parameters
of an equitable solution. On the other hand, the delimitation effected in the
Hawar Islands maritime area meets none of the requirements of an equitable
solution, those islands being foreign coastal islands. In such situations, where
physical and political geography are paramount, an equitable solution calls
for the application of the enclave method in favour of the coastal sovereign

223
260 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

and not, as the Judgment does, the semi-enclave method in favour of the
distant sovereign.

In my opinion, the conclusions of the majority of the Court on the above
issues (1) fail to acknowledge the scope of the original title of Qatar to the
entire peninsula and its adjoining islands established through historical consoli-
dation and general recognition; (2) make of the 1939 British “decision” on the
Hawar Islands the source of a Bahraini derivative title prevailing over the origi-
nal title of Qatar, notwithstanding the formal and essential invalidity of that
“decision” in international law and the fact that such islands are located in the
maritime belt of the peninsula of Qatar; (3) accept that a maritime formation
such as Qit’at Jaradah could be appropriated as land territory through alleged
Bahraini activities not amounting to acts performed by the State of Bahrain
à titre de souverain; and (4) disregard in the Parties’ southern sector of the
maritime delimitation area highly relevant Qatari special circumstances which
should have been taken into account for the delimitation to achieve in the
Hawar Islands maritime area an equitable solution as prescribed by the law of
the sea.

Bearing in mind that the Court’s decision on each of the individual disputed
subjects above should be made in accordance with international law, my con-
viction is. to my regret, that from this standpoint the Judgment exhibits serious
legal shortcomings with respect to the four issues referred to above. For the
rest. | support the findings of the Judgment in a case which is complex and has
also an historical dimension not always easy to assess.

TABLE OF CONTENTS

Paragraphs
GENERAL INTRODUCTORY OBSERVATIONS 1-58
1. The two aspects of the case 1-4
2. The law applicable to the case 5-12
3. Bahrain’s reference to “guieta non movere” and its contradic-
tions 13-21
4, Questions relating to the determination of the elements of fact
of the case 22-34
5. Some remarks on the evidence submitted by the Parties 35-42

6. The definition by Qatar of the “State of Qatar” and by Bahrain
of the “State of Bahrain” in the current proceedings 43-58

PART I. TERRITORIAL QUESTIONS 59-461

Section A. Qatar’s original title to the entire peninsula, including
Zubarah, and the adjoining Hawar Islands and Janan Island 59-288

A. The fundamental distinction between “original” and “deriva-
tive” title and other general questions of international law 59-76

B. Origins of the ruling families of Qatar and Bahrain and the

settlement of the Al-Khalifah in the Bahrain islands in
1783 77-82

224
261

225

am mon

DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

Legal effects on title to territory consequential on the settle-
ment of the Al-Khalifah in the Bahrain islands

. Presence of Great Britain in the Gulf and maintenance of

peace at sea

Termination of the historical connection between the Al-
Khalifah Rulers of Bahrain and Qatar (1868-1871)

The 1861 Agreement between Great Britain and Bahrain

. Historical consolidation and recognition of the Al-Thani

Rulers’ title to the territory of the entire Qatar peninsula
and its adjoining islands (1868-1915)

1. The Ruler of Bahrain’s 1867 acts of war across the sea
and British intervention

2. Agreements concluded in 1868 by Great Britain with the
new Al-Khalifah Ruler of Bahrain and with the Al-Thani
Chief of Gutter, respectively

3. The 1868 undertaking of the Qatari tribal chiefs on pay-
ment of “tribute” (zakat) to the Wahhabi Amir

4. Arrival in Qatar of the Ottomans in 1871 and the related
conduct of Great Britain and Bahrain

5. Qatar as a kaza of the Ottoman Empire and the appoint-
ment of the Al-Thani Chief of Qatar as kaimakam

6. Conduct of Great Britain vis-a-vis the Al-Thani Chief of
Qatar during the Ottoman period

7. Development of the effective authority of the Al-Thani
Chief of Qatar over Qatari tribes and territory during the
Ottoman period

8. Bahrain’s unfounded claim of 1873 to Zubarah and its
rejection by the British; Zubarah as a part of the Otto-
man kaza of Qatar: the effective exercise of authority in
Zubarah by the Ottomans and by the Chief of Qatar;
recognition of such exercise by the British and by the
Ruler of Bahrain: British concern to ensure the security
of the Bahrain islands; critical date for ascertaining the
original title of Qatar over Zubarah; the 1937 events and
the alleged “allegiance links” of the Naim with Bahrain’s
Al-Khalifah Rulers: judicial irrelevance of the related
Bahraini argument; British conduct and Parties’ conduct
subsequent to the events of 1937

9. Bahrain’s late claim on the Hawar Islands and Janan
Island; legal effects of Bahrain’s silence during the period
of historical consolidation and recognition of Qatar's
original title to territory; the 1889 definition by Bent and
other definitions of “Bahrain”: Lorimer’s authoritative
testimony of 1908 and Prideaux’s approval of that testi-
mony; the 1909 Prideaux letters: presumption of interna-
tional law concerning islands in the territorial sea of a
given State: role of proximity or contiguity in the estab-
lishment of title to islands; the 1913 and 1914 Anglo-

83-88
89-94
95-115
116-120

121-283

121-126

127-135
136-140
141-148
149-157

158-162

163-176

177-215
262

DELIMITATION AND QUESTIONS (DISS, OP. TORRES BERNARDEZ)

Ottoman Conventions; the 1915 Anglo-Saudi Treaty; a
1916 British acknowledgment of the Hawar Islands as
part of Qatar; the 1916 Treaty between Great Britain and
Qatar; recognition, general opinion, and repute and maps
evidence; exercise of authority over the islands by the
Ruler of Qatar in the 1920s and 1930s

H. General conclusion of Section A of Part I

Section B. Does Bahrain have a title to the Hawar Islands or to
some of them superior to Qatar’s original title to those islands?

A. Bahrain’s search for a “derivative” title
B. The 1939 British “decision” on the Hawar Islands

1.
2.

3.

The 1939 “decision” is not an arbitral award with force

of res judicata

Events to be taken into account in determining the legal

effect of the 1939 “decision” for the Parties

Was the British Government in 1938 empowered to make

a “decision” with legally binding effects under interna-

tional law for Qatar and Bahrain in their mutual rela-

tions? |

Did the Ruler of Qatar accept the 1939 British “decision”

as legally binding decision for him under international

law?

Was the Ruler of Qatar’s consent determined by the

Judgment informed consent to a meaningful procedure

freely given?

Is the 1939 British “decision” a valid decision in interna-

tional law?

fa) The defects of the 1938-1939 British procedure as a
ground of formal invalidity of the 1939 British “deci-
sion

(b) The internal contradiction and arbitrariness of the
1939 Weightman Report as a ground of essential
invalidity of the 1939 British “decision”

C. The effectivités alleged by Bahrain in the Hawar Islands dis-
pute as a possible source of derived title
D. Inapplicability of uti possidetis juris to the present case

E. General conclusion of Section B of Part I
Overall conclusion concerning Part I of the present opinion

PART I]. THE MARITIME DELIMITATION

A.

226

Introduction

1. The Bahraini “archipelagic State” argument
2. The Bahraini “historic title or rights” argument

216-283

284-288

289-461

289-294
295-353

295-307

308-315

316-320

321-322

323-334
335-353

336-341

342-353

354-424
425-457

458-459
460-461

462-556

462-479

462-466
467-472
263

= OQ 7 m6 9 &

DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

3. The Bahraini “de facto or multiple-island State” argument

Principles, rules and methods applicable to the maritime delimi-
tation in the case
The 1947 British decision and its sea-bed dividing line

The 1948 Boggs-Kennedy sea-bed dividing line

Identification by the Judgment of the “relevant coasts” of the

States Parties

Method applied by the Judgment for the construction of its

“equidistance line”

Non-definition of the Judgment of the “area of the delimita-

tion”

Special or relevant circumstances

1. Length of the “relevant coasts” of the Parties and the gen-
eral direction and configuration of those coasts

2. The shoals of Qit’at Jaradah and Fasht ad Dibal

3. Is Fasht al Azm part of the Sitrah Island or not?

4. Delimitation in the Hawar Islands maritime area

Some concluding considerations on the course and equitable-
ness of the single maritime boundary in the Judgment

FINAL REMARKS OF THE OPINION

227

473-479

480-490
491-496

497-502
503-505
506-515

516-518
519-545

520-522
523-529
530-533

534-545

546-549

550-556
264 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

GENERAL INTRODUCTORY OBSERVATIONS

!. The Two Aspects of the Case

1. As indicated by its title, the present case between Qatar and Bahrain
is “territorial” as well as “maritime”. It is not the first dispute before the
Court in which both territorial and maritime aspects have been combined
in a single case. The subject of the dispute as a whole is constituted by the
distinct claims presented by each of the Parties within the framework of
the “Bahraini formula” accepted by Qatar in the 1990 Doha Minutes.
According to this formula the Court should decide:

(a) any matter of territorial right or other title or interest which may be
a matter of difference between [the Parties]; and

(b} draw a single maritime boundary between their respective maritime
areas of sea-bed, subsoil and superjacent waters.

2. The subject of all the territorial questions at issue being sovereignty,
the judicial determinations to be made concern the category of territorial
disputes described by doctrine as “disputes on attribution of sovereignty”.
Part I (Territorial Questions) of this opinion is therefore devoted to the
question of ascertaining which of the Parties is the holder of territorial
title to Zubarah, the Hawar Islands and Janan Island. Both Parties have
claimed to be the holders of the original title to these disputed areas and
islands, but Bahrain also invokes derivative titles such as uti possidetis
Juris, the 1939 British “decision” on the Hawar Islands and effectivités in
those islands in addition to, or independently of, the alleged original title.

3. Thus, Part I is divided into two Sections. The first fundamental
question regarding the determination of the holder of the original title is
dealt with in Section A, which duly takes into account the historical,
political and legal events having a bearing on the process of formation,
consolidation and recognition of that title. Having concluded at the end
of Section A that Qatar is the holder of the original title to Zubarah, the
Hawar Islands and Janan Island and noted that the Court’s Judgment
declares the sovereignty of Qatar over Zubarah and Janan Island but not
over the Hawar Islands, in Section B of Part I of the opinion I explain
why I consider that the majority of the Court erred in the Hawar Islands
dispute when finding that Bahrain has sovereignty over Hawar Island by
virtue of the 1939 British “decision”. Bahrain is not the holder of such a
title or of any other derivative title based upon the uti possidetis juris
principle and/or upon the alleged effectivités.

4. Lastly, Part II (The Maritime Delimitation) of the opinion deals
with the principles, rules and methods of maritime delimitation as applied
by the Court in the present case, as well as with some of the factors

228
265 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

having, or which would have had, a bearing on the drawing by the Court
of the single maritime boundary requested by the Parties. In the same
order as in the Judgment, the Parties’ claims concerning the shoals of
Fasht ad Dibal and Qit’at Jaradah are considered in this Part of the
opinion.

2. The Law Applicable to the Case

5. The Court has to render its decision in the present case in accord-
ance with international law. It has to adopt a de jure decision because the
Parties did not empower the Court, even subsidiarily, to decide the dis-
pute or some aspects of it ex aequo et bono. It follows that the present
opinion will not dwell on economic or other factors occasionally alleged
by Bahrain such as, for example, the respective size of the territory of the
Parties, the expansion of their population, their plans for socio-economic
development, the amount of their oil or gas reserves, etc. This does not
however exclude the application of equity or equitable principles when
incorporated by the law to a given Jegal norm as is the case, for example,
of the norms governing maritime delimitations in contemporary interna-
tional law.

6. In the absence of general or particular international conventions
establishing rules expressly recognized by the litigant States concerning
the subject-matter of the dispute, the case as a whole is essentially a gen-
eral international law case. \t is true that Bahrain invokes the 1939 Brit-
ish “decision” on the Hawar Islands as an arbitral award with the force
of res judicata. But Qatar is opposing that legal thesis of Bahrain. There
is therefore within the case a dispute as between the Parties concerning
the legal characterization and possible effects of the said 1939 British
“decision” for the determination of which the Court cannot but apply
general international law. There are also certain bilateral accords between
the Parties concerning Zubarah, such as the 1944 Agreement, but these
agreements do not play the role of applicable law in the case. Rather they
were invoked in support of particular arguments or contentions of the
Parties.

7. The proposition that the dispute taken as a whole is essentially to be
decided in accordance with general international law is, furthermore,
confirmed by the manner in which the Parties themselves have pleaded
their respective cases.

8. It follows that the territorial aspect of the case cannot be handled as
in the Territorial Dispute (Libyan Arab JamahiriyalChad) where, as
concluded by the Court, the dispute was conclusively determined by
treaty binding the parties to that case (LC.J. Reports 1994, p. 38,
para. 75). It is true that in its search for a derivative title, Bahrain in the
hearings gave priority to its uti possidetis juris argument, but that prin-
ciple or norm is not in the present case part and parcel of any applicable
treaty provision. Thus, if pertinent, uti possidetis juris can only be applied

229
266 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

by the Court to the case as a principle or norm of general international
law.

9. In the present case, questions such as the holder of the original title
to the disputed territories, the peaceful and continuous exercise of State
authority in a territory at the relevant time, the recognition of territorial
title by third States, etc., are not matters conclusively determined by any
treaty binding the Parties. To determine all those matters, the Court has
to apply general international law to the facts and circumstances of the
case, bearing in mind its historical dimension.

10. General international law is also the law to be applied to the mari-
time aspect of the dispute. Certainly, Bahrain is a party to the 1982 Con-
vention on the Law of the Sea, but Qatar has not ratified that Conven-
tion. Moreover, neither Bahrain nor Qatar are parties to any of the four
1958 Geneva Conventions on the law of the sea. Lastly, the Parties have
not concluded between them any agreement concerning delimitation of
the territorial sea, the contiguous zone, the sea-bed and the exclusive eco-
nomic zone or regarding exclusive or preferential fishery zones. The
Court therefore has to apply to the drawing of the single maritime
boundary the fundamental customary norm or norms on maritime delimi-
tations to the crystallization of which the Court itself has made a notable
contribution as generally acknowledged. The 1947 British “decision” on
the sea-bed dividing line is not regarded either by Bahrain or Qatar as an
arbitral award, although Qatar considers some aspects of it — because of
the equitable principles embodied therein — as a circumstance deserving
to be borne in mind by the Court when drawing the single maritime
boundary line.

11. It goes without saying that the conclusion that general interna-
tional law is the law applicable to the territorial and maritime aspects of
the dispute in no way means that treaties or agreements are irrelevant in
the present case. On the contrary, there are several important treaties and
agreements concluded by Qatar or by Bahrain with Great Britain and
also, more recently, with Saudi Arabia and Iran, as well as highly rele-
vant treaties between third States such as, for example, the Anglo-Otto-
man Conventions of 1913 and 1914 and some agreements concluded
between Great Britain and Saudi Arabia. Some of those conventions and
agreements, in my opinion, provide conclusive elements of evidence on
issues relating to title to territory and others circumscribe the southern
and northern limits of the maritime delimitation area. In addition, there
are negotiations and concession agreements concluded either by Bahrain
or by Qatar with oil companies which likewise provide documentary and
cartographic evidence on matters at issue between the Parties.

12. As it should, the present Judgment applies general international
law to the case. Consequently, I have no quibble with it concerning the
question of the definition of the applicable law as such. My problems

230
267 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

with the Judgment concern rather the concrete application and interpre-
tation it makes — in some instances — of the principles and rules of gen-
eral international law applied, or applicable, and their interplay in the
circumstances of the case.

3. Bahrain's Reference to “quieta non movere” and Its Contradictions

13. In the light of the Bahraini references to quietu non movere, a few
remarks on this maxim are in order here. I will begin by recalling that
this is not the first time that the Court has been seised of a case with
a certain historical dimension. In the E/ Salvadorl Honduras case, for
example, the Chamber of the Court had to determine title to territory,
islands and waters back to 1821 by taking account of several centuries
of Spanish presence in America and the conduct of the parties as inde-
pendent States thereafter. The Minguiers and Ecrehos case involved
medieval titles and in the Eastern Greenland case the Permanent Court
was even required to go back as far as the discoveries at the time of Erik
the Red!

14. However, in these and other international disputes the mere time
which lapsed between the establishment of the dispute and its submission
to judicial settlement was not considered as constituting in itself a settled
state of affairs to which the judicial or arbitral organ concerned should
bow. I do not see why in the circumstances of the present case matters
should be looked at differently. For example, Qatar has made every
effort since the 1940s to induce Bahrain to agree to the peaceful settle-
ment of the dispute on the Hawar Islands and in the 1960s the British
authorities and the Parties gave some consideration to the possibility of
referring that dispute and other questions dividing them, such as the con-
tinental shelf delimitation, to a neutral international arbitration. Subse-
quently, a mediation by the King of Saudi Arabia was set in motion in
the context of which the items in dispute in the present case were identi-
fied and one of those items concerns the dispute on the Hawar Islands.
Thus, in the past, the Parties not only made reservations regarding their
respective alleged rights, they were also engaged in trying to find a peace-
ful means of settlement. Since the 1940s the Hawar Islands have indeed
been the subject of an international dispute.

15. The Court would become a useless instrument for dispensing jus-
tice between States in territorial disputes if its decisions were to be pre-
determined by the quieta non movere maxim in circumstances such as
those in the present case. The Court’s decisions are not supposed to be
merely declaratory of the status quo, which may well be a reflection of
situations of fact without support in international law and which may
have lasted simply because of the consensual principle governing the
jurisdiction of the Court as well as that of other international courts and
tribunals. The functions of the Court, the principal judicial organ of the
United Nations, are not notarial in character but judicial, and its judicial
decisions ought to be made in accordance with international law, bearing

231
268 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

in mind the submissions of the Parties and the elements of evidence at the
disposal of the Court. The evidence submitted by the Parties suffices, in
my opinion, to make the judicial determinations required by the present
case and consequently there is no justification in this respect either to
invoke or apply quita non movere. The passage of time did not prevent
the furnishing of evidence to the Court on relevant matters some of
which dated back to the nineteenth century.

16. The Court is not the 1908 Grisbadarna Arbitration Tribunal. More-
over, the Grisbadarna Award was governed by an Arbitral Convention
(compromis) which — without derogating from the primary role of
“title” in the resolution of the dispute — in its Article 3 gave certain sub-
sidiary powers to the arbitrators to decide, inter alia, “taking account of
the factual circumstances” / translation by the Registry ] (United Nations,
Reports of International Arbitral Awards (RIAA), Vol. XI, pp. 153-154).
Furthermore, the subject of the Grishadarna Arbitration concerned a
maritime frontier, while the subject of the territorial questions at issue in
the present case relates to sovereignty over land territory. In fact, the
relevance of the Grisbadarna Award to the present case lies not in its
reference to quieta non movere but in the statement that title to land
territory automatically includes the accessory maritime belt (ibid,
p. 159).

17. The principle of the stability and finality of international bounda-
ries when such boundaries are the object of a prior agreement or under-
taking in force between the parties is not an issue in the present case. The
issue is to determine whether the Party holds a consolidated and recog-
nized original title over the area and/or islands forming part of the dis-
puted territorial questions. Then, if the issue in the case is ultimately to
determine whether the existence of a perfect opposable title and its holder
quieta non movere is inapplicable because the object and purpose of the
maxim is precisely the protection of titles and frontiers already consoli-
dated and not otherwise.

18. In the Hawar Islands the Court was not facing a settled state of
affairs at all, but an international dispute in existence between the Parties
as from the 1937 clandestine occupation of Jazirat Hawar by Bahrain fol-
lowed by the 1939 British “decision”. The state of things existing in the
Hawar Islands since these events was not uncontested and the ensuing
dispute between the Parties was not settled by 1991 when Qatar filed in
the Registry of the Court its Application instituting the present case.
Thus, the Hawar Islands dispute, as any other international dispute
referred to the Court, has to be determined on its own merits quite inde-
pendently of whether or not the judicial conclusion would imply movere
or non movere. The Court should not hesitate to opt in favour of movere
when international law so dictates as it did, for example, in cases such as
Libyan Arab JamabhirvalChad, King of Spain, El Salvadorl Honduras, etc.

232
269  DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

19. The present Judgment does not make any explicit reference to
quieta non movere, a maxim which has never been endorsed by the juris-
prudence of the present Court or of the Permanent Court. But, in the light
of the applicable law and the evidence before the Court, it is difficult
to escape the conclusion that the finding of the Judgment on the Hawar
Islands is the result of a quieta non movere state of mind. If so, and to the
extent that it might be so, I cannot but dissociate myself from such a pos-
sible approach to the Hawar Islands dispute. It was the situation existing
in the Hawar Islands for a long time before 1936-1939 that should have
attracted quieta non movere, but Bahrain and the British then chose to
ignore the maxim which Bahrain seeks in the current proceedings to call
to its aid, in order to protect its 1937 clandestine and unlawful occupa-
tion of the northern part of Jazirat Hawar, as well as the validity of the
related 1939 British “decision” as a source of territorial title.

20. It is also a cause of some surprise that Bahrain referred to the
maxim considered, because the only issue in dispute in the present case
which could be said by the advocates of the maxim to be a candidate for
a non movere is precisely sovereignty over Zubarah, namely a question
forming part of the dispute before the Court at the request of Bahrain.
Furthermore, counsel for Bahrain invited the Court to faire du nouveau
in the settlement of maritime aspects of the dispute. Thus, in fact,
Bahrain’s message to the Court was non movere in the Hawar Islands,
but movere in all other respects! This is indeed a very peculiar way of
invoking quieta non movere.

21. In any case, the maxim does not protect territorial situations cre-
ated by coercion, fraud or other unlawful means at a time when the Cov-
enant of the League of Nations and the Briand-Kellogg Pact were already
in force. Quieta implies the existence of a peaceful and generally accepted
situation created without real or possible infringements of the interna-
tional legal order contemporaneous with its establishment. Such a situa-
tion does not exist in the Hawar Islands, the Ruler of Qatar having
protested against the 1937 clandestine occupation of the northern part of
Jazirat Hawar on the grounds that it was a non de jure occupation, as
well as against the 1939 British “decision” for ignoring its historical, con-
solidated and recognized title to the Hawar Islands —which are located
in the maritime belt of the peninsula of Qatar — and reserved, thereafter,
the sovereign rights of Qatar over the Hawar Islands as a whole.

4. Questions Relating to the Determination of the Elements
of Fact of the Case

22. The determination in the Judgment of the elements of fact in the
present case — which should be distinguished from the elements of law
— likewise poses certain problems deserving mention in this Introduc-
tion. For example, the Judgment is in my opinion particularly restrictive

233
270 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

in taking into account historical facts, which are of some relevance and
importance in ascertaining the process of consolidation and recognition
of the original title in the disputed land territories while, at the same
time, it is apparently somewhat liberal with respect to the possible
admissibility and effects of minor individual events alleged as evidence
of effectivités.

23. I cannot share such a general approach. In international law gov-
erning the attribution of sovereignty over land territory, the concept and
definition of effectivités is by no means reduced to mere material activi-
ties varying in intensity. The material activities concerned should be
accompanied by the subjective element of acting à titre de souverain and
manifest themselves in a public, peaceful and continuous manner. More-
over, the possible taking into consideration by the law of public, peaceful
and continuous acts effected à titre de souverain in a given territory does
not necessarily lead to the birth of territorial title to that territory when,
in the territory concerned, another State already has prior territorial title,
duly consolidated and recognized, opposable to the newcomer State or
enforceable as against all States.

24. This opinion is governed by the contrary proposition, namely by
the proposition that the primacy of a consolidated and recognized title
over alleged or actual effectivités is indisputable in international law as a
criterion for the resolution of conflicting territorial claims. Effective pos-
session displays its full effects as a potential source of title in territories
having the condition of res nullius, but not in territories avec maitre
unless the latter gives his acquiescence or relinquishes his former title. In
this connection, it must be recalled that, in the present case, none of the
Parties has contended that any of the disputed land territories were terra
nullius at the relevant time.

oe

25. In the circumstances of the present case, for ascertaining the
respective sovereign territorial rights of the Parties, it is necessary to
begin by studying fully and in detail the historical facts invoked by them
as a source of their alleged original title to the territories concerned. Such
historical facts —- which vary in kind and nature — are much more rele-
vant and far-reaching for the resolution of the territorial questions in dis-
pute than the facts invoked with respect to the alleged effectivités. | there-
fore find no justification for the reticence shown by the Judgment in the
analysis of the proven historical facts as a potential or actual source of
original title, particularly when Qatar and Bahrain, as States, are the
result of an historical evolution and both claim to be the holder of an
original title whose formation and consolidation would have started, in
the case of Bahrain, as from about the second part of the eighteenth cen-
tury and in the case of Qatar, as from about the middle of the nineteenth
century and, in any case, as from 1868-1871.

234
271 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

26. Furthermore, the mode of acquiring the original title concerned
claimed by both Qatar and Bahrain is not constituted by a single legal
act, for example by a treaty, but rather by an historical process encom-
passing a series of factual and legal acts and situations unfolding during
a number of decades during which other Powers also, and very often,
played a decisive role. The general historical considerations of the Judg-
ment are clearly insufficient to cover the historical process leading to
the constitution of Qatar and Bahrain as States and, therefore, as inde-
pendent political territorial entities.

27. In fact, the Judgment makes some incursions into the said histori-
cal process only in connection with the dispute on Zubarah. But the
Hawar Islands and Janan Island — which are also part and parcel of the
territorial questions in dispute — were part of the same historical pro-
cess. Why, then, does the Judgment keep silent on this historical process
in so far as the Hawar Islands and Janan Island are concerned? I have
no explanation for this lacuna of the Judgment and certainly find no justi-
fication for it.

28. The historical process whereby the State of Qatar was constituted
cannot, without appropriate legal explanation, be reduced to the penin-
sula of Qatar tout court, ignoring its adjacent islands and waters. There is
not a single element of proof in the case file allowing one to conclude that
the “peninsula of Qatar” was understood as meaning a peninsula with
dry coasts, namely that the original title of Qatar over the entire penin-
sula did not encompass the adjacent insular and maritime dependencies
which States are generally recognized to have by international law.

29. The general structure of the Judgment implies in fact that Qatar
should provide positive proof of its original title to insular and maritime
dependencies which belong to it by operation of the law. At the same
time, the Judgment avoids embarking upon the definition of the histori-
cal and territorial scope of the State of Bahrain with effect from the
settlement in 1783 of the Al-Khalifah Rulers in the Bahrain islands.
However, the Hawar Islands are not geographically part of the Bahrain
islands but of the Qatar peninsula and, therefore, those islands cannot be
presumed to belong politically to Bahrain by the mere operation of inter-
national law as in the case of the State of Qatar. The burden of positively
proving the contrary proposition doubtless belongs with Bahrain in the
dispute on the Hawar Islands.

*

30. As to the facts alleged as possibly generating a title of effectivités
which may prevail over the original title, mainly invoked by Bahrain with
respect to the Hawar Islands, it is necessary in my opinion to define what
period of time should be taken into consideration for the judicial pur-

235
272 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

poses of determining the admissibility of those effectivités. The Judgment
however fails to define a “critical date” for such a determinative purpose,
although it has been proved by Qatar that the alleged Bahraini effectiv-
ités in the Hawar Islands are subsequent to the clandestine and unlawful
occupation of the northern part of Jazirat Hawar in 1937 and the 1939
British “decision”, namely subsequent to the time in which the Parties’
dispute regarding the sovereignty over the Hawar Islands could be con-
sidered as having been established.

31. Moreover, the fact that the Judgment bases its decision on the
Hawar Islands upon the 1939 British “decision” and not on Bahrain’s
effectivités argument is not an excuse for avoiding dealing with some
aspects of this effectivités issue because the 1939 British “decision” is
itself based upon the principle of effective possession in the case of Jazi-
rat Hawar and of presumed effective possession in the case of the other
islands in the group.

32. In fact, most of the alleged effectivités of Bahrain in the Hawar
Islands are very recent, to the point of conflicting with the status quo
agreed upon by the Parties in the context of the Saudi Arabian media-
tion. In any case, the development of Bahraini activities in Jazirat Hawar
is not opposable to Qatar, which has regularly sent corresponding diplo-
matic notes of protest and informed the Court accordingly. Moreover, in
the hearings the Agent of Qatar said his country accepted that, if the
Court were to uphold Qatar’s submission that it had sovereignty over the
Hawar Islands, direct bilateral negotiations between the Parties would be
needed to find solutions to the problems that might arise within the
framework of Bahraini withdrawal from the islands with regard to bona
fide private investments, as had been done in other similar cases. Once
more, the Judgment is silent on the question of the possible violation of
the agreed status quo through the development by Bahrain of effectivités
in Jazirat Hawar, including after proceedings were instituted in the
present case.

oe

33. The British “decisions” of 1939 on the Hawar Islands and of 1947
on the delimitation of the continental shelf as between the Parties also
raise questions which are highly relevant to the resolution of the dispute
and, in the first place, raise a problem of the characterization of those
“decisions”. Are those British “decisions” applicable law as between the
Parties or rather elements or circumstances of fact like several other his-
torical events in the case? For reasons which will be explained in detail
later in this opinion, I consider that the two British “decisions” are ele-
ments or circumstances of fact, the applicable law, as already explained,
being general international law.

34. The Judgment differs on this. It considers the 1939 British “deci-
sion” on the Hawar Islands as having binding legal effects for the Parties,
indeed making it the ground for attributing the Hawar Islands to Bah-

236
273 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

rain. On the other hand, in so far as the 1947 British “decision” on the
delimitation of the continental shelf is concerned, the Judgment avoids
taking it into account even as a circumstance, or as an historical reference
point, for the purpose of defining the course of the single maritime
boundary line. For those who, like me, consider that the 1939 British
“decision” is not a legally binding decision (because as a decision it is
lacking in formal and essential validity) the different treatment accorded
to the 1947 British “decisions” is quite unjustified. Moreover, the general
statement made in the Judgment concerning the 1947 British “decision”
appears in practice to apply to the general course of the continental shelf
delimitation line rather than to the exceptions set out in the “decision”
regarding the Hawar Islands and the shoals of Fasht ad Dibal and Qit’at
Jaradah.

5. Some Remarks on the Evidence Submitted by the Parties

35. The Parties submitted to the Court a fair amount of documentary
materials of various kinds and sources, including documents which origi-
nated in Bahrain or in Qatar, although most of them are letters, memo-
randa and notes by British officials dealing with the affairs of the Gulf.
There are also Ottoman documentary materials and letters from repre-
sentatives of oil companies. In addition, Bahrain submitted affidavits and
a few maps, Qatar submitted a massive collection of official and private
maps from various countries, and both Parties submitted texts of treaties
or agreements and of oil concessions, reports by experts on specific tech-
nical or legal questions, photographs and other forms of visual evidence,
etc. The author of the present opinion has taken into account all these
elements submitted by the Parties. He has also tried to evaluate them
guided by the jurisprudence of the Court on the various means of evi-
dence and its admissibility.

36. For example, regarding the affidavits, the Court considered them
as a form of witness evidence, but one not tested by cross-examination.
Its value as testimony is therefore minimal. In any case, the Court has not
treated as evidence any part of a testimony which was not a statement of
fact, but a mere expression of opinion as to the probability of the exist-
ence of such facts, not directly known to the witness, as stated in the 1986
Judgment of the Court in the case concerning Military and Paramilitary
Activities in and against Nicaragua (Nicaragua v. United States of
America) (4 C.J. Reports 1986, p. 42, para. 68):

“Testimony of this kind, which may be highly subjective, cannot
take the place of evidence. An opinion expressed by a witness is a
mere personal and subjective evaluation of a possibility, which has
yet to be shown to correspond to a fact; it may, in conjunction with

237
274 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

other material, assist the Court in determining a question of fact, but
it is not a proof in itself. Nor is testimony of matters not within the
direct knowledge of the witness, but known to him only from hear-
say, of much weight: as the Court observed in relation to a particu-
lar witness in the Corfu Channel case. ‘The statement attributed by
the witness . . . to third parties, of which the Court has received no
personal and direct confirmation, can be regarded only as allega-
tions falling short of conclusive evidence. (C.J. Reports 1949,
pp. 16-17.)”

37. The weight of maps as evidence depends on a range of considera-
tions such as their technical reliability and accuracy determined by how
and when they were drawn up, their official or private character, the neu-
trality of their sources towards the dispute in question and the parties to
that dispute, etc. In general, the value as evidence attached to them by
international courts and tribunals is corroborative or confirmatory of
conclusions arrived at by other means unconnected with the maps,
because the maps as such are not a legal title. However, if map evidence
produced by third parties is reliable, uniform and voluminous it may
even constitute a highly important evidential element, of recognition or
general opinion or repute, as to the fact of a territorial situation in a
given period (see, for example, Chapter VHI of the 1998 Arbitral Award
in the Eritreal Yemen Arbitration).

38. Moreover, maps may on occasion be a physical expression of the
will of a State or States, for example, when annexed to a legal title such
as a treaty, or when prepared and used by a State for the purpose of dip-
lomatic negotiations with other States, or when they are the object of
written annotations by States’ representatives or officials. In any case,
maps expressing the will of States have of course superior evidenciary
weight to ordinary maps. Moreover, when annexed to a treaty, maps
constitute a context for the interpretation of the treaty concerned. There
are some maps belonging to these categories in the present case. In its
Judgment in the Frontier Dispute case, the Chamber of the Court distin-
guishes between these two categories of maps as follows:

“Whether in frontier delimitations or in international territorial
conflicts, maps merely constitute information which varies in accu-
racy from case to case; of themselves, and by virtue solely of their
existence, they cannot constitute a territorial title, that is a document
endowed by international law with intrinsic legal force for the pur-
pose of establishing territorial rights. Of course, in some cases maps
may acquire such legal force, but where there is so the legal force
does not arise solely from their intrinsic merits: it is because such
maps fall into the category of physical expressions of the will of the
State or States concerned. This is the case, for example, when maps
are annexed to an official text of which they form an integral part.

238
275 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

Except in this clearly defined case, maps are only extrinsic evidence
of varying reliability or unreliability which may be used, along with
other evidence of a circumstantial kind, to establish or reconstitute
the real facts.” (1 CJ. Reports 1986, p. 582, para. 54.)

39. The Judgment remains somewhat aloof from the map evidence
submitted by the Parties and this has been quite detrimental to Qatar
because the Bahraini map evidence was practically nil. Even as regards
the maritime aspect of the case, it was Qatar not Bahrain which provided
the Court with large-scale charts officially recognized by maritime
Powers such as the United Kingdom and the United States, Bahrain
limiting itself to submitting sketches (which Bahrain refers to as “maps”)
drawn by itself and without any indication of an official source.

40. The lack of response to the massive collection of official maps and
private maps from well-known and reputed cartographic institutions sub-
mitted by Qatar is, in my opinion, quite unjustified, particularly in the
case of official maps expressing the will of the State or States concerned
regarding the territorial scope of the original title invoked by Qatar and
Bahrain. Some of those maps are quite conclusive, for example as to the
views of Great Britain and the former Ottoman Empire concerning
Qatar’s title to the Hawar Islands group. Particular examples of this are
the Map attached as Annex V to the Anglo-Ottoman Convention of
1913; the map originally prepared by the British Admiralty in 1917 for
the negotiation of the Peace Treaty with Turkey; and the 1933 British
Foreign Office annotated version of a 1924 British War Office map. The
lack of response to cartographic evidence of this kind is an omission by
the Judgment which I cannot accept.

41. As indicated above, the Parties also submitted a number of reports
by experts particularly, although not exclusively, in connection with some
specific questions relating to the maritime aspect of the present case, such
as whether or not Fasht al Azm is naturally joined to Sitrah Island and
whether or not Qit’at Jaradah is actually an island or a low-tide eleva-
tion. The conclusions of these reports do not coincide in all respects. As
matters they deal with are essentially technical questions of physical
geography and the arguments of the Parties on such matters are quite
antithetical, | regret that the Court did not make use of its power
to request its own expert opinion or enquiry on these two questions
(Article 50 of the Statute).

42. In addition to the evidence submitted by the Parties, this opinion
takes account of the general conduct of the Parties as ascertained by that

239
276 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

evidence, including the possible legal effects of prolonged silence, of the
Parties’ mutual agreements, of the Parties’ admissions against their own
interest and of the juris fantum presumption of international law con-
cerning the sovereignty of the coastal State over islands within its terri-
torial sea belt, unless there is a fully established case to the contrary.

6. The Definition by Qatar of the “State of Qatar” and by Bahrain of
the “State of Bahrain” in the Current Proceedings

43. The existence of a peninsula named “the peninsula of Qatar” and
of a compact archipelago named “the Bahrain islands” are objective data
of physical geography. The same applies to their respective locations on
the southern side of the Persian Gulf. The Parties are, however, at issue
as to their respective broad territorial extent as States. Generally, for
Qatar. physical and political geography coincide, while Bahrain holds a
different view. The practical result is that while Qatar is asking nothing
of the Court belonging to the Bahrain archipelago geographically under-
stood, Bahrain’s claims relate to places, islands, other maritime features
and the adjacent sea belonging geographically to the peninsula of Qatar.

44, The Qatar peninsula juts northwards into the Persian Gulf from
the Dawhat Salwah Bay and, on the east, from south of Khor al-Udaid.
The peninsula is about 180 km long north to south and a maximum
of 85 km wide and, excluding islands, covers an area of approximately
14.000 sq km. Its main ports are Doha, the capital, and Umm Said on the
eastern side of the peninsula. Qatar territorially defines the State
of Qatar as constituted: by the Qatar peninsula, including of course
Zubarah; the islands adjoining the peninsula wholly or partly within
Qatar’s territorial sea, such as the Hawar Islands and Janan Island: and
other maritime features in that territorial sea, including the shoals of
Fasht ad Dibal and Qit’at Jaradah. Bahrain contests this definition of
the territorial extent of the State of Qatar.

45. Bahrain, in turn, claims to be an “archipelagic State” which it
defines as including the “Bahrain islands” proper, all islands, other mari-
time features and waters between that archipelago and the west coast of
the Qatar peninsula, including the Hawar Islands and the island of
Janan, the shoals of Fasht ad Dibal and Qit'at Jaradah, and the so-called
“Zubarah region” in the mainland peninsula of Qatar. It also claims
some ill-defined rights — affecting the drawing of the single maritime
delimitation line in the northern sector of the area — on certain former
pearl fishing banks of the Gulf, characterized by Bahrain as “Bahraini
pearl fishing banks”. A number of those banks are located to the east of
the perpendicular notional line joining the northernmost point of the
Qatar peninsula and the median line of the Persian Gulf. Qatar contests

240
277  DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

this Bahraini political definition of the territorial/maritime extent of the
State of Bahrain.

46. The above considerations are essential to an understanding of the
respective submissions of the Parties. I therefore think it necessary in this
Introduction to set out some views on the question of the definition by
the Parties of their general territorial/maritime extent, without prejudice
to further factual and legal refinements to be made in the following Parts
into which the opinion is divided. I will begin by stating the obvious,
namely that physical and political geography are not the same thing.
They may undoubtedly coincide in the case of some States, but not in
others. But the question for the Court is whether they coincide or not in
so far as the States Parties to the present case are concerned.

47. I] do not therefore understand the presentation as evidence of maps
of various areas in the world in which a given island in the territorial sea
of State A belongs to a State B. This may well be warranted if State B is
the holder of territorial title to the island concerned. But, if State B is
unable to prove such a title, international law presumes that the island
belongs to State A by the very fact of being in its territorial sea. It follows
that the State which claims an island in the territorial sea of another State
must prove its title over that island, and must also prove that the alleged
title is likely to supplant the title of the coastal State derived from the
said presumption of international law and/or other possible legal prin-
ciples and rules.

48. The burden of proof against a juris rantum presumption lies with
the Party that alleged a contrary proposition. One of the greatest legal
inadequacies of the 1938-1939 British “procedure” on the Hawar Islands
was precisely to have been conceived and organized the other way round.
It does not makes sense unless one takes account of the prior British
“provisional decision” of 1936. It was through that initial and then
undisclosed “provisional decision” that the juris tantum presumption of
international law referred to was actually ignored. Thus, in this opinion,
we will refer to the British “procedure” of the 1930s as a whole, namely
to the whole “1936-1939 period”.

*

49. In the present case, the best approach for ascertaining whether and
to what extent physical and political geography coincide — as regards the
broad definition of the territorial/maritime extent of the Parties as States
— is to focus on Bahrain’s definitions, because Bahrain is the Party
which denies such a coincidence not only for Qatar but for Bahrain as
well.

50. Physical geography tells us that “the Bahrain islands” are a com-
pact archipelago situated at a point midway along the Persian Gulf

241
278 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

between the western side of the peninsula of Qatar and the part of the
coastline often referred to as the Hasa coast or the Qatif coast, running
from Ras Tannurah in the north to the end of Dawhat Salwah at
the Saudi Arabian town of Salwah. This archipelago is composed of:
(1) Bahrain Island itself (previously known as “Awal”) which is the main
island in the group, some 43 km in length from north to south and some
12.8 km in breadth for the most part; Al Manamah, the capital, is on this
island; (2) two other main inhabited islands, the largest being Al Muhar-
raq and the other Sitrah, which lie to the north-east and east of Bahrain
Island; (3) the two small islands of Umm Na’asan and Nabi Salih;
and (4) a number of minor adjoining islets and other maritime features.
The area covered, as defined by physical geography, 1s approximately
652.8 sq km.

51. This is the physical geography aspect of the archipelago of Bah-
rain. But, the term “Bahrain” alone has been used in the past with other
geographical meanings as well. For example, it has been used to refer
only to Bahrain Island or “Awal” or to the group of the three principal
islands of the archipelago, namely Bahrain Island, Al Muharraq and Sit-
rah, to the exclusion of the other minor islands and islets. In other words,
the term “Bahrain” could occasionally in certain old documents or con-
texts mean only a part of “the Bahrain archipelago” proper. For example,
the references relating to the conquest of Bahrain by the Persians in
1783 mention “Bahrain Island” or “Awal” as sole object of the conquest.
Nothing is said about the other islands of the archipelago. The method or
methods whereby the State of Bahrain acquired title to the other islands
is unknown to the Court. I venture to say that, probably, proximity or
contiguity was not alien to the interpretation that Bahrain’s title extended
to the whole of the Bahrain archipelago, once the main Bahrain island
was conquered. The map in J. Theodore Bent’s article entitled “The Bah-
rein Islands in the Persian Gulf” published in 1890 in Proceedings of the
Royal Geographical Society, a reduced map of the Admiralty Charts,
defines the archipelago of “the Bahrein islands” as described in the pre-
vious paragraph. (See Map No. 1 of this opinion, p. 448 below.)

52. Conversely, it is also historically true that the name “Bahrain” or
“Bahrein” was likewise geographically used in the past, as recognized by
Lorimer and others, as meaning both “the Bahrain islands” and certain
areas on the mainland, such as Hasa, Qatif and the promontory of Qatar,
and even as denoting the whole south-western side of the Persian Gulf
from Ruus al-Jibal to the mouth of the Shatt-al-Arab. A few of the oldest
maps before the Court confirm this geographical usage of the term “Bah-
rain” or “Bahrein”. In the map accompanying Captain E. L. Durand’s
Report of 1879, the name appears with three different meanings accord-
ing to the context: (1) as referring to the Bahrain archipelago (the report
is entitled “Report on the Islands of Bahrein”); (2) as referring to Bah-
rain Island or Awal (the main island in the archipelago is simply called

242
279 ~~ DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

“Bahrein”); and (3) as referring to the peninsula of Qatar under the
denomination “Ei Bahrein”.

53. In his Gazetteer of the Persian Gulf, Oman and Central Arabia,
Lorimer dealt first with “Bahrain Island” and other individual islands in
the Bahrain group, and then, in the article devoted to “Bahrain Prin-
cipality”, listed the islands in the Bahrain archipelago forming that
Principality. Thus, for Lorimer, political Bahrain, namely the “Bahrain
Principality”, coincided in the first decade of the twentieth century
with the archipelago defined in physical geography as “the Bahrain
islands” proper. In the article entitled the “Bahrain Principality”, a
leading article at the time, under the heading “extent and importance”,
Lorimer in effect defines undisputed political Bahrain as follows:

“The present Shaikhdom of Bahrain consists of the archipelago
formed by the Bahrain, Muharrag, Umm Na'asan, Sitrah, and Nabi
Salih islands and by a number of lesser islets and rocks which are
enumerated in the articles upon the islands: taken all together these
form a compact group almost in the middle of the gulf which, as it
has no recognized name, may appropriately be styled the Gulf of
Bahrain” (Memorial of Qatar, Vol. 3, Ann. IL.3, p. 88).

54. The “archipelagic State of Bahrain” defined by Bahrain in the
course of the current proceedings and for its own purposes, has certainly
little to do with the archipelago forming Lorimer’s “Bahrain Princi-
pality”. The former is much more extensive in terms of land and water.
Neither is this enlarged “new Bahrain” the Bahrain existing at the time of
the Saudi Arabian mediation, or on 8 July 1991 when Qatar instituted
the present proceedings, or even the Bahrain which appeared before the
Court in the 1994 and 1995 during the jurisdictional and admissibility
phase of the case. It is another Bahrain so far as its claimed territorial/
maritime extent is concerned.

55. Bahrain has been unable to submit to the Court any international
or domestic instrument defining the State of Bahrain as “an archipelagic
State” with the dimensions alleged in the current proceedings. Not a
single one. In fact, it is asking the Court to make a declaration to that
effect in the place of the State of Bahrain. For that purpose it invoked
Part IV of the 1982 Convention on the Law of the Sea. Qatar is not a
party to that Convention and does not recognize that Part of the said
Convention as declaratory of customary international law. But Bahrain
is a party to the 1982 Convention and has nevertheless not fulfilled the
clear obligation set forth in Article 47, paragraph 9, of the Convention

243
280 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

concerning the drawing of archipelagic baselines before the institution of
the present proceedings, namely that:

“The archipelagic State shall give due publicity to such charts or
lists of geographical co-ordinates and shall deposit a copy of each
such chart or list with the Secretary-General of the United Nations”,

and/or other obligations of the archipelagic States provided for in other
articles of Part IV of the 1982 Convention, obligations which were essen-
tial elements for the conventional agreement recorded in that Part.

56. Thus, even if Part IV of the 1982 Convention were already cus-
tomary international law, the Bahraini archipelagic baselines allegedly
based upon that Part IV would not be opposable to Qatar for any pur-
pose, territorial or maritime. There is no such thing in conventional or
general international law as a “secret archipelagic State” appearing in or
disappearing from international judicial proceedings or international rela-
tions in general. There is a question of good faith involved here. In any
case, it is worthwhile noting at this juncture that Part IV of the 1982
Convention does not contain any special rule concerning maritime delimi-
tations of archipelagic States with other States. In matters of maritime
delimitation, archipelagic States, like any other State, are subject to the
same norms as set forth in other parts of the 1982 Convention and gen-
eral international law.

57. Furthermore, the self-styled archipelagic State of Bahrain of the
current proceedings would possess the singular characteristic of alleging
title to territory over an area of the mainland, the so-called “Zubarah
region”, and of having always exercised authority and control in that
area of the mainland (Bahrain’s general thesis concerning Zubarah). In
such circumstances, how is it possible for Bahrain to define itself as an
“archipelagic State” of the kind referred to in Part IV of the 1982 Con-
vention on the Law of the Sea? Bahrain’s thesis and claim concerning
Zubarah are in full contradiction with the definition of the terms “archi-
pelagic State” and “archipelago” in Article 46 of the 1982 Convention,
because Bahrain is not alternatively pleading its self-proclaimed condi-
tion of “archipelagic State” as referred to in Part 1V of the Convention.
In the current proceedings, Bahrain pleads that it is such an “archipelagic
State”, with or without the so-called “Zubarah region”. A contradiction
of such magnitude remains for me a conundrum with no satisfactory
logical and/or legal explanation.

58. In the light of the above, I cannot but reject, as does the Judgment,
Bahrain’s claim to be an “archipelagic State” within the meaning of
Part IV of the 1982 Convention on the Law of the Sea and, consequently,
any alleged entitlement of the State of Bahrain to draw straight archi-
pelagic baselines as provided for in Article 47 of that Convention.

244
281 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)
Part I. TERRITORIAL QUESTIONS

SECTION A. QATAR’S ORIGINAL TITLE TO THE ENTIRE PENINSULA, INCLUDING
ZUBARAH AND THE ADJOINING HAWAR ISLANDS AND JANAN ISLAND

A. The Fundamental Distinction between “Original” and “ Derivative”
Title and Other General Questions of International Law

59. The question of the establishment of title to territory lies at the
heart of the pleadings and oral arguments of the Parties on the “territo-
rial questions” in dispute. Both Parties devoted considerable time and
arguments to this question in connection with their respective claims to
sovereignty over Zubarah, the Hawar Islands and Janan Island. The
Court has therefore at its disposal a considerable number of relevant his-
torical, diplomatic, geographical and other factual and legal data. The
present part of this opinion aims to identify the most significant legal
conclusions resulting from the application of general international law
to those data, bearing in mind some simple but quite fundamental
notions and categories concerning the establishment of title over land
territory.

60. The first and most fundamental distinction to be made in the cir-
cumstances of the case is the distinction between original title and deriva-
tive title. Within the former of these two categories, the question of the
definition of title to territory encompasses a constitutive element linked
to the very birth of the political entity or State concerned qua territorially
independent or separate unit. This constitutive element is lacking in the
second category, namely in the hypothesis of the acquisition of title by an
already existing State or political entity. Since the classical writers, inter-
national legal doctrine has distinguished between these two categories
when speaking, for example, in terms of “ab origine” title or acquisition
of title “hy gains” of territory.

61. It follows that the definition of original title to the territory of
incoming and new States is a legal operation basically different from that
of establishing subsequent increases or decreases in territory. This, in
turn, cannot but be reflected in the relative weight given to the different
modes or combination of modes of acquisition of title recognized in
international law. Political considerations, historical consolidation, rec-
ognition, legal presumptions, self-determination, repute, silent consent,
including acquiescence and tolerance, etc., play a much more determina-
tive legal role in the case of the formation of an original title than in the
hypothesis of acquisition or losses of territory by an already existing
State or political entity resulting from the operation of modes such as
occupation of rerritorium nullius, gradual accretion and other additions
of land by natural causes, cession by treaty, etc.

245
282 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

62, For example, the establishment or re-establishment of a State with
a given territory is not a question which could be determined by simply
invoking or applying the criteria defined in the /sland of Palmas or other
cases of the same kind. It follows that questions such as the relationship
between legal title and the so-called effectivités, when they actually exist,
should be approached with considerable caution if the legal operation at
issue aims to define the scope of the original territory of a given State or
political and territorial entity. In the latter hypothesis, the principle of
effectiveness, understood as effective or actual apprehension or posses-
sion, initially has a more modest role to play than in the case of increases
in the territory of a State by gains.

63. The criteria applicable to defining the territory of a State at the
moment of its establishment or re-establishment, are not necessarily the
same or exclusively those followed by Huber for deciding title to territory
over an island located in the Pacific in a case between the United States
and the Netherlands. For example, in its Advisory Opinion on the ques-
tion of Jaworzina (1923), the Permanent Court of International Justice
treated recognition as one of the constituent elements of title to territory
of the re-established Poland and Czechoslovakia (P.CIJ., Series B,
No. 8, p. 20). Recognition did not play such a role in the /sland of Pal-
mas Arbitration (1928).

64. The manner in which territorial claims are normally put forward
before international courts and tribunals has tended to mask the distinc-
tion referred to because, in the majority of cases, the parties argued in
terms of derivative title rather than of original title. This is certainly not
the case in the current dispute because Qatar, as well as Bahrain, pleaded
as if it were the holder of the original title to the territory of Zubarah, the
Hawar Islands and Janan Island. The original respective claims of the
parties were based upon the affirmation that the disputed territories had
belonged to the claimer as from their very origin as individual political
entities or States.

65. Thus, in this section of the opinion, I will consider a number of
historical events as well as other relevant elements of fact and law in
order to be in a position to reach some conclusions on the original terri-
torial title of Qatar and of Bahrain at the time of their constitution as
two distinct political entities in the international context of the Gulf. In
my opinion, this method will help to clarify a number of questions, the
result being that, contrary arguments, propositions, claims or submis-
sions of this or that Party will cease to be relevant for that very reason. It
is also my conviction that in the present case, in-depth consideration of
the question of the territorial scope of the original title will ultimately
help to decide the territorial questions in dispute because, in general, the
aggregate of the related elements of evidence speaks with a clearer and

246
283  DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

louder voice than any argument on the praiseworthiness of the submis-
sions of the Parties in the light of international law.

66. It should also be noted that this opinion does not use the terms
“title” and “mode” indiscriminately. By “title” we mean exclusively the
right to sovereignty as and when acquired, or its very source or founda-
tion. This clarification is necessary because sometimes the term is used as
meaning both the process of acquiring the right or its source, and even
occasionally documentary proof of the right. Thus, 1 do not use the term
“title” as encompassing the actual process whereby title or territorial sov-
ereignty is acquired. For the latter, I will use the term “mode” or “mode
of acquisition”. International law knows several modes, or combinations
of modes, whereby title to territory may established or acquired. I do not
a priori exclude any of those modes. Thus, for this opinion a “mode”,
each “mode”, is no more than a material description of a factual or legal
means which international law, as an objective system of reference,
acknowledges to be capable of creating, by itself or together with other
means, a title over the territory concerned. In other words the “mode” is
the antecedent and the “title” the consequence.

67. As to the “modes”, namely the antecedents, I have no difficulty
with the traditional distinction between modes derived from a factual
situation (situation de fait) and modes derived from a legal situation
(situation de droit). The nature — factual or legal — of the acquisitive
process is immaterial, providing of course that the acquisitive process
concerned is one of those capable of generating title to territory in inter-
national law in the particular circumstances of the given case. On the
other hand, the consequence, namely the “title”, always refers to a legal
situation (situation de droit). In dealing with the “original title” to the
territory of Qatar and of Bahrain, I would also point out that both States
are the result, as already indicated, of a process of development and that,
consequently, historical consolidation is called upon to play a paramount
role in reaching conclusions.

68. C. De Visscher and other authors drew attention to the mode of
establishing title to territory by historical consolidation, understood as a
process whereby initial relative titles are consolidated in the course of
time in relation to another State or States and, ultimately, erga omnes by
the operation of certain rules of international law which add strength to
the initial constituent element of the title. These rules were defined by
Schwarzenberger as follows:

“It then emerges that titles to territory are governed primarily by
the rules underlying the principles of sovereignty, recognition, con-

247
284 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

sent and good faith. By the interplay of these rules, relative titles
may be transformed into absolute titles . . . In the typical case it is
the result of a gradual process in time that the World Court has
aptly described as historical consolidation of title.” (/nternational
Law as Applied by International Courts and Tribunals, Vol. ¥, 3rd
ed., 1957, p. 309.)

69. The individual rules governing the establishment of title to terri-
tory are in effect rules derived in State practice from one or other of the
principles of international law referred to in the above quotation. It is by
analysing from the historical perspective the interplay of those rules in
the particular circumstances of the case considered that it would be pos-
sible to conclude that an alleged original title has been consolidated and
that it is opposable to another and therefore legal State or States. It
would be also necessary to bear in mind factors of intertemporal law
because the contents of those principles and derived rules may have
evolved with the passage of time. However, in the temporal circum-
stances of the present case it may be taken that rights of sovereignty in
the abstract were already supplanted in international law by a concept of
sovereignty based upon effective possession, as defined by doctrine and
international courts and tribunals from the nineteenth century onwards.

70. However, I naturally accept the rule concerned in its entirety,
namely with all its conditions, presumptions and qualifying criteria. For
example, if the alleged holder of the title to a territory abandons it, the
unilateral assumption of jurisdiction over the territory by another subject
is an effective means of acquiring territorial title. In that event, as in the
case of a territorium nullius, unilateral assumptions of territorial jurisdic-
tion, for example by occupation, may be a source or basis of territorial
title. As to the presumptions, the rule referred to provides that title to
territory includes the appurtenances of the territory concerned, such as its
maritime spaces and the adjoining islands wholly or partly within its ter-
ritorial sea belt. Thus, title to these appurtenances does not require the
continuous and peaceful exercise of jurisdiction and State functions there-
on, but on the main territory to which such appurtenances belong. The
effective control of the appurtenances is presumed by the rule. Moreover,
the degree and continuity of the display of authority or physical control
required in general by the rule is tempered in certain cases by reasons
such as the nature of the territory, the existence or size of its population,
actual needs, etc.

71. In addition to rules such as the above ones derived from the prin-
ciple of sovereignty, the present opinion will also take into account the
rules derived from the principles of recognition, consent and good faith
because of the equally fundamental role they play in the historical con-
solidation of title to territory. In certain cases, recognition and consent

248
285 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

may even be an independent source or basis of territorial title. Recogni-
tion and consent are particularly important means because, indepen-
dently of the initial weakness of a title, they prevent recognizing or con-
senting States from contesting the validity of the title at any future time.
Indeed, together with the principle of good faith, they tend to create
situations of estoppel. Recognition offers a means of making a relative
title into an absolute one. Consent, in its most comprehensive sense,
which includes not only consent expressed in treaties, agreements and
other formal undertakings, but also acquiescence, toleration and other
forms of silent consent, is also paramount in the determination of the
establishment, maintenance and opposability of territorial title.

72. As to the relationship between “title” and effectivités the norma-
tive mandate of international law is clear, namely in the presence of a title
the role of the effectivités is always subordinate. The legal primacy of
title is unquestionable in international law. When the effectivités are con-
trary to the title, they lose the legal value that they may possibly have in
other situations. It is only in the absence of title, or of its proof, that
the effectivités may play a determinative role, other circumstances per-
mitting, in the process of ascertaining the holder of the title. Other-
wise, the effectivités may serve either to confirm the title or possibly, if
the title is not perfectly clear, as a means of interpreting it, and always
bearing in mind in concrete cases the nature of the “title” invoked and
the features of the norm of international law applicable to the case.

73. In principle, it seems that the Parties are in agreement that “title”
prevails over the effectivités as a factor generating sovereignty. But
I am less sure about the meaning they have given to the term effectivi-
tés. In fact, the term effectivités has been used by counsel in the current
proceedings, particularly by counsel for Bahrain, as meaning every-
thing short of “title” and, even in some contexts and not without
contradictions, as “title” itself. 1 cannot accept such an abuse of legal
language. Generally, in international law, the term describes the fact of
the intentional exercise of jurisdiction or State functions in a given ter-
ritory independently of the righ? to do so, namely of the question of the
holder of the title. Thus, the effectivités are not per se “title” but an
element of fact that may be confirmatory of “title”, or which even in
certain circumstances and in accordance with certain conditions pro-
vided for by international law, may be conducive to the acquisition of
“title”. Thus, the effectivités may be a “mode” of acquisition of “title”
in the said circumstances and conditions, but they are not “title” in
themselves even in those cases. For cases of effectivités becoming

249
286 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

“title” one must look to international law and take due account of the
particular circumstances of the case (nature of the acts, absence of a
previous title, etc.).

74. For example, in the absence of title, occupation as a manifestation
of effectiveness may be considered “title” or “as good as title”, to use
Huber’s expression in the /s/and of Palmas Arbitration. But not every
form of occupation is an effectivité capable of generating title or being as
good as title in international law. As explained by Huber himself, it must
be an effective, peaceful and continuous occupation. Moreover, the occu-
pied territory must have been a terra nullius or, as explained by Rous-
seau, be “un territoire soustrait par un acte juridique régulier à une com-
pétence étatique antérieure” (territory excluded by a legitimate legal act,
from a former State jurisdiction) (“Principes de droit international pub-
lic”, Recueil des cours de l’Académie de droit international de La Haye,
Vol. 93 (1958), p. 415). In other words, occupation must concern a terra
nullius, or a territory which has lost its owner, to be able to generate,
other circumstances permitting, title to territory in international law. As
to the nature of the acts, the jurisprudence of the Court has underlined
that the acts concerned must be performed à titre de souverain. This
excludes from the international law notion of effectivités acts performed
by private individuals or groups acting in that capacity or for their own
purposes.

75. In addition to the case of the effective, peaceful and continuous
occupation of a terra nullius, the effectivités may also have a role to play
as proof of alleged title to a territory acquired by a mode other than
occupation or as an exercise of title. But again not every act invoked as
an effectivité is necessarily in international law an effectivité capable of
being admitted as proof of title or of the exercise of title. The acts must
be actes publics et paisibles de nature étatique, namely a manifestation of
State authority imputable to the State in question. If the act has not been
performed à titre de souverain or is not imputable as such to the State
concerned it would not be as proof of title to territory or of its exercise.

76. Furthermore, effectivités are by no means the only manifestation
or form of evidence of title to be taken into account. The general conduct
of the Parties, including, as the case may be, admissions, and instances of
recognition by interested third parties are often more revealing as to the
holder of the title, particularly in the case of original title, than alleged
effectivités which are more frequently than not quite flawed. Lastly, there
is the intertemporal factor. “Critical dates” and “critical periods” are
applied by international courts and tribunals for distinguishing effectivi-
tés admissible in casu from other possible alleged effecrivités. Moreover,
the status quo agreed by the parties to the dispute also has a role to play
in this respect.

250
287 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

B. Origins of the Ruling Families of Qatar and of Bahrain and Settle-
ment of the Al-Khalifah in the Bahrain Islands in 1783

77. The socio-political organization prevailing in the past in the Ara-
bian Peninsula was the “tribal system” and many Bedouin tribes were
nomadic (bedu), although there were also settled tribes and people
(hadar) mainly in coastal areas and towns. The process of the settlement
of the tribes took time. It was not done at once or in a uniform manner.
Thus, for a long time nomadic tribes and settled tribes coexisted with
each other, at least in the Qatar promontory. There were also semi-
nomadic tribes. But, the Aadar ultimately came to dominate political life
because of the fundamental economic importance of the sea (trade, pearl
fishing, etc.). The ancestors of most of the tribes who reached the Qatar
promontory by land are to be found in Central Arabia, the present ruling
families of Qatar and Bahrain included.

78. According to Qatar, the Al-Maadid tribe, including the forebears
of the Al-Thani family, and the closely related Al Bu Kawara, migrated
by the end of the seventeenth century from Ashayquir in Washm to
Jabrin, an oasis in Central Arabia, and from there to the Qatar peninsula
settling, broadly, first in its south-western tip, near Salwa, then moving to
the north-west, to the Zubarah area and nearby Ruways, where the Al-
Maadid group settled, while the Al Bu Kawara moved to the north-east
of the peninsula and began to develop the Fuwayrat settlement in the
vicinity of the Musallam area at Al-Huwayla. When the Al-Khalifah
moved to Bahrain and the Zubarah area was ruined, settlement in the
north-eastern corner of Qatar intensified. It was to Fuwayrat that the
eponymous Thani moved. Subsequently, Mohamed bin Thani left
Fuwayrat and settled in Doha, becoming the governor of Bida and rising
to the position of paramount Sheikh of Qatar in the 1850s.

79. In so far as Bahrain is concerned, and also in general, the Al-Kha-
lifah family is a branch or section of the Al-Utub tribe. Apparently, the
Al-Utub tribe first reached the Qatar peninsula also coming from Central
Arabia and establishing themselves in 1715 in the area of Zubarah for
about two years, after which they went to Kuwait. While in Kuwait,
three branches of the tribe emerged: the Bin Khalifah, from whom the
present ruling family in Bahrain is descended, the Bin Sabah and the Al-
Jalahma. In 1766 the Bin Khalifah and the Al-Jalahma sections left
Kuwait for Bahrain, which had been occupied by the Persians since 1753,
thence moving on to the Qatar peninsula, where in 1768 they built a fort,
known as Al-Murair, at some distance outside the outer wall of Zubarah
town (about 1.5 km). They settled for about 17 years in the Zubarah
area, helping in the development of the pearl industry of the town and
there reaching a position of some pre-eminence.

80. But in 1783, the Utub (the Bin Khalifah and Al-Jalahma branches),

251
288 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

together with other Arab tribes, including Qatari tribes, seized Bahrain
from the Persians in retaliation for previous attacks upon the town of
Zubarah by the Persian Governor of Bahrain. Following a struggle for
power on the island, the Bin Khalifah became the ruling family in Bah-
rain and settled on the island, while the Al-Jalahma section returned to
Qatar. In other words, the Al-Khalifah abandoned their previous settle-
ment in the Zubarah area. The first Al-Khalifah Ruler of Bahrain was
Ahmad bin Khalifah, known later as Ahmad the Conqueror.

81. Within the “tribal system”, the links between a tribe and a terri-
tory were established by the very fact of the “settlement”. If a settled
tribe abandoned the settlement, those territorial links disappeared,
although personal links with other sheikhs, tribes or branches of tribes
might continue, but from a distance. By moving freely to Bahrain Island
in 1783, the Al-Khalifah left their previous settlement in the Zubarah
area and therefore the only territorial basis they had had in the Qatar
peninsula since their arrival in 1766. The Al-Thani, however, did not
move from the Doha area, always retaining that territorial base in the
peninsula of Qatar. Thus, those in command at Doha and Bida began to
be seen by the local tribes as the heads of Qatar, although it took time for
their authority to be effectively exercised over all the tribes and territory
of the peninsula. Writing at a time when the Sheikhs of Bahrain still
claimed some kind of nominal authority over Qatar, Palgrave, in his Nar-
rative of a Year's Journey through Central and Eastern Arabia (1862-
1863), reported that:

“Ebn-Thanee, the governor of Bedaa’, is indeed generally acknow-
ledged for head of the entire province, which is itself dependent on
the Sultan of Oman; yet the Bedaa’ resident has in matter of fact
very little authority over the other villages, where everyone settles his
affairs with his own local chief, and Ebn-Thanee is for those around
only a sort of collector-in-chief, or general revenue-gatherer, whose
occupation is to look after and to bring in the annual tribute on the
pearl fishery” (Counter-Memorial of Qatar, Vol. 2, Ann. II.75,
p. 415).

82. The settlement of the Al-Khalifah family in the Bahrain islands,
while the Al-Thani remained settled in the mainland, is an important his-
toric event for understanding the subsequent territorial development of
the two countries. Speaking with hindsight it may even be added that,
from that very moment, the future broad territorial profile of Bahrain
and Qatar as separate political entities began to take shape. Bahrain
began to be viewed as the archipelago formed by the Bahrain islands and
Qatar as a continental or mainland country in the peninsula of Qatar,
and this not only by local inhabitants but also, and mainly, by the foreign

252
289 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

forces called upon by history to participate in the creation and shaping of
the modern States of Qatar and Bahrain.

C. Legal Effects on Title to Territory Consequential on the Settlement
of the Al-Khalifah in the Bahrain Islands

83. In international law, for possession to generate title to territory
requires animus possidendi and corpus possessionis. | am ready to admit
that, after leaving their settlement in the Zubarah area in 1783, the Al-
Khalifah at times, and with different degrees of intensity according to the
moment, expressed a certain animus regarding the Qatar peninsula in the
guise of attempts aimed at giving recognition to some kind of pre-
eminence among the Qatari tribes, or certain Qatari tribes, as well as
at avoiding the possibility that the peninsula might become a source
of danger to the security of the Bahrain islands. But this animus of the
Al-Khalifah Rulers of Bahrain never resulted in the establishment of
an administrative/territorial unit of their own in the Qatar peninsula,
or in the establishment of a common political or territorial entity
between the Bahrain islands and the Qatar peninsula or a part thereof,
or in the recognition by the Powers of the existence of such a common
administrative or political entity of whatever form.

84. Regarding the objective element of title generating possession, it is
quite obvious in the light of the historical and diplomatic documentation
submitted by the Parties that there is no corpus possessionis by Bahrain
in the Qatar peninsula between 1783 and 1868. During this long period of
about 85 years, the Al-Khalifah Rulers of Bahrain were not in possession
of any part of the peninsula of Qatar or of any of the islands adjoining
the peninsula, nor did they even claim to be. In fact, not until 1873 did
the Ruler of Bahrain submit to the British its first claim to Zubarah, then
a part of the Ottoman kaza of Qatar! And not until 1936 was Bahrain’s
claim to the Hawar Islands submitted, also to the British! Thus, during
the period 1783-1868, as corpus of possession the Rulers of Bahrain did
not have any territory in the Qatar peninsula and/or in its adjoining
islands to make them the holders of title to territory under international
law either as a effective possession or in the form of in precario
possesstonis.

85. Bahrain’s thesis of the effective exercise of authority during the
period 1783-1868 in the Qatar peninsula is not therefore based upon any
kind of effective or actual possession of territory, but rather on an alleged
animus to pre-eminence in the peninsula, as well as in the alleged ties of
allegiance of certain tribes with the Al-Khalifah Rulers of Bahrain, the
Naim (the nomadic tribe) in the case of the so-called “Zubarah region”
and the Dawasir in the case of the Hawar Islands. We will consider these
alleged “ties of allegiance” below.

253
290 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

86. For the moment, let us merely emphasize that neither the animus
argument nor the allegiance argument implied effective possession of ter-
ritory by the Al-Khalifah Rulers of Bahrain in the Qatar peninsula from
1783 to 1868. The possession by Bahrain of part of Jazirat Hawar did not
take place until 1937 and was the result of a clandestine occupation, fol-
lowing the 1936 British “provisional decision” on the Hawar Islands. The
only point concerning this occupation which should be mentioned here is
that because of its very date, and independently of its characterization in
international law, such an occupation cannot have retroactive effect so as
in any way to interrupt the process of the formation and consolidation of
the Al-Thani Rulers’ original title to the territory of the whole peninsula
of Qatar and its adjoining islands.

87. Furthermore, the case file contains no evidence of the exercise of
territorial authority by the Al-Khalifah — even during the period when
they remained settled in the Zubarah area (1766-1783) — over other
parts of the peninsula of Qatar. Bahrain asserts, however, that a gadi of
Zubarah, subject to the authority of the Al-Khalifah, granted the Hawar
Islands to the Dowasir. This alleged judicial act is not part of the docu-
mentation before the Court. In fact, counsel for Bahrain tried to
construct it by means of second-hand evidence such as, for example,
the so-called “affidavits” and hearsay (oui-dire) testimony of private and
perhaps self-interested individuals.

88. My general conclusion on this matter is that, having left for the
Bahrain islands in 1783 by an act of free will, the Al-Khalifah abandoned
their former territorial title in the area of Zubarah and never before 1868
acquired any new title of a territorial character regarding that area or
any other area of the Qatar peninsula and/or its adjoining islands and
waters. The absence of effective possession under international law,
because of the lack of corpus possessionis, is manifest from 1783 to 1868,
quite independently of any possible nominal pre-eminence of the Al-Kha-
lifah among tribes in the peninsula for reasons of prestige or other con-
siderations. It is also crystal clear that, while settled at Zubarah (1766-
1783), the Al-Khalifah were not rulers of Qatar. They were not — before
or after 1783 — a kind of dynasty reigning over all the tribes and terri-
tory of the Qatar peninsula as counsel for Bahrain has sought to insinu-
ate during the proceedings. Qatar does not therefore have to prove the
loss by the Al-Khalifah of any title over Qatar to prove its own original
title. It is to Bahrain — to the extent that it asserts a contrary proposition
— to prove that territorial title actually existed to the extent indicated
and did not lapse following the settlement of the Al-Khalifah in the Bah-
rain islands in 1783. What “the British” considered or did not consider in
the first part of the nineteenth century is not the issue; the issue is what
international law considers a territorial title to be in that century.

254
291 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

D. Presence of Great Britain in the Gulf and Maintenance of
Peace at Sea

89. Europeans arrived in the Gulf in the seventeenth century, as it
lay along one of the trading routes with India. The first to arrive were
the Portuguese, who established forts at Hormuz and Bahrain. Their
monopoly of trade in the Gulf was first challenged by the Dutch who had
trading posts on the Persian coast. Somewhat later came the British who,
in association with Persia, succeeded in expelling the Portuguese from the
Gulf, the last Dutch trading post also being abandoned in 1766. There-
after, the British almost acquired a monopoly of foreign trade in the Gulf
ports, and were left as the only foreign Power in the area until the arrival
of the Ottomans some decades later.

90. By the end of the eighteenth century, in addition to commercial
and trade interests, there were also other reasons for Britain’s increased
involvement in the Gulf. The growing British presence in India made the
Gulf an area of great strategic importance for successive British Govern-
ments. At the same time, maritime trade had considerable increased, as
had piracy, with the result that part of the southern coast of the Gulf
came to be known by the British as the “Pirate Coast”. Since 1797, and
on several occasions, British vessels were attacked by Arab tribes led by
the Qawasim whose headquarters were in Ras Al-Khaimah. It took the
British from 1797 to 1819 to defeat the Arab tribes led by the Qawasim.

91. But in 1819 a substantial force of combined British naval and East
India Company vessels finally took control of Ras Al-Khaimah. Other
ports on the “Pirate Coast” were also visited by the British and a clean
sweep was made of their military defences and their larger war vessels.
These kinds of measures were also taken against the Bahrain Sheikhs in
the Bahrain islands. It is noteworthy that when the British took control of
the Gulf, the Bahrain Rulers were already settled in the Bahrain islands.
The British did not meet the Al-Khalifah in their former Zubarah settle-
ment or in the Hawar Islands but in the Bahrain islands.

92. Following the events described, individual agreements were signed
by the British with the Sheikhs including an undertaking to enter into a
general peace treaty in the future. The General Treaty of Peace was con-
cluded in January 1820 and, on various dates, the Sheikhs of the Pirate
Coast and the two Bahraini Sheikhs in power in the Bahrain islands sev-
erally became parties thereto. By this Treaty the Arab signatories under-
took in future to abstain from plunder and piracy, as distinguished from
“acknowledged war”, and various arrangements were prescribed for
ensuring the strict observance by them of their new treaty obligations,

255
292 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

among them being the adoption by the tribes of a common distinctive
flag, and the institution of a system of ship’s papers for the purpose of
identification.

93. To enforce the Treaty of 1820, the British stationed more perma-
nent naval forces in the Gulf, and subsequent acts of piracy, including
several believed to have been perpetrated by tribes of Qatar and of Bah-
rain, were dealt with directly by these forces. However, piracy as well as
acts of aggression by one Arab tribe against another continued, resulting
in disruption to both British and Arab trade. Therefore, in 1835, at the
suggestion of the British, a maritime truce was established which was
renewed for certain periods on a yearly basis. In 1836, The British also
imposed a de facto restrictive line between the Persian coast and the Arab
coast, beyond which the Arab tribes were not allowed to conduct any
hostile operation. Finally, a Treaty of Maritime Peace in Perpetuity was
signed in August 1853 by Great Britain and the Chiefs of the “Trucial
Sheikhdoms”.

94. British control led to the maintenance of peace at sea in the Gulf.
For example, they imposed fines and assisted in the recovery of plun-
dered property. They were also, inevitably, drawn into intervening in
local disputes, sometimes supporting one sheikh rather than another.
However, British ascendancy in the Gulf from 1820 onwards over the
affairs of the Arab chiefs was mainly a de facto position and not a posi-
tion as of right. The moves to establish and maintain peace at sea, as well
as other moves in 1838 and 1847 in connection with the slave trade,
allowed the British to intervene to secure the performance of treaty obli-
gations. But Great Britain did not establish any supremacy over the Arab
chiefs with regard to their other internal or external affairs. Nor did
Great Britain claim or proclaim suzerainty or sovereignty over them on
treaty or other grounds. In 1892, a new form of protection was devised,
the “exclusive agreements”, but the territories of the various Arabs
Chiefs in the Gulf never became territories of the British Crown.

E. Termination of the Historical Connection between the Al-Khalifah
Rulers of Bahrain and Qatar (1868-1871 )

95. The Al-Khalifah’s title to the Bahrain islands was acquired by con-
quest, a mode of acquiring territory not excluded by eighteenth century
international law. But the consolidation of their title to the Bahrain
islands took some time because the Al-Khalifah were by no means
the only political actors in the area and also because of internal power
struggles among the Al-Khalifah Sheikhs.

96. From 1783 until about 1820, the Persians, Muscat and, in particu-
lar, the Wahhabis struggled for control over Bahrain Island and from
time to time the Al-Khalifah Rulers had to acknowledge their submission

256
293 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

to one or other of those powers. There were therefore permanent threats,
in the first place from the Wahhabis who, once they had occupied the
Hasa coast in 1795 with the assistance of the Naim (the tribe allegedly
loyal to the Al-Khalifah) and other tribesmen, besieged Zubarah and
other localities in the north of the Qatar peninsula. By 1802-1803, the
Wahhabis had nominally subjected all the inhabitants of the Arab Gulf
coast from Basra to Muscat and also turned their attention to the island
of Bahrain itself, demanding in particular the payment of the zakat by
the Rulers of Bahrain.

97. By 1809, the Wahhabis had brought Qatar under their rule and the
Bahrain islands themselves succumbed to the powerful Wahhabi influ-
ence, which was then controlled from Zubarah in Qatar. From 1809, the
influence of the Wahhabis extended over Bahrain culminating in a period
of Wahhabi control of the islands in 1810-1811. In 1810 a Wahhabi
Governorship of Qatif, Qatar and Bahrain was instituted with its head-
quarters on Bahrain Island. The Wahhabi influence in the area con-
tinued intermittently until about 1860.

98. In the years after 1811, there were also other threats from the
Qatar peninsula. For example, Rahmah bin Jarb in association with
others, including at times the Ruler of Muscat, engaged in various
skirmishes with the Al-Khalifah Sheikhs mainly from Qatar, where
“to the present day the western and northern coasts of Qatar are dotted
with the remains of forts attributed to Rahmah” (Memorial of Bahrain,
Vol. 3, Ann. 83, p. 445).

99. There were further threats to Bahrain by Muscat in the 1820s and,
in 1830, the Wahhabis again obtained the submission of the Sheikhs of
Bahrain. The 1830s also saw renewed threats from the Hasa coast, this
time by the Egyptian forces who were engaged in an expedition in sup-
port of the Ottomans and, despite British assurances that it would pro-
tect Bahrain, the Al-Khalifah Rulers nevertheless acknowledged Egyp-
tian supremacy in 1839 and paid tribute that year to the Egyptians,
themselves vassals of the Porte. The Wahhabis continued to play a role in
Bahrain’s affairs by intervening in the power struggles between rival Bah-
raini Sheikhs from 1840 to 1860. Furthermore, in 1835 and 1851, people
in Qatar took advantage of the Wahhabis’ presence to oppose attempts
by the Bahrain Sheikhs to exercise authority in the peninsula (Memorial
of Qatar, Vol. 3, Ann. II.5, pp. 201 and 207). At one time, between 1852
and 1866, the Wahhabi Amir had a representative at Doha (ibid. . p. 207).

*

100. Thus, during the first decades of the nineteenth century, there
were sufficient threats to Bahrain from outsiders to warrant the assump-
tion that the Rulers of Bahrain were perhaps engaged in a continuous
policy of maintaining or extending effective territorial authority over the

257
294 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

Qatar peninsula. The contrary contention defended by Bahrain in the
present case is even less likely if account is taken of the internal political
situation existing at that time on the island of Bahrain. Political life in
Bahrain had been marked by internal struggles since the conquest of the
island. There was no hard and fast rule about succession and sons and
nephews of the Ruler were often at odds with one another.

101. From the early days of their settlement on Bahrain Island until
about 1860 or even until the beginning of Sheikh Isa bin Ah’s reign in
1869, the history of the Al-Khalifah rule in Bahrain was punctuated by
different attempts, successful and unsuccessful, to seize power at home.
There were also occasionally co-rulers. It was certainly not the best situa-
tion, even if the animus may perhaps have been there, for the display of
effective territorial authority on the mainland.

102. These internal struggles often affected nearby Qatar, but this is by
no means the exercise of territorial authority over the peninsula by the
Bahraini Rulers — the opposite if anything. It was precisely because that
authority did not exist or was not effectively manifest in the peninsula that
the Al-Khalifah Sheikhs struggling for power on the Island of Bahrain
came to Qatar. The conflict between Sheikh Abdullah bin Khalifah and his
great-nephew, Sheikh Mohamed bin Khalifah, who were co-rulers at the
time, provides a good historical example of this kind of situation. Expelled
in 1842 from Bahrain, Sheikh Mohamed took refuge in the Murair fort
outside the old walls of Zubarah. His presence there lasted till April 1843.
Then, helped by the Qataris, Sheikh Mohamed retook Muharrag and
ousted Sheikh Abdullah, who was in turn expelled from Bahrain and pro-
ceeded to seek alliances with both the Wahhabis and the Persians in an
effort to regain control of the Island of Bahrain (see Lorimer, Memorial of
Qatar, Vol. 3, Ann. 11.3, pp. 206, 276-277 and 279-286).

103. In fact, the Al-Khalifah Rulers survived in the Bahrain islands
because of the protection afforded to them by the British. The protection
of the Bahrain islands became a constant feature of British policy. Britain
always protected Bahrain, understood as the “Bahrain islands”, from for-
eign threats (for example, in the 1820s from threats posed by Muscat; in
1835 and 1859 because of tensions with the Wahhabi Amir; in 1843 and
1869 from renewed Persian claims to sovereignty over Bahrain Island,
etc.), as well as from threats from the Qatar peninsula. But at the same
time, Great Britain did not support the interventions of the Al-Khalifah
Rulers or their claims on the mainland and its adjoining islands, the
Qatar peninsula and its islands included.

104. Thus, for example, when in 1861 in response to Wahhabi threats,
Sheikh Mohamed of Bahrain began to blockade the Hasa coast and to
harass the pear! fishers of Qatif and Damman, the British intervened with
naval forces and the Sheikh of Bahrain was forced to submit. Thereafter,
in May 1861, Sheikh Mohamed (together with other Sheikhs of Bahrain)
was required by Felix Jones, British Political Resident in the Persian

258
295 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

Gulf, to enter into an agreement with Great Britain, the Agreement of
31 May 1861, whereby the Bahraini Sheikhs undertook to abstain from
all maritime aggression of any description (Memorial of Bahrain, Vol. 2,
Ann. 8, p. 110).

105. After the 1861 Agreement, in which no reference is made to Qatar
or to the peninsula of Qatar, the Rulers of Bahrain had their hands tied
by treaty obligations with Britain. They could not make forceful inter-
ventions to assert or exercise authority over the mainland without British
authorization. The “hands off” policy adopted by the British with respect
to the mainland, applied by the Agreement to the Rulers of Bahrain,
from that moment became an important factual element in the formation
and consolidation of the Al-Thani Rulers’ title over the territory of the
Qatar peninsula and its adjoining islands. The only departures from this
consistent British policy were the 1936 and 1939 “decisions” on the
Hawar Islands, as well as the 1947 sea-bed dividing line in so far as these
islands and the shoals of Dibal and Qit’at Jaradah are concerned.

106. Lastly, it should also be noted that the Arab occupation of Bah-
rain Island did not put an end to the Persian Government’s claim to sov-
ereignty over Bahrain. The Persian claim regularly renewed after 1843, in
particular in 1869, and again in the 1920s, was dropped only in 1970,
namely one year prior to the end of the British political presence in the
Gulf. As already indicated, in accordance with its policy of protecting
Bahrain, understood to mean the Bahrain islands, Great Britain always
opposed and refused to recognize such a claim, deciding even in 1843 to
resist by force any attempt by the Persian Government to establish
troops on the Island of Bahrain. But, what is more interesting for the
matter under consideration is the fact that, for Iran, Bahrain was exclu-
sively Bahrain Island or the Bahrain islands, and not a Bahrain compris-
ing the peninsula of Qatar or any part thereof or its adjoining islands.
This is important historical testimony from a powerful and interested
neighbouring Gulf State.

*

107. In the light of the above, any suggestion that the question of the
exercise of effective authority in the Qatar peninsula between 1783 and
the 1860s was merely a question of the relationship between the Rulers of
Bahrain and the Rulers of Qatar is at odds with the historical truth. Bah-
rain’s consequential assertion that it was only as the territorial authority
of the Rulers of Qatar gradually expanded that the territorial authority
of the Rulers of Bahrain within the Qatar peninsula contracted (Memo-
rial of Bahrain, para. 64) is without any doubt historically erroneous and
cannot but be rejected.

259
296 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

108. In 1783, the Al-Khalifah voluntarily settled in the island of Bah-
rain and with that settlement the continuous exercise by them of effective
territorial authority over the Zubarah area in the Qatar peninsula ceased.
They lost and never recovered their former Zubarah area and were
henceforth unable to establish any new territorial base in the Qatar
peninsula and/or its adjoining islands until the British “decisions” of 1936
and 1939. It appears, however, that they continued to claim, from time to
time, some kind of ill-defined pre-eminence vis-a-vis tribes in the Qatar
peninsula, but this unimus never materialized in the physical taking of
possession of any piece of land in the peninsula or its adjoining islands.
At a certain moment, towards the middle of the nineteenth century, the
Al-Khalifah Rulers of Bahrain apparently succeeded in being recognized
to have a kind of nominal pre-eminence among Qatari tribes, but without
the physical occupation of territory and without organizing any kind of
government or administration in the peninsula. What the Al-Khalifah
Ruler did for a time was to have a representative at Doha, such as the
Wahhabi Amir in 1852 and 1866.

109. Furthermore, if one takes the period considered as a whole (1783-
1868), the absence of any element of continuity in the alleged nominal
pre-eminence of the Al-Khalifah Rulers in the Qatar peninsula is obvi-
ous. What emerges, generally speaking, from contemporary history is not
continuity at all, but a clear discontinuity in the relations of the Al-Kha-
lifah with Qatari tribes, even nominally. As noted by the British First
Assistant Resident in the Persian Gulf, referring to the period prior to
1868:

“From what I have heard whilst living in Bahrein, I should say
that some years ago the Naim, together with many other of the
Guttur tribes, were in certain ways dependencies of Bahrein, but
the amount of authority exercised by the rulers of Bahrein over
Guttur seems to have varied in proportion to the power of coercion
those rulers possessed; if the Chief of Bahrein was strong the
tribes acknowledged his supremacy; if he was weak they denied it.”
(Counter-Memorial of Qatar, Vol. 3, Ann. III.11, p. 75.)

110. On the other hand, those in command at Doha began to be seen
by the Qatari tribes, as underlined by Palgrave (see above) and others, as
the natural head or ruler of the tribes in Qatar, although their authority
was not yet effectively exercised at that period over all the tribes and
territory of the peninsula. Subsequent historical events, as we will
see, would confirm the Al-Thani as the Ruler of Qatar with its tribes and
territory and his recognition as such by foreign and local Powers.

260
297 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

111. In 1908, Lorimer described the former pre-eminence of the Al-
Khalifah retroactively in terms of “a suzerainty — more apparent than
real” (see below). I do not know whether the term “suzerainty” is more
appropriate to describe the situation existing in the Qatar peninsula by
the middle of the nineteenth century. In any case, the nominal Al-Kha-
lifah pre-eminence was a form of “suzerainty” having little in common
with the one established since 1871 by the Ottomans over the whole of
the peninsula of Qatar. The Ottomans were present in the peninsula,
organized the administration of Qatar as a part of the administration of
the Ottoman Empire and maintained a permanent military presence there
for decades. The so-called suzerainty of the Al-Khalifah Rulers was
deprived of any kind of presence, of any power in rem, namely of
dominium over territory or of a right of ownership over land. The com-
plete absence of corpus possessionis is obvious if one reads the historical
record.

112. The payment of the zakat to the Wahhabi Amir, common to
Bahrainis and Qataris, and personal links with some local sheikhs, tribes
or sections of tribes was probably used at times by the Al-Khalifah in an
attempt to assert the said nominal pre-eminence. This, together with the
already existing special relations between Great Britain and the Al-Kha-
lifah Rulers of Bahrain, surely explained that until about the 1860s, the
British, who at that time were not interested in Qatar, would sometimes
describe Qatar as a “dependency” of Bahrain (a fact recognized by Qatar
in paragraph 5 of its Application instituting the present proceedings). But
even this was far from being a unanimous British view on Qatar in the
1860s. For example, in 1860-1862, Palgrave describes Qatar as dependent
on the Sultan of Oman (see above) and, on some contemporary maps,
Qatar was so represented. The descriptions which, as Bahrain now con-
tends, originated with the British, were however made without any regard
to the principle of effectiveness as understood in nineteenth-century inter-
national law. They were a politically convenient means for the British to
describe a still evolving political situation in the peninsula. It was con-
venient for them to continue with this fiction because, after all, they con-
trolled Bahrain, which is to say the Bahrain islands, and also had some
established links with the Sheikhs of Oman.

113. Furthermore, as already indicated above, the term “Bahrain” was
used to convey several different geographical meanings during part of the
nineteenth century. For example, when, in his Memoir Descriptive of the
Navigation of the Gulf of Persia (1821-1829), Captain Brucks of the
Indian Navy described the Warden’s Islands as belonging to Bahrain
(Memorial of Bahrain, Vol. 2, Ann. 7, p. 101), we cannot be sure which
“Bahrain” he had in mind. Moreover, Qatar does not claim to be the
holder of title to the territory of the Hawar Islands in the 1820s, but from
1868 onwards. The insistence of Bahrain on Captain Brucks’s 1829 state-

261
298 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

ment on the Hawar Islands is somewhat surprising, because in other
contexts counsel for Bahrain appears to dismiss the legal relevance of
hydrographers’ testimony for the determination of territorial matters.
For example, in the 1982 version of the Persian Gulf Pilot, published by
the Hydrographer of the British Navy, we find that Bahrain:

“is an island about 27 miles in length from N to S, with a breadth of
about 8 miles for most of its length, which lies in the entrance to
Dawhat Salwa; together with a number of small islands and islets
lying close to its shores, they form the independent Sovereign State
of Bahrain” (Memorial of Qatar, Vol. 3, Ann. I.1, p. 37).

114. With the Agreements of 1868 concluded by the British with the
Al-Khalifah Rulers of Bahrain and the Al-Thani Chief of Qatar and the
arrival of the Ottomans at Doha in 1871 (see below), the principle of
effectiveness began to operate in favour of the Al-Thani Chief of Qatar.
In effect, from then onwards, the peninsula of Qatar as a whole became
a territory under the authority and control of the Ottomans and the Al-
Thani Chief of Qatar, with the de fucto diplomatic understanding and
support of Great Britain, while the Al-Khalifah Rulers remained settled
in the Bahrain islands under British protection, but deprived by treaty
from even the power to intervene on the mainland, including the penin-
sula of Qatar and its adjoining islands, because this could only be done
via the sea, in other words, not to breach the peace at sea was the main
aim of British policy in the Gulf at that time. There were no planes then!

*

115. The above is merely an overall description of the historical record
of the period concerned, the details of which are to be found in the case
file. But it is enough for determining the moment from which the original
title to territory of the State of Qatar must be ascertained for the purpose
of the present case. The following passage from Lorimer in my opinion
provides some decisive evidence for identifying that moment, which is of
fundamental importance for the legal determinations to be made in the
present case. According to Lorimer:

“Prior to 1766 a.p., the peninsula of Qatar, it is believed, was
included in the dominions of the Bani Khalid Shaikhs, whose head-
quarters were at the time in Hasa and whose jurisdiction then
extended as far north as Kuwait; and it is probable that the Utub,
when they arrived at Zubarah in 1766, found the Al Musallam occu-
pying a pre-eminent, though not a paramount position in the coun-
try. In the course of about 20 years the pre-eminence of the Al

262
299 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

Musallam appears to have been transferred to the Utub; but the
attention of the latter was for some time held in another quarter by
their conquest of Bahrain. By the middle of the 19th century, how-
ever, the Shaikh of Bahrain had established a suzerainty — more
apparent than real— over Qatar, and was represented at Bida
(Dohah) by a political agent who was a member of his own family.
In 1868 direct negotiations took place between the British Govern-
ment and the tribal Shaikhs of Qatar: and, in the result, the interest
of the Shaikh of Bahrain in Qatar was limited to the receipt of
tributes probably on behalf of the Wahhabi Government of Najd. /n
1872, the Turks established a garrison in Dohah: and with the
cessation of the Wahhabi Zakat the political connection, such as
it was, between Bahrain and Qatar came to an end.” (Memorial of
Qatar, Vol. 3, Ann. II.4, pp. 140-141.)

F. The 1861 Agreement between Great Britain and Bahrain

116. As indicated above, the British opposed by force the blockade of
the Wahhabi Hasa ports by the Ruler of Bahrain, Sheikh Mohamed bin
Khalifah. The British military intervention was preceded by a letter of
18 May 1861 addressed by the British Resident in the Persian Gulf, Felix
Jones, to the Chief of Bahrain, Sheikh Mohamed bin Khalifah, para-
graph 3 of which transcribed the following:

“On the other hand my determination sternly to control any hos-
tile attempts on the neighbouring tribes, which may be made by
Bahrein, or in the name of Bahrein, under any Agency whatever, is
taken, and true to our old policy of maintaining the integrity of the
Island, I will not hesitate to defend it against the encouragements or
aggressions of its enemies. This resolution you will communicate dis-
tinctly to all parties in authority, whether native or foreign, at Bah-
rein, as the peace of this Gulf compels me to be explicit, while the
question is pending a decision in higher quarters.” (/bid., Vol. 5,
Ann. IE19, p. 43.)

117. After this British military intervention, Great Britain and
Bahrain concluded an agreement on 31 May 1861 entitled “Friendly
Convention entered into between Sheikh Mahomed bin Khuleefa,
independent Ruler of Bahrain, on the part of himself and successors,
and Captain Felix Jones, Her Majesty’s Indian Navy, Political Resi-
dent of Her Britannic Majesty in the Gulf of Persia, on the part of the
British Government” (ibid, Vol. 5, Ann. II.20, p. 47). The preamble
describes the Agreement as a “perpetual Treaty of peace and friend-
ship” between the independent Ruler of Bahrain and the British Govern-
ment, having for its object the advancement of trade and the secu-

263
300 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

rity of all classes of people navigating or residing upon the coast of
this sea.

118. After recognizing as valid and in force all former treaties and
conventions between the Chiefs of Bahrain and the British Government,
the independent Ruler of Bahrain agrees, in Article 2 of the 1861 Agree-
ment, “to abstain from all maritime aggressions of every description,
from the prosecution of war, piracy, and slavery by sea, so long as
I receive the support of the British Government in the maintenance of the
security of my own possessions against similar aggressions directed against
them by the Chiefs and tribes of the Gulf”. Moreover, Article 3 provides
that the Ruler of Bahrain, in order that the above engagements may be
fulfilled, agrees:

“to make known all aggressions and depredations which may be
designed, or have place at sea, against myself, territories, or subjects,
as early as possible, to the British Resident in the Persian Gulf, as
the arbitrator in such cases, promising that no act of aggression or
retaliation shall be committed at sea by Bahrein or in the name of
Bahrein, by myself or others under me, on other tribe, without his
consent or that of the British Government, if it be necessary to pro-
cure it. And the British Resident engages that he will forthwith take
the necessary steps for obtaining reparation for every injury proved
to have been inflicted, or in the course of infliction by sea upon Bah-
rain or upon its dependencies in this Gulf. In like form, I, Sheikh
Mahomed ben Khuleefa, will afford full redress for all maritime
offences, which in justice can be charged against my subjects or
myself, as the ruler of Bahrein.”

119. The Agreement refers to “possessions”, “territories” and “sub-
jects” of the Ruler of Bahrain and distinguishes between “Bahrain”, or
the main island of Bahrain where the Agreement was done, and “its
dependencies in this Gulf”. But the Agreement does not define the terri-
tories, possessions or dependencies concerned. Qatar is not mentioned at
all in the Agreement. The third parties are described as “the Chiefs and
tribes of this Gulf”, as well as by the term “other tribes”. As we will see,
in 1868, following the attack of the Ruler of Bahrain on the Doha area,
the British considered the Chief and tribes of Qatar as protected by the
1861 Agreement against attacks from the Ruler of Bahrain and, there-
fore, as not falling within the terms “subjects”, “possessions”, “territo-
ries” or “dependencies” of the Ruler of Bahrain referred to in the 1861
Agreement.

120. The 1861 Agreement is particularly significant since its violation
by the Ruler of Bahrain was to lead to the conclusion of the 1868 Agree-
ments whereby Great Britain first formally recognized the separate iden-
tity of Qatar under the rule of Mohamed bin Thani.

264
301 = DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

G. Historical Consolidation and Recognition of the Al-Thani Rulers’
Title to the Territory of the Entire Qatar Peninsula and Its Adjoining
Islands (1868-1915)

1. The Ruler of Bahrain’s 1867 acts of war across the sea and British
intervention

121. In 1867, increased tension between Mohamed bin Thani and
other headmen in Qatar and the Ruler of Bahrain, Sheikh Mohamed bin
Khalifah al Khalifah, developed as a result of the seizure and deportation
to Bahrain Island of a Qatari Bedouin by the representative of the Chief
of Bahrain at Wakrah, his son Sheikh Ahmed. The headmen of Bida and
Wakrah demanded the Bedouin’s release and, when their request was
refused, they took steps to expel the representative of the Sheikh of Bah-
rain from Wakrah. In a communication to the British Political Resident
in the Gulf, dated 23 April 1868, Captain Cotton Way made a report on
this initial event recording that:

“4, One Ali bin Shamir al Naimi of the Bedouins of Gutter having
been seized to Bahrain by Sheikh Ahmed bin Mahomed bin Sultan,
the representative of the Chief of Bahrain on the Gutter coast for
going to his tribes, the naims of Wakra, the naims and the people of
Biddah, Doha and Dougha combined and demanded his release.
This demand was refused, and they then determined to turn Sheikh
Ahmed out of Wakra.” (Counter-Memorial of Qatar, Vol. 3,
Ann. III.3, p. 13.)

122. In the light of the determination of the Qataris, Sheikh Ahmed
fled Qatar and reported what had occurred to the Chief of Bahrain, who
then invited Sheikh Jassim, the son of Mohamed bin Thani of Qatar, to
Bahrain for a meeting but on his arrival imprisoned him. Thereafter, the
Ruler of Bahrain in a co-ordinated action with the Ruler of Abu Dhabi,
launched attacks on Qatar across the sea on the towns of Wakrah, Bid-
dah, Doha and Dougha. Doha was totally destroyed and the towns were
plundered. The victims appealed for redress to the Wahhabi Amir — who
maintained a claim to authority over Qatar — but whose demand for
reparation was this time rejected by the Ruler of Bahrain. According to
Qatar’s pleadings, at about the same time, an encounter also occurred at
Al-Hamroor, where the Naim defeated the Bahrain Ruler’s son, Sheikh
Ahmed. In a letter to the Government of Bombay, dated 7 December
1867, Lieutenant Colonel Pelly, the British Political Resident in the Gulf,
reported on the Bahraini attacks on Qatar as follows:

“It appears that The Chief of the Bahrain Islands, claiming sov-
ereignty over the region of Gattar on the neighbouring Main Land
of Arabia, plotted an attack on the inhabitants of that region; and
secured the aid of the Abuthaby Chief in making the attack .. . The

265
302  DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

combined Chiefs then plundered the towns of al-Wakrah and Al
Biddah . . .” (Counter-Memorial of Qatar, Vol. 3, Ann. IL, p. 1.
See also, letter from the First Assistant Political Resident to the
Political Resident dated 27 November 1867, in Memorial of Qatar,
Vol. 5, Ann. 11.25, p. 71.)

123. The following year, 1868, the Qatar tribes organized a retaliatory
attack, also across the sea, and nearly succeeded in surprising the Island
of Bahrain. The events referred to created a situation of war in the Gulf
— the term “war” is indeed used in some British papers (see, for example,
Memorial of Qatar, Vol. 5, Ann. II.25, p. 73) — alarming all the inter-
ested parties. On 4 April 1868, Lieutenant Colonel Pelly, the British
Political Resident in the Gulf, informed the Government of Bombay
that both the Sultan of Muscat and the Wahhabi had complained to
him of “the flagrant breach of the peace at sea” by the Chief of Bahrain
(Counter-Memorial of Qatar, Vol. 3, Ann. III.2, p. 9). There is no
doubt, in the light of the documentation submitted, that the instigator of
the situation and the violator of the peace at sea was the Chief of Bahrain
described by Lieutenant Colonel Pelly, in the same communication,
as one of “the most troublesome and least reliable subscribers to the
Maritime Truce” (ibid.) and again, in a further communication to the
Government of Bombay of 22 June 1868, that

“the root and promoter of these disturbances is Shaikh Moham-
med bin Khalifah, the Head Shaikh or Chief of Bahrain, whose
proceedings have formed the subject of reiterated complaint from
successive British Residents during the past quarter of a century”
(Counter-Memorial of Qatar, Vol. 3, Ann. III.4, p. 25).

124. The situation being a test of Great Britain’s determination and
readiness to maintain peace at sea, the British resolved to intervene in the
conflict because it involved a breach of obligations assumed by the Chief
of Bahrain in the Agreement concluded in 1861 with Great Britain.
As stated in a telegram to the Government of Bombay on behalf of the
Viceroy and the Governor-General in Council, C. M. Aitchison, then
Officiating Secretary to the Government of India:

“It is not a matter of surprise that ... Gutter tribes should have
risen and retaliated on Bahrain. Our interference to prevent aggres-
sions, such as those perpetrated by Bahrain and Aboothabee, is not
a matter of policy merely but out of express obligation. The British
Government is bound, on information of an act of aggression by
sea, to forthwith take the necessary steps for obtaining reparation
from the injury inflicted.” (Jbid., Vol. 3, Ann. IILS, p. 35.)

125. The British intervention would have far-reaching historical con-
sequences because it led to a further conventional limitation of the

266
303  DELIMITATION AND QUESTIONS (DISS. OP, TORRES BERNARDEZ)

authority of the Al-Khalifah, circumscribed to the Bahrain islands, and
to the recognition, by the British, of Mohamed bin Thani of Doha as the
Chief of Qatar. Thus, the Bahrain Ruler’s attacks on Qatar, in 1867 and
the subsequent Agreements of 1868, opened the way for the recognition
and consolidation of the Al-Thani Ruler’s title to the territory of the
peninsula of Qatar as a whole, including its adjacent islands.

126. The acts of war in 1867 by the Ruler of Bahrain are also relevant
to the present case for other legal reasons. First, the British authorities
clearly acted on the assumption that Bahrain was exclusively “the Bah-
rain islands”; previous references to Qatar as a dependency of Bahrain
therefore ceased by 1867-1868. Secondly, the conduct of the Chief of
Bahrain, consisting of acts of war, was liable to put an end to any ties of
allegiance there were with Qatari tribes (see Dubai/Sharjah Arbitration).
Thirdly, and with regard to the effectivités, events prove that, as in 1835
and 1851, attempts by the Rulers of Bahrain to exercise effective author-
ity in Qatar were effectively opposed by the Qatari tribes under the lead-
ership, this time, of the Al-Thani of Doha. And fourthly, the use of force
against Qatar by the Ruler of Bahrain was not viewed by Great Britain
as a lawful use of force in Bahraini foro domestico.

2. Agreements concluded in 1868 by Great Britain with the new Al-
Khalifah Ruler of Bahrain and with the Al-Thani Chief of Gutter,
respectively

127. Concluding that the Bahrain Sheikh Mohamed bin Khalifah’s
attacks on Qatar tribes and territory were a violation of the British
enforced “maritime peace” and of the agreements signed by him with
Britain, particularly the Agreement of 1861, the British authorities
instructed Lieutenant Colonel Pelly, the British Political Resident in the
Gulf, to take strong action. On 2 September 1868, Pelly served notice on
the Chief of Bahrain, Mohamed bin Khalifah, in which, while demanding
compensation of 300,000 dollars for Qatari losses and compliance with
other terms of the notice, it was stated, inter alia:

“It is with great regret that the Viceroy of India finds you increas-
ingly determined and on a large scale to disturb the Maritime peace
of the Gulf in violation of the written engagements into which you
have entered.

You proceeded with an armed force and plundered and
devastated the Guttur towns, carrying off with you the principal
Chief of Gutter. A retaliatory attack being made you fought at

267
304 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

sea and then again despatched your brother to attack the Gutter
coast.

It is my painful duty to add that if you refuse or hesitate to
comply with these demands they will be enforced . . .” (Counter-
Memorial of Qatar, Vol. 3, Ann. III.6, p. 45.)

128. It was against this background that Pelly then proceeded to Bah-
rain and Qatar and secured acceptance of the Agreements of September
1868. He went first to Bahrain Island. When Pelly arrived at Bahrain
Island with three naval vessels, Sheikh Mohamed bin Khalifah had
already fled the island. Thus, on 6 September 1968, the British Political
Resident in the Gulf concluded an Agreement settling the affair with
Sheikh Ali bin Khalifah, who after the flight of Sheikh Mohamed, was
now Chief of Bahrain. In addition to seizing all the war appurtenances
belonging to Sheikh Mohamed (he also destroyed both the fort and can-
non and burnt three war vessels) and paying the British Political Resident
a given sum of dollars in cash as compensation for damages, the Agree-
ment between Britain and the new Ruler of Bahrain, signed on 6 Septem-
ber 1968, provides as follows:

“We, the undersigned, Ali bin Khalifeh and the inhabitants and
subjects of Bahrein in general, do thereby declare that Mahomed bin
Khalifeh having repeatedly committed acts of piracy and other
irregularities at sea, and having now, after his recent piratical act,
fled from Bahrein, has forfeited all claim to his title as principal
Shaikh and Chief of Bahrain, and at the present moment there being
no other Shaikh, I, Ali bin Khalifeh, received the Resident’s letter
addressed to Mahomed bin Khalifeh, and have understood the
demands therein made, and I thereby agree and accept the condi-
tions . . .” (Memorial of Qatar, Vol. 5, Ann. 11.26, p. 77.)

129. One of the conditions accepted by the new Ruler of Bahrain in
the Agreement was to consider Mahomed bin Khalifah as permanently
excluded from all participation in the affairs of Bahrain and as having no
claim to that territory, and in the case of his returning to Bahrain, to
seize and hand him over to the British Resident (Art. 3 of the Agree-
ment). With a view to preserving peace at sea, and precluding further dis-
turbance, and in order to keep the British Resident informed of events,
the new Ruler of Bahrain promised to appoint an agent at Bushire (then
the seat of the British Resident in the Gulf) (Art. 4 of the Agreement).

130. After securing this Agreement from the new Ruler of Bahrain, Ali
bin Khalifah, Lieutenant Colonel Pelly entered into direct contact with
Mohamed bin Thani by sending a letter to him in Wakrah dated 11 Sep-
tember 1868. This important piece of evidence of the recognition by the

268
305 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

British of Bahrain and Qatar as two distinct political entities, each with
its own responsibilities, reads as follows:

“The Shaikh Mahomed bin Khalifeh of Bahrein and yourself and
other Shaikhs of Guttar having committed serious piratical breaches
of the maritime truce, the British Government, as arbitrator of that
truce, instructed me to demand reparation from the said Shaikhs
and to show the marked displeasure of Government.

Shaikh Mahomed bin Khalifeh did not comply with the just
demands of Government, but, on the contrary, fled his country;
hence it became necessary to arrange matters with Shaikh Ali bin
Khalifeh, brother of Shaikh Mahomed, and who is now Shaikh of
Bahrein. I have to request that you continue towards Shaikh Ali bin
Khalifeh the peaceful relations formerly subsisting between Bahrein
and Guttar, fulfilling towards him all just obligations, whether in
regard to money payments or other matters.

I have to warn you that, if you conspire with Shaikh Mahomed
against Bahrein, or again put to sea for the purpose of disturbing the
peace, it will be my duty to take measures for putting it beyond your
power to do further mischief.

British Indian subjects have suffered loss at your hands by the
destruction or plunder of their mercantile craft. I invite you to come
on board at once and settle these questions.

You will have safe conduct while on board.” (Memorial of Qatar,
Vol. 5, Ann. 11.27, pp. 81-82.)

131. Following that letter, on 12 September 1868, Lieutenant Colonel
Pelly, “Her Britannic Majesty’s Political Resident, Persian Gulf”, con-
cluded an Agreement with Mohamed bin Thani of Guttur. By this Agree-
ment, published in Treaties and Engagements relating to Arabia and
the Persian Gulf compiled by C. U. Aitchison, Vol. IX, 1987 edition,
and entitled “Agreement of the Chief of El-Kutr (Guttur) engaging
not to commit any Breach of the Maritime Peace”, Mohamed Al-Thani
of Guttur promised: (1) to return to Doha and reside peaceably in
that port; (2) on no pretext to put to sea with hostile intentions and to
refer disputes and misunderstandings to the British Resident; (3) on no
account to aid Mohamed bin Khalifah or in any way contact him;
(4) if Mohamed bin Khalifah fell into his hands, to hand him over to
the British Resident (Arts. 1-4 of the Agreement); and

“(5) to maintain towards Shaikh Ali bin Khalifeh, Chief of Bahrein,
all the relations which heretofore subsisted between me and the
Shaikh of Bahrein, and in the event of a difference of opinion arising
as to any question, whether money payment or other matter, the
same is to be referred to the British Resident” (Art. 5 of the Agree-

269
306 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

ment) (Memorial of Qatar, Vol. 5, Ann. II.28, p. 85: emphasis
added).

The Agreement “sealed in our presence by Mahomed bin Sanee [Thani]
of Guttur” was signed by Lewis Pelly, the British Political Resident, and
R. A. Brown, Captain of HMS Vigilant.

132. Moreover, on 13 September 1868, Lieutenant Colonel Pelly, again
in his capacity of British Political Resident in the Persian Gulf, made an
address to the Sheikhs and tribes of Qatar, warning them that if anyone
were found in any way breaching the peace at sea, he would be treated in
the same manner as Sheikh Mohamed bin Khalifah of Bahrain had been.
He solemnly warned the Qatari tribes that the British Government was
determined to preserve peace at sea in the Persian Gulf. At the same time
“all the Shaikhs and tribes of Gutter” (not the sheikhs and tribes of Bah-
rain) were informed by Pelly as follows:

“Be it known to all the Shaikhs and others on the Guttar Coast
that Mahomed bin Sanee, of Guttar, is returning with his tribe to
reside at his town of Dawka, and has bound himself to live peace-
able there and not to molest any of his neighbouring tribes. It is
therefore expected that all the Shaikhs and tribes of Gutter should
not molest him or his tribesmen . . .” (Memorial of Qatar, Vol. 5,
Ann. 11.29, p. 89.)

133. The peaceful relations formerly existing between Bahrain and
Gutter were to continue, but as two separate political entities and with-
out any subordination of the latter to the former or vice versa. The
Agreement recognized the Chief of Qatar as being on an equal footing
with the Chief of Bahrain, and not as a subordinate in any hierarchical
relationship to himself or any part of the territory of Qatar. The contrary
proposition of Bahrain in the current proceedings is not upheld by the
text of either of the two main 1868 Agreements or by the documentation
and circumstances relating to their conclusion, or by the conduct of
Great Britain concerning the interpretation or application of the Agree-
ments in practice. The engagement not to commit a breach of the mari-
time peace, already assumed by Bahrain in its 1861 Convention with
Great Britain, was extended by the main 1868 Agreements to both the
Chief of Bahrain and the Chief of Qatar, the integrity of their respective
territories, including their coasts and adjoining islands, being fully
respected. The sea was to act as a buffer between the Bahrain islands and
the Qatar peninsula, Great Britain continuing to assume the duty of
maintaining peace at sea.

134. In January 1869, and despite the terms of Article 3 of the 1868
Agreement with Sheikh Ali, the British allowed Sheikh Mohamed to
return to Bahrain. This was at the request of Sheikh Ali himself. How-
ever, he soon began to intrigue, and Sheikh Ali deported him to Kuwait.
By September 1869, Sheikh Mohamed had moved to Qatif, and from

270
307  DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

there attacked Bahrain. Sheikh Ali was killed and his forces defeated (see
Saldanha, Memorial of Qatar, Vol. 4, Ann. II.7, pp. 39-40). As soon as
the British Political Resident, Lieutenant Colonel Pelly, learned of these
new treaty violations of the maritime peace, he proposed to the Govern-
ment of India a blockade of Bahrain until Sheikh Mohamed surrendered.
This was implemented in November 1869 and Sheikh Mohamed was
taken prisoner. Subsequently, the British invited Sheikh Issa to assume
control of government on Bahrain Island. The protests by Persia and the
Porte were rejected by Great Britain. This British intervention in Bahrain
Island had no effect whatsoever on Chief Al-Thani’s rule over Qatar, a
further confirmation of the recognition by Britain of Qatar and Bahrain
as two distinct political and territorial entities.

135. The Treaty signed in 1916 between the British Government and
the Ruler of Qatar confirmed the territorial conclusions consequential on
the two main Agreements of 1868 as well as the previous 1861 Conven-
tion concluded between Great Britain and Bahrain.

3. The 1868 undertaking of the Qatari tribal chiefs on payment of
“tribute” (zakat) to the Wahhabi Amir

136. Following the conclusion of the 1868 Agreements referred to
above, and through the mediation of the British Political Resident Lieu-
tenant Colonel Pelly, the tribal chiefs residing in Qatari agreed to pay
Sheikh Ali bin Khalifah, the new Chief of Bahrain, the annual sum pre-
viously paid by them to the Chief of Bahrain (Memorial of Bahrain,
Vol. If, Ann. 13, p. 159). The chiefs of the Qatari tribes were to pay the
total sum to Mohamed bin Thani of Doha and the latter to the British
Political Resident, who would deliver it to the Agent of the Chief of Bah-
rain at Bushire. In the current proceedings, Bahrain has invoked this
ancillary undertaking as confirmation of its authority over the peninsula
of Qatar. In this connection, it should be recalled that the Bahraini and
Qatari tribes were supposed to pay the Wahhabi Amir a tribute since
becoming a powerful presence in the area from the beginning of the nine-
teenth century, It is obvious that Pelly did not intend to prevent the pay-
ment of the tribute to the Wahhabi Amir, notwithstanding the recogni-
tion of Qatar by the British as a political entity separate from Bahrain by
the Agreement of 12 September. This is why Lieutenant Colonel Pelly
mediated the following day to secure the said undertaking of the chiefs of
the Qatari tribes on the payment of the zakat and the arrangements for
it.

137. However, for the British this undertaking did not involve any
question of the recognition of Bahraini sovereignty over Qatar or, for
that matter, of the Wahhabi Amir’s sovereignty over either Bahrain or
Qatar. This issue arose upon the arrival of the Ottomans in Qatar in
1871, three years after the 1868 Agreements. Ibn Saud, the Wahhabi

271
308 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

Amir, demanded payment from the Ottomans, who in turn addressed an
inquiry about it to the British.

138. Lieutenant Colonel Pelly, referring to the events of 1867 and
1868, informed the Government of Bombay, in a letter dated 12 Septem-
ber 1871, that at the time:

“The Government, as Arbitrators of the Maritime Peace, inter-
vened; and in settling affairs, arranged that, in view fo preventing
collision between Guttur and Bahrain, and in view to further preclud-
ing the possibility of future uncertainty as to whether the annual
tribute falling on Guttur had or had not been duly paid — such Trib-
ute should be paid through the Residency”:

and he added

“in the present year, however, and having regard to the distracted
condition of Guttur consequent on the Turkish Invasion of the Arab
Coast, | refrained from demanding the Tribute”

and that

“[hjad I demanded and received it — it would have been handed
over by this Residency to the Chief of Bahrain who would have
transmitted it as a portion of the Tribute which he pays to whom-
ever he may acknowledge as Imam of the Wahabees . . .” (Counter-
Memorial of Qatar, Vol. 3. Ann. III.8, p. 59; emphasis added.)

139. Ina further report of 28 October 1871 from the Political Depart-
ment to Aitchison, Secretary of the Government of India, Foreign Affairs,
it was stated:

“it is shown that the arrangement as to the tribute payable by Gut-
tur to Bahrain is to be considered not to affect the independence of
Guttur in relation to Bahrain but is to be considered a fixed contri-
bution by Guttur and Bahrain combined in view to securing their
frontiers from the Naim and the Wahabee Tribes more particularly
during the Pearl diving season” (Counter-Memorial of Qatar, Vol. 3,
Ann. HE9, p. 65).

140. It is interesting to note that the issue of the tribute was revived by
the Ruler of Bahrain during the British negotiations with the Ottomans
of the 1913 Anglo-Ottoman Convention, but not the issue of sovereignty
over the Hawar Islands! On 13 July 1913, the Government of India gave
the following instructions to the British Political Resident in the Gulf:

“you report that the Shaikh of Bahrain is contemplating the possi-
bility of reviving his claim to levy tribute on the Shaikhs of El Katar.

2. This claim which was previously only exercised for two years
and has not been enforced since 1870, in view of article 10 of the
draft Anglo-Turkish Convention and in particular of the following

272
309 = DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

sentence: — “Le Gouvernement de sa Majesté Britannique déclare
qu’il ne permettra pas au cheick de Bahreïn de s’immiscer dans les
affaires intérieures d'El Katr’, is one which is clearly inadmissible.

3. I am to request therefore that you will firmly resist any such
interference should it be attempted.” (Counter-Memorial of Qatar,
Vol. 3, Ann. IIL.20, p. 111.)

4. Arrival in Qatar of the Ottomans in 1871 and related conduct of
Great Britain and Bahrain

141. In 1871, three years after Pelly’s 1868 Agreements, the Sublime
Porte sent a military expedition to Hasa and the Nejd to restore peace
and order in the region, in view of the conflict which had broken out
between Abdullah and Saud after the death of their father, the Wahhabi
Amir Faisal bin Turki. This internal conflict in a way affected the ques-
tion of the recognition of the suzerainty of the Ottoman Sultan in Central
Arabia. This second expedition by the Porte to Hasa and the Nejd — the
first was undertaken some decades before by the Egyptians against Wah-
habi power (see above) — was the origin of the arrival of the Ottomans
in Qatar.

142. In effect, in July 1871, the Sheikh who had been appointed Otto-
man kaimakam of Kuwait sailed to Qatar to meet Mohamed bin Thani
and his son Jassim. He offered them the protection of the Ottoman
Empire, handing over some Ottoman flags. Thereafter, in January 1872,
a detachment of Ottoman regular troops arrived to install a garrison in
Bida at the invitation of Mohamed bin Thani of Qatar. The troops were
replaced in 1873 by gendarmes. On the immediate effect of those events,
Lorimer commented as follows:

“Except in the internal affairs of Qatar, especially the administra-
tion of the chief town and its immediate environs, little or no change
was produced by the presence of a Turkish post at Doha; tribal rela-
tions generally continued on the same footing as formerly, and the
Al-Thani Shaikhs of Doha were still the principal factor in politics.”
(Memorial of Qatar, Vol. 3, Ann. ILS, p. 210.)

*

143. It is interesting to note the diplomatic conduct of Great Britain in
relation to these events. Once the British had learnt of the Ottoman expe-
dition to Hasa and the Nejd, their concern seems to have been to estab-
lish that the Ottomans would assert no claims over the Bahrain islands
and the Trucial Sheikhdoms. In response to a request for clarification
made to the Ottoman Government through the British Ambassador in
Constantinople shortly before the Kaimakam of Kuwait visited Qatar, it
was reported on May 1871, as commented by Saldanha, that: “The Otto-

273
310 = DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

man Porte explicitly denies all intentions of extending supremacy over
Bahrain, Muskat, to the independent tribes of Southern Arabia, and con-
templates no attack against them.” (Memorial of Qatar, Vol. 4, Ann. H.7,
p. 48.)

144. A further Ottoman assurance was given that the officer com-
manding the expedition had instructions “on no account to turn his eyes
on Bahrain” (ibid., p. 70). Subsequently, having been asked by the British
whether the Ottoman arrival at Doha had been authorized by the Otto-
man Government, the Vali of Baghdad “claimed that Qatar was not cov-
ered by a previous Turkish assurance that there should be no interference
with Bahrain” (see Lorimer, Memorial of Qatar, Vol. 3, Ann. IL,
p. 210).

145. Thus, as reflected in these exchanges, in 1871 both the Ottoman
Empire and Great Britain had a de facto understanding. The British did
nothing to hinder control of Qatar by the Ottomans once they obtained
the assurances referred to above, and while peace at sea was not dis-
turbed. Although the Ottoman Empire formally also claimed the Bahrain
islands as part of its dominions, this Ottoman claim was to remain nomi-
nal during the whole period of the Ottoman presence in Qatar. It must
also be noted that the Ottoman assurances to the British were not accom-
panied by similar assurances concerning Zubarah, the Hawar Islands,
Janan Island or any other mainland territory and/or its adjoining islands
and waters.

146. This confirms that, in 1871, for Great Britain: (1) “Bahrain” was
the Bahrain islands and “Qatar” the peninsula of Qatar, as previously
recognized by the 1868 Agreements; and (2) that “Bahrain” and “Qatar”
were two distinct political/territorial entities in the area. Qatar’s general
thesis in the current proceedings is therefore fully confirmed by British
diplomatic conduct vis-a-vis the arrival of the Ottomans in Qatar in 1871.
The clear understanding between Great Britain and the Ottoman Empire
on what “Bahrain” and “Qatar” were in that year was indeed to become
a factor of the greatest importance in the consolidation of Qatar’s origi-
nal title to territory.

147. It is also worthwhile noting that, contrary to Bahrain’s general
thesis concerning the alleged effective and continuous authority of its
Rulers over the peninsula of Qatar up to the 1930s, Bahrain itself
remained an alien third party in so far as the arrival of the Ottomans in
Qatar in 1871 and the British/Ottoman understanding relating thereto
was concerned. The case file does not contain any protest by the Ruler of

274
311 = DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

Bahrain concerning such an event, nor any representation by Great
Britain to the Ottomans on behalf of Bahrain because of the alleged Al-
Khalifah Rulers’ authority in Qatar. This can only mean that at that time
no part of the Qatar peninsula and/or its adjoining islands was consid-
ered by any of the interested parties as forming part of the territories or
dependencies of the Al-Khalifah Rulers of Bahrain. In this respect, it
should be recalled that in 1871 there was no exclusive agreement between
Bahrain and Great Britain. It was only in 1880 (Memorial of Qatar,
Vol. 5, Ann. 11.36, p. 119) and 1892 (ibid., Vol. 5, Ann. 11.37, p. 123) that
exclusive Anglo-Bahraini agreements were concluded.

*

148. The acquiescence of Bahrain in 1871 to the territorial situation
resulting from the 1867 Bahrain/Qatar war and the subsequent 1868
Agreements is, therefore, confirmed. The protection granted by Great
Britain to Bahrain against a possible Ottoman threat was, as in the past,
to a “Bahrain” territorially defined as the compact group of islands form-
ing the archipelago geographically known as “the Bahrain islands”. This
was the Bahrain recognized by Great Britain and the Ottoman Empire in
1871, as well as by the Bahrain Ruler himself.

S. Qatar as a kaza of the Ottoman Empire and the appointment of the
Al-Thani Chief of Qatar as kaimakam

149. The Ottoman presence in Qatar would last until 1915, 1.e., about
44 years. Under the Ottoman administrative system, the viluyets or prov-
inces were governed by a vali. Basrah was one of the vilayets of the Otto-
man Empire. It comprised four sanjaks or sub-provinces: Basrah, Munte-
fik, Ammara and Hasa (or Nejd). Each sunjak was governed by a
mutassarif. The sanjaks were divided into districts or Aazas under the
administration of a local governor or kaimakam. Normally, the residence
of the kaimakam was in the main town of the kaza, named kasaba. The
kaza were in turn divided into sub-districts or nalives each of which
might comprise several towns or villages (keys).

150. Qatar was a kuza of the sanjuk of Hasa (or Nejd) of the vilayer of
Basrah. The town of Doha or Al-Bida was the kasabu or residence of the
kaimakam of Qatar. The kaza of Qatar included the nahiyesi or sub-dis-
tricts of Zubarah and Odeid. In other words, the whole of the peninsula
of Qatar formed an administrative unit within the Ottoman Empire. This
is confirmed by some expert reports (see Reply of Qatar, Vol. 2,
Ann. 11.75, p. 531) and maps before the Court. such as the Ottoman map

275
312  DELIMITATION AND QUESTIONS (DISS, OP. TORRES BERNARDEZ)

of the “Vilayet of Basrah” of the end of the nineteenth century, repro-
duced as Map No. 35 in the Map Atlas submitted with its Reply by
Qatar. This map also confirms that the Ottomans defined Bahrain (nomi-
nally also claimed by them, but under the protection of Great Britain) as
the compact group of islands forming the archipelago of Bahrain proper.
The extent of the kaza of Qatar and the location of its kasaba, namely
the town of Doha, are shown very clearly on the Ottoman map repro-
duced as Map No. 15 in the Map Atlas of the Reply of Qatar (see Map
No. 2 of this opinion, p. 448, below).

151. Contrary to Bahrain’s thesis during the proceedings, for the Otto-
mans the kaza of Qatar was not the Doha or Al-Bida area and its vicinity
but the whole of the peninsula including Zubarah, named in Map No. 15,
and its adjoining islands as the Hawars. Bahrain’s thesis confuses the
extent of the kazu of Qatar with the extent of the area of the capital or
kasaba of the kaza of Qatar. The said extent of the kaza of Qatar is,
furthermore, confirmed by Ottoman documents before the Court. A
report on Arabia of about 1895 to the Great Vizir by Kamil Pasha states
that: “The place called Qatar, on the coast at a distance of one hundred
miles from the Ojeir land station, is a tongue projecting into the sea
between Oman and Bahrain Island.” (Reply of Qatar, Vol. 2, Ann. IL.45,
p. 255.) Moreover, the report expressly states that: “The administrative
centre of this kazu is the kasaba Al-Bida” (ibid.); and that the kasaba
Al-Bida “has eleven villages which are on the coast” (ibid. ).

152. The villages of the Aasabha of Al-Bida were not therefore the only
villages of the kaza of Qatar which of course included the other villages
in the peninsula, such as Zubarah. Ottoman documents submitted by
Bahrain also confirm the above conclusions (see Counter-Memorial of
Bahrain, Vol. 2, Anns. 25 (5) and 35 (6), pp. 73 and 113). The latter
document states: “The districts of Zubare and Udeyd are extensions of
the Katar subdivision of the province of Nejid and occupy important
positions.”

153. In 1876, the Ottomans appointed the Al-Thani Chief of Qatar as
kaimakam or governor of the kaza of Qatar. Thus, during the Ottoman
period (1871-1915), the Al-Thani were at the head of the Ottoman
administration in Qatar, while continuing to be the Chiefs of Qatar as
before the arrival of the Ottomans. It was a period of the greatest signifi-
cance for the consolidation of the title of the Al-Thani Chiefs to the ter-
ritory of Qatar. There are two main reasons for this. First, because
although the Ottomans were formally in control of the whole peninsula,
it was the Ruler of Qatar, Sheikh Jassim, who wielded power in the field,
namely in the territory of the kaza of Qatar, and this facilitated the devel-
opment of his own authority over the tribes living in the peninsula and
the effective exercise of that authority over them. Secondly, because
Ottoman authority over the whole of the Qatar peninsula combined with
the exercise of power by Sheikh Jassim in the field, and aided by general

276
313 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

British policy, precluded any presence of, or exercise of authority by, the
Al-Khalifah Rulers of Bahrain in any part of the kaza of Qatar from
1871 to 1915.

154. During the written phase and the first round of the oral phase,
Bahrain in a variety of contexts invoked the alleged Al-Khalifah Rulers’
authority and control as the basis of its title to Zubarah and the claimed
islands, implying effective possession of territory. However, Bahrain failed
to explain to the Court how it was possible that alleged authority and
control could have been exercised by the Al-Khalifah Rulers on the
peninsula and adjoining islands during the 44 years of Ottoman presence
in Qatar, namely during the period of the historical development and
consolidation of the Al-Thani Rulers’ title over the whole of Qatar. The
historical fact is that during the Ottoman period the Al-Khalifah Rulers
of Bahrain had no effective and peaceful possession of any territory in
the Qatar peninsula and its adjoining islands at any time, even if they
occasionally tried to obtain from the British (not from the Ottomans or
from the Chief of Qatar) formal recognition of certain alleged ill-defined
rights in Zubarah by invoking their former settlement there and their
relations with a branch of the Naim tribe.

155. As to the Hawar Islands, the Al-Khalifah Rulers remained com-
pletely silent about them during the Ottoman period, including in their
relations with the British. For example, not a single démarche, attempt or
protest by the Al-Khalifah relating to the Hawar Islands is recorded in
any documents of the Ottoman period. Although the Dowasir were
settled on the main Bahrain Island with effect from 1845, the arguments
based on the granting of permission to the Dowasir to reside in the
Hawars and the argument that the Hawar Islanders were Bahrainis were
nevertheless inexistent during the whole of the Ottoman period of Qatar.
The same applies to the argument based on Bahrain’s alleged sovereign
rights in the waters and on maritime features between the Qatar penin-
sula and the Bahrain islands.

156. The fact of this, as well as previous silences, probably explains
that during the oral reply the order of priority of Bahrain’s arguments
shifted from the thesis of an original title, supplemented by the alleged
exercise by the Al-Khalifah of authority and control, to the opposite,
namely to an alleged uti possidetis juris title! This shift amounts to an
admission by Bahrain of the weakness of its original general thesis on the
claimed Qatari territories in general and of its res judicata argument with
respect to the Hawar Islands.

157. In any case, the Ottoman period of Qatar proves beyond any
reasonable doubt the absence of a continuous exercise of State authority

277
314 DELIMITATION AND QUESTIONS (DISS, OP. TORRES BERNARDEZ)

by Bahrain in the Qatar peninsula and the adjoining islands, namely of
one of the essential elements required by international law for an alleged
authority to become a possible source of title to territory. There is no
evidence of corpus possessionis of the Al-Khalifah Rulers in any part of
the Qatar peninsula and/or any of its adjoining islands. Moreover, the
only manifestation of animus is their ill-defined rights in Zubarah claimed
in 1873 and rejected by the British.

6. Conduct of Great Britain vis-à-vis the Al-Thani Chief of Qatar
during the Ottoman period

158. During the Ottoman period, British relations with Qatar were
marked by a desire to continue to enforce the maritime peace against acts
of piracy stemming from Qatari ports and to protect the local Indian
traders from harassment. At the same time, the British recognized that
the Ottomans had de facto control of the peninsula and were prepared to
acknowledge this control. The 1882 instructions issued by the British
Government in reply to a clarification sought by the Government of
India are a good illustration of this policy. According to these instruc-
tions, although the Sheikh of Qatar had accepted the position of Otto-
man dependent on land, he should be encouraged to maintain close and
direct relations with the officers of the Government of India and to defer
to them in all matters affecting the peace at sea (see Lorimer, Memorial
of Qatar, Voi. 3, Ann. II.5, p. 217).

159. When in 1889 the Ottomans reinforced their troops in Qatar, the
British Ambassador at Constantinople was instructed to remind the
Ottoman Government that the British Government could not view with
indifference any attempt on the part of the Turkish authorities at inter-
ference or aggression in Oman (today the United Arab Emirates! see
Saldanha, Memorial of Qatar, Vol. 4, Ann. ILS8, pp. 221-222). But
nothing was said about Qatar itself or its Al-Thani Ruler. The events
of March 1895 relating to the Al-bin-Ali tribe are also very revealing
of British conduct. The tribe fell into dispute with the Ruler of Bahrain
and returned to Qatar to settle close to Zubarah with the support of the
Ruler of Qatar Jassim bin Thani (further proof that Zubarah was not
under the authority and control of the Al-Khalifah Rulers of Bahrain).

160. The Ruler of Bahrain complained to the British Political Resident
about the threat to Bahrain that he alleged was caused by this settlement.
The Political Resident warned Sheikh Jassim that Great Britain could
not accept this. The Ottomans then sent soldiers into the region. But the
British — concerned to ensure the security of Bahrain — sent a warship

278
315 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

and destroyed some forty-four boats apparently assembled by the Otto-
mans and Sheikh Jassim to attack Bahrain. Thereafter, Sheikh Jassim
accepted the British conditions, including the removal of the Al-bin-Ali.
The Ottomans protested, but the British replied that the measures were
necessary for the defence of Bahrain, which was under their protection.

161. Thus, British conduct during the Ottoman period remained the
same as in 1868 and 1871. Qatar was the domain of the Al-Thani Ruler
of Qatar, but the latter should not alter the peace at sea or help the Otto-
mans in a way that could be represented as a threat in the west to the
Bahrain islands or in the east to Oman, Bahrain and Oman both being
under the political protection of Great Britain. On the other hand, Great
Britain did not interfere at all in the consolidation of the title of the Al-
Thani Rulers to territory through further development of their effective
control over the tribes and territories of Qatar.

162. Lastly, in view of the Bahraini argument based on uti possidetis
juris, it should be noted that during the Ottoman period (1871-1915),
Qatar did not sign any exclusive agreement or any other kind of treaty
with Great Britain, as did Bahrain in 1880 and 1892 and other Sheikh-
doms in the Gulf in 1892. Indeed, in 1891, Sheikh Jassim of Qatar sought
from the British a treaty on the same terms as the Trucial Chiefs (not on
the same terms as the Bahrain Rulers), but the British rejected the pro-
posal on the ground that the Sultan would not agree and nothing would
be gained by concluding one (Memorial of Qatar, Vol. 5, Ann. IT.8,
p. 121).

7. Development of the effective authority of the Al-Thani Chief of
Qatar over Qatari tribes and territory during the Ottoman period

163. The presence of the Ottomans in Qatar from 1871 onwards con-
tributed to the consolidation of the Al-Thani Sheikhs as Rulers of the
country to the exclusion of any possible claim on the peninsula by the
Al-Khalifah Rulers of Bahrain. In effect, during the Ottoman period, the
authority of the Al-Thani Ruler of Qatar was progressively extended to
other tribes living in the kaza of Qatar. Thus, far from diminishing Al-
Thani authority, the Ottoman presence helped to develop their effective
authority in the peninsula. In this respect, the appointment in 1876 of
Sheikh Jassim as kaimakam of the kaza of Qatar as a whole, including its
sub-districts of Zubarah and Odeid, and as Ottoman governor of Doha
in 1879, was paramount.

164. This also helped the Ottomans to assert their supremacy over the
whole peninsula, their physical presence in Qatar being rather limited
during this period. The Ottomans were thus able, via the authority exer-
cised in the field by Sheikh Jassim of Qatar, their kaimakam, to claim
jurisdiction over all the areas of Qatar. The Ottoman conduct confirmed

279
316 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

the usefulness for them of the development of Sheikh Jassim’s authority
in the field. Thus when he resigned as kaimakam in 1892. his resignation
was not accepted by the Ottomans. In 1893, the Vali of Basrah led an
army against Sheikh Jassim for alleged acts of insubordination and
a battle took place to the west of Doha. Thereafter, Sheikh Jassim resigned
his position as kaimakam. But the Ottomans left the administration of
the kaza of Qatar in the hands of Ahmed, brother of Sheikh Jassim. In
other words, the relation between the Ottomans and the Al-Thani family
was advantageous for both parties.

165. At times, the British purported to deny Ottoman jurisdiction over
the whole of Qatar (as distinct from the jurisdiction of the Ruler of
Qatar), but they never asserted their own jurisdiction over any part of
Qatar or endorsed Bahrain’s claims to Zubarah. In fact, Great Britain
tacitly acknowledged the Ottoman presence in Qatar and during the
Ottoman period never questioned the authority of the Al-Thani Rulers of
Qatar over the whole of Qatar.

166. This British attitude is well documented in paragraphs 2.31 et
seg. of the Counter-Memorial of Qatar and corresponding annexes.
There is no point in going into all the details here. The following should
suffice: (1) the letter of 28 August 1873 from Colonel Ross, the British
Political Resident (Counter-Memorial of Qatar, Vol. 2, Ann. I1.3, p. 11,
and a subsequent letter from Colonel Ross in Memorial of Bahrain,
Vol. 2, Ann. 20, p. 174); (2) the memorandum of 22 May 1879 of the
Government of India on Ottoman jurisdiction along the Arabian coast of
the Gulf, in which reference was made to a note of 28 July 1871 from the
Foreign Secretary, Mr. Aitchison (Counter-Memorial of Qatar, Vol. 2,
Ann. II.1, p. 1); and (3) the letter from the India Office of 17 September
1879, which made a reference to a previous conclusion by Colonel Ross
(ibid., Vol. 2, Ann. IL.8, p. 35, and Vol. 2, Ann. II.7, p. 27).

167. Besides the Ottoman presence, the British also recognized the
authority of Sheikh Jassim, holding him responsible for maintaining
order in Qatar and preventing piracy from Qatari ports. It is true that, on
one occasion, when requested by the British to keep order along the
whole coastline of Qatar, Sheikh Jassim disclaimed this responsibility.
The Parties argued about this event (Memorial of Bahrain, Vol. 1, p. 59,
para. 133), also referred to at the hearings by counsel for Bahrain. Qatar,
quoting Zahlan, suggested in its Counter-Memorial that the disclaimer
was merely a part of Sheikh Jassim’s policy of playing the Powers off
against each other (Counter-Memorial of Qatar, Vol. 1, pp. 26-27,
para. 2.34; for Zahlan, see ibid., Vol. 2, Ann. 11.82, pp. 462-463).

168. In any case, the standards of international law do not require that
a country or the ruler of a country, particularly in the circumstances then
prevailing in Qatar, should assume responsibility for all that happens or

280
317 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

originates in the territory concerned. The rules of customary interna-
tional responsibility relating to wrongful acts are not framed in terms of
objective responsibility. What is significant, however, in the present con-
text is the fact that it was not the Al-Khalifah Ruler of Bahrain whom
the British requested to keep order along the coasts of Qatar, but the Al-
Thani Ruler of Qatar. Bahrain completely missed the only legal relevant
point in this episode.

169. In this section, we refer to the development of Sheikh Jassim’s
authority over the whole peninsula of Qatar in general, without prejudice
of course to specific questions, places or tribes. In this respect, enhance-
ment of the status and position of Sheikh Jassim and the general devel-
opment of his effective authority is a historical fact pregnant with politi-
cal and legal consequences. In politics, as in physical sciences, a vacuum
is short-lived and the Al-Khalifah had been settled in the Bahrain islands
since 1783 and prevented from interfering in Qatar by the Agreements of
1861 and 1868!

170. During the Ottoman period, neither the Ottomans nor the Brit-
ish, nor the Chief of Qatar, acknowledge the existence of any kind of
title, historic or otherwise, of the Al-Khalifah Rulers in the mainland ter-
ritory of Qatar and/or its adjoining islands and waters. The British since
the war of 1867 and the Agreements of 1868 and the Ottomans since their
arrival in Qatar in 1871 understood the situation perfectly well. In fact, in
various different ways, they invited the Al-Thani Ruler to fill the vacuum
by becoming Chief of the whole of Qatar and by facilitating the devel-
opment of his effective authority over Qatari tribes and territory.

171. Some British reports from the period 1902-1904 are particularly
clear as to the development of general Al-Thani authority in the Qatar
peninsula in the last decades of the nineteenth century. According to
these reports: (1) Sheikh Jassim lived in the interior of Katr: (2) it would
have been possible to arrange for Sheikh Ahmed to be interviewed some-
where in Katr, say, at Zobara; (3) if the British Political Resident could
be authorized to enter into an agreement with the Chief of Katar whereby
his independence was recognized, most satisfactory results might be
expected to follow: and (4) Sheikh Jassim was the actual Chief so far as
the Qatari tribes were concerned (see Saldanha, Memorial of Qatar,
Vol. 4, Ann. 11.8, pp. 235-236).

172. However, in the present case, Bahrain began by affirming that the
Al-Khalifah would have had a kind of general authority and control
exercised peacefully and continuously over most of the Qatar peninsula,
quite an accomplishment for a section of a tribe which remained settled
in the Zubarah area for only some 17 years, leaving their settlement there
in 1783. But the logical conclusion of such an argument would be today
to claim title to the entire Qatar peninsula or at least to a considerable
part of it. But here Bahrain’s thesis suddenly becomes more modest.

281
318 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

173. Bahrain admits in effect that the alleged general authority and
control over the Qatar peninsula diminished from the advent of the Otto-
mans in 1871, while the scope of Al-Thani authority and control in the
peninsula increased. But for Bahrain, the acknowledged increase in gen-
eral Al-Thani authority and control in the Qatar peninsula would have
been stopped at the “boundaries of the Zubarah region” as drawn by
Bahrain in the present proceedings. However, this “stopping pheno-
menon” remained unexplained in the Bahraini presentations and is in full
contradiction with the contemporary documentary evidence before the
Court.

174. Bahrain’s above thesis makes a further appearance in relation to
the Hawar Islands and Janan Island because Bahrain also asserts that its
alleged original title to those islands has the same common basis or
source as its original title to Zubarah. In other words, the Al-Khalifahs’
alleged general authority and control over Zubarah would also have
covered the Hawar Islands and Janan Island. This also remained
unexplained in territorial terms because: (1) the Hawar Islands and Janan
Island are not islands adjacent to the coastline of the so-called “Zubarah
region” as defined by Bahrain or within the 3-mile territorial waters then
generated by the said coastline; and (2) there is no territorial continuity by
land between the southern “border” of the so-called “Zubarah region”
and the mainland coast facing the Hawar Islands and Janan Island, but a
considerable piece of mainland territory that Bahrain is not claiming and,
therefore, admits to be mainland territory of Qatar.

175. Thus, the unexplained “stopping phenomenon” of the otherwise
acknowledged increase in the Al-Thani Rulers’ authority and control
since 1871 also applies to the above-mentioned islands. But why did the
Al-Thanis’ authority and control reach the mainland coastline in front of
the adjacent islands and stop there, as in the “border” of the so-called
“Zubarah region”? t consider this matter to be of sufficient importance
to have deserved some explanation from Bahrain, as well as in the Judg-
ment. To invoke personal ties of allegiance or other ties between tribes or
sections or families of tribes in the eighteenth and nineteenth centuries is
not an answer. In the current proceedings, these personal ties cannot be
more than a possible element of proof, among many others, of the
respective title to territory of the Parties in matters at issue before the
Court, but not — as such and in isolation — the source or the basis of a
given State’s title to territory. The question at issue is territorial sover-
eignty, not flawed and ambiguous relations between tribes, of a personal
character.

176. On this latter question, my general conclusion is that, in translat-
ing the concept of “authority” from a tribal society such as the one exist-
ing in the Gulf in the eighteenth and nineteenth centuries into the con-
temporary international law concept of “territorial authority”, one must
take note, before anything else, of the concept of “settlement”. Can the
settlement of the tribes, which begins to establish links with territory, be

282
319  DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

regarded, other circumstances being equal, as the origin in that environ-
ment of a title to territory in international law so much discussed by the
Parties? If we start from this point, what is the situation in the present
case? The situation is that the Al-Thani family which settled in the Doha
area never left that settlement in the peninsula of Qatar, while the Al-
Khalifah family abandoned its settlement in the Zubarah area and vol-
untarily moved to the Bahrain islands in 1783. By this action, the poten-
tial of the Al-Khalifahs’ former Zubarah settlement to generate title to
territory in the peninsula of Qatar and its adjoining islands was first
interrupted and then vanished. In turn, for Bahrain, the Al-Khalifahs’
settlement in the Bahrain islands generated title to the territory of the
islands of that archipelago.

8. Bahrain's unfounded claim of 1873 to Zubarah and its rejection by
the British; Zubarah as a part of the Ottoman kaza of Qatar; the
effective exercise of authority in Zubarah by the Ottomans and by
the Chief of Qatar; recognition of such exercise by the British and
by the Ruler of Bahrain; British concern to ensure the security of
the Bahrain islands; critical date for ascertaining the original title of
Qatar over Zubarah; the 1937 events and the alleged “ties of alle-
glance” of the Naim with Bahrain's Al-Khalifah Rulers; judicial
irrelevance of the related Bahraini argument; British conduct and
Parties’ conduct subsequent to the events of 1937

177. Bahrain’s first claim to Zubarah was presented to the British
in August 1873. The very timing of the claim appears to confirm that it
was an attempt to alter the political and territorial situation achieved by
the 1868 Agreements referred to above. The Zubarah area — part and
parcel of the kaza of Qatar — was then under the authority of the Otto-
mans and of the Al-Thani Chief of Qatar. Zubarah was not therefore in
the effective possession of the Al-Khalifah Ruler of Bahrain and/or of
Great Britain when the claim was made and the Ruler of Bahrain did not
invoke such possession or the former settlement of the Utub, including
the Al-Khalifah section, at Zubarah during the period 1766-1783 (see
above). Rather, the Ruler relied on his alleged authority over a section of
the Naim tribe who would have come to Bahrain for help to avoid
declaring themselves Turkish subjects. Thus, by its very formulation this
first claim already implied an admission by Bahrain that in 1873 Zubarah
was part of the Ottoman kaza of Qatar and, in any case, that the area
was not effectively occupied or controlled by the Al-Khalifah Rulers of
Bahrain.

178. The claim was first raised orally in a conversation between Sheikh
Issa, Ruler of Bahrain, and Major Grant, British First Assistant Resi-
dent. On the advice of Major Grant, the Ruler addressed a communica-
tion to Colonel Ross, British Political Resident in the Gulf on 2 Septem-

283
320 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

ber 1873. As indicated, the Ruler invoked his authority over the Naim
and also made the following additional points: (1) that Zubarah was a
“property” under the Rule of Bahrain; (2) that by reference to the Treaty
(sic!) Zubarah was a “dependency” of this “Island”; and (3) that his
claim to Zubarah had been acknowledged by Colonel Pelly in 1868.
However, Sheikh Issa accepted that the 1868 records of Colonel Pelly
should be examined (Counter-Memorial of Qatar, Vol. 1, p. 152,
para. 5.10). All the ambiguities of Bahrain’s successive claims to Zubarah
were already present in this first attempt, as indicated by the confusion
between “property rights” and “sovereignty rights” and the admission,
on the one hand, that Bahrain was an “Island” and, on the other hand,
the alleged recognition by the British of Zubarah as a part of Bahrain.

179. The British immediately expressed doubts as to the reality of the
rights which the Ruler of Bahrain claimed to have over either Zubarah,
the Naim or the rest of the peninsula of Qatar. After an initial investiga-
tion, Major Grant wrote in August 1873 to Colonel Ross that

“he had no means of forming an opinion on the claim advanced by
the Bahrein Chief to sovereignty over the Naim tribe, but from ver-
bal information he inferred that any power exercised by Bahrein in
later years over that tribe had been merely nominal, if it existed at
all’ (Memorial of Qatar, Vol. 4, Ann. II.8, p. 188; emphasis added).

Thus, all that Major Grant would concede was that if Bahrain had any
authority over that tribe, it was purely nominal.

180. In his reply of 28 August 1873, Colonel Ross, British Political
Resident, instructed Major Grant to advise the Bahrain Chief to remain
aloof from all complications on the mainland with the Turks, Wahhabis,
etc. (further confirmation of the general British conduct referred to above
in this opinion), and underlined the principle of effectiveness and the un-
certain character of Bahrain's rights as follows: “the Bahrein Chief had
not the power, if he wished, to protect tribes residing in Katar and... he
could not expect [the] Government to interfere where the rights were
involved in uncertainty” (ibid.; emphasis added). In contradiction with
Bahrain’s general thesis in the current proceedings, the best politically
informed person in the Gulf, the British Political Resident, stated
in August 1873 that the Chief of Bahrain had no power “to protect tribes
residing in Katar”.

181. It is also important to note that Major Grant investigated further
and obtained a report showing that, apart from the Naim, there were a
number of other tribes living in Zubarah: the Chibisa, the Manamaneh,
the Sadeh and the Hamadal (for the full text of the report see Counter-

284
321 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

Memorial of Qatar, Vol. 3, Ann. III.10, p. 69) and the sketch of the tribes
“at present inhabiting” Zubarah was apparently shown by Major Grant
to the Ruler of Bahrain who pronounced it to be correct (ibid, Vol. 1,
p. 153, para. 5.11). Moreover, on 11 September 1873, Major Grant again
informed Colonel Ross that, after consulting various treaties, he had
arrived at the conclusion “that there is no special mention made in the
treaties either of the Naim or of Zobareh” (ibid., Vol. 3, Ann. III.11,
p. 73; emphasis added).

182. Inquiries having been made, Colonel Pelly advised (see letter of
27 October 1873) that the Chief of Bahrain should adhere to the arrange-
ments already made, and while he was acknowledged to possess certain
rights in regard to pasturage, etc., on the Qatar coast, he should not be
regarded as empowered to put to sea for the purpose of coercing any port
in Qatar — a confirmation of the 1868 Agreements and of the recogni-
tion by the British of Bahrain and Qatar as two distinct political entities.
Therefore Colonel Pelly did not acknowledge either suzerainty or sover-
eign rights of the Chief of Bahrain “on the Qatar coast”.

183. The Government of India, then in charge of British policy in the
Gulf, concurred with the views expressed by Ross and Pelly. From that
time this official British position never changed — except to the extent
that in later years the British stated that the Ruler of Bahrain had no
rights at all in Zubarah — and informed him accordingly in full aware-
ness of the issue, as proved by their careful study of the matter since the
filing of the first Bahraini claim in August 1873.

184. In his article on the “Bahrain Principality”, Lorimer referred to a
1905 Bahrain claim on Zubarah, then “under discussion” as he said, in
the following terms: “Connected with the sovereignty of Bahrain, or pos-
sibly appertaining to the Sheikh as hereditary personal property, are cer-
tain ill-defined rights upon the mainland of Qatar . . .” (Memorial of
Qatar, Vol. 3, Ann. II.3, p. 88). The claim referred to by Lorimer as
under discussion in 1905 was rejected by the British like all those before
and after, because no modification of the relevant British policy is
recorded. In any case, in his principal article on Qatar (1907-1908),
Lorimer listed “Zubarah” as a place on the “west side of Qutar” (ibid.,
Vol. 3, Ann. II.4, p. 123).

*

185. That Ottoman suzerainty extended to the whole of Qatar is an
unquestionable historical fact. For the Ottomans, Zubarah was subject,
as the rest of Qatar, to the Ottoman Empire under the administration of
the Al-Thani Ruler, their kaimakam in Qatar. Zubarah and Odeid were
mere sub-districts of the kaza of Qatar. The Ottomans even planned to
appoint an official or mudir in Zubarah, but the British opposed it out of
concern for Bahrain’s security, this kind of matter frequently being the

285
322  DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

object of subtle diplomatic understandings between Great Britain and the
Porte. Without prejudice to those understandings, the case file contains
at least three clear examples of the direct exercise of State authority by
the Ottomans over the Zubarah area. First in 1873 to subjugate the
Naim, giving rise to the first claim to Zubarah presented by the Ruler of
Bahrain to the British (see above), and again at the time of the events of
1878 and 1895. Each time the Ottomans sent warships.

186. However, to sustain its present claim before the Court Bahrain
tries to show that the Ottomans and the Al-Thani Rulers failed in some
of their attempts to exercise authority over the so-called “Zubarah region”
because of British and Bahraini opposition (Memorial of Bahrain, Vol. 1,
paras. 167 et seg.). The documentation relating to these Bahraini allega-
tions should therefore be considered as well. The first event alleged by
Bahrain took place in 1874. In that year, Nasir bin Mubarak — the chief
of a rival branch of the family of the Rulers of Bahrain who fled to the
mainland to place himself under the protection of the Turks — and the
Beni Hajir — a Bedouin tribe — threatened to attack Bahrain from the
coast of Qatar, but were dissuaded by the presence of British warships
and also by orders of the Chief of Qatar, Sheikh Mohamed bin Thani
(Memorial of Qatar, Vol. 4, Ann. II.7, pp. 59-60). But at the end of the
year, the Ruler of Bahrain, afraid that Nasir bin Mubarak would attack
the Naim of Zubarah, requested authorization from the British to be
allowed to help them.

187. Initially, the British Political Resident allowed the Sheikh of Bah-
rain to dispatch reinforcements “as a purely defensive measure” (Memo-
rial of Bahrain, Vol. 2, Ann. 70, p. 293). But, the Government of India
disapproved of the Resident's action in the clearest possible terms. The
Chief of Bahrain should not have been encouraged to despatch troops to
the mainland for the reinforcement of the Naim, at the same time con-
firming that: “The Chief of Bahrain had no possessions on the mainland
of Katar, and... his rights there were of a very uncertain character .. .”
(Memorial of Qatar, Vol. 4, Ann. ILS, p. 192). As recorded in other con-
temporary documents, “not to interfere with the mainland” was the /eir-
motiy that the British constantly repeated to the Ruler of Bahrain.

188. The second example concerns a serious act of piracy accompa-
nied by the murder of some persons in September /878 by inhabitants of
Zubarah. Colonel Ross was directed by the Government of India to
demand of the Turkish authorities that they punish those at fault and
offered British naval assistance for that purpose. Meanwhile, the Qataris
who had also suffered from raids and acts of piracy by Naims from
Zubarah, laid siege to the Murair fort (near the ruins of Zubarah) under
the leadership of the Chief of Qatar, Jassim bin Thani, and Nasir bin
Mubarak, the Al-Khalifah dissident living in Qatar. When Colonel Ross

286
323 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

learned of the siege he offered not the slightest opposition, despite the
Ruler of Bahrain’s renewed request for intervention. The Turks sent a
gunboat to prevent the Qataris from Zubarah from attacking Bahrain
and then negotiated the surrender of the Naim besieged in the Murair
fort. Most of the surrendered Naim were transferred to Doha.

189. The events of 1878 confirm the integration of Zubarah with the
rest of the peninsula. The standard conditions for title to territory were
fulfilled. First, the intention to act in the capacity of sovereign authority
and the effective exercise of such authority (Legal Status of Eastern
Greenland, P.C.LJ., Series AIB, No. 53, pp. 45-46) are present in the
siege of Zubarah by Sheikh Jassim, Chief of Qatar, and the surrender of
its occupants, i.e., the Naim. Second, the interested parties, i.e., both the
British and the Ruler of Bahrain, accepted without any reservation
regarding sovereignty or other rights, that Zubarah was an area forming
part of the territory of the Ottoman kaza of Qatar and of the Chief of
Qatar. Almost 80 years later, in 1957, the British Political Resident in
Bahrain wrote concerning this event: “at this point the sovereignty over
Zubarah appears to have passed unquestionably into the hands of the
Ruler of Qatar” (Memorial of Qatar, Vol. 8, Ann. HL.283, p. 403).

*

190. Both the British and the Ruler of Bahrain considered at that time
that the best solution for ensuring the security of Bahrain was for the
Turks to occupy Zubarah permanently (Memorial of Qatar, Vol. 3,
Ann. ILS, pp. 224-225; Vol. 4, Ann. IL&, p. 199; Counter-Memorial of
Qatar, Vol. 1, para. 5.17 (2); Reply of Qatar, Vol. 1, para. 6.8 (c)). After
1878, the Turks did not maintain a military presence at Zubarah and the
British opposed the appointment of Ottoman officials there. But this in
no way altered the fact that Sheikh Jassim Al-Thani of Qatar effectively
exercised his authority at Zubarah in 1878, that Bahrain itself accepted
the Turkish presence there without reservations of rights and that Ar-
ticle 11 of the Anglo-Ottoman Convention of 1913, confirmed by that of
1914, stipulates that “the peninsula will be governed as in the past by
shaykh Jasim-bin-Sami and his successors” (see below: emphasis added).
In speaking of the “peninsula” as a whole, the British confirmed that
their opposition to the Turkish presence in Zubarah did not entail
recognition of the rights claimed by Bahrain or derogation from the
title to the Zubarah area of the Ruler of Qatar and his successors.

%

191. The altered British policy, from 1888-1889 onwards, of opposing
any further presence of the Turks in Zubarah, or any settlement at Zuba-
rah, was exclusively dictated by considerations relating to the safety of

287
324 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

Bahrain and security at sea. For example, Colonel Ross considered that
to instigate the dissident Nasir-bin-Mubarak, together with his followers
from the Beni Hajir tribe, to settle at Zubarah, was dangerous for Bah-
rain. As he put it:

“There can be no doubt that if this measure were carried out it
would constitute a menace and standing danger to Bahrain, and the
objection raised by the Chief of Bahrain is, assuming his information
correct, reasonable.” (Memorial of Bahrain, Vol. 2, Ann. 41, p. 228.)

If the installation of an unfriendly settlement at Zubarah was a menace
and standing danger to Bahrain, it is obvious that “Zubarah” was not
“Bahrain”, as it is likewise obvious that the Ruler of Bahrain was not at
Zubarah exercising the authority and control claimed by Bahrain in the
current proceedings.

192. In 1890-1891, new rumours of Ottoman plans to rebuild Zubarah
prompted a British diplomatic intervention with the Porte (Memorial of
Bahrain, Vol. 2, Ann. 70, p. 325) and the Ottomans again abandoned
implementation of the plans. The British once more declined to accept a
Turkish military presence at Zubarah, but they did not deny the author-
ity of the Al-Thani Ruler of Qatar in the area called the ‘*Zubarah
region”. Lorimer’s observations, for example, do not suggest that this
episode involved any recognition by the British of Bahrain’s sovereignty
over Zubarah (ibid., Vol. 3, Ann. 83, p. 471).

193. British concern for the security of the Bahrain islands and not the
alleged sovereignty of Bahrain over Zubarah also explained the /895
destruction of the Turkish and Qatari vessels in the port of Zubarah by
the British. Once more the British intervened to prevent an attack from
Zubarah. The naval military action was clearly intended to prevent an
invasion of Bahrain from Zubarah (see Colonel Wilson’s report of 13 Sep-
tember 1895 to the Government of India, ibid., Vol. 2, Ann. 62, p. 268;
also his previous reports of May and August 1895).

194. The /903 British opposition to the appointment of an Ottoman
Mudir in Zubarah had the same motives. On this occasion, the British
Political Resident, Colonel Kemball, considered it essential for the secu-
rity of the Bahrain islands that Zubarah should not be militarily occupied
by the Turks and expressed concern at the increased prestige which the
Turks would gain from eventual Turkish occupation of Zubarah (ibid.,
Vol. 2, Ann. 67, p. 281). In this connection, it should be noted that, at the
same time, the British were contemplating a closer relationship with the
Sheikhs of Qatar (ihid., Vol. 3, Ann. 83, p. 483).

288
325 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

195. In the light of the concurring information and evidence in the
case file (see for example, the views of Major Grant, Colonel Kemball
and Prideaux in Memorial of Bahrain, Vol. 2, Ann. 41, p. 228, Vol. 2,
Ann. 67, p. 281, and Vol. 3, Ann. 71, p. 358, respectively, as well as other
documents), it is beyond any reasonable doubt for me that the root of
British concern for Zubarah from 1868-1871 onwards was the security of
the Bahrain islands and the maintenance of peace at sea, although in the
early 1900s a certain concern to diminish the effects of the Ottoman pres-
ence in the peninsula of Qatar for general political reasons also appears,
but it has no connection with the particular local question of relations
between Bahrain and Qatar. The following statement, in a letter to the
Secretary of State for India of 22 May /879, is particularly clear on the
matter:

“It may, also, be necessary to protect the islands of Bahrain by
special arrangements which should provide:

(i) For the maintenance of the territories of the Chief of Bahrain
under the protection of Great Britain.

(ii) For the fulfilment by the Chief of his treaty obligations includ-
ing abstention from all interference with the mainland . . .”
(Memorial of Bahrain, Vol. 2, Ann. 36, p. 211.)

196. That security was also the main concern of the Al-Khalifah
Rulers of Bahrain, as alleged by Qatar in the present proceedings, also
seems correct to me as a general proposition in the light of the geographi-
cal location of Zubarah and the Bahrain islands. After all, the Al-Kha-
lifah knew from their own history that they and other Arab tribes occu-
pied the Bahrain islands by force from Zubarah. Moreover, this is plainly
stated in several documents before the Court, originating with the Chiefs
of Bahrain such as, for example, in a memorandum dated 22 June 1875
addressed on behalf of the Chief of Bahrain to the British Political Resi-
dent in the Gulf:

“in respect to our agreeing to abstain from interference in affairs of
Zobarah and the consequences which will ensue, that we have fre-
quently represented to you that our connection with Zobarah and
the Naeem tribe, whom we have ordered to dwell there, was, for
various reasons, an imperative obligation and necessity, as you are
aware. When we waive this obligation in respect of the quarter, it
behoves us to devise other plans for the protection of Bahrein...
(Memorial of Bahrain, Vol. 2, Ann. 33A. p. 202 fa): emphasis
added.)

The same fear is expressed, in still more precise terms, in the following
passage of a letter of the Chief of Bahrain, dated 12 October 1877, to the
acting British Political Resident, Major Grant:

289
326 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

“the Naim come here on their own account, and when I give them
presents it is necessary for me to do so to prevent them doing mis-
chief, as otherwise I fear that they would stir up strife and ally them-
selves with my enemies, Nasir bin Mobarek and others, and having
united in Zobarah make matters very difficult for me, because the
distance from there is but short” (Memorial of Bahrain, Vol. 2,
Ann. 35, p. 205).

197. Thus, the “propinquity of Zobarah to Bahrein”, to adopt the lan-
guage used in 1877 by Major Grant (ibid., p. 204), was a permanent
source of danger for Bahrain and better than anything else explained the
relationship between the Rulers of Bahrain and some of the Naim living
in the Zubarah area during the relevant period. The Al-Khalifah Rulers
cultivated the friendly Naim with gifts and provisions to keep them in
good humour. From 1868-1871 onwards, the leading political motivation
behind the Al-Khalifah Rulers’ concerns about Zubarah and their rela-
tions with the Naim when living there was “security” and not “sover-
eignty”.

*

198. In the current proceedings, Bahrain’s claim to sovereignty over
the so-called “Zubarah region” is mainly based upon the alleged “ties of
allegiance” of the Naim with the Al-Khalifah Rulers of Bahrain. In that
way, Bahrain tries to fill the gap of the absence of effective possession of
Zubarah by the Al-Khalifah Rulers of Bahrain, following their departure
and settlement in 1783 on Bahrain Island. The Bahraini thesis would thus
seem to be that the Al-Khalifah left for Bahrain Island some 217 years
ago, but the loyal Naim remained behind exercising on their behalf
authority over the area in an effective, continuous and peaceful manner,
until the Ruler of Qatar’s action in 1937 against the section of the Naim
then living at Zubarah, an action characterized by Bahrain as an act of
aggression or of conquest contravening the law of the League of Nations
and the Briand-Kellogg Pact (Memorial of Bahrain, Vol. 1, p. 12, para. 31)!
By this kind of assertion, typical of the Bahraini pleadings and oral argu-
ments, Bahrein has tried to question and alter the time when Qatar's
original title over Zubarah was definitively consolidated and recognized.

199. For Bahrain, the critical date for ascertaining the non-exercise of
effective authority by Bahrain at Zubarah would not therefore be 1783
(departure of the Al-Khalifah from Zubarah), or 1868 (Pelly’s Agree-
ments), or 1871 (arrival of the Ottomans in Qatar), or 1873 (rejection by
the British of the first Bahraini claim to Zubarah), or 1913 (date of the
Anglo-Ottoman Convention), or 1916 (date of the Anglo-Qatari Treaty),
or 1934 (when the British Political Resident in the Gulf reminded the Al-
Thani Ruler that he was Chief of Qatar, of “the whole of Qatar”), but,
precisely, 1937, namely the year of the clandestine Bahraini occupation of

290
327  DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

Jazirat Hawar! Such an implied critical date simply disregards the his-
torical record, including the exercise of acts of authority at Zubarah by
the Ottomans and the Chief of Qatar and the effective possession of the
area by them. It also disregards the former conduct of Great Britain and
the Rulers of Bahrain themselves, as indicated above. Moreover, in 1911
the Ruler of Bahrain requested of the Ruler of Qatar, through the British
Political Agent, permission to rent the site of Zubarah for an annual pay-
ment of 10,000 rupees, an offer flatly refused by the Ruler of Qatar,
Sheikh Jassim. Qatar’s refusal to rent Zubarah to the Ruler of Bahrain,
and the acceptance of this refusal by both Bahrain and the British,
amounts to a further recognition of Zubarah as belonging to Qatar going
back to 1911 (Memorial of Qatar, Vol. 6, Ann. 111.56, p. 266).

200. Certainly, the historical record and evidence before the Court
fully contradicts Bahrain’s assertions of having been the holder of
sovereign title over Zubarah. But how otherwise could a new claim to
sovereignty over Zubarah be formulated in 1987 be justified? The file on
Zubarah’s sovereignty was closed long before 1937 and Bahrain knows
this and has admitted it in the past (only to revert to it in the 1980s).
Matters concerning territorial questions or rights cannot be artificially
maintained by reiterated ill-considered formal claims, because title to ter-
ritory once established and recognized generates rights im rem opposable
erga omnes, including of course against a daring claimant State. The 1937
action of the Ruler of Qatar was the exercise by Qatar of its policing
powers within its territory in order to assert authority over Qatari sub-
jects or residents in Qatar seeking to avoid taxation. It was not an inter-
nationally unlawful use of force, but a use of police powers in foro
domestico, namely a true example of effectivités accepted in international
law as a manifestation or proof of territorial title. What in 1937 contra-
vened the law of the League of Nations and the Briand-Kellogg Pact was
the clandestine occupation of a territory avec maitre, e.g., Jazirat Hawar.
Where appropriate, actions should be characterized according to interna-
tional law.

*k

201. Thus. Bahrain took the Court back to the former “tribal system”
of the Arabian Peninsula without a temporal reference framework and
without regard to the historical process leading to the establishment in
the area of political entities with a permanent territorial base. as recog-

291
328 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

nized by third States. The effects of the “tribal system” and “ties of alle-
giance” between tribes in the second part of the eighteenth century, the
first part of the nineteenth century, the second part of the nineteenth cen-
tury or the twentieth century are not the same. The generality of the
argument, as presented, is already legally self-defeating. It is self-defeat-
ing because, presented in such terms, the argument does not lend itself to
proof. Also, in a court of justice, a mere assertion is not enough without
the corresponding evidence.

202. Furthermore, for me, the alleged but unproven “ties of alle-
giance” with the Naim — as a manifestation of the effectivités of the Al-
Khalifah Rulers of Bahrain at Zubarah — is in the circumstances of the
case both historically incorrect and legally irrelevant for the determina-
tion by the Court of sovereignty over Zubarah, including over the so-
called “Zubarah region”. The alleged “ties of allegiance” did not prevent
the consolidation and recognition of the original title of the Ruler of
Qatar over the whole of the peninsula of Qatar, including the Zubarah
area, long before the 1937 events and such alleged ties are unable by
themselves, even if they were verifiable, to create a derivative title for
Bahrain superior to Qatar’s original title to Zubarah.

#

203. A few considerations of fact and law would suffice to dispose of
Bahrain’s Naim ties of allegiance argument. The history of the Naim as a
Bedouin tribe (bedou) is far from clear in the case file, probably because
the “fluctuating” Naim, as Lorimer described them, fluctuated not only
in the territorial sense, but also in their loyalties to the rulers or sheikhs
of other tribes. In the case file, we see Naims to the east (today the United
Arab Emirates) and to the west (Hasa) of the base of the Qatar penin-
sula, as well as on the eastern side (Doha area) and western side (Zuba-
rah area) of the peninsula and in the Bahrain islands. There were also
Naims living alternately in the Bahrain islands and the Qatar peninsula
according to the season and Naims living among settled tribes or popu-
lations (hadar). From the reports of Major Grant, moreover, the Court
knows that by 1873 there were other tribes, not only the Naim, living in
the Zubarah area and that the Ruler of Bahrain had no power over them.

204. In the historical documentation of the case, we also see Naims
helping the Wahhabis to occupy the Zubarah area and from there threat-
ening Bahrain Island itself; Naims allied with other Bedouin tribes of
Hasa against other Qatari tribes; Naims feared by all and sundry during
the annual pearl fishing season; Naims involved in internal power

292
329 DELIMITATION AND QUESTIONS (DISS. OP, TORRES BERNARDEZ)

struggles between rival Al-Khalifah Sheikhs; Naims on occasion helping
dissidents of the Al-Khalifah family such as bin Mubarak or vice versa;
Naims and other Qatari tribes fighting together, under the leadership of
the Doha headmen, against the Al-Khalifah Ruler of Bahrain during the
war of 1867, which led to the 1868 Pelly Agreements and the recognition
of Qatar and Bahrain as two distinct political entities; Naims engaged in
piracy from the Zubarah area, subjugated by the Ottomans and the Chief
of Qatar; Naims at various times opposing the payment of taxes, etc.

205. The Court also knows, dixit Lorimer, that the Naim were mer-
cenaries and that “their loyalty was very uncertain” (Counter-Memorial
of Qatar, Vol. 1, pp. 160-161, para. 5.19 (1), and pp. 180-181, para. 5.47;
also Reply of Qatar, Vol. 1, pp. 260-261, para. 6.46). In any case, most of
the tribes had a common interest in remaining on good terms with them,
in particular during the pearl fishing season, and in the case of the Al-
Khalifah Rulers, for reasons linked to the security of Bahrain Island
itself. The Naim were well known as a tribe which had fluctuating ties
with other sheikhs and tribes, not to mention with more than one sheikh
or tribe at a time. Even in 1948, 40 years after Lorimer, the British
noted that more than any other Bedouin tribe, the Naim were known
from Bahrain to Oman for changing allegiance whenever it suited them
(Supplemental Documents of Qatar, doc. 16).

206. Moreover, like most of the other tribes, the Naim were divided
into different sections or branches, a fact acknowledged by both Parties
to the present case, and each section or branch could have its own loy-
alties at different times. There were therefore Naims and Naims. More-
over, in so far as the Naim living in the Qatar peninsula are concerned,
their continuous presence at Zubarah is a fact denied by the evidence
before the Court. Bahrain recognized the impossibility of such a task.
Qatar, however, provides some information on this which was summa-
rized in the hearings, as follows: (1) that in 1811 Zubarah was destroyed
and became deserted ; (2) that Naims were expelled from Zubarah in 1878
by the Ottomans and the Al-Thani Chief of Qatar, a fact not contested
by Bahrain; (3) that British reports of 1879-1880 and 1888 described
Zubarah as being uninhabited; (4) that in 1903 a Turkish document
noted that Zubarah was uninhabited; (5) that in 1908 Lorimer made the
general point that the Naim went to Zubarah in winter, but in summer
lived in Bahrain or, in the case of some of them, in Doha; he also says
that at that time there was no branch of the Naim settled in Qatar;
Bahrain does not challenge these observations either; and (6) that in
1934 a British report stated that Zubarah is now a ruin without a single
inhabitant.

207. Bahrain accepts the distinction between the Naim living north-
west of Qatar and those who emigrated to Wakrah in the nineteenth cen-
tury. Furthermore, it appears that among those sometimes living north-

293
330 = DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

west of Qatar only the Al-Jabr, according to Bahrain, paid allegiance to
the Ruler of Bahrain, while the Al-Ramzan branch also living in that
area paid allegiance to the Ruler of Qatar. This admission is important
because it informs the Court that, to the extent that Bahrain bases its
alleged effectivités in the so-called “Zubarah region” upon the invoked
“ties of allegiance” of the Naim with the Al-Khalifah Rulers, this means
“the Al-Jabr section of the Naim” only, to the exclusion of other sections
or families of the same tribe independently of where they lived. In effect,
the Naim of the events of 1937 belong to the Al-Jabr section. Thus, the
Naim tribe argument is already reduced to an “Al-Jarb section argu-
ment”. All the above facts point to the irrelevance of Bahrain’s Naim
argument as evidence of its alleged effectivités at Zubarah from 1783 to
1937. There is nothing better than the facts to show the absurdity of an
argument.

208. As to international law, the jurisprudence of the International
Court of Justice and other international tribunals has laid down certain
legal principles concerning the conditions to be fulfilled by “ties of alle-
giance” of tribes if they are to be taken into consideration in matters
relating to the establishment, consolidation or recognition of an interna-
tional legal title to territory. The first condition is that for the ties of alle-
giance to afford indications of the ruler’s sovereignty they must clearly be
real and have been manifested in acts evidencing the acceptance of the
ruler's political authority (Western Sahara, LC.J. Reports 1975, p. 44,
para. 95).

209. Bahrain has not proved that the Naim tribe has met this first con-
dition. To meet that condition it is an indispensable first step. But in the
present case: (a) the reality of the ties between the Naim and the Rulers
of Bahrain were considered by the British in 1873 to be doubtful and, if
they existed at all, to be purely nominal; and (b) there were various sec-
tions of the Naim tribe living in different areas or places at different
times. Moreover, as already indicated, the Naim tribe formed part of the
coalition of Qatari tribes that went to war against the Ruler of Bahrain
following the 1867 attack on Doha and Wakrah. Then. even in the
DubailSarjah Arbitration, a case in which it was considered that a change
of alliance from one sheikh to another did not necessarily entail a change
of allegiance, the arbitrators recognized that it was so only “provided war
was not waged against the Ruler to whom allegiance was owed” (91 TLR,
p. 637; emphasis added). Thus, in the present case, Bahrain has to show
to the Court the existence of clearly real and manifest acts of the Naim
tribe subsequent to 1868 accepting the political authority of the Al-
Khalifah Ruler of Bahrain.

210. Lastly, Bahrain has also not provided the Court with any
example of the Naim performing acts à titre de souverain at Zubarah on

294
331 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

behalf of the Ruler of Bahrain (case concerning KasikililSedudu Island
{BotswanalNamibia) and Eritreal Yemen Arbitration). Moreover, the
ties of allegiance — as a possible basis of title to territory — must be
recognized as such in the practice of the region concerned and, in the
Persian Gulf, tribes not under a given Ruler’s authority could frequent
his territory, but without thus impairing the title to the territory of the
Ruler concerned.

*

211. During and following the 1937 events, Qatar has continued to
exercise effective authority and control of the so-called “Zubarah region”
in accordance with its original title to the entire Qatar peninsula, just as
before 1937. At no time has it renounced territorial sovereign rights over
the Zubarah area derived from that title. The Agreement of 24 June 1944
between Qatar and Bahrain, brought about by Britain, stipulated the
restoration of friendly relations between the two Rulers and a mutual
undertaking to do nothing that might change the existing situation or
harm each other’s interests (Memorial of Qatar, Vol. 8, Ann. III.240,
p. 183). As a goodwill gesture, Qatar consented to withdraw the guards
from the fort at Zubarah, stationing them just outside. Bahrain protested
at this presence and also that of other Qatari actions (effectivités) car-
ried out at Zubarah, but the British did not ask Qatar to put an end to
those actions. The 1944 Agreement did not in any respect derogate from
Qatar’s sovereignty over Zubarah, or its territorial sovereign rights in the
area. This is also confirmed by the fact that the Agreement did not affect
the oil concession granted by the Ruler of Qatar in 1935.

212. There are also other examples in the 1950s of the exercise of acts
of authority by Qatar at Zubarah such as, for example, in relation with
the granting of authorization to a limited number of Bahrainis to go to
Zubarah. In 1952, Qatar prohibited access to Zubarah, without any
objection on the part of Great Britain. In a new request of 13 June 1957
Bahrain again asked the British to decide upon its rights in Zubarah,
committing itself in advance to abide by their decision. In their formal
reply of 10 August 1957, the British stated that they had never supported
any Bahraini claim to sovereignty over Zubarah and that Qatar was at
liberty to control access to it as it pleased (Memorial of Qatar, Vol. 8,
Ann. III.284, pp. 411-412). Bahrain tried to resurrect its claim in 1961,
but the British maintained the position taken in 1957. It was in full
awareness of the issue that, from 1873 to 1961, the British rejected Bah-
rain’s position on Zubarah because there was an established and recog-
nized international title of Qatar to the Zubarah area, an integral part of
the Qatar peninsula.

213. Lastly, one further and most striking admission by Bahrain of
Qatar’s title to Zubarah, dating from after the Second World War, is the
Bahraini reaction to the British 1947 sea-bed dividing line. That British

295
332 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

line took no account of Bahrain’s claims to Zubarah. No maritime area
off Zubarah was attributed to Bahrain. The coastline of the so-called
“Zubarah region” was not therefore considered to be Bahrain’s coastline
by the British. However, this was accepted at the time by Bahrain. The
Ruler of Bahrain did not protest at this particular aspect of the British
1947 sea-bed dividing line.

*

214. The historical consolidation and general recognition of Qatar’s
original sovereign title to Zubarah and its area is bound up with: (a) the
settlement of the Al-Khalifah on Bahrain Island in 1783; (6) the acknow-
ledgement of Al-Thani authority over Qatar, confirmed by the separate
Agreements signed by the British with Bahrain and Qatar in 1868 follow-
ing the acts of war of 1867; (c) the presence in Qatar of the Ottomans
from 1871 to 1915; (d) the fact that Zubarah was part of the Ottoman
kaza of Qatar, an administrative unit of the Ottoman Empire: fe) the
exercise of authority by the Ottomans and the Al-Thani Chief of Qatar at
Zubarah; (f) general conduct of the British with respect to Zubarah dur-
ing that period and their rejection of Bahrain’s claims in 1873 and there-
after; (g) the various admissions by the Al-Khalifah Rulers of Bahrain,
at different times, of the non-exercise of effective authority at Zubarah;
(A) the Al-Khalifah Rulers’ own characterizations at times of their pre-
vious ill-defined claims to Zubarah as a matter of “private or property
rights” rather than of “sovereignty”: and (i) the recognition by Great
Britain and the Ottoman Empire in the 1913 Anglo-Ottoman Convention
that the “peninsula of Qatar” will be governed as in the past by the Al-
Thani Ruler of Qatar, without any kind of protest or reservation of
rights by the Al-Khalifah Rulers of Bahrain.

215. Thus, long before the event of 1937, sovereignty over Zubarah
appertained to Qatar through the Rulers of Qatar, who were the holders
of an original title to the town and its territory, a title fully consolidated
under international law and generally recognized.

9. Bahrain's late claim on the Hawar Islands und Janan Island: legal
effects of Bahrain's silence during the period of historical consolida-
tion and recognition of Qatar's original title to territory; the 1889
definition by Bent and other definitions of “Bahrain”; Lorimer's
authoritative testimony of 1908 and Prideaux's approval of that testi-
mony; the 1909 Prideaux letters; presumption of international law
concerning islands in the territorial sea of a given State; role of prox-
imity or contiguity in the establishment of title to islands; the 1913
and 1914 Anglo-Ottoman Conventions; the 1915 Anglo-Saudi Treaty;
a 1916 British acknowledgment of the Hawar Islands as part of
Qatar; the 1916 Treaty between Great Britain and Qatar; recogni-

296
333 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

tion, general opinion, and repute and maps evidence; exercise of
authority over the islands by the Ruler of Qatar in the 1920s and
1930s

216. In contradistinction to Zubarah, Bahrain did not claim the Hawar
Islands until 1936. In other words, during the whole period of historical
consolidation and recognition of the original title to the territory of
Qatar (1868-1915), as well as between 1916 and 1936, Bahrain remained
aloof from and silent about the Hawar Islands and Janan Island. No
attempts to take possession by Bahrain and not a single word about its
sovereignty over those islands or about the effective exercise of authority
on or over those islands between 1868 and 1936. Nor were there even any
allegations by Bahrain during all those years of ties with tribes or fisher-
men in the islands. Some 68 years of silence are indeed too long a silence
for a Party that, in the current hearings, presented its submissions on the
Hawar Islands as very much linked to the history of Bahrain as a nation.
The fact is that Bahrain was not in the Hawar Islands before the clan-
destine occupation of 1937 and never claimed in writing before 1936 that
the Hawar Islands and Janan Island were islands under its sovereignty.

217. One of the reasons why the author of this opinion has devoted so
much time to an examination of the historical record of the case before
1868 was precisely to verify whether there was any hint, sign or manifes-
tation by the Rulers of Bahrain at that time of their alleged original title
over the Hawar Islands and Janan Island. I have found nothing to this
effect in the case file. The only relevant publication submitted and dating
from before 1868 which I have found mentioning Bahrain and the Hawar
Islands is Captain G. Brucks’s “Memoir Descriptive of the Navigation of
the Gulf of Persia, 1821-29” (Memorial of Bahrain, Vol. 2, Ann. 7,
p. 101). Bahrain has invoked this publication. But the Brucks Memoir is
of course not a manifestation of Bahraini conduct regarding the Hawar
Islands, as apparently suggested by certain Bahraini arguments.

218. In addition to Brucks’s Memoir, I am of course aware of other
allegations made by Bahrain concerning the Hawar Islands during the
current proceedings and during the 1936-1939 British procedure such as:
the alleged grant of the Hawar Islands to the Dowasir by a qadi of Zuba-
rah, who was allegedly an official of the Al-Khalifah; the alleged Bah-
raini activities or exercise of jurisdiction over the islands, etc. But all this
has been invoked by Bahrain with effect from 1936-1939 backwards, in
other words retroactively. Those allegations were not made by the Rulers
of Bahrain when they concluded the Agreements of 1861 or 1868, nor
during the decades of the Ottoman period of Qatar, nor in connection

297
334 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

with the 1913 and 1914 Anglo-Turkish Conventions or the 1915 Anglo-
Saudi Treaty, nor even at the time of the conclusion of the 1916 Treaty
between Britain and Qatar or at the time of the Qatari oil concession of
1935. In other words, Bahrain’s allegations concerning the Hawar Islands
and Janan Island were not made by the Rulers of Bahrain at the time of
the establishment of Qatar as a distinct political entity and/or during the
process of historical consolidation and recognition of its original title
over the territory. It follows that none of those allegations could ever
have the legal effect of interrupting or modifying the process of historical
consolidation and recognition of the original title over the territory of
Qatar or its scope.

219. The conduct of the Rulers of Bahrain, namely their silence, on
the Hawar Islands and Janan Island for a 68-year period is not the kind
of conduct that an international court or tribunal is entitled to disregard,
in particular when the silence related to islands located in toto or in part
in the territorial sea of another State, Qatar in the present case, and the
silence cannot therefore be explained by presumed possession of the
islands concerned by virtue of the operation of any relevant principle or
norm of international law. Territorial sovereignty also means obligations
and, in the first place, the obligation to maintain and protect it by vigi-
lant conduct towards possible legal or factual inroads by other political
entities or States (see, for example, the /s/and of Palmas case), Why did
Bahrain not comply with these general obligations of vigilance before
1936? Simply because its Rulers did not at the time claim that the islands
belong to them.

220. Between 1868 and 1936 Bahrain did not adopt the conduct
expected of a State which claims, with retroactive effect to 1936, to be the
holder of the original title to the Hawar Islands and Janan Island. Its
conduct at the relevant period was below the standards required in that
respect by international law, bearing in mind the circumstances in the
Gulf and the location of the islands concerned. In any case, the Parties to
the present case are supposed to know that to establish, obtain or have
title and to maintain it are not necessarily the same thing under interna-
tional law. Thus, either Bahrain was not in possession of an original title
to the islands concerned before 1868 or, having been in possession of
such a title, by its silence did not prevent the historical consolidation and
recognition of an original title over the islands in favour of Qatar (qui
tacet consentire videtur) (see, for example, the case concerning the
Temple of Preah Vihear, I.C.J. Reports 1962, p. 6).

221. The Rulers of Bahrain were not in possession — in any effective
or presumed form accepted by international jurisprudence — of the
Hawar Islands or Janan Island during the period of historical consolida-
tion and recognition of Qatar’s title to the entire peninsula and its adjoin-
ing islands. Moreover, they did not manifest any interest in claiming to
be the holders of title to the islands or in laying claim to the islands on

298
335 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

other grounds. When in 1909 Major Prideaux, the British Political Agent,
anxious to contain Ottoman expansion, explained to the Ruler of Bah-
rain his visit to Zakhnuniya and the Jazirat Hawar (see below), the Ruler
of Bahrain did lay claim to Zakhnuniya by letter of 30 March 1909, but
refrained from doing so with respect to Hawar (see Memorial of Qatar,
Vol. 1, p. 177, para. 5.40, and Vol. 6, Ann. HI.52, p. 241).

*

222. The definitions or descriptions of “Bahrain” during the Ottoman
period of Qatar consistently confirm that the Hawar Islands and Janan
Island were not part and parcel of the territory of the Al-Khalifah Rulers
of Bahrain. Bahrain’s contrary contention in the current proceedings is
not supported by the historical record and maps submitted by the Parties.
For example, the article entitled “The Bahrein Islands in the Persian
Gulf” and attached map published by J. T. Bent in 1890 in the Proceed-
ings of the Royal Geographical Society mentioned — as forming the Bah-
rain islands — the main Bahrain Island, Moharek, Sitrah, Nebbi-Saleh,
Sayeh, Khaseifah and Arand and stated that “the sea all around the Bah-
rein is remarkably shallow” (Reply of Qatar, Vol. 4, Ann. 1V.35, p. 211;
see Maps Nos. 1 and 2 of this opinion, p. 448 below).

223. The Military Report on Arabia of 1904 by the General Staff, War
Office, distinguished between “the island of Bahrein, which is ruled by
Sheikh Isa, an independent prince of the Uttubi Arabs, under the protec-
tion of the Indian Government” separated from the mainland by the sea
and “the Katr peninsula to the east of the island of Bahrein . . . ruled by
Sheikh Jassim-ib-Thani, a rich and powerful chief” subject nominally to
the Turks (ibid., Vol. 2, Ann. 37, p. 214). And the publication of the
Admiralty War Staff, Intelligence Division, of May 1916 — entitled A
Handbook of Arabia — defined “the present Sheikhdom of Bahrein as
the compact group of islands (Bahrain, Muharraq, Umm Na’asan, Sitrah
and Nebi Salih, with a number of lesser islets and rocks) in the middle of
the gulf which separates the promontory of El-Qatar and the coast of
Qatif”. It added that “the Sheikhs of Bahrein have had relations of a
political nature with El-Qatar (see p. 328)” (Reply of Qatar, Vol. 4,
Ann. IV.1, p. 4). On page 328, under the heading “Recent History and
Present Politics”, the Handbook explained that:

“Prior to 1868, the Sheikh of Bahrein claimed suzerainty over El-
Qatar, and was represented at Doha by a member of his family. But
in that year, as a result of negotiations conducted by the British
Government, the interest of this Sheikh was limited to the receipt of
tribute, and this ceased on the occupation of Doha by the Turks in
1872.” (/bid., Vol. 2, Ann. ILSS, p. 319.)

224. The above definition of “Bahrain” did not by any means cease to

299
336  DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

be used with the end of the Ottoman period in Qatar. For example, in
1928, Belgrave, the adviser of the Bahrain Government who on 28 April
1936, on behalf of the Al-Khalifah Ruler, signed the first written Bahraini
claim to the Hawar Islands, in an article entitled “Bahrain”, published in
the Journal of the Central Asian Society, defined it as the archipelago
formed by “a group of small islands about seventeen miles off the Arab
coast half-way down the Persian Gulf” (ibid., Vol. 2, Ann. II.81, p. 570).

*

225. The authoritative testimony of Lorimer is, furthermore, self-
explanatory as to the holder of title to the Hawar Islands and Janan Island
during the first decade of the twentieth century. In his leading article on
the “Bahrain Principality”, Lorimer referred to: (1) ill-defined rights
claimed by the Ruler of Bahrain “upon the mainlund of Qatar” (Zuba-
rah). under discussion in 1905: and (2) ”the undisputed insular posses-
sions” of the Ruler of Bahrain, described by him as the archipelago
formed by the Bahrain islands proper. The use by Lorimer of the term
“mainland” excluded from the matters under discussion in 1905 any
island or other maritime features adjoining the peninsula of Qatar.

226. This led to the important initial conclusion that in 1905 Bahrain
was an archipelago, but that this archipelago was limited to the compact
group of islands (in his article on the Bahrain Principality Lorimer also
uses the term “group of islands”) known as “the Bahrain islands” and
not the “archipelagic State” defined by Bahrain in the present case which
includes, inter alia, the Hawar Islands and Janan Island. It should also be
recalled that, in all the evidence before the Court, “the Bahrain islands”
and “the Hawar Islands” are consistently referred to as two different
“physical units”, the first never including the second and vice-versa.
However, Bahrain is pleading its case on title to territory generally, as
well as with respect to the Hawar Islands and Janan Island in particular,
in terms of being in continual possession of a “original title”. Such an
assertion is in full contradiction with Lorimer’s definition of the extent of
“Bahrain Principality” in 1908. Thus, if Bahrain by then had title to the
Hawar Islands and Janan Island as claimed, it cannot be but a “deriva-
tive title” because by 1908 Bahrain and Qatar were already recognized as
two distinct political and territorial entities. As Lorimer’s works were
fully respected and well known among British officials in the Gulf, New
Delhi and London, it is difficult to understand in terms of law how some
of those British officials could conclude in 1936 and 1939 that the Hawar
Islands belonged to the Ruler of Bahrain, as they did, forgetting the his-
torical record, and the Anglo-Turkish Conventions of 1913 and 1914, as
well as other treaties and agreements concluded by Great Britain, and
also British prior conduct, diplomatic correspondence and maps.

300
337 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

227. Moreover, Lorimer did not limit himself to territorially defining
the “Bahrain Principality”. In his leading article on Qatar, he also defined
the boundaries of Qatar as follows: “On the east, north and west Qatar is
surrounded by the sea. The southern boundary is somewhat indetermi-
nate.” (Memorial of Qatar, Vol. 3, Ann. II.4, p. 113.) But, Lorimer did
not stop there. He also described the places and features of the coast of
Qatar distinguishing between the “east side of Qatar” and the “west side
of Qatar” and alphabetically enumerating the chief places, bays, head-
lands, hills, “and islands which form or adjoin the coast” of Qatar on the
east as well as on the west side (ibid., p. 114). On the west coast of Qatar,
in addition to Zubarah, Lorimer listed the following islands and islets:

— Ajirah (Jabalat)

— Anaibar (Jazirat)

— Falitah (Jazirat Abu)

— Hawar (Jazirat)

— Janan (Jazirat) (described as an “islet”)
— Rakan (Jazirat Ras)

— Rubadh (Jazirat) (described as an “islet”)
— Suwad (Jazirat) (ibid., pp. 118-123).

228. The name of each of the islands or islets listed is, furthermore,
accompanied in the article by an indication of its “position” together
with some “remarks”. Regarding the position of Hawar (Jazirat),
Lorimer says: “due west of the point of Ras Aburuk and about 5 miles
from it”. We know today that the distance of 5 miles is a mistake. The
island is much closer to the mainland coast of Qatar, but Lorimer never-
theless had no doubt that the island belonged to the western coast of
Qatar. Under the “remarks” on Hawar (Jazirat), Lorimer gave the fol-
lowing details: (1) that Hawar (Jazirat) was about 10 miles long, north to
south, and roughly parallel to the Qatar coast; and (2) that Hawar (Jazi-
rat) is adjoined on the north by Jazirat Rubadh and on the south by Jazi-
rat Janan, while Jabalat Ajirah and Jazirat Suwad lie in the channel
between it and the mainland (ihid., pp. 120-121). As to the conditions and
life in Hawar (Jazirat), Lorimer remarked that: “There are no wells, but
there is a cistern to hold rain water built by the Dawasir of Zallaq in Bah-
rain, who have houses at two places on the island and use them in winter
as shooting boxes. Fishermen also frequent Hawar.” (Jhid.. p. 120.)

229. As to the position and conditions of Janan (Jazirat), Lorimer
indicated that the islet was “in the channel between Jazirat Hawar and
the mainland” and was “waterless” (ibid, p. 121). Furthermore, in the
case of Ajirah (Jabalat), Lorimer said that the island was “between Ras
Aburuk and Jazirat Hawar” (ibid, p. 118). In the case of Rubadh ( Jazi-
rat), that the islet was “close to the northern extremity of Jazirat Hawar”

301
338 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

and “destitute of fresh water” (Memorial of Qatar, Vol. 3, Ann. II.4,
p. 122) and in the case of Suwad (Jazirat), that the island was “between
Jazirat Hawar and Ras Aburuk” and had “no fresh water” either (ibid. ).

230. Lastly, it must be underlined that Lorimer’s leading articles on
“Bahrain Principality” and on “Qatar” were carefully prepared with the
participation and approval of British political officers in the Persian Gulf
and surveys made in the field, as per the detailed footnotes printed with
the articles in question in the Gazetteer of the Persian Gulf, Oman and
Central Arabia. \t is particularly interesting to note, in the light of some
arguments of Bahrain, that Captain F. B. Prideaux, British Political
Agent in Bahrain, was personally involved in the preparation and com-
pletion of the two articles. In view of the evidentiary value of that fact,
I quote below the essentials of the said footnotes: Lorimer’s article on
“Bahrain Principality”:

“This leading article on the Bahrain principality and the minor
articles in the same are founded chiefly upon systematic and careful
investigations made on the spot during the years 1904-1905. The
information existing before 1904 was arranged by the writer and was
issued in November of that year in the form... The inquiry proper
was begun by the writer on tour in Bahrain early in 1905; but it was
carried out chiefly by Lieutenant C. H. Gabriel, I. A. who person-
ally travelled over the greater part of the islands, and by Captain
F. B. Prideaux, Political Agent in Bahrain, who supplied very full
information regarding all places in his jurisdiction. A set of draft
articles founded on the notes and reports of 1905 was then prepared
by the writer; it was finished in January 1906... These drafts were
sent to Captain Prideaux, by whom they were carefully revised with
the assistance of . . ., the Agency Interpreter. Early in 1907 the
drafts were reissued, with modifications and additions, and some
points which remained doubtful or obscure were disposed by Captain
Prideaux and his assistant during the year . . .” (Memorial of
Qatar, Vol. 3, Ann. H.3, p. 87; emphasis added.)

Lorimer’s article on “Qatar”:

“The bulk of the information contained in this principal article on
Qatar, and in the minor articles subordinated thereto, was obtained
expressly for this Gazetteer during the years 1904-07; previously
little was known regarding the promontory. The data at the time
existing were condensed by the writer in November 1904 . .

or

302
339  DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

which formed the basis of the subsequent investigations. The further
inquiry was begun by the writer in Bahrain early in 1905, was con-
tinued by Mr. J. C. Gaskin, Political Assistant in the Persian Gulf,
and was completed by Captain F. B. Prideaux, Political Agent
in Bahrain, in the same year; the greater part of the information
obtained was supplied by the last named officer. A set of draft
articles was then compiled by the writer, . . . and was ready at the
end of 1905: if was sent to Captain Prideaux for revision, a process
which occupied a considerable part of the year 1906. Early in 1907
the draft. improved and somewhat amplified, was reprinted, and
investigations for the purpose of clearing up certain points con-
tinued to be made by Captain Prideaux throughout the year.”
(Memorial of Qatar, Vol. 3, Ann. 11.4, p. 112; emphasis added.)

231i. It is my submission that the 1928 Brucks’s Memoir, so often
invoked by Bahrain in the current proceedings, is not a publication that
in any respect (purpose, timing, preparation, verification of data, etc.)
admits any kind of comparison as evidence with Lorimer’s leading
articles of 1908. Furthermore, Lorimer’s contemporary testimony concern-
ing the Hawar Islands and Janan Island, verified by the British authori-
ties in the Gulf, in 1908 accurately reflected the situation necessarily
resulting from the application of the 1868 Agreements with Britain, as
well as from the fact of the Ottoman presence in Qatar since 1871. The
Hawar Islands and Janan Island did indeed form part of the Ottoman
kaza of Qatar and of the territory of the Chief of Qatar. Lorimer and
Prideaux limited themselves to describing the territorial situation as it
existed in 1904-1907.

232. The absence of any provision excluding the Hawar or any other
islands adjoining the peninsula of Qatar from the territories of Qatar
referred to in the 1913 Anglo-Ottoman Convention (which expressly pre-
served the rights of Bahrain’s fishermen in Zakhnuniya but not in the
Hawar Islands or in Janan Island, see below) amounts, furthermore, to a
conventional recognition by the two major Powers in the area at that
time of Qatar’s consolidated original title, as well as of the fact that its
territorial scope coincides, generally speaking, with Lorimer’s descrip-
tion, revised by Prideaux, and therefore included the Hawar Islands and
Janan Island.

ok

233. A few comments now on Major F. B. Prideaux’s letter of 4 April
1909 to Cox, the British Political Resident in the Persian Gulf, invoked
by Bahrain (Memorial of Bahrain, Vol. 5, Ann. 236, p. 1039; Memorial
of Qatar, Vol. 6, Ann. III.53, p. 247). As indicated, in 1909 Major Pri-
deaux was anxious to contain Ottoman expansion and, in particular, was
concerned about the news that the Turkish Mudir of Ojair in Hasa, who
visited Zahknuniya island with Turkish flags, had been corresponding

303
340 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

with the Dowasir who periodically visit Zakhnuniya island from Bahrain
and suggested to them that the Dowasir headman in Bahrain should
agree to come under Turkish rule. The Dowasir declined this advice
(fearing the loss of their possessions in Bahrain). The Mudir then laid
waste the fort on Zakhnuniya Island and left, while the Dowasir returned
to Bahrain. In a previous letter to Cox, dated 20 March 1909, Prideaux
explained “that Dowasir of Budaiya and Zellaq on the north-east coast
of Bahrain are in the habit of every winter partially migrating to Zakhnu-
niya and the Hawar Islands for fishing” (Memorial of Qatar, Vol. 6,
Ann. IEI.51. p. 235).

234. Following the above events, Major Prideaux landed on Zahknu-
niya to observe the situation on the spot. He observed that the Bahraini
fishermen “were living in two or three temporary mat huts” (emphasis
added). Prideaux then proceeded across the Bay to Jazirat Hawar where,
according to him, the Dowasir had “two similar winter villages”, namely
two “winter villages” of temporary mat huts like those on Zakhnuniya.
In effect. Major Prideaux “found in one locality a collection of 40 large
huts under the authority of a cousin of the principal tribal Shaikh” (the
principal Dowasir Sheikh). Major Prideaux’s letter then goes on to men-
tion that his cousin told him that: “he had at first thought that the
Launch was a Turkish gunboat, a visit from which they quite expected to
receive” (Memorial of Bahrain, Vol. 5, Ann. 236, p. 1042). From this the
Court knows that there were Turkish gunboats in the area and that the
Turkish paid visits not only to Zakhnuniya but also to Jazirat Hawar.
This is also indirectly corroborated by the alleged unproven episode of
the rescue at Hawar by Sheikh Isa of Bahrain of a party of Turkish
soldiers shipwrecked there in 1878. Thus the sea between the Bahrain
islands and Qatar peninsula was not even at that time the “Bahraibi
lake” referred to in the current proceedings.

235. Following that reference to Turkish activities in the area, includ-
ing in or around Jazirat Hawar, the cousin of the tribal Dowasir Sheikh,
as reported by Prideaux, stated that:

“Zakhnuniya was undoubtedly a possession of the Chief of Bah-
rain, but the Dowasir regarded Hawar as their own independent ter-
ritory, the ownership of this island having been awarded to the tribe
by the Kazi of Zubara more than 100 years ago, in a written decision
which they still preserve.

The contesting tribe named Al bu Tobais now is apparently
extinct, but as the kazi of Zubara was in those days an official of the
Al Khalifah, the istand would seem to be a dependency of the main-
land State, which the Chief of Bahrain still claims as morally and
theoretically his.” (Ibid. )

304
341 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

236. Major Prideaux, who a couple of years before had personally
been involved in the preparation and revision of Lorimer’s articles, adds
no comment of his own to the above allegation by the cousin of the prin-
cipal Sheikh of the Dowasir, but he informed the Ruler of Bahrain. How-
ever, the Ruler of Bahrain, Sheikh Esa, took no action regarding the
Hawar Islands. He claimed the sea named “Al Labaina” and the island of
Zakhnuniya, but not the Hawar Islands or the Island of Janan (Memo-
rial of Qatar, Vol. 6, Ann. [I[.52, p. 243).

237. However, in 1939, the passage from Prideaux’s letter of 4 April
1909 quoted above became the starting point of the Weightman Report
of 22 April 1939 on the “Ownership of Hawar Islands” (Memorial of
Bahrain, Vol. 5, Ann. 281, p. 1168). Nevertheless, the Weightman Report
recognized that the “written decision” referred to in Prideaux’s letter
“now seems to have disappeared”. It was not indeed as well preserved as
suggested by the cousin of the Dowasir Sheikh! Thus, at no time did Pri-
deaux in 1909, nor Weightman in 1939, nor the Court today, see the 100-
year-old “grant” referred to in the hearsay (oui-dire) allegation of 1909.
It should also be recalled that at the beginning of the nineteenth century
the dominant power in the Bahrain islands and in the Qatar peninsula
was the Wahhabi Amir. However, in the current proceedings, this pas-
sage from Prideaux’s letter is the main piece of evidence submitted by
Bahrain concerning the alleged existence of an original title of its own to
the Hawar Islands.

*

238. It is also clear that, in 1939, Weightman saw no reason for not
extending the unknown kazi grant to the Dowasir from the Jazirat
Hawar (in the Prideaux letter “Hawar” is in the singular) to the archi-
pelago of the Hawar Islands as a whole through application of the con-
tiguity principle (see last sentence of the Report). He did not show the
slightest concern at the natural contradiction thus created in his Report
through the rejection of the Ruler of Qatar’s proximity argument regard-
ing the Hawar Islands, at the same time upholding the same argument in
favour of Bahrain with respect to the Hawar Islands other than Jazirat
Hawar. Nor did he take any account of the reference in Prideaux’s letter
of 1909 to the fact that “the island (Jazirat Hawar) would seem to be a
dependency of the mainland State”, namely of Qatar. The “moral” and
“theoretical” nature of the claim by the alleged Ruler of Bahrain in
Prideaux’s letter was also disregarded by Weightman. Moreover he
attempted, in his Report, to set the principle of “geographical contiguity
ot proximity” against the principle of “physical possession”, despite
knowing full well that such possession was in casu the result of the clan-
destine occupation of the northern part of Jazirat Hawar that he knew
perfectly well!

239. It follows that the Dowasir argument in the Weightman Report

305
342 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

looks if anything like a convenient retrospective concealment of that
occupation. It should also be noted that the hearsay distinguished between
“possessions” of the Ruler of Bahrain (Zakhnuniya is the only island
mentioned in this respect) and Jazirat Hawar as “independent territory”
of the Dowasir. The title of the Weightman Report used the term
“ownership”, but it concludes by considering the islands a “possession”
of the Ruler of Bahrain. There is also no reference in the Weightman
Report to the “contesting tribe” of the hearsay. This point does however
have a certain relevance in the sense that it does not exclude the
presence in the Hawar Island of other tribes before the Dowasir fisher-
men, as corroborated by existing old ruins.

*

240. As to international law, there is a norm, already in existence in
the nineteenth century, to the effect that islands lying wholly or partly
within the territorial sea of a given country are to be regarded as part of
that country. This norm is formulated in the form of a strong juris tan-
tum presumption and is not therefore an absolute rule in the sense that it
is capable of being rebutted by evidence of superior title. However, dur-
ing the period of historical consolidation and recognition of the original
title of Qatar over the whole peninsula of Qatar and its adjoining islands
(1868-1915), Bahrain did not rebut that presumption by claiming or sub-
mitting evidence of superior title or indeed any evidence at all. As already
indicated, Bahrain remained silent. It is thus an objective geographical
fact that the majority of the islands and islets constituting the Hawar
Islands and Janan Island lie wholly or partly within a 3-mile territorial
sea limit from the mainland coast of Qatar (recognized at the relevant
time here considered) and af} of them lie within a 12-mile territorial sea
limit from the mainland coast currently applied by Qatar in conformity
with international law.

241. Map No. 9 facing page 145 of the Memorial of Qatar indicates
the location of the islands and islets constituting the Hawar Islands in
relation to a territorial sea limit of 3 nautical miles drawn from the cost
of the Qatar mainiand, measured at high tide. Further details of the close
proximity of the Hawar Islands to the mainland coast may be found on
Map No. 5 facing page 50 of the Memorial of Qatar. Of the 17 islands
and islets claimed by Bahrain to constitute the Hawar Islands in its “pre-
liminary statement” of 29 May 1938, 11 (including the Jazirat Hawar) are
located wholly or substantially within the 3-mile limit. A 12-mile limit
drawn from the coast of the Qatar mainland, even measured at high tide
rather than low tide, would wholly encompass all the Hawar Islands
identified on Map No. 9 of the Memorial of Qatar. (On the proximity of
the Hawar Islands to Qatar, see also Memorial of Qatar, Vol. 17, Map

306
343 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

Atlas, Map No. 5, and on photographic evidence, Reply of Qatar, Vol. 6,
App. 5.)

242. Qatar’s general thesis that its original title over the whole of the
Qatar peninsula and its adjoining islands therefore finds further support,
in the case of the Hawar Islands and Janan Island, in the above-
mentioned norm of international law. This norm was born at a time when
the territorial sea was limited to three miles. It was then considered, for
reasons of security and convenience, that islands off a particular coast
would, failing a clearly established title to the contrary, be under the sov-
ereignty of the nearest coastal sovereign authority. There is no need to
quote here international doctrine on this topic. Qatar’s reply mentions
Gidel, Waldock, Bowett, Lindley, among others. Some authors, such as
the last one mentioned, qualify the norm somewhat by referring to “un-
inhabited islands”, but the Hawar Islands and Janan Island were not,
in any case during the period considered, inhabited by a genuinely perma-
nent population, as proved by Prideaux’s letter itself. The Court knows
that the occasional use of an island by fishermen from a particular State
other than the coastal State is insufficient to confer title on the island in
favour of the former State (Aves /sland Arbitration and others).

243. It should also be borne in mind that, when in the /s/and of Pal-
mas Arbitration, Judge Huber rejected title to islands arising from con-
tiguity he was referring to islands outside the territorial sea. But here
I am considering the norm of international law governing title to islands
in toto or in part within the territorial sea of Qatar. This norm has
recently been applied by the Arbitral Tribunal in the case between Eritrea
and Yemen, presided over by Judge Sir Robert Jennings, to islands
located on the Red Sea, on the western side of the Arabian Peninsula.
The Award, dated 9 October 1998, updated the international law norm
referred to, formulating it as follows:

“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 to the contrary (as, for example, in the case of the
Channel Islands). But there is no like presumption outside the
coastal belt, where the ownership of the islands is plainly at issue.”
(Para. 474 of the Award.)

244. Thus, the Island of Palmas and Eritreal Yemen Arbitrations com-
plement each other. The circumstances of the Eritrea/ Yemen Arbitration
were to a certain extent similar to some of those in the present case.
There was also question of original title and its historical consolidation,

307
344 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

as well as a series of different arguments presented as evidence of the dis-
play of effective authority, including activities of fishermen. Even the uti
possidetis juris argument was presented by Yemen and rejected by the
Arbitral Tribunal (see paras. 96-100 of the Award). I have no doubt that
Qatar has an original title to the whole of the peninsula of Qatar and its
adjoining islands, the Hawar Islands and Janan Island included. But if
one considers that the historical record of the case file still speaks with
“an uncertain voice” as to the holder of the original title to the Hawar
Islands and Janan Island, the norm of international law here considered
offers the solution in international law, even if for me that norm does no
more than confirm Qatar’s original title as established by historical con-
solidation and general recognition.

245. Between 1936 and 1939, some British officials altogether dis-
regarded Qatar’s right to the Hawar Islands derived from the presump-
tion under international law just considered. Moreover, Qatar was put in
the position of proving that the Hawar Islands were part of its territory.
But Qatar had nothing of the kind to prove because the law spoke
for it. It was Bahrain that should have been called to establish a full
case to the contrary. Thus, not only was Lorimer’s testimony regarding
the islands endorsed by Prideaux, together with the historical record,
including British and Bahraini conduct and conventional instruments
ignored, but also an elementary norm of general international law, very
familiar to British jurists, was excluded to the detriment of Qatar by
flawed arguments and an aggregation of considerations of little account
or minor importance, as recalled by Prior’s comments of 1940 on
the criteria applied by the Weightman Report (Memorial of Qatar,
Vol. 7, Ann. HI.195, p. 499, and Memorial of Bahrain, Vol. 5, Ann. 281,
p. 1165).

*

246. Proximity is not, as stated by counsel for Bahrain at the hearings,
a principle without legal consequences in the establishment of title. That
was a misleading statement. Certainly, proximity does not constitute title
as such, and in isolation of a neighbouring sovereign, but it may be incor-
porated into a norm of international law (as in the presumption above)
or into a provision of a treaty defining title, as well as, together with
other elements, constituting the root of title in a given case or means of
defining the scope of an established title. The very a origin entitlement
of a coastal State to “territorial sea” is based upon the concept of prox-
imity and the same may be said of other national maritime jurisdictions
defined in terms of “distance”. The “portico doctrine” also takes conti-
guity into account. Even the Weightman Report itself acknowledges this
in the following terms:

308
345  DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

“A claim for sovereignty based merely on geographical contiguity
is, as I understand it, of little practical value save possibly in respect
of an unoccupied area of land or an island being contiguous to or in
the territorial waters of the State raising the claim.” (Para. 4 of the
Report; emphasis added.)

247. Thus, the Weightman Report acknowledges not only the juris
tantum presumption of international law concerning islands lying wholly
or partly in the territorial sea of a given coastal State, but also the “con-
tiguity” principle of the so-called “portico doctrine”. This doctrine, as
formulated by Lord Stowell in The Anna case (1805), applies to islands
when they are “natural appendages of the coast on which they border and
from which indeed they are formed”, because the protection of territory is
to be reckoned from the islands forming “a kind of portico to the main-
land” (see C. J. Colombos, The International Law of the Sea, 6th ed.,
1967, pp. 113-114). The Hawar Islands and Janan Island fall entirely
within the scope of the “portico doctrine” as formulated by its own
author.

*

248. There are many examples in pronouncements of international
courts and tribunals on the role of proximity or contiguity in matters
relating to the establishment of title particularly, although not exclu-
sively, in relation to islands. In any case, it is self-contradictory that
during the present proceedings Bahrain peremptorily rejected proximity,
on the one hand, and for itself invoked the condition of being an “archi-
pelagic State”, on the other. But what would become of the notion of
“archipelagic State” if deprived of the mortar of proximity or contiguity?
Bahrain's archipelagic State plea amounts to an admission by Bahrain of
the role of proximity or contiguity in territorial disputes. It defies reason
to invoke proximity or contiguity as between islands and to reject it as
between an island or group of islands and the mainland.

249. Whenever for one reason or another an international court or tri-
bunal has to deal with a given “physical unity” — as it is the “peninsula
of Qatar” or the “Hawar Islands” -— proximity or contiguity is called
upon to play a role, even within the application of the principle of effec-
tive possession because this principle admits “presumed possession”. This
is particularly so when the general international law standards or require-
ments concerning the effective, continuous and peaceful display of author-
ity have to be adjusted, as in the present case, to difficult, inhospitable or
scarcely populated territory or to a territory in the process of evolving
from an original tribal system to more modern forms of administration.
As stated in 1933 by the Permanent Court in the Eastern Greenland case:

309
346 = DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

“It is impossible to read the records of the decisions in cases as to
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.1.J., Series AIB, No. 53, p. 46.)

250. Greenland and the Qatar peninsula are certainly very distant
from each other. But the Eastern Greenland case has quite a number of
points in common with the present case, particularly regarding aspects
relating to the establishment of the original title to territory. Proximity or
contiguity played a considerable role in the Eustern Greenland case, as it
should in the present case, in connection, for instance, with Bahrain’s
allegations that the effective authority of the Rulers of Qatar did not at
the time reach the west coast of the Qatar peninsula nearest the Hawar
Islands (Counter-Memorial of Bahrain, Vol. 1, p. 10, para. 23). Allega-
tions of this kind find a fitting answer in the following passage from the
Eastern Greenland Judgment:

“Even if the period from 1921 to July 10th, 1931, is taken by itself
and without reference to the preceding periods, the conclusion
reached by the Court is that during this time Denmark regarded her-
self as possessing sovereignty over all Greenland and displayed and
exercised her sovereign rights to an extent sufficient to constitute a
valid title to sovereignty. When considered in conjunction with the
facts of the preceding periods, the case in favour of Denmark is con-
firmed and strengthened.” (P.C.L.J., Series A/B, No. 53, pp. 63-64.)

251. In other words, the Danish coastal settlements and related dis-
play of authority were declared by the Permanent Court to be sufficient
evidence of Denmark’s title to the whole of Greenland considered as a
single “natural or physical unit”, including of course to the islands within
the territorial sea of Greenland or contiguous to it. I therefore see no
reason why Qatar’s effectivités on the peninsula or promontory of Qatar
would or should be excluded in any evaluation of the respective effectivi-
tés of the Parties concerning the Hawar Islands or Janan Island. Those
islands were not terra nullius and were located, at least partly, within the
territorial sea of the mainland State or contiguous to it. The way in which
between 1936 and 1939 some of the British officials involved approached
the question of sovereignty over the Hawar Islands was indeed, in addi-
tion to other failures, absolutely selective and narrow-minded in the defi-
nition of the effectivités to be considered in the case.

252. It should likewise be underlined — in the light of the emphasis
placed by Bahrain on the 1829 Brucks’s Memoir — that the Handbook of

310
347 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

Arabia, published in 1916 by the British Admiralty, namely in the year of
the conclusion of the 1916 Anglo/Qatari Treaty, considered the Hawar
Islands as a part of Qatar, adding that:

“An island, Jerizat Hawar, lies 5 miles W. of Ras Aburuk on the
W. coast, with which it is roughly parallel; it is about 10 miles long,
and has no permanent population, but the Dawasir of Zallaq in Bah-
rain have houses used as shooting-boxes in winter, and a cistern for
rain-water. The islets Rubahd and Janan lie to N. and S. of Hawar,
those of Ajirah and Suwad in the channel between it and the main-
land.” (Reply of Qatar, Vol. 2, Ann. 11.55, p. 317.)

*

253. The above conclusions on original title to the Hawar Islands and
Janan Island are corroborated by the 79/3 and 1914 Anglo-Ottoman
Conventions. In the year preceding the conclusion of the /9/3 Anglo-
Ottoman Convention, tensions between the British and Ottoman Govern-
ments came to a head, mainly because of the presence of Germany in the
Gulf region (implementation of the Baghdad railroad scheme). In the
light of the situation, both the British and Ottoman Governments con-
sidered that they should define and agree upon the extent of British and
Ottoman control over Kuwait, the Hasa coast and the Qatar peninsula,
Bahrain, and the independent Sheikhs from the south of Qatar up to the
Indian Ocean, as well as of British maritime police measures in the waters
of the Gulf. Negotiations began in 1911 and ended with the signature of
the Convention on 29 July 1913. In so far as the Ottoman rights in Qatar
are concerned, the annex to the Aide-Mémoire communicated by Tewfik
Pasha to the British, dated 15 April 1912, is quite significant (Memorial
of Qatar, Vol. 6, Ann. III.56, pp. 264-266).

254. The Anglo-Ottoman Convention drafted in French was entitled
“Convention relative au golfe Persique et aux territoires adjacents”. The
relevant provisions relating to Qatar and Bahrain read as follows:

“I, Al-Qatar

ART. 11. The Ottoman sancak of Najd, the northern limit of
which is indicated by the demarcation line defined in Article 7 of this
convention, ends in the south at the gulf facing the island of al-Zak-
hnuntyah, which belongs to the said sancak. A line beginning at the
extreme end of that gulf will go directly south up to the Rub’-al-
Khali and will separate the Najd from the peninsula of al-Qatar. The
limits of the Najd are indicated by a blue line on the map annexed to
the present convention (annex Va). The Ottoman Imperial Govern-
ment having renounced ail its claims to the peninsula of al-Qatar, it
is understood by the two Governments that the peninsula will be
governed as in the past by the shaykh Jasim-bin-Sami and his suc-

311
348 = DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

cessors. The Government of His Britannic Majestic declares that it
will not allow the interference of the shaykh of Bahrayn in the inter-
nal affairs of al-Qatar, his endangering the autonomy of that area or
his annexing it.

ART. 12. The inhabitants of Bahrayn will be allowed to visit the
island of al-Zakhnuniyah for fishing purposes and to reside there in
full freedom during the winter as in the past, without the application
of any new tax.

Ili. Bahrayn

Art. 13. The Ottoman Imperial Government renounces all its
claims to the Islands of Bahrayn, including the two islets Lubaynat al-
Aliya and Lubaynat al-Safliya, and recognizes the independence of
the country. For its part, the Government of His Britannic Majesty
declares that it has no intention of annexing the islands of Bahrayn
to its territories . . .” (Memorial of Qatar, Vol. 6, Ann. ITI.58,
pp. 280-281; for the “blue line” referred to in Annex Va to the 1913
Anglo-Ottoman Convention, see Reply of Qatar, Map Atlas, Map
No. 84.)

255. Since the 1913 Convention had not been ratified at the outbreak
of the War in 1914, it never formally came into force. However, its text
provides irrefutable evidence of what the two main Powers in the region,
Great Britain and the Ottoman Empire, acknowledged Qatar and Bah-
rain to be, politically and territorially, at the time of the conclusion of the
Convention, namely in July 1913. Furthermore, Article 11 of the Con-
vention is to be regarded as formally binding, since Article III of the
“Anglo-Turkish Convention respecting the Boundaries of Aden” of
9 March 1914, whose ratifications were exchanged in London on 3 June
1914, contains a reference to Article 11 of the 1913 Convention, whereby
the territory of Qatar was separated from the Ottoman Sanjak of Nejd.
Article HI of the 1914 Anglo-Turkish Convention reads as follows (for
original French text, see opposite):

“Inasmuch as point No. 1 of the Wadi Bana marked on the first of
the maps attached (Annex B) to this Convention is the last point
deliberated on the eastern side of the territories, the high contracting
parties agree and decide, in accordance with the said Protocol, and
subject to the conditions and specifications contained therein, that
the frontier of the Ottoman territories shall follow a straight line
running from Lekemet-ul-Choub north eastwards to the desert of
Ruba-al-Khali at an angle of 45°. In the Ruba-al-Khali, on the 20th
parallel, this line will join the straight line running directly south
from a point on the southern shore of the Guif of Oudjeir, which
separates the Ottoman territory from the sanjak of Nejd in the El
Katr territory in conformity with Article 11 of the Anglo-Ottoman
Convention of 29 July 1913, respecting the Persian Gulf and sur-

312
349  DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

rounding territories.” (Memorial of Qatar, Vol. 6, Ann. III.60,
pp. 289-290; emphasis added.) / Translation by the Registry. ]

256. The adjoining islands to the peninsula of Qatar are not men-
tioned in the text of the 1913 and 1914 Conventions. Nevertheless, the
way of dealing with islands such as the Libainat islands (situated approxi-
mately halfway between Bahrain and the Hasa coast) and Zakhnuniya
Island (situated just off the Hasa coast) strongly suggests that the Hawar
Islands, Janan Island and other islands adjoining the peninsula fall
within the expression “the peninsula of al-Qatar” used in the text of
Article 11 of the 1913 Convention. This is further confirmed by the map
attached as Annex V to the 1913 Convention showing the limits of
Kuwait and adjacent countries (Reply of Qatar, Maps Atlas, Map No. 46;
see Map No. 3 of this opinion, p. 449 below). The Hawar Islands and
Janan Island are clearly represented on that map as belonging to Qatar.

257. To read “the peninsula of al-Qatar” as meaning, in the Conven-
tion, “Doha and its environs” as argued by Bahrain does not make sense.
The 1913 Anglo-Ottoman negotiations concerned the territory of the
whole peninsula, the former kaza of Qatar, and the ratified 1914 Conven-
tion refers to the line separating the territory of the Ottoman Sandjak of
Nadjd and the “territory of al-Qatar”, in accordance with Article 11 of
the 1913 Convention. Concerning the non-ratification argument, Rendel
of the Foreign Office in a letter to the India Office, dated 16 March 1934,
made the point termed as “important” that “in view of the fact that the
1913 line is “adopted” and unmistakably defined, in Article 3 of the 1914
Convention, which was duly ratified, that line is from the point of view of
international law perfectly valid . . .” (Counter-Memorial of Qatar,
Vol. 3, Ann. HI.41, p. 227).

258. To exclude from the expression the “peninsula of al-Qatar” its
territorial sea and/or the islands off-lying wholly or partly in that terri-
torial sea, the Convention would have needed to specify this expressly.
But neither the Convention and related maps nor the records of the nego-
tiations contain such a reservation, even in implied form. An interpreta-
tion made according to international law has therefore to conclude that
in 1913 and 1914, for Great Britain and the Ottoman Empire as contract-
ing States, the expression “peninsula of al-Qatar” means not only the
mainland promontory as a whole, including Zubarah, but also the adjoin-
ing waters and islands, such as the Hawar Islands and Janan Island
which are natural and legal “appurtenances” of the “peninsula of Qatar”.
It must also be recalled that by that time, namely in 1913-1914, no claim
had been yet presented by Bahrain to the Hawar Islands or Janan Island
although it had, in 1909, to Zakhnuniya Island (see above), which explains
the reference to the rights of the inhabitants of Bahrain on the latter
island. Nothing of the kind is provided for in the 1913 Convention with
respect to the Hawar Islands and Janan Island.

313
350  DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

259. To conclude, the 1913 and 1914 Anglo-Ottoman Conventions
conventionally recognized Qatar’s original title to the entire territory of
the peninsula, including of course its adjoining islands and waters, in
consolidation of which the conduct of Great Britain and the Ottoman
Empire, together with the conduct of the Ruler of Qatar and of the Ruler
of Bahrain, played a paramount role. The Conventions are respectful of
the integrity of the territory of Qatar resulting from a process of histori-
cal consolidation and recognition initiated in 1868 and completed by
1913-1914. The unavoidable result is the definition of “Bahrain” by the
said Anglo-Ottoman Convention as constituted by the “the Islands of
Bahrayn”, including the two islets of Lubaynat al-Aliya and Lubaynat
al-Safliya, but excluding the Hawar Islands and Janan Island.

*

260. To complete this description of the territory of Qatar, there
remains the question of its relations with its southern neighbours. In
1913, Ibn Saud, at that time Ruler of Nejd, conquered Hasa and claimed
that Qatar was part of his ancestral domains. However, by the end of
1913, the British persuaded him that non-interference with Qatar was a
condition of maintaining friendly relations with the British Government.
This understanding was embodied in the “Treaty between the British
Government and the Ruler of Najd, El Hasa, Qatif, etc.,” of 26 Decem-
ber 1915, Article VI of which provided that:

“Bin Sa’ud undertakes, as his father did before him, to refrain
from all aggression on, or interference with the territories of Kuwait,
Bahrain, and of the Sheikhs of Qatar and the Oman Coast, who are
under the protection of the British Government, and who have
treaty relations with the said Government, and the limits of their ter-
ritories shall be hereafter determined.” (Memorial of Qatar, Vol. 5,
Ann. 11.46, p. 179; emphasis added.)

261. Since that undertaking, the south became for Qatar a matter of
delimitation. It took time, however, to settle the question of the frontier
line and many lines were proposed and considered down the years in the
context of negotiations between the British Government and the Govern-
ment of Saudi Arabia. There were several reasons for this, including the
impact of oil. Some of the lines are reproduced on Map No. 84 of the
Map Atlas submitted by Qatar with its Reply. These negotiations and
lines also provide confirmatory elements of evidence for territorial ques-
tions in dispute in the present case, including with respect to the Hawar
Islands and Janan Island.

314
351 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

262. Following the departure of the Ottomans in January 1915, Great
Britain and the Chief of Qatar, Sheikh Abdullah bin Jassim, successor of
Sheikh Jassim, carried out direct negotiations concerning the conclusion
of a bilateral treaty. The Treaty between the British Government and the
Sheikh of Qatar was signed on 3 November 1916 by Sheikh Abdullah
and the British Political Resident in the Persian Gulf, Lieutenant-Colonel
Sir Percy Cox. It was also signed by the Viceroy and Governor-General
of India and ratified on 23 March 1918 (Memorial of Qatar, Vol. 5,
Ann. 11.47, pp. 183-186).

263. The Treaty of 1916 — which began by recalling the Agreement of
12 September 1868 — reaffirmed the separate status of the territory of
Qatar under Al-Thani rule. It is clear from its text, and from the circum-
stances surrounding its conclusion, that the provisions of the Treaty
applied to the entire peninsula of Qatar and, therefore, to its coasts and
adjoining islands. The obligation of the British Government under Ar-
ticle 10 of the Treaty to protect the Ruler of Qatar and his “subjects and
territory from all aggression by sea” (emphasis added) indeed covered
any possible Bahraini aggression across the sea on any part of the Qatar
peninsula and adjoining islands, such as the Hawar Islands, just as much
as did the 1868 Agreement. Under Article 11, the British Government
also assumed the obligation to grant good offices should the Ruler of
Qatar or his subjects “be assailed by land within the territories of Qatar”
(emphasis added).

264, Bahrain’s proposition in the current proceedings that the term
“Qatar” in the 1916 Treaty does not cover the whole peninsula of Qatar
is as inadmissible as the proposition mentioned above that the term “the
peninsula of al-Qatar” in Article 11 of the 1913 Anglo-Ottoman Conven-
tion did not cover the whole peninsula and its adjoining islands. For a
British understanding of the 1916 Treaty (as well as of the 1913 Conven-
tion) see “El-Katr 1908-16” in Persian Gulf Historical Summaries, 1907-
1928 (Counter-Memorial of Qatar, Vol. 3, Ann. III.57, pp. 335 et seq.).
That in the 1916 Treaty the term “Qatar” means the whole Qatar penin-
sula is also confirmed by the 1916 British publication entitled Hand-
book of Arabia (Reply of Qatar, Vol. 2, Ann. II.55, p. 316 in fine).
Article 2 of the formal “Proposals of British Delegation for Draft Treaty
dealing with the Settlement of the Arabian Peninsula”, Appendix (A) to
a 1920 Foreign Office Memorandum on Arabian Policy, confirms that,
inter alia (for the purpose of the Treaty), “the islands, whether previously
Turkish or not” which lie within a red line drawn on a related attached
map were part and parcel of the “Arabian Peninsula” for the purpose of
the negotiation of the Treaty of Peace with Turkey (Reply of Qatar,
Vol. 3, Ann. IIL.38, p. 222).

265. The map with the red line was originally prepared by the British
Admiralty in 1917. But the Foreign Office memorandum mentioned
above and the red line on the said map, are dated 1920. This suggests two

315
352 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

things: (1) that for years after the 1916 Anglo-Qatari Treaty the British
position on the extent of the territory of Qatar was the same as at the
time of the conclusion of the 1913 and 1914 Anglo-Ottoman Conventions
(see above); and (2) that the guarantee concerning the integrity of the ter-
ritory of Qatar of Articles X and XI of the 1916 Anglo-Qatari Treaty,
particularly with respect to “all aggressions by sea”, covers the Qatari
mainland and its adjoining islands, as understood at the time of the con-
clusion of the above Anglo-Ottoman Conventions. (See Map No. 4 of
this opinion, p. 449 below, a reproduction of the British Admiralty map
concerned with the said line in red. Bahrain appears on that map as an
enclave within the said red line.)

266. Bahrain had relied on a report of a meeting between the Ruler of
Qatar and the British Political Resident, dated 12 March 1934(?), relating
to the granting of an oil concession by Qatar in which the former, to be
free to choose the oil company, contrasted the “interior” with the “coast-
line” by saying the 1916 Treaty did not include the “interior”. The reply
of the British Political Resident could not be clearer:

“According to Bin Sa’ud’s Treaty with the British Government he
cannot interfere in your affairs and it is because of your Treaty with
the Government that he cannot do anything and if he does, the Gov-
ernment will prevent him. And you are the Ruler of all Qatar and the
Treaty extends to the whole Qatar.” (Counter-Memorial of Bahrain,
Vol. 2, Ann. 122, p. 412; emphasis added.)

267. The obligations assumed by the Ruler of Qatar in the 1916 Treaty
with the British Government are of the nature of those set forth in the
so-called “exclusive agreements” previously concluded by Britain with
other Arab Rulers in the Gulf, such as the Rulers of Bahrain (1880 and
1892) and of the Trucial States (1892). I shall revert to these “treaty obli-
gations” in Section B of this part of the opinion in connection with the
invocation by Bahrain of uti possidetis juris. But what should be men-
tioned here it is that the 1916 Treaty does not establish any relation
between Qatar and Bahrain. By the 1916 Treaty, the Ruler of Qatar also
assumed obligations in “Treaties and Engagements” relating to the sup-
pression of the slave trade and piracy and generally in the maintenance of
the Maritime Peace entered into before by the Sheikhs of the Trucial
States (Dhabia, Dibai, Shargah, etc.), but curiously enough those entered
into by the Rulers of Bahrain are not mentioned in the 1916 Treaty. The
“treaty obligations” were not identical in the case of Qatar and in the
case of Bahrain.

316
353 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

268. Map evidence is considered by international courts and tribunals
as confirmatory or corroborative evidence. It may in effect confirm recog-
nition or general opinion or repute as to the fact of a given political or
territorial situation. In the present case, Bahrain failed to match the map
evidence submitted by Qatar in the Map Atlas annexed to its Reply, as
well as in the presentation of map evidence in the hearings by counsel for
the Parties. The highly reliable, uniform and copious map evidence from
official publications and private map publishers of Turkey, Great Britain,
the United States, France, Germany, Russia, Italy, Iran, Poland, Aus-
tralia and Austria submitted to the Court by Qatar shows beyond any
reasonable doubt a general recognition, opinion or repute which strongly
confirms Qatar’s thesis that the scope of its original title included the
Hawar Islands and Janan Island and denies Bahrain’s thesis to the con-
trary on the matter.

269. In the light of the map evidence referred to, Bahrain’s assertion
that the Al-Thani rule during the relevant period was limited to Doha or
Bida and that Zubarah, the Hawar Islands and Janan Island were deemed
to be part of Bahrain simply crumbled and collapsed. In my opinion this
collapse is without any possible remedy because the historical record in
the case file is fully consistent with the recognition, general opinion or
repute provided by the maps of the nineteenth and twentieth centuries
(until 1939) before the Court. Whether the map evidence is taken as a
whole or individuaily, no doubt is possible. The virtual uniformity of the
message coming from the map evidence certainly has legal significance
for the scope of the respective original titles to territory of Qatar and
Bahrain. The Judgment ignores it.

270. The general message of the cartographic evidence is that, after
1868, Qatar was recognized as a separate political entity encompassing
the entire peninsula and its adjoining islands, including Zubarah, the
Hawar Islands and Janan Island. The political and territorial integrity of
Qatar as defined by the historical record is fully acknowledged by the
maps. At the same time, also in conformity with the historical record, the
territory of Bahrain is limited, in the maps, to the compact group of
islands around the main Bahrain island and a number of islets and rocks
in its vicinity, namely to the Bahrain archipelago proper (exactly as
described by Lorimer and other documents before the Court).

271. The cartographic evidence therefore reflects like a mirror the
scope of the respective title to territory of Qatar and of Bahrain, from
1868 onwards, as defined by the process of historical consolidation and
general recognition considered above in this opinion. For example, in the
case of Bahrain, it reflects the territorial definition of that State given in
a series of documents in the case file such as, inter alia: (a) the confiden-
tial memorandum of 25 March 1874, printed for the use of the British

317
354  DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

Foreign Service, on the separate claims of Turkey and Persia to sover-
eignty over the island of Bahrain (Memorial of Qatar, Vol. 6, Ann. HI.28,
p. 137); (6) the 1890 description by J. Theodore Bent of the British
Royal Geographical Society (see Map. No. | of this opinion, p. 448
below); (c) the 1908 description of Lorimer referred to above; (d) the
1916 Handbook of Arabia, Vol. EF, General (Reply of Qatar, Vol. 4,
Ann. IV.1, p. 1); (e) the India Office confidential memorandum of
27 August 1928 signed J.G.L (Laithwaite) and entitled “Status of Certain
Groups of Islands in the Persian Gulf” (ibid, Vol. 4, Ann. IV.2, p. 5):
(f) the India Office memorandum from Laithwaite of 14 July 1934
(ibid., Vol. 2, Ann. IL.61, p. 359): (g) the 1939 Military Report and
Route Book for the Arabian States of the Persian Gulf (ibid, Vol. 4,
Ann. 1V.3, p. 11); ete.

272. There is no contradiction between the documentary evidence and
the map evidence. They support each other completely and uniformly
during the relevant period, namely between 1868 and 1939, consistently
depicting the Bahrain islands and Qatar (including Zubarah, the Hawar
Islands and Janan Islands) in different colours. Moreover, maps such as
Bent’s map of 1890 (see Map No. | of this opinion, p. 448 below) and
Tiverner’s map of 1898 (Reply of Qatar, Map Atlas, Map No. 28) which
depict the islands of Bahrain do not show the “maritime features” relied
upon by in the current proceedings as part of the State of Bahrain. The
same applies to Map No. 77 in the Map Atlas of the Reply of Qatar.
Thus, Bahrain's assertions that it also has title to the said maritime fea-
tures between the archipelago of Bahrain proper and the western side of
the peninsula of Qatar finds no support either in the map evidence before
the Court.

273. In contrast, practically the only map related to the dispute on the
Hawar Islands introduced by Bahrain corresponding to the 70-year period
between 1868 and 1939 is the sketch-map said to have been prepared by
Captain Izzet of the Ottoman Army in 1878. It was also submitted in full
by Qatar. This sketch-map is no more than an outline of the Vilavet of
Basrah. As to the Ottoman techniques of colouring maps, see Reply of
Qatar, Volume 1, pages 128 to 129, paragraph 4.117. Bahrain also pre-
sented a map of the United Kingdom’s Ministry of Defence with a divi-
sion of sovereignty line between the western coast of the Qatari mainland
and the Hawar Islands (Map TPC H-6C), but it is a map of 1972 record-
ing the British decision of 1939!

274. The Parties likewise presented some maps and sketches concern-
ing oil concession negotiations. One submitted by Bahrain relating to
1924, by the Eastern and General Syndicate Limited concerning conces-
sion negotiations in Bahrain, Hasa (Saudi Arabia), the Neutral Zone and
Kuwait, has a mark on the peninsula of Dukhan, an area of the mainland

318
355 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

territory of Qatar, but the Hawar Islands are not described on that map,
only the Bahrain islands and the Saudi Zakhnuniya Island appear on it.

275. The map evidence consistently confirms from 1868 onwards that
the Hawar Islands and their waters as an adjoining natural appurtenance
of the peninsula of Qatar fall within the scope of the historically consoli-
dated original title of Qatar. It must further be recalled that by 1873 the
only part of the territory of Qatar constituting the subject of a claim by
Bahrain was Zubarah. Bahrain’s first formal claim to the Hawar Islands
is dated 28 April 1936. A very late claim indeed to provide a basis for
arguing in terms of original title according to the general standards of
international law.

*

276. Following the conclusion of the 1916 Anglo-Qatari Treaty, the
Al-Thani Ruler of Qatar remained in control of the territory of the coun-
try as before and maintained relations with the British Government as
per the Treaty, although these relations were much more distant than
British relations with Bahrain. No Political Agent in Qatar was appointed
by the British until 1949, while Bahrain had had a Political Agent since
1904. By the 1930s, Bahrain was a State protected by Great Britain, but
not a British Protectorate. In 1926, the British adviser Belgrave was
appointed by the Bahraini authorities to assist the Ruler of Bahrain in
internal administration tasks. With the discovery of oil and the develop-
ment of the oil economy, the situation would become detrimental to
Qatar. It explains the British “decision” of 1939 on the Hawar Islands.

277. Oil development began considerably later in Qatar than in Bah-
rain. The Ruler of Bahrain granted a first concession to the Eastern and
General Syndicate Limited (EGS) on 2 December 1925, which was sub-
sequently transferred to BAPCO. Oil was first struck in Bahrain on
| June 1932 and the first Bahraini oil shipment was made in 1934. A
refinery was constructed in Bahrain and completed in 1937. Oil from
other parts of the Gulf was brought to that refinery, etc. In contrast, the
first oil concession agreement was not concluded by the Ruler of Qatar
until 1935, the concession holder being the Anglo-Persian Oil Company
(APOC), which promptly assigned its interest under the concession to
Petroleum Concessions Limited (PCL). In 1938 the latter established its
camp at Dukhan on the western side of Qatar and started drilling. It
struck oil the following year, but during the Second World War the PCL
closed down its operations on the orders of the British authorities. In fact
the first shipment of Qatari oil was not until December 1949.

319
356 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

278. Thus, when in 1936 Bahrain claimed the Hawar Islands, its rela-
tions with Great Britain were closer than with Qatar and Bahrain was
also a country better organized and richer than Qatar. But until the clan-
destine and unlawful occupation of the northern part of Jazirat Hawar in
1937, the Ruler of Qatar exercised his authority over the totality of the
territory of Qatar without external interferences. Nobody questioned
Qatar’s original title either in the peninsula or in its adjoining islands.

279. There are several documents in the case file confirming the dis-
play of the Ruler of Qatar’s authority over the whole territory of Qatar
as defined by his original consolidated and recognized title. Some of them
are very spectacular indeed. The first is the 1935 Concession Agreement
with APOC itself. By Article 1 of this Agreement the Ruler of Qatar
grants to the company various rights to explore, to prospect, to drill for
and to extract petroleum and other substances “throughout the principal-
ity of Qatar”. The territorial scope of the 1935 Concession Agreement is
further defined in Article 2 which states inter alia: “The State of Qatar
means the whole area over which the Sheikh rules and which is marked
on the north of the line drawn on the map attached to this Agreement.”
The map attached to the Concession Agreement shows that the Hawar
group of islands is unmistakably included within the territory of the State
of Qatar as so defined (Memorial of Qatar, Vol. 6, Ann. IIT.99, p. 529).
There are also APOC/PCL technical prospecting reports indicating the
areas explored and containing references to the Zubarah area and to the
Hawar Islands.

280. Another example is the aerial reconnaissance of Qatar by the
British Royal Air Force. In 3 May 1934, Loch, Political Agent in Bah-
rain, informed the Ruler of Qatar of this reconnaissance overflying and
the Ruler answered on 14 May 1934 that there was no objection (Sup-
plemental Documents of Qatar, doc. 14, p. 108). The Wing Commander's
covering report of 30 May 1934 refers to the main Hawar Island and con-
firms that “the southernmost bay of Djeriza Hawar” would possibly
afford good shelter (Memorial of Qatar, Vol. 6, Ann. JII.94, p. 483). The
report also includes a photograph of Hawar (ibid., p. 488). The RAF sur-
vey of Qatar’s territory was made in connection with the negotiation of
the 1935 Qatari oil concession and the new British assurances of protec-
tion. The Hawar Islands were therefore surveyed as a part of the territory
of Qatar and with the consent of the Ruler of Qatar. In this respect, it
might also be mentioned that the Military Report and Route Book for the
Arabian States of the Persian Gulf 1939, General Staff, India, listed
“Hawar Island” as an observed possible landing ground or anchorage
“on the coastline of Qatar”, while the Sheikhdom of Bahrain continued
to be described as the compact group of islands of the Bahrain archi-
pelago proper (Reply of Qatar, Vol. 4, Ann. IV.3, pp. 14 and 15).

320
357 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

281. There are also other important confirmations that the Hawar
Islands were part of the territory of Qatar during the period considered,
such as the exclusion of the Hawar Islands as part of Bahrain on the 1923
map (signed by Major Holmes on behalf of BAPCO (see Map No. 5 of
the present opinion, p. 450 below).

282. Account should also be taken of: (a) the absence of any refer-
ence to the Hawar Islands in the Bahrain concession Agreement of 1925;
{b} the inclusion of the Hawar Islands in the territories of Qatar on the
Iraq Petroleum Company’s map of 1933, preceding the Qatar oil conces-
sion of 1935 (Counter-Memorial of Qatar, Vol. 3, Ann. HII.35, p. 183):
(c} the 1928 official British Report of the India Office entitled “Status of
Certain Groups of Islands in the Persian Gulf”, where the Bahrain archi-
pelago is defined as consisting of specific named islands which do not
include the Hawar Islands (Memorial of Qatar, Vol. 4, Ann. IT.10,
p. 276); (d) Laithwaite’s India Office letter of 1933 in the same vein
(ibid., Vol. 6, Ann. 111.84, p. 431); (e) the letter of 1933 from the acting
Political Resident to the Secretary of State for India stating that “Hawar
is clearly not one of the Bahrain group” (emphasis added), a view endorsed
by the India Office (ibid, Vol. 6, Ann. III.88, p. 449); (f) the note by
G. W. Rendel of 30 December 1937 confirming that the Hawar Islands
were geographically part of Qatar (Reply of Qatar, Vol. 3, Ann. III.56,
p. 349); (g) the view expressed by Prior, Political Agent (1929-1932) and
the Political Resident (1939-1945), that the Hawar Islands “belong
to Qatar, a view supported by Lorimer” (Memorial of Qatar, Vol. 8,
Ann. HI.229, p. 127). The British Foreign Office marked or annotated
version of a 1924 British War Office map (Reply of Qatar, Map Atlas,
Map No. 77) also confirms that in 1933 the territory of Qatar recog-
nized by Great Britain remained the same at the time of the 1913-1914
Anglo-Ottoman Conventions and of the negotiations in 1920 for the
Peace Treaty with Turkey (see Map No. 6 of the present opinion, p. 450
below).

283. All the above confirms that from 1913-1914 until the 1936 undis-
closed British “provisional decision” on the Hawar Islands Great Britain
recognized Qatar’s title to the whole of its territory, namely the Qatar
peninsula and adjoining islands such as the Hawar Islands and Janan
Island. Further confirmation of this is provided by the British documents
relating to the proposed additional guarantee of protection for the Sheikh
of Qatar as an inducement for the grant of the 1935 Concession to
APOC, acting for IPC. See, for example, the note on “Qatar” by Rendel,
attached to an India Office memorandum of 21 February 1934 (Counter-
Memorial of Bahrain, Vol. 2. Ann. 67, p. 220). Rendel’s Note pointed
out that “we already pledged to protect the Sheikh against aggression by
sea”, so “the only dangers against which the Sheikh might need to be
protected would come from either (a) Ibn Saud or (4) the tribes of the

321
358 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

hinterland” (Counter-Memorial of Bahrain, Vol. 2, Ann. 67, p. 221). The
dangers from the sea were however about to emerge!

H. General Conclusion of Section A
of Part I

284. In the light of all the above considerations, I conclude that the
State of Qatar is the holder of an original title to the territory of the
whole peninsula of Qatar and its adjoining islands and, consequently, to
Zubarah, the Hawar Islands and Janan Island. That title was established
by a process of historical consolidation and general recognition mainly
between 1868 and 1913-1915, so that it includes the Ottoman period of
Qatar, and was subsequently confirmed by Great Britain with no formal
claims or challenge to the contrary from any State, until Bahrain’s first
written claim of April 1936, followed the British “provisional decision”
and the clandestine occupation of the northern part of Jazirat Hawar in
1937.

285. Even before the 1868 Agreements, the Al-Khalifah Rulers of
Bahrain had no effective possession, nor exercised any effective authority
or control over any part of the Qatar Peninsula or over the adjacent
islands lying wholly or partly in the territorial sea belt of the Qatar Penin-
sula. Moreover, during the process of historical consolidation and gen-
eral recognition of the original title of the Al-Thani Rulers of Qatar to
the entire peninsula of Qatar and its adjoining islands, the territory of the
Al-Khalifah Rulers of Bahrain was already regarded and recognized, and
had been for a long time, as being limited exclusively to the Bahrain
archipelago, including its minor islands and islets. Therefore, 1 cannot
but reject the plea by the State of Bahrain, in the present proceedings,
according to which the Al-Khalifah Rulers of Bahrain were the holders,
at the relevant time, of an original territorial title to Zubarah, the Hawar
Islands and Janan Island.

286. It may be added that the 1913 and 1914 Anglo-Ottoman Conven-
tions which were followed by the 1916 Treaty between Great Britain and
Qatar, with mirror precision reflected the territorial state of affairs referred
to above with respect to both Qatar and Bahrain and this is also con-
firmed by the documentation and map evidence submitted to the Court
by the Parties. For example, the 1913 Anglo-Ottoman Convention uses
terms such as “peninsula of Qatar” and “Bahrain Islands”. The natural
or ordinary meaning of these terms as stated by the Permanent Court
with respect to “Greenland” in the Legal Status of Eastern Greenland
(P.C.LJ., Series AIB, No. 53, p. 52), is “its geographical meaning as
shown in the maps” which in the present case are, inter alia, those repro-
duced in Annexes V and V{u) to the 1913 Anglo-Ottoman Convention.
According to these maps — which as annexes to the Convention are
interpretative elements of the latter — and, in particular the map repro-

322
359 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

duced as Annex V, it is quite clear that Zubarah, the Hawar Islands and
Janan Island were considered by Great Britain and the former Ottoman
Empire as part and parcel of the “peninsula of Qatar” referred to in
Article 11 of the said Convention and not of the “Bahrain Islands” referred
to in Article 13 of the Convention. Thus, when in 1916 the Treaty con-
cluded between Great Britain and Qatar makes reference to the “territory
of Qatar”, this term cannot be interpreted as excluding Zubarah, the
Hawar Islands and Janan Island, except by proving either a change in
Great Britain’s position between 1913-1916 concerning the status of these
territories or by proving that the terms “peninsula of Qatar” and “Bah-
rain Islands” of the 1913 Anglo-Ottoman Convention there have a
special meaning different from its natural or ordinary geographical
meaning.

287. Although the reasoning of the Court’s present Judgment gener-
ally avoids determining who is the holder of the original title, the Judg-
ment finds that the State of Qatar has sovereignty over Zubarah as well
as over Janan Island, including Hadd Janan. It follows that these two
findings of the Court in fact concur with my own conclusion that the
State of Qatar has sovereignty over Zubarah and Janan Island, by virtue
of the original title of the Al-Thani Rulers of Qatar to those territories.
This dispenses the author of this opinion from any further discussion of
Zubarah and Janan Island, including Hadd Janan. I would only add that,
in the case of Zubarah, the reasoning of the Court follows a method
which has some points in common with the method of ascertaining an
original title established through historical consolidation and general
recognition, but in the case of Janan Island, including Hadd Janan, the
corresponding reasoning of the Court is based upon the British authentic
interpretation of its 1939 “decision” on the Hawar Islands. I dissociate
myself from this reasoning because, as explained below in this opinion,
I consider that the 1939 British “decision” is invalid. For me Janan Island
belongs to Qatar by virtue of Qatar’s original title to the territory and the
scope of that title.

288. With respect to the dispute over the Hawar Islands, my conclu-
sion that the islands also belong to the State of Qatar because of the
original title of the Al-Thani Rulers of Qatar to the entire peninsula and
its adjoining islands and waters does not coincide with the Court’s find-
ing on the dispute over the Hawar Islands. However the State of Bahrain
did not base its claim to the Hawar Islands exclusively upon an alleged
original title to those islands, but also on alleged derivative titles such as
uli possidetis juris, the 1939 British “decision” and effectivités under-
stood as an autonomous mode of acquiring title to territory. Thus, we
will see below whether or not the State of Bahrain has a derivative title to
the Hawar Islands by virtue of these three legal arguments — which
would be better and, therefore, prevail over the original title of the State
of Qatar to the Hawar Islands.

323
360 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

SECTION B: DOES BAHRAIN HAVE A TITLE TO THE HAWAR ISLANDS OR TO
SOME OF THEM SUPERIOR TO QATAR'S ORIGINAL TITLE TO THOSE ISLANDS?

A. Bahrain's Search for a “Derivative” Title

289. As already indicated, Bahrain has argued throughout the pro-
ceedings that it is in possession of an original title to all the Hawar
Islands. This was indeed a daring argument in the light of the Al-Khali-
fah settlement in the Bahrain islands since 1783. A cursory reading of the
historical documents and evidence submitted to the Court by the Parties
is sufficient to make one realize that the Bahraini argument is founded on
quicksand. As explained in Section A of Part I of the present opinion,
Bahrain is not the holder of an international law original title to any of
the islands in the Hawar group and could not possibly be such at the rele-
vant time. Thus, already in the written phase of the proceedings, Bahrain
tried to prop up its assertion of original title to the Hawar Islands with
other considerations and arguments. In fact, Bahrain has all along been
engaged in a search for as many derivative titles as possible to the Hawar
Islands, without any particular regard for the possible contradictions so
created between the alleged derivative titles to Hawar and its submissions
in the case.

290. In effect, the Bahraini search for derivative titles focuses on the
Hawar Islands. Thus, Bahrain first argued that it has a derivative title to
the Hawar Islands by virtue of the 1939 British “decision” on those
islands, a “decision” presented as an arbitration or adjudication with res
judicata force. Janan Island would therefore be a kind of error or over-
sight of the 1939 British “decision” and British conduct concerning the
so-called “Zubarah region” would be disregarded. In Zubarah, the Bah-
raini thesis of the original title would prevail over a long series of con-
sistent and uniform British views, Bahrain’s own admissions from the
nineteenth century onwards, and the relevant conventions and agree-
ments concluded by Great Britain with Bahrain, Qatar and the Ottoman
Empire.

291. However, as indicated, the arbitral res judicata argument is not
the only legal argument alleged by Bahrain in its search for a derivative
title to the Hawar Islands. Bahrain also pleads effectivités and uti possi-
detis juris, giving the latter priority in the hearings. Thus, the Independent
State of Bahrain and the Al-Khalifah Independent Ruler of Bahrain
(terms used in the text of the 1861 and 1880 Agreements with Great Brit-
ain and in other British documents filed) pleaded before the International
Court of Justice in the year 2000, and at the eleventh hour, that, after all,
Bahrain was a mere territory or colony of the British Crown until 1971!
Thus, the subjects, territories and dependencies of Bahrain so greatly
emphasized in the argument relating to original title were subjects, terri-

324
361 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

tories and dependencies of the British Crown! The principle of uti possi-
detis juris is, however, an objective principle or norm of international law
and not the product of subjective constructions of litigants in difficulties.

292. Thus, at the end of the oral phase, Bahrain offered the Court an
a la carte menu of four dishes as a possible source of a derivative title to
the Hawar Islands, namely: (1) uti possidetis juris; (2) the 1939 British
decision on the Hawar Islands; (3) title; and (4) the effectivités. It is crys-
tal clear that the first two dishes (possible derivative titles) are supposed
to cover the poor quality, for Bahrain, of the original title and of the
alleged effectivités. It is also clear that the object and purpose of this
move was to maintain Bahrain’s presence on the Hawars initiated by the
clandestine occupation in 1937 of part of Jazirat Hawar, an occupation
made without international legal title and in violation of Qatar’s original
title. In any case, it should be noted that in the a la carte menu, Bahrain’s
alleged original title to the Hawar Islands has already become just “title”.

293. In fact, the a la carte menu is nothing more than quieta
non movere in the Hawar Islands dispute. It is a quieta non movere which
dares not speak its true name. It is also evident that the invocation of
uti possidetis juris was an attempt to give effect to the British “decision”
of 1939 on the Hawar Islands by other means. The obvious purpose of
invoking uti possidetis juris is to caulk the leaks of the res judicata argu-
ment in the dispute over the Hawar Islands.

294. Because the Court’s finding in the dispute over the Hawar Islands
is based upon a certain interpretation of the 1939 British “decision”, we
will begin by considering that “decision”. We will then go on to review
the two other possible sources of derivative title invoked by Bahrain,
namely effectivités and uti possidetis juris.

B. The 1939 British “Decision” on the Hawar Islands

1. The 1939 “decision” is not an arbitral award with the force of res
judicata

295. In its search for a derivative title to the Hawar Islands, Bahrain
invoked the 1939 British “decision” on the Hawar Islands. This decision
was in fact notified to the Ruler of Qatar and the Ruler of Bahrain by
letters dated 11 July 1939, signed by T. C. Fowle, British Political Resi-
dent in the Persian Gulf. These letters stated the following:

“on the subject of the ownership of the Hawar Islands, I am directed
by His Majesty’s Government to inform you that, after careful con-

325
362 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

sideration of the evidence adduced by [the Sheikh of Qatar and the
Sheikh of Bahrain], they have decided that these Islands belong to
the State of Bahrain and not to the State of Qatar” (Memorial of
Bahrain, Vol. 5, Anns. 287-288, pp. 1182-1183).

296. Bahrain characterizes the above “decision” as an arbitral award
with res judicata force. The a la carte menu even uses a single term to
describe this plea: res judicata. Moreover, Bahrain questioned the Court’s
jurisdiction to decide the various matters raised by Qatar concerning the
1939 British decision on sovereignty over the Hawar Islands. The Judg-
ment rejects the Bahraini characterization of the 1939 British “decision”
as an arbitral award with the force of res judicata and, furthermore, con-
firms the Court’s jurisdiction to adjudicate the Hawar Islands dispute
in the present case, in the light of the text referred to in the 1990 Doha
Minutes as the “Bahraini formula”.

297. 1 share that conclusion in the Judgment. For the 1939 British
“decision” to have definitively settled the issue of sovereignty over the
Hawar Islands, the “decision”, independently of its validity, should be a
final legal binding decision for Qatar and Bahrain in international law.
Short of that, the “decision” could not have definitively settled the dis-
pute over the Hawar Islands raised by Bahrain’s first written claim of
28 April 1936 and by the clandestine occupation in 1937 of the northern
part of Jazirat Hawar. I therefore understand Bahrain’s efforts to present
the British “decision” as an international arbitral award or an adjudica-
tion with the force of res judicata.

298. The 1939 British “decision” does not qualify as a binding arbitral
award because of the absence of several fundamental elements in the defi-
nition of an “international arbitration”. Certainly, the declared formal
object of the British “decision” was apparently the settlement of a “dis-
pute between States”, namely between Bahrain and Qatar. It must be so
for Bahrain’s argument on res judicata. But, if it was so, how can this
proposition be reconciled with its uti possidetis juris plea? The res judi-
cata plea and the uti possidetis juris plea are factual and legally incom-
patible. Nevertheless, both are pleaded by Bahrain in this case. The prob-
lem, however, is not Bahrain’s thesis on each of those counts, but the
facts relating thereto. Were Bahrain and Qatar in 1936-1939 “States”
able as such to participate in an international arbitration and were they
thereafter, in 1971, British colonial territories? Why? How did this trans-
formation take place? Bahrain has not made any effort to explain this
matter. However, these are facts which Bahrain should have clarified.
Otherwise, one of the two pleas would necessarily have had to fail,
because they are mutually exclusive.

326
363 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

299. Both Bahrain and Qatar were States under international law in
1936-1939 and in 1971 (and recognized by Britain as such on both dates).
Therefore, Bahrain and Qatar could have been parties in the 1930s to an
international arbitration. But, none of them was party to the alleged arbi-
tration because there was no such arbitration in 1938-1939, the reason
being that other essential elements of the definition of “international
arbitration” were not present in the 1939 British “decision” and related
procedure. The missing elements are broadly speaking: (1) the consent of
the States parties to the dispute to submit to arbitration; (2) the choice of
arbitrator or arbitrators by the States parties; (3) the definition by the
States parties of the subject of the arbitration; (4) the application of pro-
cedural arbitral rules based upon the principle of equality of arms; and
(5) the respect for international law as the basis of the arbitral decision,
except to the extent that a non-existent compromis would have provided
otherwise. Furthermore, the procedure was concluded without an award
(sentence). Thus, neither the opening nor the closing, nor the intervening
procedure, was arbitral in character under international law.

300. To consider that the British Government and the British Govern-
ment of India as a whole, together with their entire Administration, con-
stituted an arbitral tribunal is something which defies my imagination.
All I know for certain is that the gentlemen involved never drew any dis-
tinction between when they were acting in a diplomatic or political capa-
city or as arbitrators.

301. In any case, it should be pointed out that Weightman’s Report to
Fowle of 22 April 1939, entitled “Ownership of Hawar Islands”, is con-
sidered to be the basis of the 1939 British “decision”. This being so,
Weightman signed that report as “Political Agent, Bahrain” and
addressed it to “The Political Resident in the Persian Gulf”, namely to
Fowle. Thus, at that level at least, those involved in the so-called “arbi-
tration” were the British political and diplomatic authorities in the field
dealing in that capacity with the Ruler of Bahrain and the Ruler of
Qatar, as well as with the Adviser to the Ruler of Bahrain, Mr. Belgrave,
and the representatives of the interested oil companies! 1 have always
been an admirer of George Scelle, and of his doctrine of “dédoublement
fonctionnel”, but where “international arbitration” is concerned, an old
and respectable institution in international law, there are limits which
should never be ignored.

302. International arbitration, judicial settlement, and other peaceful
means of settlement are based upon the principle of consensuality. The
parties to the dispute must give their consent to the arbitration as well as
to the definition of the other elements referred to above. But Qatar and
Bahrain did not conclude a convention to arbitrate in 1938, did not
choose their arbitrator or arbitrators, did not conclude a compromis gov-

327
364 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

erning the arbitration and defining its object, the applicable law, rules of
procedure, etc. Yet if it was not an international arbitration, how could
the 1939 British “decision” (independently of its validity) be res judicata
or have become so in international law? In fact, the 1939 British “deci-
sion” is not the product of a jurisdictional organ or of a political organ
acting in casu in a jurisdictional capacity. Thus the “decision” cannot
have the finality of res judicata; it does not express the legal truth / vérité
légale) non-varietur. Political decisions may have binding effects but not
res judicata binding effects. For example, the binding decision which the
Security Council of the United Nations may adopt under Chapter VII of
the United Nations Charter are binding for Member States but they lack
the force of res judicata. The Council may change those decisions at any
moment.

303. The two separate letters of 11 July 1939 sent by the British politi-
cal authorities in the Gulf to the respective Rulers of Qatar and Bahrain
referred to above are mere diplomatic communications or notifications.
They do not enclose or append any arbitral award (sentence), whether
reasoned or not. International arbitral awards, such as the Judgments of
this Court, are however formal international documents and are the
result of equally formal international procedures. Res judicata is precisely
a notion of procedural law intrinsically linked to the form adopted by the
procedure and decision concerned and the jurisdictional character of the
organ adopting it. Independently of the name given to it (arbitration,
adjudication, enquiry, etc.), the 1938-1939 British “procedure” was some-
what far removed from that, as recognized in British documents subse-
quent to the 1939 “decision”. For example, the concluding paragraph of
Long’s confidential Foreign Office minutes of 10 June 1964 contains the
following:

“Neither of the two Rulers was asked beforehand to promise his
consent to the award, nor afterwards to give it. HMG simply ‘made’
the award. Although it followed the form of an arbitration to some
extent, if was imposed from above, and no question of its validity or
otherwise was raised. It was quite simply a decision which was taken
for practical purpose in order to clear the ground for oil conces-
sions.” (Reply of Bahrain, Vol. 2, Ann. 2, p. 4; emphasis added.)

304. The purpose was not therefore to decide the matter through an
arbitration consented to by the Rulers of Qatar and Bahrain. There was
no international arbitration between Qatar and Bahrain in 1938-1939
and the 1939 British “decision” communicated to the Rulers was not an
international arbitral award carrying with it an international legal obliga-

328
365 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

tion to submit in good faith to the “decision”. The main consequence of
this conclusion for the present case is, in my view, that the 1939 British
“decision” is not applicable law between the States Parties to the present
case. Internationally, the “decision” is no more than an historical fact or
event like many others in the present case. It does not make law govern-
ing the Parties’ mutual relations. Within the British domestic order, it
may be an act of the British Government or of the British Administration
or something else, but at the international level it is certainly not a legally
binding international arbitral award for any of the Parties to the present
case.

305. However, notwithstanding its rejection of the Bahraini charac-
terization of the 1939 British “decision” as an arbitral award or adjudica-
tion with the force of res judicata, the present Judgment finds that Bah-
rain has sovereignty over the Hawar Islands by virtue, precisely, of that
British “decision”. It does so through a construction based upon a for-
malistic reading of some letters which, in my opinion, is incomplete and
legally erroneous. In effect, for the majority of the Court, the 1939 British
“decision” (the Judgment does not add any epithet to the term “deci-
sion”) is a decision with permanent legally binding effects for the Parties
in the present case by virtue, apparently, of the consent given in 1938 —
according to the Judgment — by the Ruler of Qatar and the Ruler of
Bahrain to the British procedure of 1938-1939 relating to the Hawar
Islands. There is no doubt that this finding poses a number of questions
of international law. I intend to state my opinion in some detail on the
major ones in the following paragraphs.

306. In the first place, it must be said that it is the manner in which the
Judgment determines the consent of the Rulers in the 1938-1939 British
procedure which leads to the conclusion of the majority. The method
used to ascertain consent consists in approaching the question, in par-
ticular the issue of the Ruler of Qatar’s consent, in a relatively abstract
manner, in other words detached from the background to the 1938-1939
British procedure and the circumstances surrounding the participation of
the Ruler of Qatar in that procedure. The significant events of 1936 and
1937 to which I will refer below play no major role in the determination
by the Judgment of the Ruler of Qatar’s consent to the said procedure.
Moreover, the Judgment totally ignores the impact on this issue of a
series of “legal details” such as, inter alia, the fact that the Ruler of Qatar
was the holder of the original title to the Hawar Islands as recognized by
Great Britain up to 1936, as well as the oil negotiations at the origin of
the alteration, in 1936, of Britain’s previous recognition of the Hawar
Islands as a part of the territory of the Ruler of Qatar.

307. It is true that Bahrain’s first written claim to the Hawar Islands in
1936 preceded the alleged consent to the British adjudication of 1938-

329
366 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

1939 by the Ruler of Qatar and, consequently, the fact of the lateness of
Bahrain’s claim does not intervene as such in the particular question of
verifying the reality of the consent of the Rulers to the said procedure.
But it is likewise true that the facts referred to above are of fundamental
importance to analysing the validity of the 1939 British “decision”, as
well as the merits of Bahrain’s related submissions and arguments. One
should not confuse the 1938-1939 British procedure on the Hawar Islands
with the present proceedings before the Court. In any case, the 1939 Brit-
ish “decision” is not by its very nature a decision binding the Court in the
present case. International law speaks with a different voice on the
dispute over the Hawar Islands than the 1939 British “decision” and the
latter is by no means a legal obstacle preventing the Court from ruling
on the merits of that dispute in accordance with international law.

2. Events to be taken into account in determining the legal effect of the
1939 “decision” for the Parties

308. Reverting to the analysis made in the Judgment, we first note
with satisfaction that the reasoning of the Judgment begins by stating
that: “Jn order to determine the legal effect of the 1939 British decision,
the events which preceded and immediately followed its adoption need to
be recalled” (para. 117 of the Judgment; emphasis added). Yet our satis-
faction with that statement was short-lived, because the events actually
taken into account by the Judgment began on 10 May 1938 (para. 118 of
the Judgment) and ended on 18 November 1939 (para. 135 of the Judg-
ment). No event before 10 May 1938 or after 18 November 1939 is taken
into account by the Judgment for its determination of the issue of con-
sent to the 1938-1939 British procedure. In the light of the information
and evidence in the case file, I find this lacuna very surprising. That is to
say that I have found no legal or logical explanation to justify such a
lacuna because the case file contains quite a number of other relevant
events having a bearing on the consent issue.

309. The need to take into consideration events before and after the
above-mentioned dates is, in my opinion, quite fundamental to determin-
ing: (1) the scope of the British Government’s power or competence to
adopt a “decision” with binding legal effects for Qatar and Bahrain; and
(2) the validity or invalidity of the Ruler of Qatar’s consent to the 1938-
1939 British procedure however it is characterized.

310. Recalling the relevant events of 1936 and 1937 is therefore fully
in order. Without some information on them, the 1938-1939 British
procedure and the 1939 British “decision” cannot be understood in the
light of Great Britain’s position for decades on the extent of the respec-

330
367 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

tive territories of Qatar and Bahrain. The purpose of the whole diplo-
matic operation beginning in 1936 was to enlarge the potential amount
of “Bahrain oil” by artificially — and in the face of Qatar’s original title
— enlarging the “territory of Bahrain”, on condition that a share of any
new “Bahrain oil” would be allocated to the Angio-lranian Oil Company
through its subsidiary the PCL. This explains why some aspects of the
entire operation only began to be disclosed to the Ruler of Qatar in
1938, namely when the real decision (the British provisional decision
of 1936) had already been taken and the situation in Jazirat Hawar
was already somewhat modified by Great Britain thereby permitting
the 1937 clandestine occupation of the northern part of that island by
Bahrain. The reference in the minutes of 30 December 1937 by Rendel, of
the Foreign Office, to the effect that “as regards to the Hawar Islands...
I cannot help regretting that the India Office went so far as they seem
to have done in allotting these islands to Bahrain” (Reply of Qatar,
Vol. 3, Ann. III.56, p. 351: emphasis added) deprives the “British
1938-1939 procedure” of any legal import in international law as a
meaningful procedure aimed at a “decision” with permanent binding
legal effects for the participating Rulers.

311. Thus, the actual British decision on the Hawar Islands, namely
the /936 British “provisional decision”, was taken without the consent
and/or knowledge of the Ruler of Qatar. The confidential Foreign Office
minutes of 10 June 1964, entitled “sovereignty over Hawar Islands” and
signed by G. C. W. Long, retrospectively describe the events leading to
the adoption of that decision as follows:

“3. The first stage was from April to July, 1936. In a letter
dated April 28, 1936, (E 3439) the Political Agent, Bahrain, reported
that Bahrain, stimulated by prospective oil concessionaires, had put
forward a claim to Hawar. He observes that “it might... suit us
politically to have as large an area as possible included under Bah-
rain’. The Political Resident supported this attitude and the matter
was discussed, together with related oil questions, at a meeting in
Whitehall. As a result, in a letter to Mr. Skliros of Petroleum Con-
cessions Limited, dated July 14, 1936, it was stated that “on the basis
of the evidence at present before H.M.G. it appears that Hawar
belongs to the Shaikh of Bahrain, and that the burden of disproving
his claim would lie on any other potential claimant’. (E 4490).”
(Reply of Bahrain, Vol. 2, Ann. 2, p. 2; emphasis added.)

Other documents in the case file confirm the accuracy of Long’s descrip-
tion above.

312. In fact, no events prior to 1938 were disclosed to the Ruler of
Qatar at the relevant time or to general public opinion either by the

331
368 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

British representatives or agents concerned or by the Ruler of Bahrain.
Even the occupation by Bahrain in 1937 of the northern part of Jazirat
Hawar made under the “umbrella” of the 1936 British “provisional deci-
sion” was a clandestine event. Regarding the actual conduct of the Ruler
of Bahrain, a confidential letter of Gastrell, British Political Agent at
Bahrain, to the British Political Resident in the Gulf, dated 30 July 1933,
indicates that, as regards the designation of the area of the new Bahraini
concession, the Sheikh of Bahrain and his son objected to the “islands”
being shown by name. They explained, according to the letter, that the
islands off Qatar were the cause of this hesitancy (here the Sheikh added
that the Foreign Office knew these islands were dependencies of Bahrain
and that there was a 90-year-old agreement somewhere to this effect)
and, therefore, to avoid any misunderstanding caused by the omission
of these islands, they would like the area to be called “Bahrain Islands”
(Memorial of Qatar, Vol. 6, Ann. IIE.87. p. 448). The Court has no evi-
dence at all of the said 90-year-old Agreement mentioned in 1933 by the
Ruler of Bahrain to the British Political Agent at Bahrain.

313. In any case, the denomination suggested by the Ruler of Bahrain
was accepted by the Political Resident in a telegram of 31 July 1933 to
the Foreign and Political Department of the Government of India, who
pointed out however that “Hawar Island is clearly not one of the Bahrain
group” (Memorial of Qatar, Vol. 6, Ann. III.88, p. 451). The written
claim of Bahrain on the Hawars of 28 April 1936 enumerated a number
of the claimed islands. But still on 5 July 1937, the British Political Agent
in a memorandum asked Belgrave to inform him “what the Bahrain
Government consider[s] the Bahrain Archipelago consists of” (Memorial
of Bahrain, Vol. 6, Ann. 333, p. 1454; emphasis added). To this query,
Belgrave answered that “in addition to the large islands forming the
Bahrain archipelago, which are well known, the following islands belong
to Bahrain”, listing, inter alia: “The Hfajwar archipelago, consisting
of nine islands near the Qatar coast” (ibid., Vol. 6, Ann. 334, p. 1455;
emphasis added). The Ruler of Qatar was at no moment informed
of these exchanges.

314. The Ruler of Qatar was not informed either of quite a number of
other relevant events which took place after 1933 and before 1939, as
proved by the evidence in the case file relating to the negotiations on the
Bahraini “unallotted area” (see, for example, a letter from Belgrave with
enclosed maps dated 8 June 1938, to the British Political Agent at Bah-
rain (Supplemental Documents of Bahrain, Ann. 9, p. 88)). In fact, the
idea of claiming the Hawar Islands as part of the territory of Bahrain
would appear to have been suggested to the Al-Khalifah Rulers probably
in about 1933 by some representatives of the American oil companies
participating in the negotiations concerning a new Bahraini oil conces-
sion relating to the so-called “‘unallotted area”. At the time, those private

332
369 = DELIMITATION AND QUESTIONS (DISS, OP. TORRES BERNARDEZ)

American interests believed that there was oil in the Hawar Islands. It
took them some time to realize that this was not the case, but, by then,
the 1936 Bahraini claim to the Hawar Islands and the 1936 British un-
disclosed “provisional decision” were already political facts of life. Thus,
after about 150 years of silence by the Al-Khalifah Rulers of Bahrain
concerning the Hawar Islands (see Section A of this part of the opinion),
their silence was suddenly broken in 1936 for reasons which had nothing
to do with Bahrain’s original title to the Hawar Islands as claimed by it in
the current proceedings. The 1936 Bahraini claim was a response to other
reasons and expectations on the part of both Bahrain and Great Britain.

315. The evidence defeats any possible allegation of Bahrain’s fairness
in the events preceding the 1938-1939 British procedure. Belgrave, Adviser
to the Ruler of Bahrain, was a participant in the British representatives’
operation aimed at making the Hawar Islands part of the Bahraini “un-
allotted area”. The letter from Skliros of the PCL of 29 April 1936 relating
to negotiation with the Ruler of Bahrain on the “Bahrain unallotted
area” confirms this. Skliros’s letter indicates that the Ruler “has com-
menced by claiming that the Island of Hawar is part of his dominions”
(Memorial of Qatar, Vol. 7, Ann. 111.104, p. 21). It is precisely in this
letter that Skliros asks Walton of the India Office the question: to whom
does the island belong? At that moment, Skliros had no doubt that,
because of its location, the island belonged to Qatar and that it was
included in the 1935 Qatar oil concession to the PCL, and made the fol-
lowing interesting observation:

“The island is shown on the official map of Qatar which was
signed by the Sheikh of Qatar and by Mr. Mylles and which forms
part of the Qatar Concession. This map, I believe, was seen and
approved by the Political Resident, and, perhaps, the India Office.
All this points to its forming part of Qatar and not of Bahrain.”
(Ibid. ; emphasis added.)

However, when in July 1936 Skliros was informed of the British “provi-
sional decision” of 1936 the PCL decided to participate fully in the opera-
tion aimed at making of the Hawar Islands part of the “Bahraini un-
allotted area”. The position adopted by BAPCO in response finally made
the whole affair a complete fiasco for the British officials concerned and
for PCL. The last letters in the case file exchanged between the British
officials on this episode, with its various alternative proposals, are frankly
pathetic, the practical result of the operation being a territorial trunca-
tion of the area of the 1935 Qatar PCL concession without compensation
and, above all, an assault on the territorial integrity of the State of Qatar
as hitherto recognized by Great Britain.

333
370 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

3. Was the British Government in 1938 empowered to make a “deci-
sion” with legally binding effects under international law for Qatar
and Bahrain in their mutual relations?

316. In this connection, it must be underlined that, in the absence of
an applicable principle of general international law (i.e., the uti possidetis
juris principle, see below), or of a quite specific conventional rule (1.e., in
the conventions and agreements then in force between Great Britain and
Bahrain and Great Britain and Qatar), or of a previous agreement to that
effect between Bahrain and Qatar (inexistent), the power or authority of
the British Government to decide, in 1939, with legally binding effects
under international law, title or sovereignty over the Hawar Islands had
indeed to be based upon the ad hoc consent of both the Ruler of Qatar
and the Ruler of Bahrain having the same object and purpose. And in
both cases consent must be valid informed consent freely given according
to international law.

317. The consent actually given by each of the two Rulers to the 1938-
1939 British procedure is therefore, in the first place, an indispensable
legal requirement for determining the power or authority of the British
Government in 1939 to adopt a “decision” on the Hawar Islands, as well
as the legal effects of the “decision”. Thus, what is at stake in the consent
issue is not only the question of the existence and validity of the Ruler of
Qatar’s consent to the 1938-1939 procedure but also, and above all, the
legal power or authority of the British Government, on the outcome of
the procedure concerned, to take a “decision” with legally binding effects
in international law for Qatar and Bahrain regarding title or sovereignty
over the Hawar Islands.

318. Moreover, I am unable to regard as legally correct a proposi-
tion to the effect that possible consent by a party to a given procedure
of settlement implies, without further ado, consent to be legally bound
by the outcome of the procedure concerned. I do not see in the Ruler
of Qatar’s letters referred to in the Judgment any consent on his part
to be /egally bound in international law by the future “decision” of
the British Government on the Hawar Islands. Nor does the Court
have any proof that the Ruler of Bahrain assumed such an undertaking
vis-a-vis the British Government. That Bahrain consented to the British
procedure, as stated in the Judgment, might be induced from its conduct,
but there is no written evidence of Bahraini consent to the British
procedure in writing. Furthermore, there is no evidence of any kind
whatever of any agreement concluded between both Rulers defining
the jurisdiction of the British Government and assuming the inter se
obligation that the future British “decision” would be legally binding

334
371 = DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

for Qatar and Bahrain in their mutual relations.

319. In any case, the consent of the Ruler of Qatar was not given
explicitly, as regards the British Government’s power to adopt a decision
which would be a legally binding decision for Qatar in international law.
The passage in the Ruler of Qatar's letter of 27 May 1938 requesting
Weightman, as British Political Agent in Bahrain:

“to stop the activities and interferences which the Bahrain Govern-
ment are undertaking in Hawar Islands until the matter is decided
by His Majesty’s Government in the light of justice and equity as
you have said in your letter” (Memorial of Qatar, Vol. 7,
Ann. 11.157, pp. 289-290)

is by no means an undertaking to accept a political or other decision with
legally binding effects in the international law on title or sovereignty over
the Hawar Islands. What the Ruler was asking of Weightman was “to
stop the activities and interferences which the Bahrain Government are
undertaking in Hawar Islands”, namely to stop the effects of Bahrain’s
clandestine occupation of the northern part of Jazirat Hawar in 1937.
The second part of the sentence is a reference to Weightman’s letter of
20 May 1938 and not an acceptance in advance by the Ruler of Qatar
that the future decision of the British Government would be a legally
binding decision on title or sovereignty under international law.

320. In its reasoning, the Judgment assumes that the consent of the
two Rulers was a consent given by them to be legally bound in law by the
future “decision” of the British Government. This is inferred by the Judg-
ment through an interpretation of the relevant letters of the Ruler of
Qatar and, apparently, from the conduct of the Ruler of Bahrain who
took part in the 1938-1939 procedure. I cannot share this inference
endorsed by the majority of the Court. What is at stake here is the prin-
ciple of consensuality, namely a principle of international law of para-
mount importance for determining competence of a third, the British Gov-
ernment in this case, in matters relating to any kind of peaceful settle-
ment of disputes between States, a principle in whose application and
interpretation the Court has been particularly strict until the present
Judgment. I am therefore in total disagreement with the implied conclu-
sion of the Judgment on the scope of the power or authority of the
British Government in 1939 to make a “decision” with legally binding
effects for the Parties under international law.

335
372 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

4. Did the Ruler of Qatar accept the 1939 British “decision” as a
legally binding decision for him under international law?

321. It follows from the above that, without the subsequent consent of
the Rulers, the 1939 British “decision” is not internationally opposable as
law to Qatar or to Bahrain before the International Court of Justice.
Only by the acceptance of both Qatar and Bahrain could that “decision”
become binding law in the relations between the two States; and this is
not because the “decision” is an international arbitral award with the
force of res judicata, which it is not, but as a result of the legal effects in
international law of the principle of consent. However, the Ruler of Qatar
protested immediately he was notified of the “decision” of 11 July 1939.
Additional protests against the decision were subsequently made by
the Ruler of Qatar, for example, on 4 August 1939 (Memorial of Qatar,
Vol. 8, Ann. HI.211, p. 49), on 18 November 1939 (ibid, Vol. 8,
Ann. 11.213, p. 59), and again on 7 June 1940 (ibid., Vol. 8, Ann. II1.219,
p. 85).

322. The Ruler of Qatar further protested against the 1939 British
“decision” on the Hawars in a letter of 13 July 1946 (ibid, Vol. 8,
Ann. 111.245, p. 203) and renewed his protest against the “decision” in a
letter to the British Political Agent of 21 February 1948, on the occasion
of the notification of the 1947 British sea-bed dividing line (ébid., Vol. 8,
Ann. {II.259, p. 277), as well as in 1965. Thus, since 1939 the Ruler of
Qatar has reiterated his protest at intervals and in any case, in his letter
of 18 November 1939 to the British Political Resident, Prior, made a
patently clear and comprehensive reservation of his rights to the Hawar
Islands. Those protests, and subsequent Qatari efforts to put the dispute
to peaceful international means of settlement (arbitration in the 1960s:
mediation and judicial settlement later on) negate any implication of
acquiescence on the part of the Ruler of Qatar in the 1939 British “deci-
sion” as a legally binding decision in international law independently of
its characterization, as well as with respect to the clandestine occupation
of the northern part of Jazirat Hawar by Bahrain in 1937.

5. Was the Ruler of Qatar’s consent as determined by the Judgment
informed consent to a meaningful procedure freely given?

323. Consent to any kind of peaceful settlement procedure, as to the
Court’s jurisdiction, must be explicit consent freely given. It is not to be
presumed, in particular, where essential relevant information was all
along concealed from the party giving consent. Is it reasonable to believe

336
373 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

that the Ruler of Qatar would have referred to “justice” and “equity” if
he had been aware of the British “provisional decision” of 1936 and of
the active contribution of some of the British representatives in the Gulf,
including Weightman and Fowle, to the performance of that decision in
the field as was the case in 1936-1937? Where the Ruler of Qatar is con-
cerned, Great Britain recognized him, in May 1938 as before, namely as
the Ruler of the whole of Qatar: and Britain had guaranteed the integrity
of his territory by the 1916 Anglo-Qatari Treaty and the assurances of
the 1930s linked to the 1935 Qatari oil concession. There was no informed
and free consent by the Ruler of Qatar to the procedure. The procedure
was imposed upon him through fraudulent conduct, political and diplo-
matic pressures by British political agents in the Gulf, and the fact that
the British had allowed the clandestine occupation in 1937 of a part of
his territory by Bahrain, namely Jazirat Hawar. Bad faith, fraud and
coercion were very much present in this sad episode.

324. As shown by the letters quoted in the Judgment — and by other
evidence in the case file — the so-called “consent” of the Ruler of Qatar
to the 1938-1939 British procedure was undoubtedly imposed upon him
as indeed recognized, after 1939, by certain British political representa-
tives and officials, as well as legal advisers and officers of the British
Foreign Office. Prejudgments, misinformation, fraudulent conduct
and coercion are part and parcel of the circumstances surrounding this
“consent”. I find that all these circumstances are proved, beyond any
reasonable doubt, by the British documentary evidence before the Court.
Sixty years after 1939, this documentary evidence is also in the public
domain. It is not possible for me to ignore this proof of misinformation,
fraud and coercion.

325. The Ruler of Qatar was in fact forced to participate in the 1938-
1939 British procedure. No alternative device was left to Him. Thus,
“consent” without freedom of choice is no real or actual consent. It is
something else. It is true that, in 1938, he submitted to the British
Government a claim concerning the Hawar Islands, a part of his territory
recognized by that Government until that very moment, yet he knew
nothing about the British “preliminary decision” of 1936. Moreover,
his “consent” to submit such a claim was the result of pressure put upon
him by informing him of the following:

(1) that as a result of the formal occupation of the “Islands” for some
time by the Bahrain Government, the latter possessed a prima facie
claim to them;

(2) that His Majesty’s Government did not intend to stop or put an end

337
374 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

to the interferences and activities of Bahrain in Jazirat Hawar, as
requested by the Ruler of Qatar;

(3) that the only path which remained open to the Ruler of Qatar was to
himself submit a formal claim to the Hawar Islands; and

(4) that His Majesty’s Government would view with displeasure any
direct action by the Ruler of Qatar to recover physical possession of
the Islands.

I find that the interplay of these elements constitutes in international law
what amounts to a form of coercion on a Head of State, the Ruler of
Qatar in the present case.

326. If, as endorsed by the Judgment, there was consent, or implied
consent, by the Ruler of Qatar, that “consent” would be clearly vitiated
consent by any standards of contemporary international law and, conse-
quently, without permanent legally binding effects (see in this respect the
DubailSharjah Arbitration). But the Judgment affirms not only the exist-
ence of such “consent” but also its legal validity (see paragraphs 139-145
of the Judgment).

327. I do not deny that “consent” was given by the Ruler of Qatar to
participate in the 1938-1939 British procedure as the matter was pre-
sented to him by Weightman. But whatever the scope of that “consent”
to participate, it is void in law because, as indicated, it was not informed
and freely given. In addition, it was not “consent” without conditions. As
stated in Weightman’s letter of 20 May 1938 and in the Ruler of Qatar’s
letter of 27 May 1938, His Majesty’s Government would decide the mat-
ter “in the light of truth and justice”. The evidence in the case file proves
to me beyond any reasonable doubt, that from its very beginning, the
1938-1939 British procedure did not meet the dictates of “truth” and
“justice”. Facts were concealed from the Ruler of Qatar throughout the
procedure, as already indicated, and “justice” was not respected because,
for example, the equality of the parties in the procedure was flatly
ignored,

328. To begin with, the Ruler of Qatar’s letter of 10 May 1938, fol-
lowing his oral protest of February 1938, is not part and parcel of the
1938-1939 British procedure. In his letter of 10 May 1938, the Ruler of
Qatar did not ask for any British decision on his sovereignty over the
Hawar Islands. On the contrary, as indicated above, the letter is a com-
plaint against the Bahrain Government’s interferences at Hawar. What
the Qatar Ruler was asking of the British authorities was to stop those
interferences or activities of the Bahrain Government at Hawar, because
the Ruler was supposed to do so under the 1916 British-Qatari Treaty.
Consequently, the letter of 10 May 1938 is a reaffirmation by the Ruler of
Qatar of his country’s sovereignty over the Jazirat Hawar. Even in his
letter of 27 May 1938 — Qatar’s formal claim within the British pro-

338
375 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

cedure — the Ruler of Qatar stated: “J would submit my formal com-
plaint against the steps taken by the Bahrain Government in islands belong-
ing to others...” (Emphasis added.)

329, The purpose of the Ruler of Qatar’s appeal to the British authori-
ties was just that. He was unaware at that time that the Bahraini activities
and interferences at Hawar were made under the umbrella of the 1936
British “provisional decision” and were allowed and encouraged by the
very British authorities in the Gulf with whom he was exchanging corre-
spondence. Thus, when in his letter of 20 May 1938 Weightman informs
the Ruler of Qatar that:

“It is indeed a fact that by their formal occupation of the Islands
for some time past the Bahrain Government possesses a prima facie
claim to them, but Iam authorized...” (emphasis added),

Weightman knew perfectly well:

(1) the meaning of the expression “formal occupation of the Islands”,
and

(2) that such an occupation described as “for some time past” means in
fact as from 1937, and

(3) that the conclusion on the possession of a “prima facie claim” by
Bahrain had been decided by the British in 1936 without any consent
or participation by the Ruler of Qatar whatever.

330. The British Political Agent in Bahrain, Mr. Weightman, met the
Ruler of Qatar in Doha in February 1938. However, he did not reveal to
the Ruler of Qatar that Bahrain had already made a written claim to the
Hawar Islands on 28 April 1936 and that in July 1936 Great Britain had
already adopted a “provisional decision” in favour of the Bahraini claim.
These three facts are proved in the present proceedings not by hearsay or
affidavits, but by original British documents. Moreover, the 1936 “pro-
visional decision” was made known to Belgrave, the adviser of the Bah-
raini Government and, therefore, to the Ruler of Bahrain, and commu-
nicated by letter of 14 July 1936 to Skliros of the Petroleum Concession
Limited. Of all the interested parties, the only uninformed one was the
Ruler of Qatar, as recognized by paragraph 54 of the Judgment (a para-
graph included in the part of the Judgment which gives a brief account of
the history of the present dispute as a whole, but the Judgment makes no
reference to that fact in the paragraphs concerning the Hawar Islands
dispute).

331. Thus, during the fvo years preceding the 1938-1939 British pro-
cedure, highly relevant events were concealed from the Ruler of Qatar.

339
376 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

Weightman did not even report in writing to his superior, the British
Political Resident in the Gulf, Fowle, that the Ruler of Qatar had pro-
tested against news of activities by the Bahrain Government building and
drilling for water on Hawar, or the Ruler of Qatar’s assertion, as early
as February 1938, that the Hawar Islands belonged to Qatar and that the
Bahrainis had no de jure rights in Hawar (Memorial of Qatar, Vol. 7,
Ann. III.150, p. 255). Weightman later claimed to have reported all this
verbally to the British Political Resident, but the only written record of it
is a letter dated 15 May 1938 forwarding a copy of the Ruler of Qatar's
written protest of 10 May 1938 (ibid., Vol. 7, Ann. III.152, p. 263).

332. Still more self-explanatory is Weightman’s report on Hawar
included in his “Intelligence Summary”, in which he stated:

“I visited Hawar Island on the [5th April [1938] and inspected the
new Bahrain Police Post there. The fact that no complaint has been
received from the Shaikh of Qatar while this very solid building was
under construction is an interesting omission, apparently indicating
his acceptance of Bahrain’s rights in Hawar.” (Reply of Qatar,
Vol. 3, Ann. III.60, p. 374; emphasis added.)

In April 1938, Weightman thus saw for himself the Bahraini construction
activities on the main Hawar Island yet his remarks totally ignored the
oral protest by the Ruler of Qatar of February 1938. It is only in his letter
of 15 May 1938 to the Political Resident, Fowle, drafted some three
weeks after he had approved his “Intelligence Summary”, that Weight-
man finally confesses that: “It is true that on my visit to Doha in Febru-
ary Shaikh Abdullah bin Qasim stated that he had received information
that the Bahrain Government were building and were drilling for water
in Hawar, which they had no right to do.” (Memorial of Qatar, Vol. 7,
Ann. III.152, p. 263: emphasis added.) Thus Weightman himself was
finally forced to admit the complaint by the Ruler of Qatar, but in the
intervening period Bahrain, with the help of British officials in the Gulf
such as Weightman, tried to strengthen its claim to Hawar by developing
as much de facto presence as possible in the northern part of Jazirat
Hawar occupied in 1937 with the full knowledge of the said officials.

333. Thus, not only was the consent of the Ruler of Qatar not requested
at all between April 1936 and May 1938 but his protests against what was
occurring were flatly ignored at the very moment when Bahrain was
allowed to establish itself in Jazirat Hawar. The first formal British
request asking for the Ruler of Qatar’s position appears in Weightman’s
letter of 20 May 1938 and was drafted in a way not far short of an ulti-
matum considering the time constraints put on the Ruler of Qatar:

340
377 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

“My friend, 1 am sure you will realise how important it is that
your formal claim, supported by all evidence which you can pro-
duce, should be sent to me at the earliest possible moment, and
I trust you will use your best endeavours to ensure that there shall be
no delay in this.” (Memorial of Qatar, Vol. 7, Ann. ITI.156, p. 282;
emphasis added.)

When the Ruler of Qatar replied to Weightman by letter of 27 May 1938
(ibid., Vol. 7, Ann. IT1.157, p. 287), Weightman and other British officials
were actively proceeding, according to the documentary evidence before
the Court, on the clear assumption that, as approved in the July 1936
“preliminary decision”, for the British authorities the Hawar Islands
already appertained to Bahrain! And the Ruler of Bahrain did likewise,
as proved by documentary evidence concerning oil negotiations relating
to Bahrain’s unallotted area (see, for example, in this respect the enclosed
map from a letter of Belgrave of 8 June 1938 to the British Political
Agent, Bahrain (Supplemental Documents of Bahrain, Ann. 9)).

334. It follows from the foregoing that if there was legally valid con-
sent by the Ruler of Qatar in 1938, as determined by the present Judg-
ment, it was indeed a purposeless “consent”, because it was a “consent”
without any meaningful object and purpose and the British officials (like
the Ruler of Bahrain) knew it to be such. Yet “consent” without an
object and purpose is also “consent” without legally binding effects. The
British Government’s “decision on the matter”, to use the language of
Weightman’s letters to the Ruler of Qatar, was in fact devoid of any con-
tent. Indeed, the “matter” was at that time fictitious. It had been decided
by the British authorities in 1936!

6. Is the 1939 British “decision” a valid decision in international law?

335. The Judgment also assumes that the 1939 British “decision” is a
valid decision in international law. I am of a different opinion. In the fol-
lowing paragraphs, this opinion therefore analyses the 1939 British deci-
sion itself (not the Ruler of Qatar’s “consent”) from the point of view of
both its formal validity and its essential validity in law, account also
being taken of the truth and justice criteria as part and parcel of the
“obligation” assumed by the British Government vis-a-vis the Ruler of
Qatar in order to get his “consent”.

(a) The defects of the 1938-1939 British procedure as a ground of
the formal invalidity of the 1939 British “decision”

336. The validity of a decision, whatever its characterization (arbitral,

341
378 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

political, administrative, etc.) consists of both “formal validity” and
“essential validity” aspects. Both elements should be present for a deci-
sion or agreement to be binding or to have binding legal effect. In the
present case, formal invalidity involves consideration of the possible
defects of the 1938-1939 British procedure which was supposed to be car-
ried out in “truth” and “justice”. A review of this procedure, as it was
applied, is therefore essential for us to be in a position to conclude as to
the formal validity or invalidity of the 1939 “decision”.

337. In general, the procedure devised by the British authorities, Fowle,
Weightman and others, in close co-operation with Belgrave, adviser of
the Bahrain Government, was intended from the very beginning to invert
the respective roles of Bahrain and Qatar. Bahrain’s claim of 28 April
1936, the first written one relating to Hawar Island should have made
Bahrain the claimant party and in effect the very first British documents
refer to “the claim of Bahrain to the island of Hawar” (emphasis added;
see, for example, Loch’s letter of 6 May 1936 to the British Political Resi-
dent in the Gulf, Memorial of Qatar, Vol. 7, Ann. III.106, p. 29). Soon,
however, that term would be avoided. After the “1936 provisional deci-
sion” and the “1937 physical occupation” of the northern part of Jazirat
Hawar, Bahrain is never presented as the claimant by the British docu-
mentation. The purpose of the procedure organized from 1938 to the
“decision” of 1939 was clearly directed towards making Qatar the claim-
ant State, reserving for Bahrain the role of a “respondent” allowed to
submit a “counter-claim”. I also consider this a serious departure from
the fundamental principles of procedure devised by Fowle, British Politi-
cal Resident in the Gulf, as well as from good faith. On the advice of the
legal adviser to the Foreign Office in London, the Ruler of Qatar was
formally allowed to submit a rejoinder on the “counter-claim” of the
Ruler of Bahrain. However, the procedure was flawed throughout by the
role played in it by Belgrave, adviser to the Ruler of Bahrain, as shown
by the evidence in the case file.

338. From that evidence it appears in fact that Belgrave was perma-
nently in touch with the British Political Agent in Bahrain from begin-
ning to end of the 1938-1939 procedure, as in the years immediately
before it. There are also formal breaches of the adopted procedure, such
as Belgrave’s “preliminary statement” of 29 May 1938, entitled “The
Hawar Islands” (Memorial of Bahrain, Vol. 5, Ann. 261, p. 1106, and
Memorial of Qatar, Vol. 7, Ann. III.158, p. 291) never communicated to
the Ruler of Qatar, but listed in the Weightman Report on the “Owner-
ship of Hawar Islands” of 22 April 1939 “as a document in this case” (see
para. 2 (3) of the Weightman Report).

339. In the light of the documentary evidence submitted by the Parties

342
379 ~~ DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

relating to the 1938-1939 British procedure as applied, I consider that
Qatar has proved the following assertions to my satisfaction:

(1) bias on the part of certain British officials involved in the decision-
making process;

(2) the failure of the British authorities to give full effect to the principle
audi alteram partem in that process, in particular the fact that the
Ruler of Qatar was never shown

(i) a copy of the (uninvited) “preliminary statement” of Bahrain’s
case submitted by Belgrave on 29 May 1938 (see above), and

(ii) other evidence relied upon by Weightman in his final report to
Fowle of 22 April 1939;

(3) the absence of notification to the Ruler of Qatar of the Bahraini
claim of 28 April 1936 and of the British Government’s “preliminary
decision” of July 1936 in favour of Bahrain (an instance of pre-
judgment);

(4) the disparity in the length of time accorded to the two Rulers to
prepare their written materials in spite of the protests of the Ruler
of Qatar;

(5) the fact that none of the “evidence” tendered by Belgrave to Weight-
man on behalf of Bahrain was apparently subjected to critical scru-
tiny (a second instance of pre-judgment). Belgrave himself subse-
quently rectified some of his initial assertions regarding the so-called
effectivités of Bahrain at that time with respect to the Hawar
Islands.

340. I therefore dissent from the relevant conclusions of the Judgment
on the defects of the 1938-1939 British procedure recorded in para-
graphs 136-138 of the Judgment. And I also dissent from paragraph 140
of the Judgment which would appear to imply that the causes or grounds
of formal invalidity would apply only to international arbitral procedures
and awards. It should also be recalled in this connection that from 1939
onwards, British officials in the Gulf, such as Prior and Alban, consid-
ered the 1938-1939 procedure and “decision” as most unfair to Qatar
(see, for example, Memorial of Qatar, Vol. 8, Ann. II.229, p. 129) and,
in 1965, even the British Government appeared to agree to refer the mat-
ter to what was sometimes called a “neutral” international arbitration
(Memorial of Qatar, Jurisdiction and Admissibility, Vol. IT, Ann. 1.58,
p. 365).

341. The 1939 British “decision” is therefore vitiated by formal inva-
lidity because of the identified defects in the 1938-1939 British procedure
as actually conceived and applied. The allocation of the Hawar Islands to
Bahrain made by that “decision” is consequently not opposable in law to
Qatar in the present proceedings. This should have spared me the task of

343
380 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

going into the question of the essential validity of the 1939 British “deci-
sion”, because the absence of one of the two elements of validity indi-
cated suffices to render a decision invalid in law, international law
included. However, the Judgment having concluded as to the formal
validity of the 1939 British “decision”, I am obliged to add below some
additional considerations in order to explain why the said “decision” is
also invalid from the standpoint of the requirements governing essential
validity.

(b) The internal contradiction and arbitrariness of the 1939 Weight-
man Report as a ground of the essential invalidity of the 1939
British “decision”

342. The 1939 British “decision” was supposed to be a decision taken
by the British Government in the light of truth and justice and the
procedure was inspired, to some extent, by arbitration procedures. The
Parties submitted written claims and counterclaims as well as evidence.
Generally, though not exclusively, Qatar’s claim was based upon the con-
cept of contiguity and Bahrain's claim upon the concept of effectivités.
As already explained, these standards and procedures set forth by the
British authorities doubtless constituted a commitment of their own vis-
a-vis the Parties, which cannot be dissociated from the “consent” that the
British authorities obtained from the respective Rulers of Qatar and
Bahrain.

343. The letters of 11 July 1939 communicating the British “decision”
to the Rulers of Bahrain and Qatar were not reasoned but stated that the
decision was made “after careful consideration of the evidence”. More-
over, the Court knows the grounds on which the 1939 British “decision”
was made, namely the Report of H. Weightman, British Political Agent,
Bahrain, to Lt. Col. Fowle, British Political Resident in the Gulf, dated
22 April 1939. It is in this Report that the “evidence” is supposed to have
been carefully considered. Both Parties to the present case submitted the
Weightman Report as an annex to their respective written pleadings and
both of them considered that the Report constituted the basis of the
“decision” made by the British Government. Other documents in the case
file also confirm this position of the Parties. Furthermore, Weightman
himself informed his superiors that he had made an exhaustive study of
the evidence submitted by the Rulers and that, consequently, there was
no need for enquiries going further than the considerations and conclu-
sions presented by him in his Report (see also the endorsement of the
Weightman Report by Fowle, British Political Resident in the Gulf, in
his letter of 29 April 1939 to the Secretary of State for India in London,
Memorial of Bahrain, Vol. 5, Ann. 282, p. 1173). The “decision” of the
British Government communicated by the letters of 11 July 1939 is
indeed a decision made on the basis of the considerations and conclu-
sions of the Weightman Report. In other words, the merits of the 1939

344
381 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

British “decision” are to be found in the Weightman Report endorsed by
Fowle.

344. This being so, examination of the Weightman Report in the light
of the criteria applied in it becomes a matter of importance for determin-
ing whether the 1939 British “decision” is essentially valid in interna-
tional law. The Weightman Report contains however a manifest major
internal contradiction which, in my considered opinion, affects the essen-
tial validity of the 1939 “decision”. There is also arbitrariness. Internal
inconsistency and arbitrariness, as well as incongruity, are in law a cause
or ground which may affect the essential validity and, therefore, the
applicability of the decision concerned. This is recognized in the various
legal systems of the world to the point of being a general principle of law
(Art. 38 of the Court’s Statute). It must be added that internal inconsis-
tency may vitiate a decision independently of its judicial, administrative
or political character. In the case of administrative or political decisions,
these causes or grounds apply whenever the decision is based upon legal
reasoning or presupposition, as happens to be the case of the 1939 British
“decision” in the light of the Weightman Report.

345. In my opinion, the Weightman Report — which is a report evalu-
ating evidence in the light of legal principles and reasoning — reveals
some generally accepted grounds of essential invalidity. I do not see any
“incongruity” in it, but certainly internal contradiction (inconsistency)
and arbitrariness. The Report has internal contradiction, or inconsis-
tency, because the evaluation of evidence in the light of the principles
applied is inconsistent with its resulting conclusion. The Report is also
characterized by arbitrariness, because it does not apply the same prin-
ciples in the same manner to each of the parties, therefore ignoring the
principle of the equality of the parties in the procedure.

346. The Weightman Report, and therefore the 1939 British “deci-
sion”, does not reveal internal contradiction or arbitrariness with respect
to Jazirat Hawar. This is so because the reasoning and conclusion on
Jazirat Hawar is consistent. There are no internal contradictions or arbi-
trariness in that respect. To consider that, in the circumstances of the
case, physical possession should prevail over geographical contiguity may
certainly be wrong or questionable because of the flawed nature of the
alleged Bahraini effectivités prior to 1937, because the Bahraini occupa-
tion of the northern part of Jazirat Hawar in 1937 was indeed, inter alia,
very recent in 1938-1939, as well as for other reasons to be explained
below in this opinion. But there is nothing contradictory or arbitrary in
the application made by the Weightman Report of the principle of effec-
tive possession. In this respect, the Report analyses in detail, point by
point, the arguments and evidence submitted by the parties concerning
Jazirat Hawar, reaching a consistent conclusion. The admission of the

345
382 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

existence of the Bahraini effectivités in Jazirat Hawar together with the
finding of the absence of Qatari effectivités on that island leads the
Report — without contradictions or arbitrariness — and in the light of
the effective possession principle applied, to the conclusion that Jazirat
Hawar belongs to Bahrain.

347. Where the Weightman Report errs, contradicts itself and dis-
criminates between the parties is in the reasoning and conclusions con-
cerning the Hawar Islands other than Jazirat Hawar. In this respect the
Report limits itself to stating the following:

“The small barren and uninhabited islands and rocky islets which
form the complete Hawar group presumably fall to the authority of
the Ruler establishing himself in the Hawar main island, particularly
since marks have been erected on all of them by the Bahraini Gov-
ernment.” (Paragraph 13 of the Weightman Report in fine: emphasis
added.)

Here, the Weightman Report recognizes that there were no Bahraini
effectivités or activities in the Hawar Islands other than Jazirat Hawar.
But it applies to those islands the principle of proximity or contiguity to
Jazirat Hawar, presuming effective possession by Bahrain of the other
islands.

348. The benefits of presumed effective possession, based upon the
principle of geographical proximity or contiguity, are however denied to
Qatar notwithstanding:

(a) the contiguity or proximity of those Hawar Islands to the Qatar
mainland;

(b) the absence of any Bahraini occupation or effectivités in those
islands;

(c) the invocation by Qatar of that principle in the procedure, as
recognized by the Weightman Report; and

(d) the presumption of international law concerning sovereignty over
islands or groups of islands situated wholly or partly in the territo-
rial maritime belt of a given State.

There is therefore an internal contradiction and a double standard in the
application of the principle of presumed possession on the basis of geo-
graphical proximity or contiguity.

349. The proximity or contiguity of the other Hawar Islands to the
Qatar Peninsula is not even considered or referred to in the Weightman
Report. The internal contradictions and arbitrariness of the Weightman
Report is therefore obvious in this respect and certainly affects in law the
1939 British “decision”. The concept of “group” of islands referred to by
Weightman in his own “presumption” does not make good the defects of
the internal contradiction and double standard in applying the same prin-
ciple of law to Qatar and Bahrain, because the occupation by Bahrain of

346
383  DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

the northern part of Jazirat Hawar took place only in 1937; and, as
stated by Huber in the /s/and of Palmas case:

“As regards groups of islands, it is possible that a group may
under certain circumstances be regarded as in law a unit, and that
the fate of the principal part may involve the rest. Here, however, we
must distinguish between, on the one hand, the act of first taking
possession, which can hardly extend to every portion of territory,
and, on the other hand, the display of sovereignty as a continuous
and prolonged manifestation which must make itself felt through the
whole territory.” (United Nations, Reports of International Arbitral
Awards, Vol. IH, p. 855; emphasis added.)

350. In 1938-1939, the display of continuous and prolonged sover-
eignty by Bahrain was not possible on any island other than on Jazirat
Hawar occupied in 1937; nor did it occur. The Weightman Report
acknowledges this by mentioning only the “marks” erected by Bahrain
on the islands. But beaconing is not accepted in international law as a
display or manifestation of sovereignty, and the Weightman Report does
not characterize those “marks” as effectivités either. In fact, several
decades after the 1937 occupation of part of Jazirat Hawar, the absence
of Bahraini effectivités in the Hawar Islands other than Jazirat Hawar con-
tinued to be a fact, as recognized by Bahrain itself in the present case (see
Map No. 4 submitted by Bahrain in Vol. 7 of its Memorial). Since 1937,
the effectivités of Bahrain on Jazirat Hawar have been considerably
developed, including after the institution of the present proceedings, but
none in relation to any of the other Hawar Islands. In the present pro-
ceedings, as in 1938-1939, no Bahraini effectivités on the Hawar Islands
other than Jazirat Hawar have been submitted by Bahrain.

351. Moreover, the erroneous and discriminating application of the
principle of presumed effective possession made by the Weightman Report
cannot be explained by a lack of knowledge of the law. As already
explained, Weightman was aware of the presumed effective possession
principle of international law in the case of unoccupied islands or groups
of islands located wholly or partly in the territorial maritime belt of a
given State. However, he did not apply this standard to Qatar’s claim in
so far as the Hawar Islands other than Jazirat Hawar are concerned. He
chose to apply proximity or contiguity to Jazirat Hawar and not to the
Qatar Peninsula or mainland. In our opinion, such inconsistency and
arbitrariness affect in law the essential validity of the 1939 British
“decision”.

352. The three grounds constituting essential invalidity referred to in
paragraph 345 of this opinion are not supposed to operate in a cumula-
tive manner. The verification of one of them suffices. We have found two,

347
384 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

namely internal contradiction (inconsistency) and arbitrariness. What in
such circumstances is the sanction of the law? The invalidity of the deci-
sion as a whole and not only of those parts of the decision to which the
inconsistency and/or arbitrariness relates. Consequently, from the stand-
point of the legal requirements concerning essential validity, the 1939
British “decision” as a whole is an invalid decision in international law.
In conclusion, | reject the plea of Bahrain based upon the 1939 British
“decision” because such a decision is also essentially invalid, a point of
law of the utmost importance for this case and one on which the present
Judgment remains absolutely silent.

353. In conclusion, for all of the reasons explained above, I dissent
from the finding of the present Judgment regarding sovereignty over the
Hawar Islands, which is exclusively based upon the 1939 British “deci-
sion” relating to those islands.

C. The Effectivités Alleged by Bahrain in the Hawar Islands Dispute as
a Possible Source of Derived Title

354. With respect to the Hawar Islands dispute, Bahrain invoked, pell-
mell, a number of the most disparate events which it characterized as
effectivités capable of somehow generating title to territory under inter-
national law and, among them, certain “private acts” and links with the
Dowasir which, in a mysterious unexplained way, would replace in the
case the principles of effectiveness as applied in international law for
establishing a State’s title to territory. Moreover, each alleged individual
effectivité is expanded elastically in Bahrain’s presentations like a kind of
chewing gum in order to multiply its optical effects.

355. Bahrain’s argument based on effectivités as a source of title over
the Hawar Islands, does indeed pose legal questions. First, there is the
question of the role played by the alleged effectivités in a title generating
process when the territory concerned is not terra nullius. Bahrain cer-
tainly affirms that the effectivités alleged by it with respect to the Hawar
Islands are able to generate title to the islands in favour of the State of
Bahrain, a title which would prevail over the original title of the State of
Qatar, as identified in Section A of the present Part of this opinion. But
Bahrain did not put forward any legal argument as to how this might
occur under international law, although it admits that the Hawar Islands
were not terra nullius before 1937.

356. I am inclined to believe that, in fact, Bahrain tried simultaneously
to attribute various legal effects to its alleged effectivités in the Hawar
Islands. In Bahrain's general thesis on the Hawar Islands its alleged effec-
tivités would be all-purpose effectivités, applying either to the process of
ascertaining original title already considered, as well as to the determina-
tion of the existence of a Bahraini derived title. In this latter role, the

348
385 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

effectivités would as indicated above be an autonomous mode of acquir-
ing title (or would be a title in themselves) without any major effort by
Bahrain to identify the norm or norms to which those effectivités would
have to be related to produce such a legal effect in international law.

357. This obliges me to recall the obvious, namely that even an admis-
sible State effectivité is no more than a material manifestation of a given
unilateral conduct of the State concerned, whose possible legal effects
need to be defined in concreto in the light of the various circumstances
and, first of all, of the operating norm or norms of international law rele-
vant in the final analysis to an evaluation of the said unilateral conduct.
The connection between the unilateral conduct manifest in an admissible
effectivité and a given norm of international law is of paramount impor-
tance for ascertaining the possible legal effects of that unilateral conduct
in international law. It is not at all the same thing to invoke an admissible
effectivité in connection, for example, with the acquisition of title over a
terra nullius through occupation as it is to invoke the same effectivité in
order to transform an unlawful occupation of foreign territory into some-
thing else, namely into a lawful title under international law. (See in this
respect the photographic evidence of construction development work by
Bahrain on the main Hawar Island from 1958 onwards, in Reply of
Qatar, Vol. 6, App. 4.)

358. In line with its all-purpose approach to the effectivités, Bahrain
pays no attention to the moment, location, nature, etc., of the alleged
ones. At the hearings, counsel for Bahrain argued, for example, that the
most recent effectivités of that country in the Hawar Islands should be
taken into account as an interpretation of Bahrain’s title to the island,
disregarding all manner of “critical dates”, including the date of institut-
ing the present proceedings before the Court, and the various status quo
conventionally agreed by the Parties during the Saudi Arabia mediation.
This obliges me also to draw attention to the long series of communica-
tions of protest submitted by Qatar to the Court concerning Bahraini
activities in the Hawar Islands pendente litis. I therefore reject Bahrain's
argument based upon the assertion of its ties with the Hawar Islands since
the 1939 British “decision”.

359. In this connection, it is also worthwhile recalling that, as already
explained, the effectivités alleged by Bahrain in the Hawar Islands, are
supposed to operate retroactively. Bahrain’s first formal claim to those
islands submitted to the British is dated 28 April 1936, a very late date
indeed with respect to the period of consolidation and recognition of the
original title of Qatar to the Hawar Islands. By 28 April 1936, Qatar’s
original title was already fully established and recognized as established,
also by international conventions. In such circumstances, the first ques-
tion which arises with respect to those effectivités — even if they were
real and admissible — is how and why they could have the legal effect of
displacing, without further ado, the previously established, consolidated

349
386 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

and generally recognized Qatari original title to the Hawar Islands with-
out Qatar’s consent.

360. As to when the alleged effectivités or activities were performed,
the 80 items in the Bahraini list in the hearings are divided as follows:
(1) pre-1900; (2) 1900-1930; (3) 1930-1938; and (4) 1939-2000. It is evi-
dent that those concerning 1939-2000 and some of those corresponding to
the period 1930-1938, namely those resulting from the clandestine occu-
pation on the main Hawar Island in 1937, are not admissible as evidence,
quite independently of its proof. This already reduces the list of items to
no more than about 30 at the most, including some duplications. Atten-
tion should mainly focus on the latter items because they relate to alleged
activities prior to Bahrain’s first written claim to the Hawars of 28 April
1936. Several of them have already been considered and rejected in this
opinion in connection with the definition of Qatar’s original title to the
Hawar Islands, but we will not exclude them from further consideration
in the present context. It should also be recalled that most of the listed
items corresponding to the period between 1930 and April 1936 date
from the period of the oil negotiations concerning the “Bahraini un-
allotted area”, a very suspect period indeed in the light of the infor-
mation provided in the case file.

361. Regarding the very important question of the location of the
alleged effectivités or activities, it must be said that while Bahrain's argu-
ments mention the Hawar Islands, namely the whole group, the evidence
put forward by Bahrain in support of those arguments relates exclusively
to Jazirat Hawar. Bahrain has not submitted any evidence of Bahraini
effectivités or activities on any other islands in the Hawar group. In fact,
it plainly admits that as regards those other islands, there are none, and
have never been any Bahraini effectivités. Map No. 4 of Volume 7 of the
Memorial of Bahrain (Merits), entitled “The Hawar Islands — Loca-
tions”, already referred to above, is conclusive evidence for the present
case of the location of the alleged Bahraini effectivités in the Hawar
Islands. Even the “beacons” indicated on that map are not found on any
of the islands forming the Hawar group.

362. It follows from the above that if the alleged Bahraini effectivités
in Jazirat Hawar were real at the relevant time and admissible as gener-
ating title under international law, this conclusion would not apply to
any islands in the group other than Jazirat Hawar. This is so, because the
Hawar Islands are a coastal archipelago lying wholly or partly within the
territorial sea belt of the peninsula of Qatar. In such circumstances, the
treatment of the Hawar archipelago as a unit cannot be sustained in the
face of the strong presumption of international law in favour of the sov-
ereignty of the mainland State in the vicinity of the Hawar Islands. Thus,

350
387 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

in the present case, the Bahraini effectivités argument as an autonomous
source of territorial title, if upheld, would lead directly to the attribution
to the State of Qatar of all the islands in the group other than Jazirat
Hawar. But, by its plea of effectivités, Bahrain is indeed claiming the
Hawar archipelago as a whole!

363. A few words on the definition of effectivités in international law
before going on to analyse the nature of the activities alleged by Bahrain.
A given effectivité may be invoked as a manifestation of title or as
evidence of effective possession generating title. A typical example of the
latter is the occupation of a terra nullius. But none of the Parties has
pleaded that the status of the Hawar Islands was that of a terra nullius.
Nor was this invoked either by Bahrain or by Qatar in the current pro-
ceedings or even during the procedure leading to the 1939 British “deci-
sion”. Moreover, as stated by Charles De Visscher in his oral statement
in the Eustern Greenland case: “a region may only be considered as terra
nullius if there is found to be a lack of general consent in favour of the
exercise of some kind of sovereignty over this region” (P.C.LJ., Series C,
No. 66, p. 2794). For Charles De Visscher:

“In law, the question whether a region must be considered as terra
nullius or, on the contrary, must be considered as subject to a sov-
ereignty is a question which, by its very nature, arises in connection
with all States. It arises erga omnes and not from the standpoint of
the particular relations which may exist between one State and
another. When, for a long period, the community of States has con-
sented to the exercise of the sovereignty of a State over a given ter-
ritory, this sovereignty must be regarded as established; in fact, this
general consent expresses the intenticn of the international commu-
nity to consider this state of affairs legitimate. It implies that, in the
eyes of the community of States, the sovereignty affirmed over a
given territory by a State meets the required conditions; it is a form
of international recognition. 11 is deduced either from positive acts
with a well-defined international scope, or from indisputable tacit
consent.” (Ibid. ; emphasis added.)

364. We have already explained the “international recognition” in
favour of Qatar’s sovereignty over the Hawar Islands, manifested by
positive acts and tacit consent, which existed long before the 1930s. It
follows that, in the present case, any suggestion that the occupation of
Jazirat Hawar by Bahrain since 1937 might be a possession capable of
generating title -— or of being considered equal to “title” (Huber’s “as
good as title”) — must necessarily take into account, as a starting point

351
388 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

of the reasoning, the fact that, in 1937, the territory of the Hawar Islands
was not terra nullius.

365. In the hearings, counsel for Bahrain underlined “Bahrain's ties”
to the Hawar Islands, but this is not the true legal issue before the Court.
The legal issue before the Court is “Bahrain's title” to the Hawar Islands,
namely a question involving considerations of fact as well as of law.
From a factual point of view, Bahrain invokes, for example, (a) different
categories of acts and also (4) acts performed at different times. With
respect to the law, as stated above, the effectivités are not title per se, but
may come to generate title in given situations when so provided by inter-
national law.

366. The factual evidence of effectivités concerning the Hawar Islands
presented by Bahrain is, to borrow the language of the Eritreal Yemen
Arbitral Award, “voluminous in quantity but . . . sparse in useful con-
tent” (para. 239). Most of the so-called examples of the exercise of
authority are in fact examples of private activities, or questions relating
merely to the existence or non-existence of ties of allegiance or national-
ity or recognitions invoked by third parties rather than acts of the exer-
cise of authority by the State of Bahrain on the islands. Bahrain’s presen-
tation thus raises a problem of the definition of the term effectivités.
Moreover, in many instances, the same factual event is presented under
two or more different headings. And more often than not the evidence
submitted in connection with a given event does not support the proposi-
tion for which it is relied upon by Bahrain. Bahrain also sometimes
invokes as examples of “activities on the Hawar Islands” instances of
activities performed in the Bahrain archipelago. In any case, as pointed
out by the Eritrea/ Yemen Arbitral Award, the effectivités alleged to be
capable of generating title to territory must be measured against the fol-
lowing test of international law “an intentional display of power and
authority over the territory, by the exercise of jurisdiction and state func-
tions, on a continuous and peaceful basis” (Eritrea/ Yemen Arbitration
(First Award), 9 October 1998, para. 239).

*

367, The Hawar Islands being a territory avec maître in 1937, and the
maître being Qatar, the invocation of effectivités as evidence of posses-
sion generating title, or capable of generating title, necessarily leads to an
analysis of the circumstances surrounding the occupation concerned and,
in the first place, to a consideration of its legality or illegality under inter-
national law. Bahrain’s occupation of the northern part of Jazirat Hawar
took place in 1937 and was effected by police or military forces and in a
clandestine manner, under the “umbrella” of the undisclosed British
“provisional decision” of July 1936, a decision known to the Ruler of
Bahrain but never notified to the Ruler of Qatar.

352
389  DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

368. This shows that the said occupation is not the result of a peaceful
and continuous unchallenged exercise of State authority by the Ruler
of Bahrain over the Hawar Islands before 1937, but something else. The
events, as they occurred, prove at least four things: (1) there was no occu-
pation of any Hawar island by Bahrain before 1937; (2) the effective pos-
session of the northern part of Jazirat Hawar was not therefore continu-
ous as from the eighteenth century or even from 1868 onwards; (3) the
act of occupation of 1937 was not public and peaceful but a fraudulent
clandestine act of force; and (4) the initial scope of effective possession
resulting from the clandestine unlawful occupation of 1937 concerned
only the northern part of Jazirat Hawar. Thus, ultimately, the Bahraini
arguments based on effecrivités, if upheld, would provide a ground not
only for dividing the islands of the Hawar archipelago between the
Parties, but also for the partitioning of Jazirat Hawar itself because the
original title to the entire Jazirat Hawar belonged to Qatar.

369. The conduct adopted in 1937 by the Ruler of Bahrain was clearly,
in my opinion, fraudulent conduct in international law by virtue of the
manner, purpose and timing of the occupation. The duty to respect the
territorial and political integrity of States was expressly mentioned in the
Covenant and was well established in the general international law of the
1930s. It is not possible therefore to accept. in this respect, appeals to
intertemporal law to remedy the illegality of the 1937 occupation. It is
also hard to believe that the Ruler of Bahrain and also Belgrave did not
know the territorial extent of the Ruler of Qatar’s original title, in view of
their close relations with the British officials in the Gulf involved in the
operation concerning the unallotted area. In any case, the evidence
before the Court allows us to conclude beyond any reasonable doubt that
the British officials who tolerated or promoted the clandestine occupa-
tion of the northern part of Jazirat Hawar in 1937 knew perfectly well
that the Hawar Islands fell within the scope of the original territorial title
of the Ruler of Qatar or were supposed to know it. Indeed it is self-
explanatory that the 1937 act of occupation of the northern part of
Jazirat Hawar is the least recorded episode among those referred to in
the contemporary voluminous documentation before the Court. Dis-
cretion is far from being a virtue in the present context.

370. Moreover, the 1937 occupation took place soon after Bahrain’s
first written claim submitted to the British on 28 April 1936. It was,
therefore, an occupation based on a pendente claim. Bahrain did not wait
for the 1939 British “decision”, whatever its nature, validity or charac-
terization, to occupy the northern part of Jazirat Hawar. It occupied the
island by a clandestine act of force only a few months after its 1936 claim
and a couple of years before the 1939 British “decision”! This also dis-
qualifies that occupation — the assumption of a possible autonomous

353
390 = DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

source of title — as a title generating effective possession under inter-
national law.

371. The principle of consent in its various forms and manifestations
(“admission”, “recognition”, “acquiescence”, other forms of “implied
consent by conduct”, etc.) may also, in international law, be a possible
source of a derivative title to territory, perhaps capable of displacing a
previous title of another State to the territory concerned. The practice of
international courts and tribunals knows many instances of the applica-
tion of the principle of consent as a source of a derivative title better
than, or prevailing in the circumstances of the case over, a previous title.
But of course, in no case may the principle of consent displace the
previous title if the reality of such consent by the holder of the previous
title is not proved in court.

372. For example, in the £/ Salvador/Honduras case, | applied the
principle of consent when voting in favour of the sovereignty of El Sal-
vador over the island of Meanguera in the Gulf of Fonseca. In that
instance, Honduras was the holder of a previous 1821 uti possidetis juris
title. Why did I conclude as I did? Because El Salvador, which claimed
the island in 1854, manifested its presence in the island by a series of
proven State effectivités during the last quarter of the nineteenth century
and in the first half of the twentieth century without Honduras stating its
opposition to El Salvador’s presence in Meanguera as would be expected,
in international law, of a State holding title to the island; and the case file
was full of evidence of that absence of vigilant conduct on the part of
Honduras. For me, Honduras’s conduct amounted, in the circumstances
of that particular case, to implied consent to or acquiescence in El Sal-
vador’s sovereignty over the island of Meanguera from the moment when
such consent or acquiescence could be considered as established.

373. I see nothing of the sort in the present case. Qatar has always pro-
tested against Bahrain’s illegal occupation of the Jazirat Hawar. There is
not a single element of evidence of conduct by Qatar implying tacit con-
sent to or acquiescence in the occupation of these islands by Bahrain. The
Ruler of Qatar made an early verbal protest against both Bahraini inter-
ferences and activities in Jazirat Hawar as of February 1938 to Weight-
man, the British Political Agent, and a written one on 10 May 1938 and,
later on, a protest against the 1939 British “decision” itself, as recorded in
several documents filed and dated: 4 August 1939 (Memorial of Qatar,
Vol. 8, Ann. III.211, p. 49): 18 November 1939 (ibid, Vol. 8, Ann. IIL.213,
p. 59); 7 June 1940 (ibid. Vol. 8, Ann. HI.219, p. 85); 13 July 1946 (ibid.

354
391 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

Vol. 8, Ann. 11.245, p. 203); and 23 February 1948 (Memorial of Qatar,
Vol. 8, Ann. [II.259, p. 277).

374. Qatar has continuously affirmed its title to the Hawar Islands and
tried to find a peaceful means of settling this pending territorial question
between Qatar and Bahrain. In the 1960s, there was even some British
acknowledgment that the best solution would be to refer the matter to
arbitration, but Bahrain did not accept this. The Court is aware of all the
efforts since deployed by Qatar before and during Saudi Arabia’s media-
tion to bring the question of sovereignty over the Hawar Islands before
the International Court of Justice, as well as of all the objections raised
by Bahrain regarding the jurisdiction of the Court and the admissibility
of Qatar’s Application. This is certainly not the conduct of a State having
acquiesced in the 1937 occupation of Jazirat Hawar by Bahrain or in the
1939 British “decision”.

Ba

375. After filing its Memorial in the current proceedings, Bahrain no
longer claimed the Hawar Islands on the basis of the evidence of “Arab
historians from antiquity”, because its main thesis was that it exer-
cised sovereignty over the Hawar Islands as of the last quarter of the
eighteenth century and not as of the eleventh and twelfth centuries
or even before. Yet it continued to invoke as evidence the so-called
“historical dominance over Qatar”. However, the Belgrave diaries show
that at no time during the ten years of his presence in Bahrain prior to
1936 (he assumed his first post in Bahrain in 1926) is there any mention
of Belgrave’s having anything to do with any Bahraini activity or
effectivités relating to any of the Hawar Islands, nor is there any indica-
tion that Belgrave ever visited the islands prior to 1937. This is strong
albeit indirect evidence that at that time the Ruler of Bahrain did not
rule over any islands in the Hawars and was not interested in those
islands, nor indeed ever was until 1936!

376. The Hawar Islands are mentioned for the first time in Belgrave’s
diaries on 23 April 1936, just when Bahrain decided to submit its first
written claim in respect of the Hawar Islands to the British (Belgrave’s
letter of 28 April 1936). It was only after the “provisional decision”
of July 1936 that Belgrave wrote of a number of visits to Hawar and of
various Bahraini activities on Jazirat Hawar. All such activities stemmed
from or were associated with Bahrain’s clandestine and unlawful occupa-
tion in 1937 of the northern part of Jazirat Hawar. Thus, all activities or
measures concerning the Hawar Islands involving Belgrave correspond to
the suspect period, when fresh evidence was rapidly constructed in order
to provide some formal basis for the forthcoming 1939 British ‘‘deci-
sion”. I therefore reject the information concerning such activities and
measures as admissible evidence of Bahrain’s title to any of the islands.
They were part and parcel of the 1937 occupation and shared with it the
same unlawfulness in international law.

355
392  DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

377. Furthermore, a comprehensive Administrative Report of the Gov-
ernment of Bahrain covering the years 1926-1937, prepared by Belgrave
in 1937 and published in that year, makes no mention of the Hawars
whatsoever either in relation to security, public works, agriculture or any
other activities, in contrast with the islands forming the Bahrain islands
group proper. Similarly, there is no mention of Hawar in any Official
Annual Reports or Budgets of the Government of Bahrain until March
1937 to February 1938 (Reply of Qatar, Vol. 3, Ann. III.59, p. 361).
These facts necessarily support Qatar’s allegation that there was no Bah-
raini official presence or activity in the Hawar Islands before 1937. The
Reports for subsequent years do record Bahraini activities on Hawar
Jazirat following the clandestine and unlawful occupation of 1937. Until
1937, no estimates, no expenditures, no projects, no mosque, no fort, no
barbed wire fence, no pier, no drilling of artesian wells. no water tanks,
no surveying and mapping, no motor launch, etc., were necessary in the
Hawars, simply because Bahrain was not present in the islands.

378. The above must be taken into account as must other elements,
such as the fact that beaconing, aids to navigation and assistance to
wrecked ships (force majeure) are not considered in international law as
acts evidencing the exercise of sovereign authority over a given island or
territory; that the testimony of Brucks’s 1820 Report was written long
before 1868; that the Ottomans who claimed the Bahrain islands for
themselves never recognized the Hawar Islands as part of a Bahrain
under British protection; that Great Britain held the same position from
1868 till 1936; and that, in addition, hearsay and affidavits of individuals
not subject to cross-examination have no or minimal probatory force in
the proceedings of this Court. If all this and other facts to be considered
below are duly taken into consideration, one is entitled to ask: what
remains of the alleged acts of authority evidencing the exercise of
sovereignty by Bahrain on the Hawar Islands before 1937? The reply
is clear: the Dowasir (as the Naim in Zubarah)!

379. Some comments therefore on the Dowasir. Bahrain’s thesis on
the Dowasir and the Hawar Islands may be subdivided as follows:
(1) the alleged occupation of the Hawar Islands by the Dowasir; (2) the
Qadi’s grant or permission to the Dowasir to occupy the Hawar
Islands; (3) the Dowasir as subjects of Bahrain. As to the first question,
Bahrain’s contention is that the Dowasir tribe settled in Hawar at the
beginning of the nineteenth century (more or less when the Wahhabis

356
393 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

were the dominant power in the whole area, including in the Bahrain
islands).

380. There is no proof of the alleged Dowasir occupation of the
Hawar Islands or of the recognition of such an occupation by anybody,
except by Bahrain itself in the present case. Whether they were Bahraini
“subjects” or not, there is no proof of the Dowasir’s occupation in the
case file. Nor has Bahrain proved that the Dowasir were the only fisher-
men to frequent the Hawar Islands. In international law seasonal visits
and private activities cannot sustain a claim to sovereignty (see, as recent
pronouncements on the matter, the Judgment of the Court in the case
concerning KasikililSedudu Island (BotswanalNamibia) and the 1998
Arbitral Award in the Eritreal Yemen case).

381. As to the second heading, the Qadi’s grant of the Hawar to the
Dowasir (the 1909 hearsay of Prideaux’s letter), I have already expressed
my opinion on this matter in other contexts. The Court has no evidence
of such a grant and no such evidence was produced by Bahrain during
the British “procedure” of 1936-1939, as recognized by Weightman. In
such circumstances, as the International Court of Justice is not Mr.
Weightman, the hearsay of the Dowasir Sheikh’s cousin in Prideaux’s
letter cannot prove anything. On the other hand, Prideaux’s letter also
mentions that the island seems to be a dependency of the mainland
State, as explained by Lorimer in the 1908 article on Qatar revised by
Prideaux himself. In 1909, Qatar was the only “mainland State”. The
testimony of the cousin of the Dowasir Sheikh also mentioned that
there was a Turkish gunboat in the area and that he was expecting an
Ottoman visit.

382. There is also no proof whatsoever of the existence of an Al-Kha-
lifah official in Zubarah in 1809 or thereabouts, a period of Wahhabi
power and control, including over the Bahrain islands. The Al-Khalifah
moved to the Bahrain islands in 1783, without leaving behind in Zubarah
any kind of organized administration of their own. When describing the
arrival of the Dowasir in the Bahrain islands in 1845, Lorimer makes no
mention of Hawar, but states that the Dowasir who immigrated to Bah-
rain came from the Najd who arrived in Bahrain after spending several
years on Zakhnuniya Island. Lastly, there is the question of the power of
Qadis to make grants of land (not to mention grants of sovereignty !).

383. As regards the third heading referred to above, the Dowasir,
according to Lorimer and others, were particularly independent as a
community or tribe. They were certainly not at the relevant time in any
kind of tribal “allegiance” with the Al-Khalifah Rulers of Bahrain, as
proved by subsequent events. In any case, in 1923, because of encroach-
ments on their status by the Ruler of Bahrain, the Dowasir simply left
Budaiya and Zellaq on the main Bahrain island for the Dammam, a
promontory in Saudi Arabia. This episode is interesting for several
reasons.

357
394 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

384. For example, the Ruler of Bahrain did not prevent the Dowasir,
his alleged “subjects”, from leaving the country and the Dowasir did not
go to their alleged granted land, namely to the Hawars. In fact, during
the time that they remained at Dammam, the Dowasir fishermen would
seem even to have ceased their seasonal fishing visits to Jazirat Hawar.
No continuity either, therefore, in the seasonal visits to the Hawars by
the Dowasir. After 1927 the Dowasir began to return to the Bahrain
islands (not to Jazirat Hawar or to other islands of that archipelago) and
they were still drifting back to Bahrain as late as 1933. The King of Saudi
Arabia’s letter of 6 April 1928 refers to the Dowasir as “our Duwasir
subjects” (Counter-Memorial of Qatar, Vol. 3, Ann. III.34, p. 182).

385. In fact, the alleged allegiance of the Dowasir living on the main
Bahrain island to the Ruler of Bahrain, which in any case is not in itself
an act of authority in the Hawar Islands, is not mentioned in the only
independent documentary evidence relied upon by Bahrain, namely the
1869 letter from the British Political Resident to the Dowasir tribe at
Budaiya and Zellag and the 1917 Gazetteer of Arabia. The alleged flying
of the Bahraini flag by private individuals during the Eid festival is not an
example either of the exercise of State authority, and there is no inde-
pendent documentary evidence of that (beyond the affidavits submitted
by Bahrain).

Pa

386. In the Parties’ pleadings, and during the hearings, the Dowasir
argument and counter-argument is to some extent intermingled with a
question of fact, namely with the question of the habitability at that time
of the Hawar Islands and/or the permanent presence in Jazirat Hawar of
a population (the so-called “Hawar residents”). Several items in Bah-
rain’s list of “examples of the exercise of authority” are simply concerned
with the alleged presence of the Dowasir and other non-Dowasir Bah-
rainis in Hawar. None of those items is therefore an example of acts of
the exercise of authority by the State of Bahrain in the Hawar Islands. In
Mallorca (Spain) there are several thousand permanent non-Spanish resi-
dents on the island without their residence generating title to the island in
international law for their respective States.

387. One of the reasons for this alleged Bahraini evidence is to be
found in the written claim of 28 April 1936 signed by Belgrave. In effect,
Belgrave stated that “at least four of the larger islands are permanently
occupied” (Memorial of Qatar, Vol. 7, Ann. III.103, p. 18). However,
during the “procedure” of 1938-1939, Bahrain presented to the British
alleged evidence of presence only with respect to Jazirat Hawar, namely
on the island unlawfully occupied in part in 1937. This “little” contradic-
tion, like several others in the 1938-1939 “procedure”, had no effect at all
on the conclusions of the Weightman Report which attributed not only

358
395  DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

the Jazirat Hawar but the whole “group” to Bahrain, as had been
decided by the British with effect from July 1936.

388. In the current proceedings, however, Bahrain concedes, contrary
to Belgrave’s claim on 28 April 1936 (and again on 22 December 1938
and 3 January 1939), that: “Many of the Dowasir who lived on the main
island of Bahrain spent five months of the year there during the pearling
season and the remainder of the year on the Hawar Islands.” (Memorial
of Bahrain, Vol. 1, p. 187, para. 419; see also p. 18, para. 52; the same is
stated in affidavits.) Bahrain admits therefore that the visits to the Hawar
Islands of the Dowasir living on the main island of Bahrain were only
seasonal or for part of the year only. Qatar asserts also that the seasonal
visits of certain Dowasir were not regular.

389. It appears that, for Bahrain, although the visits were seasonal, the
settlement was nevertheless permanent. Very little indeed as a basis of
title to territory, in particular when in accordance with tradition the
islands of the Gulf could be visited by Arab fishermen or other persons
from other Arab countries or tribes in the Gulf (see in this respect the
Ruler of Qatar’s statement of 27 May 1938, Memorial of Qatar, Vol. 7,
Ann. III.157, p. 285). In his comments of 30 March 1939, the Ruler of
Qatar also questioned the statement made by the Bahrain Government
that the Hawar Islands were “inhabited by their subjects in a permanent
manner” and described the situation in the Hawars as follows:

“they are barren, without water and unfit as a pasturage for herds,
and [were] in the past completely without inhabited buildings and by
no any way can be called villages or anything that approaches the
meaning of this word, and generally unfrequented except by fisher-
men who come from time to time, or who pull up their fishing boats
(for a “dry’ or repairs) temporarily . . . and who then leave” (Memo-
rial of Qatar, Vol. 7, Ann. 111.192, p. 453).

390. The Persian Gulf Pilot (1864-1932), Lorimer (1908) and Prideaux
(1909) generally confirm the above description. In his marginal comments
on the Ruler of Qatar’s statement of 30 March 1939, Weightman himself
admitted the widely prevalent custom that fishermen from around the
Gulf followed the practice of visiting different islands to fish and were
freely allowed to do so by the Rulers of the region. In any case, in his
1909 letter Prideaux did not mention having met in the Jazirat Hawar
any group or groups of permanently resident Dowasir living in any kind
of organized village.

391. Even Bahrain admits in the current proceedings that non-Dowa-
sir Bahrainis were present in Hawar (Counter-Memorial of Bahrain,

359
396 = DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

Vol. 1, pp. 69-71, para. 159). Thus, the Hawars were not a kind of
“domaine réservé” of the Dowasir who, in addition, lived there in villages
and exercised jurisdiction and State functions on the island on behalf of
the Ruler of Bahrain! Among those who temporarily frequented Jazirat
Hawar were also Qatari fishermen, as evidenced by some references in
documents and the Ruler of Qatar’s complaint of 8 July 1938 regarding
the detention by the Bahraini authorities of a Qatari subject and his boat
(following the unlawful occupation) and Weightman’s acknowledgment
of it (Counter-Memorial of Qatar, para. 3.56). On the fishing activities in
the Gulf governed by the Shariah/Islamic Law, see 8. H. Amin, Treatise
on International and Legal Problems in the Gulf (Reply of Qatar, Vol. 3,
Ann. III.100, p. 617). In fact, the evidence produced by Bahrain to
suggest permanent presence of the Dowasir at Hawar is the Weightman
Report itself, a very suspect and contradictory document indeed! As to
the presence of the “non-Dowasir Bahrainis” probably intended to show
the continued presence of Bahraini subjects on the Hawars during the
absence of the Dowasir, the members of the family referred to, the Al-
Ghatam, seem to consider themselves as Dowasir.

392. Lastly, the example of the exercise of authority through the issu-
ing of Bahraini passports to the “Hawar Islands residents” is only sup-
ported by Belgrave’s unsubstantiated assertion made in the context of
Bahrain’s claim of the 1930s. Moreover, the persons concerned were also
resident at Zellaq in the Bahrain islands. No evidence has been provided
for Bahrain’s assertion that the alleged “Hawar Island residents” were
included in Bahraini censuses.

*

393. In the light of the evidence submitted by the Parties on the mat-
ter, geographical information in the public domain and the oldest pic-
tures taken on the Hawar Islands submitted to the Court, it is difficult to
conclude other than that the Hawar Islands were quite barren and in the
past unfit for permanent habitation. The main reason for this was prob-
ably the absence of any water supply in the islands. Bahrain’s reply to
this is that rainwater was collected in a number of cisterns and that addi-
tional needs were met by bringing water from Bahrain. In his report of
22 April 1939, Weightman simply accepted Bahrain’s assertion (Memo-
rial of Qatar, Vol. 7, Ann. III.195, p. 503). The number of cisterns alleged
by Bahrain conflicts with the description of Lorimer and Prideaux. As to
the water brought from Bahrain, the only evidence submitted is a letter
from Belgrave to Weightman written during the suspect period.

394. That there were seasonal and temporary visits of fishermen to the

360
397  DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

Hawar Islands seems proven to me. That among them were Dowasir
fishermen resident on the main Bahrain islands and other fishermen
from the Gulf, including Qataris, is also proven. That in addition the
islands were also visited temporarily for hunting, like other areas on
the mainland (e.g.. Saudi Arabia or Qatar itself) is more than probable.
But at the relevant times, there was no “genuine” population or tribe
belonging to the islands, or Dowasir permanently resident in the Hawars,
nor any activity or control by the State of Bahrain on any of the Hawar
Islands before the limited occupation of 1937 (northern part of Jazirat
Hawar).

395. The allegation that in 1873, the Ruler of Bahrain stayed on the
Hawar Islands and helped to rescue some Ottoman soldiers is unproven.
Belgrave’s unsubstantiated note of 29 May 1938 and letter of 22 Decem-
ber 1938 were also drafted during the suspect period. Weightman reported
questioning the old men on Hawar about the shipwreck incident. The evi-
dence is only hearsay concerning an event which had perhaps happened
66 years previously. There is no evidence either that Sheikh Isa paid
annual visits to Hawar or that such visits were in an official capacity and
not, for example, for personal purposes such as hunting. The possible
visits by Sheikh Salman bin Hamad (1942-1961) and the visits by Bel-
grave to Jazirat Hawar took place after 1937.

396. Furthermore, there is the evidence of the Alban’s visit to the
Hawar Islands in December 1940, after the British “decision” of July
1939 (Reply of Qatar, Vol. 3, Ann. 111.94, p. 577). Alban reported seeing
on the main Hawar Island 12 policemen (“naturs”) and a few Dowasir in
residence who apparently biked Jazirat Hawar in winter and returned to
Zellaq in summer. No “permanent Dowasir residents” on the main
Hawar Island even in 1940, nor the presence of a “genuine” population
of the Hawar Islands, but a few seasonal residents, most probably Dowa-
sir fishermen!

*

397. As to the alleged British instance of recognition, the Bahraini
items are the Brucks Report of the 1820s and the 1909 Prideaux letters.
1 have already stated my opinion on both. The first concerns a period
before the emergence of Qatar as a separate political/territorial entity.
The second expressed a personal view, not a “British recognition” of any-
thing, as well as, in my opinion, providing a testimony completely at
odds with Bahrain’s proposition. The 1972 map of the British Director of
Military Survey was of course published long after the 1939 “decision”.
The same applies to a 1991 map published by the US National Geo-
graphic Society. The Izzet map has no political significance as Ottoman
recognition of the appurtenance of the Hawars to Qatar or Bahrain. An

361
398 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

Ottoman resolution of 19 April 1913 and the Secret Declaration annexed
to the 1913 Convention relied upon by Bahrain mention only Zakhnu-
niya, and not Hawar. Lastly, it is hard to see how the Ruler of Qatar’s
letters of protest to Weightman on the occasion of Bahrain’s clandestine
and unlawful 1937 occupation can be read as instances of the recognition
of Bahrain’s jurisdiction and authority over any of the Hawar Islands.

398. The evidence of alleged instances of recognition by third States
submitted by Bahrain is indeed very poor, to the point of being non-
existent for the purpose of building up a positive case for Bahrain with
respect to both original title and/or derivative title.

*

399. Bahrain has also put forward some additional miscellaneous gen-
eral arguments concerning economic activities, natural resources and
wildlife preservation: trade with Bahrain; fishing; pearling; gypsum;
water; oil exploration and exploitation; other natural resources; animal
husbandry; and surveying. The associated evidence submitted is full of
duplications. Pearling takes up some 4 items, gypsum 4 items, fishing
3 items, trade 2 items, water 2 items, oil 11 items, wildlife preservation
2 items. On trade with Bahrain the evidence provided is affidavits, a letter
from Belgrave and the Weightman Report. [ do not consider this to be
independent evidence. As to pearling, it is admitted, even in the affida-
vits, that the Dowasir were in Zellaq for the pearling season. It is there-
fore quite natural that they were provided with logbooks and diving
licences issued by Bahrain and with boats registered in Bahrain. As to
fishing, it can hardly be said that fishing by private persons around or
from Jazirat Hawar is an example of the exercise of authority by Bahrain.
For the granting of rights, the only evidence (Belgrave’s Note of January
1938) is subsequent to Bahrain’s illegal occupation of 1937. With respect
to the regulation of fishing, the evidence relied upon by Bahrain dates
from after 1937 and, moreover, makes no mention of any such regulation.

400. Bahrain alleges that Hawar gypsum was quarried in the nine-
teenth and twentieth centuries, that it was sold in Bahrain, that gypsum-
cutting permits were issued by the Bahrain Government, and that the
trade in gypsum between the Hawars and Bahrain was regulated by the
Government of Bahrain. The quarrying and sale of gypsum cannot be
considered as acts of authority, as it was done by private individuals.
There is no evidence either of any quarrying or of gypsum cutting before

362
399  DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

1937-1938 and the later evidence consists only of affidavits, Belgrave’s
Note of 1938 and the Weightman Report. As to the water, the construc-
tion and maintenance of dams and water cisterns by the so-called “Hawar
Island residents” is not an act of authority by Bahrain. The only evidence
of governmental involvement dates from 1939, when “various cisterns
were repaired”. Similarly, the drilling for water occurred in 1938.

401. All the Bahraini activities invoked concerning oil exploration and
exploitation occurred after the 1939 British “decision”, such as the 1939
geological mapping of the Hawar Islands by BAPCO. In this connection,
it should be noted that the APOC’s geological mapping of the Hawars, as
part of Qatar, was undertaken in 1933. It should also be noted that at
least nine of the oil items in Bahrain’s list are not at all examples of the
exercise of authority by Bahrain on any Hawar island, but relate to the
positions taken by various parties in the oil concession negotiations,
including the 1936 British “provisional decision”, or shortly before, in
1933, when a suggestion by Bahrain, already commented on, relating to
the Hawar Islands and Qatar, prompted, inter alia, the British Political
Resident’s commentary that “Hawar Island is clearly not one of the Bah-
rain group”. The general survey of Hawar was undertaken in 1939 and
the document relied upon by Bahrain in connection with the alleged com-
pletion of a survey of villages and cultivated areas is a letter from the
PCL which questions Bahrain’s right to perform such a survey.

*

402. Evidence of public works, about 14 items, relates to activities
which occurred after Bahrain’s occupation of the main Hawar Island in
1937. Some were made in support of Bahrain’s claim during the British
“procedure”. They relate to houses and palaces, mosques, a guard post
and fort, pier and navigational aids. The construction of houses by
Sheikh Salman certainly dates from after 1939 because this Sheikh ruled
from 1942 to 1961. The ruling family’s palace was built in the 1940s, as
acknowledged by Bahrain. The new mosque was built only in 1939.
There is no evidence that the earlier mosque was built by the Bahrain
Government. Bahrain admits that the new fort was built only in 1937 (it
was completed by 1938). There is no evidence that the old fort was built
by the Bahrain Government. The only mention of the ruins of an old fort
occurs in the Weightman Report and the Costa Report. Lorimer does
not mention the existence of a fort, nor does Belgrave in his various let-
ters of claim. Nor is there any evidence either of the existence of a “guard
post” before the new fort was built, namely before Bahrain’s illegal occu-
pation of 1937. Indeed, Belgrave acknowledged, in his letter of 22 Decem-
ber 1938, that “it is true that a military garrison was only posted there

363
400  DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

recently, during the last two years” (Memorial of Bahrain, Vol. 5,
Ann. 274, p. 1129). Bahrain admits that the pier was not constructed
until 1937 (it was completed in 1938).

403. All the items concerning roads, a desalination plant, electricity,
telecommunications, tourist facilities and the establishment of a sea
shuttle service between Bahrain and Hawar, date from long after Bah-
rain’s illegal occupation of Hawar in 1937. Regarding navigational aids,
of which there are three items, the evidence shows that the markers
were erected in 1937-1938 and not “during the 1930s” as sometimes —
stated by Bahrain. The evidence of the alleged “pipe” built north of Janan
consists of affidavit statements by so-called “former residents” of Hawar.

*

404. There is no evidence of a Bahraini military or police presence on
the Hawars before 1937. The items which refer to a full defensive military
complex and to the reinforcement of Bahrain’s military presence date
from 1941 and 1986 respectively. The earliest evidence provided with
regard to coastguard activities dates from September 1991. There is no
evidence for Bahrain’s assertion that there was a police presence on Jazi-
rat Hawar before the illegal occupation of 1937. The witness statement
relied upon by Bahrain appears to refer to the post-1937 period. The visit
of the Chief of Police would have occurred after 1937, since he “used to
stay in the fort”. There is no independent documentary evidence of either
the public display of proclamations or orders regarding sick persons, the
evidence relied upon by Bahrain being letters from Belgrave and state-
ments of “former Hawar residents”. As regards the “regulation of immi-
gration”, the instructions given in 1937 to the “head natur” — the police
officer — and the protest by the Ruler of Qatar against interference and
the treatment of Qatari nationals by people on Hawar concern events
which occurred after the 1937 illegal occupation.

*

405. There is no evidence of the origins of those buried in the earlier
graves. It 1s unknown whether they belonged to the Dowasir or to
another tribe or other tribes. Nor is there any evidence of the origin of
old ruins. If this proved anything it would be the possibility that Jazirat
Hawar, or some other islands in the group, had been inhabited in former
times, but nothing else. It was certainly not permanently inhabited at the

364
401 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

relevant time, namely from 1868 until the unlawful and clandestine occu-
pation of Jazirat Hawar in 1937.

*

406. Lastly, the most interesting of the items alleged by Bahrain
remains to be considered, namely the six items concerning judicial activi-
ties. The first three are dated 1909, 1910 and 1911 and the other three
1932 and 1936. No evidence of Bahraini judicial activities relating to the
Hawar Islands has been submitted by Bahrain for any period before 1909
or for the period between 1911 and 1932. The lack of continuity is there-
fore obvious. It should also be pointed out that in 1909-1911 Qatar was
a kaza or district of the Ottoman Empire and that only a couple of years
later the Anglo-Turkish Conventions of 1913 and 1914 were concluded.
The years 1932-1936 correspond to the period of oil negotiations for the
first Qatar concession (concluded in 1935) and for the concession of the
Bahraini area unallotted by the first Bahrain concession (concluded in
1925).

407. Only two of the six items concern actual judgments, namely those
of 1909 and 1910. The judgments were made by a gadi of the Sharia
Court in Bahrain. These two cases of course pre-date Bahrain’s illegal
occupation of the main Hawar Island in 1937 and are supported by docu-
ments other than, or in addition to, assertions by Belgrave and affidavits.
The text of these judicial decisions, which is very short (one page each),
describes the cases as disputes concerning “land and sea properties in
Hawar”, without further elaboration (Memorial of Bahrain, Vol. 5,
Anns, 238-238 A, pp. 1049-1050).

408. Bahrain relies on the principle that the authority having jurisdic-
tion over disputes concerning land ownership is the authority which has
jurisdiction over the place where the property is located. I do not deny
the validity of Bahrain’s assertion as a general proposition in domestic
law, but only up to a point. That proposition is far from absolute in the
law of the different countries concerned. We know that even in criminal
matters there are examples of the extraterritorial exercise of jurisdiction
by the courts of a given country. It also appears that the extraterritorial
exercise of civil jurisdiction over land ownership is not unknown in the
Sharia Courts of Islamic countries in the region.

409. Qatar produced a legal opinion of Judge Wassel Alaa El Din
(Reply of Qatar, Vol. 3, Ann. III.98, p. 601), according to which a gadi is
competent to decide any dispute as long as none of the parties objects to
pleading before him, which would presumably be the case with a Bah-
raini gadi if the parties were normally resident at Zellaq on the main
island of Bahrain, as the Dowasir fishermen of Hawar were according to

365
402 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

documentary evidence submitted. Prior’s letter of 26 October 1941
(Memorial of Qatar, Vol. 8, Ann. 11.229, p. 127) and Burrows’ letters
of 2 and 5 May 1954 (Memorial of Bahrain, Vol. 4, Anns. 208-209,
pp. 875 et seg.) support that view. British Political Resident Burrows,
for example. suggests, with respect to the Al-Khalifah’s claims to
Zubarah, that conflicting claims to individual items of private property
should be submitted to an impartial gadi from another part of the
Gulf, for settlement in accordance with local law and custom (Memorial
of Bahrain, Vol. 4, Anns. 208 (a) and 209, pp. 875 and 885). In his letter
of 26 October 1941, Prior states that:

“By agreement parties can take their cases to any Qadhi and two
Iraquis on the Trucial Coast could take a dispute to Kerbala if they
wished. It was only the easy sea journey and the Dowasir connection
that made Bahrain a convenient forum as compared with a difficult
and dangerous land journey to Dohah.” (Memorial of Qatar, Vol. 8,
Ann. 11.229, p. 130.)

410. The 1909 and 1910 judgments were referred to in and enclosed
with Belgrave’s letter to Weightman of 22 December 1938 (Memorial of
Bahrain, Vol. 5, Ann. 274, p. 1129). The Weightman Report relies
heavily on the 1909 and 1910 judgments in the following passage:

“These two judgments, dating from some thirty years ago, are of
unquestionable authenticity and both of them relate to disputes in
regard to ownership of “land and sea properties’ in Hawar. The
Shaikh of Qatar . . . seeks to show that these two judgments are of
no evidentiary value since it is, he claims, common for Qadhis of one
Moslem country to settle disputes between the subjects of another
Moslem country. This statement is of course true up to a point in
“personal cases, but the Shaikh of Qatar would be the first to deny
that a Nejdi Qadhi, for instance, could settle a dispute between two
Qatar subjects in respect of landed properties in Doha.” (Memorial
of Bahrain, Vol. 5, Ann. 281, pp. 1170-1171.)

411. This analogy drawn by Weightman is of course not correct.
In the 1910 case both parties were Dowasir and in the 1909 case at
least one of the parties was Dowasir (see text of the judgments). Neither
of the two judgments indicates that any of the parties before the gadi
of the Sharia Court was a Qatari. This suggests that the parties were
Dowasir, normally resident in Zellaq, without excluding the possi-
bility that the 1910 case might also have involved Bahrainis other
than Dowasir. If this is assumed to be the case, a proper analogy
would be the settlement by a Nejdi gadi of a dispute between two or

366
403 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

more Nejdi subjects concerning property in Doha.

412. In any case, the judgments stated that the parties “appeared
before” the gadi of the Sharia Court. In neither of the cases is there any
indication that the parties were summoned by a court order or otherwise
to appear before the court or that any of the parties appeared against his
will. Both judgments are essentially declaratory with regard to rights and
neither of them contains any provision for application or enforcement of
the decision in the Hawar Islands.

413. The other item of 1911, dated 15 January, concerns a summons
served in connection with a pearl-diving matter (Memorial of Bahrain,
Vol. 5, Ann. 239 (a), p. 1050). Bahrain suggests that the person con-
cerned was a “Hawar Island resident” who was compelled to attend in a
Bahraini civil court case at the request of Britain. However, there is no
evidence of any arrest having being made in Hawar or indeed of the
person concerned actually appearing in court, since the document states
that “until now he has not arrived”. The document also implies that the
person was not always resident in Hawar, since it refers to him as
“now residing” (in January) in Hawar.

414. The three items of the 1930s belong to the suspect period in the
sense that the documents concerned appear to form part of Belgrave’s
efforts to collect evidence in support of Bahrain’s 1936 claim to the
Hawar Islands and against the Ruler of Qatar’s assertions in 1938 that
the Hawar Islands were part of the territory of Qatar. Although the way
in which it is presented in the Bahraini Annexes is far from clear, it
appears that the evidence concerned relates in fact to the following three
cases:

— case 6/1351 of 1932 concerning a diving account (Memorial of Bah-
rain, Vol. 5, Ann. 244 (a) and (b), pp. 1067-1068);

— case 264/1351 of 1932 concerning a mortgage and a diving debt
(Memorial of Bahrain, Vol. 5, Anns. 242 and 243, pp. 1065-1066);
and

— case 35/1355 of 1932/1936 concerning fish traps (Memorial of Bah-
rain, Vol. 5, Anns. 242 and 245, pp. 1065 and 1070).

415. The first two cases relate to matters other than “property rights”.
According to the evidence submitted, they concern summonses allegedly
served on the defendants. In the 6/1351 case both parties are described as
being “of Bahraini origin, living in Hawar and... Bahraini subjects”.
Since the document is dated March 1932, it may have been during the
overwintering of the Dowasir in Hawar. Moreover, there is no evidence
that the persons concerned did appear in court while they were “resident
in Hawar”, since it is recorded that the defendant was “summoned

367
404 = DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

again” and that the hearing was scheduled for May 1932, 1.e., possibly
when the Dowasir had returned to Bahrain after the winter season, Con-
cerning case 264/1351, the heading of Annex 242 describes the case as
“between Bahrain subjects living in Hawar”, but according to the sum-
mary of the case in that Annex and the record of the case in Annex 243,
it appears that only the defendant, a Dowasir, was living in Hawar.

416. Those living in Hawar were “ordered to come to Bahrain” by
letter (see Ann. 243). There is no indication that the summonses were
actually served in Jazirat Hawar. In both cases, the summonses were
ineffective, Annex 243 listing no less than seven summonses served
upon the Dowasir defendant in case 264/1351. There is no evidence of any
arrest or compulsory attendance measures being carried out in Hawar by
the Bahraini authorities. There is no Arabic text of Annexes 242 or
243 (case 264/1351).

417. In the third case (case 35/1355), the evidence described it, in
Annex 242 dated 1932, as “inheritance in fish traps, etc., at Hawar”
between “Bahrain subjects living in Hawar”. However, the second piece
of evidence concerning this case — a letter from the Bahraini Police
Directorate to the Bahrain Court dated 14 April 1936 (Ann. 245) —
describes the plaintiff as a Dowasir “of Zallaq” who came to the Police
Directorate and said that “he had fish traps between Bahrain and Qatar
near to Hawar” (emphasis added). He alleged that the defendants “took
the traps away and went off to Hawar” and that “those who had
attacked him were from Hawar”. There is no evidence in this case of
arrests or enforcement measures carried out in Hawar and no Arabic text
of Annexes 242 and 245.

418. Over and above the foregoing, Bahrain's case on the alleged judi-
cial activities concerning the Hawars relied exclusively upon Belgrave’s
letter of 28 April 1936 and his note of 29 May 1938, both of which make
general assertions, in the context of Bahrain’s claim to Hawar, about the
sending of “fidawis” and “summonses” to arrest people of Hawar when
they were required to appear before the Bahraini authorities or courts
and about the Bahraini police arrests in Hawar for that purpose. The evi-
dence submitted to the Court by Bahrain confirms that Belgrave’s asser-
tions were and are unsubstantiated. In his letter to Weightman of 20 April
1939, Belgrave refers only to the 264/1351 case and, apparently, to fish
trap case 35/1355. No further evidence was provided. In fact. Belgrave in
his letter of 20 April 1939 admitted that “Hawar fish traps” were not
registered in Bahrain as had previously been asserted by him in May
1938.

368
405  DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

419. A number of additional points should be considered relating to
certain aspects of the Bahrain and Qatar oil concessions and negotiations
which could have a bearing on the disposal by this opinion of Bahrain’s
effectivités argument with respect to the Hawar Islands. 1 am referring to
the Laithwaite (India Office) letters of 3 May 1933 (Memorial of Qatar,
Vol. 6, Ann. ITI.84, p. 433) and 9 August 1933 (ibid., Vol. 6, Ann. IIT.91,
p. 463). These letters concern BAPCO’s application in 1932 for an exten-
sion of its prospecting licence from the Ruler of Bahrain in respect of the
“unallotted area” of the Ruler’s dominions for which a concession was
still to be granted.

420. In the first letter, Laithwaite defined the “dominions” of the
Ruler of Bahrain as the Bahrain archipelago proper with its five main
islands. Then, in his second letter, Laithwaite explained that the first
licence by Bahrain under the Agreement of 2 December 1925 was in
respect of “the whole of the territories under the Sheikh of [Bahrain]’s
control” (Memorial of Qatar, Vol. 6, Ann. III.91, p. 467). Finally,
Laithwaite concluded that “[t]his seems clearly to exclude areas in Qatar
and presumably also would exclude the Hawar which belongs in any case
geographically to Qatar, and is the westernmost and largest of a group of
islands just off the Qatar coast on the west side of the entrance of Duhat-
al-Adhwan” (ibid. ). This letter clearly implied that in 1933 the Ruler of
Bahrain exercised no authority or control over the Hawar Islands.

421. Laithwaite’s understanding of the territorial situation in 1933 is
further confirmed by the War Office map annotated by the British For-
eign Office (G. W. Rendel map, see Map No. 6 of this opinion, p. 451
below) and by the statement made in 1934 — during negotiations for the
Qatar Oil Concession of 1935 — by the British Political Resident in the
Gulf, to the effect that the Al-Thani Ruler of Qatar was the Ruler of all
Qatar and that the 1916 Anglo-Qatari Treaty covered the whole of
Qatar. The Political Resident made no exception in respect of the Hawar
Islands. Laithwaite’s second letter of 1933 did contain a reference to a
“vague claim” by Bahrain, but that reference concerns Zubarah and not
Hawar. The passage reads as follows:

“We have been considering whether there is any risk, in view of
the reference to the Sheikh [of Bahrain]’s ‘territories’ in the Agree-
ment of December, 1925, [the first Bahrain concession] of a claim
being put forward by the [American] Syndicate fo rights in respect of
Hawar and the area in Qatar to which a vague claim is maintained by
Bahrein and to which Colonel Loch refers in his telegram of 23rd July
No. 27 to the Colonial Office.” (bid., p. 466; emphasis added.)

The text of the relevant passage of Loch’s telegram (see Memorial of
Qatar, Vol. 6, Ann. HI.85, p. 440) in fact concerns Zubarah and not
the Hawar Islands. Thus, the risk of a claim “to rights in respect of
Hawar” referred to in Laithwaite’s letter did not at that time come

369
406 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

from Bahrain but from the (American) Syndicate, namely from private
oil interests.

oe

422. In conclusion, Bahrain has not proved to my satisfaction, by its
alleged effectivités items”, the intentional display of power and authority
over the territory of the Hawar Islands at the relevant time, by the exer-
cise of jurisdiction and State functions on a continuous and peaceful
basis, as required by international law for effectivités to be able to gen-
erate title to territory (irrespective of the question of the status of the ter-
ritory concerned, which in the present case was indeed a territory whose
maitre was the Ruler of Qatar). Moreover, the State’s effectivités after
the 1937 occupation — also relied upon by Bahrain — are self-defeating
for the purposes of demonstrating “title” to the Hawar Islands before
that date. As stated in Oppenheim:

“The principle ex iniuria ius non oritur is well established in inter-
national law, and according to it acts which are contrary to interna-
tional law cannot become a source of legal rights for a wrongdoer.”
(Reproduced in the Memorial of Qatar. Vol. 8, Ann. III.307, pp. 545-
546.)

423. I therefore cannot uphold Bahrain’s plea that the alleged effec-
tivités generate a territorial title to the Hawar Islands or some of those
islands or override the original title of Qatar to the Hawar Islands archi-
pelago as a whole.

424. The evidence submitted by Bahrain of effectivités has failed to
prove that the State of Bahrain has either an original title to the Hawar
Islands or a prevailing derivative title to those islands. The 1937 occupa-
tion of Jazarat Hawar, a territory avec maître at that time, was not an
occupation generating title, but an unlawful one, which as such cannot
give rise in international law to any kind of title to territory opposable to
the holder of the origina] title, namely to the State of Qatar in the present
case.

D. Inapplicability of Uti Possidetis Juris to the Present Case

425. To invoke or apply a given principle or norm of international law
it is necessary first to define the principle or norm concerned and its scope
and then to ascertain whether the circumstances of the case are among
those which attract the application of the principle or norm in question.
It is my considered opinion that on both counts uti possidetis juris has no
role to play in the present case. But since it has been invoked by Bahrain,
I shall explain below in some detail the reasons for my conclusion as to
the inapplicability of wri possidetis juris, even if it inevitably means
lengthening this opinion.

370
407 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

426. As stated, the present case is one of general international law and
uti possidetis juris is, in my view, one principle or norm of contemporary
general international law among many others, although not a norm of jus
cogens. My rejection of uti possidetis juris in the present case is not there-
fore based upon any hesitation on my part as to its normative character
in present-day international law when applicable. This should be made
clear from the outset. As I see it, the only question that arises is whether
or not uli possidetis juris is applicable to the present case. I would add, to
avoid any misunderstanding, that here I am talking about uti possidetis
juris and not uti possidetis tout court. The latter is no more than a form
of expressing de facto possession without regard for title. This clarifica-
tion is necessary because Bahrain’s oral arguments on the matter are not
as Clear in that respect as they should be. In fact, counsel for Bahrain
used the term “uti possidetis” more often than the term “uti possidetis
juris” and devoted part of the presentation to questions such as “the rela-
tionships between title and effectivités in the context of uti possidetis as
applicable to the Hawar Islands” (CR 2000/13, p. 62). Fortunately, coun-
sel for Bahrain clarified Bahrain’s position on this matter in his subse-
quent argument when, at the meeting held on 27 June, he stated that “in
principle and logic uti possidetis juris should be the alpha and the
omega” (CR 2000/21, p. 9). I have therefore assumed that the principle
invoked by Bahrain is uti possidetis juris and not just uti possidetis.

427. To begin with, the present case is one between two Arab States of
the Persian Gulf, not between two Spanish American Republics, a case in
which the Hawar Islands dispute crystallized before the Second World
War. It is also a case in which both Parties claim to be the holders of an
original international title to the islands as from about 1868 onwards
(Qatar) or from the eighteenth century onwards (Bahrain). Thus, the first
legal question to be answered is a ratione personae intertemporal law
question. Was uti possidetis juris at the period of the formation, consoli-
dation and recognition of the original title to the Hawar Islands a prin-
ciple or norm of international law applicable between Bahrain and Qatar
or accepted by Great Britain or even by the Ottoman Empire and other
interested States of the region?

428. The reply to this question has to be “no”, because uti possidetis
juris became a norm of international law of general application (that is,
beyond the confines of relations between Spanish American Republics)
only after the Second World War, to be more precise around the time of
the general decolonization of the African Continent. The Eritrea- Yemen
Arbitral Award of 1998 rejected the claim of uti possidetis by one of the
Parties noting, inter alia, that:

“Added to these difficulties is the question of the intertemporal

371
408 = DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

law and the question whether this doctrine of uti possidetis, 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.”
(Para. 99 of the Award.)

429. There is a generally accepted rule of law, including international
law, according to which the judicial evaluation of title resulting from his-
torical consolidation (namely by a process, a continuum, a succession of
acts, facts or situations over a given span of time) should be made on the
basis of the international law in force at the time when such title osten-
sibly arose (see, for example, Grisbadurna, Baie de Delagoa, Clipperton
Island, Island of Palmas, Minquiers and Ecrehos, etc.). It is true that in
the Island of Palmas case, Huber qualified that non-retroactive principle
by adding “that the existence of the right . . . its continued manifestation,
shall follow the conditions required by the evolution of the law”, but I do
not see how it would be possible to conclude in the present case that the
contemporary generalization of the uti possidetis juris of the 1960s could
retroactively deprive either of the Parties of any territorial rights over the
Hawar Islands when for both Parties those rights in rem already formed
an established territorial order of things before the generalization of uti
possidetis juris as a norm of general international law.

430. Non-retroactivity in the application of its norm is a well-estab-
lished principle of customary international law and not only of the law of
treaties. Retroactivity in the application of a norm of international law is
admissible only where the norm itself is adopted with such an intention
or where the interested parties are in agreement as to the retroactive
applicability of the norm in their mutual relations. In the circumstances
leading to the formulation of uti possidetis juris as a norm of general
international law, I did not find anything in the State practice or opinio
juris to suggest that the acceptance of uti possidetis juris as a norm of
general application implied any intent to give the norm retroactive effect,
so as to make it applicable also to any act or fact which took place or any
situation which ceased to exist before the generalization of uti possidetis
juris. Moreover, in the present case, Qatar rejects the application of wti
possidetis juris in its relations with Bahrain. There is therefore no agree-
ment between the Parties as to retroactive application of uti possidetis
juris by the Court to the present case.

431. Having said that, I now come to the crux of the matter, namely to
the substantive conditions which must be met for uti possidetis juris to
apply to a specific case. Uti possidetis juris as a principle or norm of
international law has two aspects in that it concerns the delimitation of
boundaries (which is not particularly relevant in the present case) and the
question of title to territory. For both aspects, there should exist a situa-

372
409  DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

tion of succession which in my view (some legal writers think otherwise)
should be related to decolonization in general international law. In any
case, without an event entailing succession, ufi possidetis juris is inappli-
cable as a principle or norm of general international law. Even when uti
possidetis juris is invoked or applied by virtue of a particular rule (e.g., a
binding treaty or agreement, established rules of an international organi-
zation, or even domestic constitutional provisions) there must be succes-
sion in international law. / do not see any such succession in international
law in the present case. Bahrain and Qatar were subjects of international
law long before 1971, participating as such in international relations and
agreements, as well as making laws of their own, formulating interna-
tional claims and assuming international obligations.

432. It must also be noted that a situation of succession may concern
various matters (treaties, debts, nationality, territorial questions, etc.)
and that the rules of international law applicable to those matters are by
no means the same, let alone identical. For example, the 1978 Vienna
Convention on Succession of States in Respect of Treaties contains no
provisions concerning the operation in that field of uti possidetis juris. On
the contrary, the Convention excludes “boundary regimes” and “other
territorial regimes” (Arts. 11 and 12), which are not affected as such by a
“succession of States”, a term defined not in general but only for the pur-
poses of the said Convention as meaning the replacement of one State by
another in the responsibility for the international relations of territory
(Art. 2, para. 1{b), of the Convention). 7 do not see any issue in the case
before the Court concerning a situation of succession in respect of trea-
ties. These questions are not part of the subject of the dispute before the
Court.

Ea

433. If uti possidetis juris is invoked, as it has been by Bahrain, the
succession must concern, as indicated above, either “delimitation of
boundaries” or “title to territory”. There is no other aspect of uti possi-
detis juris. The Court certainly has before it a case concerning “title to
territory”. There can be no question of this. Nor can there be any confu-
sion between “succession in respect of treaties” and “succession in respect
of title to territory”. Under uti possidetis juris, as a principle or norm of
general international law, the question of succession in respect of title to
territory depends on two cumulative legal requirements: (1) the existence
of an original international law title of a predecessor State in the territory
or territories concerned on the date of the succession; and (2) the exist-
ence of two or more successor States which themselves assume, after
the succession date, the status of “successors” to the predecessor State
(sovereignty is involved here; succession between States is by no means

373
410 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

equivalent to succession between human beings). Jn the present case
neither of these two indispensable legal requirements is satisfied.

434, The Court is not in possession of any document or evidence prov-
ing the existence of an original international title of Great Britain to the
territories in dispute between Bahrain and Qatar, including the Hawar
Islands. There is no British declaration, proclamation, legislation, treaty,
etc., whereby the territories of Bahrain and Qatar were — at any time
before 1971 — considered by Great Britain to be territories, colonies,
protectorates, or mandate or trust territories of the British Crown. The
information in the case file in fact suggests otherwise. For example, in a
letter from Pelly, British Political Resident in the Persian Gulf, to the
Secretary to the Government of Bombay, dated 25 September 1869, ref-
erence is made to a petition from some inhabitants and merchants of
Bahrain asking that the British Government “receive the island of Bah-
rain and its people under its protection and as its subjects, and that the
island may be considered as part of the Government possessions, and the
inhabitants as British subjects”, but Pelly replied as follows: “I have
informed them that I can hold out no hope of this wish being acceded.”
(Supplemental Documents of Qatar, doc. 1, p. 5.) As Lord Curzon, Vice-
roy of India, stated in 1903: “We have not seized or held your territory.
We have not destroyed your independence but have preserved it.” (Pas-
sage quoted in the Dubai/Sharjah Arbitral Award.)

435. At the hearing, counsel for Bahrain quoted a passage from a
draft brief by Rendel, dated 5 January 1933, in which it is stated that:

“The other Persian Gulf States [other than Persia, Iraq and Saudi
Arabia] have a peculiar status, since, while they are technically sov-
ereign and independent principalities, they are in special treaty rela-
tions with His Majesty’s Government, with the result that they are
practically in the position of protected States.” (Reply of Qatar,
Vol. 2, Ann. 11.58, p. 338.)

But in paragraph 4 of the same draft it is stated that: “These territories
do not form part of the British Empire or of India. They are independent
States for the conduct of whose foreign relations H.M. Government are at
present responsible.” (Ibid, p. 342; emphasis added.)

436. Moreover, nor is there any official statement by Bahrain and/or
Qatar assuming the general status of successors to a non-existent inter-
national law title of Great Britain to their respective territories before the
institution of the present proceedings. Furthermore, the international
community never considered Bahrain and/or Qatar as territories or colo-
nies of the British Crown. The case of Qatar is particularly revealing in
this respect. The Ottomans left Qatar in January 1915 and yet, after the

374
411  DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

First World War, the country did not become, under the League of
Nations system, a mandate of the British Crown or any other Power, as
happened to many other former Ottoman territories. The British Crown
never assumed the sacred international obligations of a mandatory power
in respect of Qatar or Bahrain. After the Second World War, neither
Qatar nor Bahrain was subject to the trusteeship system of Chapter XH
of the United Nations Charter or ever listed among the non-self-govern-
ing territories to which Chapter XI of the Charter applies. The United
Kingdom never transmitted any information to the Secretary-General
concerning Qatar and/or Bahrain pursuant to Article 73 (e) of the
United Nations Charter.

437. In an official document of the United Nations Security Council
(doc. S/9772, p. 5), dated 30 April 1970, reference is made to the views
held at the time by the Government of Iran and the Government of the
United Kingdom on the status of Bahrain. For Iran, Bahrain was a prov-
ince of Iran, but for the United Kingdom Bahrain was “a sovereign Arab
state with which the Government of the United Kingdom are in special
treaty relations” (para. 12 of the document). Moreover, the document
specifies that:

“These ‘special treaty relations’ relate to the formal treaties of
1820, 1847, 1856, 1861 and the Exclusive Agreements of 1880 and
1892 between H.M. Government and the Ruler of Bahrain. From
1820 the Government of the United Kingdom have acted on the
assumption that Bahrain is an independent sheikhdom and have
recognized the authority of its Rulers.” { Ibid.)

*

438. As explained above, and generally in other publications in the
public domain, relations between Great Britain and Bahrain and Great
Britain and Qatar before 1971 were based upon “special treaty relations”.
By virtue of the treaties in question, Great Britain assumed a series of
powers and functions of the independent Arab rulers in so far as their
respective States or sheikhdoms were concerned, but none of the treaties
established protectorates of a colonial nature. Under those treaties the
Arab rulers did not transfer to Great Britain their sovereignty over andlor
title to the territory of their respective States. The “special treaty rela-
tions” of the protected States of the Gulf with Great Britain did not alter
either the sovereign authority in those States, which continued to belong
to the Arab ruler or sovereign of the State concerned, or the title to the
territory of the country, which continued to be held by that ruler or
sovereign. The subjects, territories and dependencies remained subjects,
territories and dependencies of the Arab rulers, of Bahrain and of Qatar
in the present case. As was noted:

375
412 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

“the British Government has, in official statements made from time
to time, described the Shaikhdoms as “independent States under
British protection’ or as “independent States in special treaty rela-
tions with Her Majesty’s Government’” (H. M. Al-Baharna, The
Legal Status of the Arabian Gulf States, 1968, p. 78).

*

439. The texts of the agreements concluded by Great Britain with Bah-
rain in 1861, 1880 and 1892 and with Qatar in 1916 are quite clear. It
follows that during the whole of the relevant period Great Britain had no
power, right or authority in law effectively to dispose of or cede the ter-
ritory or territories of Qatar or the territory or territories of Bahrain. The
political and legal position of Great Britain in the Gulf before 1971 has
absolutely nothing in common with the former Spanish Crown’s position
in America. The Spanish Crown in America had international sover-
eignty over and title to territory, while the British Crown in the Gulf,
including Bahrain and Qatar, had no such sovereignty or title.

440. The object and purpose of the 1861 Agreement concluded by
Great Britain with the Independent Ruler of Bahrain was a perpetual
Convention of Peace and Friendship with the British Government. The
provisions of the Convention refer to the subjects, possessions and terri-
tories of the Ruler (Arts. 2 and 3) and contain expressions such as “upon
Bahrein or upon its dependencies in this Gulf” (Art. 3) or “in the terri-
tories of Bahrein” or “subjects of Bahrein” (Art. 4). There is even a
recognition in trade matters of most favoured treatment in Bahrain “of
British subjects” (also in Art. 4). Secondly, out of fear that an Ottoman
presence would be established in the Bahrain islands, Britain secured an
Agreement from the Ruler of Bahrain in 1880 in which the latter bound
himself, his heirs and successors not to enter into negotiations of any
kind with any power without the consent of the British Government. He
also undertook not to accept the establishment of any kind of foreign
agency in Bahrain without British approval. Treaty-making and the
receiving of foreign diplomatic missions by the Ruler of Bahrain were
curtailed by the 1880 Agreement, but the territory of the country con-
tinued to be the territory of the Ruler of Bahrain and not a British
Crown territory of any kind.

441. This type of agreement culminated in 1892 in the so-called “exclu-
sive agreements” signed by the Rulers of the Trucial States and by the
Ruler of Bahrain. The former bound themselves, their heirs and succes-

376
413 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

sors to the same conditions as the Ruler of Bahrain had in 1880. In addi-
tion, all Rulers (of the Trucial States and Bahrain) signed a non-aliena-
tion bond with Britain whereby they could not cede, sell or lease any part
of their territories to any power other than Britain. The non-alienation
bond provides conclusive evidence that the territories of Bahrain were
not territories of the British Crown. The Bahrain islands were always
politically protected by Britain, but Bahrain never became a colony or a
colonial protectorate under international or British domestic law.

442. This is confirmed in the 1913 Anglo-Ottoman Convention, Ar-
ticle III of which states that the Government of His Britannic Majesty
has no intention of annexing the Island of Bahrain to its territories. This
can only mean a contrario that on 29 July 1913, the date of the Conven-
tion, the Island of Bahrain was not considered a British territory by the
Government of Great Britain. Moreover, I did not find in the case file
any subsequent act of annexation or similar legal act of the British
Government concerning the Bahrain islands.

443. Until 1916, Qatar remained outside the above-mentioned treaty
relations system of the Arab Rulers of the Gulf with Great Britain. In
that year, the Sheikh of Qatar joined the system by signing the 1916
Treaty with the British Government. It is a Treaty with some provisions
similar to those of the “exclusive agreement” type. For example, it also
contains a non-alienation bond concerning the territory of the Ruler of
Qatar. The Treaty refers to “my territories and port of Qatar”, “re-ex-
ported from my territories” and “maintenance of order in my territories”
(Art. III), meaning the territories of the Sheikh of Qatar. Moreover, it
also refers to “goods of British merchants imported to Qatar” (Art. VI),
“to allow[ing] British subjects to reside in Qatar” (Art. VII), to British
traders “residing in my ports or visiting them upon their lawful occa-
sions” and to the transaction of such business “as the British Govern-
ment may have with me” (Art. VIII) and to allowing “the establishment
of a British Post Office and a Telegraph installation anywhere in my
territory” (Art. IX).

444. Furthermore, Articles X and XI of the 1916 Treaty between
Great Britain and Qatar provided for two guarantees by the British Gov-
ernment relating to the political and territorial integrity of Qatar. Those
provisions are as conclusive as the non-alienation bond clause concerning
the point under consideration, namely that the territory of Qatar has
never been a territory of the British Crown in any form (colony, man-
date, protectorate, non-self-governing territory, etc.). No State guaran-

377
414 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

tees by treaty the security of its own territory. Governments have a con-
stitutional and international obligation to protect it, and that is all. As
documented in the case file, those international guarantees, in particular
the one concerning “land”, were the subject of considerable attention by
the British authorities during and after the conclusion of the 1916 Treaty
(as well as in the 1930s). The text of the relevant articles of the 1916
Treaty reads as follows:

“X. On their part, the High British Government, in consideration
of these Treaties and Engagements that I have entered into with
them, undertake to protect me and my subjects and territory from
all aggression by sea and to do their utmost to exact reparation for
all injuries that I, or my subjects, may suffer when proceeding to sea
upon our lawful occasions.

XI. They also undertake to grant me good offices, should I or my
subjects be assailed by land within the territories of Qatar. It is,
however, thoroughly understood that this obligation rests upon the
British Government only in the event of such aggression whether
by land or sea, being unprovoked by any act or aggression on the
part of myself or my subjects against others.” (Memorial of Qatar,
Vol. 5, Ann. II.47, p. 185.)

445. No State assumes such kinds of undertaking regarding its own
metropolitan territory or its colonial territories. No Government under-
takes to grant “good offices” for protection from aggression against its
own territories, colonial or otherwise. It should be added that, under the
1916 Treaty with Great Britain, the Sheikh of Qatar also assumed the
obligations set forth in “Treaties and Engagements” concluded pre-
viously by the friendly Arab Sheikhs of the Trucial States (today the
United Arab Emirates). There is also an arbitral interpretation which is
highly pertinent in the present context. I am referring to the Award of
19 October 1981 concerning the Boundary between Dubai and Sharjah, in
particular to the following passages:

“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. The Court has therefore come to the conclusion that the con-
sent of the Rulers was necessary before any such delimitation could
have been undertaken.

The Court must emphasise that, in the absence of competence
derived from conventional sources, the Tripp decisions can only
have legal value to the extent that the Emirates had freely given their

378
415  DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

consent to a determination of their boundaries by the British authori-
ties.” (International Law Reports, Vol. 91, pp. 567 and 569.)

%

446. In the light of the above, I do not see how the termination in 1971
of the “special treaty relations” between Bahrain and the United King-
dom and between Qatar and the United Kingdom could involve any
question of succession to “title to territory” that might make uti possi-
detis juris applicable as a principle or norm of general international law.
“Title to territory” is one thing and “termination of treaties” and assump-
tion of “full international responsibility for the conduct of foreign affairs”
quite another. Even in colonial or similar situations, that distinction
holds in contemporary international law. South Africa, for example, for
decades had international responsibility for the conduct of the affairs of
South West Africa (now the independent United Nations Member State
of Namibia) but no title at all to its territory. The General Assembly, the
Security Council and the International Court of Justice recognized pre-
cisely that several years ago.

447. More generally, within the context of the principle of self-deter-
mination under contemporary international law as applied by the United
Nations to colonial countries and peoples, it is recognized that the “ter-
ritory of a colonial or other non-self-governing territory” has a status
separate and distinct from that of the territory of the State administering
it (see, for example, the Friendly Relations Declaration). Thus, the way
in which international law has evolved regarding even former colonial
situations cannot justify depriving Bahrain and Qatar of the title to their
respective territories that they had always possessed by combining both
titles into a single title of the British Crown which the latter had never
claimed!

448. The Parties’ responses to the questions put by Judge Vereshchetin
during the oral stage of the proceedings fully confirmed that Qatar and
Bahrain were not considered to form part of the territories of the British
Crown, colonial or otherwise. The British Government treated the Rulers
of Bahrain, Qatar and other sheikhdoms in the Guif as heads of inde-
pendent governments, notwithstanding the special treaty relations referred
to above. In this connection, it is of particular interest that, after the
Second World War and before 1971, the State of Qatar concluded treaties
in delimitation matters with Saudi Arabia, Abu Dhabi and Iran, as did
Bahrain in 1958 with Saudi Arabia. I see nothing in those responses
about any treaty concluded by the United Kingdom with third States on
behalf of Bahrain and/or Qatar in matters relating to territory. The 1947
British sea-bed dividing line is not binding upon either Qatar or Bahrain,
but how can Bahrain share this conclusion in the light of its uti possidetis

379
416 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

juris plea? It is significant that the extension by the United Kingdom to
Bahrain, Qatar and the Trucial States of the 1949 Humanitarian Red
Cross Conventions contains the following reservation “to the extent
of Her Majesty’s Powers in relation to those territories” (Ann. 2 to
Bahrain’s response). The United Kingdom thus recognized that “those
territories” were not United Kingdom territories.

*

449. The concept of possession embodied in uti possidetis juris as a
principle or norm of general international law is not effective possession,
holding or tenancy, but the right to possess according to legal title.
Where, according to that principle or norm must that legal title be
found? Not in general international law or in the actual occupation or
effective possession of the territory concerned, but in the law of the com-
mon predecessor State or possibly, if there are two predecessor States, in
a treaty between those States. This meant, in the case of the former Span-
ish American Republics, that their right to possess was defined by the
cédulas reales and similar acts of legislation of the Spanish Crown after
hearing the Consejo de Indias, not in individual political or administra-
tive decisions of government.

450. Counsel for Bahrain correctly quoted in the hearings the passage
in the Judgment of the Chamber in the case concerning the Land, Island
and Maritime Frontier Dispute ( El Sulvador/ Honduras: Nicaragua inter-
vening} to the effect that “when the principle of the uti possidetis juris is
involved, the jus referred to is not international law but the constitutional
or administrative law of the pre-independence sovereign” (.C.J. Reports
1992, p. 559). But immediately after, the same counsel devalued the
meaning of the quoted passage by adding:

“So in the case of the Hawar Islands, as long as the situation
was clearly disposed of by the British administration, for whatever
reason, good or bad, the issue of title begins and ends right
there” (CR 2000/21, p. 10; emphasis added).

Unfortunately for Bahrain, uti possidetis juris does not relate back to any
given individual administrative or political act of government, but to the
constitutional or administrative law of the predecessor State, as noted by
the Chamber. Furthermore, a few pages later counsel stated, in the con-
text of his argument on Bahrain’s original title, the following: “Britain
was not the title-holder; and one can only alienate what one has. Nemo
dat que non haber” (ibid., p. 15, para. 2).

380
417 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

451. This is the crux of the matter. In short, it explains why uti possi-
detis juris is not applicable in this case. The United Kingdom non habet
territorial title in Bahrain or Qatar and consequently could not dispose of
any part of the territory of those countries without the consent of their
respective sovereigns or rulers.

452. Any application of uti possidetis juris inevitably implies a refer-
ence to the law of a common predecessor State. | am no expert on British
law, but I do not see among the evidence submitted by Bahrain any item
of British law defining before 1971 the respective territories of Bahrain
and/or Qatar as British territories. 1 do not see any act of Parliament, or
other form of British legislation or relevant secondary regulations in this
matter. It does not do justice to the domestic constitutional order of the
United Kingdom to believe that a single act of the British Government
could dispose of British territories or territories of the British Crown. In
fact, not a single British document of the 1936-1939 period relating to the
Hawar Islands made any reference to British law. The 1936 and 1939
British “decisions” are not acts implementing or creating British law. As
presented, they were adopted by the executive, that is by the British Gov-
ernment, as government decisions taken, like many others, in the context
of the conduct of foreign relations.

453. The successive British Orders in Council regarding the organiza-
tion of criminal and civil jurisdiction and the corresponding courts and
procedures relating to Bahrain, Qatar and other States of the Persian
Gulf (Kuwait, Muscat, Trucial States) confirm that those countries were
not territories of Great Britain. All Orders begin by stating that: “Whereas
by treaty, capitulation, grant, usage, sufferance and other lawful means
His Majesty the King fas jurisdiction within the territories of the Sheikh
of..." According to explanatory notes sometimes published with the
Orders in British and Foreign State Papers: “In the territories of all those
States, by agreement with their rulers, His Majesty exercises jurisdiction
over certain persons and property.” (Vol. 165, p. 300.)

454. In 1971, the United Kingdom did not adopt any kind of inde-
pendence act concerning Bahrain and/or Qatar, as it did in the case of its
dependent territories or colonies. What the United Kingdom and Bah-
rain and the United Kingdom and Qatar did in 1971 was to conclude
treaties concerning “the termination of the special treaty relations” that
previously existed between them. That termination took place by meuns
of an instrument of international and not by British law. Thus if the pre-
vious “special treaty relations” were terminated through the conclusion
of a fresh treaty and not by British law, Bahrain and/or Qatar could not
in 1971 have been British dependent territories or colonies of the British

381
418 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

Crown or colonial protectorates of the United Kingdom, but must have
been States under international law.

455. The 1971 Treaties were registered and published in the United
Nations Treaty Series and, under the 1969 Vienna Convention on the
Law of Treaties, a “treaty” means “an international agreement concluded
between States in written form and governed by international law”
(emphasis added). This is further conclusive proof of the inapplicability
of uti possidetis juris to the present case. By those Treaties Bahrain and
Qatar “resume[d] full international responsibility as sovereign and inde-
pendent States”, but were not established as sovereign and independent
States by the Treaties. They simply reassumed the powers exercised by
the United Kingdom by virtue of the “special treaty relations” termi-
nated in 1971.

456. Furthermore, Bahrain has always — until the current proceed-
ings — rejected the proposition that it was subject to any type of colonial
status under the British administration. The legal opinion of Sir Lionel
Heald of 4 July 1963, communicated by the Government of Bahrain to
the British Foreign Office, is quite correct and clear in that respect
(Memorial of Qatar, Vol. 11, Ann. IV.248, p. 425; also in CR 2000/17,
p. 14). If so, it must also have been correct and clear in 1971 and there-
after.

457. In conclusion, in the light of the considerations above, I reject
Bahrain’s uti possidetis juris plea because this principle or norm of gen-
eral international law does not apply to the facts and circumstances of
the present case. Uti possidetis juris is irrelevant in this case and therefore
cannot become the source of a derivative title of Bahrain to the Hawar
Islands. Through its uti possidetis juris plea Bahrain cannot avoid
proving to the Court that it is in possession of an internationally valid
legal title to the Hawar Islands. Legal title should exist to uphoid a
Judicial determination based upon uti possidetis juris, because effective
possession is by no means uti possidetis juris legal title.

E. General Conclusion of Section B of Part 1

458. For the reasons set out above in this Section B of Part I of the
opinion, I am unable to uphold any of the three pleas of the State of Bah-
rain to the effect that it is the holder of a derivative title to the Hawar
Islands either because of the 1939 British “decision”, Bahraini effectivités
in the Hawars, or the uti possidetis juris principle.

459. In my view, the State of Bahrain is not the holder, on the basis of
those pleas, of the invoked derivative titles to any of the islands of the
Hawar group. The derivative titles relied upon by Bahrain are non-exist-

382
419  DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

ent in law and in fact and consequently cannot prevail over the State of
Qatar’s original title to the Hawar Islands as a whole, particularly as the
latter are an archipelago that geographically forms part of the Qatar
peninsula, its islands lying off, wholly or partly, the territorial sea belt of
that peninsula or being contiguous thereto.

Overall Conclusion concerning Part I of the Present Opinion

460. My general conclusion concerning the territorial questions in dis-
pute between Qatar and Bahrain in the present case — derived from my
previous conclusions in Sections A and B of this Part of the opinion — is
that sovereignty over:

(a) Zubarah;
(b) the Hawar Islands; and
{c) Janan Island, including Hadd Janan,

belongs to the State of Qatar.

461. Consequently, I am in disagreement with the Judgment as to
which of the two Parties has sovereignty over the Hawar Islands. It is my
belief that such sovereignty appertains to the State of Qatar and not to
the State of Bahrain and this explains, to my regret, my negative vote on
the finding in paragraph 2 (a) of the operative part of the Judgment,
which is based exclusively on a particular interpretation of the 1939 Brit-
ish “decision”. ] cannot share this finding because for me the said British
“decision” is in international law an invalid decision on formal as well as
essential grounds. That “decision” could not have generated binding
legal effects in the relations between the Parties to the present case either
in 1939 or subsequently with respect to any of the islands forming the
Hawar Islands group.

PART II. THE MARITIME DELIMITATION
A. Introduction

1. The Bahraini “archipelagic State” argument

462. The main reason for the unusual and extraordinary differences
between the maritime lines claimed by the Parties in the present case
stems from the fact that Bahrain is claiming to be an “archipelagic State”
within the meaning given to the term in Part IV of the 1982 Convention
of the Law of the Sea. I have explained at the end of the General Intro-
ductory Observations of this opinion why I reject this claim of Bahrain.
Bahrain should have declared itself before the current proceedings to be
an archipelagic State, thereby assuming the corresponding rights and
obligations, including those relating to the right of innocent passage and

383
420 DELIMITATION AND QUESTIONS (DISS, OP. TORRES BERNARDEZ)

the right of archipelagic sea lanes passage through archipelagic waters of
ships of all States (Arts. 52 and 53 of the 1982 Convention). But Bahrain
did not do so. The justification that it did not do so in order to avoid
aggravating the present dispute for me lacks credibility, because the exist-
ence of a dispute on the Hawar Islands did not stop Bahrain from con-
tinuing activities on those islands even during the written and oral phases
of the present proceedings!

463. Moreover, the contradiction between the alleged “archipelagic
State” condition and the claim on the so-called “Zubarah region” is too
obvious to go unnoticed. Under the 1982 Convention there are only
“declared archipelagic States” and if, in future. Bahrain were to make a
declaration to that effect it would have no consequences at all on the
single maritime boundary between Qatar and Bahrain as defined with
the force of res judicata by the present Judgment.

464. For the maritime task of the Court in the current case, the alleged
“archipelagic State” condition of Part IV of the 1982 Convention is also
irrelevant for a further reason. The general thesis of Bahrain on the
matter is indeed based upon a conceptual confusion between the con-
ventional right of such an “archipelagic State” to draw its own “straight
archipelagic baselines” and the principles and rules governing maritime
delimitation between States with coasts opposite or adjacent to each
other. Delimitation of a maritime space or spaces is never a unilateral act
in international law, but an operation requiring the full and equal par-
ticipation of the two States concerned. The principle of the sovereign
equality of all States, whether archipelagic or not, is obvious. This
explains why Part IV of the 1982 Convention contains not a single provi-
sion on maritime delimitation between an “archipelagic State” and any
other State.

465. What does this mean in legal terms? The answer is crystal clear.
There are no special rules, conventional or customary, for those delimi-
tations. The fundamental customary norm of the Gulf of Maine case and
the particular principles and rules governing delimitation of the territo-
rial sea, of the sea-bed, of the economic zone or of any other maritime
zone or jurisdiction recognized by international law likewise apply to the
maritime delimitations of an “archipelagic State” within the meaning of
the 1982 Convention. Thus the Parties’ arguments about the conven-
tional or declaratory character of the provisions in Part IV of the 1982
Convention are, in my opinion, quite immaterial for the Court’s maritime
delimitation task in this case, because the latter is not a case concerning
the definition of the maritime outer limits of an alleged “archipelagic
State of Bahrain”, but a maritime delimitation between the State of Bah-
rain and the State of Qatar, as provided for in the “Bahraini formula”
approved by Qatar in the 1990 Doha Minutes. According to that for-
mula, the Court should make the requested maritime delimitation between

384
421 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

the two States Parties by drawing a single maritime boundary between
their respective maritime areas of sea-bed, subsoil and superjacent waters.
Nothing less, nothing more.

466. [ am therefore in agreement with the conclusion in the Judgment
dismissing Bahrain’s arguments based on the “archipelagic State” and
“archipelagic baselines”. Such assertions are alien to the maritime delimi-
tation tasks facing the Court in the present case.

2. The Bahraini “historic title or rights” argument

467. A second factor in the differences between the respective lines
claimed by the Parties Bahrain’s contention that it is “a system of spa-
tially proximate and economically interrelated islands and other relevant
features” and the holder, apparently, of some kind of ill-defined historic
title to all the insular and other maritime features and most of the waters
situated between the Bahrain archipelago proper and the west coast of
the Qatar peninsula. The purposes of Bahrain’s contention here are clear,
but the evidence advanced in support of it is indeed very poor. The con-
tention is presented rather as something self-evident, namely as if the Al-
Khalifah Rulers’ historical “aims” to supremacy in the area were indeed
a principle of international law. I therefore consider this Bahraini conten-
tion to be a mere political assertion.

468. However. the procedure of the Court requires proof of the facts
and a convincing demonstration of the elements of law behind a given
contention or plea, in particular when the other Party rejects those
alleged, as Qatar did in the present case. Bahrain has failed altogether, in
my opinion, to provide the Court with such a demonstration, probably
because the judicial proof of meta-legal contentions is not an easy task.
The historical explanation of this contention of Bahrain, as reflected in a
one-page letter by Belgrave (Memorial of Qatar, Vol. 8, Ann. I11.243,
p. 195), appears to be the fact that, because the Al-Khalifah were in
Zubarah before settling in the Bahrain islands in 1783, they considered
that everything between the Qatar peninsula and the Bahrain archipelago
proper belonged to them! This ts all the justification I have found in
support of the general Bahraini contention commented upon here.

469. The invocation by Bahrain of what could legally be described as
an ill-defined historic title or rights in the delimitation area is nothing
more that an attempt to reformulate in contemporary legal terms a politi-
cal claim aiming at dominance in the maritime area situated between the

385
422 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

Bahrain archipelago proper and the Qatar peninsula. This claim was
never accepted by Qatar and was always rejected at the relevant time by
Great Britain. The case file proves furthermore that other interested
States in the region have never recognized that Bahrain has any kind of
historic title or rights in the maritime area concerned.

470. In other words, the waters of the relevant maritime area in the
present case are not territorial in character (a term which should not be
confused with the “territorial sea”). Not being territorial, the maritime
waters in question are not subject to any particular territorial regime, as
is the case for example of recognized historical waters, including historic
bays. The maritime area to be delimited by the Court in the present case
is not the Gulf of Fonseca! Bahrain was not historically in a position to
establish an historic title of its own, territorial in character, over those
maritime waters (their maritime features included) and the essential
requirement of recognition or tolerance of other States is also lacking.

471. Bahrain’s general proposition referred to also manifested itself
in the northern part or sector of the maritime delimitation area; for
example, in its argument on “Bahraini pearling banks”, which is
rejected by the Judgment. It was an argument aimed at extending, by
other means, the alleged Bahraini historic title or rights to the northern
part or sector of the maritime delimitation area in the present case.

472. It follows from the above that we are in agreement with the Judg-
ment in its non-recognition of Bahrain’s ill-defined alleged historic title or
rights in both the southern and northern parts or sectors of the delimita-
tion area.

3. The Bahraini “de facto archipelago or multiple-island State” argu-
ment

473. In contradistinction to the former “archipelagic State” and
“historical title or rights” contentions, Bahrain’s “de facto archipelago
or multiple-island State” argument seems, in the light of the relevant
reasoning and conclusions of the Judgment, to have found some support
within the Court. In any case, the Judgment is quite sensitive to Bahrain’s
de facto archipelago or multiple-islands contention. In fact, only if that
contention is constantly borne in mind can the reader possibly under-
stand a series of quite surprising conclusions of the Judgment and,
ultimately, the course of the single maritime boundary drawn.

474. The concrete manifestations of the above contention are obvious
in the reasoning of the Judgment, although the drafting and terminology
used do not always make for a clear appreciation of it. Thus, for example,
where the Judgment in several paragraphs uses expressions such as the

386
423 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

“relevant Parties’ coasts” or “equidistance line” between those coasts, or
“territorial sea”, etc., it is not necessarily referring to the ordinary or
natural meaning of those terms. In fact, the term “territorial sea” is used
in the Judgment with more than one meaning. It sometimes refers back
to the “territorial sea” generated by the mainland coasts of the Parties,
but also, and more frequently, to the “territorial sea” resulting from the
Judgment’s own conclusions concerning sovereignty over a given island
or other maritime features, such as low-tide elevations. This superveniens
“territorial sea” explains the unprecedented role played in the Judgment
by minor or tiny maritime features such as islets, reefs, sand-banks and
low-tide elevations (and their corresponding “low-water lines”) in the
construction of its “equidistance line” and, consequently, in the course of
the single maritime boundary defined.

475. We completely disagree with this approach. Our position is based
upon considerations of substance as well as upon jurisdictional ones. As
to the substance, the Judgment’s approach is without precedent in the
international jurisprudence relating to maritime delimitations which, since
the North Sea Continental Shelf case onwards, has disregarded minor
maritime features located between the mainland coasts of the States
parties as a factor intervening from the start in the delimitation operation
because of its obvious distorting effects for achieving an equitable result,
without prejudice of course to taking them or some of them into account
at a later stage as “special or relevant circumstances”. As stated in the
Judgment of the Chamber of the Court in the Delimitation of the Mari-
time Boundary in the Gulf of Maine Area case:

“the Chamber likewise would point out the potential disadvantages
inherent in any method which takes tiny islands uninhabited rocks
or low-tide elevations, sometimes lying at a considerable distance
from terra firma, as basepoint for the drawing of a line intended to
effect an equal division of a given area. If any of these geographical
features possess some degree of importance, there is nothing to pre-
vent their subsequently being assigned whatever limited corrective
effect may equitably be ascribed to them, but that is an altogether
different operation from making a series of such minor features the
very basis for the determination of the dividing line, or from trans-
forming them into a succession of basepoints for the geometrical
construction of the entire line. It is very doubtful whether a line so
constructed could, in many concrete situations, constitute a line
genuinely giving effect to the criterion of equal division of the area in
question, especially when it is not only a terrestrial area beneath the
sea which has to be divided but also a maritime expanse in the proper
sense of the term, since in the latter case the result may be even more

387
424 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

debatable.” U.C.J. Reports 1984, pp. 329-330, para. 201; emphasis
added.)

476. The present Judgment’s approach is just the opposite of the one
described in the quotation above. As the quotation explains in fine, the
fact that in the southern part or sector of the maritime delimitation area
the single maritime boundary divides “territorial seas” is not a justifica-
tion for proceeding otherwise without risking an inequitable result. What
in fact happened in the present case is that the majority accepted one of
the two following propositions or both of them, namely: (i) that in the
case of an archipelago or multiple-island State the relevant principles and
rules should be interpreted differently in their application to the case; or
(ii) that when the maritime boundary line divides “territorial seas” the
delimitation operation concerned should take into account from the very
beginning of the process all minor or tiny maritime features without
excluding low-tide elevations for the purpose of defining “basepoints”.

477. In fact, the only explanation we found for the above is that the
majority understood that the ‘maritime delimitation” to be effected
encompasses the definition by the Court of the maritime frontiers of
Bahrain as a State. In other words, that the Court should take upon its
shoulders the constitutional task of defining the maritime frontiers of the
State of Bahrain. We do not think that such a task properly belonged
to the Court, but indeed to the State concerned.

478. Thus, the approach adopted by the Judgment likewise raises
jurisdictional issues. The “Bahrain formula” mentions exclusively the
drawing by the Court of a single maritime boundary between the respec-
tive maritime areas of the States Parties without reference to the status or
condition of the “superjacent waters” (“territorial seas” or otherwise). In
fact, when the present case was introduced in 1991 not all the superjacent
waters of the respective “maritime areas” of the Parties in the southern
part of the delimitation area were “territorial seas”. A considerable part
of those waters were high seas at the time of the adoption of the 1990
Doha Minutes. The Judgment disregards this temporal factor and draws
its maritime boundary by in fact giving preference to the present “terri-
torial sea” character of the waters concerned, although the boundary
must be a single maritime boundary.

479. Bahrain ts geographically an archipelago composed of the islands
forming the compact group known as the “Bahrain islands” proper, an
archipelago with all its minor islands, islets, rocks reefs and low-tide
elevations and I agree that this is one of the “circumstances” to be borne
in mind in the delimitation exercise, but I reject that such a geographical
“circumstance” could alter the relevant principles, rules and methods
applying to the delimitation of maritime spaces between States or allow-
ing, without further ado, the use of the “straight baselines” system of

388
425 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

Article 7 of the 1982 Convention. The Judgment does not uphold such a
system thereby avoiding its inbred internal waters effect. We agree fully
with that. But the Judgment nevertheless gives a kind of p/us, in any case
initially, to Bahrain because it is geographically an archipelago. By doing
so, it introduces a distinction in maritime delimitations between States
with unforeseeable consequences".

B. Principles, Rules and Methods Applicable to the Maritime Delimita-
tion in the Case

480. None of the Parties to the present case is a party to the 1958
Geneva Conventions on the Law of the Sea and only Bahrain is a party
to the 1982 Montego Bay Convention. Consequently, the principles and
rules applicable to the maritime delimitation aspect of the case are the
relevant principles and rules of customary or general international law.
The Chamber in the Gulf of Maine case stated that “what general inter-
national law prescribes in every maritime delimitation between neigh-
bouring States” (emphasis added) is that the:

“delimitation is to be effected by the application of equitable criteria
and by the use of practical methods capable of ensuring, with regard
to the geographical configuration of the area and other circum-
stances, an equitable result” (1.C. J. Reports 1984, pp. 299-300,
para. 112).

481. This is the “fundamental” customary norm applicable to mari-
time delimitations. The “equitable solution” as a legal requirement of any
delimitation process was also stated by the Court, with reference to both
continental shelf and exclusive economic zones, in the Jan Mayen case
(LCJ. Reports 1993, p. 59, para. 48, also p. 69, para. 70). It is true that
the 1969 Judgment of the Court in the North Sea Continental Shelf case
held that the delimitation is to be effected in accordance with equitable
principles and taking account of all the relevant circumstances. It said no
more. But, this Judgment is old with respect to the 1982 Convention and
the Court’s most recent jurisprudence on the continental shelf. In the
LibyalTunisia Continental Shelf and LibyalMalta Continental Shelf cases,
the Court’s Judgments refer to the: (1) application of equitable prin-
ciples; (2) taking account of all relevant circumstances; and (3) achieve-
ment of an equitable result.

482. It must however be pointed out that in none of the above-

' Concerning the formation of international law rules on archipelagos. see, for example.
C. B. Jiménez Piernas, E/ proceso de formuciôn del derecho internacional de los archipela-
gos (thesis) (two volumes), Departamento de Derecho Internacional Publico, Facultad de
Derecho. Universidad Complutense de Madrid. 1982.

389
426  DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

mentioned cases did the maritime delimitation to be made involve the
delimitation of territorial seas. In the present case, as indicated, the
delimitation of the whole area described by the Parties as the southern
sector is today a delimitation of “territorial seas”. Both Parties in effect
extended their respective territorial sea belts to 12 miles, Qatar in 1992
and Bahrain in 1993. Moreover, the delimitation of the southern
area of the Parties’ northern sector likewise involves a division of “terri-
torial seas”.

483. It follows that the single maritime boundary requested by the
Parties is a line that in part of its course is today a territorial sea dividing
line and in the remaining part a sea-bed and economic zone dividing line.
Thus, the maritime jurisdictions divided by the maritime boundary are
not the same throughout all its course. Nevertheless, the boundary must
be a single maritime boundary because this is what the Parties requested.
It is therefore a single maritime boundary independently of the maritime
jurisdictions divided in the different sectors of its course. This aspect of
the maritime boundary should have been more present in the drawing of
the boundary line than actually séems to have been the case in the light of
the reasoning of the Judgment. The role of the fundamental customary
norm defined in the Gulf of Maine case is enhanced, or should have been
enhanced, by the requested singleness of the maritime boundary, in spite
of textual differences in the rules expressing that fundamental norm in
Article 15 on the one hand, and Articles 74 and 83 of the 1982 Conven-
tion, on the other.

484. In the case of the territorial sea, the rule in Article 15 of the Con-
vention provides in effect that when the coasts of two States are opposite
or adjacent to each other, neither of the two States is entitled, failing
agreement between them to the contrary, to extend its territorial sea
beyond the median line every point of which is equidistant from the near-
est points on the baselines from which the breath of the territorial seas of
each of the two States is measured. This first provision of Article 15 does
not apply, however, where it is necessary by reason of historic title or of
other special circumstances to delimit the territorial sea of the two States
in a way which is at variance therewith (second provision of Article 15).
The “median line” may therefore limit the “12-mile entitlement” to ter-
ritorial sea, generated by the relevant coast of each of the two States con-
cerned, and this brings into the picture the “eguidistance method” in the
case of territorial sea delimitations.

485. Regarding the exclusive economic zone and the sea-bed delimita-
tions of the northern part of the delimitation area, the “equidistance
method” is not as such part and parcel of the relevant delimitation rules
of Articles 74 and 83 of the 1982 Convention, even for the purpose of
drawing an initial provisional line, although recourse to the “equidistance
method” is not excluded either by those rules. It could well be that in a
given case the “equidistance method”, or the drawing of a “provisional

390
427 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

equidistance line” subject to adjustments, would also be the best means
of ensuring an “equitable solution”, as expressly provided for in the said
articles of the 1982 Convention.

486. I have no doubt that in the present case the “equidistance method”
should be applied in the southern as well as the northern parts of the
delimitation area for the purpose of the construction of a “provisional
equidistance” line subject to adjustments in the light of Qatari or Bah-
raini special or relevant circumstances.

487. The Judgment, however, follows a different path for the construc-
tion of its own “equidistance line” (see below). This prompts me to
underline two points. First, that my understanding of the interplay of the
two provisions of Article 15 of the 1982 Convention does not coincide
with the line of reasoning of the Judgment in that respect. Secondly, that
the two provisions of Article 15 by no means exclude the normative prin-
ciple of the “equitable solution” expressly referred to in Articles 74 and
83 of the 1982 Convention. On the contrary, I consider that the “equi-
table solution” principle is an integral part of Article 15 of the 1982
Convention when read as a whole. Therefore, I cannot accept that the
“equitable solution” principle has no role to play in a delimitation of
“territorial seas”.

488. As to the first point mentioned in the preceding paragraph — the
interplay of the two provisions of Article 15 of the 1982 Convention —
I am of the opinion that the special circumstances of the Article’s second
provision are supposed to intervene in the delimitation operation after
the establishment of the “median line” under the first provision and not
before or simultaneously, as the Judgment does.

489. It follows from the above that, for me, the “equitable solution”
principle should be present in the delimitation effected by the single mari-
time boundary in both the northern and southern parts of the delimita-
tion area, as recognized by the fundamental customary delimitation norm
identified by the Chamber of the Court in the Gulf of Maine case.

490. Lastly, regarding Article 13 of the 1982 Convention relating to
“low-tide elevations”, the Judgment appears, in many respects, to view
what is essentially a permissive rule as a kind of “legal obligation” for the
Court. We disagree. The provision in question uses the verb “may” and
not “shall”. A State may or may not apply that provision. The same
applies to the Court in a maritime delimitation entrusted to it. Thus it is
the Judgment which has chosen to apply the provision referred to, but
the Court is not obliged to do so when, for example, an “equitable solu-
tion” in a given maritime delimitation could be jeopardised by the appli-
cation of that permissive rule.

391
428 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)
C. The 1947 British Decision and Its Sea-bed Dividing Line

491. The British “decision” of 23 December 1947 (see letters of notifi-
cation to both Rulers in the Memorial of Qatar, Vol. 10, Anns. IV.115
and IV.116, pp. 115 and 116) is not applicable law in the present case.
Like the 1939 British “decision” on the Hawar Islands, the 1947 “deci-
sion” on the sea-bed dividing line between Qatar and Bahrain is a mere
element of fact in the case. As such, both “decisions” are historical facts
but not the source of legal “title” or “entitlements”, although the 1947
line is described in the letters concerned as a “median line based generally
on the configuration of the coast-line of the Bahrain main island and the
peninsula of Qatar” (ibid. ). Great Britain was not the holder of a title to
the respective land territories of Qatar and Bahrain and, consequently,
had no title either to dispose of the sea-bed rights generated by those land
territories without the consent of their respective Rulers. It is true that, in
1947, most of the superjacent waters concerned were high seas but the
British line purported to divide the sea-bed appertaining to Bahrain and
the sea-bed appertaining to Qatar. Without the consent of the Rulers of
both Qatar and Bahrain the 1947 British line does not have, in interna-
tional law, binding legal effects for any of the Parties to the present case.
This conclusion applies of course to all aspects of that “decision”, includ-
ing the so-called “exceptions” concerning the shoals of Qit’at Jaradah
and Fasht ad Dibal and the Hawar Islands.

492. I am, therefore, in agreement with the conclusions set out in para-
graphs 237 and 238 of the Court’s Judgment. Qatar and Bahrain did not
accept the 1947 “decision” as a decision legally binding upon them.
Moreover, both Parties maintained the same position in the current pro-
ceedings. For many years, British statements were somewhat equivocal as
regards the legal status of that “decision”. Sometimes the 1947 line was
referred to as final and on other occasions as subject to revision. It also
appears that, in 1965/1966, Great Britain was prepared to allow the
subject-matter of both the 1939 and the 1947 “decisions” to be referred
to international arbitration.

493. Thus, the only legal question before the Court concerning the
1947 British “decision” is, in my view, to determine whether that non-
binding “decision” and its sea-bed dividing line to some extent consti-
tutes a circumstance which the Court should take into account when
determining the course of the single maritime boundary line. On this
question the Parties disagree. Bahrain denies it, while Qatar considers
that the delimitation should be effected with due regard to the 1947
British sea-bed dividing line.

392
429 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

494. For me, neither the 1947 British “decision” nor its “line” are
“special circumstances” within the meaning of Article 15 of the 1982
Convention. This does not mean that the 1947 line is completely irrele-
vant to the Court’s task, but it certainly means that the “line”, as well as
the “decision”, are mere elements of fact and are not law applicable to
the maritime dispute in the present case.

495. As an element of fact, the relevance of the 1947 line for the
Court’s task is that the British authorities at that time regarded it as a
line drawn “in accordance with equitable principles” (Memorial of Qatar,
Vol. 10, Anns. [V.115 and IV.116, pp. 71 and 75). In this sense the 1947
line certainly broadly speaking constitutes an example or point of refer-
ence from an early attempt to effect an equitable sea-bed delimitation of
the area by a third State. Secondly, because the “conduct of the Parties”
subsequent to the 1947 British line (for example, in matters relating to
operating limits of their respective oil concessions and offshore explora-
tion and exploitation: security zones; etc.) provide some clues to what
the Parties themselves may have considered at certain times to be an
equitable delimitation line. To the extent that this is so, such conduct
would indeed constitute a circumstance deserving to be taken into account
in the current determination of the single maritime boundary line
requested by the Parties (see, for example, the LibyalTunisia Continental
Shelf case).

496. My general conclusion is, therefore, that the 1947 British “deci-
sion” is not binding and is not as such a “special circumstance” in the
legal sense of Article 15 of the 1982 Law of the Sea Convention, but the
“relevant conduct of the Parties” with respect to the 1947 British line
could be such a circumstance. In practical terms, namely as a point of
reference, the 1947 British line was certainly quite useful, for me at any
rate, for understanding a number of questions raised by the maritime
delimitation requested of the Court. To give a simple example. the course
of the 1947 British line, as of the 1948 Boggs-Kennedy line, runs across
the maritime feature of Fasht al Azm proving by that the very fact that
for the authors of those lines Fasht al Azm was not considered in 1947/
1948 to be a part of Sitrah Island.

D. The 1948 Boggs-Kennedy Sea-bed Dividing line

497. The Boggs-Kennedy sea-bed dividing line of 16 December 1948
(Memorial of Qatar, Vol. 10, Ann. IV.127, p. 123) is not a “special cir-
cumstance” either, but a very useful point of reference for working pur-
poses contained in a report prepared by two highly-experienced and
qualified experts, based exclusively upon objective geographical and tech-

393
430 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

nical considerations, prepared specifically for delimitations in the Persian
Gulf and drafted without any connection with the present case or with
any of the Parties thereto. As an illustration of the reasonable construc-
tion of a line based upon the equidistance method, the Boggs-Kennedy
line, with its justifications, for me served as an important point of refer-
ence in the technical task of ascertaining how an “equidistance line”
could or should be constructed in the geographical circumstances of the
maritime delimitation area in the present case.

498. The Boggs-Kennedy Report, with its two appendices and its
suggested line, carries with it a high degree of professional credibility
for the construction on an “equidistance or provisional equidistance line”
in that area. It is true that the Boggs-Kennedy line is a striking illustration
of the unprecedented line claimed by Bahrain in the present case, but
that illustration is not the result of any bias on the part of Boggs and
Kennedy against Bahrain. It results from Bahrain’s own unjustified
maritime delimitation submissions in the case.

499. The Boggs-Kennedy Report confirms that, generally, the “provi-
sional equidistance line” is to be constructed by means of the so-called
mainland to mainland method and that the dividing lines were “derived
from the shores, as we find them represented on hydrographic charts at
the present time” (ibid., p. 128, para. 3.2). It also refers to the difficulty of
making a precise determination of “the low-water coastline” and to the
various problems associated with the presence of numerous geographical
features such as islands, in particular islands situated “on the wrong side
of the boundary” (ibid., App. B, p. 146, para. 6).

500. Moreover, in order to achieve fair delimitations, the Boggs-
Kennedy Report takes account of the following three principles: (1) it
used the equidistance method both for the longitudinal delimitation of
the central part of the Gulf and for the lateral delimitations, notably in
what the report calls the “Bahrain area”; (2) it established the equidis-
tance line, as a general method, constructed as from the relevant main-
land coastlines or fronts, disregarding all islands, islets, rocks, reefs and
low-tide elevations detached from the mainland coastline; and (3) it con-
structed the equidistance line by relying upon either the low-water line, to
which preference was given, or upon the high-water line, depending
on the degree of available technical knowledge relating to the maritime
sector or feature concerned.

501. Finally, a clarification and a reservation regarding the Boggs-
Kennedy line, both linked to the date of the Report (1948). The clarifica-
tion is that the territorial sea belt of both Bahrain and Qatar was then
only 3 miles. The reservation relates to the Hawar Islands and Zubarah.

394
431 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

The Report assumes that the Hawar Islands belonged to Bahrain and
that Zubarah, or the so-called “Zubarah region”, belonged to Qatar, but
both assumptions relate to territorial questions which are disputed in the
present case.

502. It is regrettable that the Judgment does not follow the profes-
sional method of the Boggs-Kennedy Report on how an equidistance line
should be constructed in the disputed maritime delimitation area in the
present case. The Judgment prefers to base its technical conclusions on
the Parties’ expert reports rather than on the Boggs-Kennedy Report.
I am of the contrary opinion.

E. Identification in the Judgment of the “Relevant Coasts” of the
States Parties

503. Maritime delimitations are always effected mainly in accordance
with geographical criteria. The first criterion is to determine the “relevant
coasts” or “coastal fronts” on the basis of the geographical realities
of the area to be delimited. The usual way of doing this is by identifying
the “coast” or “coastal fronts” concerned by reference to the “mainland”
coasts or coastal fronts of the States parties. A mainland is defined by the
Webster's Dictionary as “a continuous body of land constituting the chief
part of a country or continent” (1980, Vol. IT, p. 1362).

504. The present Judgment applies the mainland coasts or coastal
fronts criteria for identifying the “relevant coast of Qatar”. But, it does
not do so where the “relevant coast of Bahrain” is concerned. In the latter
case, the mainland coast is disregarded. We have no other explanation
for this than the assumption by the majority of the relevance in that
respect of Bahrain’s being an archipelago or multiple-island State. Thus,
in the present case, the maritime delimitation is effected between two
different kinds of relevant coasts or coastal fronts. A geographical one
(Qatar) and an artificial one constructed by the Court (Bahrain). I con-
sider this to be a patently unjustified innovation in comparison with past
delimitations effected by the Court or by other international courts or
tribunals.

505. In effect, certain paragraphs in the Judgment explain how the
Court constructed “Bahrain’s relevant coasts” for the purpose of the
present maritime delimitation. It is an artificial construction in which all
manner of minor maritime features play a paramount role. Bahrain’s rele-
vant coasts in the Judgment are not a continuous bedy of land at all and
is not naturally connected with or a natural appendage of the Bahraini
mainland coast. It is formed: (1) by some of the tiniest islands, islets,
rocks or sand-banks, etc., quite separated from each other and in most
cases distant from Bahrain’s mainland coasts; and (2) by water. In other
words, “Bahrain’s relevant coasts” of the Judgment are not a coast or a

395
432 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

coastal front at all. In such circumstances, I do not consider it necessary
to elaborate any further on “Bahrain’s relevant coasts” in the Judgment
or on my total rejection of the said construction as a true “coast”. Geo-
graphy has been refashioned. The minor Bahraini maritime features con-
cerned have nothing to do with the “skjærgaard” along the Norwegian
coast. In the present case, there is “clear dividing line between land and
sea” (Z C.J. Reports 1951, p. 127). I will only add that the practical result
of the above in the present case is that /a mer domine la terre, in spite of
the general statement to the contrary contained by the Judgment. It is by
no means the only case in which a correct conclusion on a principle of
law made by the Judgment is thereafter voided of legal meaning in its
concrete applications.

F. Method Applied by the Judgment for the Construction of its “Equi-
distance Line”

506. An “equidistance line” is by definition a line between two lines,
but there is no trace in the Judgment of those two lines required for the
construction of the “equidistance line”. Normally, those baselines are the
mainland coasts or coastal front lines of the two States concerned. But
the Judgment does not apply the “baselines” of the mainland to main-
land method for the construction of its so-called “equidistance line”.

507. On the other hand, once the “archipelagic baselines” and the
“straight baselines” are excluded, the Judgment is without any Buhraini
line serving as a baseline for the construction of its “equidistance line”.
What it does for this operation is to replace the coastal mainland baseline
of Bahrain by a series of selected “basepoints” in the minor islets, rocks
and sand banks already referred to and in and low-tide elevations con-
sidered to be in the territorial sea of Bahrain alone. These features are
rather isolated from each other. They have been selected, according to
the Judgment, bearing in mind the pleadings and arguments of Bahrain
in the present proceedings and related rules invoked. No Bahraini “base-
point” is situated on the mainland coast of Bahrain.

508. Where Qatar is concerned, the main “basepoints” of the “equi-
distance line” in the Judgment are situated on the western mainland coast
of Qatar, namely on the Qatar peninsula. But Qatar did not plead “base-
points” but a “baseline”, namely its western mainland coastline which
extends, north to south, from Ras Rakan to Ras Uwaynat. The replace-
ment of the mainland coastline pleaded by Qatar with some selected

396
433  DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

“basepoints” minimizes the western coast of Qatar as land territory
generating territorial sea entitlements or rights.

509. In fact, the “equidistance line” of the Judgment is not an “equi-
distance line” in the ordinary sense of the term, but, as its very title indi-
cates, an equidistance line taking into consideration all the islands as well
as low tide-elevations located in the territorial sea of one State only. We
are not, therefore, dealing with an equidistance or median line as this
term is usually understood, but with something else.

510. I have the most serious doubts whether the “equidistance line” in
the Judgment can be an appropriate instrument for making a fair mari-
time delimitation, even in the circumstances of the present case. A com-
parison between the “equidistance line” in the Judgment and the final
course of the single maritime boundary adopted shows how many adjust-
ments were required to define that boundary, not counting the several
others which would have been necessary, in my opinion, to reach the
overall legal goal of an “equitable solution”.

511. As indicated, there is no doubt that, by using the described
method for the construction of its “equidistance line”, the Judgment had
in mind the fact that the State of Bahrain is geographically an archi-
pelago. But, these geographical circumstances could and should have
been taken into account by adjusting a true “equidistance line”, namely
an equidistance line between the mainland coast or coastal fronts of
Qatar and Bahrain. The danger for an equitable result posed by an “equi-
distance line” such as the one in the Judgment for one of the two Parties
is obvious.

512. In the present case this danger was real. The equidistance line
method as used has not led, in my opinion, to an equitable result in all
the segments conforming to the single maritime boundary finally adopted.
In fact, in the southern part of the delimitation area, at an early stage in
the legal delimitation operation, the “equidistance line” in the Judgment
already left Bahrain the totality of the overlapping area of the 12-mile
territorial sea generated by the western mainland coast of Qatar and even
more than that. In terms of the law of the sea, that result is not an equi-
distance line capable of producing an “equitable result”. The resulting
excess of the method used has, however, been somewhat corrected by the
Judgment by other means, although the single maritime boundary
adopted still left Bahrain with more extensive maritime areas than any
previous terms of reference external to the Parties, namely the 1947
British line and the Boggs-Kennedy line.

513. The so-called “mainland to mainland method” for the purpose of
defining a “provisional equidistance line” or an “equidistance line” is a

397
434 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

particularly reasonable method when, as in the Parties’ southern sectors,
the dividing line effects a territorial sea delimitation and the maritime
area concerned is dotted with a great number of small islands, islets,
rocks, reefs and low-tide elevations which could otherwise create a dis-
proportionately distorting effect and ultimately lead to an inequitable
result, or to jeopardizing the security interests of one Party or the other,
or even to violations of the principle of non-encroachment. The small
islands, islets, rocks, reefs and low-tide elevations referred to could even
be “circumstances” justifying subsequent adjustments of a normal “equi-
distance line”, but in no event could they be “basepoints” for the con-
struction of the “median line” in the first provision of Article 15 of the
1982 Convention.

514. Moreover, the determination by an international court or tribu-
nal of the “baselines” of an “equidistance line”, constructed by it for the
purpose of a maritime delimitation, is an operation which should by no
means be confused with the one concerning the determination by a State
of the baselines from which it measures the breadth of its own territorial
sea. International jurisprudence is also quite clear in this respect. It fol-
lows that these baselines may coincide in some cases but not in others.
The author, object and purpose and function of these two kinds of base-
lines are not the same. In the present case, the question of whether these
two kinds of baselines coincide does not even arise. Both Parties have
notified the Court that they have not yet established the baselines for
measuring the outer limits of their respective territorial seas. The situa-
tion is therefore quite different from the Jan Mayen case in which both
parties had already established those baselines before instituting proceed-
ings before the Court, did not challenge them during the proceedings,
and no territorial sea delimitation was at issue, as it is in the present case.

515. The “basepoints” of the “equidistance line” in the Judgment are
located in the low-water line of the “relevant coasts” as constructed by
the Judgment. This is the general rule and, consequently, it is acceptable
for me provided that low-water lines concerned are clearly marked on
large-scale charts officially recognized by the coastal State. However, this
is far from being the situation in the present case. Consequently, the low-
water line introduces into the present case a further subjective element in
the delimitation operation effected by the Judgment.

G. Non-definition by the Judgment of the “Area of the Delimitation”

516. Contrary to general practice, the Judgment refrains from defining
the maritime area of the delimitation to be effected. This is not too

398
435 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

important in the southern part of the area because in that area geography
provides the answer. Furthermore, in so far as the southern limit of
the southern part is concerned, there are Agreements which provide
guidance. We refer to the 1958 Agreement between the Kingdom of
Saudi Arabia and the State of Bahrain concerning the Delimitation of
the Continental Shelf and to the 1965 Agreement on Determination of
Land and Sea Boundaries between the Kingdom of Saudi Arabia and the
State of Qatar.

517. In the northern part of the delimitation area the situation is quite
different where its lateral lines are concerned. The northern limit of that
sector is, however, defined by the continental shelf dividing lines set forth
in the 1969 Agreement of Qatar with lran and in the 1971 Agreement of
Bahrain with Iran.

518. The uncertainties as to the lateral limits of the delimitation area
in the northern part have a certain effect on the construction of the
“equidistance line” in the Judgment because, as a “basepoint” of that
line, the latter takes into account a point located on the low-tide eleva-
tion of Fasht al Jarim that I consider to be outside the delimitation area.
However, the Judgment does not give effect to Fasht al Jarim as regards
the course of the single maritime boundary adopted.

H. Special or Relevant Circumstances

519. In the present case, the special or relevant circumstances that a
delimitation operation should take into account are mainly geographical.
But there are others, of a different kind, such as security and maritime
communication circumstances of both Qatar and Bahrain. Thus, security
and access to ports of the State of Bahrain cannot be ignored in the
delimitation. On the other hand, the attribution to Bahrain of the Hawar
Islands does indeed create a maritime situation in that area which also
needs to be resolved taking due account of the security and maritime
communication interests of the State of Qatar.

1. Length of the “relevant coasts” of the Parties and general direction
and configuration of those coasts

520. The disparity in the lengths af the Parties’ coasts constitutes a
“special circumstance” of the greatest importance in maritime delimita-
tions (la terre domine la mer). The jurisprudence of the Court and other
international tribunals is crystal clear in this respect. It is, indeed, one of
the most relevant “special circumstances” accepted and applied. In the
present case, the disparity or disproportion of the respective coastal
lengths alleged by Qatar amounts to a ratio of approximately 1.59 to 1 in
favour of Qatar. If so, it is quite a “significant disparity” and should have
been given effect. But how could the Judgment compare the length of the

399
436 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

relevant Parties’ coasts in the light of its definition of “Bahrain’s relevant
coasts”?

521. The Judgment’s reply to the above is that — because of the attri-
bution of the Hawar Islands to Bahrain — the lengths of the relevant
coasts of the Parties are the same or approximately the same, but no pre-
cise figures are given in the Judgment to support that conclusion. In this
respect, as in others, the technique used by the Judgment consists in
giving partial effect or no effect, in the delimitation, to certain minor
islands and other maritime features, as reflected in the course of the
single maritime boundary defined by the Judgment. Consequential on
the lack of precise figures on the lengths of the relevant coasts of the
Parties and on the non-definition of the “delimitation area” is the fact
that the equitableness of the result of the delimitation effected by the
Judgment cannot be verified by application of the proportionality test.
There is no reference in the Judgment to any such verification or test.
This is another of its innovations.

522. As to other relevant geographical criteria that should be pon-
dered in a maritime delimitation, such as the general direction and con-
figuration of the Parties’ relevant true coasts, the relationship between
those coasts, the location and distance of minor islands, islets, rocks,
reefs and low-tide elevations with respect to those coasts and between
themselves, etc., these are not geographical criteria to which the Judg-
ment pays particular attention, although certain major distorting effects
of not doing so are indeed corrected. For example, when defining the
single maritime boundary adopted, the low-tide elevation of Fasht al
Azm, which is a feature which does not follow the general direction of
the Bahraini mainland coast — it is in fact vertical to that general
direction — creates a considerable distortion which could seriously affect
the equitableness of the delimitation. Again, all of this reveals that
for the Judgment the main geographical concern was not the geography
of the whole maritime delimitation area, but the geographical features
of one of the Parties: the State of Bahrain. We reject, as unjustified in
law, this general approach by the Judgment to the maritime delimitation
task entrusted by both Parties to the Court.

2. The shoals of Qit'at Jaradah and Fasht ad Dibal

523. In the present case, these shoals raise a twofold issue, namely
(a) their characterization as maritime geographical features; and (4) the
determination of which of the two Parties has sovereignty over them.

524. Regarding the first issue, there is not a problem with Fasht ad

400
437 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

Dibal because both Parties agree that this shoal is a low-tide elevation.
The matter is entirely different in the case of Qit’at Jaradah. Bahrain
characterized it as an “island” and Qatar as a “low-tide elevation”. The
Judgment concludes that Qit’at Jaradah is an “island” on the basis of a
comparison of the conclusions in the reports of each Party’s experts sub-
mitted to the Court. However, navigational publications and maritime
charts do not depict Qitat Jaradah as an “island”, but as a “low-tide
elevation”. For my part, in the light of the evidence, including photo-
graphic evidence, before the Court, I have the greatest difficulty in con-
cluding that Qit'at Jaradah is geographically an island. 1 even have dif-
ficulty in considering a changing tiny sandbank such as Qit’at Jaradah a
consolidated low-tide elevation. It may well be an incoming low-tide
elevation in the process of becoming or not in the future a true islet. In no
case does it appear to me at present to be a true island. In such situations,
I am of the view that common sense must prevail over formal interpre-
tations of general legai definitions in the light of objective physical data.
In any case, the Court should itself have verified such data before adopt-
ing a judicial decision on them. The example of Fasht al Azam (see
below) proves that an international court should be prudent in reaching
findings on matters of physical geography.

525. In fact, Bahrain’s original position was not so much that Qit'at
Jaradah is actually a true island but rather that if was fo be treated as an
island (Memorial of Bahrain, para. 624). Bahrain argued that the feature
became an island some years ago as a result of natural accretion and that
it would still be an island if Qatar had not intervened in 1986 and that it
is in the process of again becoming an island by means of natural accre-
tion. According to Bahrain, Qatari bulldozers removed that part of Qit’at
Jaradah exposed at high tide in 1986. Qatar is of a different view.
According to Qatar, in 1985 Bahrain tried to modify the existing situa-
tion in both Jaradah and Dibal in order to improve its legal position in a
manner contrary to the status quo agreements reached in 1978 and 1983
during the Saudi Arabian mediation and this provoked the intervention
of Qatar on 26 April 1986. Thus, this Qatari intervention would have
been an act to restore the status quo. Moreover, Qatar explained that the
subsequent removal operations were not carried out by Qatari bulldozers
but were the result of an international operation under the supervision of
the Gulf Co-operation Council (GCC) and carried out in accordance
with procedures previously agreed upon by that Council.

526. The Chamber in the E/ Salvador/Hondurus case. of which I was a
member, drew a distinction between an “island” and a “low-tide eleva-
tion” in so far as appropriation 1s concerned. The Chamber considered
that Meanguerita was an island and not a low-tide elevation and, there-

401
438 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

fore, capable of appropriation by the modes of acquisition of land terri-
tory (LC J. Reports 1992, p. 570, para. 356). Dibal and Jaradah are
however low-tide elevations. This is why I personally consider that sov-
ereignty over Dibal and Jaradah is to be defined by the application of the
applicable maritime delimitation rules of the law of the sea and not by
operation of the law governing acquisition of land territory (terra firma).
The law of the sea takes into account the location of the low-tide eleva-
tion concerned and therefore its distance from the relevant mainland
coast, for example, if the elevation is situated within or beyond the outer
limits of the territorial sea of a given State. As stated in Oppenheim’s
International Law (ninth edition): “Since the high seas are free, no part
of it can be the object of acquisition of sovereignty by occupation, nor
can mere rocks or banks in the open sea, although lighthouses may be
built on them” (Memorial of Qatar. Vol. 8, Ann. II1.307, p. 543). Since
1992 the shoals of Jaradah and Dibal have geographically been within the
reach of the 12-mile territorial sea of Qatar. Since 1993, Jaradah has been
within the overlapping area of the 12-mile territorial seas of Qatar and
Bahrain, but closer to the former than to the latter. In my opinion, both
shoals should therefore fall under the sovereignty of the State of Qatar.

527. The 1947 British decision which refers to “sovereign rights” of
Bahrain over Dibal and Jaradah (a decision not opposable to Qatar, as
recognized by the present Judgment) is not based upon any accepted
legal ground because at that time Dibal and Jaradah were in the high seas
and, furthermore, on the Qatari side of the very British sea-bed dividing
line. My position on the question of the sovereignty over those two low-
tide elevations is that the matter should be settled by the course of the
single maritime boundary once adopted by the Court in accordance with
the law of the sea.

528. The Judgment’s boundary line left Fasht ad Dibal on the Qatari
side of that line and, therefore, finds that that low-tide elevation falls
under the sovereignty of the State of Qatar. I agree with that unanimous
decision of the Court. But, with respect to Qit’at Jaradah, characterized
as an island by the majority, the Judgment attributed sovereignty to Bah-
rain on the basis of the rules of international law applicable to the acqui-
sition of land territory (terra firma). There is no evidence, however, in
the case file to support this quite extraordinary finding of the Judgment.
The “activities” of Bahrain referred to in the reasoning of the Judgment
are not capable of generating title to any kind of land territory in inter-
national law. There are minimal and uncertain “activities” — not “effec-
tivités” performed à titre de souverain by Bahrain.

402
439 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

529, I therefore consider that, regrettably, the finding of the Court
concerning sovereignty over Qit’at Jaradah is not well founded either in
geography or in law. In fact, and in law, sovereignty over Qit’at Jaradah
should have been deemed to belong to the State of Qatar. There is no
geographical or legal justification to conclude otherwise, as the Judgment
does.

3. Is Fasht al Azm part of Sitrah Island or not?

530. I do not consider that Fasht al Azm is part of Sitrah Island as
argued by Bahrain on the basis mainly of a report prepared by its own
experts. Neither this report nor the aerial pictures nor the arguments sub-
mitted by Bahrain match the clear and neutral evidence to the contrary
submitted by Qatar concerning the existence in the past of a natural
channel between Sitrah Island and Fasht al Azm used by fishermen. This
natural channel was filled in during the 1980s by reclamation and other
works carried out by a private firm in the service of Bahraini governmen-
tal authorities. Among the proofs of its assertion submitted by Qatar was
the Bahraini technical document entitled “Technical Circular No. 12.
Dredging and land reclamation activities along the Bahrain coasts”,
dated March 1982 and signed by a Bahraini research office, Zahra Sadif
Al-Alani.

531. The Judgment decides not to make a judicial determination on
whether or not Fasht al Azm is part of Sitrah Island. Its conclusion here
is difficult to explain because the Bahraini technical circular referred to
above, by its very nature and date, is an objective and unimpeachable
piece of evidence, which defeats any contrary evidence and arguments
submitted by Bahrain in the current proceedings. In fact such a decision
is a further confirmation of the minor role played by evidence in the rea-
soning of the Judgment. For us, the element of evidence provided by the
above mentioned “Technical Circular No. 12” dispelled any doubts we
may have had on the matter. Hence our conclusion that Fasht al Azm is
not part of Sitrah Island. Fasht al Azm is a low-tide elevation which was
separated from Sitrah Island by a natural navigable channel traditionally
used by fishermen before Bahraini reclamation and other works of the
1980s mentioned in the said Technical Circular.

532. Since our conclusion in this respect is highly relevant for our
assessment of the “equidistance line” in the Judgment and, ultimately, of
the equitableness of the single maritime boundary adopted by the Court,
we reproduce below verbatim what is stated, in this connection, on pages
15 and 18 of Bahraini Technical Circular No. 12 quoted in the Counter-
Memorial of Qatar:

403
440  DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

“A. GULF PETROCHEMICAL INDUSTRIES Co.:

The project site (Fig. 9} is scheduled to be completed by 2nd Feb-
ruary 1982.

Van Oord (International) have been appointed as the site reclama-
tion and dredging Contractors.

The petrochemical site reclamation was approximately 600 metres
wide by 1000 metres long, connected to Sitra by a 1250 m long
access causeway and to BAPCO causeway by a 500 m long service
causeway.

The material required for site reclamation was taken from an area
situated between BAPCO and ALBA jetties.

Two channels will be dredged, one for cooling water, the depth of
the water in it will be about 7 m, and its length will be about 3.5 km.
The other channel is an alternative one to the existing fishermen’s
channel which is filled with the reclamation material on some parts of
it (Fig. 9), it will be dredged to 3.5 m as a minimum over a distance
of 1,100 m. The quantity of material above that depth and within the
channel section is approximately 110,000 m°*, the marked width of
the channel will be 60 m. The dredged material will be located east of
the channel forming one or more islands as required.” (Counter-
Memorial of Qatar, Vol. 1, p. 271, para. 8.50; emphasis added.)

533. It follows that I cannot agree with any conclusion to the effect
that the low-water line of Sitrah Island is the easternmost limit of the
low-water line on Fasht al Azm. This is not so. Consequently, Fasht al
Azm cannot provide “basepoints” for the construction of an “equi-
distance line” such as the one constructed by the Judgment because it
is a low-tide elevation which is not located in the territorial sea of one
State only but of the two States parties. In any case, the Judgment has
to provide alternatives in the area concerning the course of its own
“equidistance line” proving, once more, the fragility of that “equi-
distance line” and of its conceptual foundations.

4. Delimitation in the Hawar Islands maritime area

534. As emphasized throughout this part of the present opinion, the
result of any maritime delimitation, including a delimitation of territorial
seas, should be “equitable”. But to achieve such a result in the maritime
area where the Hawar Islands are located is indispensable to the adop-
tion of an imaginative legal solution.

535. Why is this so? Because. the Hawar Islands, and their shelf and

404
441 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

surrounding waters, are geographically part and parcel of the coast of the
peninsula of Qatar and are located in the sheif and territorial sea of the
State of Qatar. More precisely, they naturally form the western coast of
the State of Qatar, conforming indeed to the geographical configuration
of that coast. There cannot be the slightest geographical doubt that this is
the case: especially as all the islands of the group also lie within the
12-mile territorial sea belt measured from the said mainland coast and
whoily or partly within a 3-mile belt measured from the same mainland
coast (including half of Jazirat Hawar). Moreover, the Hawar Islands are
situated in the middle of, or mid-way along, the western mainland coast
of Qatar dividing the part of that coast to the north of the Hawar Islands
and the part of that coast to the south of the Hawar Islands.

536. It follows from this geographical situation that the attribution by
the present Judgment of the Hawar Islands to Bahrain creates a special
circumstance of the highest political and security importance, as well as
for maritime communications, which should have been duly taken into
account so as to achieve an equitable maritime delimitation. The attribu-
tion to Bahrain not only of the Hawar Islands as such, but also of the
waters between the western coast of Jazirat Hawar and other smaller
northern islands of the group and the eastern coast of Bahrain island as
Bahraini territorial waters, leads indeed to an extraordinary dispropor-
tionate effect in the maritime delimitation of that area because the Hawar
Islands are too close to, indeed they are in fact part of, the Qatari main-
land coast facing them. \t also means that the mainland coast of Qatar
facing the Hawar Islands is altogether excluded in practice from gener-
ating territorial sea rights. We do not think that the general law of the sea
governing maritime delimitations permits such situations.

537. In fact, the relevant international jurisprudence provides legal
remedies (criteria as well as practical methods) for the solution in an
equitable and balanced manner of situations of this kind when they occur
in given maritime delimitations. As stated in the 1977 Award of the
British/French Arbitral Tribunal concerning the delimitation of the con-
tinental shelf in the English Channel ( Canal de la Manche) in connection
with the Channel Islands (//es anglo-normandes ) :

“The existence of the Channel Islands close to the French coast, if
permitted to divert the course of that mid-Channel median line,
effects a radical distortion of the boundary creative of inequity. The
case is quite different from that of small islands on the right side of
or close to the median line, and it is also quite different from the case
where numerous islands stretch out one after another long distances
from the mainland. The precedents of semi-enclaves, arising out of

405
442 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

such cases, which are invoked by the United Kingdom, do not,
therefore, seem to the Court to be in point. The Channel Islands are
not only “on the wrong side’ of the mid-Channel median line but
wholly detached geographically from the United Kingdom.” (R//A,
Vol. XVIIL p. 94.)

538. A similar mutatis mutandis geographical/political situation exists
in the present case. The Hawar Islands, and their shelf and surrounding
waters, are both geographically Qatari and “wholly detached geographi-
cally from” the State of Bahrain. In such circumstances, since, according
to the Judgment, they are politically Bahraini territory, an equidistance
or median line between the Hawar Islands and the Qatari mainland coast
facing the group in effect creates “a radical distortion of the boundary
creative of inequity”. The Judgment should have avoided such an extra-
ordinary distortion by making the Hawar Islands an enclave, as the
Anglo/French Arbitral Tribunal did in the case of the Channel Islands
(Îles anglo-normandes }.

539. In my opinion, the Hawar Islands constitute a “special circum-
stance” which is superviniens to the attribution by the Judgment of those
Islands to Bahrain. In other words, it is a “special circumstance” created
by the very Judgment itself. Until the reading of the Judgment, sover-
eignty over the Hawar Islands was in dispute and the waters between the
Hawars and Bahrain island were the territorial sea of the State of Qatar
or an area of overlapping territorial seas of both States parties. More-
over, it is not possible to ignore either the fact that until 1992/1993 part
of the waters to the east of the Hawar Islands were high seas, for example
at the time of the 1947 British Boggs-Kennedy sea-bed dividing lines.

540. The Judgment should have avoided the extraordinary distortion
described above by applying in the Hawar Islands maritime area the
solution applied to the Channel Islands (//es anglo-normandes) in 1977
by the Anglo/French Arbitral Tribunal, namely making the Hawar Islands
maritime area an enclave. The present Judgment does not do that. It
applies to the delimitation in the Hawar Islands maritime area the semi-
enclave method, which may be appropriated in the case of national
coastal islands, but creates inequity in the case of foreign coastal islands.
I wholeheartedly disagree with the Judgment in this respect. Moreover,
the fact that in the present case the semi-enclave method applied concerns
a territorial sea area is a source of more inequitable effects than in the
Channel Islands / Iles anglo-normandes ) case. It is never a good solution
in international law to divide the territorial extent of a given neighbour-
ing coastal sovereignty when this could, wholly or partly, be avoided.

541. Furthermore, when the United Kingdom proposed to apply the

406
443 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ}

semi-enclave method to the British Channel Islands {îles anglo-nor-
mandes)}, it underlined, inter alia, that the Channel Islands had been a
dependency of the British Crown for several hundred years, have their
own legislative assemblies, fiscal and legal system, courts of law and sys-
tems of local administration, as well as their own coinage and postal ser-
vice. In other words, that the Channel Islands enjoy an important degree
of political, legislative, administrative and economic independence of
ancient foundation. Nothing of the kind applies to the Hawar Islands.
Moreover, most of these islands are today still uninhabited. This is to say
that, in the case of the Hawar Islands, the historical, political demo-
graphic, etc.. circumstances do not justify at all, in my view, the applica-
tion of the semi-enclave method to the above-mentioned coastal islands
as the Judgment does in favour of Bahrain.

542. For an equitable delimitation in the Hawar Islands maritime area
— following the decision of the majority on sovereignty over those
islands — it would have been necessary to evaluate the situation from the
standpoint of equity. However the Judgment disregards the Hawar Islands
as a “special circumstance” for the purpose of defining the course of the
single maritime boundary in that area, giving an additional dimension to
the attribution of the Hawar Islands to Bahrain on the basis of a “deci-
sion” that, as explained in Part 1 of this opinion, we consider to be an
invalid “decision” in international law.

543. The remedy for avoiding such a result would have been to apply
the enclave method in the area concerned and this could have been done
in several ways. For example, by defining to the west of the Hawar
Islands an area of common territorial sea or by creating a Qatari corridor
of territorial sea between the Hawar Islands and Bahrain island. The first
of these two alternatives would not pose any problem of overflight. A
Qatari territorial sea corridor poses that problem, but it could have been
solved by giving Bahrain the right to freely overfly over the said corridor.
These kinds of alternative solutions should have been achieved through a
balance of equities approach.

544. However, although none of these alternatives was decided upon,
the Judgment recognizes that, in the Hawar Islands maritime area, the
course of the single maritime boundary raises a particular problem, and
this explains operative subparagraph 2 of the Judgment, which reads as
follows:

“THE COURT,

(a) Finds that the State of Bahrain has sovereignty over the Hawar
Islands;

(b) Recalls that vessels of the State of Qatar enjoy in the territorial
sea of Bahrain separating the Hawar Islands from the other
Bahraini islands the right of innocent passage accorded by cus-
tomary international law” (emphasis added).

545. The right of innocent passage of the vessels of the State of Qatar
in the whole of the maritime area defined above therefore falls within the

407
444 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

scope of the res judicata of the present Judgment concerning the Hawar
Islands. As such, that right cannot be questioned or jeopardized in its
concrete applications in the relations between the State of Bahrain and
the State of Qatar defined by the present Judgment.

I. Some Concluding Considerations on the Course and Equitableness of
the Single Maritime Boundary in the Judgment

546. The single maritime boundary of the Judgment as a whole gives
Bahrain more extended maritime areas than the 1947 British sea-bed
dividing line and the Boggs-Kennedy sea-bed dividing line. This is cer-
tainly the case in the Parties’ southern sector of the delimitation area with
respect to these terms of reference. However, Qatar’s gains in the Parties’
northern sector of the delimitation area are superior to Bahrain’s there.
This is quite important. Thus, if one takes the single maritime boundary
as a whole, there is some balance in the result of the delimitation.

547, The result in the Parties’ southern sector is consequential on the
method followed by the Court when defining the “Bahrain’s relevant
coasts” and the alleged “equidistance line” as well as on the “special cir-
cumstances” identified and applied with a view to adjusting that “equi-
distance line”. It is true that in a number of cases the “equidistance line”
was adjusted in favour of Qatar, but such adjustments were not sufficient
to achieve an equitable result in the southern sector because the point of
departure, the “equidistance line of the Judgment”, is not a true equi-
distance or median line between the mainland cousts of the two States
Parties.

548. However, bearing in mind that an “equitable result” is a criterion
which moves between parameters, in other words, there could be more
than one line which could be characterized as an “equitable line”, we
consider that the course of the single maritime boundary, generally
speaking, as from about the Quita’a el Erge area to the last point of the
single maritime boundary in the Parties’ northern sector of the delimita-
tion area may be regarded as relatively equitable, although Qit at Jara-
dah and Fasht Ben Thur are on the western side of the boundary line and
not, as they should be, on its eastern side. It is with this reservation
in mind that we nevertheless accept that part of the single maritime
boundary defined by the Judgment.

549. However, in the Hawar Islands maritime area, the delimitation
effected by the Judgment is not an equitable delimitation, these islands
being foreign coastal islands by virtue of the Judgment’s finding on the
sovereignty over the Hawar Islands. This explains our negative vote on
the single maritime boundary defined by the Judgment once it was
decided that the boundary line should be voted upon as a whole.

408
445 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)
FINAL REMARKS OF THE OPINION

550. By the present Judgment, the Court finds that the State of Qatar
has sovereignty over Zubarah and Janan Island, including Hadd Janan,
and that the low-tide elevation of Fasht ad Dibal also falls under the sov-
ereignty of the State of Qatar. Moreover, the adopted course of the single
maritime boundary (i) likewise places the low-tide elevations of Qit’at ash
Shajarah and Qita’a el Erge under the sovereignty of the State of Qatar
and (ii) leaves to the State of Qatar most of the continental shelf and
superjacent waters of the Parties’ northern sector of the disputed mari-
time delimitation area with all its living and non-living resources. Lastly,
the Court reminds us that the vessels of the State of Qatar enjoy in the
territorial sea of Bahrain separating the Hawar Islands from other Bah-
raini islands the right of innocent passage accorded by customary inter-
national law, thus placing this reminder within the scope of the res judi-
cata of the present Judgment.

551. On the other hand, the Court finds that the State of Bahrain has
sovereignty over the Hawar Islands and Qit'at Jaradah. Moreover, the
adopted course of the single maritime boundary leaves to the State of
Bahrain (i) the low-tide elevations of Fasht Ben Thur and Fasht al Azm:
and (ii) most of the territorial sea waters in dispute in the Parties’ south-
ern sector of the maritime delimitation area as Bahraini territorial sea. As
stated, I consider that Qit’at Jaradah is not an island but a low-tide eleva-
tion and that as such it is not a maritime feature, sovereignty over which
the State of Bahrain could have acquired by occupation. The single mari-
time boundary should have left that low-tide elevation on the Qatari side
of the line. But this is not the reason for my dissent from the present
Judgment.

552. The reason for my dissent relates to the finding of the majority on
the Hawar Islands dispute, the legal basis of that finding and its con-
sequences for the maritime delimitation. In effect, this finding fails to
acknowledge (1) the original title and corresponding sovereignty of
the State of Qatar over the Hawar Islands, a title established through a
process of historical consolidation and general recognition; and (2) the
absence of any better or prevailing derivative title of the State of Bahrain
over the Hawar Islands. To this it should be added that the resulting
superveniens maritime “special circumstance” is not treated as such in the
definition of the course of the single maritime boundary in the Hawar
Islands maritime area. These conclusions of the majority are, in my
opinion, wholly unjustified in the light of the applicable general inter-
national law, the circumstances of the case and the evidence submitted
by the Parties with respect to the Hawar Islands dispute.

553. These conclusions are in fact quite erroneous in international law
and | must state, to my great regret, that as a result of these conclusions
the State of Qatar — which came to the Court in order, inter alia, to

409
446  DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

remedy a breach of its territorial integrity concerning the Hawar Islands
through the peaceful means of judicial settlement — in that respect did
not obtain from the Court the judicial answer which the merits of its case
on the Hawar Islands dispute deserved. This example makes me wonder
whether judicial settlement is in fact a means of redressing notorious ter-
ritorial usurpations by effecting the peaceful change that the re-establish-
ment of international law may require in a given situation. If the majority
has been unable to find flaws in the consent such as induced error,
fraudulent conduct and coercion in the evidence submitted to the Court
in the present case, I am afraid that they do not lend themselves to proof
in future cases. In any case, quieta non movere does not provide an expla-
nation in the current case because the Judgment non movere in the Hawar
Islands dispute does not apply to the definition of the single maritime
boundary. In the maritime delimitation aspect of the case, the Judgment
is movere; it opts for change. But, the non movere, like the movere of the
majority, seems to be in one direction always, in a manner which in my
view does not coincide with the normative requirements of applicable
general international law and/or the relative weight of the arguments and
evidence submitted by the Parties. Last but not least, the considerations
in the Judgment’s reasoning concerning the finding on the Hawar Islands
dispute could not be more fragile. In effect, the reasoning is unable, in my
opinion, to duly motivate the finding of the majority.

554. How is it possible to explain this finding on the basis of consent
to a 1938-1939 British procedure whose outcome — the 1939 British
“decision” — was clearly and obviously an invalid decision in interna-
tional law, both formally and inherently, at the time of its adoption? The
resurrection in the year 2001 of an invalid colonially minded decision
linked to oil interests to resolve a disputed territorial question between
two States is more than amazing and for me a quite unacceptable legal
proposition. The Judgment’s line of reasoning on consent is to all prac-
tical purposes exclusively focused on Qatar. But the 1938-1939 British
procedure was a procedure with three participants. Where in the reason-
ing is the analysis of consent with respect to the other two participants?
It seems also to have been forgotten that the British representatives in the
Gulf who negotiated with Qatar and Bahrain, that is, Fowle, Weightman
and others, and the British officials concerned in London, such as those
of the India Office, were agents of the British Government acting in that
capacity. Thus, their acts, to the extent that they are proven to be
vitiated, are vitiated acts of the British Government or imputable to the
British Government in international law, namely to the very Govern-
ment which made the “1939 decision”. Moreover, the reasoning of the
Judgment does not even explicitly consider the question whether the

410
447 DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

1939 British “decision” was valid at the time from the standpoint of the
essential requirements of the law as regards validity.

555. Furthermore, inter-temporal validity is quite alien to the reason-
ing of the Judgment. How may it be affirmed that, on the basis of the
consent determined by the Judgment, the 1939 British “decision” has
legally binding effects today between the Parties without analysing
whether the “consent” to the 1938-1939 British procedure that has been
determined may be considered valid consent under the international law
in force at the time of the adoption of the present Judgment? To con-
clude that this is so would have necessitated asking oneself questions
about, for example, the possible existence of jus cogens surperveniens
rules or erga omnes imperative obligations, as well as the possible com-
patibility of the consent concerned with fundamental principles of the
Charter of the United Nations and of the present international legal
order.

556. It follows that I am unable to accept the conclusion that the State
of Bahrain is the holder of a derivative title to the Hawar Islands on the
basis of consent as determined by the Judgment. The reality and validity
of that consent — as well as the permanency of its legally binding effects
for the Parties is not adequately and convincingly explained in the
reasoning of the Judgment. At the same time, having found no other
relevant derivative title or titles of Bahrain, the original title of Qatar
to the Hawar Islands cannot for me but prevail as between the Parties
in the dispute on the Hawar Islands in the present case.

(Signed) Santiago TORRES BERNARDEZ.

411
DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

Carte n° 1 (1890)
(n° 12 dans l’atlas de Qatar)

448

Map No. 1 (1890)
(No. 12 in Qatari Atlas)

er Er -
20) Index Map 5)
of
fw Schr THE PERSIAN GULF
PERSIA

La Punder et Abbas
Cd
an > Pe (renusa sHorraus j
Bolen > a
"oe ae DRLUCHISTAN

4

Large Rede
* pit ie
Rabat 12
n d
La:
ag" wok i w
PCR . | Sitran Tt.
- % 4
\ : v mn So
ù ? a9 è LL!
4 2 Spat tye? & <,
Sy , Pye Ba souci Ly Ee Betis Purgehe N
oo vw) Ai Le À
aed gues +
a 4 o :
5 o 4 * H
Yh os + ;
4 wt 4 \ Fast
ig ag 2
des Deekbins Ce
Hermans Watt CCS à
344 ac:
i À ;
. ,
‘
a ra
wi THE BAHREIN ISLANDS ad
sf Reduced frum the Admiralty Charts,
Mustrating the Journey of ‘ i
Theudore Bent, Esq. i “
e nf ee Wie s + 8 7 an
tense" Anas a Barr ae
een Teller

A Sabon LCS. nus
Pb for the Promentings ef de Rayak Coryraphiont Seelety. 1890.
449  DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNARDEZ)

Map No. 3 (1913) Carte n° 3 (1913)
(No. 46 in Qatari Atlas) (n° 46 dans l’atlas de Qatar)

my Annexe V.
MAP TO SHOW THE LIMITS OF KOWEIT AND ADJACENT COUNTRY.

s

ak

Cae rere

LYS rhe

ig

450

Map No. 5 (1923)
(No. 71 in Qatari Atlas)

DELIMITATION AND QUESTIONS (DISS. OP. TORRES BERNÂRDEZ)

Carte n° 5 (1923)
(n° 71 dans l’atlas de Qatar)

AE 30°
t © NORTHBRÉ  AHABISTAN (ay Mase so ms
“ 7) à Muwaiet Concession
. approx. area F600 sq.mis.
4 QA Neutral Zone 1750s¢.mis. |
: - WAM Bahrein Island¢50sq.mis.
Lf. Masinyah 0 EMD Hacar 3500 s¢.n/s.
ë SOUTHENN ARADISTAY Scale of Miles
É ' 40 20 9
bo
nana.
mé
JS
. 89%)
mi
wre
. \
AL:
. x). A
bel
A
Rinna}
Mhafs  enuuhiyah
ye
S
LS À
An RIYADIL
Las Ban nak
Malsiyahp Es Part of SANA
maken à % fomeumes mgt
% bo
se aa” 50

Map PREPARED

BY Major Hotates