COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DE LA DELIMITATION MARITIME
ET DES QUESTIONS TERRITORIALES
ENTRE QATAR ET BAHREIN

(QATAR c. BAHREIN)

FOND

ARRET DU 16 MARS 2001

2001

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING MARITIME DELIMITATION
AND TERRITORIAL QUESTIONS
BETWEEN QATAR AND BAHRAIN

(QATAR v. BAHRAIN)

MERITS

JUDGMENT OF 16 MARCH 2001

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DE LA DELIMITATION MARITIME
ET DES QUESTIONS TERRITORIALES
ENTRE QATAR ET BAHREIN

(QATAR c. BAHREIN)

FOND

ARRET DU 16 MARS 2001

2001

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING MARITIME DELIMITATION
AND TERRITORIAL QUESTIONS
BETWEEN QATAR AND BAHRAIN

(QATAR v. BAHRAIN)

MERITS

JUDGMENT OF 16 MARCH 2001
Mode officiel de citation:

Délimitation maritime et questions territoriales
entre Qatar et Bahrein, fond, arrét,
C.J. Recueil 2001, p. 40

Official citation:

Maritime Delimitation and Territorial Questions
between Qatar and Bahrain, Merits, Judgment,
LC.J. Reports 2001, p. 40

N° de vente:
ISSN 0074-4441 Sales number

ISBN 92-1-070919-5

820

16 MARS 2001

ARRET

DELIMITATION MARITIME ET QUESTIONS TERRITORIALES
ENTRE QATAR ET BAHREIN

(QATAR c. BAHREIN)

FOND

MARITIME DELIMITATION AND TERRITORIAL QUESTIONS
BETWEEN QATAR AND BAHRAIN

(QATAR v. BAHRAIN)

MERITS

16 MARCH 2001

JUDGMENT
40

INTERNATIONAL COURT OF JUSTICE

YEAR 2001

16 March 2001

CASE CONCERNING MARITIME DELIMITATION
AND TERRITORIAL QUESTIONS
BETWEEN QATAR AND BAHRAIN

(QATAR v. BAHRAIN)

MERITS

Territorial dispute — The Parties’ claims.

Geographical setting — Historical context — States formerly protected by
Great Britain — Good offices of the King of Saudi Arabia — “Bahraini for-
mula” — Doha “Minutes”.

Zubarah — Content and significance of the Agreements concluded on 6 and
12 September 1868 between the British Government and the Chiefs of Bahrain
and Qatar respectively — Lack of direct acts of authority by Bahrain — Irrele-
vance of ties of allegiance between the Naim tribe and the Ruler of Bahrain —
Recognition of Qatari sovereignty by the British and the Ottomans — The un-
ratified Anglo-Ottoman Convention of 29 July 1913 and the Anglo-Ottoman
Treaty of 9 March 1914 — Position of the British Government — Acts of
authority by the Ruler of Qatar — Events of 1937.

Hawar Islands — ‘Bahraini formula” — Nature and legal significance of the
British decision of 11 July 1939 — Validity of the decision — Parties’ consent
to the process — Absence of procedural violations — Lack of reasons — Oppos-
ability — Significance of official protests by Qatar — No need for the Court to
rule on original title, geographical proximity, territorial unity, effectivités, or
the principle of uti possidetis juris.

Janan and Hadd Janan — No definition of the Hawar Islands in the British
decision of 11 July 1939 — Lists produced by Bahrain in 1936, 1937, 1938 and
1946 — Letters sent on 23 December 1947 to the Rulers of Qatar and Bahrain
by the British Government — Authoritative interpretation of the British decision
of 11 July 1939.

Request for the drawing of a single maritime boundary — Delimitation of
various jurisdictions — Delimitation of the territorial sea of two States with
opposite coasts — Delimitation of the continental shelf and the exclusive eco-

4

2001
16 March
General List
No. 87
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 41

omic zone of two States with coasts comparable to adjacent coasts.

Law applicable to the delimitation — 1958 Convention on the Territorial Sea
and the Contiguous Zone — 1982 United Nations Convention on the Law of the
Sea — Customary international law.

Method consisting of provisionally drawing an equidistance line and adjusting
it to take account of special circumstances or to obtain an equitable result.

Determination of baselines and basepoints — Relevant coasts — Relevant
baselines —Low-water line and straight baselines — Claim to status of an
archipelagic State — Finality of the Judgment.

Fasht al Azm — Part of island or low-tide elevation.

Qit'at Jaradah — Island status— Acts performed à titre de souverain —
Construction of navigational aids.

Fasht ad Dibal — Low-tide elevation — Low-tide elevations situated in the
territorial sea of only one State — Low-tide elevations situated in the over-
lapping zone of the territorial seas of two States — Question of appropriation.

Equidistancelspecial circumstances rule — Location and small size of an
island.

Equitable principles/relevant circumstances — Pearling banks — Line divid-
ing the seabed established in 1947 by the British Government — Respective
lengths of the relevant coasts — Fasht al Jarim — Effect of this maritime fea-
ture on the delimitation.

Delimitation undertaken without affecting rights of third States.

Single delimitation line — Co-ordinates of that line.

Waters separating the Hawar Islands from the other Bahraini Islands — Not
internal waters — Right of innocent passage — Passage of Qatari vessels
through Bahrain's territorial waters.

JUDGMENT

Present: President GUILLAUME; Vice-President Sui; Judges Opa, BEDJAOUI,
RANJEVA, HERCZEGH,  FLEISCHHAUER, KOROMA,  VERESHCHETIN,
HIGGINS, PARRA-ARANGUREN, KoouMANs, REZEK, AL-KHASAWNEH,
BUERGENTHAL; Judges ad hoc TORRES BERNARDEZ, FORTIER; Registrar
COUVREUR.

In the case concerning maritime delimitation and territorial questions,
between

the State of Qatar,
represented by

H.E. Mr. Abdullah bin Abdulatif Al-Muslemani, Secretary-General of the
Cabinet of the Government of the State of Qatar,

as Agent and Counsel;
Mr. Adel Sherbini, Legal Adviser,
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 42

Mr. Sami Abushaikha, Legal Expert,
as Counsel;

Mr. Eric David, Professor of International Law, Université libre de
Bruxelles,

Mr. Ali bin Fetais Al-Meri, Director of Legal Department, Diwan Amiri,

Mr. Jean-Pierre Quéneudec, Professor of International Law, University of
Paris I (Panthéon-Sorbonne),

Mr. Jean Salmon, Professor emeritus of International Law, Université libre
de Bruxelles, Member of the Institut de droit international,

Mr. R. K. P. Shankardass, Senior Advocate, Supreme Court of India,
former President of the International Bar Association,

Sir lan Sinclair, K.C.M.G., Q.C., Barrister at Law, Member of the Institut
de droit international,

Sir Francis Vallat, G.B.E., K.C.M.G., Q.C., Professor emeritus of Interna-
tional Law, University of London, Member emeritus of the Institut de
droit international,

Mr. Rodman R. Bundy, avocat a la Cour d’appel de Paris, Member of the
New York Bar, Frere Cholmeley/Eversheds, Paris,

Ms Nanette E. Pilkington, avocat à la Cour d’appel de Paris, Frere Cholme-
ley/Eversheds, Paris,

as Counsel and Advocates;

Ms Cheryl Dunn, Member of the State Bar of California, Frere Cholmeley/
Eversheds, Paris,

Ms Ines Sabine Wilk, Rechtsanwalt before the Court of Appeal, Member of
the Chamber of Lawyers of Berlin,

as Counsel;

Mr. Scott B. Edmonds, Director of Cartographic Operations,
MapQuest.com, Columbia, Maryland (United States of America),

Mr. Robert C. Rizzutti, Project Manager, MapQuest.com, Columbia, Mary-
land (United States of America),

Ms Stephanie K. Clark, Senior Cartographer, MapQuest.com, Columbia,
Maryland (United States of America),

as Experts;

H.E. Sheikh Hamad bin Jassim bin Jabor Al-Thani, Minister for Foreign
Affairs of the State of Qatar,

H.E. Mr. Ahmed bin Abdullah Al-Mahmoud, Minister of State for Foreign
Affairs of the State of Qatar,

as Observers;
and

the State of Bahrain,
represented by
H.E. Mr. Jawad Salim Al-Arayed, Minister of State of the State of Bahrain,
as Agent;
Mr. Fathi Kemicha, Kemicha & Associés (Tunis), avocat a la Cour d’appel
de Paris,

Sir Elihu Lauterpacht, Q.C., C.B.E., Honorary Professor of the University of
Cambridge, Member of the Institut de droit international,
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 43

Mr. Jan Paulsson, Freshfields, Paris, avocat à la Cour d’appel de Paris,
Member of the District of Columbia Bar (United States of America),

Mr. Michael Reisman, Myres S. McDougal Professor of International Law
of Yale Law School, Member of the Bar of Connecticut, associé de
VInstitut de droit international,

Mr. Robert Volterra, Freshfields, London, Member of the Bar of Upper
Canada,

Mr. Prosper Weil, Emeritus Professor at the University of Paris II (Pan-
théon-Assas), Member of the Académie des sciences morales et politiques
(Institut de France), Member of the Institut de droit international,

as Counsel and Advocates;

Sheikh Khalid bin Ahmed Al-Khalifa, First Secretary, Ministry of Foreign
Affairs of the State of Bahrain,

Commander Christopher Carleton, M.B.E., Head of the Law of the Sea
Division of the United Kingdom Hydrographic Office,

Mr. Hongwu Chen, Freshfields, Paris, avocat à la Cour d’appel de Paris,
Member of the Beijing Bar,

Mr. Graham Coop, Freshfields, Paris, Barrister and Solicitor of the High
Court of New Zealand and Solicitor of the Supreme Court of England and
Wales,

Mr. Andrew Newcombe, Freshfields, Paris, Member of the Bar of British
Columbia (Canada),

Ms Beth Olsen, Adviser, Ministry of State of the State of Bahrain,

Mr. John Wilkinson, Former Reader at the University of Oxford, Emeritus
Fellow, St. Hugh’s College, Oxford,

as Advisers;

H.E. Sheikh Mohammed bin Mubarak A! Khalifa, Minister for Foreign
Affairs, State of Bahrain,

H.E. Sheikh Abdul-Aziz bin Mubarak Al Khalifa, Ambassador of the State
of Bahrain to the Netherlands,

H.E. Mr. Mohammed Jaber Al-Ansari, Adviser to His Highness, the Amir of
Bahrain,

Mr. Ghazi Al-Gosaibi, Under-Secretary of Foreign Affairs, State of Bahrain,

H.E. Sheikha Haya Al Khalifa, Ambassador of the State of Bahrain in
France,

Mr. Yousef Mahmood, Director of the Office of the Foreign Minister, State
of Bahrain,

as Observers ;

Mr. Jon Addison, Ministry of State of the State of Bahrain,

Ms Maisoon Al-Arayed, Ministry of State of the State of Bahrain,

Ms Alia Al-Khatar, Freshfields,

Mr. Nabeel Al-Rumaihi, Ministry of State of the State of Bahrain,

Mr. Hafedh Al-Qassab, Ministry of State of the State of Bahrain,

Mr. Yousif Busheery, Ministry of Foreign Affairs of the State of Bahrain,
Ms Janet Cooper, Ministry of State of the State of Bahrain,

Ms Eleonore Gleitz, Freshfields,

Ms Aneesa Hanna, Embassy of Bahrain in the United Kingdom,

Ms Jeanette Harding, Ministry of State of the State of Bahrain,
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 44

Ms Vanessa Harris, Freshfields,

Ms Iva Kratchanova, Ministry of State of the State of Bahrain,

Ms Sonja Knijnsberg, Freshfields,

Ms Sarah Mochen, Freshfields,

Mr. Kevin Mottram, Freshfields,

Mr. Yasser Shaheen, Second Secretary, Ministry of Foreign Affairs of the
State of Bahrain,

as Administrative Staff,

THE Court,

composed as above,
after deliberation,

delivers the following Judgment:

1. On 8 July 1991 the Minister for Foreign Affairs of the State of Qatar
(hereinafter referred to as “Qatar’’) filed in the Registry of the Court an Appli-
cation instituting proceedings against the State of Bahrain (hereinafter referred
to as “Bahrain”) in respect of certain disputes between the two States relating
to “sovereignty over the Hawar islands, sovereign rights over the shoals of
Dibal and Qit’at Jaradah, and the delimitation of the maritime areas of the two
States”.

In this Application, Qatar contended that the Court had jurisdiction to
entertain the dispute by virtue of two “agreements” concluded between the
Parties in December 1987 and December 1990 respectively, the subject and
scope of the commitment to the Court’s jurisdiction being determined, accord-
ing to the Applicant, by a formula proposed by Bahrain to Qatar on 26 Octo-
ber 1988 and accepted by Qatar in December 1990 (hereinafter referred to as
the “Bahraini formula”).

2. Pursuant to Article 40, paragraph 2, of the Statute of the Court, the
Application was forthwith communicated by the Registrar of the Court to the
Government of Bahrain; in accordance with paragraph 3 of that Article, all
other States entitled to appear before the Court were notified by the Registrar
of the Application.

3. By letters addressed to the Registrar on 14 July 1991 and 18 August 1991,
Bahrain contested the basis of jurisdiction invoked by Qatar.

4. By an Order of 11 October 1991, the President of the Court, having con-
sulted the Parties in accordance with Article 31 of the Rules of Court, and tak-
ing into account the agreement reached between them concerning procedure,
decided that the written pleadings should first be addressed to the questions of
the jurisdiction of the Court to entertain the dispute and of the admissibility of
the Application. By the same Order, the President fixed time-limits for the filing
of a Memorial by Qatar and a Counter-Memorial by Bahrain on the questions
of jurisdiction and admissibility; those pleadings were duly filed within the time
prescribed.

5. By an Order of 26 June 1992, the Court, considering that the filing of
further pleadings by the Parties was necessary, directed that a Reply by Qatar
and a Rejoinder by Bahrain be filed on the questions of jurisdiction and admis-
sibility, and fixed time-limits for the filing of those pleadings; these pleadings
were duly filed within the time prescribed.

6. Since the Court included upon the Bench no judge of the nationality of
either of the Parties, each Party proceeded to exercise the right conferred by

8
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 45

Article 31, paragraph 3, of the Statute to choose a judge ad hoc to sit in the
case; Bahrain chose Mr. Nicolas Valticos, and Qatar Mr. José Maria Ruda.

7. At public hearings held between 28 February and 11 March 1994, the
Parties were heard on the questions of the Court’s jurisdiction and the admis-
sibility of the Application.

8. By a Judgment of | July 1994, the Court found that the exchanges of
letters between the King of Saudi Arabia and the Amir of Qatar of 19 and
21 December 1987, and between the King of Saudi Arabia and the Amir of
Bahrain of 19 and 26 December 1987, and the document headed “Minutes”
and signed at Doha on 25 December 1990 by the Ministers for Foreign Affairs
of Bahrain, Qatar and Saudi Arabia, were international agreements creating
rights and obligations for the Parties; and that, by the terms of those agree-
ments, the Parties had undertaken to submit to the Court the whole of the dis-
pute between them, as circumscribed by the Bahraini formula. Having noted
that it had before it only an Application from Qatar setting out that State’s
specific claims in connection with that formula, the Court decided to afford the
Parties the opportunity to submit to it the whole of the dispute. It fixed
30 November 1994 as the time-limit within which the Parties were jointly or
separately to take action to that end, and reserved any other matters for sub-
sequent decision. The Court further stated that, on completion of the reference
of the whole dispute to it, it would fix time-limits for the simultaneous filing
of written pleadings, that is, each Party would file a Memorial and then a
Counter-Memorial, within the same time-limits.

9. Judge ad hoc Ruda died on 7 July 1994. By letter of 5 September 1994, the
Agent of Qatar informed the Court that his Government had chosen Mr. San-
tiago Torres Bernardez to replace him.

10. On 30 November 1994, within the time-limit laid down in the Judgment
of 1 July 1994, Qatar filed in the Registry a document entitled “Act to comply
with paragraphs (3) and (4) of operative paragraph 41 of the Judgment of the
Court of 1 July 1994”, in which Qatar referred to the absence of an agreement
between the Parties to act jointly and declared that it was thereby submitting to
the Court “the whole of the dispute”.

On the same day, Bahrain filed in the Registry a document entitled “Report
of the State of Bahrain to the International Court of Justice on the attempt by
the Parties to implement the Court’s Judgment of Ist July, 1994”; then, by a
letter of 5 December 1994, the Agent of Bahrain indicated that “the Qatari
separate Act . . . cannot create [the jurisdiction of the Court] or effect a valid
submission in the absence of Bahrain’s consent”.

11. By a Judgment of 15 February 1995, the Court found that it had jurisdic-
tion to adjudicate upon the dispute between Qatar and Bahrain which had been
submitted to it; that it was now seised of the whole of the dispute; and that the
Application of the State of Qatar as formulated on 30 November 1994 was
admissible.

12. Mr. Valticos resigned from his duties as judge ad hoc with effect from
15 February 1995.

13. By an Order of 28 April 1995, the Court, having ascertained the views of
Qatar and having given Bahrain the opportunity to make its own views known,
fixed 29 February 1996 as the time-limit for the filing by each of the Parties of
a Memorial on the merits.

By an Order of 1 February 1996, the Court, at the request of Bahrain, and
taking into account both the views expressed by the Parties and the particular

9
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 46

circumstances of the case, extended to 30 September 1996 the time-limit for the
filing of those pleadings; these were duly filed within the time-limit thus
extended.

By an Order of 30 October 1996, the President of the Court, taking into
account the views expressed by the Agents of the Parties, fixed 31 December
1997 as the time-limit for the filing by each of the Parties of a Counter- :
Memorial on the merits.

14. By letter of 17 February 1997, the Agent of Bahrain informed the Court
that his Government had chosen Mr. Mohamed Shahabuddeen as judge ad
hoc. The latter having resigned from his duties with effect from 18 September
1997, the Agent of Bahrain, by letter of 20 October 1997, informed the Court
that his Government had chosen Mr. Yves Fortier to replace him.

15. By letter of 25 September 1997, the Agent of Bahrain informed the Court
that his Government challenged the authenticity of 81 documents, copies of
which had been produced by Qatar as annexes to its Memorial, that this matter
was “distinct and severable from the merits”, and that Bahrain would disregard
the content of the documents in question for the purposes of preparing its
Counter-Memorial; to that communication were attached various document
search and experts’ reports.

By letter of 8 October 1997, the Agent of Qatar informed the Court that, in
his Government’s view, the objections raised by Bahrain were linked to the
merits, that they should be considered and determined within the framework of
the merits, and that the Court could not, however, “expect Qatar, at the present
stage of preparation of its own Counter-Memorial, to comment on the detailed
Bahraini allegations”.

By letter of 17 October 1997, the Agent of Bahrain stated that his Govern-
ment considered that the use by Qatar of the challenged documents gave rise to
“procedural difficulties that strike at the fundamentals of the orderly develop-
ment of the case”; subsequently, by letter of 18 November 1997 with enclosure,
he informed the Court inter alia of a “new development” concerning the origin
of the seals with which some of the documents produced by Qatar were
impressed, and which was relevant to assessment of the authenticity of those
documents.

16. At the conclusion of a meeting held by the President of the Court on
25 November 1997 with the Agents of the Parties, it was agreed inter alia that
the Counter-Memorials would not cover the question of the authenticity of the
documents challenged by Bahrain and that other pleadings would be submitted
by the Parties at a later date.

17. The Counter-Memorials of the Parties were duly filed and exchanged on
23 December 1997.

18. By letter of 31 December 1997, the Agent of Bahrain sent the Court par-
ticular documents supplementing those presented on 25 September 1997; sub-
sequently, in a letter of 2 February 1998, he noted that Qatar was continuing in
its Counter-Memorial to rely on the challenged documents and emphasized the
need for the Court to decide the question of their authenticity as a preliminary
issue.

By letter of 26 March 1998, to which were attached a document and experts’
reports, the Agent of Bahrain also disputed the authenticity of a document
annexed to the Counter-Memorial of Qatar. Consequently, there were in total
82 documents challenged by Bahrain.

19. By an Order of 30 March 1998, the Court, having regard to the views

10
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 47

expressed by the Agents of the Parties at a further meeting held with them by
the President on 17 March 1998, fixed 30 September 1998 as the time-limit for
the filing by Qatar “of an interim report, to be as comprehensive and specific as
possible, on the question of the authenticity of each of the documents chal-
lenged by Bahrain”. In the same Order, the Court directed the submission of a
Reply on the merits by each of the Parties and decided that “the Reply of Qatar
will contain its detailed and definitive position on the question” and that “the
Reply of Bahrain will contain its observations on the interim report of Qatar”;
it fixed 30 March 1999 as the time-limit for the filing of those Replies.

20. Qatar duly filed its interim report within the time-limit fixed. Citing the
differing views between the experts of the Parties and between its own experts,
Qatar stated in that report that it had “decided [to] disregard all the 82 chal-
lenged documents for the purposes of the present case so as to enable the Court
to address the merits of the case without further procedural complications”.

In a letter of 27 November 1998 the Agent of Bahrain noted “the effective
abandonment by Qatar of . . . the impeached documents” and concluded in
consequence that Qatar “cannot make any further reference to the 82 forged
documents, that it will not adduce the content of these documents in connec-
tion with any of its arguments and that, in general, the merits of the case will be
adjudicated by the Court without regard to these documents”.

By letter of 15 December 1998, the Agent of Qatar expressed “[his Govern-
ment’s] regret at the situation that [had] arisen and the inconvenience that this
[had] caused to the Court and Bahrain”.

21. By letter of 11 December 1998, the Agent of Qatar requested the Court
to extend to 30 May 1999 the time-limit for the filing of the Parties’ Replies.

22. By letter of 13 January 1999, the Agent of Bahrain, acknowledging
receipt of the letters of 11 and 15 December 1998 from the Agent of Qatar,
stated that his Government “appreciate[d] Qatar’s expression of regret” and
“ha[d] no objection to the modification of the Court’s Order of 30 March 1998
to accommodate Qatar’s request”.

By letter of | February 1999, the Agent of Qatar, referring to the position
adopted by his Government with regard to the documents challenged by Bah-
rain, confirmed that this was its definitive position.

23. By an Order of 17 February 1999, the Court, taking into account the
concordant views of the Parties on the treatment of the disputed documents
and their agreement on the extension of time-limits for the filing of Replies,
placed on record the decision of Qatar to disregard, for the purposes of the
present case, the 82 documents whose authenticity had been challenged by Bah-
rain, decided that the Replies would not rely on those documents, and extended
to 30 May 1999 the time-limit for the filing of the said Replies; those pleadings
were duly filed within the time-limit as thus extended.

24. Following a meeting held by the President of the Court on 28 June 1999
with the Agents of the Parties, the Court decided that no further round of writ-
ten pleadings would take place in the case; that the Parties would be authorized
to file supplemental documents, accompanied by a brief commentary of no
more than a page per document, limited to placing the document in question in
the context of the written pleadings; and that the Court would fix a time-limit
within which such documents would have to be filed once it had determined the

11
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 48

date for the opening of the hearings on the merits. As instructed by the Court,
the Registrar informed the Agents of the Parties of this decision by letters of
5 July 1999.

25. At a further meeting held by the President of the Court with the Agents
of the Parties on 16 November 1999, the latter expressed their agreement that
the hearings on the merits should commence on 29 May 2000; it appeared,
however, that the Parties disagreed as to the length of those hearings, and that
they had reached differing views as to the nature and scope of the “supplemen-
tal documents” that they would be permitted to produce.

Following this meeting, the Court decided:

(1) to permit the Parties to file supplemental experts’ reports and historic
documents, but no further witness statements, it being understood that
they would endeavour to produce such supplemental documents in the two
official languages of the Court, French and English;

(2) to fix 1 March 2000 as the time-limit for the filing of the supplemental
documents;

(3) that the hearings would open on Monday 29 May 2000, at 10 a.m., and
would last for a maximum of five weeks, and that the Parties should
endeavour to reach agreement on the organization of the oral proceedings.

As instructed by the Court, the Registrar informed the Agents of the Parties of
this decision by letters of 9 December 1999.

At Bahrain’s request, to which Qatar raised no objection, the Court extended
to 6 March 2000 the time-limit for the filing of supplemental documents by
Bahrain. Each of the Parties proceeded to file its documents within the time-
limit allowed to it.

26. By separate letters of 1 March 2000, the Agents of the Parties commu-
nicated to the Court the text of a joint statement embodying the result of their
consultations concerning the organization of the oral proceedings. The Court,
taking account of the views of the Parties, set a timetable for the hearings and
the Registrar communicated it to the Parties by letters of 7 April 2000.

27. Pursuant to Article 53, paragraph 2, of the Rules of Court, the Court,
having consulted the Parties, decided that the following would become avail-
able to the public at the opening of the oral proceedings: the Memorials, Coun-
ter-Memorials and Replies and all the documents annexed thereto; the supple-
mental documents filed by the Parties in March 2000 in accordance with the
relevant decisions of the Court; and all the communications, including any
documents or reports annexed thereto, submitted by the Parties to the Court
with regard to the question of the authenticity of certain documents.

28. Public hearings were held from 29 May to 29 June 2000, at which the
Court heard the oral arguments and replies of:

For Qatar: H.E. Mr. Abdullah bin Abdulatif Al-Muslemani,
Mr. Jean Salmon,
Ms Nanette E. Pilkington,
Mr. Ali bin Fetais Al-Meri,
Mr. R. K. P. Shankardass,
Sir Ian Sinclair,
Mr. Rodman R. Bundy,
Mr. Eric David,
Mr. Jean-Pierre Quéneudec.

12
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 49

For Bahrain: H.E. Mr. Jawad Salim Al-Arayed,
Sir Elihu Lauterpacht,
Mr. Jan Paulsson,
Mr. Michael Reisman,
Mr. Robert Volterra,
Mr. Fathi Kemicha,
Mr. Prosper Weil.

29. At the hearings, Members of the Court put questions to the Parties, to
which replies were given in writing, in accordance with Article 61, paragraph 4,
of the Rules of Court. Each of the Parties submitted written comments on the
replies provided by the other, in accordance with Article 72 of the Rules of
Court.

30. In the course of the oral proceedings and after their closure, each of the
Parties produced new documents pursuant to Article 56 of the Rules of Court
without any objection being raised by the other Party. As Bahrain referred, in
support of its arguments during its last round of oral pleadings, to five new
documents that it had initially proposed to use only for purposes of its reply to
a question from a Member of the Court, the Court decided, in order to safe-
guard the adversarial nature of the proceedings, to authorize Qatar, in accord-
ance with the wish expressed by it, to submit written comments on the line of
argument thus put forward by Bahrain and on the documents in question.
Those comments were filed by Qatar within the time-limit fixed for that pur-
pose.

*

31. In its Application filed in the Registry on 8 July 1991, Qatar made the
following requests:

“Reserving its right to supplement or amend its requests, the State of
Qatar requests the Court:

I. To adjudge and declare in accordance with international law

(A) that the State of Qatar has sovereignty over the Hawar islands;
and

(B) that the State of Qatar has sovereign rights over Dibal and Qit’at
Jaradah shoals;

and

H. With due regard to the line dividing the sea-bed of the two States as
described in the British decision of 23 December 1947, to draw in
accordance with international law a single maritime boundary between
the maritime areas of sea-bed, subsoil and superjacent waters apper-
taining respectively to the State of Qatar and the State of Bahrain.”

32. In its Application as formulated on 30 November 1994 (“Act to comply
with paragraphs (3) and (4) of operative paragraph 41 of the Judgment of the
Court dated 1 July 1994”), Qatar submitted the following requests:

“The following subjects fall within the jurisdiction of the Court by virtue
of the rights and obligations created by the international agreements
of December 1987 and 25 December 1990 and are, by virtue of Qatar’s
Application dated 5 July 1991 and the present Act, submitted to the Court:

13
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 50

The Hawar Islands, including the island of Janan;

Fasht ad Dibal and Qit’at Jaradah;

The archipelagic baselines;

Zubarah;

The areas for fishing for pearls and for fishing for swimming fish and
any other matters connected with maritime boundaries.

It is understood by Qatar that Bahrain defines its claim concerning
Zubarah as a claim of sovereignty.

Further to its Application Qatar requests the Court to adjudge and
declare that Bahrain has no sovereignty or other territorial right over the
island of Janan or over Zubarah, and that any claim by Bahrain concern-
ing archipelagic baselines and areas for fishing for pearls and swimming
fish would be irrelevant for the purpose of maritime delimitation in the
present case.”

WYN

33. In the course of the written proceedings, the following submissions were
presented by the Parties:

On behalf of the Government of Qatar,

in the Memorial, Counter-Memorial and Reply on the merits (mutatis mutandis
identical texts):

“In view of the above, the State of Qatar respectfully requests the Court,
rejecting all contrary claims and submissions:

I. To adjudge and declare in accordance with international law:

A. (1) That the State of Qatar has sovereignty over the Hawar
islands;
(2) That Dibal and Qit’at Jaradah shoals are low-tide elevations
which are under Qatar’s sovereignty;
B. (1) That the State of Bahrain has no sovereignty over the island
of Janan;
(2) That the State of Bahrain has no sovereignty over Zubarah;
(3) That any claim by Bahrain concerning archipelagic base-
lines and areas for fishing for pearls and swimming fish
would be irrelevant for the purpose of maritime delimitation
in the present case;

H. To draw a single maritime boundary between the maritime areas of
sea-bed, subsoil and superjacent waters appertaining respectively to
the State of Qatar and the State of Bahrain on the basis that the
Hawar islands and the island of Janan appertain to the State of
Qatar and not to the State of Bahrain, that boundary starting from
point 2 of the delimitation agreement concluded between Bahrain
and Iran in 1971 (51° 05’ 54” E and 27° 02’ 47” N), thence proceeding
in a southerly direction up to BLV (50° 57’ 30” E and 26° 33’ 35” N),
then following the line of the British decision of 23 December 1947
up to NSLB (50° 49’ 48” E and 26°21’24” N) and up to point L
(50° 43’ 00” E and 25°47’ 27” N), thence proceeding to point SI of
the delimitation agreement concluded by Bahrain and Saudi Arabia
in 1958 (50° 31’45” E and 25° 35’38” N)...”

14
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 51

On behalf of the Government of Bahrain,

in the Memorial, Counter-Memorial and Reply on the merits (mutatis mutandis
identical texts):

“In view of the facts and arguments set forth in Bahrain’s Memorial,
Counter-Memorial and . . . Reply;

May it please the Court, rejecting all contrary claims and submissions,
to adjudge and declare that:

1. Bahrain is sovereign over Zubarah.

2. Bahrain is sovereign over the Hawar Islands, including Janan and
Hadd Janan.

3. In view of Bahrain’s sovereignty over all the insular and other features,
including Fasht ad Dibal and Qit’at Jaradah, comprising the Bahraini
archipelago, the maritime boundary between Bahrain and Qatar is as
described in Part Two of Bahrain’s Memorial, Part Two of Bahrain’s
Counter-Memorial and in [its] Reply.

Bahrain reserves the right to supplement or modify the preceding sub-
missions.”

34. At the oral proceedings, the following submissions were presented by the
Parties:

On behalf of the Government of Qatar,
at the hearing of 22 June 2000:

“The State of Qatar respectfully requests the Court, rejecting all con-
trary claims and submissions:

I. To adjudge and declare in accordance with international law:

A. (1) That the State of Qatar has sovereignty over the Hawar
islands;
(2) That Dibal and Qit’at Jaradah shoals are low-tide elevations
which are under Qatar’s sovereignty ;
B. (1) That the State of Bahrain has no sovereignty over the island
of Janan;
(2) That the State of Bahrain has no sovereignty over Zubarah;
(3) That any claim by Bahrain concerning archipelagic base-
lines and areas for fishing for pearls and swimming fish
would be irrelevant for the purpose of maritime delimitation
in the present case;

II. To draw a single maritime boundary between the maritime areas
of sea-bed, subsoil and superjacent waters appertaining respec-
tively to the State of Qatar and the State of Bahrain on the basis
that Zubarah, the Hawar islands and the island of Janan apper-
tain to the State of Qatar and not to the State of Bahrain, that
boundary starting from point 2 of the delimitation agreement con-
cluded between Bahrain and Iran in 1971 (51°05’54” E and
27° 02’47” N), thence proceeding in a southerly direction up to
BLV (50° 57’ 30” E and 26° 33’ 35” N), then following the line of the
British decision of 23 December 1947 up to NSLB (50° 49’ 48” E
and 26° 21’ 24” N) and up to point L (50° 43’ 00” E and 25° 47’ 27” N),

15
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 52

thence proceeding to point S1 of the delimitation agreement
concluded by Bahrain and Saudi Arabia in 1958 (50° 31745” E
and 25° 35’ 38” N).”

On behalf of the Government of Bahrain,
at the hearing of 29 June 2000:

“ Having regard to the facts and arguments set forth in Bahrain’s Memo-
rial, Counter-Memorial, and Reply, and in the present hearings,

May it please the Court, rejecting all contrary claims and submissions,
to adjudge and declare that:

1. Bahrain is sovereign over Zubarah.

2. Bahrain is sovereign over the Hawar Islands, including Janan and
Hadd Janan.

3. In view of Bahrain’s sovereignty over all the insular and other features,
including Fasht ad Dibal and Qit’at Jaradah, comprising the Bahraini
archipelago, the maritime boundary between Bahrain and Qatar is as
described in Part Two of Bahrain’s Memorial.”

x * +

35. The State of Qatar and the State of Bahrain are both located in the
southern part of the Arabian/Persian Gulf (hereinafter referred to as “the
Gulf’), almost halfway between the mouth of the Shatt al’ Arab, to the
north-west, and the Strait of Hormuz, at the Gulfs eastern end, to the
north of Oman. The mainland to the west and south of the main island of
Bahrain and to the south of the Qatar peninsula is part of the Kingdom
of Saudi Arabia. The mainland on the northern shore of the Gulf is part
of Iran (see sketch-map No. 1, p. 53 below).

The Qatar peninsula projects northward into the Gulf, on the west
from the bay called Dawhat Salwah, and on the east from the region
lying to the south of Khor al-Udaid. The capital of the State of Qatar,
Doha, is situated on the eastern coast of the peninsula.

Bahrain is composed of a number of islands, islets and shoals situated
off the eastern and western coasts of its main island, which is also called
al-Awal Island. The capital of the State of Bahrain, Manama, is situated
in the north-eastern part of al-Awal Island.

Zubarah is located on the north-west coast of the Qatar peninsula,
opposite the main island of Bahrain.

The Hawar Islands are located in the immediate vicinity of the central
part of the west coast of the Qatar peninsula, to the south-east of the
main island of Bahrain and at a distance of approximately 10 nautical
miles from the latter.

Janan is located off the south-western tip of Hawar Island proper.

Fasht ad Dibal and Qit’at Jaradah are two maritime features located

16
53

MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT)

Nez

“kuo

‘SOMS; PS0 JO UAE GO JO BNUEU ER Oy ENT NOUN ft

ER
i

p 10] dard u69Q Sey ‘ULO; PAY IGUAS UF UMOUS aie SSNUES, AUGUEU YORU UO ‘Heu LANE SUL

EX 1,05
j I

3o8r
|

Nose —

Noo IL

Node —Î

Nose HH

N62 —

Noe -Î

EE

es

NE

1

SALLVYING AVUV GAUNN

uogzefasd vopavepé |

Memo OS)

Loue eee 2. _ be Note

LL NoS2

LL N°98

LINE

4. NgO€

NotE

ed OR RE: i ’
~~ a x : +
= é ‘
, pren spi
: 7, é
_ moo, À
. . , Qu À
euoq 5 :
‘ : Éuvodt, NX 4
* . : avo : % :
, D Vel 4 :
o . : : 3 vievuy tanvs
So Do , |
Q :
=<_ \
| oo NVU
paris desres eee ee esse ee bee ee ee à à de duree Gyeysng) exysng ARS See rn succes
: a: A: ativan
: eo .
: L Se
es D ET @ _
[| ni FA TN OVH
: : : : LA ?

1xX9]UOD dIydessoan [elsue ‘| ‘ON dew-yo1ays

Nol€

17
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 54

off the north-western coast of the Qatar peninsula and to the north-east
of the main island of Bahrain.

oe

36. The Court will begin with a brief account of the complex history
which forms the background to the dispute between the Parties.

37. Navigation in the Gulf was traditionally in the hands of the inhabi-
tants of the region. From the beginning of the sixteenth century, Euro-
pean powers began to show interest in the area, which lay along one of
the trading routes with India. Thus the Portuguese took control of Hor-
muz, on the strait of the same name, where the Gulf meets the Indian
Ocean. Portugal’s virtual monopoly of trade was not challenged until the
beginning of the seventeenth century. Great Britain was then anxious to
consolidate its presence in the Gulf to protect the growing commercial
interests of the East India Company.

38. Between 1797 and 1819 Great Britain despatched numerous puni-
tive expeditions in response to acts of plunder and piracy by Arab tribes
led by the Qawasim against British and local ships. In 1819, Great Britain
took control of Ras al Khaimah, headquarters of the Qawasim, and
signed separate agreements with the various sheikhs of the region. These
sheikhs undertook to enter into a General Treaty of Peace. Such a treaty
was in fact signed in January 1820 by the British Government. the
Sheikhs of Ras al Khaimah, of Jourat al Kamra, of Abu Dhabi and of
Zyah; in the following weeks, it was also signed by the Sheikh of Dubai,
the Chief of Sharjah, the Sheikhs of Bahrain, the Chief of Ajman and the
Chief of Umm al Qaywayn. By this Treaty, these sheikhs and chiefs
undertook on behalf of themselves and their subjects inter alia to abstain
for the future from plunder and piracy. Piracy nonetheless persisted, and
in 1835 a maritime truce was concluded, on the initiative of the British,
by the heads of what then became known as the “Trucial Sheikhdoms”.
This truce was renewed on a yearly basis until the signature on 24 August
1853 of a Treaty of Maritime Peace in Perpetuity, compliance being
guaranteed by Great Britain, by force if necessary. The need to establish
peace at sea and to protect its interests, drew Great Britain into interven-
ing in tribal disputes, though such intervention did not establish any Brit-
ish sovereignty or suzerainty over the various sheikhdoms or territories in
the area. It was only towards the end of the nineteenth century that Great
Britain would adopt a general policy of protection in the Gulf, conclud-
ing “exclusive agreements” with most sheikhdoms, including those of
Bahrain, Abu Dhabi, Sharjah and Dubai. Representation of British
interests in the region was entrusted to a British Political Resident in
the Gulf, installed in Bushire (Persia), to whom British Political Agents
were subsequently subordinated in various sheikhdoms with which Great
Britain had concluded agreements.
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 55

39. On 31 May 1861 the British Government signed a ‘Perpetual
treaty of peace and friendship” with Sheikh Mahomed bin Khalifah,
referred to in the treaty as independent Ruler of Bahrain. Under this
treaty, Bahrain undertook inter alia to refrain from all maritime aggres-
sion of every description, while Great Britain undertook to provide
Bahrain with the necessary support in the maintenance of security of
its possessions against aggression. There was no provision in this treaty
defining the extent of these possessions.

40. Following hostilities on the Qatar peninsula, the towns of Doha
and Wakrah were destroyed in 1867 by the combined forces of the
Sheikhs of Bahrain and Abu Dhabi. This action led the British Political
Resident in the Gulf to intervene. He approached Sheikh Ali bin Khali-
fah, Chief of Bahrain, and Sheikh Mohamed Al-Thani, Chief of Qatar,
and, on 6 and 12 September 1868 respectively, occasioned each to sign an
agreement with Great Britain. By these agreements, the Chief of Bahrain
recognized inter ali that certain acts of piracy had been committed by
Mahomed bin Khalifah, his predecessor, and, “[i]n view of preserving the
peace at sea, and precluding the occurrence of further disturbance and in
order to keep the Political Resident informed of what happens”, he
promised to appoint an agent with the Political Resident: for his part, the
Chief of Qatar undertook inter alia to return to and reside peacefully in
Doha. not to put to sea with hostile intention, and, in the event of dis-
putes or misunderstanding arising, invariably to refer to the Political
Resident. On 13 September 1868, again through the mediation of the
British Political Resident, tribal chiefs “residing in the province of Qatar”
solemnly agreed to pay to Sheikh Ali bin Khalifah, Chief of Bahrain, the
annual sums previously paid by them to the Chiefs of Bahrain; these
sums were paid to Mohamed Al-Thani of Doha, who was in turn to
transmit them together with his own contribution to the Political Resi-
dent for delivery of the total to the agent of the Chief of Bahrain.

41. According to Bahrain, the “events of 1867-1868” demonstrate that
Qatar was not independent from Bahrain; the British Political Resident
is said rather to have “extracted unilateral personal undertakings from
the Rulers of Bahrain and Abu Dhabi, as well as from Muhammed bin
Thani, chief of the Doha confederation, not to engage in naval military
activities”, Furthermore, the formalization of the taxes payable by the
dependent tribes of the Qatar peninsula to the Ruler of Bahrain, in the
manner provided for by the Agreement of 13 September 1868 between
the Sheikhs of Qatar and the Sheikh of Bahrain, confirmed the latter as
the sovereign authority on the peninsula; Sheikh Al-Thani of Doha had
thus acknowledged the continuing authority of the Rulers of Bahrain and
their right to claim taxes from him. In Bahrain’s view, until 1916. there
was thus no State of Qatar possessing attributes of sovereignty over the
whole of the peninsula of Qatar.
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 56

42. According to Qatar, on the contrary, the 1868 Agreements for-
mally recognized for the first time the separate identity of Qatar. They
treated the Ruler of Bahrain and the Ruler of Qatar as equals and also
confirmed that the British recognized that the authority of the Sheikh of
Bahrain did not extend to the territory of Qatar. The British Government
considered that the undertaking of 13 September 1868, providing for the
payment of tribute to the Ruler of Bahrain by Mohamed Al-Thani on
behalf of the chiefs of Qatari tribes, in no way affected the independence
of Qatar vis-a-vis Bahrain; that payment was to be considered as a fixed
contribution by Qatar to sums to be paid by both Qatar and Bahrain to
the “Wahhabis”, in order to secure their frontiers against the latter, more
particularly during the pearl-diving season. The tribute was in any event
only paid for two years and was discontinued “when the Turks estab-
lished themselves in Bida” (which is part of present-day Doha).

43. While Great Britain had become the dominant maritime Power in
the Gulf by this time. the Ottoman Empire, for its part, had re-estab-
lished its authority over extensive areas of the land on the southern side
of the Gulf. At the beginning of the 1870s, the Ottomans installed a gar-
rison in Bida and made Qatar an administrative division of their empire.
They accorded their protection to Sheikh Mohamed Al-Thani, who was
designated Aaimakam of the kaza of Qatar. They remained for more than
40 years on the Qatar peninsula.

44. In the years following the arrival of the Ottomans on the Qatar
peninsula, Great Britain increased its influence over Bahrain. By an
agreement of 22 December 1880 with Lieutenant-Colonel Ross, British
Political Resident in the Gulf, Sheikh Isa bin Ali al Khalifah, Chief of
Bahrain, bound himself and his successors to abstain from entering into
any negotiations, or making treaties of any sort, or establishing diplo-
matic or consular agencies, with any third government without the con-
sent of the British. The special ties thus established culminated in the
conclusion of the Exclusive Protection Agreement of 13 March 1892
between Sheikh Isa bin Ali, Chief of Bahrain, and Lieutenant-Colonel
Talbot, British Political Resident in the Gulf. Under this agreement the
Chief of Bahrain undertook inter alia that neither he nor his heirs and
successors would enter into any agreement or correspondence “with any
Power other than the British Government”. He undertook further that he
would not permit, without the assent of the British Government, the resi-
dence within Bahrain of the agent of any other Government and that he
would not cede, sell, mortgage or otherwise give for occupation any part
of his territory save to the British Government.

45. Subsequently, Great Britain and the Ottoman Empire, desiring to
settle certain questions relating to their respective interests in the Gulf
and in the surrounding territories, as well as to preclude all possible

20
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 57

causes of misunderstanding with respect to those questions, opened treaty
negotiations. On 29 July 1913, the Anglo-Ottoman “Convention relating
to the Persian Gulf and surrounding territories” was signed, but it was
never ratified. Section II of this Convention dealt with Qatar. Article 11
described the course of the line which, according to the agreement
between the parties, was to separate the Ottoman Sanjak of Nejd from
the “peninsula of al-Qatar” (see paragraph 87 below).

46. Qatar contends that the non-ratification of this Convention was
largely attributable to the outbreak of the First World War. Qatar
further points out that the Ottomans and the British had also signed, on
9 March 1914, a treaty concerning the frontiers of Aden, which was
ratified that same year and whose Article II] provided that the line sep-
arating Qatar from the Sunjak of Nejd would be “in accordance with
Article 11 of the Anglo-Ottoman Convention of 29 July 1913 relating to
the Persian Gulf and the surrounding territories”.

47. For its part, Bahrain contends that “[t]he 1913 Convention was
not ratified because the complex set of interdependent proposals . . . ulti-
mately fell apart”: the “Wahhabis”, under Ibn Saud, had expelled the
Ottomans from Hasa on the eastern coast of Arabia, and the Al-Thani
had rapidly lost their control over Doha, while the Ruler of Bahrain had
remained in possession, inter alia, of the northern part of the Qatar
peninsula. Bahrain also observes that the text of the 1913 treaty and that
of the 1914 treaty do not coincide.

48. After the conclusion of the 1913 Convention, the Ottomans
maintained their garrison at Doha, of which the last personnel left
only following the arrival of a British warship on 19 August 1915.
Negotiations subsequently ensued between Great Britain and Sheikh
Al-Thani regarding an exclusive agreement, comparable to those
concluded with the other Arab Sheikhs. These negotiations resulted
in the signature, on 3 November 1916, of a treaty between Great
Britain and the Sheikh of Qatar. Under this treaty, whose preamble
referred to the undertakings by the grandfather of Sheikh Al-Thani
under the Anglo-Qatari Agreement of 12 September 1868, the Sheikh
of Qatar bound himself inter alia not to “have relations nor correspond
with, nor receive the agent of, any other Power without the consent
of the High British Government”; nor, without such consent, to cede
to any other Power or its subjects, land either on lease, sale, transfer,
gift, or in any other way whatsoever; nor, without such consent, to
grant any monopolies or concessions. In return, the British Govern-
ment undertook to protect the Sheikh of Qatar and his subjects and terri-
tory from all aggression by sea and to do its utmost to exact repara-
tion for all injuries that the Sheikh of Qatar or his subjects might
suffer “when proceeding to sea upon [their] lawful occasions”. The
British Government also undertook to grant its “good offices” should the
Sheikh or his subjects be assailed by land within the territories of Qatar.

21
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 58

There was no provision in this treaty defining the extent of those
territories.

49. The first petroleum concession between the Ruler of Bahrain and
Eastern and General Syndicate Ltd. was concluded on 2 December 1925.
Under the terms of that agreement, the Ruler of Bahrain granted the
company an exclusive exploration licence for a period not exceeding two
years (with the possibility of extension for a further period of two years)
“throughout the whole of the territories under his control”. The Ruler of
Bahrain also undertook to grant Eastern and General Syndicate Ltd.,
either during the duration of the exploration licence or upon its expiry, a
prospecting licence over areas to be selected by the company with the
approval of the Ruler and with the cognizance of the British Political
Resident in the Gulf. In addition, the Ruler undertook to grant to the
company, on the expiry of the prospecting licence, a “mining lease over
an aggregate area not exceeding 100,000 acres”, divided into blocks to be
selected by the company. Beginning in 1928, negotiations were conducted
between Eastern and General Syndicate Ltd., its successor the Bahrain
Petroleum Company Ltd. (which, in 1930, took over the 1925 concession)
and the Ruler of Bahrain for a concession over the “additional” or “un-
allotted” area. that is, that portion of the Bahrain islands and territorial
waters remaining after the company had chosen its 100,000 acres.

50. In March 1934 discussions were held between the British Political
Resident and the Ruler of Qatar regarding the grant of an oil concession
by the latter. On 11 May 1935, the British Political Resident in the Gulf
wrote to the Ruler of Qatar concerning the protection which Great Brit-
ain was prepared to extend to him on land. In return for this protection,
the Ruler of Qatar was asked to grant a petroleum concession to the Brit-
ish company Anglo-Persian Oil Company. Such a concession was granted
on 17 May 1935. The second article of the Agreement stated that the
company could operate in any part of the State of Qatar, 1.e., “the whole
area over which the Shaikh [of Qatar] rules and which is marked on the
north of the line drawn on the map attached” to the Agreement, which
line separated the peninsula of Qatar from the Kingdom of Saudi Arabia.

51. The negotiations conducted between 1928 and 1933 between the
Ruler of Bahrain and the concessionaires for a concession in the addi-
tional area in Bahraini territory were intended to identify the acreage of
land and territorial waters which would be included in that concession in
the unallotted area: they were suspended in 1933 at the request of the
Bahrain Petroleum Company Ltd. and were not resumed until 1936,
when Petroleum Concessions Ltd., which had taken over the concession
granted by Qatar to the Anglo-Persian Oil Company, joined in the
bidding.

52. In a letter dated 28 April 1936, Charles Belgrave, Adviser to the
Government of Bahrain, referring to the negotiations then in progress for

22
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 59

the grant of an oil concession over the territory of Bahrain, informed the
British Political Agent that “the Hawar group of islands lying between
the southern extremity of Bahrain Island and the coast of Qatar [was]
indisputably part of the State of Bahrain”.

53. On 29 April 1936 the representative of Petroleum Concessions Ltd.
wrote to the British India Office, which had responsibility for relations
with the protected States in the Gulf, drawing its attention to the Qatar
oil concession of 17 May 1935 and observing that the Ruler of Bahrain,
in his negotiations with Petroleum Concessions Ltd. over the unallotted
area, had laid claim to Hawar; he accordingly enquired to which of the
two Sheikhdoms (Bahrain or Qatar) Hawar belonged.

54. In a letter dated 6 May 1936, addressed to the British Political
Resident in the Gulf, the Political Agent in Bahrain supported Bahrain’s
claim to Hawar. On 25 May 1936, the Political Resident wrote to the Sec-
retary of State for India in London that he was inclined to the view that
Hawar should be regarded as belonging to the Sheikh of Bahrain and
that the burden of disproving his claim should lie on the Sheikh of Qatar.
On 10 July 1936 two India Office officials informed Bahrain, through
Charles Belgrave, that on the evidence then available to the British Gov-
ernment Hawar appeared to belong to the Sheikh of Bahrain and that
any potential claimant would therefore have the burden of disproving the
Bahrain claim. On 14 July 1936, Petroleum Concessions Ltd. was
informed by the India Office that it appeared to the British Government
that Hawar belonged to the Sheikh of Bahrain. The content of those
communications was not conveyed to the Sheikh of Qatar.

55. In 1937, Qatar attempted to impose taxation on the Naim inhab-
iting the Zubarah region; Bahrain opposed this as it claimed rights over
this region. Relations between Qatar and Bahrain deteriorated. Negotia-
tions started between the two States in spring of 1937 and were broken
off in July of that year. According to Bahrain Qatar illegally took Zuba-
rah by force and illegally destroyed the community of the Bahraini sub-
jects living there. Qatar contends that the steps taken by its Ruler in 1937
were only designed to exercise his authority by force on his own territory
over certain members of the Naim tribe, and to put an end to their
smuggling and other unlawful activities.

56. Qatar alleges that Bahrain clandestinely and illegally occupied the
Hawar Islands in 1937. Bahrain maintains that its Ruler was simply per-
forming legitimate acts of continuing administration in his own territory.

57. By a letter dated 10 May 1938, the Ruler of Qatar protested to the
British Government against what he called “the irregular action taken by
Bahrain against Qatar”, to which he had already referred in February
1938 in a conversation which took place in Doha with the British Politi-
cal Agent in Bahrain. On 20 May 1938, the latter wrote to the Ruler of

23
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 60

Qatar, inviting him to state his case on Hawar at the earliest possible
moment. The Ruler of Qatar responded by a letter dated 27 May 1938.
Some months later, on 3 January 1939, Bahrain submitted a counter-
claim dated 22 December 1938. In a letter of 30 March 1939, the Ruler of
Qatar presented his comments on Bahrain’s counter-claim to the British
Political Agent in Bahrain. The Rulers of Qatar and Bahrain were
informed on 11 July 1939 that the British Government had decided that
the Hawar Islands belonged to Bahrain.

58. Qatar points to no less than five protests it claims to have made,
on 4 August 1939, 18 November 1939, 7 June 1940, 13 July 1946 and
21 February 1948, against this decision and the “unlawful occupation” of
the Hawar Islands by Bahrain. The latter claims that Qatar protested
only three times between 1939 and 1965 against the British decision of
1939, in July 1946, February 1948 and April 1965.

Bahrain also states that it made, from 1937 until the mid-1960s,
numerous officially recorded claims to Great Britain and Qatar in rela-
tion to the Zubarah region.

59. On 24 June 1944, the British Political Agent, acting as mediator in
order to resolve the dispute over Zubarah, succeeded in getting the two
parties to sign an agreement providing as follows:

“The Ruler of Bahrain and Ruler of Qatar agree to the restoration
of friendly relations between them as they were in the past. The
Ruler of Qatar undertakes that Zubara will remain without anything
being done in it which did not exist in the past. This is from consid-
eration and reverence to Al Khalifah. The Ruler of Bahrain, also, on
his part undertakes not to do anything that might harm the interest
of the Ruler of Qatar. This agreement does not affect the agreement
with the Oil Company operating in Qatar whose rights are pro-
tected.”

60. According to Bahrain, the weakness of this agreement lay in its use
of the concept of the status quo ante; as the basic goal of both parties was
to achieve recognition of their sovereignty over the Zubarah region, each
interpreted the agreement in the way that best suited it.

61. In May 1946, the Bahrain Petroleum Company Ltd. sought per-
mission to drill in certain areas of the continental shelf, some of which
the British considered might belong to Qatar. The British Government
decided that this permission could not be granted until there had been a
division of the sea-bed between Bahrain and Qatar. It studied the matter
and, on 23 December 1947, the British Political Agent in Bahrain sent the
Rulers of Qatar and Bahrain two letters, in the same terms, stating inter
alia the following:

“2. I am, therefore, to forward herewith for Your Excellency’s
information a copy of a map showing the line (from point ‘M’ to the
‘Bahrain Light Vessel’) which, His Majesty's Government considers,

24
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 61

divides in accordance with equitable principles the sea-bed aforesaid.
This is a median line based generally on the configuration of the
coast-line of the Bahrain main island and the peninsula of Qatar.

3. With the exceptions noted below His Majesty’s Government
will, in future, regard all the sea-bed lying to the west of this line as
being under the sovereignty of [the Sheikh of Bahrain] and all the
sea-bed lying to the east of it as being under the sovereignty of [the
Sheikh of Qatar]. This decision covers the sea-bed only and not the
waters above it and is without prejudice to existing navigation
rights.

4. The exceptions referred to above are:

His Highness the Shaikh of Bahrain is recognised as having
sovereign rights in

(1) the areas of the Dibal and Jaradeh shoals which are above the
spring tide low-water level. After a full examination of the
position under international law, His Majesty's Government
are of opinion that these shoals should not be considered to
be islands having territorial waters.

(i) Hawar Island, the islands of the Hawar group and the terri-
torial waters pertaining thereto and delimited again in accord-
ance with the usual principles of international law. These
islands and their territorial waters are shown on the map
enclosed by the line A, B, C, D, E, F, G, H, 1, J, K, and L. As
this delimitation will, however, leave a narrow tongue of
water (formed by the points M, J, and 1) pertaining to Qatar
it has been decided to alter the line H, I, J, to H, P, Q, thus
exchanging an equal area PI O for OJ Q. It should be noted
that Janan Island is not regarded as being included in the
islands of the Hawar group.

5. The points mentioned are defined as follows:

Position True Nautical From
Bearing Miles
A 015° 3.00 N. point of Rabadh I.
B 0561/2° = 3.20 N.E. corner of Ajaira I.
C 064° 2.06 E. corner of No. 3 Al Wakara
D 058° 1.14 TOO?
E 163'4° 1.23 “oe
F 141° 0.81 No. 9 Bu Sa’ada I.
G 168° 1.20 TT
H 1591/2° 0,30 S.E. corner of Hawar I.
I 298%/4° 7.31 “
J 241° 4.77 W. corner of Al Ma‘’tarad I.
K 291° 2.36 OT
L 324129 3.38 see

25
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 62

62. In 1950. the Ruler of Bahrain and the Ruler of Qatar reached
another agreement on the status of Zubarah thanks to mediation by the
British Political Agent in Bahrain; in a letter dated 7 February 1950 to
the Foreign Office, the British Political Resident in the Gulf described
that agreement in the following terms:

“(T]he Ruler of Qatar has agreed that the Shaikh of Bahrain may
send his followers and tribesmen to Zubarah for grazing without any
passport or customs formalities and also to leave the fort vacant
provided in return the Shaikh of Bahrain will allow goods for Qatar
the same privileges in respect to the payment of transit duties as
goods for Saudi Arabia. Shaikh Salman has accepted this and is
making arrangements to send from 150 to 200 of his people to Zuba-
rah with the necessary rations to support them.”

63. That agreement did not put an end to the dispute. On 5 May 1954.
the British Government proposed another agreement, but the parties
rejected it.

64. In 1964. the British Political Agent in Qatar forwarded to the
Qatari authorities a request for modification of the 1947 line that Bahrain
had sent to the British Government in the form of a memorandum claim-
ing inter alia that Fasht ad Dibal and Qit’at Jaradah were islands with
territorial waters and that they belonged to Bahrain. In response. on
21 April 1965 Qatar sent the British Government a memorandum in
which it denied Bahrain’s claims and recommended arbitration to settle
the disputes between the two States. No progress was achieved in settling
these disputes in the following years.

65. In 1971 Qatar and Bahrain ceased to be British protected States,
following an Exchange of Notes between the United Kingdom of Great
Britain and Northern Ireland and Bahrain on 15 August 1971, and an
Exchange of Notes between the United Kingdom of Great Britain and
Northern Ireland and Qatar on 3 September 1971. On 21 September
1971, Qatar and Bahrain were both admitted to the United Nations.

66. Beginning in 1976, mediation, also referred to as “good offices”,
was conducted by the King of Saudi Arabia with the agreement of the
Amirs of Bahrain and Qatar. The first consequence of that mediation was
that a set of “Principles for the Framework for Reaching a Settlement”
was approved during a tripartite meeting in March 1983. As a result of
the persistence of the dispute over the following years. the King of Saudi
Arabia sent the Amirs of Qatar and Bahrain letters in identical terms
dated 19 December 1987, in which he put forward new proposals. Those
proposals were accepted by letters from the two Heads of State, dated
respectively 21 and 26 December 1987. In addition, on 21 December 1987
an announcement was issued by Saudi Arabia, the terms of which were

26
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 63

approved by the two Parties. That announcement stated that Bahrain
and Qatar accepted “that the matter be submitted for arbitration, in pur-
suance of the principles of the framework for settlement which had been
agreed by the two sisterly States, particularly the ‘fifth principle’” as
adopted in 1983, the text of which was quoted. It went on to state that
“under the five principles” it had been agreed to establish a Tripartite
Committee, whose task was described in the same terms as in the
Exchange of Letters of December 1987.

67. That Tripartite Committee held a preliminary meeting in Riyadh
in December 1987. Qatar then presented a draft of a joint letter to the
International Court of Justice which expressly contemplated, inter alia,
the drafting of a special agreement. Bahrain proposed an agreement of a
procedural character, relating to the organization and functioning of the
Committee. The Committee held its first formal meeting on 17 January
1988. Bahrain then filed a revised version of its draft stating expressly
that the Committee was formed with the aim of reaching a special agree-
ment. After a discussion, it was agreed that each of the Parties would
present a draft special agreement. Several texts were subsequently pre-
sented to the Committee by Qatar and Bahrain, but no agreement could
be reached in the course of the first four meetings. Then, on 26 October
1988, following an initiative by Saudi Arabia, the Heir Apparent of Bah-
rain, when on a visit to Qatar, transmitted to the Heir Apparent of Qatar
a text subsequently known as the “Bahraini formula”, which reads as
follows:

“The Parties request the Court to decide any matter of territorial
right or other title or interest which may be a matter of difference
between them; and to draw a single maritime boundary between
their respective maritime areas of seabed, subsoil and superjacent
waters.”

68. During the fifth meeting of the Committee on 15 November 1988,
the representative of Saudi Arabia appealed to the Parties to come to an
agreement and pointed out that the date of the beginning of the Co-
operation Council of Arab States of the Gulf summit in December 1988
would be the date for terminating the Committee’s mission whether or
not it had succeeded in achieving what had been requested from it. The
Committee held its sixth meeting on 6-7 December 1988 but was unable
to complete its work for lack of agreement between the Parties. With this
sixth meeting. the Saudi mediator considered that the mission of the Tri-
partite Committee would come to an end, and in fact no further meetings
of the Committee were held.

69. The matter was again the subject of discussion two years later, on
the occasion of the annual meeting of the Co-operation Council of Arab
States of the Gulf at Doha in December 1990. Qatar then let it be known
that it was ready to accept the Bahraini formula. Following that meeting,
the Foreign Ministers of Qatar, Bahrain and Saudi Arabia signed Min-
utes recording that “Within the framework of the good offices of . . .

27
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 64

King Fahd Ben Abdul Aziz”, consultations concerning the existing dis-
pute between Qatar and Bahrain had taken place between the Foreign
Ministers of those two States in the presence of the Foreign Minister of
Saudi Arabia. Those Minutes, the text of which was in Arabic and whose
English translations supplied by the Parties differ on certain points, pro-
vided inter alia that King Fahd could continue his good offices until May
1991. The good offices of King Fahd did not lead to the desired outcome
within the time-limit thus fixed, and on 8 July 1991 Qatar instituted pro-
ceedings before the Court against Bahrain (see paragraphs 1 ef seg.
above).

« *

70. The first of the territorial questions before the Court is that of sov-
ereignty over Zubarah, which is situated in the north-western part of the
Qatar peninsula (see sketch-map No. 3, p. 105 below).

71. The “Act to comply with paragraphs (3) and (4) of operative para-
graph 41 of the Judgment of the Court dated 1 July 1994”, presented by
Qatar on 30 November 1994, included Zubarah as number 4 of the sub-
jects falling within the jurisdiction of the Court by virtue of the interna-
tional agreements of December 1987 and 25 December 1990. In the same
“Act”, Qatar explained that it understood that “Bahrain defines its claim
concerning Zubarah as a claim of sovereignty”. Accordingly, in its final
submissions, which repeat its earlier submissions, Qatar requests the
Court, rejecting all contrary claims and submissions, to declare and
adjudge in accordance with international law “that the State of Bahrain
has no sovereignty over Zubarah” (see paragraphs 33 and 34 above.)

72. Bahrain maintains the opposite position. In its final submissions,
which repeat its earlier submissions, it requests the Court, rejecting all
contrary claims and submissions, to adjudge and declare that “Bahrain ts
sovereign over Zubarah” (see paragraphs 33 and 34 above).

73. In support of its claim Bahrain argues generally

“that from 1783 until 1937. it had full and internationally recognised
title to the region, both by reference to the international standard of
contextually proportionate effective occupation and by reference to
the regional standard of the fealty of the inhabitants of Zubarah to
the Ruler of Bahrain”.

74. Bahrain states that in the 1760s the Al-Khalifah came from present-
day Kuwait and established themselves in Zubarah, which quickly flour-
ished, rich in trade and pearl fishing; and that, some decades later, the
Al-Khalifah moved their seat of government to the islands of Bahrain.
According to Bahrain, the Al-Khalifah Sheikhs resided in the islands of
Bahrain during summers and in Zubarah during winters; towards the end
of the eighteenth century, they decided to establish their court on the

28
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 65

main island of Bahrain and subsequently on al-Muharraq, and they
appointed a governor to rule the province of Zubarah. The town of
Zubarah then entered into decline; it was destroyed in 1878 by the Al-
Thani and was entirely vacated in 1895 following a military intervention
by the British. The area nevertheless remained under the Sheikh of Bah-
rain’s authority through a tribal confederation led by the Naim, adher-
ents of the Al-Khalifah of Bahrain. Great Britain had furthermore always
considered that Bahrain had rights to sovereignty in Zubarah.

75. Bahrain also states that in 1937 Sheikh Abdullah of Doha tried to
impose taxation on the Naim who complained about this to Sheikh
Hamad of Bahrain; that a series of unsuccessful negotiations took place
between Bahrain and Qatar; and that, on 7 July 1937, “the Al-Thani and
their adherents forcibly evicted from Zubarah the Naim tribesmen loyal
to Bahrain who represented the continuing authority in Zubarah of the
Rulers of Bahrain”.

76. Bahrain maintains that Qatar’s “aggression” against Zubarah was
an unlawful use of force from which no legal rights could arise, support-
ing its contention by reference to various international instruments from
the relevant period dealing with the illegal use of force. Therefore,
according to Bahrain, even if Qatar has physically controlled Zubarah
from 1937 up to the present day, such factual occupation did not give rise
to a valid title of sovereignty over Zubarah.

77. Qatar claims that a town existed in the area of Zubarah well before
two sections of the Al-Utub tribe — the Bin Khalifah and the AI-
Jalahma — left present-day Kuwait for Bahrain and thence for Zubarah.
In Zubarah, the local sheikhs laid down a condition for their settlement:
payment of the usual taxes in exchange for the right to trade in the area.
The Al-Utub refused this condition and in 1768 built the fort known as
Murair at some distance outside the outer wall of Zubarah. According to
Qatar, the Al-Utub left Murair in 1783 to settle in Bahrain. The town of
Zubarah was destroyed in 1878 after Sheikh Jassim bin Thani of Qatar
had taken steps to punish acts of piracy and attacks on other tribes by
its inhabitants. Qatar denies that the Bin Khalifah continued to rule
Zubarah during the nineteenth and early twentieth centuries through
members of the Naim.

78. Qatar supports its position by recalling that in 1867 Sheikh
Mohamed bin Khalifah of Bahrain launched an attack on Qatar, directed
at Wakrah and Bida, totally destroying them; that in retaliation the
Qataris, led by Mohamed bin Thani, sailed in June 1868 for Bahrain with
an armed force; that Sheikh Mohamed bin Khalifah attacked the Qataris.
who suffered heavy casualties in the engagement; that the British consid-
ered Sheikh Mohamed bin Khalifah’s attack on Qatar as a violation of
the agreement which they had concluded in 1861 with the Ruler of Bah-
rain; that the affair was settled by the agreement of 6 September 1868

29
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 66

between Great Britain and the new Ruler of Bahrain whereby the latter
acknowledged the illegality of the actions of his predecessor and assumed
the obligation not to repeat them in the future, thus accepting, contrary
to what Bahrain now contends (see paragraph 41 above), that it had no
rights of sovereignty over the Qatar peninsula, or over Zubarah in
particular.

79. Bahrain contests the foregoing line of argument and recalls that,
although Great Britain punished Bahrain in 1868 for violating the mari-
time peace of the 1861 Treaty, it also punished the Doha confederation
for its rebellion, and sent Sheikh Mohamed Al-Thani back to the east
coast of the peninsula.

80. According to Qatar, Great Britain has always recognized Qatar's
title to Zubarah. Thus it maintains that, even though it was not ratified,
the Anglo-Ottoman Convention of 29 July 1913 accurately reflected the
common view of the Ottoman Imperial Government and the British
Government “as to the territorial situation at the time and the status of
the Al-Thani Rulers as having governed in the past and as still governing,
the entire Peninsula”; and that the sovereignty of Qatar over the whole
peninsula was also recognized by the Anglo-Ottoman Treaty of 9 March
1914, which was duly ratified, and by the Treaty of 3 November 1916
between the British Government and Sheikh Abdullah bin Jassim Al-
Thani. Sheikh of Qatar.

81. Qatar adds that in the 1930s its main concern in Zubarah was to
protect the security of its borders and to control imports through the
imposition of customs duties; that to this end the Ruler of Qatar took
steps to impose controls against various dissenting members of one sec-
tion of the Al-Naim tribe, led by Rashid bin Jabor: that Rashid bin
Jabor’s actions were being controlled at least in part by Bahrain to obtain
evidence of alleged Bahraini rights over Zubarah; that, this being an
internal matter, in 1937 Qatar imposed by force its authority upon a ter-
ritory under its sovereignty; and that its rights of sovereignty over Zuba-
rah were recognized again by the British when they refused to provide
assistance to Bahrain in 1937, notwithstanding the formal request made
by the Sheikh of Bahrain to the British Political Agent. According to
Qatar, no official acts have been performed by Bahrain in Zubarah since
1868, while Qatar has carried out many acts of sovereign authority there.
Whatever rights the Ruler of Bahrain may have asserted in Zubarah, they
were in any event personal rights and not rights of sovereignty.

2

82. The Court notes that both Parties agree that the Al-Khalifah occu-
pied Zubarah in the 1760s and that, some years later, they settled in Bah-

30
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 67

rain, but that they disagree as to the legal situation which prevailed there-
after and which culminated in the events of 1937. Bahrain maintains that
it continued to rule Zubarah through members of a Naim-led tribal con-
federation, while Qatar denies this.

83. In the opening paragraph of the agreement of 6 September 1868
concluded between Ali Bin Khalifah and the British Political Resident in
the Gulf (see paragraph 40 above). the parties acknowledged that
Mohamed bin Khalifah had “repeatedly committed acts of piracy and
other irregularities at sea” and that after “his recent piratical act” he had
fled from Bahrain. In consequence, Ali Bin Khalifah accepted the follow-
ing conditions: (1) to deliver immediately to the British all “war buglas
and buteels belonging to Mahomed bin Khalifeh and [himiself”:; (2) to
pay the sums indicated in paragraph 2 of the agreement; (3) “to consider
Mahomed bin Khalifeh as permanently excluded from all participation
in the affairs of Bahrain and as having no claim to that territory”: and
(4) to appoint an agent in Bushire in order to keep the British Resident
informed, “in view of preserving the peace at sea, and precluding the
occurrence of further disturbance”.

84. In the Court’s view, the terms of the 1868 Agreement show that
any attempt by Bahrain to pursue its claims to Zubarah through military
action at sea would not be tolerated by the British. The Court finds that
thereafter, the new rulers of Bahrain were never in a position to engage in
direct acts of authority in Zubarah. Moreover, in 1895, only an armed
intervention by the British stopped the Al-Thani and the Ottomans from
attempting to invade Bahrain from Zubarah.

85. Bahrain maintains, however, that the Al-Khalifah continued to
exercise control over Zubarah through a Naim-led tribal confederation
loyal to them, notwithstanding that at the end of the eighteenth century
they had moved the seat of their government to the islands of Bahrain.

86. The Court cannot accept this contention. While there may have
been, at different times, ties of personal allegiance between some mem-
bers of the Naim and the Ruler of Bahrain. there is also evidence that
some members of the Naim served both the Al-Khalifah and the Al-
Thani. In any event, there is no evidence that members of the Naim exer-
cised sovereign authority on behalf of the Sheikh of Bahrain within
Zubarah. Indeed, they came under the jurisdiction of the local territorial
sovereign, which was not Bahrain and had not been Bahrain at least since
the events of 1868.

87. In view of the role played by Great Britain and the Ottoman
Empire in the region in that period, it is significant to note Article 11 of
the Anglo-Ottoman Convention signed on 29 July 1913 (see para-
graph 45 above). This article described the course of the line agreed to
separate the Sanjak of Nejd “from the peninsula of Al-Qatar”. and then
went on to state:

31
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 68

“The Imperial Ottoman Government having renounced all its
claims to the peninsula of al-Qatar, it is agreed between the two
Governments that the said peninsula will, as in the past, be governed
by the Sheikh Jasim-bin-Sani and his successors. The Government
of His Britannic Majesty declares that it will not permit the Sheikh
of Bahrain to interfere in the internal affairs of Qatar, to violate the
autonomy of that country or to annex it.”

88. Both Parties agree that the 1913 Anglo-Ottoman Convention was
never ratified (see paragraphs 46 and 47 above): they differ on the other
hand as to its value as evidence of Qatar’s sovereignty over the peninsula.

89. The Court observes that signed but unratified treaties may consti-
tute an accurate expression of the understanding of the parties at the time
of signature. In the circumstances of this case the Court has come to the
conclusion that the Anglo-Ottoman Convention does represent evidence
of the views of Great Britain and the Ottoman Empire as to the factual
extent of the authority of the Al-Thani Ruler in Qatar up to 1913.

90. The text of Article 11 of the Anglo-Ottoman Convention is clear:
“it is agreed between the two Governments that the said peninsula will,
as in the past, be governed by the Sheikh Jasim-bin-Sani and his succes-
sors”. Thus Great Britain and the Ottoman Empire did not recognize
Bahrain’s sovereignty over the peninsula, including Zubarah. In their
opinion the whole Qatar peninsula would continue to be governed by
Sheikh Jassim Al-Thani, who had formerly been nominated kaimakum
by the Ottomans, and by his successors.

91. The Court also observes that Article 11 of the 1913 Convention is
referred to by Article III of the Anglo-Ottoman treaty of 9 March 1914,
duly ratified that same year (see paragraph 46 above). That Article II
defined the boundary of the Ottoman territories by reference to “the
direct. straight line in a southerly direction . . . separating the Ottoman
territory of the sanjuk of Nejd from the territory of Al-Qatar, in accord-
ance with Article 11 of the Anglo-Ottoman Convention of 29 July 1913
relating to the Persian Gulf and the surrounding territories”. The parties
therefore did not contemplate any authority over the peninsula other
than that of Qatar.

92. The Court will now examine certain events which took place in
Zubarah in 1937, after the Sheikh of Qatar had tried to impose taxation
on the Naim (see paragraph 55 above). The British Political Agent in
Bahrain, in a letter of 3 May 1937, reported those incidents to the British
Political Resident in the Gulf. On 5 May 1937, the Political Resident
reported in turn on those incidents to the Secretary of State for India,
recalling that “until 1868 Bahrain held part of Qatar, including Zubarah,
and from then until 1871 the Qatar Shaikhs, headed by the Al Thani,
acknowledged the suzerainty of Bahrain by being prepared to pay trib-
ute”. He added, however. that “[slince about that date i.e. 1871 the Al
Thani (the present ruling family of Qatar) have held Qatar, including

32
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 69

Zubarah”, and that “[a]s far back as 1873 .. . the Government of India
expressed their concurrence in the view that the Shaikh of Bahrain had
no clear or important rights in Qatar”, which had been conveyed to the
Ruler of Bahrain in a letter dated 31 May 1875. The Political Resident
stated that he was “[pJersonally, therefore, . . . of the opinion that juridi-
cally the Bahrain claim to Zubarah must fail”.

93. On 1 July 1937, the British Political Agent in Bahrain informed the
British Political Resident that the Adviser to the Government of Bahrain
had informed him that the negotiations between Qatar and Bahrain on
Zubarah had failed and that the Sheikh of Bahrain was requesting that
the Sheikh of Qatar “be restrained from making war on Bahrain subjects
who reside in the Zubarah area which he claims to be his territory”.

94. In a telegram of 4 July 1937 to the Secretary of State for India, the
British Political Resident suggested that he be authorized to reply to the
Sheikh of Bahrain to the effect that, on the evidence before it, the British
Government was of the opinion that Zubarah belonged to the Sheikh of
Qatar and to remind him in this connection of the terms of the letter of
31 May 1875 whereby the British Government had informed the Sheikh
of Bahrain that he should not interfere in the affairs of Zubarah. In a
telegram of 15 July 1937 to the Political Resident, the British Secretary of
State indicated that the Sheikh of Bahrain should be informed that the
British Government regretted that it was “not prepared to intervene
between Sheikh of Qatar and Naim tribe”.

95. In view of the foregoing, the Court cannot accept Bahrain’s con-
tention that Great Britain had always regarded Zubarah as belonging to
Bahrain. The terms of the 1868 agreement between the British Govern-
ment and the Sheikh of Bahrain, of the 1913 and 1914 conventions and
of the letters in 1937 from the British Political Resident to the Secretary
of State for India, and from the Secretary of State to the Political Resi-
dent, all show otherwise. In effect, in 1937 the British Government did
not consider that Bahrain had sovereignty over Zubarah; it is for this
reason that it refused to provide Bahrain with the assistance which
it requested on the basis of the agreements in force between the two
countries.

96. In the period after 1868, the authority of the Sheikh of Qatar over
the territory of Zubarah was gradually consolidated; it was acknow-
ledged in the 1913 Anglo-Ottoman Convention and was definitively
established in 1937. The actions of the Sheikh of Qatar in Zubarah that
year were an exercise of his authority on his territory and, contrary to
what Bahrain has alleged, were not an unlawful use of force against Bah-
rain,

97. For all these reasons, the Court concludes that the first submission
made by Bahrain cannot be upheld, and that Qatar has sovereignty over
Zubarah.

33
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 70

98. The Court will now turn to the question of sovereignty over the
Hawar Islands, leaving aside the question of Janan for the moment.

99. According to Qatar, the Hawar Islands are under its sovereignty
essentially because of the priority to be accorded to its original title as
well as the principle of proximity and territorial unity. Qatar points out
that, in terms of the overall geography of the area, it is clear that the
Hawar Islands have a close connection with its mainland territory and
that each one of these islands is nearer to the latter than to the main
island of Bahrain; not only do the majority of the islands and islets con-
stituting the Hawar Islands lie wholly or partly within a 3-nautical mile
territorial sea-limit from the mainland coast, but all of them lie within the
12-nautical mile territorial sea-limit corresponding to the modern defini-
tion of the territorial sea. The Hawar Islands are accordingly an integral
part of the mainland coast of Qatar, and this is confirmed both by geo-
logy and by geomorphology. In considering the applicability of the prin-
ciple of proximity to the Hawar Islands, account must also be taken of
the particular historical circumstances, and above all of the events of
1867-1868 (see paragraphs 40 and 78-79 above). Following these events,
the British in effect recognized the existence of the separate entity of
Qatar, distinct from Bahrain and separated from it by sea; the purpose of
this recognition of the separate identity of Qatar as an entity distinct
from Bahrain was the maintenance of the maritime peace and thus must
also have been intended to cover not only the coasts of mainland Qatar
but also the immediate offshore islands, in particular the Hawar Islands.

In support of its argument, Qatar further relies on a large number of
nineteenth- and twentieth-century maps from various countries and from
both official and unofficial sources, and in particular the maps annexed
to the “Anglo-Ottoman Convention relating to the Persian Gulf and the
surrounding territories” of 29 July 1913 (Anns. V and V (a)). All these
maps, it claims, confirm that the territory of Qatar encompassed the
entire Qatar peninsula; that the Hawar Islands were regarded as forming
part of that entity; and that Bahrain was consistently depicted as con-
sisting only of a limited group of islands, not including the Hawar
Islands.

100. Bahrain for its part contends that Qatar’s proposition, that proxi-
mity, adjacency or contiguity of a disputed territory to the territory of a
claimant is sufficient to vest title in the latter, was denied in general terms
by the arbitrator Max Huber in the /s/and of Palmas case, who said that:
“[the title of contiguity, understood as a basis of territorial sovereignty,
has no foundation in international law” (United Nations, Reports of
International Arbitral Awards, Vol. I, p. 869). The irrelevance of the fact
of geographical proximity of inhabited islands is also said to have been
demonstrated by the Court in its decision in the Minquiers and Ecrehos
case. Bahrain further contends that it does not require the use of maps to
support its claim, since it has presented sufficient legally relevant facts to
establish its title, and Qatar’s lack of title, to the Hawar Islands. More-

34
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 71

over, since there is no factual support for Qatar’s claim to any significant
status as a “political entity” in the nineteenth century and the earlier part
of the twentieth century, the maps, even if granted a relevance and
quality that they do not possess, cannot deprive Bahrain of the title to
the Hawar Islands that it has had since the eighteenth century, and has
maintained by possession and control ever since.

101. Thus, according to Bahrain, its sovereignty over the Hawar
Islands has been exercised continuously and uninterruptedly over the last
two centuries and has been acknowledged by the inhabitants of the
islands, and Qatar has never exercised any kind of competing authority
over the islands. In support of its argument, Bahrain cites many examples
of the alleged exercise of its authority over the Hawar Islands from both
before and after 1938-1939.

For the period prior to 1938, Bahrain cites in particular: the permis-
sion granted by the Al-Khalifah to the Dowasir tribe to settle in the
Hawar Islands following the former’s conquest of the Bahrain islands in
the eighteenth century; the recognition by the Dowasir of the authority
of the Ruler of Bahrain; the recognition in an official survey prepared by
a British officer in the 1820s that the Hawar Islands had “two . . . villages

.. and belong[ed] to Bahrain”; the continued presence of the Dowasir
on the Hawar Islands, both before and after they received permission
from the Ruler of Bahrain to settle as well on the main island of Bahrain
in 1845; the rescue in 1873 by the Ruler of Bahrain of Ottoman soldiers
shipwrecked on the Hawar Islands; Bahrain court decisions dating from
as early as 1909 relating to land rights and fishing traps in the Hawar
Islands; the arrest and compelled attendance in Bahrain courts of Hawar
Island residents; the recognition in 1909 by the Ottoman Empire and
Great Britain that the Hawar Islands belonged to Bahrain, as implicitly
evidenced by their recognition of Bahrain’s rights to Zakhnuniyah Island;
the offer made in 1911 by the Ruler of Bahrain, at the request of the Brit-
ish Political Agent, to compel a resident of the Hawar Islands to appear
before the courts in a civil case; and recognition in a British Admiralty
survey of the Gulf that the Hawar Islands were occupied by the Dowasir
of Bahrain.

102. In support of its argument, Bahrain also invokes the testimony of
former Hawar Islands residents, currently living in other parts of Bah-
rain, of their lives on the Hawar Islands and of the political and eco-
nomic links between the Hawar Islands and the rest of Bahrain; a 1932
case before the Bahrain courts between two Hawar Islands residents; the
granting and protection of fishing rights off the Hawar Islands’ shores by
the Ruler of Bahrain; registration in Bahrain of fishing boats moored at
the Hawar Islands, and payment to the Government of Bahrain of fees

35
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 72

for boat registration and diving licences by Hawar Islanders engaged in
the pearling industry; construction and maintenance of dams and water
cisterns by Hawar Island residents and the Government of Bahrain;
licensing by Bahrain of the gypsum industry on the Hawar Islands in the
nineteenth and twentieth centuries; regulation by Bahrain of other natu-
ral resources, including fishing, on the Hawar Islands; the consistent
inclusion of the Hawar Islands in oil concession discussions between
Bahrain, Great Britain and prospective oil concessionaires during the
1930s; recognition by Great Britain that the Hawar Islands were claimed
by Bahrain from the first occasion that they arose as an issue during oil
concession negotiations in 1933, and the lack of any competing claim by
Qatar; a report by the British Political Agent in 1936 that Bahrain’s
claim to sovereignty over Hawar Island had real substance and that
Qatar had never protested against the activities of Bahrain’s subjects
there; drilling for water on the Hawar Islands as sanctioned by Bahrain
during the 1930s; construction by Bahrain of a government pier on the
main island of Hawar in 1937; issuing of Bahrain passports to Hawar
Islands residents; recognition of Bahrain’s jurisdiction and authority
over the Hawar Islands by the Ruler of Qatar on several occasions; and
the erection and maintenance by Bahrain of maritime markers on the
Hawar Islands.

103. Bahrain moreover relies on the decision of 11 July 1939 of Great
Britain that the Hawar Islands belonged to Bahrain and not to Qatar (see
paragraph 57 above); this decision, according to Bahrain, must be
regarded as an arbitral award, being res judicata, or at the very least as a
binding political decision. Bahrain further maintains that the principle of
uti possidetis juris is applicable in this case. It claims that both Qatar and
Bahrain are former protectorates of Great Britain, which prior to 1971
did not therefore enjoy the full, exclusive internal and external powers
which are the attributes of sovereignty; it adds that uti possidetis is a uni-
versal principle applicable to States born of decolonization wherever it
may occur. In respect of the Hawar Islands, the British decision of 1939,
whatever its legal nature, is indisputably part of the colonial heritage.
According to Bahrain, the line in existence at the time of independence
was drawn by Great Britain and that line must be respected.

104. Bahrain further emphasizes that its acts of sovereignty over the
Hawar Islands continued after the British decision of 1939 was rendered.
As evidence of this, it cites inter alia the introduction to the islands of
native Arabian species as part of a wildlife protection programme; the
creation of a wildlife preserve in 1996 on part of the main island of
Hawar; regular patrolling of the Hawar Islands by the Bahrain coast-

36
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 73

guard; the presence of a defensive military capability on the Hawar
Islands and the maintenance, since 1941, of a full defensive military com-
plex there; the construction and maintenance of a road network on the
Hawar Islands; the construction and maintenance of facilities to produce
fresh water, including a desalinization plant; and the construction and
maintenance of electricity infrastructure integrated with Bahrain’s power
grid. Bahrain also relies upon the maps produced by the British Director
of Military Survey and the American National Geographic Society show-
ing the Hawar Islands to be part of Bahrain.

105. Qatar maintains that the principle of uti possidetis does not apply
to the present case because it presupposes a succession of States, a break-
ing-off. The two sheikhdoms were however neither colonies nor protec-
torates of Great Britain. Even before their protected status with Great
Britain was terminated, each of these sheikhdoms enjoyed an independ-
ence that was in any case sufficient for their consent on boundary ques-
tions to be indispensable if they were to be bound. True, Great Britain
had a monopoly on the exercise of both States’ foreign relations, but it
did not have the power to dispose of their rights of territorial sovereignty
without their consent. Bahrain and Qatar were at all times independent
States, both before the 1971 Agreements and at the time of their signing;
there was no new legal personality which succeeded to the rights and
obligations of any administering power, nor any State succession, and
consequently there was no “colonial heritage” any more than there was a
“clean slate”.

106. Qatar also maintains that the 1939 British decision is null and
void because Qatar never consented to the process. Qatar adds that there
was bias on the part of the relevant officials of the British Government
and that the decision was not supported by reasons; it considers that pro-
cedural violations tainted not only the 1939 decision but also the “pro-
visional” decision rendered in 1936 (see paragraph 54 above). In addi-
tion, Qatar maintains that the Ruler of Qatar protested on several
occasions against the procedure followed by the British Government in
1938-1939 and that he continued thereafter to protest against the British
decision of 11 July 1939 and Bahrain’s “unlawful occupation” of the
islands; his protests plainly show that at no time did Qatar acquiesce in
the attribution of the Hawar Islands to Bahrain, and that this attribution
was therefore not opposable to it.

107. Qatar relies on the primacy of its title over the effectivités claimed
by Bahrain. Recalling the schema set out in its Judgment of 22 December
1986 by the Chamber of the Court dealing with the case concerning Fron-
tier Dispute ( Burkina Faso! Republic of Mali) (Judgment, C.J. Reports
1986, pp. 586-587, para. 63), Qatar maintains that the significance of
effectivités in relation to a territory depends upon the status of that
territory and on any legal title that may be validly invoked over that terri-
tory by another State. Thus, if a territory is res nullius, effective occu-

37
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 74

pation creates a title of sovereignty provided that it fulfils the necessary
conditions. If, on the other hand, another State has sovereignty over the
territory, it is a matter of illegal occupation or usurpation, which can
have no legal effect; this, in Qatar’s view, is the case of Bahrain’s occupa-
tion of the Hawar Islands. Such a de facto occupation cannot metamor-
phose into a de jure situation, into territorial title, unless there is acqui-
escence by the territorial sovereign. Qatar maintains that the Court is not
therefore required in this case to resolve a conflict between two claims
based on effectivités whose respective merits have to be evaluated, and
which has to be settled by granting the territory to the party with the
better established effectivités. If one State occupies an uninhabited part
of the territory of another State, there can be no question of invoking the
occupying State’s effectivités against the lack of effectivités of the holder
of the territorial title. According to Qatar, the whole of Bahrain’s argu-
ment as to the precedence of the effectivités of its occupation of the
Hawar Islands is therefore irrelevant. Only acquiescence by Qatar, the
territorial sovereign. could have created a title. Qatar further states that,
assuming it possible to invoke the effectivités relied upon by Bahrain,
these would remain ineffective because they do not meet the standards
required to create a right. In any event, according to Qatar, all of Bah-
rain’s acts subsequent to the claim to the Hawar Islands addressed by it
to the British Government on 28 April 1936, without Qatar being
informed thereof, are inopposable to the latter; these acts are simply evi-
dence of Bahrain’s desire to seize territory belonging to somebody else
and cannot override Qatar’s pre-existing sovereignty. As regards the pre-
1936 effectivités alleged by Bahrain, Qatar maintains that they are with-
out foundation. In regard specifically to the ties the Dowasir are said to
have maintained with the Ruler of Bahrain, Qatar states that in view of
the make-up and history of this tribe, its members were clearly not sub-
jects of Bahrain but formed an autonomous tribal unit whose members
left Bahrain for Saudi Arabia in 1923 and returned from 1928.

108. Qatar stresses that it was instead the successive Al-Thani Rulers
who gradually extended their authority over the whole of the Qatar
peninsula during the second half of the nineteenth century and that this is
attested to by many authorities, in particular Turkish and British. As evi-
dence of its long-standing sovereignty over the Hawar Islands, Qatar
cites inter alia: the 1868 Agreements designed to ensure maritime peace
by separating the territories of Qatar and Bahrain; the absence of the
Hawar Islands from descriptions of Bahrain after 1868; the description
given in 1908, by J. G. Lorimer of the India Civil Service, in his Gazetteer
of the Persian Gulf, of the Hawar Islands as part of Qatar; the apparent
refusal of the Ruler of Bahrain to lay claim to the Hawar Islands in 1909
despite a suggestion by the British Political Agent, who was anxious to
contain Ottoman expansion; the description of the Hawar Islands as part
of Qatar in the British Admiralty War Staff (Intelligence Division)

38
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 75

Survey of 1915; the exclusion of the Hawar Islands from the 1923 map
signed by the representative of the Eastern & General Syndicate Ltd. and
attached to the draft first Bahrain Concession Agreement; the absence of
any reference to those islands in the Concession Agreement signed by
Bahrain in 1925, and the inclusion of the islands in the territories of
Qatar on the Iraq Petroleum Company’s map of 1933; and the Oil Con-
cession Agreement signed in 1935 by Qatar and the Anglo-Persian Oil
Company (APOC).

109. Qatar also cites a number of other statements and documents
from the British archives which, in its view, show that the Hawar Islands
were regarded as part of Qatar until 1937, including: an official British
Report of the India Office of 1928 entitled “Status of certain Groups of
Islands in the Persian Gulf”, and reproduced in the Persian Gulf Histori-
cal Summaries 1907-1928, where the Bahrain archipelago is defined as
consisting of a certain number of specific, named islands which do not
include the Hawar Islands; an India Office letter of 3 May 1933 giving an
almost identical description of Bahrain as that in the 1928 Report; the
Political Resident’s telegram of 31 July 1933 to the Secretary of State for
India, stating that “Hawar Island is clearly not one of the Bahrain
group”, with which the India Office agreed: a description of a marked
map showing the area recognized as Bahrain islands, submitted by the
Political Resident on 4 August 1933 to the Secretary of State for India,
clearly indicating that Bahrain’s territory did not include the Hawar
Islands; a report of an aerial reconnaissance undertaken on 9 May 1934
by the Royal Air Force after permission had been obtained from the
Ruler of Qatar, which report included an attached photograph of Hawar
Island; a note from Mr. G. W. Rendel, a Foreign Office official, dated
30 December 1937, confirming that the Hawar Islands were geographi-
cally part of Qatar; and the views expressed on 26 October 1941 by Prior
(who was British Political Agent in Bahrain from April 1929 to Novem-
ber 1932, and Political Resident from September 1939 to May 1946),
according to which the Hawar Islands “belong to Qatar, a view sup-
ported by Lorimer”.

110. The Parties’ lengthy arguments on the issue of sovereignty over
the Hawar Islands raise several legal issues: the nature and validity of the
1939 decision by Great Britain; the existence of an original title; effec-
tivités; and the applicability of the principle of uti possidetis juris to the
present case. The Court will begin by considering the nature and validity
of the 1939 British decision.

39
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 76

111. Bahrain maintains that the British decision of 1939 must be con-
sidered primarily as an arbitral award, which is res judicata. It claims
that the Court does not have jurisdiction to review the award of another
tribunal, basing its proposition on

“a virtual jurisprudence constante, not to review, invalidate or even
confirm awards taken by other international tribunals, unless there
is specific, express, additional consent to reopen the award”.

Thus Bahrain refers to the decision of 15 June 1939 by the Permanent
Court of International Justice in the case of the Société Commerciale de
Belgique (P.C.LJ., Series A/B, No. 78, p. 160); and to those rendered by
the present Court on 18 November 1960 in the case concerning the Arbi-
tral Award made by the King of Spain on 23 December 1906 ( Honduras
v. Nicaragua) (1.C.J. Reports 1960, p. 192), as well as on 12 November
1991 in the case concerning the Arbitral Award of 31 July 1989 ( Guinea-
Bissau v. Senegal) (L C.J. Reports 1991, p. 53).

112. Qatar denies the relevance of the judgments cited by Bahrain. It
contends that

“TNjone of them are in the slightest degree relevant to the issue
which the Court has to determine in the present case, namely,
whether the procedures followed by the British Government in 1938
and 1939 amounted to a process of arbitration which could result in
an arbitral award binding upon the parties.”

Qatar also advances in support of its position the 19 October 1981 arbi-
tral award rendered by the Court of Arbitration in the Dubai/Sharjah
Border case; in that award, which in Qatar’s view was rendered under
circumstances comparable to those of the present case, the Court of
Arbitration concluded that boundary delimitation decisions taken by the
British Government were not arbitral awards but rather administrative
decisions of a binding character (/nternational Law Reports, Vol. 91,
p. 579; see also pp. 577, 583 and 585).

113. The Court will first consider the question whether the 1939 Brit-
ish decision must be deemed to constitute an arbitral award. The Court
observes in this respect that the word arbitration, for purposes of public
international law, usually refers to “the settlement of differences between
States by judges of their own choice, and on the basis of respect for law”.
This wording was adopted in Article 15 of the Hague Convention for the
Pacific Settlement of International Disputes, dated 29 July 1899. It was
repeated in Article 37 of the Hague Convention dated 18 October 1907,
having the same object. It was adopted by the Permanent Court of Inter-
national Justice in its Advisory Opinion of 21 November 1925, interpret-
ing Article 3, paragraph 2, of the Treaty of Lausanne (P.C.1.J., Series B,
No. 12, p. 26). It was reaffirmed in the work of the International Law

40
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 77

Commission, which reserved the case where the parties might have decided
that the requested decision should be taken ex æquo et bono (Report by
Mr. Georges Scelle, Special Rapporteur of the Commission, Document
A/ICN.4/113, of 6 March 1958, Yearbook of the International Law Com-
mission, 1958, Vol. IL p. 2). Finally, more recently, it was adopted by the
Court of Arbitration called upon to settle the border dispute between
Dubai and Sharjah in a dispute bearing some similarities to the present
case (DubuilSharjuh Border Arbitration, arbitral award of 19 October
1981, International Law Reports, Vol. 91, pp. 574 and 575).

114. The Court observes that in the present case no agreement existed
between the Parties to submit their case to an arbitral tribunal made up
of judges chosen by them, who would rule either on the basis of the law
or ex æquo et bono. The Parties had only agreed that the issue would be
decided by “His Majesty’s Government”, but left it to the latter to deter-
mine how that decision would be arrived at, and by which officials. It
follows that the decision whereby, in 1939, the British Government held
that the Hawar Islands belonged to Bahrain, did not constitute an inter-
national arbitral award.

115. Since the 1939 decision did not constitute an international arbi-
tral award, the Court will not need to consider Bahrain’s argument con-
cerning the Court’s jurisdiction to examine the validity of arbitral awards.
It will confine itself to noting that the Parties have undertaken

“to submit to the Court the whole of the dispute between them, as
circumscribed by the text proposed by Bahrain to Qatar on 26 Octo-
ber 1988, and accepted by Qatar in December 1990, referred to in
the 1990 Doha Minutes as the ‘Bahraini formula’” (Maritime Delimi-
tation and Territorial Questions between Qatar and Bahrain, Juris-
diction and Admissibility, Judgment, 1 C.J. Reports 1994, pp. 126-
127, para. 41, point 2).

116. The “Bahraini formula”, as accepted by both Parties (see para-
graph 67 above), is very comprehensive, since it authorizes the Parties to
“request the Court to decide any matter of territorial right or other title
or interest which may be a matter of difference between them”. Conse-
quently, the agreement between the Parties embraces all questions relat-
ing to the Hawar Islands, including the dispute concerning the 1939 Brit-
ish decision. Therefore the Court has jurisdiction to decide the various
matters raised by Qatar in relation to the 1939 British decision.

117. The fact that a decision is not an arbitral award does not however
mean that the decision is devoid of legal effect, as was acknowledged by
the Court of Arbitration in the Dubai/Sharjah Border Arbitration UInter-
national Law Reports, Vol. 91, p. 577). In order to determine the legal
effect of the 1939 British decision, the events which preceded and imme-
diately followed its adoption need to be recalled.

4l
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 78

118. On 10 May 1938, the Ruler of Qatar wrote to the British Political
Agent informing him that “Hawar is, by its natural position, a part of
Qatar”, but that “the Bahrain Government [were] making interferences
at Hawar”. He concluded: “I am quite confident that you will, in order to
keep the peace and tranquillity, do what is necessary in the matter”.

119. On 20 May 1938, the British Political Agent informed the Ruler
of Qatar, among other matters, of the following:

“It is indeed a fact that by their formal occupation of the Islands
for some time past the Bahrain Government possess a prima facie
claim to them, but I am authorised by the Honourable the Political
Resident to say that even so His Majesty’s Government will be pre-
pared to give the fullest consideration to any formal claim put for-
ward by you to the Hawar Islands, provided that your claim is sup-
ported by a full and complete statement of the evidence on which
you rely in asserting that you, as Shaikh of Qatar, possess sover-
eignty over them . .. I need scarcely remind you that the matter will
be decided in the light of truth and justice by His Majesty’s Govern-
ment when your formal claim and evidence are received . . .”

120. By a letter of 27 May 1938, the Ruler of Qatar stated to the
British Political Agent that he was

“also thankful to His Majesty’s Government who will, as you said,
decide the matter in the light of truth and justice. I was confident of
and relying on the justice and equity of His Majesty’s Government
who are famous for these things in all instances”.

The Ruler of Qatar added:

“IT now submit my formal complaint against the steps taken by the
Bahrain Government in islands belonging to others as follows:

5. ... it is my right to object to any act undertaken by the Bah-
rain Government in Islands which I consider to be belonging to me
... L also request you to stop the activities and interferences which
the Bahrain Government 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. [ trust that His Majesty's
Government will administer justice and equity and that you will do
so in the present circumstances so that the present matters may take
one and the same course until the facts become clear.”

42
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 79

121. On 3 June 1938 the British Political Agent, Mr. H. Weightman,
informed the British Political Resident of the complaint presented by
Qatar. He also made the following comment:

“In regard to the substance of the Shaikh of Qatar’s claim, it will
be observed that it consists of (1) a bare assertion of sovereignty and
(2) the affirmation that the Hawar Islands are part of the geographi-
cal unit of Qatar.

No evidence is offered of formal occupation by Qatar, no mention
is made of collection of taxes, of sale of fishing rights, of the exercise
of judicial authority, or indeed, of the performance of any function
which might denote sovereign rights.”

122. In a letter to the British Political Resident of 21 July 1938, the
Secretary of State for India stated the following:

“on the whole it would be preferable to give him [the Sheikh of
Qatar] an opportunity to comment on the Bahrain reply. This would
be more in accordance with the normal procedure in such cases, and
it is undesirable, if the eventual decision is in favour of Bahrain, that
the Sheikh of Qatar should be left with a sense of grievance that he
had not been fully heard. Delay involved is not likely to cause any
inconvenience.

If therefore you see no serious objection please communicate
statement of Bahrain Government when received to Sheikh of Qatar
and allow him reasonable period for his comments and for the pro-
duction of any further evidence in support of his claim, and on
receipt of his reply please submit correspondence to me with your
views.

123. On 14 August 1938 the British Political Agent sent to the acting
adviser to the Government of Bahrain a copy of the Sheikh of Qatar’s
detailed claim, requesting that

“the Bahrain Government will now submit a full and detailed state-
ment of their counter-claim to Hawar, covering the Shaikh of Qatar’s
claim as well as any other point they wish to make”.

124. The counter-claim of Bahrain was presented on 22 December
1938 in a letter sent to the British Political Agent, explaining the reasons
supporting its position and contradicting the position of Qatar. Annexed
to that letter was a petition signed “by the leading men of Hawar”,
stating that they were subjects of the Ruler of Bahrain.

125. The British Political Agent wrote on 5 January 1939 to the Ruler
of Qatar, with reference to the “detailed claim to the Hawar Islands with
[his] letter dated the 27th May 1938”. The Political Agent annexed to his

43
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 80

communication the counter-claim presented by Bahrain and stated the
following:

“T request you now, my friend, to study the Bahrain Govern-
ment’s reply carefully and to inform me as soon as it may be possible
whether you wish to put forward any further arguments in support
of your claim or whether you have any further evidence to show.
When I have received your reply and all other evidence which you
may wish to produce the whole matter will be submitted to His
Majesty’s Government through the Honourable the Political Resi-
dent in the Persian Gulf for their final decision.”

126. The Ruler of Qatar informed the British Political Agent on
19 March 1939 that “a reply to the Hawar case needs careful study and
an opportunity for such a study”, but that even so the reply “will reach
you shortly containing Statements, objections and protests which I may
have”.

127. On 30 March 1939, the Ruler of Qatar sent to the British Political
Agent a 15-page letter with his comments on the claims of Bahrain in
relation to the Hawar Islands. He also annexed testimonial evidence in
support of his own claims.

128. The British Political Agent, Mr. H. Weightman, then sent a
report on 22 April 1939 to the British Political Resident, Lieutenant-
Colonel Fowle, reporting on the claims presented by Qatar over the
Hawar Islands. In that report the Political Agent enumerated the docu-
ments in the case and examined the various arguments advanced as well
as the evidence submitted by the parties. Then he concluded:

“13. To sum up. The Shaikh of Qatar has produced no evidence
whatsoever. He relies solely on an uncorroborated assertion of sov-
ereignty, on geographical propinquity and on the alleged statements
of certain unidentified persons. On the Bahrain side there is evidence
that the original occupation of Hawar by the Dawasir was effected
under the authority of the Al Khalifah, that the Zellaq Dawasir have
frequented these islands for a great number of years, that the courts
established by the Shaikhs of Bahrain have promulgated decisions in
regard to disputes over property there, that questions of ownership
of fish traps have been submitted to the decision of the Bahrain
Sharia Court, that seven years ago Bahrain processes were served in
Hawar, that the boats owned by the Dawasir of Hawar are regis-
tered in Bahrain and that gypsum or juss is excavated from Hawar
under licence from the Bahrain Government. I am not able to state
definitely that these Dawasir have for the past 150 years occupied
Hawar at all seasons of the year, though those now in residence
there claim that this is so. On the other hand the cemeteries, the
water cisterns, the ruins of the old fort which I have myself seen and
the type of house in use all provide evidence of consistent occupa-

44
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 81

tion for at least the greater part of the year. And finally in the
absence of any indication of occupation or of the exercise of jurisdic-
tion by the Shaikh of Qatar, the construction of a police post by the
Bahrain Government there some 18 months ago, the building of a
mosque in the northern village under the orders of His Highness the
Shaikh of Bahrain and the efforts made to drive an artesian well
constitute, in the light of older history, a valid and proper assump-
tion of constitutional authority on the part of the Bahrain Govern-
ment. The small barren and uninhabited islands and rocky islets
which form the complete Hawar group presumably fall to the author-
ity of the Ruler establishing himself in the Hawar main island, par-
ticularly since marks have been erected on all of them by the Bahrain
Government.”

129. On 29 April 1939 Lieutenant-Colonel Fowle forwarded Weight-
man’s report to the Secretary of State for India and observed that it was
“a very clear statement of the case”, and that it confirmed his opinion.

130. Some weeks later, on 13 June 1939, Mr. C. W. Baxter of the For-
eign Office informed the Secretary of State, India Office, that

“Lord Halifax concurs to the Marquees of Betland’s proposal to
request the Government of India, if they see no object, to instruct
the political Resident in the Persian Gulf to inform the Sheikhs of
Bahrain and Qatar that His Majesty’s Government have decided
that these islands belong to Sheikh of Bahrain.”

131. On 1 July 1939 the Deputy Secretary to the Government of India
informed the Political Resident that “Government of India concur in the
view that the Hawar Islands belong to Bahrain and not to Qatar and
request that you will inform the Shaikhs concerned as proposed.”

132. The British decision was communicated on 11 July 1939 to the
Ruler of Bahrain by the Political Resident. The communication stated:

“With reference to correspondence ending with your Adviser’s
letter No. 1972/SF, dated the 22nd December 1938 (Shawwal 29,
1357), on the subject of the ownership of the Hawar Islands T am
directed by His Majesty’s Government to inform you that, after care-
ful consideration of the evidence adduced by your Highness and
the Shaikh of Qatar, they have decided that these Islands belong
to the State of Bahrain and not to the State of Qatar.

I am informing the Shaikh of Qatar accordingly.”

133. On the same day, 11 July 1939, the British Political Resident
communicated the British decision to the Ruler of Qatar in similar terms,
as follows:

45
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 82

“With reference to correspondence ending with your letter dated
the 30th March 1939 (Safar 9th, 1358) on the subject of the owner-
ship of the Hawar Islands I am directed by His Majesty’s Govern-
ment to inform you that, after careful consideration of the evidence
adduced by you and His Highness the Shaikh of Bahrain, they have
decided that these Islands belong to the State of Bahrain and not to
the State of Qatar.

I am informing His Highness the Shaikh of Bahrain accordingly.”

134. The Ruler of Qatar reacted to the British decision in a letter sent
on 4 August 1939 to the British Political Resident, stating:

“Naturally enough I was deeply astonished at the news and in my
astonishment tried to find the cause for what His Majesty’s Govern-
ment have made the basis of their opinion on this question while
I had provided them with proofs, evidence, and contexts which
I thought were adequate to clarify the correct position and condi-
tions of these Islands.”

He added:

“Tam unable to remain quiet over the case, which preferably is the
result of abstruseness, ambiguity, and non-elucidation of the rele-
vant facts. I therefore protest for a second time asking for the clari-
fication of the question, and appeal to Your Honour’s humanity and
to His Majesty’s Government’s sense of justice to look into the case
with due justice and equity, as | am perfectly confident that His
Majesty's Government and Your Honour’s sense of justice and
humanity would not agree that any transgression should be made
on my territory or my natural rights.”

The letter of the Ruler of Qatar ended by requesting that “the question
may be considered again and that enquiries may again be made into it”;
and “reserv[ing] for myself my rights to the Hawar Islands until the true
position has become clear”.

135. By a letter dated 25 September 1939, the British Political Resident
replied to the Ruler of Qatar, informing him that the decision notified by
the letter of 11 July 1939 “was a final decision and the matter cannot be
opened afresh”. Some time later, on 18 November 1939, the Ruler of
Qatar wrote to the Political Resident acknowledging receipt of his letter
of 25 September but asserting that “[w]hatever may happen my belief in
the Justice of His Majesty’s Government remains unshaken” and that he
was “unshakeably confident that His Majesty’s Government will think
about the matter and will review it in a clearer manner than hitherto”.

136. Having recalled these events, the Court will now consider Qatar's
argument challenging the validity of the 1939 British decision.

46
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 83

137. Qatar first contends that it never gave its consent to have the
question of the Hawar Islands decided by the British Government. The
Court observes, however, that following the Exchange of Letters of 10 and
20 May 1938 (see paragraphs 118 and 119 above), the Ruler of Qatar
consented on 27 May 1938 to entrust decision of the Hawar Islands ques-
tion to the British Government (see paragraph 120 above). On that day
he had submitted his complaint to the British Political Agent. Finally,
like the Ruler of Bahrain, he had consented to participate in the proceed-
ings that were to lead to the 1939 decision (see paragraphs 118 to 133
above). The jurisdiction of the British Government to take the decision
concerning the Hawar Islands derived from these two consents; the
Court therefore has no need to examine whether, in the absence of such
consent, the British Government would have had the authority to do so
under the treaties making Bahrain and Qatar protected States of Great
Britain, namely the 1880 and 1892 treaties with Bahrain and the 1916
treaty with Qatar (see paragraphs 44 and 48 above).

138. Qatar maintains in the second place that the British officials
responsible for the Hawar Islands question were biased and had pre-
judged the matter. The procedure followed is accordingly alleged to have
violated “the rule which prohibits bias in a decision-maker on the inter-
national plane”. It is also claimed that the parties were not given an equal
and fair opportunity to present their arguments and that the decision was
not reasoned.

139. The Court will begin by recalling that the 1939 decision is not an
arbitral award (see paragraphs 113-114 above). This does not, however,
mean that it was devoid of all legal effect. Quite to the contrary, the
pleadings, and in particular the Exchange of Letters referred to above
(see paragraphs 118 and 119 above), show that Bahrain and Qatar con-
sented to the British Government settling their dispute over the Hawar
Islands. The 1939 decision must therefore be regarded as a decision that
was binding from the outset on both States and continued to be binding
on those same States after 1971, when they ceased to be British protected
States (see paragraph 65 above).

140. The validity of that decision was certainly not subject to the pro-
cedural principles governing the validity of arbitral awards. However as
the British Political Agent undertook on 20 May 1938. and as was
repeated in the letter of the Ruler of Qatar of 27 May 1938 (see para-
graphs 119 and 120 above), this decision was to be rendered “in the light
of truth and justice”.

141. In this connection, the Court observes in the first place that the
Ruler of Qatar in that last letter entrusted the question of the Hawar
Islands to the British Government for decision, notwithstanding that
seven days before the British Political Agent had informed him that “by

47
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 84

their formal occupation of the Islands for some time past the Bahrain
Government possess a prima facie claim to them” and that it was there-
fore for the Ruler of Qatar to submit a “formal claim . . . supported by a
full and complete statement of the evidence” on which he relied (see para-
graph 119 above). This procedure was followed and the competent Brit-
ish officials found that “[t]he Shaikh of Qatar ha[d] produced no evidence
whatsoever” to counter the effectivités claimed by Bahrain, in particular
its occupation of the islands since 1937 (see paragraph 128 above). Under
these circumstances, while it is true that the competent British officials
proceeded on the premise that Bahrain possessed prima facie title to the
islands and that the burden of proving the opposite lay on the Ruler of
Qatar, Qatar cannot maintain that it was contrary to justice to proceed
on the basis of this premise when Qatar had been informed before agree-
ing to the procedure that this would occur and had consented to the pro-
ceedings being conducted on that basis.

142. The proceedings leading to the 1939 British decision summarized
above (see paragraphs 118 to 133 above) further show that Qatar and
Bahrain both had the opportunity to present their arguments in relation
to the Hawar Islands and the evidence supporting them. Qatar presented
its claim in its letters of 10 and 27 May 1938. Bahrain’s opposing claims
were presented on 22 December 1938, with an annex containing the dec-
larations of several witnesses. Qatar commented on this statement of
Bahrain in its letter of 30 March 1939, to which testimonial evidence to
support its arguments was also annexed. Thus the two Rulers were able
to present their arguments and each of them was afforded an amount of
time which the Court considers was sufficient for this purpose; Qatar’s
contention that it was subjected to unequal treatment therefore cannot be
upheld.

143. Finally, the Court notes that, while the reasoning supporting the
1939 decision was net communicated to the Rulers of Bahrain and Qatar,
this lack of reasons has no influence on the validity of the decision taken,
because no obligation to state reasons had been imposed on the British
Government when it was entrusted with the settlement of the matter.

144. Moreover, in the present case the reaction of the Ruler of Qatar
was to inform the British Political Resident that he was “deeply aston-
ished” by the decision, but he did not claim that it was invalid for lack of
reasons. Qatar stated that it had provided enough evidence to support its
position, and limited itself to requesting the British Government to re-
examine its decision. Therefore, Qatar’s contention that the 1939 British
decision is invalid for lack of reasons cannot be upheld.

145. Finally, the fact that the Sheikh of Qatar had protested on several
occasions against the content of the British decision of 1939 after he had

48
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 85

been informed of it is not such as to render the decision inopposable to
him, contrary to what Qatar maintains.

146. The Court accordingly concludes that the decision taken by the
British Government on 11 July 1939 is binding on the Parties.

147. For all of these reasons, the Court concludes that Bahrain has
sovereignty over the Hawar Islands, and that it therefore cannot uphold
the submissions of Qatar on this question.

148. The conclusion thus reached by the Court on the basis of the
British decision of 1939 makes it unnecessary for the Court to rule on the
arguments of the Parties based on the existence of an original title, effec-
tivités, and the applicability of the principle of uti possidetis juris to the
present case.

xx

149. The Court will now consider the Parties’ claims to Janan Island.
In this regard, the Court would begin by observing that Qatar and Bah-
rain have differing ideas of what should be understood by the expression
“Janan Island”. According to Qatar,

“Janan is an island approximately 700 metres long and 175 metres
wide situated off the southwestern tip of the main Hawar island. The
island is located 2.9 nautical miles or 5,360 metres from the nearest
point on Qatar’s low water line and 17 nautical miles from the near-
est point of Bahrain (Ras al Barr) . . . It is located 1.6 nautical miles
or 2,890 metres from the main Hawar island.”

For Bahrain the term covers

“two islands, situated between one and two nautical miles off the
southern coast of Jazirat Hawar, which merge into a single island at
low tide. The two islands have a combined surface area of just over
0.1 km? and are called Janan and Hadd Janan. Generally, however,

EL

they are referred to together simply as ‘Janan’.

In this regard, Qatar states that,

“at the location of ‘Hadd Janan’ as indicated on the Bahraini charts,
there is a small area of sandy bottom which is below water at low
tide. Therefore, leaving aside the question of whether Bahrain’s
claim to two islands would be admissible, given that the issue sub-
mitted to the Court in this respect was entitled ‘the island of Janan’,
the geographical facts simply do not provide a basis for Bahrain to
claim a second island.”

Bahrain denies this contention by Qatar in the following terms: “[t]o
avoid all misunderstanding, Bahrain rejects the implication that [the

49
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 86

Court’s] jurisdiction over title to Janan does not extend, whether directly
or incidentally, to Hadd Janan”, adding: “Whether Hadd Janan is an
extension of Janan or an island formation within Janan’s territorial
waters, the fact remains that it pertains to Bahrain.”

150. The Court notes that Qatar has not formally raised the question
of the admissibility of Bahrain’s claim concerning “Hadd Janan”. In any
event, since, for Qatar, Hadd Janan is “a small area of sandy bottom
below water at low tide”, and, for Bahrain, forms only one island with
Janan at low tide, the Court considers itself entitled to treat Janan and
Hadd Janan as one island.

151. Qatar claims sovereignty over Janan Island, and relies in the first
instance on its argument in regard to the Hawar Islands. It maintains
that: “the reasons given by it to show that the Hawar islands belong to
Qatar, in particular the principles governing proximity and sovereignty
over islands in territorial waters, . . . apply equally to Janan”. It argues in
particular that “any island which falls partially within a 3-mile limit
drawn from the low-water line along the mainland enjoys the benefit of
the régime applicable to islands located wholly within that 3-mile limit”.

152. For its part, Bahrain contends that “only half of Janan . . . lie[s]
within the 3-mile limit” and that “[p]roximity is not a basis for title in
international law”, adding that “[i]jn point of fact, there is the proximity
of Janan to the Hawars, over which Bahrain has sovereignty”.

153. Qatar contends secondly that

“in 1939, when the British Government wrongly decided that the
Hawar Islands belonged to Bahrain and not to Qatar, the letters
addressed to the respective Rulers of the two States by the British
Political Resident in the Persian Gulf contained no indication as to
what the expression ‘Hawar Islands’ meant . . . It was only in 1947,
at the time of the determination of a seabed delimitation, that the
British circumscribed the Hawar Islands group by drawing an enclave
that left Janan on the outside. Furthermore, the British decision
announced in the letters of 23 December 1947 contained the follow-
ing statement: ‘It should be noted that Janan Island is not regarded
as being included in the islands of the Hawar group’ . . . In the eyes
of the British Government, matters were quite clear: in deciding in
1939 upon the attribution of the Hawar Islands, they had in no way
recognized Bahrain’s sovereignty over Janan Island. The clarifica-
tion they provided on this point in 1947 in a sense, in their eyes, pro-
longed their earlier decision.”

154. Bahrain rejects this argument by Qatar in the following terms:

50
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 87

“The record shows that the 1939 Award recognized Bahrain’s sov-
ereignty over Janan as part of the Hawars. The list of islands which
Bahrain submitted to the British Government included Janan. Janan
was considered part of the Hawars during oil concession negotia-
tions in the 1930s. Janan was beaconed by Bahrain in 1939, follow-
ing the 1939 decision and so on. In the 1940s, a number of incon-
sistent British communications dealt with Janan in a contradictory
fashion. In its Counter-Memorial, Bahrain reviewed those commu-
nications to show that the differing objectives and frequently under-
standable confusions about the islands in the Hawars group can
easily be placed in context. In any case, even the British officials
accepted the finality of the 1939 arbitration. Bahrain submits to the
Court that that arbitration, which established Bahrain’s sovereignty
over the Hawars, included Janan.”

155. Bahrain further argues that “Bahrain has also established . . . its
sovereignty over Janan Island on the basis of that island’s use by Bah-
raini subjects and the Ruler of Bahrain’s exercise of authority over the
Island”. In this regard it cites inter alia the regular use of Janan by Bah-
raini fishermen, who were “required to obtain the Ruler of Bahrain’s per-
mission before they could erect huts on the island”, and the fact that the
island “had been beaconed by Bahrain in 1939, following the British deci-
sion awarding the Hawar Islands to Bahrain”.

156. For its part, Qatar contends that “the fact that Bahraini subjects
used Janan for fishing activities around it [cannot] serve as an indication
of sovereignty”, and denies that “the Bahraini fishermen visiting this
island had to obtain prior authorization from the Ruler of Bahrain in
order to put up huts or simple shelters”. With regard to Bahrain’s argu-
ment concerning the beaconing of Janan, Qatar contends that “this kind
of activity cannot in itself be considered as a manifestation of sover-
eignty” and that “[ilt can generally only be taken into account as a form
of subsidiary consideration”. It goes on to state the following:

“According to the most well-established international jurispru-
dence, probative value can attach only to activities relating to the
exercise of State functions: legislation, administration, jurisdiction.

It cannot be inferred from the installation of lights, beacons or
buoys that the State carrying out such installations was acting as the
territorial sovereign.”

157. The Court, as it has done in regard to the Parties’ claims to the
Hawar Islands, will begin by considering the effects of the British deci-
sion of 1939 on the question of sovereignty over Janan Island. As has
already been stated, in that decision the British Government concluded

Si
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 88

that the Hawar Islands “belong{ed] to the State of Bahrain and not to the
State of Qatar”. No mention was made of Janan Island. Nor was it speci-
fied what was to be understood by the expression “Hawar Islands”. The
Parties have accordingly debated at length over the issue of whether
Janan fell to be regarded as part of the Hawar Islands and whether, as a
result, it pertained to Bahrain’s sovereignty by virtue of the 1939 decision
or whether, on the contrary, it was not covered by that decision.

158. In support of their respective arguments, Qatar and Bahrain have
each cited documents both anterior and posterior to the British decision
of 1939. Qatar has in particular relied on a “decision” by the British Gov-
ernment in 1947 relating to the sea-bed delimitation between the two
States. The Court will now examine these documents, as they were sub-
mitted by the Parties in support of their respective arguments.

159. Bahrain recalled that it had submitted four lists to the British
Government — in April 1936, August 1937, May 1938 and July 1946 —
with regard to the composition of the Hawar Islands. It explained as fol-
lows, in respect of each of those lists, the circumstances of its submission:

“The first list was submitted at the end of April 1936, in the con-
text of the negotiations for an oil concession over the Bahrain un-
allotted area . . . The statement contained a list of the islands con-
sidered by the Ruler at that time to be part of the Hawar Islands. It
did not in any way purport to be an exhaustive listing.

The significance of the 1936 list lies in the fact that Janan Island
was included in what appears to be the first formal written statement
by Bahrain of its sovereignty over the Hawar Islands . . . {t]he 1936
list was ignored by the British Political Agent when making his
recommendation in 1947 regarding the seabed delimitation between
Bahrain and Qatar.

The second list was submitted in August 1937 in response to a
request by the British Government for a list setting out the islands
the Ruler of Bahrain considered to be among his dominions. No
mention is made specifically of Janan Island in that list. However,
neither is any mention made of the other islands that were identified
in the previous list, including the main island of Hawar .. . in the
light of the clearly demarcated concession area that Bahrain was
offering to PCL [Petroleum Concessions Ltd.] at the time, with Brit-
ain’s acquiescence, it is abundantly clear that Janan Island was
understood to be one of the ‘nine’ [islands] considered to constitute
the ‘Howar archipelago’. . .

The third list was submitted . . . in May 1938, as an attachment to
a preliminary statement of evidence submitted in connection with
the Hawar Islands arbitration .. .

The attachment . . . provide[s] a listing of those islands or rocks

52
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 89

which had been marked with a Bahraini beacon, as of the date the
list was submitted. . . . The Bahraini beacon on Janan was not con-
structed until sometime after 21 February 1939 (corresponding to
1358 A.H.)...

The last of the four lists was submitted in July 1946. It was
described as a complete list of ‘the cairns which were erected on the
various reefs and islands . . . built during 1357 and 1358 [i.e., 1938
and 19397. All of the islands numbered 1 through 18 on the list were
considered to be part of the Hawar Islands. Janan Island was
included on the list as number 15. (This confirms the fact that the
1938 list was only a limited listing of Bahraini beaconed islands.)”

160. Qatar, for its part, has referred to the letters dated 23 December
1947, drafted in identical terms and sent by the British Political Agent in
Bahrain to the Rulers of Qatar and Bahrain, in which the sea-bed
between the two States was delimited by the British Government (see para-
graph 61 above). In those letters Bahrain was recognized as having
sovereign rights over

“Hawar Island, the islands of the Hawar group and the territorial
waters pertaining thereto and delimited again in accordance with the
usual principles of international law . . . It should be noted that
Janan Island is not regarded as being included in the islands of the
Hawar group.”

Qatar has explained that:

“[a]lt the time of the consideration of delimitation of the maritime
boundary, it was the 1938 list, sent with Belgrave’s ‘preliminary
statement’ of 29 May 1938, which came to be regarded as the specific
list on the basis of which the decision of 11 July 1939 was made.”

161. Bahrain, however, argued in this regard that in 1947 “[t]he British
Political Agent [had] failed to take into account the list submitted by the
Ruler of Bahrain in 1936... and [had] instead arbitrarily and mistakenly
relied on the list of beaconed islands and rocks submitted in 1938”. It
further contended that:

“The purpose of the 1947 letters was not to notify the Rulers of a
‘decision’ which they would be bound to respect. It was merely to
inform them that the British authorities would henceforth consider
the seabed as being divided by the line described in the letters, par-
ticularly in the course of their dealings with the two oil companies,
PCL [Petroleum Concessions Ltd.] and BAPCO [Bahrain Petroleum
Company].”

162. Finally, Qatar has argued as follows:

“Admittedly, Bahrain challenges the exclusion of Janan from the
Hawar island group by criticising the British authorities for relying,
in making this exclusion, on the list established by Belgrave in his

53
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 90

letter of 29 May 1938. According to Bahrain, in formulating this list,
Belgrave did not intend to identify all the islands in the Hawar
group, but simply to list those on which beacons had been placed.
Yet Bahrain fails to mention that, ... Belgrave expressly stated: ‘On
each of the islands there is a stone beacon’...

If each of the Hawar Islands bore a beacon, it would not matter
whether the list was a list of the islands or of the numbers of the
beacons. Janan had not been ‘beaconed’ . . . at that date, and there-
fore was not on the list. As Belgrave’s letter stated that each island in
the Hawar group had been beaconed, and listed those islands or
those beacons, this must mean that Janan Island was not considered,
at the time the British were about to take their decision, as part of
the Hawar Islands group. The decision of 1947, therefore, merely
confirmed in this regard a fact accepted in 1938-1939.”

*

163. The Court notes that the three lists submitted prior to 1939 by
Bahrain to the British Government with regard to the composition of the
Hawar group are not identical. In particular, Janan Island appears by
name in only one of those three lists. As to the fourth list, which is dif-
ferent from the three previous ones, it does make express reference to
Janan Island, but it was submitted to the British Government only in
1946, several years after the adoption of the 1939 decision. Thus, no defi-
nite conclusion may be drawn from these various lists.

164. The Court will now consider the letters sent on 23 December 1947
by the British Political Agent in Bahrain to the Rulers of Qatar and Bah-
rain. By those letters the Political Agent acting on behalf of the British
Government informed the two States of the delimitation of their sea-beds
effected by the British Government. This Government, which had been
responsible for the 1939 decision on the Hawar Islands, sought, in the
last sentence of subparagraph 4 (ii) of these letters, to make it clear that
“Janan Island is not regarded as being included in the islands of the
Hawar group” (see paragraph 61 above). The British Government accord-
ingly did not “recognize” the Sheikh of Bahrain as having “sovereign
rights” over that island and, in determining the points fixed in para-
graph 5 of those letters (see paragraph 61 above), as well as in drawing
the map enclosed with those letters, it regarded Janan as belonging to
Qatar. The Court considers that the British Government, in thus pro-
ceeding, provided an authoritative interpretation of the 1939 decision
and of the situation resulting from it.

165. Having regard to all of the foregoing, the Court cannot accept
Bahrain’s argument that in 1939 the British Government recognized
“Bahrain’s sovereignty over Janan as part of the Hawars”. It finds that

54
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 91

Qatar has sovereignty over Janan Island including Hadd Janan, on the
basis of the decision taken by the British Government in 1939, as inter-
preted in 1947, The Court thus cannot uphold the submission of Bahrain
on this point.

*
* *

166. The Court will now turn to the question of the maritime delimita-
tion.

167. The Parties are in agreement that the Court should render its
decision on the maritime delimitation in accordance with international
law. Neither Bahrain nor Qatar is party to the Geneva Conventions on
the Law of the Sea of 29 April 1958; Bahrain has ratified the United
Nations Convention on the Law of the Sea of 10 December 1982 but
Qatar is only a signatory to it. Customary international law, therefore, is
the applicable law. Both Parties, however, agree that most of the provi-
sions of the 1982 Convention which are relevant for the present case
reflect customary law.

168. Under the terms of the “Bahraini formula” adopted in December
1990 (see paragraphs 67 and 69 above), the Parties requested the Court,
“to draw a single maritime boundary between their respective maritime
areas of seabed, subsoil and superjacent waters”.

In its final submissions, which are identical to the submissions pre-
sented in the written proceedings, Qatar requested the Court to “draw a
single maritime boundary between the maritime areas of sea-bed, subsoil
and superjacent waters appertaining respectively to the State of Qatar
and the State of Bahrain . . ”.

Bahrain for its part asked the Court to adjudge and declare that “the
maritime boundary between Bahrain and Qatar is as described in Part
Two of Bahrain’s Memorial”. From this Memorial and the maps annexed
thereto, it follows that Bahrain, too, is asking the Court to draw a single
maritime boundary.

Both Parties therefore requested the Court to draw a single maritime
boundary (see sketch-map No. 2, p. 92 below).

169. It should be kept in mind that the concept of “single maritime
boundary” may encompass a number of functions. In the present case the
single maritime boundary will be the result of the delimitation of various
jurisdictions. In the southern part of the delimitation area, which is situ-
ated where the coasts of the Parties are opposite to each other, the dis-
tance between these coasts is nowhere more than 24 nautical miles. The
boundary the Court is expected to draw will, therefore, delimit exclu-
sively their territorial seas and, consequently, an area over which they
enjoy territorial sovereignty.

170. More to the north, however, where the coasts of the two States
are no longer opposite to each other but are rather comparable to adja-
cent coasts, the delimitation to be carried out will be one between the

55
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 92

Sketch-map No. 2. Lines Proposed by Qatar and Bahrain

10°44 ree : : _ 40"

50°E 15" 30" 45° 51°E 18° 30’ 45°
, . { : | : | ; | | - 4 : | 20

proposal of Qatar

D7N Lee RC fi À = TRS see | 270N

4 |Saudi

wl

“hy 50°

+ 40°

ns
10 kilometres

= 7 T t 7 r
1

| Mercator projection
i! +

as
an

o :
&

a

—_ faced Ft Fe +. Te een
50°E 54° 45" 30' 45"
This sketch-map, on which maritime features are shown in simplified form, has been prep for il only.

itis without prejudice to the nature of certain of these features.
Sources: submissions ot the Parties; Memorial of Qatar, Vol. 17, Map 24, Memorial of Bahrain, Vol. 7, Maps 10, 11, 13 and 15

56
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 93

continental shelf and exclusive economic zone belonging to each of the
Parties, areas in which States have only sovereign rights and functional
jurisdiction. Thus both Parties have differentiated between a southern
and a northern sector.

171. In the oral proceedings Qatar argued that the Court had not been
requested to determine, on the one hand, a line delimiting the respective
territorial seas and, on the other, a delimitation line for the continental
shelf and the exclusive economic zone of each State, but to decide on the
course of a single delimitation line, regardless of the designation or inter-
national status of the various maritime areas. Qatar also drew attention
to the fact that, when the proceedings were initiated in 1991, the territo-
rial seas of both States had a breadth of 3 nautical miles and that conse-
quently the delimitation area in the southern sector also had a multifunc-
tional character.

172. By a decree of 16 April 1992, Qatar extended the breadth of its
territorial sea to 12 nautical miles; Bahrain did likewise by decree of
20 April 1993. As a result, the waters in the southern sector now consist
exclusively of territorial seas which partially overlap. According to Qatar
it would be difficult to accept, however, that the extension of the breadth
of the territorial seas to 12 nautical miles has radically changed the
parameters of the delimitation problem.

173. The Court observes that the concept of a single maritime bound-
ary does not stem from multilateral treaty law but from State practice,
and that it finds its explanation in the wish of States to establish one un-
interrupted boundary line delimiting the various — partially coincident
— zones of maritime jurisdiction appertaining to them. In the case of
coincident jurisdictional zones, the determination of a single boundary
for the different objects of delimitation

“can only be carried out by the application of a criterion, or combina-
tion of criteria, which does not give preferential treatment to one of
these .. . objects to the detriment of the other, and at the same time is
such as to be equally suitable to the division of either of them”,

as was stated by the Chamber of the Court in the Gulf of Maine case
(LCJ. Reports 1984, p. 327, para. 194). In that case, the Chamber was
asked to draw a single line which would delimit both the continental shelf
and the superjacent water column.

174. Delimitation of territorial seas does not present comparable prob-
lems, since the rights of the coastal State in the area concerned are not
functional but territorial, and entail sovereignty over the sea-bed and the
superjacent waters and air column. Therefore, when carrying out that
part of its task, the Court has to apply first and foremost the principles
and rules of international customary law which refer to the delimitation
of the territorial sea, while taking into account that its ultimate task is to
draw a single maritime boundary that serves other purposes as well.

175. The Parties agree that the provisions of Article 15 of the 1982
Convention on the Law of the Sea, headed “Delimitation of the territo-

57
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 94

rial sea between States with opposite or adjacent coasts”, are part of cus-
tomary law. This Article provides:

“Where 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 nearest point on the
baselines from which the breadth of the territorial seas of each of the
two States is measured. The above provision does not apply, how-
ever, where it is necessary by reason of historic title or other special
circumstances to delimit the territorial seas of the two States in a
way which is at variance therewith.”

176. Article 15 of the 1982 Convention is virtually identical to Ar-
ticle 12, paragraph 1, of the 1958 Convention on the Territorial Sea and
the Contiguous Zone, and is to be regarded as having a customary char-
acter. It is often referred to as the “equidistance/special circumstances”
rule. The most logical and widely practised approach is first to draw pro-
visionally an equidistance line and then to consider whether that line
must be adjusted in the light of the existence of special circumstances.
Once it has delimited the territorial seas belonging to the Parties, the
Court will determine the rules and principles of customary law to be
applied to the delimitation of the Parties’ continental shelves and their
exclusive economic zones or fishery zones. The Court will further decide
whether the method to be chosen for this delimitation differs from or is
similar to the approach just outlined.

177. The equidistance line is the line every point of which is equidis-
tant from the nearest points on the baselines from which the breadth of
the territorial seas of each of the two States is measured. It can only be
drawn when the baselines are known. Neither of the Parties has as yet
specified the baselines which are to be used for the determination of the
breadth of the territorial sea, nor have they produced official maps or
charts which reflect such baselines. Only during the present proceedings
have they provided the Court with approximate basepoints which in their
view could be used by the Court for the determination of the maritime
boundary.

*

178. The Court will therefore first determine the relevant coasts of the
Parties, from which will be determined the location of the baselines
and the pertinent basepoints which enable the equidistance line to be
measured.

179. Qatar has argued that, for purposes of this delimitation, it is the
mainland-to-mainland method which should be applied in order to con-
struct the equidistance line. It claims that the notion of “mainland”

58
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 95

applies both to the Qatar peninsula, which should be understood as
including the main Hawar Island, and to Bahrain, of which the islands to
be taken into consideration are al-Awal (also called Bahrain Island),
together with al-Muharraq and Sitrah. For Qatar, application of the
mainland-to-mainland method has two main consequences.

First, it takes no account of the islands (except for the above-
mentioned islands, Hawar on the Qatar side and al-Awal, al-Muharraq and
Sitrah on the Bahrain side), islets, rocks, reefs or low-tide elevations lying
in the relevant area. According to Qatar, the delimitation area contains
“[a] multitude of island, rock, coral or sand formations”. These features
are said to be of little significance “because of their small size, their loca-
tion and in the case of the low-tide elevations, their legal characteriza-
tion”. The majority are very small, uninhabited islands, or even simply
rocks that are quite uninhabitable, and correspond in reality to what are
often referred to in international case-law as “minor geographical
features”, in other words, to repeat the words used in the Judgment given
by the Chamber dealing with the Gulf of Maine case:

“the . . . type of minor geographical features which . . . should be
discounted if it is desired that a delimitation line should result so far
as feasible in an equal division of the areas in which the respective
maritime projections of the two countries’ coasts overlap” (1. C.J.
Reports 1984, p. 332, para. 210).

Qatar argues that what applies for islets is valid a fortiori for low-tide
elevations.

Second, in Qatar’s view, application of the mainland-to-mainland
method of calculation would also mean that the equidistance line has to
be constructed by reference to the high-water line. A clear distinction
must be drawn between the determination of the outer limit of the terri-
torial sea of a State or other territorial entity, and the delimitation of a
maritime boundary between two States with opposite coasts. The fact
that the low-water line is “the normal baseline” for determining the outer
limit of the territorial sea does not for Qatar necessarily mean that the
same low-water line is the baseline from which an equidistance line must
be constructed. In Qatar’s view, the low-water line rule is not obligatory
as a rule of general application, and the use of the high-water line is jus-
tified on both technical and legal grounds, precisely in order to achieve
an equitable delimitation. Qatar contends in particular that the low-
water line is by definition precarious, subjective or even arbitrary, in so
far as it may vary with time, whereas the high-water line can be drawn in
a sure and objective way, being relatively invariable.

59
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 96

180. Bahrain contends that it is a de facto archipelago or multiple-
island State, characterized by a variety of maritime features of diverse
character and size. All these features are closely interlinked and together
they constitute the State of Bahrain; reducing that State to a limited
number of so-called “principal” islands would be a distortion of reality
and a refashioning of geography. Since it is the land which determines
maritime rights, the relevant basepoints are situated on all those mari-
time features over which Bahrain has sovereignty.

Bahrain further contends that, according to conventional and custom-
ary international law, it is the low-water line which is determinative for
the breadth of the territorial sea and for the delimitation of overlapping
territorial waters.

181. Finally, Bahrain has stated that, as a de facto archipelagic State,
it is entitled to declare itself an archipelagic State under Part IV of the
1982 Law of the Sea Convention and to draw the permissive baselines of
Article 47 of that Convention, 1.e., “straight archipelagic baselines joining
the outermost points of the outermost islands and drying reefs of the
archipelago”. Bahrain justifies its entitlement to declare itself an archi-
pelagic State on the grounds that the ratio of sea to land in Bahrain lies,
at all moments of tidal measurement, well within the statutory spatial
ratio of the above-mentioned Article 47, namely a ratio “between 1 to 1
and 9 to 1”. Bahrain notes that it has asserted its archipelagic claims in
its diplomatic correspondence with other States and during multilateral
negotiations over the course of the last century. Further, it claims it has
been prepared to declare itself an archipelagic State but has been con-
strained from doing so by the undertaking not to modify the status quo
given in the framework of the mediation of the King of Saudi Arabia,
and that will lapse only with the judgment of this Court. It further asserts
that its entitlement to declare itself an archipelagic State is an option to
be exercised freely, and is neither contingent upon recognition by third
parties nor subject to time limitations.

182. Qatar has contested Bahrain’s claim that it is entitled to declare
itself an archipelagic State under Part IV of the 1982 Convention; it con-
tends inter alia that Part IV has not become customary law, and that
consequently it is not opposable to it. Moreover, Bahrain has never pro-
duced a claim of archipelagic status, either as regards its relations with
Qatar or with respect to other States; the basic reason for this is that
Bahrain would have difficulty in proving that it meets the relevant
requirements of the 1982 Convention, in particular the requirement relat-
ing to the ratio of the area of water to the area of land provided for in
Article 47, paragraph 1. In its final submissions Qatar asked the Court to
declare that any claim by Bahrain concerning archipelagic baselines are
irrelevant for the purpose of maritime delimitation in the present case.

183. With regard to Bahrain’s claim that it is entitled to the status of
archipelagic State in the sense of the 1982 Convention on the Law of the

60
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 97

Sea, the Court observes that Bahrain has not made this claim one of its
formal submissions and that the Court is therefore not requested to take
a position on this issue. What the Court, however, is called upon to do ts
to draw a single maritime boundary in accordance with international law.
The Court can carry out this delimitation only by applying those rules
and principles of customary law which are pertinent under the prevailing
circumstances. The Judgment of the Court will have binding force between
the Parties, in accordance with Article 59 of the Statute of the Court, and
consequently could not be put in issue by the unilateral action of either of
the Parties, and in particular, by any decision of Bahrain to declare itself
an archipelagic State.

184. The Court, therefore, will accordingly now turn to the determina-
tion of the relevant coasts from which the breadth of the territorial seas
of the Parties is measured. In this respect the Court recalls that under the
applicable rules of international law the normal baseline for measuring
this breadth is the low-water line along the coast (Art. 5, 1982 Conven-
tion on the Law of the Sea).

185. In previous cases the Court has made clear that maritime rights
derive from the coastal State’s sovereignty over the land, a principle
which can be summarized as “the land dominates the sea” (North Sea
Continental Shelf, L C.J. Reports 1969, p. 51, para. 96; Aegean Sea Con-
tinental Shelf, I C.J. Reports 1978, p. 36, para. 86).

It is thus the terrestrial territorial situation that must be taken as start-
ing point for the determination of the maritime rights of a coastal State.
In accordance with Article 121, paragraph 2, of the 1982 Convention on
the Law of the Sea, which reflects customary international law, islands,
regardless of their size, in this respect enjoy the same status, and there-
fore generate the same maritime rights, as other land territory.

186. In order to determine what constitutes Bahrain’s relevant coasts
and what are the relevant baselines on the Bahraini side, the Court must
first establish which islands come under Bahraini sovereignty.

187. In the preceding part of the Judgment (see paragraphs 98 to 165)
the Court has concluded that the Hawar Islands belong to Bahrain and
that Janan belongs to Qatar. Other islands which can be identified in the
delimitation area which are relevant for delimitation purposes in the
southern sector are Jazirat Mashtan and Umm Jalid, islands which are at
high tide very small in size, but at low tide have a surface which is con-
siderably larger. Bahrain claims to have sovereignty over these islands, a
claim which is not contested by Qatar.

188. However, the Parties are divided on the issue of whether Fasht al
Azm must be deemed to be part of the island of Sitrah or whether it is a
low-tide elevation which is not naturally connected to Sitrah Island. In
1982 Bahrain undertook reclamation works for the construction of a
petrochemical plant, during which an artificial channel was dredged
connecting the waters on both sides of Fasht al Azm.

61
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 98

189. According to Qatar, Fasht al Azm is a low-tide elevation which -
has always been separated from Sitrah Island by a natural channel (a
“fisherman’s channel”) which was navigable even at low tide; this natural
channel was filled during the 1982 construction works, as evidenced by a
technical circular of an expert of Bahrain of March 1982.

Bahrain does not deny that there are and have been natural inlets on
Fasht al Azm, which at low tide is by no means a flat sandbank, but
denies that these inlets have ever constituted a channel which would have
been navigable at low tide, separating the island of Sitrah from Fasht al
Azm. Bahrain has provided the Court with a number of maritime charts
and plots, both of British and of Bahraini origin, none of which indicates
the existence of a natural channel separating Sitrah from Fasht al Azm
which does not dry at low tide, in particular in the area mentioned in the
1982 technica! circular.

Both Parties have submitted reports of experts which come to diver-
gent conclusions as to the existence of such a permanently navigable
channel.

190. After careful analysis of the various reports, documents and
charts submitted by the Parties, the Court has been unable to establish
whether a permanent passage separating Sitrah Island from Fasht al
Azm existed before the reclamation works of 1982 were undertaken. For
the reasons explained below, the Court is nonetheless able to undertake
the requested delimitation in this sector without determining the question
whether Fasht al Azm is to be regarded as part of the island of Sitrah or
as a low-tide elevation (see paragraphs 218-220 below).

191. Another issue on which the Parties have totally opposing views is
whether Qit’at Jaradah is an island or a low-tide elevation. Qit’at Jara-
dah is a maritime feature, situated north-east of Fasht al Azm. When the
British Government decided in 1947 to draw a line dividing the sea-bed
between Bahrain and Qatar in view of the operations of oil companies in
the area concerned, it informed the two States, by letters dated 23 Decem-
ber 1947, that it recognized the Ruler of Bahrain’s “sovereign rights in
the areas of the Dibal and Jaradah shoals which are above the spring tide
low-water level”, although these two maritime features were located on
the Qatari side of the line. It added that “these shoals should not be con-
sidered to be islands having territorial waters” (see paragraph 61 above).

192. From the foregoing it is clear that the British Government was of
the view that Qit’at Jaradah and Fasht ad Dibal were not islands at the
time the dividing line of 1947 was drawn. Bahrain, however, contended
that there are strong indications that even before 1947, Qit’at Jaradah
was an island that remained dry at high tide and that in any event, it
certainly was after that date. It referred in this respect to a number of
eyewitness reports which concluded that it was evident that part of its
sandbank had not been covered by water for some time. Bahrain further

62
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 99

stated that Qit’at Jaradah, after the upper part of its surface had been
removed on Qatar’s instruction in 1986, recovered its island status by
natural accretion.

193. Qatar maintains that Qit’at Jaradah is not, and has never been,
reflected on nautical charts as an island but always as a low-tide elevation
and that this is in conformity with its true character. Even if there are
periods when it has not been completely submerged at high tide, its
physical status has been constantly changing, and it should therefore be
considered for legal purposes to be no more than a shoal, despite the
attempts made by Bahrain in 1985-1986 to alter its nature.

194. Bahrain commissioned an expert to examine the geographical
situation: this expert concluded that Qit'at Jaradah — though small in
size — is permanently above water, and is thus an island. Qatar asked
two experts to evaluate this conclusion; they considered that the surveys
conducted in 1998 by the Bahraini expert “did not provide a basis for a
definitive determination whether it is an islet or a low-tide elevation”.

195. The Court recalls that the legal definition of an island is “a natu-
rally formed area of land, surrounded by water, which is above water at
high tide” (1958 Convention on the Territorial Sea and Contiguous
Zone, Art. 10, para. 1; 1982 Convention on the Law of the Sea, Art. 121,
para. 1). The Court has carefully analysed the evidence submitted by the
Parties and weighed the conclusions of the experts referred to above, in
particular the fact that the experts appointed by Qatar did not themselves
maintain that it was scientifically proven that Qit’at Jaradah is a low-tide
elevation. On these bases, the Court concludes that the maritime feature
of Qit’at Jaradah satisfies the above-mentioned criteria and that it is an
island which should as such be taken into consideration for the drawing
of the equidistance line.

196. Bahrain claims that Qit’at Jaradah comes under Bahraini sover-
eignty, since it has displayed its authority over it in various ways, and
that this was recognized by the British Government in 1947. In this
respect it has referred to a number of activities, including the erection of
a beacon, the ordering of the drilling of an artesian well, the granting of
an oil concession, and the licensing of fish traps. Qatar contends that
Qit’at Jaradah, being a low-tide elevation, cannot be appropriated, and
that, since it is situated in the part of the territorial sea which belong to
Qatar, Qatar has sovereign rights over it.

197. The Court first notes that Qit’at Jaradah is a very small island
situated within the 12-mile limit of both States. According to the report
of the expert commissioned by Bahrain, at high tide its length and
breadth are about 12 by 4 metres, whereas at low tide they are 600 and
75 metres. At high tide, its altitude is approximately 0.4 metres.

Certain types of activities invoked by Bahrain such as the drilling of

63
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 100

artesian wells would, taken by themselves, be considered controversial as
acts performed à titre de souverain. The construction of navigational
aids, on the other hand, can be legally relevant in the case of very small
islands. In the present case, taking into account the size of Qit’at Jara-
dah, the activities carried out by Bahrain on that island must be consid-
ered sufficient to support Bahrain’s claim that it has sovereignty over it.

198. In this context the Court recalls that the Permanent Court of
International Justice observed in the Legal Status of Eastern Greenland
case that

“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 A/B, No. 53, p. 46.)

199. Similar acts of authority have been invoked by Bahrain in order
to support its claim that it has sovereignty over Fasht ad Dibal. In this
respect Bahrain recalls that the British Government in 1947 recognized
that Bahrain had sovereign rights over Fasht ad Dibal, even if it could
not be considered as an island having territorial waters.

200. Both Parties agree that Fasht ad Dibal is a low-tide elevation.
Whereas Qatar maintains — just as it did with regard to Qit’at Jaradah
— that Fasht ad Dibal as a low-tide elevation cannot be appropriated,
Bahrain contends that low-tide elevations by their very nature are terri-
tory, and therefore can be appropriated in accordance with the criteria
which pertain to the acquisition of territory. “Whatever their location,
low-tide elevations are always subject to the law which governs the acqui-
sition and preservation of territorial sovereignty, with its subtle dialectic
of title and effectivités.”

201. According to the relevant provisions of the Conventions on the
Law of the Sea, which reflect customary international law, a low-tide
elevation is a naturally formed area of land which is surrounded by and
above water at low tide but submerged at high tide (1958 Convention on
the Territorial Sea and the Contiguous Zone, paragraph | of Article 11;
1982 Convention on the Law of the Sea, paragraph | of Article 13).

Under these provisions, the low-water line of a low-tide elevation may
be used as the baseline for measuring the breadth of the territorial sea if
it is situated wholly or partly at a distance not exceeding the breadth of
the territorial sea from the mainland or an island. If a low-tide elevation
is wholly situated at a distance exceeding the breadth of the territorial
sea, it has no territorial sea of its own. The above-mentioned Conven-
tions further provide that straight baselines shall not be drawn to and

64
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 101

from low-tide elevations, unless lighthouses or similar installations which
are permanently above sea level have been built on them (1958 Con-
vention, paragraph 3 of Article 4; 1982 Convention, paragraph 4 of
Article 7). According to Bahrain this is the case with regard to all low-
tide elevations which are relevant in the present case for the delimita-
tion process.

202. When a low-tide elevation is situated in the overlapping area of
the territorial sea of two States, whether with opposite or with adjacent
coasts, both States in principle are entitled to use its low-water line for
the measuring of the breadth of their territorial sea. The same low-tide
elevation then forms part of the coastal configuration of the two States.
That is so even if the low-tide elevation is nearer to the coast of one State
than that of the other, or nearer to an island belonging to one party than
it is to the mainland coast of the other. For delimitation purposes the
competing rights derived by both coastal States from the relevant provi-
sions of the law of the sea would by necessity seem to neutralize each
other.

203. In Bahrain’s view, however, it depends upon the effectivités pre-
sented by the two coastal States which of them has a superior title to the
low-tide elevation in question and is therefore entitled to exercise the
right attributed by the relevant provisions of the law of the sea, just as in
the case of islands which are situated within the limits of the breadth of
the territorial sea of more than one State.

Bahrain contends that it has submitted sufficient evidence of the dis-
play of sovereign authority over all the low-tide elevations situated in
the sea between Bahrain’s main islands and the coast of the Qatar
peninsula.

204. Whether this claim by Bahrain is well founded depends upon the
answer to the question whether low-tide elevations are territory and can
be appropriated in conformity with the rules and principles of territorial
acquisition. In the view of the Court, the question in the present case is
not whether low-tide elevations are or are not part of the geographical
configuration and as such may determine the legal coastline. The relevant
rules of the law of the sea explicitly attribute to them that function when
they are within a State’s territorial sea. Nor is there any doubt that a
coastal State has sovereignty over low-tide elevations which are situated
within its territorial sea, since it has sovereignty over the territorial sea
itself, including its sea-bed and subsoil. The decisive question for the
present case is whether a State can acquire sovereignty by appropriation
over a low-tide elevation situated within the breadth of its territorial sea
when that same low-tide elevation lies also within the breadth of the ter-
ritorial sea of another State.

205. International treaty law is silent on the question whether low-
tide elevations can be considered to be “territory”. Nor is the Court

65
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 102

aware of a uniform and widespread State practice which might have
given rise to a customary rule which unequivocally permits or excludes
appropriation of low-tide elevations. It is only in the context of the law
of the sea that a number of permissive rules have been established with
regard to low-tide elevations which are situated at a relatively short dis-
tance from a coast.

206. The few existing rules do not justify a general assumption that
low-tide elevations are territory in the same sense as islands. It has never
been disputed that islands constitute terra firma, and are subject to the
rules and principles of territorial acquisition; the difference in effects
which the law of the sea attributes to islands and low-tide elevations is
considerable. It is thus not established that in the absence of other rules
and legal principles, low-tide elevations can, from the viewpoint of the
acquisition of sovereignty, be fully assimilated with islands or other land
territory.

207. In this respect the Court recalls the rule that a low-tide elevation
which is situated beyond the limits of the territorial sea does not have a
territorial sea of its own. A low-tide elevation, therefore, as such does
not generate the same rights as islands or other territory. Moreover, it is
generally recognized and implicit in the words of the relevant provisions
of the Conventions on the Law of the Sea that, whereas a low-tide eleva-
tion which is situated within the limits of the territorial sea may be used
for the determination of its breadth, this does not hold for a low-tide
elevation which is situated less than 12 nautical miles from that low-tide
elevation but is beyond the limits of the territorial sea. The law of the sea
does not in these circumstances allow application of the so-called “leap-
frogging” method. In this respect it is irrelevant whether the coastal
State has treated such a low-tide elevation as its property and carried out
some governmental acts with regard to it; it does not generate a terri-
torial sea.

208. Paragraph 3 of Article 4 of the 1958 Convention on the Territo-
rial Sea and the Contiguous Zone and paragraph 4 of Article 7 of the
1982 Convention on the Law of the Sea provide that straight baselines
shall not be drawn to and from low-tide elevations unless lighthouses or
similar installations which are permanently above sea level have been
built on them. These provisions are another indication that low-tide
elevations cannot be equated with islands, which under all circumstances
qualify as basepoints for straight baselines.

209. The Court, consequently, is of the view that in the present case
there is no ground for recognizing the right of Bahrain to use as a base-
line the low-water line of those low-tide elevations which are situated in
the zone of overlapping claims, or for recognizing Qatar as having such a

66
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 103

right. The Court accordingly concludes that for the purposes of drawing
the equidistance line, such low-tide elevations must be disregarded.

*

210. Bahrain has contended that, as a multiple-island State, its coast
consists of the lines connecting its outermost islands and such low-tide
elevations as lie within their territorial waters. Without explicitly refer-
ring to Article 4 of the 1958 Convention on the Territorial Sea and the
Contiguous Zone or Article 7 of the 1982 Convention on the Law of the
Sea, Bahrain in its reasoning and in the maps provided to the Court
applied the method of straight baselines. This is also clear from its con-
tention that the area of sea to the west of the Hawar Islands, between
these islands and Bahrain’s main island, is comprised of internal waters
of Bahrain.

211. Bahrain maintains that as a multiple-island State characterized
by a cluster of islands off the coast of its main islands, it is entitled to
draw a line connecting the outermost islands and low-tide elevations.
According to Bahrain, in such cases the external fringe should serve as
the baseline for the territorial sea.

212. The Court observes that the method of straight baselines, which
is an exception to the normal rules for the determination of baselines,
may only be applied if a number of conditions are met. This method must
be applied restrictively. Such conditions are primarily that either the
coastline is deeply indented and cut into, or that there is a fringe of
islands along the coast in its immediate vicinity.

213. The fact that a State considers itself a multiple-island State or a
de facto archipelagic State does not allow it to deviate from the normal
rules for the determination of baselines unless the relevant conditions are
met. The coasts of Bahrain’s main islands do not form a deeply indented
coast, nor does Bahrain claim this. It contends, however, that the mari-
time features off the coast of the main islands may be assimilated to a
fringe of islands which constitute a whole with the mainland.

214. The Court does not deny that the maritime features east of Bah-
rain’s main islands are part of the overall geographical-configuration; it
would be going too far, however, to qualify them as a fringe of islands
along the coast. The islands concerned are relatively small in number.
Moreover, in the present case it is only possible to speak of a “cluster of
islands” or an “island system” if Bahrain’s main islands are included in
that concept. In such a situation, the method of straight baselines is
applicable only if the State has declared itself to be an archipelagic State
under Part IV of the 1982 Convention on the Law of the Sea, which is
not true of Bahrain in this case.

215. The Court, therefore, concludes that Bahrain is not entitled to
apply the method of straight baselines. Thus each maritime feature has

67
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 104

its own effect for the determination of the baselines, on the understand-
ing that, on the grounds set out before, the low-tide elevations situated in
the overlapping zone of territorial seas will be disregarded. It is on this
basis that the equidistance line must be drawn.

216. Fasht al Azm however requires special mention. If this feature
were to be regarded as part of the island of Sitrah, the basepoints for the
purposes of determining the equidistance line would be situated on Fasht
al Azm’s eastern low-water line. If it were not to be regarded as part of
the island of Sitrah, Fasht al Azm could not provide such basepoints. As
the Court has not determined whether this feature does form part of the
island of Sitrah (see paragraph 190 above), it has drawn two equidistance
lines reflecting each of these hypotheses (see sketch-maps Nos. 3, 4, 5 and
6, pp. 105-108 below).

*

217. The Court now turns to the question of whether there are special
circumstances which make it necessary to adjust the equidistance line as
provisionally drawn in order to obtain an equitable result in relation to
this part of the single maritime boundary to be fixed (see the case con-
cerning Maritime Delimitation in the Area between Greenland and
Jan Mayen (Denmark v. Norway), Judgment, 1 C.J. Reports 1993, p. 60,
para. 50, p. 62, para. 54).

218. The first question to be considered is that of Fasht al Azm. The
Court considers that if Fasht al Azm were to be regarded as part of the
island of Sitrah, it would not be appropriate to take the equidistance line
as the maritime boundary since, in view of the fact that less than 20 per
cent of the surface of this island is permanently above water, this would
place the boundary disproportionately close to Qatar’s mainland coast
(see sketch-maps Nos. 3 and 5, pp. 105 and 107 below). If, on the other
hand, Fasht al Azm were to be regarded as a Jow-tide elevation, the equi-
distance line would brush Fasht al Azm, and for this reason would also
be an inappropriate delimitation line (see sketch-maps Nos. 3 and 6,
pp. 105 and 108 below). The Court considers that, on either hypothesis,
there are thus special circumstances which justify choosing a delimitation
line passing between Fasht al Azm and Qit’at ash Shajarah.

219. The next question to be considered is that of Qit’at Jaradah. The
Court observes that Qit’at Jaradah is a very small island, uninhabited
and without any vegetation. This tiny island, which — as the Court has
determined (see paragraph 197 above) — comes under Bahraini sover-
eignty, is situated about midway between the main island of Bahrain and
the Qatar peninsula, Consequently, if its low-water line were to be used
for determining a basepoint in the construction of the equidistance line,
and this line taken as the delimitation line, a disproportionate effect

68
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 105

Sketch-map No. 3. Equidistance Line Taking into Consideration All the Islands
and Those Low-tide Elevations Located in the Territorial Sea of One State only

50°E 15 3c’ 45 51°E 15° 30’ 45
20° . 4 : | ; } : | . + ; 4 . 20°

i 1 4 I À : À E

nu “—~ equidistance ine : : |
- line if Fasht al Azm is regarded as a low-tide elevation :
——— line if Fasht al Azm is s regarded as part of the island of Sitrah

bt 10°

| Saudi
11 16 kilometres ?
poe Marcator x projection. : i :
; : :
SE 15° 30" 45 51 Of 16 30° 45

This sketch-map, on which maritime teatures are shown in simplified form, has been prepared for ilustralive purposes only.
(tis without prejudice to the nature of certain of these features
The framed zones are enlarged in SKETCH-MAP Nos. 4, 5 and 6

69
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 106

Sketch-map No. 4. Enlargement of Sketch-map No. 3 (Region of the
Hawar Islands)

42" 45° 48° 51 54 57" 51°E
| } . { : | | x |
52° + aus be eee ee et : ou “ht 52°
50° eee tue gas Na rss ee er as ces ssesmrevrs te _ §0'

ICH.

48' + r- 48°

46 ll . : re oa : : we + if bene eee Eh ee . = 46’

44: Le 44’
42 4 a do ee ne D ie ci sou RE 42

38 — Lg
36° HN Ed D si“‘i‘yst“ e ri 36°
wo rt 34"
32° - > 32°
30 SF 30
42 45° 48" 51 54° 57 51 oF
This sketch-map, on which maritime features are shown in simplified form, has been prep. for Mustrative p only.

{t is without prejudice to the nature of certain of these features.
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 107

Sketch-map No. 5. Enlargement of Sketch-map No. 3 (Fasht al Azm Being
Regarded as Part of the Island of Sitrah)

40° 4a 4g 62" ss 51°E 4

PEL ila

6

48° f = 1 T 48

T Lf
40° 44 48° §2° 56° 51°E 4
This sketch-map, on which maritime features are shown in simpidied form, has been prep: for à F onty.

itis without prejudice to the nature of certain of these features.

71

MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 108

Sketch-map No. 6. Enlargement of Sketch-map No. 3 (Fasht al Azm Being
Regarded as a Low-tide Elevation)

52 56° 51°E a

ë
IPs
&

L
44 48° s2° 56 512€

This sketch-map, on which maritime features are shown in simphfied form, has been prap. fori ive Purp only.
ttis without prejudice to the nature of certain of these features.

72
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 109

would be given to an insignificant maritime feature (see sketch-maps
Nos. 3, 5 and 6, pp. 105, 107 and 108 above).

In similar situations the Court has sometimes been led to eliminate the
disproportionate effect of small islands (see North Sea Continental Shelf,
LCJ. Reports 1969, p. 36, para. 57; Continental Shelf (Libyan Arab
Jamahiriyal Malta), Judgment, 1 C.J. Reports 1985, p. 48, para. 64). The
Court thus finds that there is a special circumstance in this case warrant-
ing the choice of a delimitation line passing immediately to the east of
Qit’at Jaradah.

220. The Court observed earlier (see paragraph 216 above) that, since
it did not determine whether Fasht al Azm is part of Sitrah island or a
separate low-tide elevation, it is necessary to draw provisionally two
equidistance lines. If no effect is given to Qit’at Jaradah and in the event
that Fasht al Azm is considered to be part of Sitrah island, the equi-
distance line thus adjusted cuts through Fasht ad Dibal leaving the greater
part of it on the Qatari side. If, however, Fasht al Azm is seen as a
low-tide elevation, the adjusted equidistance line runs west of Fasht ad
Dibal. In view of the fact that under both hypotheses, Fasht ad Dibal is
largely or totally on the Qatari side of the adjusted equidistance line, the
Court considers it appropriate to draw the boundary line between Qit’at
Jaradah and Fasht ad Dibal. As Fasht ad Diba! thus is situated in the
territorial sea of Qatar, it falls for that reason under the sovereignty of
that State.

221. The Court is now in a position to determine the course of that
part of the single maritime boundary which will delimit the territorial
seas of the Parties. Before doing so the Court notes, however, that it can-
not fix the boundary’s southernmost point, since its definitive location is
dependent upon the limits of the respective maritime zones of Saudi
Arabia and of the Parties. The Court also considers it appropriate, in
accordance with common practice, to simplify what would otherwise be
a very complex delimitation line in the region of the Hawar Islands.

222. Taking account of all of the foregoing, the Court decides that,
from the point of intersection of the respective maritime limits of Saudi
Arabia on the one hand and of Bahrain and Qatar on the other, which
cannot be fixed, the boundary will follow a north-easterly direction, then
immediately turn in an easterly direction, after which it will pass between
Jazirat Hawar and Janan; it will subsequently turn to the north and pass
between the Hawar Islands and the Qatar peninsula and continue in a
northerly direction, leaving the low-tide elevation of Fasht Bu Thur, and
Fasht al Azm, on the Bahraini side, and the low-tide elevations of Qita’a
el Erge and Qit’at ash Shajarah on the Qatari side; finally it will pass
between Qit’at Jaradah and Fasht ad Dibal, leaving Qit’at Jaradah on
the Bahraini side and Fasht ad Dibal on the Qatari side.

223. The Court notes that, because of the line thus adopted, Qatar’s
maritime zones situated to the south of the Hawar Islands and those
situated to the north of those islands are connected only by the channel

73
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 110

separating the Hawar Islands from the peninsula. This channel is narrow
and shallow, and little suited to navigation.

The Court therefore emphasizes that, as Bahrain is not entitled to
apply the method of straight baselines (see paragraph 215 above), the
waters lying between the Hawar Islands and the other Bahraini islands
are not internal waters of Bahrain, but the territorial sea of that State.
Consequently, Qatari vessels, like those of all other States, shall enjoy in
these waters the right of innocent passage accorded by customary inter-
national law. In the same way, Bahraini vessels, like those of all other
States, enjoy this right of innocent passage in the territorial sea of Qatar.

*

224. The Court will now deal with the drawing of the single maritime
boundary in that part of the delimitation area which covers both the con-
tinental shelf and the exclusive economic zone (see paragraph 170 above).

225. In its Judgment of 1984, the Chamber of the Court dealing with
the Gulf of Maine case noted that an increasing demand for single delimi-
tation was foreseeable in order to avoid the disadvantages inherent in a
plurality of separate delimitations; according to the Chamber, “prefer-
ence will henceforth inevitably be given to criteria that, because of their
more neutral character, are best suited for use in a multi-purpose delimi-
tation” (C.J. Reports 1984, p. 327, para. 194).

226. The Court itself referred to the close relationship between conti-
nental shelf and exclusive economic zone for delimitation purposes in its
Judgment in the case concerning the Continental Shelf (Libyan Arab
Jamahiriyal Malta). It observed that

“even though the present case relates only to the delimitation of the
continental shelf and not to that of the exclusive economic zone, the
principles and rules underlying the latter concept cannot be left out
of consideration. As the 1982 Convention demonstrates the two
institutions — continental shelf and exclusive economic zone — are
linked together in modern law.” (1 C.J. Reports 1985, p. 33, para. 33.)

And the Court went on to say that, in case of delimitation, “greater
importance must be attributed to elements, such as distance from the
coast, which are common to both concepts” (ibid. ).

227. A similar approach was taken by the Court in the Jan Mayen
case, where it was also asked to draw a single maritime boundary. With
regard to the delimitation of the continental shelf the Court stated that

“even if it were appropriate to apply . . . customary law concern-
ing the continental shelf as developed in the decided cases [the
Court had referred to the Gulf of Maine and the Libyan Arab Jama-

74
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 111

hiriyal Malta cases], it is in accord with precedents to begin with the
median line as a provisional line and then to ask whether ‘special
circumstances’ [the term used in Article 6 of the 1958 Convention
on the Continental Shelf, which was the applicable law in the case]
require any adjustment or shifting of that line” (Z C.J. Reports 1993,
p. 61, para. 51).

228. After having come to a similar conclusion with regard to the
fishery zones, the Court stated:

“It thus appears that, both for the continental shelf and for the
fishery zones in this case, it is proper to begin the process of delimi-
tation by a median line provisionally drawn.” (/bid., p. 62, para. 53.)

229. The Court went on to say that it was further called upon to
examine those factors which might suggest an adjustment or shifting
of the median line in order to achieve an “equitable result”. The Court
concluded:

“It is thus apparent that special circumstances are those circum-
stances which might modify the result produced by an unqualified
application of the equidistance principle. General international law,
as it has developed through the case-law of the Court and arbitral
jurisprudence, and through the work of the Third United Nations
Conference on the Law of the Sea, has employed the concept of
‘relevant circumstances’. This concept can be described as a fact
necessary to be taken into account in the delimitation process.”
(Ibid, p. 62, para. 55.)

230. The Court will follow the same approach in the present case. For
the delimitation of the maritime zones beyond the 12-mile zone it will
first provisionally draw an equidistance line and then consider whether
there are circumstances which must lead to an adjustment of that line.

231. The Court further notes that the equidistance/special circum-
stances rule, which is applicable in particular to the delimitation of the
territorial sea, and the equitable principles/relevant circumstances rule, as
it has been developed since 1958 in case-law and State practice with
regard to the delimitation of the continental shelf and the exclusive eco-
nomic zone, are closely interrelated.

232. The Court will now examine whether there are circumstances
which might make it necessary to adjust the equidistance line in order to
achieve an equitable result.

233. The Court recalls first that in its Judgment in the case concerning
the Continental Shelf (Libyan Arab Jamahiriyal Malta) it said:

“the equidistance method is not the only method applicable to the
present dispute, and it does not even have the benefit of a presump-

75
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 112

tion in its favour. Thus, under existing law, it must be demonstrated
that the equidistance method leads to an equitable result in the case
in question.” (C.J. Reports 1985, p. 47, para. 63.)

234. The Court wishes, furthermore, to repeat what it said in its Judg-
ment in the North Sea Continental Shelf case:

“Delimitation in an equitable manner is one thing, but not the
same thing as awarding a just and equitable share of a previously
undelimited area, even though in a number of cases the results may
be comparable, or even identical.” (2C.J. Reports 1969, p. 22,
para. 18.)

In the same sense the Court stated in the Judgment in the Jan Mayen
case:

“The task of a tribunal is to define the boundary line between the

areas under the maritime jurisdiction of two States; the sharing-out

of the area is therefore the consequence of the delimitation, not vice
versa.” (LC.J. Reports 1993, p. 67, para. 64.)

235. Bahrain has claimed that there are a significant number of pearl-
ing banks, many of which are situated to the north of the Qatar penin-
sula, which have appertained to Bahrain since time immemorial and that
they constitute a special circumstance which must be taken into consid-
eration in carrying out the delimitation.

Qatar denies that Bahrain has ever had exclusive rights over the exploi-
tation of the pearling banks. While not denying that Bahraini fishermen
have been active in pearl diving in the area concerned and that the Ruler
of Bahrain had personal jurisdiction over these fishermen and their boats,
Qatar claims that these fisheries have always been considered as common
to all tribes along the shores of the Gulf.

Qatar also argued that Bahrain’s claim had lost its relevance in any
event, because the pearl fisheries had ceased to exist over half a century
ago.

236. The Court first takes note of the fact that the pearling industry
effectively ceased to exist a considerable time ago.

It further observes that, from the evidence submitted to it, it is clear
that pearl diving in the Gulf area traditionally was considered as a right
which was common to the coastal population. Mention should be made
in this respect of the reply given in March 1903 by the British Political
Resident in the Gulf to a French entrepreneur who wished to engage in
pearl diving and had raised the possibility of seeking permission from the
Ruler of Bahrain; the Political Resident told this entrepreneur that “the
pearl banks were the common property of the coast Arabs and that the
Chief of Bahrain had no right to give any one permission to take part in
the diving operations”. Moreover, even if it were taken as established
that pearling had been carried out by a group of fishermen from one
State only, this activity seems in any event never to have led to the recog-

76
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 113

nition of an exclusive quasi-territorial right to the fishing grounds them-
selves or to the superjacent waters.

The Court, therefore, does not consider the existence of pearling
banks, though predominantly exploited in the past by Bahrain fishermen,
as forming a circumstance which would justify an eastward shifting of the
equidistance line as requested by Bahrain.

237. In its Application of 1991 Qatar requested the Court to draw the
single maritime boundary “with due regard to the line dividing the sea-
bed of the two States as described in the British decision of 23 December
1947” (see paragraph 31 above). According to Qatar

“the 1947 line in itself constitutes a special circumstance insofar as it
was drawn in order to permit each of the two interested States actu-
ally to exercise its inherent right over the sea-bed. While it cannot be
said that any historic title has derived from that decision, the situa-
tion thus created however does not fall short of it.”

During the oral proceedings Qatar modulated this view when it said
that

“the nature of the 1947 line... relates not so much to the line itself,
as drawn, but rather to the elements on the basis of which the line
was drawn by the British; in our view the important factor is, above
all, that this line was drawn starting from the principal coasts and
was constructed in a simplified manner on the basis of a few signifi-
cant points”.

238. Bahrain has contested the relevance of the 1947 line for the
present delimitation process on a number of grounds. It stated, inter alia,
that its course does not meet the requirements of contemporary law and
that it merely served the purpose of regulating activities of oil companies
and was not intended by its authors nor understood by its recipients as
having binding legal force.

239. The Court does not need to determine the legal character of the
“decision” contained in the letters of 23 December 1947 to the Rulers of
Bahrain and Qatar with respect to the division of the sea-bed. It suffices
for it to note that neither of the Parties has accepted it as a binding deci-
sion and that they have invoked only parts of it to support their argu-
ments.

240. The Court further observes that the British decision only con-
cerned the division of the sea-bed between the Parties. The delimitation
to be effected by the Court, however, is partly a delimitation of the ter-
ritorial sea and partly a combined delimitation of the continental shelf

77
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 114

and the exclusive economic zone. The 1947 line cannot therefore be con-
sidered to have direct relevance for the present delimitation process.

241. Qatar has also argued that there is a significant disparity between
the coastal lengths of the Parties, and that the ratio of its mainland
coast to that of Bahrain’s principal islands is 1.59: 1. It has referred to
earlier decisions of the Court where the Court has qualified a substantial
disparity between the lengths of the coasts as a special or relevant cir-
cumstance calling for an appropriate correction of the delimitation line
provisionally arrived at.

242. Bahrain has stated that the purported disparity is the result of
Qatar’s assumption that the Hawar Islands are under its sovereignty; if
these islands are considered as appertaining to Bahrain, the lengths of the
relevant coasts would be almost equal.

243. Taking into account the fact that the Court has decided that Bah-
rain has sovereignty over the Hawar Islands, the disparity in length of the
coastal fronts of the Parties cannot be considered such as to necessitate
an adjustment of the equidistance line.

244. The Court will now consider whether there are other reasons
which might require an adjustment of the course of the equidistance line
in order to achieve an equitable solution.

245. In drawing the line which delimits the continental shelves and
exclusive economic zones of the Parties the Court cannot ignore the loca-
tion of Fasht al Jarim, a sizeable maritime feature partly situated in the
territorial sea of Bahrain. The Parties have expressed differing views on
the legal nature of this maritime feature but, in any event, given the fea-
ture’s location, its low-water line may be used as the baseline from which
the breadth not only of the territorial sea, but also of the continental
shelf and the exclusive economic zone, is measured.

246. The Court recalls that in the Libyan Arab Jamahiriyal Malta case,
referred to above, it stated:

“the equitableness of an equidistance line depends on whether the
precaution is taken of eliminating the disproportionate effect of cer-
tain ‘islets, rocks and minor coastal projections’, to use the language
of the Court in its 1969 Judgment [(case concerning North Sea Con-
tinental Shelf)|? U.C.J. Reports 1985, p. 48, para. 64).

247. The Court further recalls that in the northern sector the coasts of
the Parties are comparable to adjacent coasts abutting on the same mari-
time areas extending seawards into the Gulf. The northern coasts of the
territories belonging to the Parties are not markedly different in character
or extent; both are flat and have a very gentle slope. The only noticeable
element is Fasht al Jarim as a remote projection of Bahrain’s coastline in
the Gulf area, which, if given full effect, would “distort the boundary and

78
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 115

have disproportionate effects” (Continental Shelf case (France/United
Kingdom), United Nations, Reports of International Arbitral Awards,
Vol. XVIII, p. 114, para. 244).

248. In the view of the Court, such a distortion, due to a maritime fea-
ture located well out to sea and of which at most a minute part is above
water at high tide, would not lead to an equitable solution which would
be in accord with all other relevant factors referred to above. In the cir-
cumstances of the case considerations of equity require that Fasht al
Jarim should have no effect in determining the boundary line in the
northern sector.

249. The Court accordingly decides that the single maritime boundary
in this sector shall be formed in the first place by a line which, from a
point situated to the north-west of Fasht ad Dibal, shall meet the equi-
distance line as adjusted to take account of the absence of effect given to
Fasht al Jarim. The boundary shall then follow this adjusted equidistance
line until it meets the delimitation line between the respective maritime
zones of Iran on the one hand and of Bahrain and Qatar on the other.

*

250. The Court concludes from all of the foregoing that the single
maritime boundary that divides the various maritime zones of the State
of Qatar and the State of Bahrain shall be formed by a series of geodesic
lines joining, in the order specified, the points with the following co-
ordinates:

(World Geodetic System, 1984)
Point Latitude North Longitude East

1 25° 34’ 34” 50° 34’ 3”
25° 35’ 10” 50° 34’ 48”

3 25° 34’ 53” 50° 41’ 22”
4 25° 34’ 50” 50° 41’ 35”
5 25° 34’ 21” 50°44’ 5”
6 25° 33’ 29” 50° 45’ 49”
7 25° 32’ 49” 50° 46’ 11”
8 25° 32’ 55” 50° 46’ 48”
9 25° 32’ 43” 50° 47’ 46”
10 25°32’ 6” 50° 48’ 36”
Il 25° 32’ 40” 50° 48’ 54”
12 25° 32’ 55” 50° 48’ 48”
13 25° 33’ 44” 50° 49’ 4”
14 25° 33’ 49” 50° 48’ 32”
15 25° 34’ 33” 50° 47’ 37”
16 25° 35’ 33” 50° 46’ 49”

79
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 116

Point Latitude North Longitude East

17 25°37’ 21” 50° 47’ 54”
18 25° 37’ 45” 50° 49’ 44”
19 25° 38” 19” 50° 50’ 22”
20 25° 38’ 43” 50° 50’ 26”
21 25° 39’ 31” 50° 50’ 6”
22 25° 40’ 10” 50° 50’ 30”
23 25°41’ 27” 50° 51’ 43”
24 25° 42’ 27” 50°51’ 9”
25 25°44’ 7” 50° 51° 58”
26 25° 44’ 58” 50° 52’ 5”
27 25° 45’ 35” 50° 51753”
28 25°46’ 0” 50° 51°40”
29 25° 46’ 57” 50° 51’ 23”
30 25° 48’ 43” 50° 50° 32”
31 25° 51’ 40” 50° 49° 53”
32 25° 52’ 26” 50° 49 12”
33 25° 53’ 42” 50° 48’ 57”
34 26° 0°40” 50° 51’ 00”
35 26° 4’ 38” 50° 54’ 27”
36 26°11’ 2” 50° 55’ 3”
37 26° 15’ 55” 50° 55’ 22”
38 26° 17’ 58” 50° 55’ 58”
39 26°20’ 2” 50° 57’ 16”
40 26° 26’ 11” 50° 59’ 12”
41 26° 43’ 58” 51° 3’ 16”
42 27° 2’ 0” 51° 7711"

Below point 1, the single maritime boundary shall follow, in a south-
westerly direction, a loxodrome having an azimuth of 234° 16’ 53”, until it
meets the delimitation line between the respective maritime zones of
Saudi Arabia on the one hand and of Bahrain and Qatar on the other.
Beyond point 42, the single maritime boundary shall follow, in a north-
north-easterly direction, a loxodrome having an azimuth of 12°15’12”,
until it meets the delimitation line between the respective maritime zones
of Iran on the one hand and of Bahrain and Qatar on the other.

251. The course of this boundary has been indicated, for illustrative
purposes only, on sketch-map No. 7 attached to the Judgment!.

x * x

252. For these reasons,
THE Court,
(1) Unanimously,

' A copy of this map will be found in a pocket at the end of this fascicle or inside the
back cover of the volume of Z C.J. Reports 2001. [Note by the Registry. ]

80
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 117

Finds that the State of Qatar has sovereignty over Zubarah;
(2) (a) By twelve votes to five,

Finds that the State of Bahrain has sovereignty over the Hawar Islands;

IN FAVOUR: President Guillaume; Vice-President Shi; Judges Oda, Herc-
zegh, Fleischhauer, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-
Khasawneh, Buergenthal; Judge ad hoc Fortier;

AGAINST: Judges Bedjaoui, Ranjeva, Koroma, Vereshchetin; Judge ad hoc
Torres Bernärdez;

(6) Unanimously,

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 customary international law;

(3) By thirteen votes to four,

Finds that the State of Qatar has sovereignty over Janan Island,
including Hadd Janan;
IN FAVOUR: President Guillaume; Vice-President Shi; Judges Bedjaoui,
Ranjeva, Herczegh, Fleischhauer, Koroma, Vereshchetin, Parra-Aranguren,
Rezek, Al-Khasawneh, Buergenthal; Judge ad hoc Torres Bernardez;

AGAINST: Judges Oda, Higgins, Kooijmans; Judge ad hoc Fortier;

(4) By twelve votes to five,

Finds that the State of Bahrain has sovereignty over the island of Qit’at
Jaradah;
IN FAVOUR: President Guillaume; Vice-President Shi; Judges Oda, Herc-
zegh, Fleischhauer, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-
Khasawneh, Buergenthal; Judge ad hoc Fortier;

AGAINST: Judges Bedjaoui, Ranjeva, Koroma, Vereshchetin; Judge ad hoc
Torres Bernardez:

(5) Unanimously,

Finds that the low-tide elevation of Fasht ad Diba! falls under the
sovereignty of the State of Qatar;

(6) By thirteen votes to four,

Decides that the single maritime boundary that divides the various
maritime zones of the State of Qatar and the State of Bahrain shall be
drawn as indicated in paragraph 250 of the present Judgment;

IN FAVOUR: President Guillaume; Vice-President Shi; Judges Oda, Herczegh,

Fleischhauer, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek,
Al-Khasawneh, Buergenthal; Judge ad hoc Fortier;

AGAINST: Judges Bedjaoui, Ranjeva, Koroma; Judge ad hoc Torres
Bernardez.

81
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (JUDGMENT) 118

Done in French and in English, the French text being authoritative, at
the Peace Palace, The Hague, this sixteenth day of March two thousand
and one, in three copies, one of which will be placed in the archives of the
Court and the others transmitted to the Government of the State of
Qatar and the Government of the State of Bahrain, respectively.

(Signed) Gilbert GUILLAUME,
President.

(Signed) Philippe Couvreur,
Registrar.

Judge ODA appends a separate opinion to the Judgment of the Court:
Judges BEDJIAOUI, RANJEVA and Koroma append a joint dissenting opinion
to the Judgment of the Court; Judges HERCZEGH, VERESHCHETIN and
HicGins append declarations to the Judgment of the Court; Judges
PARRA-ARANGUREN, KOOIMANS and AL-KHASAWNEH append separate
opinions to the Judgment of the Court; Judge ad hoc TORRES BERNARDEZ
appends a dissenting opinion to the Judgment of the Court; Judge ad hoc
Fortier appends a separate opinion to the Judgment of the Court.

(Initialled) G.G.
(Initialled) Ph.C.

82