Uncorrected
CR 2000/7
InternationalCourt Courinternationale
of Justice deJustice
THEHAGUE LAHAYE
YEAR2000
PublicSitting
heldon Wednesday31May 2000, at10am., atthePeace Palace,
PresidentGuillaumepresiding
in thecaseconcerningMaritime Delimitationand TerritorialQuestionsbetween
QatarandBahrain(Qatarv.Bahrain)
VERBATIMRECORD
ANNEE2000
Audiencepublique
tenuele mercredi31mai2000,a 10heures,auPalais delaPaix,
sous laprésidencedeM. Guillaume,président
en l'affairedelaDélimitationmaritimeet desquestionsterritorialesentre QataretBahreïn
(Qatarc.Bahreïn)
COMPTERENDUPresent: President Guillaume
Vice-President Shi
Judges Oda
Bedjaoui
Ranjeva
Herczegh
Fleischhauer
Koroma
Vereshchetin
Higgins
Parra-Aranguren
Kooijmans
Rezek
Al-Khasawneh
Buergenthal
Judgesad hoc TorresBemhrdez
Fortier
Registrar CouvreurPrésent: M. Guillaume,président
M. Shi,vice-président
MM. Oda
Bedjaoui
Ranjeva
Herczegh
Fleischhauer
Koroma
Vereshchetin
Mme Higgins
MM. Pana-Aranguren
Kooijmans
Rezek
Al-Khasawneh
Buergenthal,juges
MM. TorresBernirdez
Fortier,juges ad hoc
M. Couvreur,greffierTheState of Qataris representedby:
H.E. Dr. Abdullah binAbdulatif Al-MuslemaniS, ecretary-Generalof theCabinet,
asAgentand Counsel;
Mr.Adel Sherbini,LegalAdviser,
Mr. SamiAbushaikha,LegalExpert,
as Counsel;
Mr. EricDavid,ProfessorofInternationalLaw,Université librde Bruxelles,
Dr. AlibinFetaisA1-Meri,DirectorofLegal Department,DiwanAmiri,
Mr.Jean-Pierre Quéneudec, Professorof International Law at the University of Paris1
(Panthéon-Sorbonne),
Mr. Jean Salmon, Professor emeritus of InternatiLlaw, Universitélibre de Bruxelles, Member
of theInstitut de droit international,
Mr. R. K.P. Shankardass, Senior Advocate, Supreme Court of India, Former President ofthe
InternationalBar Association,
Sir Ian Sinclair,K.C.M.G.,Q.C.,Bamster at Law, Memberofthe InstituteofInternationalLaw,
SirFrancisVallat, G.B.E.,K.C.M.G.,Q.C., Professor emeritus of International Law, Univertfo
London,Memberemeritusofthe Institutde droit international,
Mr. Rodman R. Bundy,Avocatà la Courd'appelde Paris,Member of the New York Bar, Frere
Cholmeley/Eversheds,Paris,
MsNanette E.Pilkington,Avocatà la Courd'appeldeParis,Frere CholmeleyEversheds,Paris,
as CounselandAdvocates;
Ms CherylDunn,Memberofthe StateBarof California,FrereCholmeleyEversheds,Paris,
Ms Ines SabineWilk, Lawyerbefore the German Court of Appeal, Member of the Chamber of
LawyersofGermany,
as Counsel;
Mr. ScottB. Edrnonds,Directorof CartographieOperations, MapQuest.com,Columbia,Maryland
(United StatesofAmerica),
MI. Robert C.Rizzutti, ProjectManager, MapQuest.com, Columbia, Maryland (UniteS dtates of
America),
Ms StephanieK. Clark, Senior Cartographer,MapQuest.com,Columbia,Maryland (UnitedStates
of America),
asExperts;
H.E. SheikhHamadbin JassimbinJaborAl-Thani,Minister forForeignAffairs,
H.E. Mr.Ahmedbin AbdullahAl-Mahmoud,Ministerof State for Foreign Affairs,
as Obsewers.
TheState ofBahrain is representedby:
H.E. Mr.JawadSalimAl-Arayed,Ministerof State ofthe Stateof Bahrain,
asAgent;L'Etatde Qatar est represéntéepar:
S.Exc.M.AbdullahbinAbdulatif Al-Muslemanis ,ecrétaigénérad lugouvernement,
commeagentetconseil;
M.AdelSherbini,conseillerjuridique,
M. SamiAbushaikha,expertjuridique,
commeconseils;
M.EricDavid,professeurde droitinternationalàl'universitélibrede Bruxelles,
M.AlibinFetaisAl-Meri,directeurdes affairesjuridiquesduconseilde l'émir,
M.Jean-Pierre Quéneudec, professeurde droit international à l'université de Paris1
(Panthéon-Sorbonne),
M.JeanSalmon,professeuréméritd ee droit international'universitélibrede Bruxelles,membre
de 1Institutde droitinternational,
M.R.K. P. Shankardass, avocat principal à la Cour suprêmede l'Inde, ancien présidentde
l'Association internationeuBarreau,
SirIanSinclair,K.C.M.G., Q.C.,avocat,membredel'Institutde droit international,
SirFrancisVallat, G.B.E., K.C.M.G.,Q.C.,professeur éméritdee droit internatioàal'université
deLondres,membrehonorairedel'Institutde droit international,
M. Rodman R. Bundy, avocatà la Courd'appelde Paris,membredubarreaude New York,cabinet
FrereCholmeley/Eversheds,Paris,
Mlle Nanette Pilkington,avocat à la Cour d'appelde Paris, cabinet FrereCholmeley/Eversheds,
Paris,
commeconseilsetavocats;
Mme Cheryl Dunn, membre du barreau de lYEtat de Californie, cabinet Frere
Cholmeley/EvershedsP , aris,
MmeInèsSabine Wilk,avocat près d'unecour d'appeld'Allemagne, membrede la chambre des
avocatsd'Allemagne,
commeconseils;
M. Scott B. Edmonds, directeur du service des levés cartographiques, sociétéapQuest.com,
Columbia,Maryland(Etats-Unisd'Amérique),
M.Robert C.Rizmtti, administrateur de projet, société MapQuest.com C,olumbia, Maryland
(Etats-Unisd'Amérique),
Mme Stephanie K. Clark,cartographe hors classe, sociéMapQuest.com,Columbia, Maryland
(Etats-Unisd'Amérique),
commeexperts,
S.Exc.le cheikhHamad binJassimbinJaborAl-Thani,ministredes affairesétrangères,
S. Exc.M.Ahmedbin AbdullahAl-Mahmoud,ministredYEtaa tux affairesétrangères,
commeobservateurs.
L'EtatdeBahreïn est representépar :
S.Exc.M.Jawad SalimAl-Arayed,ministredYEtad t e17Etat e Bahreïn,
commeagent;Dr.FathiKemicha,Memberof theBar ofParis, Kemicha & Associés (Tunis),
ProfessorSir Elihu Lauterpacht,Q.C.,C.B.E.,onoraryProfessorof the Universityof Cambridge,
MemberoftheInstitutde droit international,
Mr. Jan Paulsson,Freshfields,Paris, MemberoftheBarsofParisandthe Districtof Columbia,
Professor Michael Reisman, Myres S. McDougalProfessor of International Lawof Yale Law
School,Memberof theBarofConnecticut, Associate oftheInstitut de droit international,
Mr.RobertVolterra, Freshfields,London,Memberof the Bar ofUpper Canada,
ProfessorProsper Weil, EmeritusProfessorat theUniversityof Paris II(Panthéon-Assa, ember
of the Académiedes sciencesmorales et politiques(Institutde France),Memberof the Institut
de droit international,
as Counseland Advocates;
SheikhKhalidbin AhmedAl-Khalifa,First Secretary,Ministryof ForeignAffairs of the Stateof
Bahrain,
CommanderChristopherCarleton,M.B.E., Headof the Law of the Sea Division of the United
KingdomHydrographicOffice,
Dr.HongwuChen,Freshfields,Pans, Memberofthe Barsof Paris and Beijing,
Mr.GrahamCoop,Freshfields,Pans, Banister andSolicitorofthe HighCourt ofNewZealand and
Solicitorofthe SupremeCourtof EnglandandWales,
Mr. AndrewNewcombe, FreshfieldsP , aris,Member ofthe BarofBritishColumbia,
Dr.BethOlsen,Advisor,Ministry ofStateoftheStateof Bahrain,
Dr. John Wilkinson, Former Reader at the University of Oxford,Emeritus Fellow, St.Hugh's
College,Oxford,
asAdvisors;
H.E. SheikhMohammedbin MubarakAlKhalifa,Minister forForeignAffairs,StateofBahrain,
H.E. Sheikh Abdul-Aziz bin Mubarak Al Khalifa, Ambassador of theState of Bahrain to the
Netherlands,
H.E.Dr. MohammedJaberAl-Ansari,Advisorto His Highness,theAmir of Bahrain,
Mr.GhaziAl-Gosaibi,Under-Secretaryof ForeignAffairs, StateofBahrain,
Her Excellency SheikhaHaya Al Khalifa, Arnbassadorof the State of Bahrainto the French
Republic,
Mr. Yousef Mahrnood,Directorofthe OfflceoftheForeignMinister,Stateof Bahrain,
as Observers;
Mr. Jon Addison,MinistryofState ofthe StateofBahrain,
MsMaisoon Al-Arayed, Ministry of StateoftheStateof Bahrain,
Mr.Nabeel Al-Rumaihi,Ministryof Stateofthe Stateof Bahrain,
Mr. HafedhAl-Qassab, Ministryof Stateof theStateof Bahrain,
MsAneesaHanna,Embassyof BahraininLondon,
MsJeanetteHarding, MinistryofStateofthe Stateof Bahrain,
Ms VanessaHarris,Freshfields,
MsIva Kratchanova,MinistryofStateofthe State ofBahrain,
MsSonjaKnijnsberg,Freshfields,
Mr. KevinMottram,Freshfields,
Mr.Yasser Shaheen,SecondSecretary, Ministry of ForeignAffairsof theStateofBahrain,
asAdministrativeStaffM.Fathi Kemicha,membredubarreaude Paris, cabinet Kemicha & Associés, Tunis,
Sir ElihuLauterpacht,Q.C.,C.B.E.,professeur honorairàl'Universitéde Cambridge, membrede
l'Institutde droitinternational,
M.Jan Paulsson, cabinetFreshfïelds, Paris, membre des barreaux de Pariset du district de
Columbia,
M. Michael Reisman,professeurde droit internationall'universitéde Yale, titulairede la chaire
Myres S.McDougal, membre du barreau du Connecticut, associéde l'Institut de droit
international,
M.Robert Volterra, cabinet Freshfield,ondres,membredubarreauduHautCanada,
M.Prosper Weil, professeurémérite à l'université deParisII (Panthéon-Assas),membre de
l'Académie dessciences moraleset politiques(Institutde France), membre del'Institutde droit
international,
commeconseilset avocats;
Le cheikhKhalid bin AhrnedAl-Khalifa,premiersecrétaire,ministèredes affairesétrangèresde
lYEtadeBahreïn,
Le capitainede frégateChristopher Carleton,M.B.E.,directeur dela divisiondu droit maritimedu
bureau hydrographiqueduRoyaume-Uni,
M.HongwuChen,cabinetFre~~elds, Paris,membredesbarreaux de Pariset deBeijing,
M.Graham Coop, cabinet Freshfields, Paris, avocat et conseil de la High Court de
Nouvelle-Zélandeetconseillerde la Coursuprêmed'AngleterreetduPaysde Galles,
M.AndrewNewcombe, cabineF t reshfields,Paris,membre du barreau de la Colombiebritannique,
MmeBethOlsen, conseiller, ministèred'Etatde1'Etatde Bahreïn,
M.John Wilkinson, ancien maître de conférence à l'universitéd'Oxford, membre émérite du
CollègeSaintHugh,Oxford,
commeconseillers;
S. Exc.le cheikhMohammedbinMubarakAlKhalifa,ministredes affairesétrangèred seBahreïn,
S.Exc.le cheikh Abdul-Azizbin Mubarak Al Khalifa, ambassadeur de1'Etatde Bahrein aux
Pays-Bas,
S.Exc. M.MohammedJaber Al-Ansari, conseilled re SonAltessel'émirdeBahreïn,
M.GhaziAl-Gosaibi,sous-secrétaire dYEtaatuxaffairesétrangèreselYEtatdeBahre'ïn,
S.Exc.la cheikha Haya Al Khalifa, ambassadeur delYEtatde Bahre'ïnauprès dela République
fiançaise,
M.Yousef Mahrnood,directeud ru bureau du ministredes affairesétrangèse Bahreïn,
commeobservateurs;
M.Jon Addison, ministèredYEtadte 1'Etatde Bahrein,
MmeMaisoon Al-Arayed, ministère d'Etatde1'Etatde Bahreïn,
M.NabeelAl-Rumaihi, ministère dYEtatdelYEtad teBahreïn,
M.Hafedh Al-Qassab, ministèredYEtatde1'EtatdeBahreïn,
Mme Aneesa Hanna,ambassadede Bahreïn, Londres,
MmeJeanetteHarding, ministère dYEtatde lYEtateBahreïn,
MmeVanessaHarris,cabinetFreshfields,
MmeIva Kratchanova, ministère dYEtatde lYEtate Bahrein,
MmeSonjaKnijnsberg,cabinetFreshfields,
M.KevinMottram,cabinetFreshfields,
M.Yasser Shaheen, second secrétaire, ministère affairesétrangères dlYEtat e Bahreïn,
commepersonnel administratif: Le PRESIDENT :Veuillezvous asseoir. La séance estouverte et je donne la parole à
M.Rodman R.Bundyau nomde 1'Etatde Qatar.
t
Mr. BUNDY: Merci,Monsieurle Président. Mr. President,distinguishedMembersof the
Court. It is indeedan honourto appear onceagainbeforeyouand to representthe StateofQatarin
thisimportantcase.
THE CARTOGRAPHICEVIDENCE INTHECASE
1.Introduction
1. Having heard Sir Ian Sinclair yesterday set out the legal, geographical and historical
underpinningsto Qatar'stitleof sovereignty overthe Hawar Islands,1wouldlike to turn to a very
importantsource of evidencein these proceedings which confirmsthat title: and this is the map
evidence.
2. The Court will appreciatethat, given the increasing sîrategic importance of the Gulf
region in the late nineteenth andearly twentiethcentury,that the cartographyof the area is very
rich. Moreover,the Courtwillnothave failedto have notedthatboth Partiesattach legalrelevance
to the maps.
3. While Bahrain has produced relativelyfew historical mapsof the area, those that it has
introducedare relied uponby ourdistinguished opponents to supporitts claimto the HawarIslands
and Zubarah,as well as itscontentionthatuntil 1935,the authorityof the Al-ThanirulersofQatar
did notextendmuchbeyond thecityof Dohaanditsimmediatesurroundings.
4. Qatar,on the otherhand,has produceda very comprehensive selectionof maps,spanning
the periodfromjust after 1868,bywhichtimethe separateentitiesof Qatarand Bahrainhadbeen
recognized, until 1936when Bahrain'sclaimto the HawarIslands first surfaced: andwe would
suggestthat thesemaps aresignificantin threebroad respects. .
5. First of all, theyemanate from awidearrayof sources. Indeed,Qatarhas furnishedmaps
fromFrance, Great Britain,Germany,Russia,theUnitedStates,Italy,Turkey,Poland,Austria,Iran
and even Australia. Thesemaps funiish important evidence of generalrepute as to the tenitonal
attributionsandthe situationonthegroundduringthe relevantpenod. 6. Secondly,the maps in question arederivedfiom both officia1and non-officia1sources. In
speaking of officia1 maps, 1 am refemng to maps that were prepared by officia1 govemment
agencies andwhich thus can be relied upon asrepresenting the consideredviews of the Statesthat
producedthem as to the political characteristics of theasthat they depict. 1would suggestthat
these mapshave a special relevanceas a resultof their officia1provenance. However,thereis also
an impressivenumber of non-officia1maps thathave been preparedby cartographic institutesand
professional map-makers throughout the world. To the extent that these have been drafted by
highly reputable cartographic houses, expert in making maps, they too are deserving of
considerableprobativevalueas evidenceofinformedopinion.
7. Thirdly, the maps in evidence in this case paint a remarkably consistent picture with
respecttotheterritorialattributionsthatthey depictthat arerelevantto the case. Whether reference
is made to the officia1 or the non-officia1cartography, the maps al1 tend to show the same
thing-namely, that from roughly 1870 to the end of the 1930s-a period of some
70years-the political entity of Qatar was recognized as extending over the entire Qatari
peninsula includingthe HawarIslands andZubarah.
8.Mr. President, in the firstpart of mypresentatio1shallundertake a chronologicalreview
of a selection ofthe relevant maps that Qatar has introduced to these proceedings. But 1must
hasten to reassure the Court that it is not my intention, obviously,to canvas al1 of the maps.
Fortunately,the maps are of such consistency that a reviewof certain representative sampleswill
sufficeto demonstratethe thrust of their importancefor purposesof assessingthe temtorial issues
in the case.
9. In the second part of mypresentation1will then turnto the maps that have been offered
into evidenceby Bahrain, includingthosethatwere introducedwith its recently filed Supplemental
Documents,in March. Lastly, 1shall addressthelegalrelevanceofthe maps in the specificcontext
of this case andin theight of whatthe map evidence,takenas a whole, shows. 2.The map evidenceconfirmstheterritorialintegrityofQatarandQatar'stitle over
the Hawar Islands andZubarah
(a) Mapsfollowingthe 1868Agreements
10. It is appropriate to begin a review of the map evidence with the period immediately
following the 1868 Agreements. It was by virtue of these agreements, as Ms Pilkington
demonstratedonMonday,that Qatarand Bahrainwererecognizedas separatepoliticalentitieswith
Mohammedbin Thani being describedas the "Chiefof Guttur".
11.Bahrain's positionas to the political situationatthis timeis illustrated by a series of very
colourful graphics that Bahrain presented at the begiming of its Reply (followingp. 9) and to
which certainofmy colleagueshavealreadyreferred.
12.1haveplaced onthe screen two illustrations from Bahrain'sReply which depictBahrain's
version of eventsas of 1868and again in 1872. It can immediatelybe seen that neitherof these
graphicsis an historicalmap in the proper sense of the word. Theyare purely illustrativeand thus
have no evidentiary valueperse. These graphics are usefül,however, when comparedwith the
genuine maps of the time, because they expose - and 1 would suggest after reviewing the true
maps in the case, the histoncal maps, that these graphics expose- the fundamental fallacies in
Bahrain'scase.
13. Let me start with the 1868 illustration producëd by Bahrain. This purports to show
spheres of influence atthe time. TheCourt will note that the entire Qatar peninsula- including
the Hawar Islandsand Zubarah - is colouredbright red; inother words,as being part of Bahrain
under Al-Khalifahcontrol. There are some green arrowsin the south, which apparentlyrelate to
the influx of tribes into southem Qatar, but there is absolutely no suggestion that any separate
entityknownas Qatar underAl-Thanirule exists,accordingto thisillustration.
14.Now, how this illustration can be reconciledwith the 1868Agreements, which treated
the Chiefs of Qatar and Bahrain separately and equally,and which thus confinned that an entity
?.
known as Qatarunder Al-Thanirule existed, is impossibleto see. Had the situation reallybeen as
portrayed on Bahrain's graphic,there would havebeen no need for the 1868Agreementsbecause
there wouldhave been no area under Al-Thani control. Yet we knowfrom the histoncal evidence
that this sirnply was not the case. The entities of Qatar and Bahrain were recognized by the
1868Agreementsas being separatedby the sea. 15.If we tm to the secondillustration- purportingto show the situation as of 1872after
the Ottomans had already established themselves in Qatar, as Dr. FetaisAI-Meri spoke about
yesterday - we will see that littlehas changedunder Bahrain's graphicsexcept for that Bahrain
now concedesa small enclavearoundDoha whichis attributedto Qatar andto the Ottomans. The
rest of the Qatarpeninsula,accordingto Bahrain,remainedpart and parce1of Bahrain.
16.Now let us comparethese two graphicsthat were supplied in Bahrain'sReply with the
contemporary cartographicevidenceto seewhetherthese illustrations standup to the facts.
17. By 1875,this was four years after the Ottomanshad establishedthemselvesin Qatar and
one year beforeShaikh Jassimbin Thani was appointedas the kaimakam - or govemor- of the
kaza, or district,of Katar, Qatar'sparatepoliticalidentityextendingoverthe entirepeninsula and
encompassingthe Hawar Islands andZubarah was being recognized in the expert cartographyof
thetime.
18.Appearingon the screennow is a rnapprepared in 1875 underthe auspices of the Justus
Perthes Institute. Justus Pertheshad foundedan independent publishinghouse which laterbecame
known as the Geographic-CartographicInstitute bearing his name and, it is no overstatement,
Mr. President, to Say that Justus Perthes possessed a worldwide reputation secondto none for
excellencein preparing detailedandaccuratemaps. The drafierof thisparticularrnapappearingon
the screen was Augustus Petermann,who was affiliated with the Institute in Gotha and who was
widelyacknowledgedas beingoneof the foremostcartographersofthe latenineteenthcentury.
19. From the enlargementof the relevant portion ofthe rnap that appears on the screen -
and which, forconvenience,mayalsobe foundin your foldersas No. 33- this rnapclearlyshows
Qatarand Bahrainas distinctentities. Qataris separately labelledandis shownby colour codingto
encompass the entire peninsula,not simply the area around Doha which, on this map, is called
El Bedaa. TheHawar Islandsarealsolabelledandshownas part ofQatar. Zubarah appearsonthe
rnapas well,and it too fallsunquestionably withinQatari temtory. Bahrain,in contrast,is limited
to the main islandof Bahrainandthe smallerislandslying imrnediatelyadjacentthereto.
20. It is significant that the Justus PerthesInstituteused to update itsmaps of the region on
virtually a yearly basis. Thus, one can pick maps fiom almost any yearstarting in 1875 and the
story will be exactly the same. A number of these maps were reproduced in Qatar'sMap Atlas,filedwith itsReply,and 17othersal1fiomdifferent yearswere depositedwiththe Courtat the time
ofthe filing oftheReply.
21. Soas not to taxthe Court'spatience,1will referto just onefurtherexamplepreparedby
Augustus Petermann in 1884. Once again, the Court can see fiom this map that the actual
situation- the actual situation as reflectedin the expert cartographyof the time - was very
differentfrom that suggestedby Bahrain'scolourful graphics. Qatar covers the entire peninsula
and includestheHawar Islandsand Zubarah.
22. In its Reply,Bahrainboldly assertsthat thereis not a singlecomrnentatorof reputethat
provides any support for Qatar's interpretationof the situation on the ground followingthe
1868Agreements (Replyof Bahrain, p. 71). Apart fiom the historical evidence reviewed by
Ms Pilkingtonon Monday,which discredits thisthesis,Qatar would submitthat the map evidence
provideseloquent testimonyof generalreputealso disproving Bahrain's thesis. Qatar and Bahrain
were consistentlyrecognized as separate entities following the 1868Agreements, and Qatar's
controlwas invariablyseento extendto andencompassthe HawarIslandsas well as Zubarah,as a
matterof informed opinioninthe expertcartographyof thetime.
(b) Mapsof thelate nineteenthandearlytwentiethcenturies
23.If weturnto thecartographyofthelatenineteenthcentury,it is againinstructivetorecall
how Bahrain views the political situationof the period. On the screen now appear Bahrain's
"graphics",once more taken from its Reply,showing Bahrain's version oe fvents as of 1872and
24. The Courtwill observethat theonlydifference betweenthe 1872and 1915illustrations
is that thearea around Doha,which is concededto be under Al-Thanior Qatari rule, is slightly
largeras of 1915,andthata fourtharrow,thesignificanceof which isnot apparent,has beenadded
\
in the south purportingto show the incursionof tribes from eastern Arabia. But the rest of the
Qatarpeninsula,includingthe Hawar Islandsand Zubarah,is still clairnedto be Bahrainitemtory
asof 1915,accordingto thesegraphics. 25. Qatar has alreadyshown that thisremarkablepicture does not evenbegin to squarewith
the historical facts. And, as 1 hope to demonstrate, the thesis advanced by Bahrain cannot be
reconciledwith the contemporarycartographicevidenceeither.
26.Let us examinehowQatar was portrayedby expertcartographersand on officia1mapsof
the time.
27. The map that presentlyappears on the screen was included in the 1890 edition of the
Atlas de géographiemodernepublished by the Librairie Hachette of Paris - a highly reputable
institution. As with earlier maps,the political entity ofQatarcan be seento encompassthe entire
peninsula. Similarly,the HawarIslands appear inthe sarnegreen colour as Qatar in contrastto the
grey colouring of Bahrain. By no stretch of the imaginationcan Bahrain be said to extend across
the seato the Hawar Islandsor Zubarah or indeedto otherparts ofthe Qatar peninsulaaccordingto
this map.
28. The next map, albeitof a slightly lesserquality,but produced in 1894,is an enlargement
of an officia1Russian map prepared by the military authorities affiliated with Russian General
Headquarters. It, too, depictsthe entire Qataripeninsula, including the Islands and Zubarah, in a
brown colour whichis distinct fromthe orangecolouringof Bahrain. 1would suggestthat Russian
officialsat this time, recognizedthat Qatar andBahrain were distinct politicalentities and that the
temtorial extentof Qatarmatchedthat as describedin Qatar'spleadings.
29. If we turn to the twentieth century, we find maps from still Mer sources-both
officia1and non-official- attesting to the temtorial integrity of Qatar and the attribution of the
HawarIslands and Zubarah,alsoto Qatar. 30. The rnap thatnow appearson thescreenis takenfioma Polish atlaspublishedin Warsaw
in 1904. Bahrain, which is coloured in a distinct orange, appearsas a compact group of islands.
Qatar, on the other hand, is coloured in white as are the Hawar Islands and, of course, Zubarah, 1
bothofwhich were clearlyidentifiedas formingpart ofQatariterritory.
31. The expert cartography produced in Great Britain atthe time took the same position.
This can be seen fiom a 1910rnap produced bythe widely respected cartographichouseof George
Philip& Son in London. Once again,the Courtwill observefromthe rnapthat the HawarIslands,
or theWarden Islandsasthey were sometimesreferredto, areshadedin the samecolouras the rest
of the Qatar peninsula in contrast to the depiction of Bahrain. Qatar has furnishedother maps
preparedby George Philip - and this is a 1910 rnap- but Qatarhas furnishedmaps from 1914,
1917and 1922 which show the exact same situation, and those may be found in the Qatar Map
AtlasasNos. 48,57 and 70.
32. If we return to the German maps,they continued to depictthe situation in the same
manner as the maps that have been earlier producedby the Justus Perthes Institute in the second
half of the nineteenth century. To takejust one more example,the rnap that presentlyappears on
the screen was published in the 1914 edition of Andree'sAllgemeinerHandatlas. It presents a
particularlyclear picture of the contemporary territorialsituationwith both the HawarIslands and
Zubarahbeing identifiedas Qatari. For convenience, acopyofthis rnaphas been placedas No. 34
in yourfolders.
33. As 1previously mentioned, it was not simplymaps produced by eminentcartographic
houses which showed, as a matter of generalrepute, that the HawarIslands were Qatari. Official
mapspreparedby govemmentagenciesportrayedthe sarnesituation. .CI
34. The rnap on the screen now, Mr. Presidentand Membersof the Court, is an enlargement
of the relevant area taken from a rnap of Arabia and the Gulf prepared by the Service
Géographiquedu Ministèredes AffairesEtrangères - the French Foreign Ministry- in 1905.This map can thus be said to representthe official position of the French Govemment as to the
political situationin theegion at the time.
35. A copy of this map also appearsas No. 35 in your folders,and on it, Bahrain showsup
very clearly in an orange colour. Qatar, in contrast, is depicted in blue, as are the Hawar Islands
and Zubarah. Obviously, France didnot share the views that Bahrain has put forward in its
pleadings as to the exaggerated extent of Bahraini temtory. France'sposition entirely accorded
withthat which hasbeen presentedby Qatarin its pleadings.
36. It was not simply just French andBritish maps that depictedthis situation, but official
Italian maps wereconsistentwith their French, British,German andRussiancounterparts. Thiscan
be seen fiom the map that is now comingup on the screen - a map of the Arabian Peninsulathat
was prepared by the General Directorate of Political Affairsin Rome for the Italian Ministryof
Colonies in 1918. As with the other maps of the time, this publication provides compelling
evidenceas to howthe Italian Govemmentviewed the territorial situationjust afterthe FirstWorld
War. Qatar was recognized as coveringthe entirepeninsula,and the Hawar Islands were depicted
so as to leave no doubt as to their inclusion within Qatari territory. The Bahrain islands,in
contrast,appearina distinctreddish colour.
37. Now the significance of the 1913 Anglo-Ottoman Convention, and the 1914
Anglo-Turkish Convention and the 1916 Treaty between Bahrain and Qatar in reafirming the
territorialextentofQatarhas been discussed on Monday by Ms Pilkington. Withthe withdrawal of
the Ottomans fromthe area at the outbreakof the FirstWorldWar, Britain embarkedon a careful
studyof the temtorial situation onthe Arabianpeninsulain preparation forpeacetalksand a Treaty
of Peace,eventually,with Turkey.
38. In 1920, the British Foreign Office prepared an intemal memorandum setting out
Britain's proposals withrespect to temtorial issues affecting the Arabian peninsula, including the
attribution of islands to various chiefdoms on the mainland of the Arabian peninsula. Qatarfurnisheda copy ofthis memorandumas Annex111-38to its Reply. The memorandumin question
included a map, which had been preparedby the Bntish Admiralty, to illustrate the British
proposal. An enlarged copy of that mapis No. 36in your foldersand the map itself wasproduced
as No. 58 in Qatar's Map Atlas. TheCourt will recall that Mr.Shankardass, yesterday, briefly
referred to thisap. With the Court's indulgence1 , would liketo discuss its background andwhat
it showsin somewhatmore detail.
39. The Court will observe that the map includes a red line encompassing the Arabian
peninsula running al1the way from the Gulf ofAqaba in the northern Red Sea to the northem
reaches of theArabianPersian Gulf. Now thepurpose of thisred linewas describedin Article2 of
the Bntish proposa1in the followingterms:
"For the purpose of this Treaty [that is, the proposed treaty of peace with
Turkey]-the Arabian peninsulaincludes (1) al1tenitories other than those of the
Kingdom of Hedjaz and the British protectorate over Aden and its surrounding
tenitorial zone; and (2) the islands, whether previouslyTurkish or not, which lie
within the line whichis definedhereafter."
40. The rest ofArticle2 went onto definethe course ofthatred line. It is point No. 2 which
is the key. The Arabian peninsula includesthe islands, whetherpreviously Turkish or not, which
lie within the line which is defined hereafter. In Britain's view, the islands which were
encompassedwithin the red line were deemedto appertain to the Arabian peninsula - and more
specifically- to the independent chiefs of the adjacent mainland. Ifwe enlarge the area of the
Gulf releiant to the present proceedings,it canbe seen that theHawar Islands, which are pointed
out with the arrow there, were locatedinsideof this line and thus were consideredto appertain to
the adjacentmainland - in otherwords, toQatar. Bahrain, as is clear fiom the map, was carefully
and specificallyexcludedfiom this definitionby virtue of thefactthat it was carefullyenclavedby
a separate red line which did not include the Hawar Islands, and this was emphasized by
underlining,although itis difficult to read,the word"Bahrain"inred,there on the map. \
41. There can thus be no doubt that Britain considered the Hawar Islandsand Zubarah to
form part of Qatar'stemtory at the time: and this position was entirely consistent with the
histoncal and legalconsiderationswhich SirIanexposed to the Courtyesterday,as well as withthe
contemporary cartographie evidencewhichwasindependentlyproduced atthetime. 42. There is a further important pointwith respect to this rnap which, 1 would suggest,
underlines its significancein this case. For exactlythe same rnap was furnished to the Arbitral
Tribunal during the course of theEritrea-Yemenproceedings. Because the red line on this rnap
also reflected Britain's position with respect to the atîribution of certain islands lying in the
southem Red Sea. As the Courtwill see fiom the enlargementthat now appearson the screen,the
red line passedthrough afeatureknownas South West Rocksin the southernRed Sea leaving the
Hanish Islands, whichwere over here, atthe heart ofthe disputein the Eritrea-Yemencase, thered
line left those islands on the Arabianside of the line. At paragraph 151 of its Award in the first
phase of the Eritrea-Yemenproceedings, the Arbitral Tribunalalluded to the British position as
reflectedonthe map, stating:
"The initial positionof Great Britain at the peace talks at Sèvreswas that the
islandslyingeast of the SouthWestRocks off Greater Hanish island shouldbe placed
underthe sovereigntyof the independentChiefsof the Arabian mainland."
43. It is significant, 1 would suggest, Mr. President and Members ofthe Court, that the
decisionof the Tribunalin the Eritrea-Yemencase on the issue of sovereigntyover the islandsthat
were in disputethere, while basedon a number of factors, attributedal1of the islands lying to the
east- in other words, inside of the red line- to Yemen which was, atthat time, the local
Chiefdomon theArabian peninsula. Qatar would suggestthat exactly the same situation pertains
here with respectto the HawarIslands. Theyclearlylie insideof the red lineandthus wereviewed
by the Britishasfallingunder the sovereigntyofthe local ruler of the mainlandwhich, in thiscase,
was the Al-Thanirégimein Qatar. Bahrainwas very carefully excludedfiom this definition and
the territorialxtent of Bahrain as reflected on the rnap clearly excluded the Hawar Islands, and,
needlessto Say,Zubarah.
44. Between 1917 and 1933, the official British view of the temtonal situation did not
change. Thisis reflectedin the 1933annotatedrnap - which is now appearingon the screen and
which Mr. Shankardass discussed in some detail yesterday-this was the rnap prepared by
Mr. G. Rende1of the Foreign Office showing politicaldivisionsin the area - it is No. 17in your
folders. Itisentirelyconsistentwiththe previousrnap showingthe red linethat 1just discussed,as
well as the othercartographicevidenceproduced from bothofficia1and non-officialsources. 45. ContemporaryBritish cartography, thereforep, rovidesa clear expression of theBritish
viewas to theterritorialsituation atthetime. Obviously,thereality ofthe situationasportrayedon
these maps bears no relation to the picture which Bahrain has attempted to portray withits
graphics.
46. Notwithstanding theovenvhelmingweightof the cartographicevidence up tothe 1930s,
Bahrain,ofcourse,seesmattersverydifferently. Letmejust remindthe CourtofBahrain's version
of eventsasof 1934 - anotherofthesecoloufil graphics.
47. Thispicture isreallyquite extraordinary. Evenin 1934,Bahrain is saidto continueto
control mostof the Qatar peninsula, including Zubarah and the Hawar Islands. Yet whenthis
sketchis comparedwith the genuine cartographyofthe periodthat 1have reviewed,it simplydoes
not standup toscrutiny.
48. The final map that 1would like to displayfrom those which Qatar has introducedinto
evidenceis a 1936mapofthe Arabianpeninsulaproduced byGeorgePhilip & Sonsof London. 1
end this part of my presentation with this map because it seems to me to surnrnarisein a
particularlycompellingfashionwhatthe cartographic evidencetaken fiom the entireperiod fiom
1870to 1936demonstratesasa whole. First of all, Qataris clearlyrepresentedby a distinctrown
colouringas encompassingtheentireQatari peninsula. Second,boththe HawarIslands, whichare
againlabelledthe Warden Islandson themap andZubarahare recognizedto constitutean integral
part of Qatar. Andthird, Bahrainis highlightedin its own reddishcolour as a compactgroup of
islands separatedby the seafiomQatar.
49. None of the mapsthat 1have reviewedlendsthe slightest credence toBahrain'stheory
that pnor to 1935Qatar was limited to asmall outpostaroundthe city of Doha. Had the Hawar
Islands or Zubarah genuinelybeen under Bahraini control or subject to Bahrainiadministration
throughoutthis period, surely this would have been reflected in the contemporary cartographic
materials. 50.1s it reallycredibleMr. Presidentand Membersof the Court, that the expertmap-makers
could have gotten it so wrong for so many years? 1sit credible that officia1govemment maps
produced by France,GreatBritain, Russiaand Italy- that al1of these officia1maps- were in
error when theydepicted the territorialextent of Qatar as encompassing the entire peninsula or
when they showedthe Hawar Islandsand Zubarah invariablyas part of Qatar? Or is it Bahrain's
case which is fundamentallymisconceived? 1would suggest that the facts speak for themselves,
and that the map evidence fully confirms the legal considerations underlying Qatar'stitle to the
HawarIslandsandZubarah.
3. Mapsintroducedby Bahrain
51.Mr.President,havingcanvassedthe maps which, inour view, so clearlysupport Qatar's
position onthe territorial issues in this case,w proposeto tum to the maps that Bahrainhas
introduced,to see whether they in any way contradictthe extensive cartographie evidence that
Qatar has produced.
52. In Bahrain's words, evidence of its authority over the HawarIslands and Zubarah
following the 1868Agreementsis said to be "well documented"and "ovenvhelming" - theseare
the words of our colleagues (Bahrain'sMemorial, paras. 412 and 438). One would expect such
ambitious assertionsto be backedupby the mapevidence. Butthe fact of thematter is that priorto
Bahrain's submissionof its Supplemental Documents inMarch of this year, Bahrain was ableto
produceonly a singlemap, followingthe events of 1868which was claimedto supportits position
withrespectto the Hawar Islands. This was the very roughsurveymap, you may recall,prepared
by an Ottomanmilitary official,CaptainIzzet, in 1878whichwas producedin Bahrain's Memorial
andto which ourdistinguishedopponentsattachconsiderableimportance.
53. 1 have placed on the screen theversion of the map which Bahrain introduced in its
Memorial. Although Bahrainitself acknowledges that this map is "primitive" (Memorial of
Bahrain,para. 21),it claimsthatbecauseboth themainislandof Bahrain and the Hawar Islandsare
shaded in the sarneblue, CaptainIzzet must have considered that theHawar Islands belongedto
Bahrain. 54. It must be said, Mr. President, with al1respect, that the logic of this argument is not
readily apparent. The entirecoastalarea along thenorthem Gulf is shadedin blue and, becauseof
the small sizeof the Hawar Islands,it is not surprisingthatthisblue shadingcoversthe islands.
55.The Court willalso note that there are other blue-shadedareasas well, and these include
an area alongthe present-day Saudicoast and a large area around Al-Hufuf,which was the district
capital, as Dr. Fetais Al-Men described it, of the Sanjak of Nejd. Nowhere does CaptainIzzet
explain whatthis blue tinting or shadingis meant to mean. However,under Bahrain'slogic,these
two areasmustalsobe deemedto appertain to Bahrain- a conclusionwhichis manifestlyabsurd.
56. Regrettably,however, there is a much more seriousproblem withthe rnap that Bahrain
has introducedwhich needs to be addressed. Following the receipt of Bahrain's Memonal, Qatar
went back to the Ottoman archives to see if we could find any further information regarding this
rnap and its contextto shedlighton what it purported to depict.
57. In canying out this research, Qatar was astonished to discover that Bahrain had not
submittedthe fullrnap in question,but only a portion ofthe rnapcarefully croppedso as to exclude
substantialareaslying furtherto thenorth.
58. Here is the full map, Mr. President and Members of the Court, and what adifferent
picture it presents than the edited version submittedby Bahrain. That edited version is the bit
outlined in red. Indeed, we now see in the portion of the rnap that was omittedby Bahrainin its
Memorial, a whole series of areas shaded in the sarne blue colour as Bahrain and the Hawar
Islands- lots of areas. There is still no indication what these areas are meantto represent,but
they certainlydo not supportthe thesis advancedby Bahrain that it possessedsovereigntyoveral1
suchblue-tintedareas.
59.1 think the Court will now seewhy Bahrainwas reluctantto includethis northem halfof
the rnap inits pleadings: and quite apart fromthe inappropnatenessof filing anedited versionof
the map, the rnapas such lendsno supportto Bahrain's claimsthat the HawarIslands were deemed
to belong to Bahrain. Indeed, to the contrary, Qatar has alreadyplaced in evidence official
Ottomanmaps, discussedby Dr.FetaisAl-Men, which limitthe temtonal extentof Bahrainto the
principal island ofBahrainand its immediately surroundingislets. 60. Somuch forthe 1878Ottomansurveymap. What aboutthe othermapsrecently filedby
Bahrain with its Supplemental Documents? Despite having nine months to conter the rnap
evidence produced with Qatar'sReply, Bahrainhas only been able to produce a mere four maps
covenng therelevantpenod inits SupplementalDocuments.
61. The first such rnap is a rnap taken fiom a hand atlas published inLeipzig in 1905,an
enlargementof which is now appearingonthe screen. The Court will observethat Qatar is shaded
in two different colourson this rnap- orange in the north and green in the south. The basis on
which this colouring was added is not known. But what can be said is that the rnap bearsno
relation to realitysince it includes Al-Bida- or Doha - in the area which, under Bahrain's
reasoning, would appertainto it - to Bahrain- by virtue of its orange colouring. Yet even
Bahrain - in its pleadingsand in the sketchmaps that 1showed you earlier - admitsthat Al-Bida
was under the control of the Al-Thani,an Ottoman régime, eversince 1872. Sothe rnap doesnot
even square with Bahrain'sversion of events. Moreover, if one looks at the largerversion which
Bahrain has included with its SupplementalDocuments, it will be seen that the colour coding
suggeststhat Bahrainandthe northem part of Qatar, colouredin orange,were partof Persia, again
a conclusion which does not square with the facts, since it is well known that Persia's-or
Iran's- claimto Bahrainincluded onlythe main island and specificallydidnot includethe Hawar
Islands or certainlyany area onthe Qataripeninsula.
62. The secondrnapproduced by Bahrain in its SupplementalDocumentsfares no better. It
is anothernon-officia11905rnap,this timeproducedin St.Petersburg.
63. If the Courttakesthe time to examinethis rnapwith the previousrnap1just discussed, it
will see thatthis rnap is anact reproductionof the previousmap, the onlythingthat has changed
is that the titles are now in Russian, unlike the previous map: but the rnap itself is identical.
Consequently,thisrnapcannotbe relied onas an independentor accurateportrayalof the areaoras
supportingBahrain'scase. In contrast,Qatarhas placed severalofficialRussianmaps - andthese
are Nos. 20, 83 and 88 in the Qatar Map Atlas - which directly contradictthis rnap in showing
the genuinesituationasperceived andunderstoodby the RussianGovernment.
64. The third rnap submitted by Bahrain is an undated rnap taken, apparently, from a
twentieth centmy atlas. This rnap at least has the benefit of correctly depicting the temtorialintegrityof Qatarby virtueofthe factthattheentireQatarpeninsula,includingZubarah,is shaded
in the sarnecolour. 1would suggestthat,becauseof the scaleofthernapand thecoloursused,it is
really quite impossible toSayto whomthe HawarIslandsare attributed. So howthis rnap canbe
saidto supportBahrain'stheoryof thecaseisdifficultto discem.
65. In thefinalrnap whichBahrainintroducedin its Supplemental Documentsis yet another
1905map, publishedin an unofficial Britishatlas. It shows thesame thing as the previousmap.
To the extent that Bahrain arguesthat this rnap depicts the HawarIslands in the same colour as
Bahrain,Qatar can Saythe samething. Theislandsare in the samecolour as Qatar. The map, as
such,no more supports Bahrain's positionthanitdoesthat ofQatar.
66. That is the surntotal of the maps, the historicalmaps,introducedby Bahrainduringthe
relevant period fiom 1868to 1936: five maps. One is the 1878Ottoman survey rnap which
Bahrain has rnisrepresentedand which is, I would suggest, uselessto its case. Three of the
remaining four appear to be aberrations,non-officiallyproduced,al1printed in one year, 1905,
which are either demonstrably inaccurate,as 1have shown, or which simply do not support the
appurtenanceofthe Hawar Islands - muchlessZubarah - to Bahrain. And the fourthmap, the
undatedone, isequally supportiveofQatar'scaseas thatof Bahrain.
67. In contrast,1wouldrespectfullyrecallthat Qatarhas produced89mapsin its Map Atlas,
and another 19 which it depositedwith the Court, spanningthe entire period fiom the 1860sto
1936and taken fiom a wide spectrurnof officialand non-officialsources. And al1these maps
confirm both the extent of the political entityof Qatar during the period and the fact that the
HawarIslands and Zubarah were deemedto be Qatari. It is the overwhelrningweight of this
evidence emanating,as it does, fiom highly reputable sources, which,Qatar submits,is legally
relevant.
4. Thelegalrelevanceofthemaps
68. And tbis leads me, Mr. President,to the final portion of my presentation and the
,
shortest- the issue of what legal weight shouldbe accorded to thernap evidence introducedby
the Parties. Andinthis respect,there aretwopreliminary pointsthatshouldbe reiterated. 69. First, as 1 mentioned earlier, it is significant that both Partieshave relied on the map
evidenceto supporttheir cases. It followsthat,in principle,the Parties areagreedthat the maps do
have a legal relevancein this case. And second, Qatar wishesto make it very clear thatit does not
rely on the cartographic evidenceas creative ofits titleto the Hawar Islandsor Zubarah. That title
results from the operation of legal and factual considerations whichSir Ian and others have
discussed. Nonetheless, themaps have an important role to play in this case in so far as they
constitute confmatory evidence of an historical nature pointingto a widespread recognition, or
general repute, that the political entity of Qatar covered the entire peninsula including the
Hawar Islands and Zubarah. As 1trust 1have shown,there is no crediblemap evidencefrom the
relevant period producedby Bahrain indicating that either the Hawar Islands or Zubarah were
considered tobe Bahraini. The ovenvhelmingweightof the evidenceis al1in the otherdirection.
70.Now, it is no doubttrue, as the Courthas had occasionto note in the past, that maps do
have to be approached with a degree of caution. As the Chamber of the Court observed in the
FrontierDisputecase:
"maps areonly extrinsicevidence of varying reliabilityor unreliabilitywhich may be
used, along with other evidence of acircumstantialkind, to establish or reconstitute
thereal facts" (FrontierDispute,Judgment,I.C.J.Reports 1986,p. 582,para. 54).
71. In assessing the legal relevance of the map evidence, Qatar submits that three criteria
should be borne in mind. First, the mapsin questionmust be technically accurate in order to be
accorded evidentiary value. Second,mapsproducedby officialgovemmentagenciesareentitledto
particular weight due to their official provenance. And third, maps produced by reputable
cartographicinstitutes which depict with consistency anestablished state of affairs are entitled to
considerableprobative valueas evidenceof generalrecognitionor repute.
72.Now,withrespect to the first criterion- thetechnical accuracy ofthe maps - the Court
need not have any worries. Al1of the maps introducedby Qatar have either been produced by
official govemment agencies or by highly reputable and impartial cartographic institutes well
known for the quality of their work. Moreover, by the late nineteenth and twentieth centuries,
significanttechnical advanceshadbeenmade permittingthe production ofaccuratemaps.
73. As for the second criterion- the provenance of the maps- Qatar has submitted
officialmaps preparedby the Govenimentsof France, Great Britain,Russia,Italy and Turkey. Al1of thesemaps support Qatar's position regardinthe attributionof the HawarIslands andZubarah
to Qatarorthe overalltemtorial integrityof the Qatar peninsula.Bahrain,on the other hand,has
beenunableto producea singleofficialrnapfroman officialsourcewhichsupportsitsposition.
74. Turningto thethird criterion-the issueof generalrecognition orrepute- oneof the
remarkablefeaturesof the rnap evidencein thiscase, as 1havesuggested, is thefactthatvirtually
al1of the maps, despitehaving been drawn from so many sources and over 70 years of time, al1
show the same thing. Even in cases where there has been conflicting rnap evidence as, for
example,the Eritrea-Yemenarbitration, the Arbitral Tribunal in those proceedingswas able to
concludethatthe Yemeni rnapevidencewassuperiorin scope and volume tothat of Eritreaand as
such,it provided "importantevidence of general opinioonrrepute"(Awardinthe FirstStageof the
Eritrea-Yemen Arbitration,paras.381 and 388).
75.Here, the evidencecannotbe characterizedas conflicting. Qatar has submittedliterally
dozens,over 100by my count, of maps from adozen differentcountriesconfinning its position.
Bahrain hassubmitted five maps, none of which support itscase. In these circurnstances,the
remarksofthe arbitral tribunalin theBeagleChannelarbitration seem particularlyapposite. And
therethe Courtwillrecallthat theTribunal stated:
"Wherethere is a defuiitepreponderanceon one side - particularlyif it is a
verymarkedpreponderance - andwhileof courseeveryrnapmustbe assessedonits
own merits-the cumulativeimpact of a large number of maps,relevant for the
particular case,that tell theame story- especiallywhere some of them emanate
fromthe opposite Party,or fiom third counb5es- cannotbut be considerable,either
as indicationsofgeneraloratleast widespreadreputeorbelief,or elseas confirmatory
of conclusions reached, as in the present case, independently ofthe maps."
(U.N.R.I.A.A. , XI,p. 53, atp. 166.)
76. Finally, Qatar would notethat in situations where the temtory in question lacks a
permanent population,as was the casewiththe Hawar Islands,it is to be expected thattheParties
will be able to show little, if any, credibleevidence of actual administration and controlon the
ground. And in such cases, a consistent pattern ofrnap evidence,such as we have here, can be
especiallyuseful in demonstrating how thetemtorial situationwas viewed by third parties as a
matterofinformed opinion. 5. Conclusion
77. It is in the light of these authorities, that Qatarsubmitsthat the maps, lookedat in their
totality,rovide an important sourceof evidence confirming Qatar'stitle over the Hawar Islands
and Zubarah.
78. Mr. President,that concludesmy presentationon the map evidence.1wouldlike to thank
Members of the Court for the attention they have accorded me, and 1 would ask that
Mr. Shankardassbe called onto continue Qatar'spresentation.
The PRESIDENT: Thank you very much, Mr. Bundy. Je donne la parole maintenant à
M. Shankardass.
Mr. SHANKARDASS:Mr.President,distinguishedMembersofthe Court.
OIL CONCESSION - HISTORYANDTHE 1936-1939 DECISIONS
1.Inmy presentationtothe Courtyesterday,1drewattentionto anurnberof documentsfrom
1933expressingtheclear viewof Britishofficialsthat the HawarIslands werepart ofQatar. 1was
also able to show the Court a few maps including one prepared bygeologists who conducted a
survey of Qatar and attached the map to their report of July 1933; the map which had been
attached to Qatar's Oil Concession Agreement of May 1935; and two officia1maps which
Mr.Bundyhas just referred to, oneof them annotatedby Rende11of the ForeignOfficein 1933,al1
demonstratingthatright up to the timeof the Qatar Oil Concessionof 1935and therelated British
guaranteeofprotectionof Qatar, theHawarIslands were regardedby theBritishas appertainingto
Qatar.
2. Let me now turn to the circumstancesin which this view was reversed in 1936. Qatar
pointed out in itsmorialthat Bahrainhad madea claim to the Hawar Islandsin 1936, andsoon
after thatseveral British officials, both in the Gulf and in London, quite openly argued for or
stressed the political and strategic advantages totain of a decision on Hawar in Bahrain's
favour'. Bahrain'sresponseto thisin itsCounter-Memorial beganwiththe assertion:
'~emonal ofQatar, para. 6.134. "Thefactsplainly show,to the contrary,that if Britainhad alloweditself to be
guided by such impulses rather than by legal principle, it would have favoured the
grantof theHawarIslands [ownership]to~atar."~
3. But, having said this, Bahrain then adopts a somewhat contradictory positionby
proceedingto statethatafter BAPCO,the Americancompany, securedan oilconcessionunderthe
Agreementof 1925, "Britain wasto do itsutmostto promotethe interestsof Britishoil companies
over thoseof Americanoil companies"; and thatwhen APOC,regardedas a British company,and
later its group subsidiary, Petroleum ConcessionLs td. (PCL), decided to jointhe competitionfor
the Bahrain unallottedarea, it became Britain'smajor concem to ensure that any additional
concessionrights awardedto BAPCO wereconfined toas smallan area as possible3. Bahrainhas
drawn attention to the evidence on this issue in its Counter-Memorialand Qatar's response
thereforeis mostlycontainedin itsReply andwill bediscussedby me,briefly, today.
4. 1proposeto demonstrateto the Court that Britishoficials from 1936onwardsweremost
anxiousto ensurethatthenew concessionfor Bahrain's "unallottedarea w"asgrantedto PCL rather
thanto BAPCO; andfurthemore, that their actionsin pursuitof this aimledthem precipitatelyto
reverse, in 1936,the British view held, even as recentlyas 1935that the HawarIslands were an
integralpartof Qatar; and that theseactions, manifesting themselvesin a consciousbias in favour
of Bahrain on the sovereigntyissue, vitiatedthe British decision of 1939on the ownershipof
HawarIslands.
5. Negotiations fora concession covering Bahrain's unallotted area wereresurnedin 1936.
PCL, the "British" company,submitted aproposa1for a concessionon 16April 1936, and afew
days later-as the Court is now aware-Bahrain decidedfor the frst time to make a forma1
written claim to the Hawar Islands by its letter of 28April 1936 fkomBelgrave to the Political
Agent. Sir Ian Sinclairhas alreadyreferredto thisletterand willbe analysing itscontentsinsome
detailin a laterpresentation; formypurposeit isonly relevantto draw attention tothe factthat the
claim was expressly made in thecontext of negotiationsfor a concession overthe "unallotted
2~ounter-~emorialfBahrain,para.197.
3~ounter-~emonaol fBahrain,paras.205and217.
4~ernorialof Bahra, ol. 5, Ann.246,p.1.07 6. WhenPCL becarneaware of Bahrain'sclaimto the HawarIslands,it protestedon the very
next day by a letterof 29Apnl 1936to Walton inthe India Office. Inthis letter,which is in your
folderat No. 37,PCL drew attention tothe factthat, as they were now negotiatingwith the Shaikh
of Bahrain for a concession overhis unallotted area, he had commenced by claiming "that the
Island of Hawaris part of his dominion^" PC L pointed out, in this letter, that the island was
situatedjust off the west coast of Qatar and went on to assert firmly and entirely accuratelyin
words,whicharenowonthe screen:
"The island is shown on the officia1map of Qatar which was signedby the
Shaikh of Qatar and by Mr. Mylles and whichforms part of the Qatar Concession.
This map,1believe, wasseenandapprovedby the Political Residentand,perhaps,the
India Office. Al1this pointsto its forming partof Qatar andnot of ~ahrain."~
Apretty concisesumrnaryof someof the submissions1made yesterday.
7. However, as Bahrain had in fact made a claim to Hawar the day before, the letter
concluded with arequestfor a clarificationas to whom, in the opinion of the British Govermnent,
did the islandbelong. This request,in the context, was ineffect for a confirmation ofCL'sview
ratherthan a requestforwhat Bahraincalls "an advisoryopinion"'.
8. In the meantime, dealingwithBahrain'sforma1claim of 28 Apnl 1936,Loch,the Political
Agent, proceeded to acceptthe bare assertionsin Belgrave'sletter and recornmendto Fowle, the
Political Resident, in his letter of 6May 1936, Ljudges'folder, No. 381, that there was real
substancein Bahrain'sclaim. He mentionedthat Hawar Island was alow, desolatelooking place
near the mainland of Qatar, but, said he, that it might have considerable value "now that oilhas
been found in Bahrain and is hoped for in Qatar", andthen, in what appearsto evidencethe first
indicationof the reason for the change in the British position on the ownership of Hawar,wrote
that "it might in certain circumstances suit us politically to have as large an area as possible
included under Bahrain". Similarly, Fowle, the Political Resident, without considering any
evidencein supportof Bahrain's claim, simply proceededto expressthe viewthatHawarshouldbe
regardedas belonging tothe Shaikhof Bahrainand that the burden of disproving this wouldlie on
'~ernonal of Qatar,AnIII104Vol. 7,p. 19.
Vbid.
'1bid.the Shaikhof Qatar, who knew nothingaboutthis. SirIanSinclairwillreview thistumof events
more fullyin his presentation. For now, 1onlywishto drawthe Court'sparticular attentionto the
contrast between the various objective opinions expressedand accepted since 1933'and these
subjectiveviews clearlydictatedbypoliticalpolicy.
9.InJune 1936,theAmericancompany, BAPCO,also notifieditsintentionto negotiatefora
concessionover the entire unallotted area of Bahrain andits temtorial waters. Itwill be seen
therefore that while Bahrain'sforma1claim of 28 April 1936to the Hawar Islands was being
consideredin London,the questionof whichcompany couldsecureBahrain's newconcessionfor
itsunallottedarea was simultaneouslyreceiving attention9.
10.Another issue thatwas exercisingBritishofficialsin London atthe sametimewasto try
to restrict control of oil resources in the Gulf area by American companies. In this context,
Starling, asenior officia1in the PetroleurnDepartmentin London,writingto the India Officeon
3 July 1936,expressed his concern for "securinga measure of Britishcontrol" over oil supplies
from the Gulf area, and proposed that theBritish Governrnentmight suggest to the Sheikh of
Bahrainto give theremainder ofBahrainto PCL". Hethereforesuggestedthat thewholeissuebe
discussedatan interdepartmentalmeeting.
11.Asregards Bahrain's new formalclaim to theHawarIslands,Walton of theIndiaOffice,
in a memorandurnof 8July 1936forthe SecretaryofStatefor India,expressedhis agreementwith
Fowle'sview that Hawarshouldbe regardedas belonging tothe Sheikhof Bahrain. Althoughhe
pointed outthat this would be a provisionaldecision, as a final decision could not be reached
withouthearinga Qatar claim,if any,he wenton to concludethat "Qatarmay make a claimin any
case,but ithardly seemsnecessaryto putitinto hishead byaskingwhetherhe has one"''.
12.On the next day, 9July 1936, therewas helda crucialinterdepartmentalmeeting,where
Starling,Walton anda number of senior officialswere present. The firstitem of the Minutesof
thismeetingis particularly important fortheseproceedings, foritrecords:
paras.4.251eseq.,andMemorialof Qatar,Ann.111.10, ol. 7,pp.31,35.l.7, pp.27, 30; see also,Replyof Qatar,
'l2eplyof Qatar,para.4.212.
'O~ounter-~emoriolfBahrain,Vol.2Ann.76,p.240.
'~emorialof Qatar,Ann.III.109,Vol.7,p.41. "The meeting first examined the question of the ownership of the Hawar
Islands. It wasagreedthat ontheevidenceat presentavailablethese Islandsappearto
belong to the Sheikh of Bahrein,and that the burden of disproving this claimlay on
any other potential claimants. It was agreed that the Sheikh of Bahrein shouldbe
informedac~ordingl~."'~
13. In other words, the question of ownership of the Hawar Islands was quickly and
swnmarily decided in favour of Bahrain, notwithstanding the lack of anyeffort to examine
previousofficiairecords,notably thosecovering theyears fiom 1933to 1935,or indeed any other
evidence,and without any thought of obtaining theviews of the Ruler of Qatar. As 1will shortly
show, though this decisionwas statedto be "provisional",it was in actual fact treated as final and
immediately actedupon as such, by al1concerned. 1would drawthe Court's particular attention to
the remarkable forma1direction in the decisionthat "the Sheikh of Bahrein shouldbe informed".
The Ruler of Qatarwas not even mentioned. This statementwas clearly to enable the Shaikhof
Bahrain,and as the Courtwill see, didenablehim fromthen onwards,to offerthe Hawar Islandsas
part of histemtory forthe proposednewconcessionfortheunallottedarea13.
14. At the same interdepartmentalmeeting, Starlingpiessed his favourite policy to further
Britishoil interestsinthe Gulf. As Bahrainalsopointsout14,the Minutesof the meetingrecord:
"Mr. Starling [of the PetroleumDepartment]then suggestedthat His Majesty's
Government should exert a sub rosa influence to induce the Sheikh to give the
concessionfortheunallottedareato [PCL] ..."
The Minutes further record that Starlingexpressed the hope "that United States concems would
gradually disappe.arfiom the Gulf and thatthe whole area wouldfa11under British control". The
record also shows that this crudely chauvinisticpassage was later replaced by a more emollient
sentencecontaining an expression of a hope that if PCL could securethe remainder of Bahrain,it
would give the Companya better chance to acquire the Amencan interests in the Gulf, thus
strengtheningthe Britishposition in thearea15.
15. The change in the views of British officials in the Gulf on the ownership of the
HawarIslandsbetween 1933and 1936inthe face of al1of the evidence1mentioned yesterday,this
change to which 1havejust referred, combined withthe anxiety at the interdepartmental meeting
''Replyof Qatar, paras.4.213-4.214; Counter-MernorialofBahrain,Vol. 2,Ann.77,p. 243.
"Reply of Qatar, para.4.214.
14~ounter-~emonalofBahrain,para.252.
'S~eplyof Qatar, para.4.215.on 9July 1936 to advance -Britishoil interestsby securing the new Bahrain concession for PCL,
clearly suggest that, by that date, at least some British officials were inclined to believe that
atûibuting the HawarIslands to theRuler of Bahrainwould helpto persuadehim or inducehim, as
Mr. Starling said, to grant the new concession overthe "remainder of Bahrain" to PCL. In any
event, the so-called "provisional" decision of 9 July 1936 was immediately communicated to
Belgravethe very nextday and hepromptly announcedthat theShaikh of Bahrain would enterthe
island in the list of his possessions to be given to PCL'~. As Bahrain itself confirms in its
Counter-Mernorial,it was clearto al1parties that the oil concessionnegotiationswith the Ruler of
Bahrain were to proceed on the understanding that the Hawar Islands were included within the
temtories of ~ahrain".
16.In responseto the PCLletterof 29 April 1936that1have referredto andwhich contained
the strongand firmsummary ofthebasis of Qatar'stitle to the HawarIsland, PCL was informed of
the "provisional" Britishdecisionin favourof Bahrainby the India Office on 14July 1936. At this
point, PCL rapidly changed tack. Instead of persisting with the argumentthat the Hawar Islands
already fell within the 1935 Qataroil concessionheld by them18,PCL continued its negotiations
with the Ruler of Bahrain for a concessioncovenng the wholeof what was claimedto be Bahrain's
"unallotted area", this expression beingnow understood by al1 involved in the negotiations to
include the Hawar Islands. Now, why did PCL pursue this strategy? PCL wanted to have a
foothold in the Bahrain islands, where BAPCO hadalready commencedoil production. Once it
was made known to PCL in mid-July 1936,that the British Governmenthad made a provisional
decision in favour of the Bahrainiclaim to Hawar,PCL obviously decidedthat their commercial
interests outweighedwhatever loyalty they may have felt towards the Ruler of Qatar who had
grantedthem only one year previously an exclusive oil concession covering thewhole of Qatar. It
is alsoquite on the cardsthat Britishofficialsin Londonor in the GulfactivelyencouragedPCLto
persistwith theirbid tothe RulerofBahrain fora concession covering theunallotted area.
'6~emorialof Qatar, Ann.111,Vol. 7p. 51.
"counter-Mernorial of Bahrain,para.255;Counter-Memonalof Bahrain, Vol.2,Ann. 78,p. 246;Memonal of
Qatar,Ann.111.11,Vol.7p. 55; Counter-MemorialofBahrain, Vol.2,AM. 80,p.249.
"Memorial of QataAnn.111.10 Vol.7,p. 19. 17. As Longrigg of PCL explained at ameeting held in the India Office in London on
12Apnl 1938, ifenquiries showedthat the HawarIslands belongedto the Sheikhof Qatar, they
wouldbe includedin the concession whichPCL hadalreadyobtainedfrom thatRuler;and thatby
enteringinto negotiations with the Sheikhof Bahrainfor them, theCompanywere merelyrunning
therisk of payingtwicefor thesamethingIg.
18.This, then, was the cynical response which Longrigg gave at the meetingon behalf of
PCL in response to a suggestionby Fowle that the resumption ofnegotiations be postponed in
orderto determineclearly,as betweenBahrainandQatar,the ownershipof the HawarIslandsand
Fasht Dibal. But PCL strongly opposed any suggestion ofpostponing the negotiations; and
indeed, Longrigg proceededto assert he personally thoughtit would be a pity to put ideas of
ownership intothe mind of the Sheikhof ~ata?'. Al1this as part of PCL'seffort to secure a
concession over theunallotted area.
19.Here is proof of Qatar's contentionin its written pleadings21that PCL wereextremely
careful,in the periodbetween 1936 and1939,towithholdfromthe Ruler of Qataranyknowledge
of the Company's involvemenitn negotiationswiththe Ruler ofBahrainaboutthe unallotted area.
PCL wereplaying adeviousgame. Theywantedto securea newconcessioncoveringthat part of
the Bahrain islandsnot yet covered bythe BAPCOmining lease,or as 1will shortlyshow, atleast
the HawarIslandsand other islands andisletsclose tothe Bahrainmain island. But, inseekingto
achievetheir aims,PCL couldnotputtheir Qataroilconcession atrisk. So, therewaseveryreason
for PCLto concealtheir ambitions and activities from the Rulerof Qatar, who wasthus, it would
appear, kept in total ignorance ofthe developing oil concessionnegotiations concemingthe
so-called "unallottedarea" of Bahrain, includingthe Hawar Islands,during the years from 1936
to 1939.
20. As 1 have indicated earlier, fromJuly 1936 onwardsthe British authorities not only
permitted,but evenparticipated in, concession negotiations on the basis that the Hawar Islands
werepartof "theunallottedarea"of Bahrain. It wasBelgravewhoreported to theIndiaOfficeon
'g~emorialofQatarAnn. 111.4, ol.7,pp.241,245.
20~emoriaol fQataAnn. 11112,Vol.7,p. 245.
2'~ounter-~emorialf Qatar,paras.3.64to3.66.17July of that yearthe progressof the concessionnegotiationsand the details of the termsoffered
by both PCL and BAPCO, pointing out that both companies attached great value to the oil
prospects of the Hawar Islandsand soughtthe BritishGovemment'sviews onthe terms ~ffered~~.
The Ruler of Bahrain'sown first response to the offers from the two companies was that the
additional or unallotted area might be dividedbetween them: with the area that includedHawar
Islands to be given to PCL, and the rest of Bahrain "proper" toPCO~~.Both the companies
foundthe idea ofdividingthe additionalareaunacceptable. BAPCOdesiredto obtain a concession
overthe whole additional area, and clearly theal attractionfor PCL was to secure a concession
notjust over the Hawar Islands butoverreasin BahrainitselP4.
21. The presuppositionthat the HawarIslands were part of BahraiLsunallotted area, andit
would be the Ruler of Bahrain who would be granting a concession of that area, was rapidly
hardeninginto anunchallenged assurnption.At a meetingin the IndiaOfficeon 1October1936,it
was again Belgravewho was assigned the task of ascertainingfrom PCLwhether it wouldaccept
anoil concessionlirnitedonly tothe Hawar Islands,or to the HawarIslandsand a fewsmallislands
adjoiningthe twomain Bahrainisland~~~.
22. 1 must point out, however, that not every British officia1concemed regarded the
"allotment"of HawarIslandsto Bahrainwithequanimity. SirIan Sinclairalludedyesterdayto the
view expressed by Rende1 of the Foreign Offlce, recorded well over a year after the 1936
"provisional"decision,in wordsthat arenowon the screen:
"Asregards the Hawar Islands. ..1cannot helpregrettingthat the India Office
went so far as they seemto have donein allottingtheseislands to Bahrein. Theyare
obviously,fromthe geographicalpointof view, apart ofQatar, andsincethe Qatar oil
concession is held by a British company [PCL],whilethe Bahreinconcessionis held
by a purely Amencan company, 1 should have thought that interest, as well as
geography,oughtto haveledus to allocatethem toQatar."
TheCourt will no doubtnoticethat even Rendel,though anopponentof the so-called "provisional"
decision, appeared tobeassumingin December1937,before theinquiry into the ownership ofthe
22~emorialofQatar,An111 .1,Vol. 7,55.
23~eplyofQatar:AM.111.5Vol3,p.311.
24~emonalofQatar,AnnIII114V,ol7,p.63andReplyof QataAM. 111 .5Vol3,p.317.
25~emonalofQatar,Ann1111.1Vol.7,p.59.islandshad even begun,that the "allotting"or "allocation" ofthe Hawar Islands to Bahrainwas
irre~ersible*~.
Mr.President,wouldthisbe a convenientmomentformeto stopfora break?
ThePRESIDENT: Thankyouverymuch. TheCourtwillsuspendfor aquarterof anhour.
TheCourtadjoumedfrom 11.25a.m.to 11.50a.m.
LePRESIDENT :Veuillezvousasseoir. La séance esrteprise. MonsieurShankardass,vous
avezlaparole.
Mr.SHANKARDASS:Merci, Monsieurle Président.If1mayresume.
23. On 1May 1937,the Ruler ofBahrain hadagainsuspended negotiationsfor oneyearon
the ground that the questionof Zubarah was exclusively occupyinghis attention2'. When the
negotiations wereresurned in 1938, in view of the BahrainRuler'sknowndesireto dividethe area,
PCL had decided to restrict the area fiom whichit sought aconcession,to a lirnitedarea on the
BahrainIslandsand anotherwhichincluded theHawar1slands2'.
24. Sir Ian Sinclair willbe addressingyou on the developments following Fowle'p sroposal,
in 1938,to initiate an "enquiry" intothe contestedissue of sovereigntyover the Hawar Islands.
However,given that the Political Residentwas simultaneouslyexpressingthe viewthat "fiomthe
politicalpoint of viewit will suitquitewell if wegive Hawarto Bahrain, asthis will balanceour
previous decision of giving Zubara to ~atar"~',in view of this, obviously any prospect ofan
impartialand objective consideration of the issue wap sut in doubtat the outset. What Fowlewas
proposingwas ineffectonlyto gothroughthemotionsofanenquiry.
25. As the Court will recall,two monthsearlier,Le.,in February 1938,the Ruler of Qatar
had himselfalreadycomplainedorally to thePoliticalAgent(Weightman) aboutBahrain'sillegal
activitieson ~awd'. But some indicationof even Weightman'sfiame of mind isavailable fiom
26~eplyof Qatar,Ann.111.5, ol.3,p. 349.
27~eplyof Qatar,Ann.111.5, ol.3,p. 321.
28~eplyof Qatar,Ann.111.5, ol.3,p.353.
29~emonalof Qatar,Ann.111.146, ol.7,p. 233.
3%emorialofQatar,Ann.111.152V, ol.7,p. 261.the fact that, despite this complaint in February of that year, he recorded in his "Intelligence
Summary" of 28 April 1938 - three months later - that he had visited Hawar on 15April,
"inspectedthe newBahrainPolice Postthere" but thatthere had beenno complaint aboutthis, says
he, from the Shaikh of Qatar, thus "indicating his acceptance of Bahrain'srights in ~awar"~'.
Weightman seems to haveconveniently forgoîtenthe serious complaintwhich the Ruler of Qatar
had made to him personallyin February. He must therefore havebeenhighly embarrassedby the
Ruler of Qatar's fonnal written protest of 10May 1938complainingof Bahrain's"aggression"in
Hawarand invokingBritishaction underhis Treatyforhelp to endtheaggression32.
26. However, followingthe Ruler of Qatar'sprotest,the processof dealing with the issue of
the ownership of the Hawar Islands had begun and has been described in detail in the written
pleadings. For present purposes,whatis importantis to keep in mindthatfrom aboutthemiddle of
1938,developmentsin negotiationsfor a concessionoverthe unallottedarea proceededin parallel
with what Bahrain persists intenning the "arbitration"or "adjudication"over the Hawar Islands,
leadingto decisions onthe two issuesat almostthe sarnetime, by July 1939. Let me nowdescribe
the sequence of events in both these matters to demonstratethe true nature of the enquiry or the
so-called"arbitration",onthe ownershipofthe HawarIslands.
27. On 22 May 1938,Weightman forwarded tothe Political Resident and the Secretary of
State for India a description of the areas to be offered by the Rulerof Bahrain to thetwo
~orn~anies~~ T.he area forPCL clearly included theHawarIslands; andyet only two days earlier,
Le.,on 20 May 1938,Weightman hadwrittento the Rulerof Qatar invitinghirn to statehiscase on
the HawarIslands andto provide evidenceof itasrapidlyas possible34.This, of course,was being
done upon the direction by Fowle in a telegram in which he also stated that "meantirne ...
His Majesty's Govemment and Govemment of India might proceed on the assumption that
HAWARbelongs to ~ahrain"~'. Significantly,Weightmanalso sent Belgrave a copy of his letter
of 20May 1938to the Ruler of Qatar which, in tum, prompted Belgraveto submit the unsolicited
of Qatar, Ann.111., ol. 3,pp.371,374.
32~emorial of Qatar,Ann.III.150,Vol. 7,p. 253.
33~eplyof Qatar, Ann.111.62and 11, ol. 3,pp.381and385.
34~emonal of Qatar,Ann.111.5, ol. 7,p.279.
35~emorial of Qatar,Ann.III.153,Vol. 7,p. 267."preliminarystatement"to theBritisha~thorities~~T .his document(whichwasnevershownto the
Ruler of Qatar) is described morehlly in Qatar's~emorial~'. On 30 May 1938,Weightman also
visited the Ruler of Qatar and whenthe latter asked that hebe permitted to see Bahrain's
"counter-claim"to enable him to rebut it, Weightmanrejected the requestout of hand38 . In
retrospecttherefore,Weightman's letter to the Rulerof Qatar markingthe commencement ofthe
so-called"arbitration"and his attitudeat his meetingwith theRuler a few dayslater,canhardlybe
said to havebegun with an open mindon the part ofthe Britishofficialsprimarilyconcemed,as
Bahrain'sownershipofHawarwasalreadybeingtakenforgrantedby them.
28. Boththe Political Resident andal1theconcemed departments oftheBritish Govemment,
approved the Ruler's division of the unallotteareacommunicatedby Weightman with hisletterof
22 May 1938.PCL seems to have been generallysatisfied with the Shaikh of Bahrain'slatest
proposed division. But at this stage, BAPCO, which already held a mining lease from
December 1934over the first 100,000acres on the main Bahrainisland, and was producingoil
from it, delivered amostsignificantthreat. It wamedthat, if any partof the new concessionwas
offeredto another Company,BAPCOwould abandonplans for substantial capital investmentfor
the furtherdevelopmentandrefining of oilproduction inBahrain,as wellas slowdownproduction
on its existingBahrainconcession. This,of course,wouldmeanreducedroyaltiesforthe Rulerof
~ahrain~'.The Rulerandhis farnilywere gx-eatly alarmedby thisthreat40.Having madeits threat,
BAPCO then made a new offer for a concession coveringthe whole area under the supposed
dominionof the Rulerof Bahrain, including theHawarIslands. In June 1938,the Ruler therefore
found himself in an extremelydificult situation andwas looking for a way out that wouldnot
offendeitherBAPCO orhis Britishfiiends; he [theRulerof Bahrain]now proposed,in a letterof
9 June 1938,to give the "entireunallotted areaexcept HawarIslands and the three miles of sea
aroundthem" to BAPCOand to negotiatewith PCL for the exceptedarea, includingthe Hawar
Islands. He stated quite candidly thathis reason for the decisionwas that he did not wish to
36emoriaolf Qatar,Ann.III.158,Vol. 7, p.291.
"~emonal of Qatar, para6..76etseq.
3s~emonalof Qatar,Ann.111.159, ol.7, p. 299.
39~eplyof Qatar,AM. 111.6, ol. 3,pp.391,393.
40~eplyof QatarAnn.111.79, ol. 3,pp.469,472.endanger his oil revenues from BAPCOwhich would follow ifPCL were introducedinto the
territory"exceptat~awar"~',ashe said.
29. The PoliticalAgent (Weightman)recognizedthe implications of BAPCO's threaa tnd
reported to thePolitical Resident(Fowle) inhis letterof 10June 1938,thatthe Al Khalifa believed
it was out of questionto resistthe threatmadeby BAPCO andthat the BritishGovernment,they
hoped, would appreciate this position. Weightmap nointed out that, in offering PCL even a
concessionrestrictedto Hawar,the Rulerwouldbe ignoring BAPCO's threats;he also indicated
that theRulerandhis familyseemedto thinkthe allocationof Hawarto BAPCO mightevenresult
inthe lossofhissupposed"sovereignty"over~awar~'.
30. In anothermore detailedletterto the Political Residenton the same day (extracts fiom
which are inthejudges'folderat itemNo.39),Weightman pointedout that ifBAPCO's threatwas
carried out it would have devastating economic consequences for Bahrain, which hadrisen in a
matter of two years fiom grinding poverty to undreamed of wealth, and that the British
Governmentcouldnot advisethe Ruler to disregard it.Hepointedout that the Shaikhsfeared the
possibilityof a retum to povertyand the loss of prestigethat wealth had brought to Bahrain, the
end of al1their schemes of development, HisHighness unable to indulge his twin passions of
buildingand forextravagantgenerosity,and his familydeprived oftheir almostunlimitedpocket
money. Weightmanwent onto Saythatnoonecould doubttheRuler'soriginalwish todischarge a
debt of gratitudeto the British Government andto give proof of his loyaltyby offeringa British
company a substantial partof his temtories, while at the same time "pleasing" the American
companywhichhadsucceeded,wherean English companyhad failed,in providinghim withgreat
wealth. Weightmanfelt howeverthat these admirablesentiments: "mustnowyield to the knife
which theRulerandhisfamily saw at their throat~"~~T . he Court will also wish to note the
additionalelementof pre-judgrnentinvolvedin Weightman'sblandassurnptionin this letterthatthe
Hawar Islandsconstitutedat this time (June 1938) a substantial part otfhe Ruler of Bahrain's
territones.
41~eplyofQatar,m. 111.72, o3,p. 437.
42~eplyofQatar,m. 111.73, o3,pp.441,445.
43~eplyofQatar,nn. 111.74, o3,p.447. 31.DespiteBAPCO'sthreat,however, Weightman had not yet given up on Hawarand stated
in his letter inwordswhich arenowonthe screen:
"Hawar is a different matter. It seems impossible for the Al Khalifah to
consider Hawar without at the same time wondering how much they can annoy or
perhapsdamagethe Al Thaniof Qatar. His Highness hasthis absurd convictionthat,
whatever'theengineers'may Say,there is oil inHawar, andif the Company operating
in Qatarcanproduce oil fromHawarfor Bahrain itwill givehim immense,if childish,
pleasure. He does not want to offer Hawar in any case to the Arnericans
1144
[Bapco], ...
The Court will notmiss the additionalmotivationof the Rulerof Bahrain'sextreme hostilityto the
Al Thani of Qatar.
32.Weightmanwent onto statethatBAPCO hadindicated Hawarwas of no interestto them
from the point of producing oil and concluded: "Onthe whole, 1 imagine His Highness wouldbe
quite safein givingHawar to [PCL],ifthey can arrangeterms." A clearand an expressassumption
by Weightman, only three weeks after inviting the Ruler of Qatar to provide evidence of his
ownershipof Hawar,and a weekafterforwardingthe Ruler's response to Fowlefor c~nsideration~~
that it is the RulerofBahrainwhowillbe "giving"Hawar to PCL.
33. The Political Residentagreed with Weightman and,on 19June 1938, recomrnendedto
the India that the British should approve the Ruler of Bahrain's decision to open
negotiationswith PCLfor the HawarIslands, andwith BAPCO for the rest of the unallottedarea.
Fowle, who now becarne actively engagedin the process of securing the Hawar Islands forPCL
from the Ruler of Bahrain, was at the sarne time, conductingthe so-called "arbitration" on the
ownershipof Hawar,for on theverynext day,20June 1938,he forwardedwhathe characterizedas
the Ruler of Qatar's"detailed claim"to the Secretary of State for India. He proposed that this
shouldbe givento Bahrain, and whathe called Bahrain's "counter-claim" obtained4'. HowFowle
was ableto reconcilein his ownmind,his two conflicting roles of:(a) advisingthe IndiaOffice on
how to persuade theRuler of Bahrainto conductthe oil negotiations for aconcession over Hawar
and (b) supervisingthe enquiry intothe ownershipof Hawaras betweenBahrain and Qatar,defies
44ibi pp.,55-456.
45~emorialofQatar,Ann.111.15, ol. 7,p. 299.
46~eplyof Qatar,Ann.111., ol. 3, p.459.
47~emorialofQatar,Ann.III.161,Vol.7,pp.311-314.comprehension. Indeed, the only wayhe coulddo sowastotreatthe enquiryasa charadedesigned
simplyto "rubber-stamp"theprovisionaldecisionof 1936.
34. Next, at a meeting atthe India Office on 7 July 1938~'~ it was decidedin the light of
BAPCO'sthreat, to recornrnendthat the Ruler of Bahrain postponethe concessionnegotiations.
'
Belgrave,who waspresent for a part of the meeting, reportet dhat the Ruler and his familywere
nowin favourofclosinga dealwithBAPCOandwerepreparedto "give"Hawarto PCL.
35. The Ruler of Bahrain was not only firmly opposed to any postponement butin
October1938, informedWeightman that heno longerwishedto offer even the Hawar Islandsto
36. On 18October 1938,Weightmanwroteagainto Fowle,to Sayhis opinion hadgradually
beenhardeningthat theunallottedareaoughtto go to BAPCO,thatthe Rulerandhis adviserswere
now quite defmite about this and that he feared the gravestrepercussionsif the British were to
obstnictthem. Weightman thereforeposed whathe consideredto be themain andmost important
question,that of British relations with Bahraiand asked: "1sit Sound,Saveforthe reason of the
mostextraordinaryurgency, to imperilourfiiendshipwiththeoneloyalSheikhdominthe ~ulf?"~'
37. But now Fowle tookthe view, in a letter of 3 November1938(whichis in thejudges'
folderat itemNo.40) to the Secretary of State forIndia - forwhat appearsto be the f~sttime -
that the British Govermnentshouldinsist that a concession over Hawarbe grantedto PCL. He
pointsout in thisletterthat: "Itwillbe seenthatthe Shaikhnowdoesnot even wishto giveHawar
to [PCL]. 1amnotof theopinion thatwe should acceptthis. ..""
38. Mr. President and Members of theCourt,1wouldliketo drawyourparticularattentionto
thereason hethengivesfor his views. HeStates,in wordswhichare now onthe screen: "Hawar
geographicallyis outside the Bahrain area and adjoining Qatar, where PetroleumConcessions
Limitedalreadyhave a concession andin faimessthereforeit shouldgo tothem."52
48~eplyofQatar,Am. 111.7, ol. 3,p.469.
49~eplyofQatar,Am. IïI.78,Vol.3,pp.479,482.
'%eplyofQatar,Am. 111.79, ol.3, p. 487
''~e~l~ofQatar,Am. 111.8, ol.3,p.493,pp.496-497.
521bid. 39. So Fowle wasnow giving reasonsfor his opinion whichwere similarto those given by
Britishofficials in 1933,as well as by Rende1of the Foreign Officein 1937,in support of Qatar's
title to the Hawar Islands. He was doing so, however, to support PCL's claim to a Bahraini
concession coveringthe Hawar Islands and not Qatar's ownershipof the Hawar Islands! He
advised, accordingly,that the British Governent should inform the Ruler that it agreed to his
proposal, provided Hawar was allotted to PCL but nototherwise. It may be asked: what was
happeningin the so-called "arbitration"when Fowle was making this recornmendationon the fim
assurnption thatHawarwas withinthe gift of the Ruler of Bahrain to "give" toPCL? Bahrain was
stillto submit its so-called "counter-claim",which it actually submitton 3 January 1939~~(two
monthslater). Yet,ironically, Fowle,in his letter of 3 November to theSecretaryof State which 1
havejust referred to, also mentions, as if in passing, that in connection with the ownership of
Hawar he would enquire fromthe Political Agent whetherany reply had been received fiom the
Shaikh of Qatar. He appeared to be unaware that what was then awaited was Bahrain's
"counter-claim",had forgotten that, as 1have shown, he had already seen and sent the Ruler of
Qatar's"detailedclaim"to the IndiaOfficeon 20 Junethat yearand seemedhardlyto regard events
concemedwiththe "arbitration"as of any ~i~nificance~~.
40. It will be seentherefore that although at this timethe so-called "arbitration"in respectof
sovereignty over Hawar was,in theory at least, proceedingapace, the attention of al1concemed
wason how to get, fromthe Ruler of Bahrain,the grant of a concession over theHawarIslandsfor
PCL. No one was waiting in London or Bahrain in breathless suspense for the result of the
arbitration before continuingthe concessionnegotiations.
41. On 9January 1939,Fowlesent atelegrarnto the Secretaryof State for Indiapressing his
earlier recommendation andstating that the British "declaration" to the Shaikh of Bahrain that
Hawarshould be alloied to PCL shouldbe conveyedto him immediatelJ5. This again was on the
basis that Hawar was to be "given" by the Ruler of Bahrain. And this was at the stage when
53~emorialof Qatar,Ann.I174V,ol. 7p.371
54~bid.
55Replyof Qatar,Ann.111.81ol.3p.499.Bahrain's"counter-claim"had beenforwardedtothe Rulerof Qatar, whosecommentsthereonwere
42. The Secretaryof Statefor India neverthelessalso actedon Fowle'sadvice. Whenthe
Ruleraskedspecificallywhetherthe British Govemmenthadany political objectionto his granting
a concessionto BAPCO overthe wholeof histemtory, theSecretary ofStatestated,in a telegram
of 13January(whichis alsoin thejudges' folders at item No .1),that the Rulermight be assured
whatever conclusionshe arrivedat as a result of negotiations, would not affect the goodwil olf
HisMajesty'sGovemment; but that he should be informedof the British Govemment'sview
regardingtheHawarIslandsthat, to quotehis words(nowonthe screen)
"owingto the contiguityof these Islandsto Qatar where an oil concessionis being
operatedby PCL the grant of concessionalrights to [BAPCO]in Hawar wouldbe
open to objectionand His Majesty'sGovemmentconsiderit wouldbe appropriateat
least toallowPCL theopportunityto acquire concessionalrights therein".
Here then, Mr.President andMembersof the Court, was yet anotherview being expressed,this
time by the highestBritish authontyinvolved, thatbecauseof their contiguityto Qatar,the Hawar
Island concession shouldgo to PCL.No one seemedto wantto say thatbecauseof the very same
contiguity,theIslandswereactuallypart of Qatar.In anyevent,thetelegramwentonto state:
"HisHighnessshouldhoweverbe assured thatin informinghim of theirviews
in regardto grant ofa concessionin Hawar,His Majesty's Governmena trenot in any
wayprejudicing the questionof sovereignty overHawarIslands. The choice ofPCL
rather than [BAPCO]as concessionaires couldnot adverselyaffect his claim to the
~slands."~'
43. No one botheredto remindthe Secretary of State,who wouldno doubt havehad many
other matters of State to deal with, that the questionof ownership ofHawar was pendingwith
His Majesty'sGovernment. It had clearly become a fm assumptionby then that the so-called
"arbitration"would formally deliver the Hawar Islands to the Ruler of Bahrain. The Political
Agent duly informed theRulerof the British Govemment's views on 15January 193gS8 although
Qatar'sresponseto Bahrain'sso-called"counter-claim"was stillawaited.
56~emoriaolf Qatar,Ann.111.1,p.393-396.
"~e~l~ofQatar,Ann.111.84, ol.3,p. 515.
'8~eplyofQatarAnn. 111.8, ol.3,pp.525,528. 44. The Rulerof Bahrainmust havefeltquite intimidated,for he now changed hisrnind yet
again and invited fiom PCL an offer coveringthe Hawar Islandsalone. But at this sarnetime, he
also enquired of BAPCO whether its offer for the whole unallotted area would be affected if the
HawarIslandswereto be exc1udeds9.At this point,BAPCO,whohad recently submitted a revised
bid with improved financial terms, delivered its second all-important thre,tatingin effect that it
must also have Hawar. At a meetingon 17January1939,BAPCOwamed that its offer would be
withdrawn if the area were to be divided. BAPCO'srepresentative, oneMr. F. A. Davies, statedat
the meeting that he was astoundedatthe enquiry because "al1through the present negotiations, the
whole of the area has been under discussion and there had been no mention of excluding
Hawar .. ." The Ruler attempted to explain that he had merely excluded Hawar in order "to
prevent complications and difficultiesin the future which might arise owing to theproximiiy of
Hawar to the PCL concession"[in Qatar]. He tried to argue that "Hawarwas a very small island
and very far away and that its loss to the companywould not cause them any material loss". But
Davieswould havenone of it. HeexplainedthatBAPCOdidnot want another company tohold an
oil concession anywhere withinthe Ruler'stenitones because if two companiesheld a concession
in so small a countryit wouldcause difficultiesandmis~nderstandin~s~~.
45. On 6 February 1939,in a letterto thePoliticalAgent signedby al1the Bahrain Sheikhs,
as well as by Belgrave,they began by expressingtheir relief "toknow that their decision aboutthe
oil concession will not affect their known nghts over the Hawar Islands", then reaffumed their
reliance "on thejustice and wisdomof the BritishGovernrnent"and statedthat they were surethat
the validity of their claim would be recognized. The letter then went on to draw attention to
BAPCO's threat and to state that BAPCO'soffer for "the whole area, including Hawar" was
financiallymore advantageousto Bahrain than the alternativeof dividingthe concession area into
two; but that before making a final decision, the Sheikhs sought the advice of the British
~overnment~'.
"1bid.
60~eplyof Qatar,Ann.111., ol.3, p. 519.
61~eplyof Qatar,Ann.111., ol.3,p. 529. 46. As BahrainStatesin its Counter-Memorial,this was thestage atwhich "Bntainrealised
that its handswere tie~~~.
47. Reportingto the Political Residenton 12February1939~~ (a copy is in thejudges'folder
as item No.42), the PoliticalAgent (Weightman),in a very long letter,expressedthe viewthat it
1
was no longer possible forthe BritishGovernmentto press theRuler ofBahrainto grantHawarto
PCL. Weightmanwas thus continuingto assumeBahrain'sownership of Hawar. In his letter,
Weightman set out the probable consequencesif the British Govemment were toinsist that the
Ruler of Bahrain shouldgrant Hawarto PCL. He felt that sincedetailsof the negotiationswould
inevitablybecomepublic property, thegrant of a concessionfor Hawarto PCL onBritish advice
wouldbe disastrousto the British positionin Bahrain andin the Gulf,as well as to the Shaikhand
his administrationandindeedto British prestige moregenerally. He wenton to Saythatit required
little imagination thereforeto realize the devastating effectof the almost inevitablecriticism,if
His Majesty's Govemment wert eo insiston Hawar goingto PCL,that the Britishhad served their
own interestsat thecost of over £1 million tothe ShaikhofBahrain. He fearedthat theeffectof
hostilepropaganda which mightbe basedon sucha statementwould beincalculable. Hetherefore
concluded that it was no longer possible, withoutincumng the gravest nsk to the prosperityof
Bahrain and, in direct consequence, tothe future good relationsbetweenthe British Govemment
andthe BahrainShaikhs,to exertpressureto obtainHawarfor PCLfromthe RulerofBahrain.
Weightman ended his letterwithan expressionof profound distress, saying:
"It isdistastehl to be compelledto recomrnendthe withdrawalof the support
hithertoaforded to a partiallyBritish Company in itsattemptsto obtainafooting in
Bahrain. Neverthelessit seems inevitableto me that commercial advantagesmust
yield to the over-riding interestsof His Majesty's Govemmentand of the Bahrain
State."
48. And whatabout the so-called arbitration on the ownership of Hawar? Weightman
certainlywas not givingit the slightest thoughtfor he wasexpressinghis view, which1havejust
mentioned,whiletheRuler ofQatar'sresponseto Bahrain's"counter-claim"was still awaited.
1
62~ounter-~emonaolf Bahrain,para.281.
63~ounter-~emonaolf Qatar,Ann.111.4, ol.3,p. 265,pp.272-274. 49. Nowherein this importantletter is there even a hint, far less a suggestionthat the oil
companiesberemindedthatthe decisionon Bahrain'sownershipof the HawarIslands wasnot yet
final.
50. If further evidence was needed to show that on the question of ownership of the
HawarIslands, by now "Britain'shands were tied", it came in a response to Weightman'sfinal
proposa1 inthe sarne letter. He suggested an alternative to an unconditionalapproval of the
concessionto BAPCO; and thatwas, that whileBAPCO mightbe allowedto obtaina concession
for the wholeunallottedarea,an expressconditioncould be imposedthat no operationswouldbe
conducted inHawaruntil suchtime as the Ruler,acting on theadviceof the BritishGovernrnent,
might pronounce them unobjectionable.
51. ThePoliticalResident(Fowle),in a letterof 14February1939to the Secretaryof State,
which is also in the judges'folderat itemNo. 43, while generally approving Weightman'v siews,
and statingthat the onlycourseopen to His Majesty's Governent was to permit the Shaikhof
Bahrainto includeHawarin BAPCO'sconcession,rejectedWeightman's suggestion that BAPCO
shouldnot work Hawar. This, hesaid, was because,in words on the screennow: "it wouldbe
difficultto give adequate reasonsto the Shaikhor [BAPCO] why, having obtained Hawarintheir
concession, theyshouldnotworkit"64.Accordingly,BAPCO waslater dulygranteda concession
coveringBahrain's unallotted areain whichHawarwasalsoincluded.
52. Mr. President,Membersof the Court,1respectfullysubmitit is impossibleto escape the
conclusionthat by February 1939, while supposedly conductingan "arbitration"in respect of the
ownership of Hawar Islandsand two monthsbefore they were to assess the evidence and make
their recommendationson whichthe Britishdecisionof 11July 1939was based,both Fowle and
Weightman were unreservedly and unequivocally already acting on the basis that the
HawarIslandsbelonged toBahrain. The Court willhave noticedthat duringthe entire period of
the negotiationsfor a concessioncoveringBahrain'sunallotted area from 1936onwards, the fact
that the BritishGovernmenthad arrogatedto themselvesthe highlyresponsibleduty of makingan
64~eplyof Qatar,An111.8V,ol. 3, pp. 542.objectivedecision in respect of the ownership of theHawar Islands, was never regarded as a
fundamentalelementinthe equation.
53.Accordingly,on 22 April 1939,whenWeightman satdownto rite^^his analysisof the I
evidenceon whetherthe Hawar Islands belongedto Bahrainor Qatar, he appearsin retrospect to
*
havebeenengaginginnothingshort of a hypocriticalfarce. To borrow Bahrain's terminologyonce
again,by then, Britain'shands were alreadytied. There was accordinglynever any questionof
Weightman, Fowleor the British officiais in London rendering any objectivedecision in what
Bahrainpersistsin callingan "arbitration". There was thereforeno legalbasisforthe "decision"of
11July 1939 nor, in the absence of examination ofany evidence,for the provisional decisionof
9 July 1936 in reversing the earlier British views and holding in favour of Bahrain's claimof
sovereigntyovertheHawarIslands.
54. Any objective authority on conditions in the Gulf, when confronted with the
circumstances surroundingthe British Government's decision of 11July 1939, in favour of
Bahrain'sclaim to the Hawar Islands,wouldhave concluded,as indeed did Prior,who had spent
manyyears in Bahrainand soon becamethe PoliticalResident himself, when hesaid only a few
weeks after the decisionhad been taken, that it involved amajor miscaniage of justice. Itis to
Prior'scredit thathe made asincereattempttohave itrectified; but his efforts, andthoseof Alban,
cameto nothing,notbecausetheirsuperiorswereconvincedthat PriorandAlbanwerein error,but
ratherbecausetheir superiorswere,notunnaturally,veryreluctantto reopen ahighly questionable
decisionand risk seriousembarrassment. The Courtis nowin a position toput the recordstraight
andtorestoreto Qatar whatwaswrongfullytakenfiomher in1939.
Mr President, that concludesmy presentation. 1would be gratefulif you would give the
floorto Sir Ian Sinclairforhispresentation.Thankyou very muchforthe patiencewithwhichyou
haveheardme.
The PRESIDENT:ThankyouverymuchMr. Shankardass.Je donne maintenant la parole à
SirIanSinclair.
65Mernorialof QatAnn. II195,Vol.7,p.497. Sir Ian SINCLAIR: Merci,MonsieurlePrésident.Mr. President,Membersof the Court.
1936 AND 1939BRITISH DECISIONSON HAWAR
1. At this point in our debates, 1 would like to complete the presentation which
Mr.Shankardass has just made on the oil concession history, by analysing the 1936 and 1939
Britishdecisionson Hawar inthe lightof whatthe true recorddiscloses.
2. Bahrain'sclaim of sovereignty over the Hawar islands rests first and foremost on the
British Government's decision of 11July 1939,conveyed to the Rulers of Bahrain and Qatarin
parallelletters fromthe Political Residentdated 11July 1939. The substance ofthe letterfromthe
PoliticalResident to the Ruler of Qataris as follows:
"1am directed by His Majesty'sGoveniment to inform you that, after careful
consideration of the evidence adduced by you and His Highness the Shaikh of
Bahrain,they havedecidedthat theseIslandsbelong to the State of Bahrain and notto
the Stateof ~atar"'.
TheCourt will note thatno reason is given for the decision, thereby promptingthe then Ruler of
Qatar, in his dignified protest to the Political Resident of 4 August 193g2 to express his
astonishment atthenews,indicatingthathe had:
"tried to find the cause for what His Majesty'sGovernment have made the basis of
their opinion on this question while 1had provided themwith proofs, evidences, and
contexts which 1thought were adequate to clariQ the correct positionand conditions
of theseIslands."
3. Mr. President, 1 have started at the end of the first phase of this sordid and indeed
shamefulstory because 1would wishthe Courtto pay closeattentionto the "careful consideration"
whichthe British Government supposedlygaveto this contentious issue between1936and 1939. 1
Saythat the story is "sordid and indeed shameful"because- and this is what is shameful-it
showssome British administratorsin the Gulf, and, to a lesser extent, in London, behavingin a
dubiousand indeedreprehensible manner.
Theprincipleof consent
4. Before 1begin to analyse the eventsof 1936, however,1should Saysomethingaboutthe
relevance of the principle of consent by the Rulers of the Sheikhdoms in the Gulf to the
'~emorialof QataAnn.III.209,Vol. 8,p.41.
'Mernorialof Qatar,A111.1,Vol.8p.49. 6. In the present case, itis equallyclearthat no treaty authorizedthe British Governmentto
determine unilaterally the dispute between Bahrain andQatar as to their respective claims of
sovereigntyover the Hawar Islandsand that noBritish administrationever asserted that it had the
right to do so. Bahrain has ofcourse soughtto argue that the impliedconsent of both Rulerswas
given through their participationin the processesproposedby the Britishauthoritiesin the Gulfin
1938forthe "enquiry"into the conflicting claims ofQatarand Bahrain; and that this operatedas a
type offorum prorogatum. But, you may ask, implied consent to what? Certainly not to the
designationof the British Govemmentas arbitratorin an agreed process of arbitration, as was the
positionin the ArbitralAward Madeby theKingof Spaincase, whichis cited at paragraph393of
the Counter-Mernorialof Bahrain. At most,it couldbe argued that theRuler of Qatar was content
tohavethe Political Agentin Bahrain investigate his seriouscomplaintaboutthe unlawfulBahraini
activitiesin 1937in andin relationto Hawar. This complainthad of coursebeen conveyed directly
to Weightman by the Ruler of Qatar in February1938,but had been treated so disdainfullythat it
was not even reported in writing to the Political Resident (Fowle) until 15May1938~. But of
course this complaint was never treated seriously, since the British Government had already,
without informing the Ruler of Qatar, made a provisional decision in July 1936 in favour of the
Bahrainiclaim to sovereignty overHawar,andWeightman, togetherwith other British officialsin
the Gulf and in London had, by early 1938, as you will have already have gathered from
Mr. Shankardass,completelyprejudgedthe final decisionin favourof Bahrain.
7. These facts in themselvesare sufficientto refutethe altemativeBahrain argumentthat the
Ruler of Qatar was somehow obliged by the Agreement of 12September 1868 to refer to the
PoliticalResident any "differenceof opinion" with Bahrainarising as to any question. The fact
remains that the Ruler did refer his complaint,that Bahrain had unlawfully occupied the Hawar
Islands, to the Political Agent,Weightman, inFebruary 1938. And what happens? Weightman
doesnot even deign to reportthis in writingto his superior (Fowle) until15May 1938,morethan
threemonths later. This demonstratesnot onlyhowlightly Weightman,as PoliticalAgent,tookhis
responsibilitiesin relation toQatar,but alsohow contrivedis this Bahrainiargumentwhen looked
4~eeReplyof Qatar, aras.4.283 and4.288-4.290.at in the light of the eventsthat actually occurred. The Ruler ofQatar nevergave his consent to
any process of "arbitration"by the British Government of the conflicting claims of Qatar and
Bahrainto the Hawar Islands. This indeed is now openlyadrnittedby British officialsthemselves. ,
For example,Mr. ChristopherLongof the Foreign Office,in his minute of 13May 1964,which
3
accurately summarizes some of the more important events between 1936and 1939 conceming
sovereigntyover the HawarIslands,statesthe following:
"Neither of the two Rulers was asked beforehand topromise his consent to the
award, nor afienvards to give it. H.M.G. simply 'made'the award. Although it
followedthe formof an arbitrationto some extent, itwas imposed from above,andno
questionof its validity orothenvise was raised. It was quite simply a decisionwhich
wastaken for practicalpurposesin orderto clearthe groundfor oil concession^."^
8. So the Foreign Office acceptedin 1964 that this was an "imposed" decision which the
Ruler of Qatarhad not promised in advance to accept; the clear implication is that, however it
mightbe characterized,it couldcertainlynot be regardedasbinding.
Theevidencerelied onby theBritishauthorities tojustify
the 1936 "provisionaldecision"
9. If 1 may return to the events of 1936, one can see why PCL, pursuing their purely
commercialinterests, and anxious not to anger the Ruler of Qatar, may have wished to withhold
fiom the Ruler of Qatar any knowledge of their oil concessionnegotiations with the Ruler of
Bahrain whichwere predicated,of course,upon the assumptionthat the HawarIslandsbelonged to
the latter. Its less easy to understandwhy British officialsin the Gulf deliberatelyfailed tokeep
the Rulerof Qatar informed ofthe reopening ofthe oil concessionnegotiations in 1936and of the
forma1claimby the Ruler of Bahrainin April 1936to sovereigntyover the Hawar Islands. Loch,
stillthe Political Agentin Bahrainin early 1936,had at least flownover the Hawar Islandsin 1934
and must havebeen aware fromhis own observationthat the majority of the islands lay within a
three-mile limit fiom the mainland Coastof Qatar. Yet he spinelessly fails to draw this to the
attention of the Political Resident in his letter to him of 6 May 1936, contenting himself with
9
saying that "Hawar island. .. is a low, desolate looking place near to the mainland of ~atar"~.
5~eplyofBahrain, Ann.2, Vol.2,4..
6~emorialof Qatar,Ann.111.10, ol. 7,p. 27.Lochalsomakesthe following admissioninthe sameletterto Fowle: "1do not knowwhat Shaikh
Abdullahbin JasimofQatar'sviewsabout theIsland are." (Ibid.)
10.The Courtwillof course recall that,in 1936,Loch,as BritishPoliticalAgentin Bahrain,
alsohad responsibilityfor reportingon conditionsin Qatar. Why then did he not sound out the
Rulerof Qatar about hispositionwithrespectto the HawarIslands? Presurnably Lochfearedthat,
ifhewereto do so, thiswouldencouragetheRulerof Qatarto mounta competingclairnto Hawar,
thereby delaying yet again the resumption of the negotiations for new concession covering
Bahrain'sunallotted area, which wouldnow include the Hawar Islands. Better then not evento
pose the question. But both Loch andFowle mustinevitablyhave been awarein 1936 that the
Rulerof Qatar regardedthe HawarIslandsas appertaining to him. After all, in the context of the
1935 offer of protection to the Ruler of Qatar agaitnned incursions intohis temtory by, for
exarnple,Ibn Saud,the 1934reconnaissanceof Qatar hadoverflownHawar as part of the Ruler's
temtory, and, asboth Mr.Shankardassand 1have indicatedin previous presentations,Loch had
takenpartin thatreconnaissance. Loch also draws attentii, his letterof 6 May 1936,to the lack
of anyprotest fiom the Rulerof Qataraboutthe activities of Bahrainsubjectsin Hawar. But this
surelyisto assumethat therewere activities ofBahrainsubjectsin Hawarpriorto 1936. The Court
has yet tohear a presentationbyMr. Shankardasson Bahrain's alleged pre-1936efectivit Ths.
fact is thatthe only so-called "evidence"forch activitiesis to be found in Belgrave'sletter to
Lochof28April 1936,advancingthe Rulerof Bahrain's claim to the HawarIslands; and we know
howsuspectBelgrave's assertionsin thatletterwere atthetimeand still, indeed,are. Lochhirnself
hadnoteven sought totest whatBelgravewassayingagainstother evidenceundoubtedlyavailable
to him. He mut, for example,have beenaware that members ofthe Dowasirtribe whohad gone
into exilein Damman(SaudiArabia)in 1923,someof themwere stilltricklingbackto Budeya in
Bahrainas late as 1933'; and yet he seemsto have accepted withoutquestion the propositionin
Belgrave'sletter of 28April 1936that "at leastfour of the larger islands[in the HawarGroup]are
permanentlyoccupiedby [theRuler of Bahrain's]subjects"(laterto be identifiedas membersof the
Dowasirtribe), a proposition whichBahrainhas now in effecthad to withdrawin the light of the
'~eeReplyof QatAnn. 111.4, ol. 3,p.2ap.270.clear evidenceto the contrary. What sustainsthe charges of bias in favour of Bahrainand against
Qatar over Hawaronthe part of British officialsin the Gulf,evenas earlyas 1936,is the deliberate
failure of Loch and Fowle even to investigate the so-called "evidence" in favour of Bahraini i
sovereigntyover the Hawar Islandsadduced in Belgrave'sletterto Loch of 28 April 1936; anda
1
real question mark must surely be raised in the mind of any objective investigator intothe facts
when he seesthat Belgrave,in hisdiaryentryfor23 April 1936,States:
"Discussedoil andthenew agreementand especiallythe questionof ourrightto
the Hawar Groupof islandswhich the Sheikhs fear theAgencywill not allow. 1think
myself it is quiteincontestable."
That the Bahrain Sheikhs should fearthe BritishPoliticalAgencywould turn downa claimby the
Ruler of Bahrain to the Hawar Islands is understandable. But why is Belgrave so confident that
such a claim (to be made only fivedays later)will be backedby the Agency? Couldit be that he
had advance knowledgeor at least a hint of whatthe reactionof the Agency to such a claim was
likelyto be? Whatother explanationis there, given,as Belgravemusthave known,the very shaky
grounds for a Bahrainiclaim to the Hawar Islandsif those grounds wereto be subjected toserious
scrutiny?
11. That no real effort wasmade at thetime to test the veracityof the assertionsmade by
Belgrave in his letterto Loch of 28April 1936,is clear from therecord. Loch himselfmade no
attemptto do so. Without givingany reasons, heis inclined to thinkthat there is real substancein
the Ruler of Bahrain'sclaim to the Hawar Islands while seeking to protect himself against any
charge of partialityby making thisview "subjectto any past correspondencewhichis not available
to me". Healso protestshis lackof knowledge ofthe Ruler of Qatar'sviews about Hawar. Al1this
is very defensive and unconvincing. Nor does the Political Resident'sletter to the Secretary of
State for India of 25May 1936carryany greaterconviction. No referenceis made inthat letterto
the views expressedas recently as 1933and 1934by senior officialsin London andthe Gulf as to
the territorialextent of the Bahrain Islands. Mr. Shankardasshas already addressedyou on the
limitedextentof Bahrainand, morepreciselyto the point, onthe documentaryevidencefiom 1933 1
and 1934 which demonstrates that, in the context of the early history of the oil concession
negotiations,Britishofficials in theGulf andindeedin London entertainedno doubtthat the Hawar
Islandsappertained,notto Bahrain,but to Qatar. 12. The Court will notethat Laithwaite'sletter to Starling of 3 May 1933*,in whichhe
describestheBahrainarchipelagoas consisting ofthe island of Bahrain andthe adjoiningislandsof
Muharraq,Umm Na'assan, Sitrah andNabi Salih, was copied to Bahrainon 19May 1933, asis
apparent from a statementto this effectat the foot of the first page of thetter.So it must have
been onthe AgencyfileswhichLochfailed to consult (or indeeddeliberatelyoverlooked)in 1936.
Laithwaite'sletterto Starlingof 3May 1933also seemsto have been thesource of the thirdpoint
in the Acting Political Resident'stelegram of 23July 1933 to the Secretary of State for the
Colonies. And it willbe remembered thatLochwasthe Acting PoliticalResident at this time,and
inthistelegramLoch argues,interalia:
"It would howeverbe prudentto nameislandsi.e.BahrainIsland,Muharraqand
Sitrah (Umm Na'asan and other isletsnearmain island mightbe includedif questionis
raised), otherwise controversy may arise over Hawar island and Bahrain claim to
certain placeson west CoastofQatarpeninsula."g
A copy ofthis telegrammust alsohave been onthe Political Resident'sfiles in Bushirein 1936.
But Fowle makesnoreference to it,orindeed toanyother evidence whetherderivingfromLorimer
or otherearly travellerssuchas Bent in 1889and Belgravehimselfin 1928. The Courtwill recall
thatMr.Shankardass,in his earlierpresentationonthe limitedextentof Bahrain,has alreadydrawn
attentionto the fact that Belgravehimself, in an article publishedin the Journal of the Central
AsianSocietyin 1928,givesa descriptionof Bahrainwhichmost clearlydoes not includeHawar.
13. Members of the Court may care to compare Belgrave's1928 description of the
geographical extent of the principality of Bahrainwith the content of his letter to Loch of
28 April 1936,writtenon behalf of the Ruler of Bahrain andputting forwardthe Ruler's claim to
the Hawar Islands. It is as if Belgravehad suddenly remembered thatthe Hawar Islands also
belongedto the Ruler, notwithstandingthat hehad totally forgotten tomention them as part of the
principality of Bahrainin an article published by him only eight years previously. The
1936Bahraini claim to sovereignty over the Hawar Islands is even more implausiblewhen no
mention whatsoever ofthe Hawar Islands can be found in any of the Annual Reports of the
Govenunent of Bahrain prior to that for 1937-1938 orin any of the monthly Bahrain Political
S~ernorialof Qatar,Ann.III.84,Vol.6,1.43
9~emorialof Qatar,Ann.111., ol.6,p. 437.Diaries prior to an entry in the Political Diary covering the period from 1 to 15April 1938, and
recording a visit by Weightman to Hawar on 15April 1938. 1s it really conceivable that there
shouldbe noreference to acts of administration of theHawarIslands by or on behalf of the Ruler i)
of Bahrainin any of the official AnnualReports publishedby the Governrnentprior to the Annual
?
Report for 1937-1938 if, as Bahrain alleges,the Hawar Islands had been regularly occupied by
membersof the Dowasir tribe and adrninisteredby Bahrain fora periodof some 150yearsor so?1s
it alsoreallyconceivablethat if the connectionof the Rulerof Bahrainwiththe Hawar Islandswere
as Bahrain allegesit to havebeen before 1936, Belgravehimself shouldhave made no mentionof
the islandsin hisprivate diariespriorto the entry for 23April 1936? Finally,would the Sheikhsof
Bahrain have entertained any doubts about Bahrain's sovereignty over the Hawar Islands in 1936
had the situationbeen asBahrainnowprofesses itto havebeen? Theanswerto al1thesequestions
must surelybe in the negative.
14. Bahrain of course has sought to argue that the "provisional decision" reached on
9 July 1936 in favour of the Bahrain claim to the Hawar Islands was nothing more than an
"advisov opinion" given to PCL. But, the Court will certainly be aware,this is grievouslyto
underestimatethe significanceand, evenmore, the practicaleffect of the "provisionaldecision"of
9 July 1936. As Mr. Shankardasshas reminded you, itwasirnmediatelyconveyed toBelgrave(but
not of courseto the Ruler of Qatar)on 10July 1936,withthe caveat that a final rulingcouldonly
be given after it had been ascertained whetherthe Ruler of Qatar had a claim to the islands and
hearing it if he had one. Despite this caveat, Belgrave indicated that theRuler of Bahrainwould
now includethe Hawar Islands in the list of his possessionsto be givento PCL, and no objection
was taken to this by the India office1'. In consequence,al1future oil concession negotiations
covering Bahrain's "unallotted area" were conducted on the basis that the Hawar Islands formed
part of that area, so that it was for the Ruler ofBahrainalone to gant a concessionwhichwould
include the islands. A further consequence was that, from July 1936 onwards, the competent
British officiais in the Gulf and in London acted on the confident assumption that the Hawar
Islandsbelongedto Bahrain. Eventswereto prove the accuracyof the cynicalobservation which1
'hemorial of Qatar,Ann.I111,Vol.7,p. 51.will renderin its originallanguage: "Rien ne dure que leprovisoire", which1will translateas: "It
is onlythe provisional which endures."
Possiblereasonsfor British "provisionaldecision" in1936
15.The question still arises: why didthe BritishGovemmentact with such extreme hastein
supporting Bahrain's claimto the Hawar Islandsin 1936,even if only on a supposedlyprovisional
basis? The Britishauthoritieswere clearlyanxiousthatthe oil concessionnegotiations,which had
been suspendedin August 1933at the request ofBAPCOshould be resurnedas soon as possible.
Between 1933and 1936,Bahrain suffered a major financial crisis. In a letter of 29 April 1933to
the Political Agent, covenng a copy of the Bahrain Budget for 1933, Belgrave Statesthat "the
financial positionof theStatecauses meverygrave concern"; andthat "thefigures forthe last year
Reductions in public expenditure, including
reveal a very disastrous condition of affairs"".
reductionsin the Civil List, had to be made. The positiondid improve slightly over the next two
years but it was still precarious in 1936. Obviously, the British Govemment must have been
anxious about the parlousstate of Bahrain'sfinances in the mid-1930s; and the prospectthat the
Ruler of Bahrain would receive substantially increased revenuesfrom oil production within the
frarnework of a new concession covering inter alia the Hawar Islands as part of Bahrain's
"unalloîted area" would certainly have been agreeable to the British Govenunent at that time.
Bahrainwas the equivalent ofthe "jewelin the Crown"of the British-protected Sheikhdomsin the
Gulf, and a vital staging-poston the increasingly significantair route to India. Qatar does not
suggest that this was the only factor prompting the British Govemment to favour an early
resumption of the oil concession negotiations covering Bahrain's "unallotted area"; but it seems
highlylikelyto havebeen an important factor.
16.Mr. President, mytask this moming in explainingto you, and the other Members ofthe
Court,the "carefulconsideration" which theBritish Govenunent gaveto the disputebetweenQatar
and Bahrain as regards title to the Hawar Islands between 1936 and 1939 has been rendered
irnrneasurablyeasierby the full accountwhichMr. Shankardasshasjust givento you of the history
of the negotiations for an oil concession covering the so-called "unallottdrea" of Bahrainduring
''~e~l~ofQatar,Ann111.42,ol. 3p. 257.this same period. It is,1 would submit, the interaction betweenthese two separate but related
exerciseswhich shedslight on the complexmanoeuvringof the British authorities in the Gulf and
in Londonto satisfy simultaneouslythe needto promote Britain'soverallpetroleumpolicy interests b
in the Gulf and the acquisitivedemands of the Ruler of Bahrain; but, as 1will demonstrate - 1 *
I
fear 1 will not be able to demonstrate it now before next Monday moming- this complex
manoeuvring was to be pursued whollyat the expense of the rights and interests of the Ruler of
Qatar.
17.So much foreventsupto andincluding1936.
And at this pointMr. President,it is perhapsappropnate forme to interruptmy presentation.
1realizethat 1will notbe able to addressyou againuntil next Monday, but 1would certainlywish
andhopethat 1couldthenresumeand completemypresentation. Thankyou,Mr. President.
Le PRESIDENT: Je vous remercie, Sir Ian. La séancede la Cour est terminée. Nous
reprendronsnos travaux lelundi 5juin, à 10heures,pour écouterla suitedevotreexposé.
L'audienceest levéeà 13 heures.
Audience publique tenue le mercredi 31 mai 2000, à 10 heures, au Palais de la Paix, sous la présidence de M. Guillaume, président