Audience publique tenue le vendredi 8 juin 2000, at 10 heures, au Palais de la Paix, sous la présidence de M. Guillaume, président

NO^-corrigé ,1
I Uncorrected

InternationalCourt Cour internationale
of Justice deJustice
LAHAYE
THE HAGUE

YEAR2000

Publicsitting

heldon Frid9June 2000,at 10am., atthePeace Palace,

PresidentGuillaumepresiding
in thecasencerningMaritimeDelimitationand Territoriabetweenons
QatarandBahrain(Qatarv.Bahrain)

VERBATIMRECORD

ANNEE2000

Audiencepublique

tenuelevendre9juin 200à10heures,auPalaisdelaPaix,

souslaprésidencedeM. Guillaume,président

enIraflairedelaDélimitation martesquestions territoriQataretBahreïn
(Qatarc.Bahreïn)

COMPTERENDUPresent: President Guillaume

Vice-hesident Shi
Judges Oda
Bedjaoui
Ranjeva
Herczegh
Fleischhauer
Koroma

Vereshchetin
Higgins
Pana-Aranguren
Kooijmans
Rezek
Al-Khasawneh
Buergenthal

Judgesad hoc TorresBemirdez
Fortier

Registrar CouvreurPrésent: M. Guillaume,président
M. Shi,vice-président
MM. Oda
Bedjaoui

Ranjeva
Herczegh
Fleischhauer
Koroma
Vereshchetin
Mme Higgins
MM. Parra-Aranguren

Kooijmans
Rezek
Al-Khasawneh
Buergenthal,juges
MM. Torresemhrdez
Fortier,juges adhoc

M. Couvreur,greffierTheState of Qatarisrepresentedby:

H.E.Dr.AbdullahbinAbdulatifAl-Muslemani, Secretary-Genera olf theCabinet,

as AgentandCounsel;

Mr.AdelSherbini,LegalAdviser,
Mr.SarniAbushaikha,LegalExpert,

as Counsel;

Mr. EricDavid, Professor of Internatilaw,Université libre de Bruxelles,
Dr.Alibin FetaisAl-Meri,DirectorofLegalDepartment,DiwanAmiri,
Mr. Jean-PierreQuéneudec, Professorof International Law at the University of Paris1
(Panthéon-Sorbonne),
Mr. Jean Salmon,Professor emeritusof InternationalLaw,Universitélibre de Bruxel, ember

ofthe Institutde droitinternational,
Mr. R.K.P. Shankardass,Senior Advocate, SupremeCourt of India, Former President ofthe
InternationalBarAssociation,
SirIanSinclair,K.C.M.G., Q.C.,arristerat Law,Memberofthe InstituteofInternationalLaw,
SirFrancis Vallat,G.B.E., K.C.M.G.,Q.C.,Professoremeritus of International Law, Univyfsito
London, MemberemeritusoftheInstitut dedroitinternational,
Mr. RodmanR.Bundy,Avocat à la Cour d'appelde Paris,Member of theNew York Bar,Frere
CholrneleyEversheds,Paris,

MsNanette E.Pilkington,Avocatàla Courd'appel de PariF,rereCholmeley/EvershedsP, aris,

asCounselandAdvocates;

Ms CherylDunn,Memberof the StateBar of California,FrereCholrneleyEversheds,Paris,
Ms InesSabineWilk, Lawyerbefore the GermanCourt of Appeal, Memberof the Charnberof
LawyersofGermany,

asCounsel;

Mr. ScottB.Edmonds,Directorof CartographieOperations, MapQuest.com, Columbia, Maryland
(UnitedStatesofAmerica),
Mr.RobertC.Rizzutti,Project Manager,MapQuest.com, Columbia, Maryland (UniteS dtates of
America),
MsStephanie K. Clark, SeniorCartographer,MapQuest.com,Columbia, Maryland(ünited States
ofArnerica),

asExperts;

H.E.SheikhHarnadbinJassimbin JaborAl-Thani,Minister for Foreign Affairs,
H.E. Mr.AhmedbinAbdullahAl-Mahmoud, Minister of State for Foreign Affairs,

asObservers.

TheState ofBahrain isrepresentedby:

H.E.Mr.Jawad SalimAl-Arayed, Minister ofStateofthe Stateof Bahrain,

asAgent;L 'Etatde Qatarest represéntpar :

S.Exc.M. AbdullahbinAbdulatif Al-Muslemani,secrétaig rénéradlu gouvernement,

commeagentetconseil;

M. AdelSherbini,conseillerjuridique,

M.SamiAbushaikha, expertjuridique,

commeconseils;

M.EricDavid,professeurde droitinternationalàl'université libre ruxelles,
M.Alibin FetaisAl-Men, directeur deaffairesjuridiquesduconseildel'émir,
M.Jean-Pieme Quéneudec, professeud re droit international à l'université de Paris1

(Panthéon-Sorbonne),
M.JeanSalmon,professeuréméritd eedroitinternationalàl'université libre ruxelles, membre
de1'Institut dedroit international,
M. R K. P. Shankardass,avocat principal à la Cour suprêmede l'Inde, ancien président de
l'Association internationaluarreau,
SirIanSinclair,K.C.M.G.,Q.C.,avocat,membre de l'Institutdroit international,
Sir FrancisVallat,G.B.E., K.C.M.G., Q.C.,rofesseur éméritee droit internationalniversité

deLondres,membreéméritd ee l'Institutdedroit international,
M.Rodman R. Bundy,avocatàlaCourd'appeldeParis,membre du barreau de NewYork,cabinet
FrereCholmeley/EvershedsP, aris,
MlleNanette Pilkington,avocatà la Cour d'appel de Paris,abinet FrereCholmeley/Eversheds,
Paris,

commeconseilsetavocats;

Mme Cheryl Dunn, membre du barreau de 1'Etat de Californie, cabinet Frere
Cholmeley/EvershedsP,aris,
MmeInès SabineWilk,avocat prèsd'unecour d'appeld'Allemagne, membre dela chambredes
avocats d'Allemagne,

commeconseils;

M.Scott B. Edmonds, directeur du service des levéscartographiques, sociétMapQuest.com,
Columbia, Maryland(Etats-Unisd'Amérique),
M. Robert C. Rizzutti, administrateur deprojet, société MapQuest.com, Columbia, Maryland
(Etats-Unisd'Amérique),
Mme StephanieK. Clark,cartographehors classe, société MapQuest.com, ColumbM i,ryland
(Etats-Unis d'Amérique),

commeexperts;

S. Exc.le cheikhHamadbin JassimbinJaborAl-Thani,ministredes affairesétrangères,
S.Exc. M. AhmedbinAbdullahAl-Mahmoud,ministredYEtaa tux affairesétrangères,

commeobservateurs.

L'EtatdeBahreïnestrepresentépar :

S.Exc.M. JawadSalimAl-Arayed, ministredYEtad telYEtadte Bahreïn,

commeagent;Dr. Fathi Kemicha,Memberofthe Barof Paris,Kemicha & Associés (Tunis),
Professor SirElihuauterpacht,Q.C.,C.B.E., Honorary Professor otfhe Universityof Cambridge,
Member ofthe Institutde droit international,
Mr. JanPaulsson,Freshfields,Paris, Member oftheBarsof Paris andtheDistrictofColumbia,
Professor MichaelReisman, Myres S. McDougalProfessorof InternationalLaw of Yale Law
School,Member oftheBar ofConnecticut, Associateofthe Institut de droit international,

Mr. Robert Volterra, Freshfields, London,MembertheBarofUpper Canada,
Professor ProsperWeil, EmeritusProfessor attheUniversityofParisII (Panthéon-AssM, ember
of the Académiedes sciencesmoraleset politiques (Institut de Fra, emberof theInstitut
dedroit international,

as Counsel anAdvocates;

SheikhKhalidbin AhmedAl-Khalifa,First Secretary, Ministry of Foreign Affaisf the Stateof
Bahrain,
CommanderChristopherCarleton,M.B.E., Head of the Law of the Sea Divisionof the United
KingdomHydrographicOffice,
Dr.HongwuChen,Freshfields,Paris,Memberof theBarsof ParisandBeijing,
Mr.Graham Coop,Freshfields,Pans, BarristerandSolicitorof tHigh CourtofNewZealandand
Solicitorofthe SupremeCourtofEnglandandWales,
Mr. AndrewNewcombe, FreshfieldsP ,aris,Member oftheBar of British Columbia,

Dr.BethOlsen, Advisor,Ministry ofStateofthe Stateof Bahrain,
Dr. John Wilkinson,Former Reader at the University of Oxford, Emeritus FellowS,t.Hugh's
College, Oxford,

asAdvisors;

H.E.SheikhMohammedbin MubarakAlKhalifa,Minister for Foreign Affairs, Stato efBahrain,

H.E. Sheikh Abdul-Aziz binMubarakAl Khalifa, Ambassador ofthe State of Bahrain to the
Netherlands,
H.E.Dr.MohammedJaberAl-Ansari, Advisorto HisHighness,theAmir of Bahrain,
Mr. GhaziAl-Gosaibi,Under-Secretaryof Foreign Affairs, Stof Bahrain,
Her Excellency Sheikha Haya Al Khalifa, Ambassador ofthe State of Bahrain to the French
Republic,
Mr. Yousef Mahmood,Directorofthe OfficeoftheForeignMinister,Stateof Bahrain,

as Observers;

Mr. JonAddison,MinistryofStateofthe Stateof Bahrain,
MsMaisoon Al-Arayed, Ministry of Stateof theStateof Bahrain,
Mr.NabeelAl-Rumaihi,Ministry ofStateof theStateof Bahrain,
Mr.HafedhAl-Qassab,Minisûyof Stateof theState of Bahrain,
Ms AneesaHanna,EmbassyofBahraininLondon,

Ms JeanetteHarding,MinistryofStateofthe StateofBahrain,
MsVanessaHarris,Freshfields,
MsIva Kratchanova,Ministryof Stateof the StateofBahrain,
Ms SonjaKniJnsberg,Freshfields,
Mr. KevinMottram,Freshfields,
Mr. YasserShaheen,SecondSecretary,Ministryof ForeignAffairsof theStateof Bahrain,

asAdministrativeStaffM.Fathi Kemicha,membredu barreaudeParis, cabinet Kemicha& AssociésT, unis,
SirElihuLauterpacht,Q.C.,C.B.E.,professeurhonorairàl'universitédeCambridge,membrede
l'Institutde droitinternational,
M. Jan Paulsson, cabinet Freshfields, Paris, membredes barreaux de Pariset du district de
Columbia,
M. Michael Reisman,professeurde droit internatia l'universitéde Yale,titulairede la chaire
Myres S.McDougal, membre du barreau du Connecticut, associéde l'Institut de droit

international,
M. Robert Volterra,cabinetFreshfields,Londres,membredubarreauduHautCanada,
M.Prosper Weil, professeurémérite à l'Universitéde ParisII (Panthéon-Assas),membre de
l'Académiedes sciencesmoralesetpolitiques (Institutde France),membrede l'Institutde droit
international,

commeconseilset avocats;

Le cheikhKhalidbin AhrnedAl-Khalifa,premier secrétaire, ministèdes affairesétrangèrse
1'Etatde Bahreïn,
Le capitainedefrégateChristopherCarleton, M.B.E., directeula divisiondu droitmaritimedu
bureau hydrographiqueduRoyaume-Uni,
M. HongwuChen,cabinetFreshfields, Paris,membredesbarreauxdeParisetde Beijing,
M. Graham Coop, cabinet Freshfields, Paris, avocatet conseil de la High Court de
Nouvelle-Zélandeet conseillerdelaCoursuprêmde'Angleterre etduPaysde Galles,

M. AndrewNewcombec ,abinetFreshfields,Paris, membre barreaude laColombiebritannique,
Mme BethOlsen,conseiller,ministèred'Etatde1'Etatde Bahreïn,
M. John Wilkinson,ancien maître de conférenceà l'universitéd'Oxford,membre émérite du
CollègeSaintHugh,Oxford,

commeconseillers;

S.Exc.lecheikhMohammedbinMubarakAlKhalifa, ministredesaffairesétrangèresde Bahreïn,
S.Exc. le cheikhAbdul-Azizbin MubarakAl Khalifa, ambassadeurde 1'Etatde Bahreïn aux
Pays-Bas,
S.Exc.M.MohammedJaberAl-Ansari,conseillerdeSonAltessel'émirdeBahreïn,
M. GhaziAl-Gosaibi,sous-secrétaid'Etataux affairesétrangèrse 1'EtatdeBahreein,
S. Exc. la cheikhaHaya Al Khalifa,ambassadeurde 1'Etatde Bahreïn auprèsde la République
française,

M.YousefMahrnood,directeurdubureauduministredesaffairesétrangèresdB eahreïn,

commeobservateurs;

M. JonAddison,ministèred'Etatde1'Etatde Bahreïn,
MmeMaisoon Al-Arayed,ministèred7Etatde1'Etatde Bahreïn,
M.Nabeel Al-Rumaihi,ministèred'Etatde1'EtatdeBahreïn,

M. Hafedh Al-Qassab, ministère'Etatde1'EtatdeBahreïn,
MmeAneesa Hanna,ambassadedeBahreïn,Londres,
MmeJeanetteHarding,ministèred'Etatde1'EtatdeBahreïn,
Mme VanessaHarris,cabinetFreshfields,
Mme IvaKratchanova,ministèredYEtad te17Etate Bahreïn,
Mme SonjaKnijnsberg,cabinetFreshfields,
M. KevinMottram,cabinetFreshfields,

M. YasserShaheen,secondsecrétaire,ministèrdeesaffairesétrangèrsei'Etatde Bahreïn,

commepersonneladministratif: Le PRESIDENT: Veuillez vous asseoir. Lsa éanceest ouverteet je donne laparolepour

lfEtatdeBahreïnàM. JanPaulsson.

Mr. PAULSSON:ThankyouMr.President.

THEEVENTSOFTHE 1930sIN THEIRCONTEXT

33. YesterdayBahrainpointedout to the Courtthat Qataris the productof expansion and

consolidation; that its expansion to Zubarahwas illegal; and that its expansion to the

Hawar Islandsis purely imaginary. Qatar's problemis that it claimsterritorial sovereigntyover

contestedareas,which Qatar acknowledges once belonged to Bahrain, witho -ut it appears-

beingable toshowhow andwhenit allegedly displaced Bahrain as sovereign.

34. Qataris surelyacutely awareof this considerable difficin its case. Its advisershave

doubtlesssearchedhigh andlowforevents they couldposittobeconstitutiveofsovereignty.

35. As we have discovered in these hearings, Qatar now pins its hopes on the

1913Anglo-Ottoman Convention which was never ratified but which Qatar said "must

neverthelessbe regardedas an expression ofthe thinkingof theBritish and theOttomansat the

time" (CR2000/5,p. 58, para.67). What Qatarlikesabout this textis that Article11recitesthat:

"it is understoodby thewo Govenunentsthat thepeninsula willbe governed as in the past by the

Shaykh Jasim-bin-Samiand hissuccessors". Qatarincluded thetextof this unratifiedConvention

in itsudges'folders. Bahrain hasalreadydemonstrated howthis treaty wasabortedvery quickly

(see,e.g.,Counter-MemorialofBahrain, paras.123-127).

36. Inan attemptto breathesome life into thisunratifiedconvention,Qatar stressedthat a

subsequent Anglo-TurkishConventionof 1914 (Mernorial ofQatar, para. 11.45)- the year

after- wasin factratified,andallegedthat ArticleIII of that Convention incorporated an explicit

referenceto Article11of the unratified one. Giventhe presence oftwo treaties, oneof whichwas

stillbom while theother entered into force,one might have expectedthat Qatar wouldbe even

morepleased to providethe ratified 1914Convention in thejudges'folders. It did not. The Court

will seethat the1914textassertedonlythat the delimitation of Qatar'southernborderwouldbe

«enconformité dle 'article11de la Conventionanglo-ottomane)o)f 1913. In otherwords,the 1913

text saystwothings - "peninsula"and "southem borders"- whilethe 1914text saysonlythatthe"southemborder"willbe in accordancewiththe 1913text,and now Qatar wants us to believe that

the 1914documentconfumed boththings. There isnothingin the ratifiedConventionof 1914that

couldbe said to incorporate a recognitionof Al-Thanirule over a unitary Qatar peninsula; that

notion did not survive the non-ratificationof the 1913 document, and was very plainly not

resuscitatedby the 1914 Convention. It seems we must be very careful when examining the

allegedinterrelationship of historical documents.

37.NorisQatar more convincingwhen it describesthe1916Agreement between Britainand

"theShaikhofQatar". Qatar arguesthat:

"The Treaty does not specifically define the tenitory of Qatar, but it was
implicit: the treaty was signed [Qatar goes on to say] only three years after the
1913Convention, which expresslyreferredto thewholepeninsula being govemedby
theAl-Thani." (CR2000/5,p. 59,para. 75.)

"Whole"is added byQatar.

38. In other words,or so Qatar suggests,the 1916Agreementwith the Shaikhof Qatar must

meanmore thanwhat it saysbecauseone ofthe partiesto it had been invoIvedin negotiationsof

another document,with a third party, and if it had beenratified, might have includedthe thing

Qatarwould have likedto seein thisAgreement. Suchanargumentdoesnot requirerefutation.

39. Incidentally, SheikhAbdullahAl-Thani himself in 1934 stated that the 1916 Treaty

"doesnot includethe interiorbut onlythe coast". That, as wellas massive otherevidence which

contradictsQatar'sclaimthat its peninsula-wide integritywas welelstablishedby 1930,appearsin

Bahrain'sCounter-Memorial(paras.128etseq.; seealsoReply ofBahrain,para.263).

40. Qatar also soughtto impress theCourt by refening to Ottoman administrativerecords

suggesting thatal1of the peninsulaof Qatar was a single unitunder Ottoman control. Al1that

needs tobe saidisthat Iraq,notlong ago, declaredKuwaittobe oneof its provinces,asindeed Iran

until 1970referredto Bahrainas oneof its provinces. But saying itdoes not make it so. Bahrain

has cited no less than ten examplesof Ottoman officialsrealizing and acknowledgingthat their

authoritywas limited tothe town of Doha, including a1913report fiom the OttomanCouncilof

Ministers recommending "an end to fiuitlesseffortsto imposesovereigntyin the Katar peninsula"

(Reply of Bahrain,para.244). 41. Qatar unceasingly takes the word "Qatar", wheneverit appears in any historical

document, torefer to the entiretyof the peninsula withoutregardto the context ofthe document,

whichoflenmakes clearthat the authoror authorsdid not intendto refer toanythingbeyondthe .

vicinityofDoha, or alternativelybeyondthe eastcoastof Qatar,or yet againbeyondtheterritones

underAl-Thanicontrol - whatever theymighthavebeen atthetime. Qatarreliesonthe mere use

of a word, defmed as it wishes, to answer the very questionbeing posed; it is a petition de

principe, ofno assistancein resolvinga dispute. The factis thatnoonemuchcared who controlled

this emptyscorchedland- until, that is,it was thoughtthat theremightbe minera1richesbelow

the sands. As for Qatar's peculiar enthusiasm for the fact that the British once asked

SheikhAbdullahAl-Thanifor permissionto overflyhis temtory, this obviouslydoes not in any

way define his territory. The fact that permission was not asked of Bahrainis entirely

unremarkable; the aeroplanescamefiom Bahrain.

42.A few words abouttheoriginsofthe SettlementsaroundDoha.

43. In 1845,a Britishstudy of the "ArabianShoresof the PersianGulf' noted only three

localitiesonthe eastemsideof the peninsula. First,iddah(Doha): a "town"containing"about

three hundredhouses ...a most miserableplace: not a blade ofgrassnor any kind of vegetation

near it". Second,Wukra: a "town"of "about 250houses". Third,Adeed: noestimateof dwellings

but a brief description concludingas follows: "In point of appearanceit would, perhaps,be

difficultto select a more wretched,desolate, andbarren-lookingspot in the whole ofthe Gulf."

(MemonalofBahrain,Ann.6, Vol.2,pp.0090-0091 .)

44. Lorimer gave a figure of 27,000 inhabitants for Qatarin 1915 (R.S.Zahlan, The

CreationofQatar, p. 119). Thatwasattheheightof thepearling industry,howevera ,ndaccording

to the reportof a Political Agentin 1933,this was "overestimated"as the result of ernigrationto

Bahrain(5 Records of Qatar 5.15). If we extrapolatefiom a reportof the Political Residentwho

visitedQatarin 1941(Mernorialof Bahrain, Ann.296,Vol.5, p. 1205)10,000may bean accurate

number. But even if it hadbeen 20,000,Qatarwouldstillhave beenpractically empty: less than

twoinhabitantsper squarekilometre.

45. Even today,Qataris one of the least populatedcountriesin the world. And that is so

eventhoughit has the highestpercentage of foreignerof any countryanywhere - 70 per centofthe people living in Qatar are aliens,according toThe EconomistIntelligence Unit (1999-2000

Country Profile, Ann.10, p. 96 Bahrain SupplementalDocumentssubmittedon 1March 2000).

Today,thereare, accordingto thesamesource,nomorethan 160,000Qatari nationals.

46. Allowme to remindyou of the currentpopulation distribution, accordingto tAnnual

StatisticalAbstract, of theCentral Statistical Organizationof Qatar, whichyou will also find in

yourjudges'folder(15thIssue, 1995).

47. SirElihu Lauterpachtwill address the general subjt fmaps next week, and1shallnot

anticipatehisremarks. But there was one itemin my learnedfnend Mr.Bundy's presentation last

week which calls for comment here, namely the Ottoman rnap prepared byCaptainIzzet. 1 am

verypleasedthatMr.Bundyspentsomuchtimeonthatmap,becauseit assistsBahrain's case.

48. Hereis themap. You will recallthatMr. Bundy developedatlengththe propositionthat

it was illogicalto draw conclusionsfrom the fact that both Bahrain andthe Hawar Islandsare

shaded in blue, because there are so many otherareas also shadedin blue. Indeed, Mr.Bundy

cnticized us, refemng alrnost ominously to "a much more senous problem" (CR2000/7, p. 20,

para.56), onthegroundsthat Bahrainhad not shownthe northemparts ofCaptainIzzet'srnapthat

covered Kuwait and Iraq,and othertemtones, becausethere toothernapshowedbluespotswhich

obviouslycould notrepresentBahrainitemtory.

49.1 ampleasedto have the occasion toagreewith our opponents.If we had claimedthat

CaptainIzzet'srnapwasevidenceofa conscious attemptto definepoliticalborders,wewouldhave

been wrong indeed. But Mr. Bundyput words in Bahrain'smouth when he said that Bahrain

"makessomethingof the factthat the main island of Bahrain andthe HawarIslands areshadedin

the same blue, CaptainIzzet must have consideredthat the HawarIslandsbelonged to Bahrain".

As far as1 know,Bahrainneverused the word "blue" forthispurpose. Bahrainwanted instead to

providethe best evidence ofreality on theground. Recall thatthe Ottomanstook controlof Doha

in 1871. CaptainIzzetpreparedthis rnap in 1878. This is, 1submit, amore interestingrnapthan

onesdrawnupbyItaliansorAustralians,Sittingattheirdesksfaraway. Inthe area thatinterestsus,

only sixnamesare given: BahrainIsland,HawarIsland,Zubarah,Ras Maroon (RasLaffanarea),

the Hills of Biddah, andthen, in the far south-eastcorner, Qatar. Thisis, may 1 Say,entirely

consistentwithBahrain'sversionof history. Although Bahrainwouldreadily have provided Qatarwith thenorthemhalf ofthe Izzetrnap if Qatarhad only asked,so muchthe betterif Qatar sent

someonetoIstanbul toveri@themap; hereatleastis areliableOttomandocument.

50. The map game canbe playedin infinitepermutations. Qatar has decreed that onlythe c

maps fiom 1870to 1939are relevant. But Bahrain couldSaythat one shouldonlyconsidermaps

fromthe 1850sbecausethatwasbefore thefirstAl-KhalifaIAl-Thanc ionflict. Bahrain couldpoint

out that Qatar hasnot provided asingle rnap fiom the 1850s. And 1 could direct youto this

Scottishrnapfiom 1850whereas you seethepeninsula ofQatar doesnot exist,or this Britishone

from 1852- again,no Qatar atall, and finallyanotherBritishrnapfiom 1853,andconcludethat

the "overwhelming"and "uncontradicted" so-called "map evidence" fromthe 1850sis that the

Qatarpeninsuladidnotevenexist.

51. Al1of these three mapscome fiom a singlebook, entitledTheGulfin HistoricMaps,

beautifullyedited and publishedin 1996. 1do not offer it as evidence; 1 wouldbe amazedif

anyoneasked meto. Thepointis that thereare scoresof rnapcollectionsand thousands of maps.

Anyone caninundatetheCourtwithinconclusivemaps.

52. Now, although it wouldbe preposterous totake these three maps as evidence ofthe

non-existence ofthe Qatar peninsula,theydoreflectsomethingmuchsimpler: the Qatar peninsula

in thosedayswaseasily overlooked.Endlesssand, hardly asou1insight.

53. Qatartodayishardlyoverlooked; itis amongthe twoorthreewealthiestcountriesin the

world in revenueper capita; itis in the enviable positionof being able toaffordpractically any

initiativesthatmoney canbuy.

54. But we are now trying to recall the early 1930s. Atthat the Qatar was a place of

"extremepoverty", notably as a result of thevirtualdisappearance ofthe pearl market,whichalso

affectedBahrain (see Memoriao lf Bahrain,paras. 377-379).

55. Povertymeant that the Al-Thanirule was fragile. InMay 1937, the British Political

Agent,CaptainHickinbotham,recordedasfollows:

"My general impressionis that theShaikhof Qataris beingdailyweakenedby
defectionsnot onlyof outsidenotables butfiomhis own farnily. He will veryshortly
not be in a sufficientlystrong positionto make any terms whatsoever and indeed
rumoursare circulating thathe goesdailyin fear ofhis life." (Memonalof Bahrain,
para.278.) 56. CaptainHickinbotham reportedthat oneof SheikhAbdullah'o swnnephewshadrecently

escapedfiom SheikhAbdullah's compounid n Doha,at night, with anumberof followers, tojoin

the Naim. Fourvehiclesand 30 armedmen were sentin pursuit. The Al-Thani nephew was able

to escape only afier having shot hisown father- SheikhAbdullah'sbrother Nasir-in the

shoulder. TheRuler'snephew wasnotleavingthe Qatar peninsula; hewasleavingthejurisdiction

of SheikhAbdullah tojointheNaim. Thepointis obvious: SheikhAbdullah'sjurisdiction wasnot

the wholeof thepeninsulaof Qatar.

57. As isclear fiom Hickinbotham's reportt,he reasonwhy SheikhAbdullahdid not want

people escaping intoBahrainijurisdiction was that he was very cornrnittedto the objectiveof

collectingtaxesfiom his adherents. Thatis why he not long thereafierattackedZubarah- five

weeksafter theHickinbotham'sreport -but 1shallcomebackto that eventindue course.

58. Hickinbotham's replacement as Political Agent, Mr. Weightman (or

SirHugh Weightmanas he later became),confirmed thetroubles ofthe Al-Thani Chief. In his

annual report for 1939, whichyou will find in Volume5 of Bahrain'sMemorial atpage 1190,

(lookingalways, ifyou do, at thebottom,the big numberwhich appears - sometimesthere are

severalnumbersbecausethe originalnumberis there andtheserialnumber - the relevantonesare

alwaysthe bignumbersat the bottomof the pages). Weightman referred to dissatisfactiwnithin

the Qatari population causeboth by poverty,and, ashe put it, ''the Ru[SheikhAbdullah]and

his son Hamed's greed ... Neither can see tha... the rising generatio... can no longer be

deceivedand repressed." The Report added that tribesmen were tempted toemigrateto Bahrain

and SaudiArabiaas a result ofthe Ruler'srefusalto share oil money. Indeedi,t notesthatone of

SheikhAbdullah's brothers, SheikhNassbiirnJasirn,

"tookituponhimselfto speakplainlyto theRuler andwamhim that his niggardliness
in moneymattersand handlingof employmentin the oilCompanywaslosinghimthe
supportof the tribesmenhe neededto control Qatar" (Memoriao l f Bahrain,Vol.5,
p. 1190).

59. But ratherthan sharingrevenues,the Ruler's sonput in place ascheme forpreventing

emigrationto Bahrainby force@id).

60. The problem though was worse than losing population to emigration. The

dissatisfaction,accordingto this Report, was also felt by Al-Thaniadherents "in Doha itselfincluding some of [Sheikh Abdullah's] bodyguarda snd in many of the purely Qatari tribal

sections.. .to the point of openthreats to withdraw supportfrom the Qatar Shaikhs and join

Bahrain or IbnSaud". Youcan see this passagein the veryfirst paragraphof the Report,stillat

page 1190.

61. The threatcouldnot havebeen moreserious. Thiswas a regionand aculture, asQatar

has ofienrernindedthis Court, whereallegiances tended to attacto Rulersratherthanto temtory.

So we fmd in 1939that the people ofDoha were consideringwhether it might notbe betterto

attach themselves tothe Al-Khalifaof Bahrain or to SaudiArabia. If they had done so, the

Al-Thanirulewould havebeenover,and Qatarassuchrnightnothaveexisted today.

62. May 1repeat that1have justbeentalking aboutthe situation in thepenod 1937-1939.

Qatar's Counter-Memorialwas indeed right in admitting that Qatar did not become a State

controllingitsentirepeninsulauntilsometimeafter 1945.

63. As we look back today, the peopleof Qatar should, in Bahrain's opinion,be

congratulatedfor theirastonishingprogress.It isal1the moreimpressivefor havingbeen achieved

so quickly. But in recentyearsthe Govemmentof Qatarhas acted asthoughit wantsto rewrite

history, asift did not wishto admithowfarandhow fast thecountryhas developed.Thiscreates

difficultiesfor anyobjectivepersonseekingto understandpastevents. The topicseemssensitive,

so 1 will content myself without further comment to quote a passage from a book by

Dr. J.B.Kelly. 1wish to emphasize that 1would not have quotedfrom thisbookif it werenotfor

the fact that Dr. Kelly isa scholaronwhomQatar itselfreliesmernorial of Qatar, para.5.20)with

respect to theregion'shistory. Thisis what Dr. Kelly, perhapsrather harshly,writes in a book

publishedin 1980:

"theQatarishave oflatebeen equippingthemselves witha history andan indigenous

culture, both ofnoble proportions. The showpieco ef this particularenterpriseis a
'national museum'h ,oused inthe former (c. 1920)palace of the ruler in Dauhah
[Doha]. Largelyan inspiration of a public relationsirmin London, themuseum has
beenequippedandadomedat a costof severalmillions,despite-or perhapsbecause
of- the fundamentallimitation of having very little to put into it... What is
objectionableaboutthesepublic relationsexercisesonbehalf of the Qatari régimeis
that they involvethe falsificationof the historicalrecordover the past two centuries,

notably conceming the nature andlength of Bahrain'sconnectionwith Qatar. .."
(J.B. Kelly, Arabia,the Gulfand the West,(1980)at p. 191. Counter-Memorial of
Bahrain,Vol.2, pp.267-370.) 64. Whenever historical accuracy,or even demographic accuracy, is sacrificed to some

objectiveof governmentalpolicyupon which Bahrainwill not speculate,the details of the past of

coursebecome difficultto reconstitute. But at leastwe can confidentlysurnrnarizethe answersto

the firsteriesquestionsas follows:

Whatwas Bahrain?(Andtheseyou willalso findinyour folders.)

- It was a strategically located archipelagwhich hadbeen inhabitedfor severalthousand years

withrichagricultureandcommerce;

- Zubarahwasstill apartof Bahrain;

- it was a Statewitha rulingdynastygoing backtothe late 1700s;

- it wastheplacewhereoil was first discoveredonthe Arab sideofthe Gulf(1932),afterwhich

Bahrain enjoyed a short period ou fniqueprosperity("streetsof gold")which wasthe envyof

its neighbours.

mat was Qatar?

- Scarcelypopulated(maybe 10,000inhabitant s perhapsup to doublethat number)in1930;

- the overwhelmingmajority of this populationliving in and aroundDoha (not countingthe

BahrainiadherentsinZubarah, perhaps a few thousandb ,eforetheir eviction);

- fishermen and pearlersn, ot desertpeopleaccustomedor ableto crossthe wasteland;

- desperatelypoor;

- an emigrationproblem;

- insecureAl-Thanirule;

- Qatar itself has admittedthat until some timeafter 1945, it was not a modem State; the

Al-Thani rule expandedand diminished continuouslydependingon the volatileallegiancesof

othertribes;

- the 1913Anglo-OttomanTreaty was never ratified; the 1914Anglo-TurkishTreaty didnot

confirmAl-Thanirulethroughoutthe peninsula;this wasa Stateinstatunascendi.

My second,muchbriefersenes ofquestions. II.ZUBARAH

Whatwere Bahrain'sconnectionsto theZubarahregion?

65.In the 1760~a~s youknow,the Al-Khalifa came frompresent-day Kuwait an established

Zubarah, which quickly flourished, rich in trade and pearl fishing. Some decades later, the

Al-Khalifamovedtheirseatof govemmentto theislandsof Bahrain, butcontinuedtoruleZubarah

(Memorialof Bahrain,104-112).

66. Throughoutthe nineteenthand early twentiethcenturies,the north-westof the Qatar

peninsula, and Zubarah in particular, was populated by members of a Naim-led tribal

confederation,adherentsofthe Al-Khalifaof Bahrain.

67. Whatevidence doesthe Courthave?

68.CaptainGeorgeBrucksconducted asurveyduringeightyears,in the very earlyperiod,

from1821 - 829 - thatis to Sayacenturybefore the eventsofthe 1930s.

69. Youhavean extractof the Brucksreportattab 6 ofyourjudges'folders.

70.What CaptainBmcks hadto SayaboutZubarahis at page100. He foundthe inhabitants

to be subject toBahrain; indeed, he writesthat al1the villages fromRRakkan to Zubarah are

subjectto Bahrain.

71. The Naim, who inhabited theZubarah Region, and the Al-Khalifahad a mutually

beneficial relationship. On the one hand, this relationshippermittedthe Al-Khalifato maintain

controlovertheirterritoriesin thepeninsula. Onthe otherhand,it enabledtheNaimto consolidate

theirleadershipof the confederationof tribes in the north of thepeninsula. The Naimpaid taxes

and provided services tothe Ruler of Bahrain, who honoured and supported them. The public

record provides extensiveevidenceof this relationship. For example,in 1880ShaikhJasim of

Doha wrote to the Political Resident ancomplained thatSheikhIsa,the Ruler ofBahrain "has

kept hisfnends in Fueyrat [northernQatar],and is sending theNaeemto the. . .and if he [the

Ruler of Bahrain]allowedthe Naeem toremain at Fueyrat and createdisordersat ElKatr, there

willbe no endto disturbances." (Counter-Memoriaolf Bahrain, para.53.) TheCourt will findover

20 other exarnples of this relationship between Bahrain and the Naim in Bahrain'sReply

(para. 234). 72.From 1874to 1903,there were six attempts at expansion inttohe ZubarahRegionby the

Ottomansandor the Chiefs of Doha. These attacks have been fully described and documented

(Memorialof Bahrain,Sect.2.7); noneof themweresuccessful; neitherthe Ottoman Empirenor

the Chiefsof Dohaextendedtheirauthority tothe Zubarahregionuntilthe attackin 1937towhich

1shallrevert ina fewmoments.

73. Throughout this time the close relationshipbetween the Al-Khalifa and the Naim

continued. TheNaimcustomarily travelled between the Zubarahregionand the islands ofBahrain.

ManyNaim farnilieshadhousesboth in Zubarah andin the islandsof Bahrain. One historian has

describedthe Naim'sseasonalmigrationas beingby boat: "fiomZubarah toJau and Askaronthe

west coast of Bahrain,and it took placewith families, smallanimals,and even camels,and to a

lesserdegree horses."(KlausFerdinand,Bedouinsof Qatar, p. 41 (1993). Memorialof Bahrain,

Ann.232,Vol. 4, p. 1013. SeealsoMemorial of Bahrain, Section2.1.)

74. Likewisepeoplefrom the main islands of Babrain travelledto Zubarah,as describedin

thewrittenpleadings (Memorial of Bahrain A,nn.228).

75.Belgrave recordedin 1948:

"some of theKhalifahlived permanently ator aroundZubarah coming overto Bahrain

for visits and abouta year before 1 came [1926] one Shaikh Ibrahimbin Khalid
Al-Khalifahwasbanished to Zubarahby order of Shaikh Hamed ... He lived there
till about 1926 whenhe was permitted toreturn to Bahrain ... [As] far as 1 can
asceriain,from 1914till 1937therewasno interferencewithBahrain people livingin
the Zubaraharea." (Memorial of Bahrain,Ann. 228.)

WhatwereQatar'sconnectionstotheZubarahregion?

76. What about Qatar'sconnectionsto the Zubarah region? What evidencedoes Qatar

present? The events referredto by Qataras allegedproof of Al-Thaniauthorityover Zubarahare

revealed,on close inspection, tobenothingmorethan isolated incidentsin which tribeswere sent

by theOttomansand the Al-Thanito Zubarahduringone orotherof their unsuccessfulattemptsto

imposeauthoritythere.

77. Faute de mieux,Qatarcontinues to referto theseincidentsas exercisesof its authorityin

Zubarah. For example,ProfessorDavid recalled thatin 1895the British destroyed aflotilla of

Al-Thaniboats at Zubarah. Hewent onto argue that Qatarhad foundno documents thatsupportBahrain's claimthat this action was taken to protect the Ruler of Bahrain'stitle to Zubarah

(CR200019, p.14,para.26). Rather,ProfessorDavid suggestedt,he actionwastakentoensurethe

securityofthemainislandof Bahrain.

78. This comment doesnotreflect closefarniliaritywiththe historicaldocuments. Afterthe

British destroyed theAl-Thanidhows,the terms of the surrender includedthe dispersai ofthe

Al-Thani tribesused to attackZubarahand the return of nine boats belongin togthe people of

Bahrain. In 1895, CaptainPellywrotetoanOttomanofficia1that:

"hearingthat youare detainingnineboats belongingto the Shaikhof Bahrain,whois

on fiiendlyterms with the British Governrnent, and Zubarab heing one of the toms
belonging tohirn, also the Albin-Alibeing his subjects..." (Memorialof Bahrain,
Vol.2, Ann. 59, p. 0265).

79. An Ottoman reporton Zubarahfrom 1897States: "Britainclaims Zubarahis underthe

controlof Bahrain whichit claimsis underBritish protection" (Memoriao lf Bahrain,Ann.63 (a),

Vol.2, p. 269).

80. In 1933the BritishPoliticalAgentreportedthat:

"the explorersof the Anglo-PersianOil Company Limitedin Qatar have examined
placesto whichthe Ruler of Qatarhadnorightto allowthemto go,andwhichpeople
of Bahrain frequent tothis day asa sumrnerresort; indeed itis saidthatas lateas last
year (1932)the Ruler of Qataradrnittedin publicthat certainareason the Qatarcoast
pertainto Bahrain." (Counter-Memoriao lf Bahrain,215.)

81.In 1932,British off~cialconcludedthatif theywereunableto obtain emergency landing

rightsfiom the Al-Thani Sheikhinhistemtory aroundDoha,thenBritain,whichhad alreadysuch

permissionwithinBahrain'stemtory, couldestablishemergencylanding facilitiesin Zubarahor

DohatFaisalch,some30 milesto thesouthofZubarah. (ReplyofBahrain,265-266). ThePolitical

Resident noted that both "are nearBahrain" (decipher oftelegram from PoliticalResident to

Secretaryof State ofIndia, 18August 1932R , eplyof Bahrain,Ann.l), and suggestedtwoplaces

as "alternativesites". TheBritishthusacknowledgedthat the permission of the Al-Thao niDoha

was notrequiredforlandingonthenorth-westcoastofQatar - thiswas theterritoryofBahrain.

82. Now ProfessorDavid illustratedthe difficultiesfor outsiders not only to identiQ the

subdivisionsof varioustribalunitsandsub-units,but alsothedifficultyof following theepherneral

and shiftingallegiancesof thesetribesover time - especiallywith respect to populations which

hadno archives. His illustrationseemedquiteconvincing. 83. What the Court must consider,howeveri,s that ProfessorDavidonlytold onesideof the

story. He set himselfthe task of challenging Bahrain'stitle, and apparentlyhid behind Qatar's

thesisof instantcoast-to-coastsovereigntyasof 1868. Butwhatof Qatar'sallegedtitle toZubarah?

84. Let me put it this way: Bahrain'scase may have its dzficulties, but Qatar'scase is

impossible unlessone acceptsthe notionof instant inherentnaturalborders. There is no proofof

anyallegianceto QatarintheZubarah regionbeforetheAl-Thaniattackof 1937.

85.Theremust bea startingpointsomewhere. Forhmatelyt ,here isone, andthe Courtis ina

position tonote thatboth Partiesagree. AsSirElihu Lauterpacht remindedthe Court yesterday in

paragraph5 ofits Application tothis Courtin July 1995,Qataradmitted asfollows: "Until 1868,

the Qatar peninsula was consideredby the British as a dependency of Bahrain." So without

arguing about whathappenedafterward,one may begin with a confidentpropositionthat at least

until 1868al1agreethat theentiretyofthe Qatar peninsula wassubjectto Bahrain's sovereignty-

andthis obviously included Zubarah.

86. Thebig holeat the heartof Qatar'scase, bothasto Zubarah and asto the Hawar Islands,

is that it owes the Court an explanation of how and when the State of Qatar, emerging

geographicallyfiom the original comprehensive Bahrain domination, extendeid ts sovereigntyto

Zubarah. It must do the sarne with respectto the Hawar Islands. Qatar has not, and cannot,

provideanyproofin eithercase.

87. Al1of the evidence,such as it is, and with al1the difficulties so well describedby

ProfessorDavid, points tothe conclusionthat as of 1937 the Al-Thani régimehad never-

never- establisheditselfat Zubarah. Sincethe Ottomansadmittedthat theyhad not, and since

Qatar claimsunderthe Ottomans,Qatarmust showhow and whenit obtainedZubarah sometime

after 1915, on the departure of the Ottomans. Instant inherentsovereignty at least stoppedat

Zubarah.

88. Therefore if one disregardsthe mystical theoryof the predestined geographical unit,

Qatar's case fundarnentallyrests on an expression whichQatar was forhinate to find in the

unratified 1913 Anglo-OttomanTreaty: "the peninsula" - not the whole peninsula - "the

peninsula"willbe govemedby JasimbinThaniandhis successors. But ProfessorDavidwasvery

discrete on this score. What he said was uneglissade; he quickly slipped in as a significantexampleof Britishrecognition "Article of the Anglo-TurkishTreatyof 1913confmed by that

of 1914"(CR2000/9,p. 16,para. 29).

89.But as we haveseen,the unratified1913Treatycannotcreatea title, and theproposition

regardingthepeninsularbordersof Qatarwas absolutelynot "confirmed"bythe 1914Treaty.

Bahruin'sties to Zubarah

- Zubarahwas theancestralhomeofthe Al-Khalifa;

- the inhabitantscontinuedto show allegiancetotheAl-Khalifa;

- there was repeated andalways successfulresistance, ledby Bahrain,to a series of attempts

(notablyby theOttomans)to conquerZubarahfiomDoha;

- andthere wereregularvisitsby theAmirof Bahrain.

Theseoverheadsyouwill find consistentlyinyourfolders.

Qatar'sties toZubarah

- Priorto 1937,theAl-Thanihadnevercontrolled Zubarah- not evenmomentarily.

III.THE INVASIO OF ZUBARAH

7 July1937

90. Zubarahin the 1930swasalreadymostlyin ruins. But the regionwas stillinhabitedby

theNaim,and visitedbythe RulersofBahrain.In 1937Sheikh Abdullahof Dohatriedto establish

a customsport to collecttaxes at Zubarah. TheNaim complained toSheikhHamedof Bahrain.

Thisled to a series of unsuccessfulnegotiationsbetweenBahrain andQatar in Manama,Bahrain,

overthe courseofa month.

91. The British Political Resident, Hickinbotham,wrote as follows in late May 1937 (1

cannotanswerforhis syntax):

"The Adviser [Belgrave] informed me that the Bahrain Governrnent had a
counterproposa1readyif necessary,the basis of whichwas thattheywereprepared to
concede al1 the area directly extraneous to Zubarahitself provided the Bahrain

Govenunentwerepermittedto retainZubarahitselftodo with exactlyas they wished.
We were agreed thatprovided any vestigeof powerremainedwith ShaikhAbdullah
[of Qatar],therewasno reasonwhya compromiseshouldnot be satisfactorilyrrived
at in this fo-mwhilstthe Na'imshouldbe giventhe nght to decideby plebisciteas
to whichrulertheydesire to serve,and ofcourse shouldtheymoveinto anyportionof
Qatar belongingto the Shaikhof Qatar, after having admitted,for example,Bahrain nationality,they wouldthen ipsfoacto be liableforpaymentof al1taxation thatat the

the had beenimposeduponotheradherentsto Qatar.'' (Memoriao lf Bahrain,Vol.3,
Ann. 128,p. 0674.)

92. The formulation"any portion of Qatar belongingto the Sheikhof Qatar"is obviously

uncomfortableto the earsof our opponents, especiallyas these wordswerewrittenin 1937- i.e.,

precisely69yearsafterQatarwould haveusbelieve thatit acquiredcoast-to-coastsovereignty.

93. At any rate, the concessionto the effect thatthe Naim who moved intoQatar temtory

would have to paytaxes to the Sheikh ofQatar did notseem enough; there is no indicationthat

Sheikh Abdullah hadthe slightest inclinationto acceptthe plebiscite whichthe Political Agentand

Bahrain favoured. Bahrain submitted severalpetitionscontaining536 signatures of residentsof

Zubarah professing their allegiance toBahrain and defining the temtory they considered to

appertainto the Al-Khalifa (Memorial ofBahrain,Vol. 3, Ann. 130(6), p. 0681). This evidence

underliesthe territoriallirnitsofBahrain'sclaimsthere.

94. Subsequently, SheikhHamedof Bahrainsent out a high-leveldelegation,includinghis

Heir Apparent, Belgrave,and some 30 otherstravellingin two vessels. They went to the little

fishing village of Ghariyeh on the north coast of Qatar. The Qatari delegation was ledby

SheikhAbdullah himself.
After several days of inconclusive meetings,the Bahraini delegation

embarkedintheirvesselsand setcourseforhome.

95.Forwhat happenednext,we havea numberof eyewitnessreports. Allow meto readthe

followingpassageinBelgrave'smemoirs(p. 156; tab 10of yourjudges'folders):

"Quitea number of ourpeople [Belgravewrites]hadbinocularsand one or two
of themwereidlyscanningthe shore. 1heard startledexclamations ... Someunusual

activityhadbeen sightedon the coast. Motorlomes, loadedwith men,weremoving
in the direction of Zabara and bodies of enwere deploying. Then, as we watched,
the fightingstarted. TheNaimtribesmenwholivedat Zabarawerebeingattackedby
ShaikhAdbulla bin Jasim'sBedouin, those surly looking Bedouin whohad beenso
much in evidenceat the villagein Ghariyeh. There was fiantic excitementon board
thelaunches. Someof ourmenbelongedto the Naimtribe andhad farniliesat Zabara,
they wanted to go and help their kinsmen. With difficulty we restrainedthem fiom
jumping overboard. Betweenus andthe shorethere were dangerousshoals,and,even

if we had beenableto land,oursmallparty couldhavedonelittlegood ...

Several of the men who were killed [Belgrave continued] werepersona1
retainersofShaikhHamed's;oneofthem wasanoldmanwhom 1 knewvery welland
was fond of. As soonas the Qatar forcehad withdrawnthe wholeof the Naim tribe
with their families,their flocksand theircamelsleft Zabaraandcameto Bahrain,in a
flotilla of boats whichwe sent for them ... This incident exacerbated the feeling
between BahrainandQatar andput an endto anyhope ofnegotiating a settlementfor
many years to come. Al1intercoursewith Qatar was terminated andnobody fiom Qatar was allowed to land in Bahrain. When Shaikh Hamed died, in 1942, 1
rememberedthe words whichwere attributed toQueen Mary Tudor: 'When1 am

dead. ..you shall find "Calais"lying on my heart,'but inthis case the word would
havebeen 'Zabara'."

96. Of courseBelgravehimselfisnowalsodead,but at leasttwo oldmenare still alivewho

wereactuallyon land duringthat fatefulday and sawtheir relativeskilledby the Al-Thaniforces.

Theirfirst-hand recollections ofthe drarnaticeventhavebeenprovidedas statementsto theCourt

(Memorialof Bahrain,paras. 283-284).

97. Bahrain pleadedwith Britainto "restrainSheikhAbdullahfiom makingwar againstour

subjectswholivewithinourboundaries at Zubarah"(Memoriao lfBahrain,para.285).

98. Britaindid not make a move. Interestingly, Britishgovemment memorandasaid this:

"thereisno coursenowopento us exceptto let hostilitiestaketheir course",and "The oilCompany

[PCL] ... willnot resumeoperations untilautumnandbefore thatthe dispute ...shouldhavebeen

settled." (Memorial of Bahrain,ara.286.)

Bahrain's non-acquiescence

99. Afterthe 1937attack,Qatar didlittleto consolidate itsoccupation. Zubarah wasa long

wayfiom Dohaand 97 per cent ofQatar'spopulation. Littleby little, someBahrainiNaimibegan

todriftbacktotheiremptylands. AsBelgraveputit, stillinhismemoirsat page 157:

"Soon the Bahrain Arabs at Zabara began again to complain about the
aggressionof the Qatar Arabsand the Shaikh usedto discusswith me, every time I
saw him, for hours at a time, the question ofhis rights in Zabara and the unhelpful
attitudeofthe British authoritiesfiomwhomhe couldnevergeta definitestatement."

100. The long recordof Bahrain's fmstratedattemptsto obtain redress for the wrong the

Al-Thani did in Zubarahis summarizedin some40paragraphsof Bahrain'sMemorial(Memorial

of Bahrain, paras.295-336). While Bahrain can understand that Britain found it expedientto

ignore the issueinrderto avoid conflict,andwhileBahrainwasnot in a positionto obligeBritain

to adjudicate the matter, a fair readingof the record does not allow the conclusion thatBahrain

acquiesced.

101. In al1but one instance, thealleged conversationsinvolved proposals- e.g., "let us

have another port on the Qatari mainland,and we will forgetabout Zubarah" (see MemorialofBahrain,Vol.3,Ann.87,p. 0524). ButBahraindidnotrelinquishthequidbecauseitnevergotthe

quo.

102.In fact only one agreementwas signedby Bahrainwith respect to Zubarah. It dates

from June 1944,and itstext, whichMr.Shankardassshowed you(CR200019,p. 28,para.8), is as

follows:

"TheRulerof Bahrain and the Ruler of Qataa rgreetotherestorationof fiiendly
relations between themas they were inthe past. The Ruler of Qatarundertakesthat
Zubarahwill remain withoutanythingbeingdonein it which didnot existin thepast.
This is from consideration and reverenceto AlKhalifah. The Ruler of Bahrain,also,
on his part undertakesnot to do anything thatmightharm the interestof the Rulerof

Qatar. This agreementdoesnot affectthe agreementwith the OilCompany operating
in Qatar whose rightsare protected." (Memorial of Qatar, Vol. 8, Ann.111.240,
p. 183.)

103.This textis sufficientlyambiguous thatonehasthe strongsensethat it wastheresult of

arm-twistingby the British, whowantedpeace and whose realinterest was in the last sentence.

Thiswas astandstillagreementto helpthe oilmen.

104.Whenhe left Bahrainin 1957,after31years,Belgrave,whoof coursehadbeenpresent

at al1stages, notedsimplythatZubarah"was still the subject oflong and acrimonious discussions

between theShaikh [Hamadof Bahrain]and the Britishauthorities,and any signsof a settlement

seemedto be as fardistantasthey everhadbefore"(p.159).

In summary,the eventsof 1937:

1 July 1937

- It was anarmedinvasionbytheAl-Thani.

- Therewasresistanceto itby localNaimipopulation loyalto Bahrain.

- TheNairniwereexpelledto Bahrainunlessthey wantedtojoin theAl-Thani.

With regardto acquiescencethesumrnarycanbe asfollows:

Bahrain's non-acquiescencie n Zubarahfait accompli

- Therewasno consolidationof Qatarirule.

- No significanteflectivituntiltoday.

- SomeNaimiretumedtothe emptyland, creating anambiguoussituation.

- Britainnevermadea decision, insteadtemporizing to avoidconflict.- ConcessionsofferedbyBahrainneverbecarnepartof any agreement andso cannotbe deemed

a waiver.

- To the contrary,Bahrain'sclaimswerereiterateduntiltoday.

My fourthsenes of questionsconcerntheHawarIslands:

IV. THE HAWA RSLANDS

WhatwereBahrain'sconnectionswiththe Islands?

105. Bahrain'sdominion overthe Hawar Islands dates back to the time when, as Qatar

adrnittedin its Application,fthe Qatarpeninsulawas aBahrainidependency.

106.Evenif one weretotakethe mostgenerousviewof the consolidation ofthe QatariState

in the absenceof a singleambiguousfactualelementof proof, it cannotbe saidto have actedto

extendits sovereigntyto anypartofthe western shoresofthe peninsula before1937,andtheevents

at Zubarah. As counselto Qatar notedlast week, thefirstrecordedvisitof the Sheikhof Qatar to

thewestcoastof thepeninsulawasin 1938when hevisitedthenewoilfieldofDukhan.

107. By that time, the HawarIslands had been populated by Bahraini subjects for

1?hcenturies- eversincetheAl-Khalifa permittedtheDowasir tosettleontheHawars.

108.CaptainBrucks'ssurvey,whichyou havealreadyseen in yourjudges' folder,ontains

Mr. President, Membersof the Court, the first mention of the HawarIslands containedin any

authenticdocumentpresented tothe Court.

109.At the top of the peninsula, at thepoint of Ras Rakkan,Brucksmakes the following

generalconclusion,at page99: "From the pointto Al Bidder southward,and to Warden'sIsland

westward,the authorityof theSheikhof Bahrainisacknowledged."

110.Now to find what he said specifically aboutthe Hawar Islands,you needto look at

page 101. He usedthe nameWarden's Islandsanddescnbes theHawarsas: "a group of eightor

nineislandsandrocks ...Theprincipalis calledAlHowahk[obviouslywhatweknowas Hawar],

and is aboutfour miles long. Ithastwo fishing villagesonit, andbelongs to Bahrain."

111.Today, 170yearslater,you can stillseethetwovillagesonHawar.

112.Abundant evidence of Bahrain'sownership and controlof the Hawar Islands was

availablealreadybefore the British adjudicationin 1939. Bahrain refersthe Court tothe summaryof the evidence,overfour single-spacedpages,which appearsin paragraph28 ofBahrain'sReply.

It is a subjectonwhichMr.RobertVolterra willaddressyounextTuesday,ifyou soplease.

What were Qatar's connectionswith the Hawar Islands?

113.Now, the Hawars are not closeto Qatar in anysensethat involveshuman exchanges.

The lifeofQatarwasin Dohaandin its surroundingson theeastemcoast. Therewasno roadfrom

the eastcoastof Qatartothe West;indeed,whybuild a road to nowhere?

114. It is thereforehardly surprisingthat the Ruler of Qatar, whenmakinghis clairnto the

Hawar Islands, did not know where they were,did not knowtheir size, and was ignorant of the

DowasirSettlementsthere.

115.The people ofDoha never had anyinterest in these Islands, where the life was even

harsher thanon the easternQataricoast. Thepeopleof Dohawerepearldivers andfishermen. The

Hawar Islanders alsodove for pearls and fished. There was noreason to undertake an arduous

journey across awildand dangerousdesertto trade fish for fish,or to tradepearlsfor pearls. The

Hawar Islanderstraded with the marketsof Manamaand Muharraqin Bahrain,easily accessible

acrossthewater.

116.Anotherreasonwhy theRulerofQatar'signoranceofthe Hawarsis not surprisingisto

be foundin one singleword: oil. Recall thatBahrain and itsAmericanconcessionaire,BAPCO,

had struck oil in 1932. The word spreadthat "the streets of Manama were paved with gold".

Qatar, and its British-led concessionaire,PCL, had no results: only poverty for Qatar, and

mounting expensesfor PCL. It is impossiblenot to imaginethat PCL- which had a concession

covering al1tenitories belongingto Sheikh Abdullahof Qatar- wouldhave explainedto him that

it wouldbe advantageousto operateas close as possibleto Bahrain,givengeological probabilities,

where oil had alreadybeen found, and askingwhether SheikhAbdullah considered himself to be

the masterof the HawarIslands. It wouldnothavebeen difficultfor SheikhAbdullahto figureout

the "good" answer; norwas it difficultto asserta claim. Thisis a familiarstory; many temtorial

disputes have been conceived - and 1 might Sayeven financed- by the concessionairewho

wantsmaximum rights. 117.The lackof connectionbetweenDohaand the Hawarsis evidentin a longletterwhich

SheikhAbdullahof Qatarsubmittedto Britainin 1939insupport of hisclairnto theHawarIslands.

1amnow tosomeextentanticipatingmylastseriesof questions,butwiththe Court's indulgence1 ,

propose tomentionthis document nowand1will not repeatmyselflater. SheikhAbdullah'slong

letterappearsatpage 1146ofVolume5. Youwill seethatthePoliticalAgentaddedhiscornments

intheleft-handmargin.

118. The firstremarkablethingaboutthe documentis that it doesnot offer any evidenceof

Qatari connectionswiththeHawars. For example,atthebottomof thefirstpage, SheikhAbdullah

argued that Bahrain'sposition is not crediblebecause the Bahraini military detachmentin the

islands had not been there forvery long. But he did not claim - because he could not do

so-that there had ever beenQatar dietachmentsor representativeson the Islands. Again, at

page 1157, heassertedthat a BahrainiDowasir was attackedon Hawar andcame to his father,

Sheikh Jasim- who had died 26years earlier- for protection. Sheikh Abdullahaffmed that

therewere "reliablewitnesses",utnamednone.

119.Thesecondremarkablethingaboutthis documentis theastoundinglyconfidentway in

which itsauthorassertsthings whichcan so easilybe determinedas wrong - and fundamentally

wrong. May1respectfullydirectthe Courtto thepassagenearthebottomofpage 1148:

"theyareislandswhose extentis fiom4 to 5 squaremilesapproximatelyat hightide.
Moreover,they arebarren, without water andunfitas a pasturagefor herds,andwere
in the past completelywithout inhabited villages or anything that approaches the

meaningofthis word ..."

Andagain,nearthebottomof page 11 53:

"TheHawarIslandsareconsidered, from a geographicalpoint of view,as a part
which completes Qatar from the North. Any one who has the least primary
knowledgeof geography will agreewiththis."

120. Mr. President,Members of theCourt, the HawarIslands are not four to five square

miles, but five times larger:20 square miles, or about 51km2. They most certainlydo not

"complete Qatarfiom the north". Theyare not barren. Thereare manyrernnantsof old systems

for the collectionand preservation ofwater. Livestockgrazedthere for generations. Andto Say

that they were "completelywithout inhabited villages", Saythat is- how shall 1 put it- a

decisiveerror. The two villages,as we have seen, were observedby CaptainBrucks 100yearsbefore Sheikh Abdullah wrote his comment. Moreover, thereare many old peoplestill alive who

had livedon the Hawar Islandsin the 1920~~ the immediatelyprecedingdecade - and know the

sametwo villageslike theback of their hands(seewitnessstatementsinthe Memorial of Bahrain,

Anns. 313-316,andReplyofBahrain,Anns. 20-23).

121. While putting forth these gross inaccuracies, SheikhAbdullah expressedcomplete

confidence that hewas right, and much scom forBahrain's"concoctions",as he calledthem, and

"bold denialsof firmly set factsl'.How can one explain that someoneis so confident, and so

wrong?

122.The simplest answeris that SheikhAbdullahwho, as the PoliticalAgent determined,

had never beento the Hawar Islands, sirnplyassumedthat he was claimingthe little islands near

thepointof Ras Rakkann , ot sofarfiomZubarah,withwhichhe wasundoubtedlyfamiliar.

123. Thetwo islandsthereareindeedmuchsmaller,probablybarren,verylikely werenever

inhabited, and couldbe said to "completeQatar from the North". And this could explain why

SheikhAbdullah was so dismissive of Bahrain'sdescription- which certainly does not fit

Ras Rakkan. As for SheikhAbdullah'sassertion that "duringlow tide" the distancebetween the

Hawar Islands andthe mainlandis "abouttraversableby foot",it ispreposterousto anyonewhohas

beento theHawarIslands.

124.Wehave areliableaccountofdistancesandcommunicationsfiom thehighestofficialin

the Gulf, the Resident Agent, Lieutenant-ColoneH l ay, who later became SirRupert Hay. Itis

particularlyusefblbecauseit dates fromNovember1941,whenhe paid avisit toQatar,and wrotea

reportto hisGovernrnent(Memorialof BahrainA , nn.296; Vol. 5,p. 1205).

125.Hay explained thathe went fiom Bahrain to Zikrit where he visitedthe British-ledoil

activities(PCL),andat Dukhanirnmediatesouth.

126. Fromthe westCoast,Hayrecounts that: "Weset off. . .tovisit the Shaikh[of Qatar]at

hisresidenceinRaiyanabout60miles away."

127.Hedescribesthesceneofthevoyageas follows:

"The road lay across stony and uninhabiteddesert and the going was fairly
rough; nota livingthingwasseenfor some50miles . ..itwas strangetotravelabout

thesewildparts ...withoutanykindof armedescort." 128. Hay also noted that although the Sheikh'sprosperity had already been "greatly

increased"as a resultofthe OilCompany's operationst,herestillhad notbeen founda suitableport

on the eastem coast of Qatar from which to export the oil. So even this new industryhad not

createdan infiastructurallinkfiom eastto west.

129.What SirRupertHay sawon the way eastfiom Dukhanremainsto be seentoday, asin

theseimagesrecorded earlierthisyearandsubmittedwithBahrain'sSupplementalDocuments.

130.1 directyourattention,once againto the screen,whereyou willsee an extractfrom the

23rdedition (1975)of Al-Munjid,an Arabic reference book publishedin Lebanonand, 1 might

venture, is inspired by Le Petit Larousse. (Bahrain's Supplemental Documents submitted on

1March2000,Ann.21,p. 179.) Youalsohavethisin yourjudges' folders attab 14. Whatyou see

now is the dictionary'sdefinition of "Hawar Islands", which in English reads: "a group of

16islands subject to the State of Bahrain". Next you have a map uponwhich 1do not need to

comment - the internationalborderis as clearasit couldbe. 1donotwishto misleadthe Courtso

1willnote that afterthis case was started,subsequenteditionsofAl-Munjidrecognizedthat Qatar

wasclairningthe Hawars andthereforedidnot repeatin thisunequivocal way that theHawarsare

"subjectto Bahrain". Thisis whatwasshownin 1975. But1focusonthe map foranother reason,

and itis this.hereis noroad fiom Dohathat comeseven close to theemptypeninsulanext to the

Hawars.

131.A memberof the Qatar HistoncalCommission,in a book cited by Qatar,has written

that in 1908 the populationof the entire western coast was"roughly3 per cent"of the total for

Qatar. Moreover, thistiny population - of 3 per cent- canbe precisely located,for the author

writes,and speakingabout 3 percent of the total populationmeans dependingon what estimate

youexceptfiom a high of 300to 800people, thatwouldbe 3 per centofthe population,the entire

populationof the westerncoastof Qatar. The authorwritesthattherewereonlythreetownsonthe

westcoast,Zubarah,accordingto her,being "practically deserted".(R.S.Zahlan,TheCreation of

Qatar,p. 15, 1979.) The Courtmaywellwonderwherethesethree townson the "westcoast"were

located. Pleaseobservethemap. The only threetoms on thewestcoast of Qatar accordingto this

memberof the Qatar HistoricalCommission in 1908, were: Abu Dhaluf, Hidayah, andKhuwayr

(or Kwar Hassan, as it is more fiequently known today). As you can see, al1three are on thenorthempart of thewesterncoast. Thisis where the300 or 800 people were. However long you

consider the matter, the conclusion remains: the south-west coast of Qatar was simply

unpopulated.

132.The closestQatari areato the Hawarsis a peninsulawhichis devoid of life, with no

buildingexcept fora fewremotemilitaryposts. 1do notthinkthat itsname is the Zikritpeninsula,

that appellationis usedsimply forurposesof identification. The only importantumanpresence

in the area is the oil town of Dukhan and its adjoining port ofZikrit. Of course, oil was not

discoveredin Qataruntil 1939. Dukhanwas created toprovideaccommodationfor some300men

working inthe desert(GeoffreyBibby,Lookingfor Dilmun,p. 4, 1970).

133. Bahrain can cite a witness who is perhaps unexpectedin this connection, namely

ProfessorGeofiey Bibby,the English archaeologist, whowrotethemost famousbook on Bahrain

by a Western author,namely Looking for Dilmun(publishedin 1970,1stedition 1970),whichhas

been citedby bothsidesinthis case.

134. Thereason 1now citeProfessorBibbyhasnothingto dowitharchaeology. It hasto do

with what he did as a young man, years beforehe became a professor. This takes us back to

1947-1950,when young Geofiey Bibby,as he writesin the frst chapter of Looking for Dilmun,

wasdeputyto the headofthe PCL'soperationsinQatar. TheoperationswereinDukhan,where,as

1said,thereweresome300menin thefield. Nowhereis thepoint:

135.Even thoughyoung Mr. Bibbyandhis Companywere workingthe concessioninQatar,

the place they found convenientas a base from whichto operate,to supervise the operationin

Dukhan,was not in Doha, nor anywhereelse in Qatar, but in Manama, on the main island of

Bahrain. This iswherethe PCL had its office, with a staff of around20 clerks and purchasing

agents.

136.In otherwords,even Dukhanwas, for al1practical purposes,closer to Bahrainthanto

Qatar. How much truer would that be for the Hawar Islands, populated by the Dowasir from

Budaiyaand Sellac.

137.And what exactlywas the PCLhead office in Manamadoing? Among other things,

ProfessorBibby remembers, at page 4 of his book, PLC ran "a fleet of dhows, that sailed

continuouslywithwaterfrom an underseaspringoff Bahrain to waterlessQatar". In otherwords,Dukhan'ssupply of water - indispensable forany li-e was brought byBahrainis,bringingit

there fromtheBahrainisea.

What do we conclude?

Bahrain 'tiesto the Hawar Islands

- wereexclusive;

- constant;

- andexistedmanygenerationsbefore theBritishdecisionof 1939;

- andeversince.

Qatar'sties totheHawarIslands

- It is a discreditedthesis,thattherewereanysuchties;

- foronce itispossibleto prove anegative,intwoways: first,the compelling infereiomthe

82 documents. Whatelse can one concludeabout a partywhich is reduced to filingsuch

alleged evidence? Second aspect of proving this negative, the positive proof-Qatar's

geographicaland demographic isolationfrom the Hawar Islands,and its utter ignorance of

them.

Mr. President, onlyone series of questionsremain, aboutthe Britishdecisionof 1939,and

this,formeat least,would beasuitablemomentfor abreak. But,1amatyourdisposal.

Le PRESIDENT:Je vousremercie. La coursuspendpourdix minutes.

L'audienceestsuspenduede Il h IOàIl h30.

Le PRESIDENT :Veuillezvous asseoir. La séanceest repriseet je donne à nouveaula

paroleà M. JanPaulsson.

Mx- .AULSSON:Thank youverymuch,Mr.President. V. THE BRITIS DECISION OF 1939

The Context

138. On Tuesdayof last week, our opponents told the Court that if only the British had

knownhow closethe Hawarswereto Qatar, "theywouldsurelynot have decidedthat the islands

belongedto Bahrain"in 1939(CR200016, p.45,para.22). This soundedlikea complaintaboutan

errormadein a decisionreached morethan60 yearsagoand asal1lawyersknowthis is not a very

impressivegroundsof challenge.

139.But thefollowingday we heard that the1939decisionwas the conclusionof a "sordid

and shameful story". The British decision, SirIanSinclairtold us, was "hypocritical". The

meaningof that word is plain: the British decided,or so Qatar wouldhave youbelieve, that the

HawarsbelongedtoBahrain even thoughtheBritishdidnotbelieveit wastrue: thatis hypocrisy.

140.Now, Qatarcannothave it both ways. If Britain'sdecisionwas basedon Britainnot

knowingthe allegedtrue facts,hen Britainwas nothypocritical. If Britainwashypocritical,then

thetruefacts didnotmatter.

141. But let us stay with the "sordid and shameful" scenario. SirIanSinclair found

indications in the record that the British expected that Sheikh Abdullah's claim wouldil.

SirIanmay well Saythat this is because the British were "sordid and shameful",but a more

plausibleinterpretationis that no one expected SheikhAbdulto succeedbecausehis claimwas

preposterous. He and histribe livedal1the way over on the Doha side, isolatedby an empty

quarterandno onehadeverheardofanyQatari presenceinthe Hawars. Thesuddenclaimin 1938

hadaverystrongodourof oil.

142.It is whenit getsto speculations about motithat the Qataripresentationisredin

confusion. At one pointit adopts theesisthatthe British favouredQatarbecausethey favoured

the British oil Company. Moments later, they Saythat Bahrain favoured Britain for, if 1 have

understood it correctly,erfïdious Albion now had an altruistic motive- to help Bahrain's

finances. It is not clearhowthis wouldwork; noonehad found anyoil on theHawarIslands,as

indeedno one stillhas. 143.Once ourleamedfiiendshavesqueezedeverydropof suspicion outof everyyellowing

page,they end upwitha conclusionwhich, among al1the propositions everputto thisCourt, must

surelyrankas one of the leastsurprising:colonial Powersactedintheir owninterest.

144.Well,yes theydid. Tens of thousands of milesofgrotesqueinternationalbordersinthe

developingworldwere drawn up by powerfulintrusiveforeigners whoseentire attentionwas on

theirownpoliticalandcommercialinterests,withvery little regardto indigenouspopulations. Yet

these borders survive,not because they appealto our senseof fair play, but because continued

respectfor suchbordershas avoidedwar. Youwill hearmy confièreFathiKemichaon this topic

nextweek, 1hope.

145.So, Qatar'sdemonstration comesto this: a taleof soundand fury, signimg nothing.

Strictly speaking,Bahraincould stop here. But,as a matter of historical accuracyand coming

before this highCourt,Bahrainwantsthis Court tobe satisfiedthat it wasnot the beneficiaryof

"sordidand shamefùl"machinations.

146. Once oil was struck in Bahrain in 1932, Qatar- or rather the British-owned

Anglo-Persian OilCompany - wastedno more time. Withinmonths of the Bahrainidiscovery,

the BritishPoliticalAgentwrote "the explorers of Anglo-Persianin Qatar haveexaminedplaces

where the Rulerof Qatarhasno right to allowthemto go",eventhough,ashenoted,"itis saidthat

as lateas lastyear[1932]the Ruler of Qataradmittedinpublicthat certainareasonthe Qatarcoast

pertainto Bahrain"(Counter-MemonalofBahrain,215).

147.At thesametime, SheikhHamadof Bahrainwasnegotiatingwiththe Amencan-owned

BAPCO for additionalconcession acreage. It was in Britain'sinterest that the extension of

BAPCO'srightsbe as limitedas possible - BAPCOis Arnerican. SheikhHamadof Bahrain was

apparentlywilling toexcludethe Hawarsfromtheextension,buthe leftnodoubtabouthisposition

whenhe declaredtotheActingPoliticalAgentin a meetingon29 July 1933,that "theseislandsare

thedependenciesofBahrain" (despatchdated 30 July 1933, Memonalof Qatar,Ann.111.86V , ol.6,

p.445).

148. The very next day, the PoliticalAgent - Loch- telegraphs his Govemment as

follows: "Shaikh [Hamed of Bahrain]gives his authority [for the defined extension]
subject to following observations. Firstly.He desires that area be called Bahrain
Islandswithoutspecifically namingany sothat questionof Hawar Island and Qatar
will not be prominentby their omission. 1think that we may accept this as Hawar
Island is clearly not one of the Bahraingroup." (Memorialof Qatar, Ann.111.88,
Vol.6,p. 449.)

149.Qatar'sadvocates arevery insistenton this phrase, "HawarIsland is clearlynot one of

the Bahrain group". My leamed opponent, Mr Shankardass,askedthe Court "carefully [to] note

Loch'sview,in 1933,that Hawar Islanddidnot appertainto Bahrain". He then wenton to Saythat

this wasin "starkcontrast"withLoch'sown subsequent acknowledgemeno tf Bahrain's rightto the

Hawars (CR2000/6,p. 24, para.37(2)). This argument,of course,contributesby insinuation to

SirIan's"sordidand shamefulstory". But Loch didnot Say"notpartof Bahrain"; he said"notpart

of the Bahrain group". The politicalversus geographical distinctionis key. In my respectful

submission,whenthe Court "carefully" considersthis letter, as Mr.Shankardassinvitesit to do,

what it will find is that Loch could not possiblybe interpreted as expressing a "view" about

ownership of the Hawars. As just noted, this telegram was sent the day after SheikhHarned

"immediately"insisted to Lochthat the islandswere Bahrain's "dependencies". The factthat the

Hawarsare notpart ofthe groupof islandsclustered around the main island of Bahraio nbviously

does not mean that they do not belong to Bahrain. The island ofPitcairn in the SouthPacific,

St.Helenainthe SouthAtlantic,andthe Caymans inthe Caribbeanare certainlynot geographically

part of theBritishislands,buttheyjustas certainlfa1underBritishsovereignty.

150.The concession negotiatedby Anglo-Persianwas quicklyassigned to a newlycreated

Company,PCL, inwhichthe British Govemment hadanindirectshareholding. We haveincluded,

under tab 19 ofyour folders,a briefexplanationof the variouscompanieswhose namesappearin

the records,which mayfacilitateitsreading.

151.PCLhad a General Manager namedJohn Skliros,who was another dynamicfigure of

the historyofoil. He knewnothingabouttheHawarIslands- exceptthat he wantedthem. So on

29 April 1936 he wrote this short letter (Counter-Memorialof Bahrain, 233) to the British

Govemment,wherehe arguesthat Hawar:

"is shownon the officialmap of Qatarwhichwas signedby the Shaikh ofQatarand
by Mr.Mylles and whichfoms partoftheQatarconcession. Thismap,1believe,was

seen and approvedby the Political Residentand perhaps,the India Off~ce. Al1this
points toitsformingpartofQatar andnotofBahrain." 152.As argumentsgo,surelythisis aboutas feeble asonecanget. Indeed,it ratherfallsinto

the categoryof wishfùlthinking. Here isthe map,being discussed,whichwas shownto youlast

week. What Mr. Skliroswas perhaps implicitly hoping was that the BritishGovernrnentwould

believe, and what SirIanSinclair explicitly invited the Court to believe last week, was that

Mr. Mylles and SheikhAbdullah showed their intention to separate the Hawar Islandsfrom

Bahrain byplacingtheir signatures between the two setsof islands. Apparently thargumentwas

offeredin al1seriousness.Well,may Bahrainanswerinfourways:

- first,if this page were blank,and you wereto imaginethat you were going tosign it, where

would you put your signature? The answer seems obvious: just where the signaturesdid

appear;

- secondly,if you wantedto demonstrate aseparationbetweenthe Hawars andBahrain,isn't

therea clearermorestraightforwardwayofdoingit? Howabout ...a line?

- thirdly,Sheikh Abdullah andhis concessionairehave at any rate no right to draw Bahrain's

borders; and

- fourthly- and rather decisivel- when SheikhAbdullahwas repeatedlyaskedin 1938and

1939whether hehadanyevidencethat the HawarIslands belongedto him,it didnot occurto

him to offer thismapas evidenceof his authorizationof oil explorationin theHawars. Either

SheikhAbdullahwassurprisinglyforgetfùl, though hehadonlyonceever signed aconcession

agreement,orhe didnotplacethe sameinterpretationonthismapas SirIandoesnow.

153.SheikhHamad of Bahrainmust havehad a suspicionas to what Skliroswasupto. If 1

may askyou to lookat page 1071of Volume5, in April 1936,SheikhHarnadtookthe precaution

of instructinghis adviser,Belgrave,to writeto the PoliticalAgentto confirmthatthe Hawarswere

"indisputablypartof the StateofBahrain".

154. This is the letter in which Belgrave makes a list of the Hawar Islands- on

page 1072 - whichasQatarcorrectlypoints outisincorrect. Butconsiderthe circumstances.Our

opponents Say they have checked Belgrave'sdiaries and conclude that Belgrave had never

previouslybeen to the Hawars. 1believe them. So Belgravewas given thetask of writingthis

urgent letter. He must havesought information,througha translator,fiom someone athandwho

knew something about the Hawars, and thatperson- however he understoodBelgrave'squestion- listedthe islands exactly in the order that you encounterthem when you travel to

Hawar: Nun,Mashtan,Al Mutarid,Rabad,andthenHawar.

155. It is important to remember that Belgrave was in no sense providing evidenceor

argumentto a tribunal. He was simplyproviding informationas best he couldinthe circurnstances

as he didnot wanttheBritishto give out wrong andadverseinformation to Skliros.And,Belgrave

was certainly righttobe ina hury, for aswejust sawMr.Skliroswaswritinghisownletter,in fact

datedtheverynext day.

156.Mr.ShankardasstoldtheCourt:

"Wenowalso haveBelgrave'sentryin his diarieson 23 April 1936...thatthe
Al-Khalifa Shaikhs,fivedaysbeforethe forma1claimwasmade on 28April 1936,did
not in factthemselves believethatthey had a sustainable claimto the HawarIslands."
(CR 2000/8,p.27,para. 27.)

157.TheCourtmust have thoughta , s1did, thatthiswasratherdramaticstuff. Herewehave

Qatar puttingit tothe Court that ShaikhHamedof Bahrainhimself didnot believe that heowned

the HawarIslandswhenhe assertedhis rights.

158.When oneadvancessuchan electrifyingidea, onehad betterwell beable to back itup.

Please look at Belgraves' entryfor 23April 1936, and judge for yourselves. In the moming

Belgravegoesto theoffice,inthe eveninghe goestothecinema. Butin betweenthereisthis:

"Discussedoil & the new agreement & especiallythe question of our right of
the HawarGroupof Islandswhichthe Shaikhs fearthe Agencywill notallow. 1thin.
myselfit is quiteincontestable."

159.How cananyone seriously readthis entry tomean that the Shaikhsdid not believe in

their titleto theHawars?

160. SirIan Sinclair also put forward a creativeterpretationof this entry.ere is what

SirIanarguedto the Court:

"Thatthe Bahrain Sheikhsshould fear the British Political Agencywouldturn
down a clairnby the Ruler of Bahrainto the Hawar Islands is understandable. But
why is Belgraveso confident thatsuch a claim(to be made only fivedayslater)will
be backed by the Agency? Couldit be that he had advanceknowledgeor at least a
hint of whatthereactionof theAgencyto sucha claim waslikely to be? Whatother
explanationisthere, given,asBelgravemusthaveknown,the very shakygroundsfor

a Bahrainiclaimto the HawarIslandsif thosegroundswere to besubjectedto serious
scrutiny?" (CR2000/7,p. 50,para. 10.) 161.No element ofthese comrnentscarriesconviction. TheSheikhswere not concemed

abouta "claim"being turneddom; the referenceis to their "right".As forthebasisof theirfear,

we lmow from the evidence that therewas a British interest to disfavour Bahrain's American

concessionaire,orat leasttopromotetheinterestofthe BritishoilCompany.

162. Inthe secondsentence,Belgravedoes not expressconfidencethat the claim will be

"backedby theAgency"; he saysit is "incontestable".

163. As for the "advance knowledge or at least a hint", this is a figment of Qatar's

imagination. What Belgravewritesisthat heholdsBahrain's righttobe unassailable.

164. And nowto the last: Belgrave"must have known"that Bahrain'sclairn was "very

shaky". Sucha self-servingassertionwould bemerely humorousif it werenotforthe seriousness

ofthe stakesinthiscase. It vergesontheoutrageous.

165. Incidentally,why wouldBelgravebe writing lies to himself in his diary- "1think"

Bahrain'srightis incontestable-if infacthethoughtit was"veryshaky?"

166. Continuingin this vein, SirIan speculated aboutthe fact that Belgrave,in assisting

SheikhHamad of Bahrainin formulatingBahrain'sbasis for the titleto the Hawars "hadtotally

forgottento mention themas part of theprincipalityof Bahrainin an articlepublishedby himonly

eight years previously"(CR2000/7,p. 51, para. 13). In Belgrave'sdescription,Bahrain cannot

anywherefind the expression"principalityof Bahrain",which SirIan used (Qatarjudges'folders,

tab 18). Like so many people, Belgravedescribeswhat he calls the "Bahrainarchipelago" -

othersspeakof the "Bahraingroup". It neitheroffendsnor womes Bahrainthatpeople definethe

Bahrain archipelagogeographicallyas the islandsimmediatelysurroundingthemain island. The

Hawars maybe saidto form theirownarchipelago.Thatdoesnot implya politicaljudgment asto

whoownsthem.

167. Now, let us seewhat the Britishofficialsdo about the two lettersfiom Sklirosand

Belgrave, separated by one day. First,at page 1074of Volume5, you havethe PoliticalAgent's

reportto his superior(p. 1075),inwhichthe importantpoints areparagraphs5 and6, which1shall

not read to you. SirIan seemsto suggestthat this is the reflectionof a "sordidand shameful"

machination. Bahrainjust doesnot seeit. As for the response toMr. Skliros,on page 1076,two

pages on of the samevolume,you see that Mr.Waltonof the India office answershim, that is toSay Mr. Skliros,by sayingthat thematterwill gobackto the PoliticalResidentin the Gulf,but not

without Mr. Walton making a rather withering comment about Mr. Skliros's hopeles asrgument

about themapthat SheikhAbdullahand Mr.Myllessigned. Yousee it in the last paragraph,here

is whatMr. Waltonsays:

"1doubt whether the mapattachedto the Qatar concessionis relevant in this
connection- its object was to define the southem boundary of the concession.
Incidentallyit markstheBahrainIslandsaswellas Hawar. Yours sincerely."

168.This answeris aboutwhat Mr. Skliros's argumentdeserves,and it remainsthe answer

whichQatardeservestoday.

169. May1only addthatalthough Mr. Walton'sletter contemplatesthe issue ofwhetherthe

HawarIslands belongto Bahrain,the "Bahrain Islands" arereferred to assomething distinctrom

"Hawar". ConsideringMr.Walton'sansweron the ments, it is obviousbeyond peradventure that

the distinctionis a matterof geography,notofsovereignty.

170. Following advice fiom the Political Agentand the PoliticalResident, including the

conclusionthat successive Rulers of Bahrainhad "exercisedactivejurisdictionin Hawardownto

thepresentday"(Counter-Memorialof Bahrain,236),the BritishGovemmentinJuly expressedthe

view that Bahrain was entitled tosovereignty over the Hawar Islands (Counter-Memorial of

Bahrain,253).

171.The British postureseemsentirelyappropriate; itanswereda query fromPCL,butgave

notice thatits opinion was subjectto whatevrulingmight be given, ifandwhenQatar soughtto

haveitsviews heard.

172. In 1937, of course,SheikhAbdullah'smen invaded Zubarah. One of Bahrain's

responseswas to take a series of defensive actionsin the Hawar Islands. Qatar has soughtto

characterizethis as an opportunisticillegal occupationby Bahrain. This is not an argumentthat

deservesmuchattention,particularlywith thedisappearance ofthe 82documents. Sufficeitto Say

that, contrary to whatQatar argues,these actionsby Bahrain are preciselythose of a sovereign

reactingto a perceivedxtemalthreat.

173.And so we corneto 1938,when the Rulerof Qatar finallyshowshis very firstsignof

any interestin the Hawar Islands. Whetherone is preparedto believe that hewas not encouragedby PCL, the indisputablefact remains thatthejoint interestof PCL and SheikhAbdullah was the

aggrandizementof Qatar.

The arbitration

174. In February 1938, on the occasion of a visit by the Political Agent to Doha,

SheikhAbdullahstated that Bahrainhad no rightto be inthe Hawar Islands. Inhis report on the

meeting, whichyou will find in Volume 5 at page 1096,the PoliticalAgent Weightman - or

SirHughWeightman as he was to become - notes howeverthat Sheikh Abdullah "changed the

conversationimmediatelyandit wasevidentthat at thattimehe wasby no meanspreparedto lay a

forma1claimto the Hawargroupof islands".

175. Apparently, Weightman did not report on this February meeting to his superior, the

PoliticalResident,until thisletter,whichas you see isdated 15May. SirIanfindsthis delay tobe

part of the "sordidand shamefulstory". It is hard to seewhy. Weightman'sconclusionwas that

SheikhAbdullah was "by no means"prepared tomake a claim. Weightmanwrites that he was

trying "to draw" SheikhAbdullah onthe subject,but he "imrnediately changedthe conversation".

We do notknowwhy, but wemay notethat Mr.Skliroswas notthereto whisperinhis ear. At any

rate whywouldit be urgent forWeightmanto reporta claim notbeingmade?

176. It was not untilthreemonthslaterthat SheikhAbdullahactuallyput a claimin writing:

a short letter dated 10May and a slightly longer one on27 May. They are reproduced at

pages 1094 and 1102 of this volume (Memorial of Bahrain, Vol.5). You can study them

yourselves. They containedstrongrhetonc, but not the slightestproofof acts ofadministrationor

anyotherQataripresencein theHawars.

177. On 30 May, Weightmanwentto Dohaandmet with SheikhAbdullah and his advisers.

The BritishPolitical Agent "questioned [SheikAbdullah]closely" inregard toQatar'sclairn and

the latterstatedthat "hehadno Mer proofto offerbeyondthe statementsmadeinhis petitionsof

claim" (Counter-Memorial of Bahrain, Ann.88). In responseto "repeatedenquiries"(sic) as to

whether the two letters put forwardby SheikhAbdullahpresentedhis claim "inal1the detail he

wished",or whether theRulerhad "anyotherevidence,documentaryor otherwise,whichhe would

wish to submit",SheikhAbdullahstated thathe hadsetoutal1he wishedto Sayinthesetwo letters. 178. Nevertheless,two weeks later, on 15June, SheikhAbdullah askedby letter, to be

infonned of Bahrain'sclaim,statingthathernighthavemoreevidenceto producedependingonthe

natureof Bahrain'sclaim.

179.The ForeignOffice advisedthat "whenone is assuming anarbitralrule of this nature",

each party'sstatementsshouldbe cornrnunicatedto the otherfor answers,so that a decisionwould

be less likelytobe basedon "someerroneous statement" (MemorialofQatar,Ann.111.165).

180.And so,once Bahrain'scounter-claimwas filedin December 1938, Qatarwas givena

chanceto answerit,whichit didbythe Rejoinderfiledatthe end of March 1939.

181.Nowwe cometo what maybe thesinglemostimportant documentin the case,namely

Weightman's report of22 April 1939in whichhe sumrnarizesthe proceedings and reviewsthe

evidence. Ifthere is one documentwhichBahrainis certainthat every Memberof this Courtwill

studywithparticularcare,it isthis: andyoufindit at page 1165ofVolume5. 1donot presurneto

help you read it, but allow me toakeone comment,in light of Qatar's repeated complaints that

Britain unfairly placedthe burdenof proof on Qatar. My commentis this, Weightman'sreport

makes no presumptionswhatsoever. Thereis no mentionof Qatar having the burden ofproof.

There is a straightforward balancingof evidence, whichis not difficult,given Qatar'sabsenceof

evidence.

182. Qatar seemsto take the positionthat Weightmanwas a liar, and that everyonewho

agreed with him was a hypocrite. Thatkind of argument will surely notsatisfi this Courtor any

other court. AlthoughBahraincanhardly berequiredto provethat Weightmanwas not a liar, we

suggestthat the objective readerof Weightman'sreport will be convinced that it was unlikelyto

have been written by someone who had a "sordid and shameful"bias. 1 respectfully ask the

Membersof Court, indue course,if nottoday, toreadparagraph11andask themselves: is thisthe

languageof a man whois "goingthroughthemotions"foriniquitouspurposes?

183.There isnohistoricaldocumentinthe entirefile ofthis case thatcontainsmore specific

analysisof the issueoftitle to theHawars. Qatar'apparentunwillingnessto discussWeightman's

analysis mightjust be explainedby the fact that it is a thoroughexposition of the merits of the

dispute, and, themoment one talks aboutthe merits, Qatar'scase for the Hawars is exposed as

nothingbut empty assertion. 184. In a time-honoredtradition, Qatar evidentlydecidedthat since it does not like the

message,it willblame the messenger.Andso,QatarattacksWeightmanad hominem.

185.Qatar callsWeightman's analysis "slanted" withouter explaininginwhatconceivable

way - giventhat in over60yearsuntiltoday,Qatarhas not found asingleauthentic documentto

show a single instanceof Qatari presenceon theHawarIslands - in what conceivable way-

Weightman'sassessmentwaswrongonthemerits?

186. Qatar'sattack on Weightmanis certainly robust. He must havehad a "deep-seated

prejudice...against the Al-Thani ruling family".Those are Sir Ian's words(CR200018, p.15,

para. 15). Weightmanhad "an alrnostparanoicattitudetowardsthe ruling family of Qatar" -

again,SirIan'swords(CR200018,p. 14,para. 13).

187. Sir Iansaid almost as though hewere complaining,that Weightman"gives no real

explanationfor his rooted dislike of the then Ruler of Qatar" (CR2000/8, p. 15,para. 13). By

using this approach,Qatar couldrefer to anyonewho does not agree with it, and complain that

Mr. X ha never explained whyhe was "paranoid"or held "deep-seated prejudices".The Courtis

asked to presumebad faith.Thatwould tum a universalruleupsidedown.

188.Weightman'sbias,accordingto Qatar,is reflectedinvariousnotesandcommunications

which-1 would respectfullysubmit-are equally susceptibleof an innocent interpretation.

Qatarplacesconsiderableemphasisona letterwhich Weightmanwrotein December1939,which1

amsureyouremember. Accrdingto SirIan,thiswasthe letterinwhichWeightman "almost seems

torelishaneventualmurderattemptonthe heir-apparentofQatar"(CR200018,p. 14,para. 12(8)).

189. We have put this documentat tab 20 of your folder (Counter-Memorialof Qatar,

Ann.111.48V, ol.3, p. 275).

190. We see that Weightmanis no admirer of Sheikh Abdullah or of his son Hamad:

"Bahrain[hewrites]is besieged byal1kindsof peoplefromQatar - who aresick todeath of the

avariceofSheikhAbdullahand of theimpositionsof his eldestson SheikhHamad."

191.He evaluatesthesituationas follows:

"Mypersona1beliefis that as longas the oldShaikhis alive,Qatar willmuddle
along somehow, sincehe is personallyquitepopular bothwith the townsfolk(if one
can use the words 'town'for places likeDoha or Wakrah)and with the Bedu. The
onlypeople whoreallyhate himaresomeof his ownrelatives. Butwhenhe dies and
SheikhHamad comesintopower,1shouldanticipatearapid accelerationofthe tempo of agitation. 1doubtverymuchif therewillbe anyarmedrising forthe RulingFarnily
have thebest armsby a long way. But 1should certainlyanticipatea murderandquite
candidly1think it would beto Qatar's advantagein the longrun if SheikhHamadbin
Abdullapassedout. Wehaveof courserecognizedhim as heir-apparentbutthat does
not involve us in protectinghim from assassins forhmately,and since 1should not
anticipate fightingwe havenothing much to worry about so far as the oil camp at
Zakritis concemed."

192.In other words, SheikhHamad maybe killed,but it willbe a familyfeud and will not

involvecivil war. Weightman characterizesitasan intemalmatter. Hispreoccupationis that there

beno civilwar.Weightman thought that SheikhAbdullah wasbad forhis ownpeople. As Political

Agenthe was supposedto assessthemeritsandprospectsofpersonsinpositions of power.

193. Weightman's letter showsconcem with "Qatar'sadvantage inthe longrun". Nothing

involvesthe "longrun" asmuchas issuesoftemtory. Titleto theHawarshad notbeenasserted for

the benefitof individuals,but forthe benefit oftwo competingcountries. Whateverhis opinion of

individuals, thereisno evidence that Weightmanfavouredthe peopleof Bahrainoverthepeople of

Qatar. The only "slant" hehad, asfar as 1can see, is that he did not believe that mere proximity

createstitle.

194. The insults arenot limited to Weightman. Loch,Qatar told the Court, hurt Qatar's

interestbecauseofthe "spineless"wayhe handledhimself.

195. Nor does Fowle escape; "bias" and "deliberate failure to investigate" (CR200017,

p. 50,para. 10).

196.In fact Qatarconcludesthat the "BritishGovemment"was"going throughthe motions

of an enquiry", andthat "thescenario forthe enquiry" was acceptedin principleby "boththeIndia

Officeand theForeign Officein London"(CR200018,p. 11,paras.7-8). Sonowthe entireBritish

Government is indicted. Theonly wayto avoid being called "sordidand sharneful",it seems,is to

embraceSheikhAbdullah'sclaims.

197.We now come to the end of the story. The analysisand the recordof the competing

claimto the HawarIslands werereviewedby the BritishGovemmentin London, inparticularby

the Marquess of Zetland and Lord Halifax, and the Award infavour of Bahrain was made on

13June, assented toon 1 Julyby the Government of India, and communicatedto both Rulerson

11July. 198.In summary,the Ruler of Qatar wasunable to produce any proof, or even allegeany

particulars, of hisrule in the Hawar Islands. The British officiais who evaluated his claim

concludedthat despitetheirrepeatedinvitationsthat he showthemevidence,his claimhadno other

basisthanthe unsustainableoneof proximity.

Theaftermathof thedecision

199.Three weeksafter receivingthe unfavourable British decision,SheikhAdbullahwrote

to the PoliticalResidentto expresshis "greatdisappointment"with the decision.Hisletterappears

at page 1184 of the Memorialof Bahrain,Volume5. It is important to notethat this letterargues

onlyaboutthe merits. Butas always,SheikhAbdullahoffersno evidence, mereaffirmation. There

is no complaintaboutthe procedure.

200. After 1940,Qatardid not Saya wordaboutthe Hawardecisionuntil Britishenquiriesin

1947regarding themaritimeboundarytriggereda reiterationof the expressions of discontentwith

the 1939decision. Forthe ensuing 17years, nota wordwasheardfiomQataron thissubject.

Britain's1939decisionre Hawar

- Following its invasion of Zubarahin July 1936,Qatar'sclaim to the Hawar Islandswas a

logical progression ofAl-Thaniexpansionism;

- the immediatetimingobviouslyconnectedwithQatar's newappetite foroil;

- Britain's commerciailnterestsonthis issuelaywithQatar;

- there was noconspiracyagainstQatar;

- there were insteadfair proceedingsin which Qatar fully participated,accepting- and 1 am

quoting Sheikh Abdullah- "the right of His Majesty'sGovermnent to look into such

matters";

- the substantivereasons for the decisionsare compelling, anddid not assign either party the

burdenof proof

- finally,Britainhasalwaysstoodbehindits decision. CONCLUSION

201. Mr.President,Members of the Court,Bahrain naturallyrelies on the powerful legal

positionit enjoysbyvirtueof the 1939decision. ProfessorReisman willin a fewmoments analyse

thelegal situation createdby thatBritishdecision.

202. What 1wishto point out,as my final thought this moming,is that Bahrain'snght over

theHawar Islandswouldbejust as clearif therehadbeennodecisionin 1939.

203. For thatAwarddid no more thanrecordthe obvious: 60years ago,there was already

overwhelmingproof of Bahraini sovereignty,both in terms of the allegianceof the population to

Bahrain, andintermsofBahrain'scontrolovertheislandsand the activitiesthere.

204. Children grew up on Hawar to become leading figuresin Bahraini life. Thus for

example,Abdullahbin Jabor AlDosariwasthe influential secretary tothe Emir of Bahrainin the

1930s. He spentmuchofhis childhoodonHawar. As theirwrittentestimony attests(Memorialof

Bahrain,Anns.313 and314), Hawar Islanders werethere as childrenmany years before oilwas

discovered,many yearsbefore there was any mention of a Qatari claim - in the 1920~~before

Belgraveevenheard of theHawars. TheseHawarislanderscanpointout today thelocation of fish

trapswhichAbdullahbinJabor'sfatherownedonHawar. Andhis grandsonhas beenthe Minister

forForeign Affairsof Bahrain,sinceindependencein 1971,andof courseis presentwithus in this

Great Hall today.

205. These are not phantoms conjuredup by ghosts, or gratuitous assertions based on

shadowy documents. These are peopleyou cannumber and name,whom you can see and touch

eventoday - and whocan show youwheretheyand their familieslived,and how their destinies

havebecomeindistinguishablefromthatoftheirnation: Bahrain.

206. Thank you for your patience. May 1 now, Mr.President, ask you to cal1 on

ProfessorReisman.

Le PRESIDENT: Je vous remercie, Maître Paulsson. 1 now give the floor to

ProfessorMichael Reisman. Mr.REISMAN:

RES JUDICATA

Introduction

1.Mr.President, Membersof the Court. It is an honour toaddress this distinguished Court

on behalf ofthe State ofBahrainon the legalconsequencesof the 1939arbitration,just described

to you byMr.Paulsson.

2. SirElihu introduced ourcase by explaining that,despitethe enormouslycomplexpicture

paintedby our leamed adversaries,much of the case is actuallyquite simple. And 1can add that

one of the simplestof the issues is that oftheovereigntyover the Hawars, for that matter was

resolved 61years ago, by a valid and binding arbitration, in favour of Bahrain, which is

resjudicata.

3. TheCourtmay havebeen surprisedtoday to leam frommy colleague,Mr. Paulsson,that

there was an arbitration,with a procedure designedin consultationwith lawyers in the British

Foreign Office andwith a written award, based upon a detailed memorandum offact and law.

Surprisedbecause Qatar'scounsel filledyour folders and the screenbehind me with memoranda

and documentsfiom people who did not conduct the procedure, fiom which they developed

increasingly implausible conjectures about possible conspiracies. People whoseviews are

agreeable toQatarweregiven breathtakingpromotions, like the British bureaucrt ho SirIantold

us wrotea memorandumin 1964cnticizingthe 1939Award andwho in the very next paragraph

emergedas no less than the Foreign office'. But Qatar scarcelyreferred to theprocedures and

seemed particularly allergic to mentioning the two central documents: the award and the

memorandumof factandlawonwhichit wasbased.

4. Imaginea losingpartyattackingajudgment ofthis greatCourt,by referringonlyto notes

or e-mails exchangedbetween judges during the proceedings and deliberations, second and

third-hand accounts of conversations at lunches and teas during the oral argument, intemal

memoranda of officiais of govemments about their potential interests in the case, further

'speechofSirIanCR 2000îpï48,paras.8-9.speculations about whatthose interests might have been,even a memorandumby a subsequent

staff member of theCourt, who had not been involvedin the case, confidingto his filesthat he

personally thoughtthe case had been wrongly decided; and imagine this memorandum being

presented as the true contemporaryview of the Courtas a whole. Al1this without mentionor

discussionofthe judgrnentor theintemalmemorandaof fact andlaw onwhichit was based.

5. This is hardly a juridical method. It is the method of the journalist in search of an

"exposé" who ignores the official record, the documentsof the case, the legal memoranda,the

evidence,but looks at anythingelse for what Sir Ian calls "thetrue recordM2o,r "the unpleasant

reality"as Qatarsaidin surelyunintended ironywhenit submittedthe 82forgeddocuments.

6. There was an arbitration. A simple arbitration tobe sure, given thatneither ruler was

greatlyfamiliarwithinternational procedure.Butan arbitrationnonetheless,withal1therequisites.

With an award,which is now in your folders. With a detailed memorandumof fact and law on

which it was based, whichyou will see showsan adrnirablysound grasp ofthe internationallaw

principlesof territorial sovereignty, it gives a compleovewiew of the procedure andshows a

scnipulousconcem for the factsand the evidence submitted - including,even then, the problem

of doubthl evidence submitted by Qatar. The memorandum is also now in your folders.

Internationalarbitrationrequires,as weal1know,the consent ofthe parties: and indeedtherewas

writtenconsentto this specificprocedureby the Ruler ofQatar; alsonowinyourfolders.

7. Yet Qatar contendsthat the 1939decision"cannotbe equatedto an arbitral awardand

that, whether or not it is to be so treated, it wouldin anyevent be invalidatedby reasonof the

seriousproceduraldefects to which Qatarhas drawnattentionw3.In argumentlast week, counsel

wentevenfurther,callingthe award"amiscaniageofjusticeu4andasking,not for a review, butan

appeal on the merits. So letus be clear: Qataris not merelyasking for review,for even ifthe

arbitrationis, as1think1canshow, entirelyvalid,Qatarwantsan appeal. Andno ordinaryappeal,

for an appeal wouldconfineitselfto questionsof law. Qatar wants a complete rehearing of al1the

'Ibid p.,a.1.
'~emonal of Qatar, para6..144.

4~~ 200016,p. 39,para.10. factual evidence - in so far as it is available- of the resjudicata of an arbitralaward rendered

61 yearsago.

8. If the essential claimis extravagantly simple,the legal and factual issues on which it

depends are not: and one of themis a thresholdissue whichmay precludeconsiderationof this

entirematter.

1stherejurisdictionto reviewthe Awardof anothertribunal?

9. In three consecutivecases, this Court and its predecessor haveestablished,as a virtual

jurisprudence constante, not to review, invalidate or even confirrn awards taken by other

international tribunals,unlessthere isspeczjic,express, additionalconsentto reopenthe award. In

the socobelge5case, an international tribunalhad foundthat the Greek Govemment had not

performed a contract with a Belgian Company. When Greece didnot comply with the award,

Belgium espoused the claim beforethe Permanent Courton the basis of a bilateral judicial

settlementtreaty,whosejurisdictional clause incorporated Articl3 e6 of the Court'sStatute. What

could be moreencompassingthan "any question of internationallaw" inArticle 36, paragraph2?

And yet the Permanent Courtsaid "sincethe Court has receivedno mandatefiom the Parties in

regard [tothe awards], itcanneither confirmnorannulthemeitherwhollyor in part"6. Consent to

"any questionof international law"didnot include consent to review an arbitral awardthat wasres

judicata.

10.In 1960,the Court facedthe samequestionin the Kingofspain7case,whicharosefiom

a temtorial dispute between Honduras and Nicaraguathathadbeensubmitted tothe solearbitration

of the King of Spainin 1902. The King decidedin favourof Hondurasin 1906,but the process

was markedby procedural problems,not the least of whichwas thevery appointmentof the sole

arbitrator. Nicaragua protested andunsuccessfullysought reviewbythe King. In 1957,rumoursof

petroleumdepositsin part ofthe disputed areaset off clasheswith significant militarycasualties.

The Organizationof AmericanStatesmediatedthe so-called Washington Agreementb ,y whichthe

matterwassubmitted totheInternational Court.

-- - - -
'sociétéCommercialede Belgique, Judgmen, 939,P.C.I.J.,Series.AB, No. 78,p. 160.

6~bi d.174..
7
ArbitralAwardMadeby the KingofSpainon23December1906,JudgmentI ,.C.J.Reports1960. 11. The Washington Agreementcould not resolve the parties'fundamental disagreement

about whetherthe 1906Awardshouldbe reopened,so it simplystatedthat eachpartywould argue

the issue "as itdeems pertinent"s. And eachGovernmentthen appendedits own declarationasto

what it thought pertinent. Nicaragua obviously contendetd hat it was now entitled toimpugnthe

Award,while Honduras demurredon that point. TheCourt said that "even if thecomplaintshad

beenput forwardin propertime, the Award would, inthejudgment of the Court, still haveto be

recognizedasvalig9.

12.In 1991,the Courtrevisited this issue onceagain in the case of the Arbitral Awardof

31July 1989". Senegal, as the Court well knows,had prevailed by majority in a maritime

boundary disputewith Guinea-Bissau. Senegalhad acceptedthe jurisdiction ofthe Court in an

earlier declaration. Guinea-Bissau made a broad jurisdictionaldeclarationafter the Award and

applied to the Court to annul the Award, contendingthat such a question easily fit into the

categoriesof Article36,paragraph2, ofthe Statuteandcertainlyinto "anyquestionofinternational

law". The Court respondedin the most carefiilterms, confirming that it would not review the

substantive decisionby thearbitrationtribunal. 1would, with your indulgence,read the Court's

statementhere:

"the Parties wereagreed,"the Court said, "that there was a distinction betweenthe
substantive dispute relatingto maritime delimitation,and the dispute relating tothe
Awardrendered by theArbitrationTribunal,and that only the latter dispute,which

aroseafterthe Senegalesedeclaration,is the subjectofthe presentproceedingsbefore
the Court. Guinea-Bissaualso took the position, which Senegaa lccepted,that these
proceedingswerenotintendedby wayof appeal fromthe Awardor as an application
for revision of it. Thus, both Parties recognize thatno aspect of the substantive

delimitation disputeisinvolved.""

13.JudgeMbaye,whojoined themajority, thoughtthat the Court's assurningjurisdictiona,s

a cour de cassation, over awards of "anothermeans of settlement ofdisputes. .. would be to

embark on an adventure which would have disastrous consequencesnot confined to arbitral

*~~~licatioInstitutiProceedings(Ann.), 1960I.C.PJeadings,ArbitralAwardMadeby theKingof Spain
on23December1906,pp.28-29.
9ArbitralAwardmadeby theKingofSpainon23 December1906,Judgment,I.C.J.Reports 1960p.214.

'~rbitral~wardof31July1989,Judgment,I.C.J.Reports1991,p. 53.
II
I.C.J.Reports1991,p.62.
I2lbidatp. 80. 14. In ourcase, the Court hasfound a general jurisdiction: "by the terms of those [Doha]

agreements,the Parties haveundertaken to submit to the Courtthe whole ofthe disputebetween

them. .."13. Does this includeconsentto reopening an arbitralaward? In Socobelge,an equally

broad submissionwas deemed notto authorizethe Court to reopen an award.In the subsequent

cases,the Court lookedfor a special and express consentto the reopening. There is nonein the

DohaMinutes. In seeking toannulandappealfiomthe 1939Award, Qatar isaskingtheCourt,for

the first time, to assumean appellatejurisdiction over the awardof another tribunal withoutthe

expressconsentof the pariy that won the award. That is a stepwith implicationsthat have,until

now,led the Courtto refuseto take it. Consistent withitsjurisprudence, Bahrain submits thatthe

Courtshouldconfineitself to declaringthe finalityof the 1939Award.ThisAward confirmed,on

the basisof eflectivitésthat Bahrainthen adduced and the completeabsence of anyeffectivités of

Qatar,that al1theHawarsaretheterritoryof Bahrain.

Aretheregroundsforchaiiengingthevalidityofthe Award?

15.Butevenif the Courtwere toreviewthe 1939Award,the Court would, Bahrain subrnits,

findneitherlegalnorfactualbasisto any ofQatar'sclaims. Qatar alleges:

- the absenceofconsentonthe part of Qatarto the arbitration;

- bias on thepartofthe officialsofthe UnitedKingdom,whoactedas arbitrator;

- proceduralviolationsin an alleged"pre-decision"takenin 1936;

- proceduralviolationsinthe conductofthe 1939arbitration;

- the absenceofa reasonedaward; and

- Qatar'scontinuousprotestof thedecisionwhichis, hence, not binding.

16.Letmetake up eachoftheseallegations.

The aiieged absenceof consent

17.The firstis the issue of consent.1do not intendto go deeplyintothe matterofthetreaty

bases fortheBritishdecisionat this time,otherthanto notethattheUnitedKingdomcertainlyread

its treaties withtheregional States as authorizing itto arbitrateal1disputes. In proposalsof the

JudgrnentI,.C.J.Reports1994,p. at 125.torialQuestions betweenQatar and BahrainJurisdic~ionand Admissibility,British Delegation in 1919 for a drafl treaty, it was stated that the various treaties already

concludedwith Rulersofthe Arabianpeninsula"contain, generally, dispositions thaH t is Britannic

Majesty's Governmentshould arbitratein al1disputesbetweenthe said chiefs"14.And indeed,in

later years, British oficials referred to the 1939 decision as a resjudicata, with al1 the legal

consequences ofthat tenn". Butwe need notpursuethis line ofenquirybecause,quite simply,the

Rulerof Qatar,by writtencommunication,explicitlyauthorizedthe British Government todecide

the issue ofsovereigntyover the Hawars. In a letterof 10May 1938,the Rulerstated his claimto

the Hawars,protestedBahrain'sactivitythereandaskedfora decision. At its conclusion,he said

"1deemit necessary toreportthe matterto you at the first instance andprotest
against the interferencesand actions taken by the Bahrain Govemment at Hawar,
whichis a dependencyof Qatar. 1trustthat youwillgivethis your fullattentionand
do what is necessaryin the matterso as to avoid anytrouble which may cause the
breach of peace. 1preferredto inform,as it is necessaryfor me to do, andhope that
you will let me know of your decisionas it is necessaryto take prompt action and

preventthe aggressorswho venturedto take these actions withoutmy knowledge. 1
am quiteconfidentthat you will,inorderto keep thepeaceandtranquillity,do what is
necessaryin thematter."I6

18. Mr. President,Membersof the Court,that was not all. On 27May 1938,the Ruler of

Qatar,when informed ofthe claimsand evidencesubmitted byBahrain,respondedwith his own

purportedevidence,which1will examinebriefly later. Heprefacedthe presentationby saying"1

am alsothankfulto His Majesty'sGovernmentwho will,as yousaid,decidethe matterin the light

of truthandjustice"". Afterpresentinghisversionof the events,the Ruler concludedthe letterby

saying "1trust that HisMajesty['s]Govemmentwill administerjustice and equityand that will do

so inthe presentcircumstances ..." Al1theselettersareinyourfolders.

19.In oral argument,SirIan saidthat"atmost"thiswas an agreementto "investigate"18.But

the Ruler said "HisMajesty'sGovernmentwill decidethematter in the lightof truth andjustice".

That, says SirIan, is still not good enough,becausethe Rulernever used theword arbitration. If

the Ruleronlyconsentedto a political decision - andhe certainly consented tosomething - then

I4~oreiOfficeMemorandum dated1920,Replyof QataAnn. 111.38,atp. 223.

ISseeLetterfromthePolitical A, ahrainto thePoliticalResident,Bahrain,31December1946,Memonalof
Qatar,Ann.111.249.
'6~emorialof Bahra, nn.256,atp. 1095.

"~emorialofBahrain, nn.260,atp. 1102.
"CR2000/7,p.47,para.6.noneof thearbitralstandards apply,as 1willshowlater. 1submitthat the consentto adecisionby

"truthandjustice", withtheprocedurethat followedand in whichthe Rulerfullyparticipated, was

arbitration. Inthe KingofSpain,this Courtsaid

"No question was atany time raised at any time in the arbitral proceeding

beforethe King withregardeitherto the validity ofhis designationor hisjurisdiction
as such. Beforehim,theParties followedtheprocedurethathadbeenagreeduponfor
submittingtheirrespective case^."'^

Substitutethenameof Qatarfor Nicaragua andQatar'sclaim that it did notconsentevaporates.

20. ProfessorSalmonand Sir Ian impliedan innovativetheory of consent: consent,not to

arbitration, butto the award that was rendered. In other words, that Qatar consented to the

arbitrationis irrelevant. As Qatarhas not consentedto the award, it is not bound by it.Qatar's

allegationthat it did not consent to this arbitrationin 1938 nor participate in the procedureis

simplywithoutfoundation.

The allegedbiasoftheUnitedKingdom

21. 1turn now to the allegations of bias. Withthe withdrawalof the forged documents,

many ofwhich purportedto showa British plot, one would have expected this issue to disappear

fromthe case. To fil1the vacuum, Qatar hasspunnew,evenmore convoluted conspiracytheories

whichSirElihuand Mr. Paulssonhaveshownto be groundless. The problemhere isnot only that

the conspiracytheoriesare soimplausible,but that theyraisea fundamentaljurisdictional question.

22. Qatar'sMemorialtries to implicate Britaindirectly in this complex conspiracyno less

than 12times. Five Britishofficiais,actingin the line of duty,were explicitlynamedas members

of the conspiracy. "[Tlherewere clear instances of bias,"StatesQatar, "bothby Britain generally

and by Weightman [the PoliticalAgent] inparticular,in favour of Bahrain,"from which Qatar

concludes that"the procedure followedby the Britishwas so defective thatthe resultingdecision

canonlybeconsidereda nul~ity"*~.

23. AfterBahrain,in its Counter-Memorial,drew to the Court's attention the jurisdictional

implications ofQatar'sinsinuations against Britain,Qatar changedits tune. In its Reply, Qatar's

refrain went like this. There are just a few exarnples: "These are allegationsdirected against

I9~rbitrl ward ~ade bythe KingofSpainon23Decernb1906,Judgment,I.C.J.Repor1960p. 207.
2%emonalof Qatar,para6.251.narned individuals" ..."" "These allegations are notand never have been allegations directed

againstthe British Governmentas su~h."~'

24.In oralargument,however,Mr.Shankardassand SirIanreturned,withseemingrelish,to

the theoryof "perfidiousAlbion". As they must. A govemmentcan operate only through its

humanagents. If thoseagentsactinthe line ofduty,withintheirauthority,underthe confirmation

ofhigherlevelsofgovemment,as in thepresent case,their actsarethe actsof the government. So

Qatar'sallegationofbiasmeansthebiasoftheBritish Government.

25. Entertainingallegationsof bias againstthe UnitedKingdomwill involvethe Court in

making judgments about British conduct and its consequent responsibility. Butthe

UnitedKingdomhas not accepted the Court's jurisdiction fotrhis case; indeed,its declaration

underArticle36 explicitlyexcludeseventsprior to 1946. Inwrittenpleadings, Bahrain invoked

EastTimoras dispositiveof this issue. Qataransweredthat the legalsituationwasinfinitelymore

complexand launched itselfinto a discussion ofcases whichthisCourtknowsbetterthan anyone:

Monetary~old~,~icara~ua'~ and au ru^^.

-26. Bahrain fully endorses the Court'sjurisprudencein these cases. They show a broad

consistency, though thereare, as in theapplicationof everyrule,adaptationsto deal with special

featuresin particularcases. In general,the Courtseems preparedto exercisejurisdictionover a

dispute or a particularclaim in a disputewhen the interestsof a third State are marginallyor

peripherally involveda,slongasthatthirdState isnotthe actualorunavoidabletargetof the suitor

theissueor thelawfulness of itsbehaviouris notcentralto thesubject-matterofaparticularissue

at bar. If one ofthese conditions isfulfilled, the Courtmay selectivelyrejectjurisdiction for a

particular claimandnotforthe entirecase,unlessthe otherclaimsdependuponand are detennined

bytheclaimwhichisprecluded.

21~eplyofQatar, ara.4.295.

22~eplyofQatar, ara.4.296.
23~onetarvGoldRemovedfromRomein1943,I.C.J.Reports1954,p. 19.

24~ilitaryParamilitaryActivities in and against Nicaragua (Na. United States of America),1.C.J
Reports1984,p. 392.
"certain PhosphateLandsinNauru(Nauruv. Australia),I.C.J.Reports1992,p. 240. 27. Qatar's argumentwithrespect tothe invalidityof the arbitralawardfor biasmust,by its

nature,put into issue thelawfulnessof the United Kingdom's conduct withou that State's consent.

In East ~imo?~,the Court stressedthat, were it to take jurisdiction, "Indonesia'srights and

obligations would thus constitutethe very subject-matterof such a judgmentmade inthe absence

of that State'sconsentH2'.As thatconcemwouldcertainlyapplyto Qatar's allegation of bias,East

Timor controls, for the allegation necessarilyimplicates a State not subject to the Court's

jurisdictionin this case. Thereasoningin Naurureinforcesthis,for Qatar's claimsmakejudgment

about the lawfulness of British action a "prerequisite for decision". So there may be an

insrnountable jurisdictional obstacleto hearingthe allegationof bias.

28. 1do not intendto takeup the substanceof the fancifùlallegationsof bias, but 1would

commentbrieflyon the implicationsof the manyBritishmemorandathat Qatar's counseh lavetried

to weave into a web of conspiracy. When a govemment was selectedas an arbitrator in the

nineteenthand early part of the twentieth centuries,and, even more, when that govemmenthad

treaty responsibilitieswith respect to the litigants who selected it, the dynarnicsof deliberation

were usually quite distinct from the deliberations of modem tribunals as the pleadings and

documents inKingof Spaincaseshow. Officialsof the govemment,at different levels, depending

upon the interna1 rules of that govemment, participated in various ways in the aggregate

deliberative process. They correspondedby memorandum, as is the custom of govemment

officiais. Preciselybecausetheyhad a treatyauthorityover the subject ofarbitration,there were

earlier communicationsbetweenthem and their predecessorsover different aspectsof the issue.

Some of those communicationsperhaps indicated ameasureofjudgment. Anyonewho selects a

govemmentto serve as arbitratorappreciatesthe circumstances under whicha govermnentcanies

out collectivefunctions, andmust be deemed to have acceptedthis factor in return for the not

inconsiderableadvantagesof having a knowledgeableand authoritativearbitratorto resolve the

dispute, especiallywhenthe selectedgovemment commandsenoughpowerandrespectto increase

the likelihoodof compliancewith its award and, thus, ensurethe fmalityof the resolution of the

dispute.

26~astTimor(Portugalv.Australia)Judgment,1C.J. Reports 1995,p. 90.
271bid,tp34. 29. But thereis more. No one whoperforms ajudicial or arbitralfunctionis a tabularasa.

We al1 have opinions. The question is whether, as professionals, we suspend them in the

performance of an arbitral assignrnent. We submit that the documents of the procedure, the

memorandum andthe award arethe authoritativepicture of this arbitration. Do they show a bias

warrantingsettingasidethisaward?

Wasthere a procedural violationin the UnitedKingdom's exercise
of responsibilityin 1936?

30. 1tum to Qatar's allegation that the "provisional deciso"f 1936wastaken withoutits

participation,withoutreasons, andso on, and hence shouldbe annulled,because, as an alleged

arbitration in 1936 - it failed tomeetcertainrules of naturaljustice, one ofwhich was Qatar's

entitlementtoparticipatein thatdecision. Therewas no arbitrationin 1936. Therewerenoparties.

Consider the actual scenario, stripped of the ever-more feverishspeculations about conspiracy.

Given itstreatyresponsibilitiesforthe foreignaffairs ofBahrain,the UnitedKingdomwasobliged

to respond to requests for clarificatifrom oilcompanies engaged in commercial negotiations

with Bahrain as to whether Bahrainhad sovereignty over the Hawars. So it looked at and

confirmed theobvious: no onebut Bahrainwas involvedin the Hawarsand it could demonstrate

sufficienteffectivités.Nothingnew in this,andMr. Volterrawillexplainnextweek,on numerous

occasions in the preceding decades, Britainhad affirmed Bahrain'stitle to the awards, even to

foreign govemments. Two years later, when Qatar set its mind on claiming the Hawars and

approached His Majesty'sGovernment,HisMajesty'sGovernmentdid not Saythat the matterhad

been decidedby an arbitrationin 1936and was accordinglyresjudicata. Quite the contrary.

Faced now with a claim for the Hawars from another Ruler, His Majesty'sGovernment acted

consistently with previous correspondence tothe effect that the 1936 decision had only been

provisionalandestablishedanarbitral procedure.Thiswasthe only arbitration. Qatarrequestedit,

consentedto it,participatedfullyin it andlostit. It was onlythis decisionin 1939,that the United

Kingdomlatersaidwasresjudicata.

31. Qatar tries to transform the routine and, indeed, inescapable responsibility of any

protectingPower in1936intoa violationof arbitral procedurebecause, asQatar alleges,Britain

did not consult Qatarin this matter. Therewas no arbitrationin 1936. Whenthe position takenwas challenged in 1938, Britain then established an arbitralprocedure. Consider the absurd

implicationsof Qatar'scontention about theevents in 1936. 1severy international actor,be it a

State or the United Nationsin a peace-keepingoperation, functioningunder a conventionalor

customary authority,obligedto arrangeadversarial proceduresfor everyroutine,not to speakof

provisionaladministrativedecision,evenwhenit is not clear thatthe matteris adversarial? There

is nosuchthingasthe 1936"provisional"arbitration.

Were there proceduralviolationsinthe conduct ofthe 1939proceedings?

32. At various places in its witten and oral submissions,Qatar has taken the earlier

documents,thenecessary communications oftheprotectingPowerwithrespect to the discharge of

its responsibilitiesderthe treatiesthatestablishedits role, andsuggestedthat theyshowthat the

United Kingdom,as arbitrator,had imposedthe burden of proof on Qatar. Mr. Paulssonhasjust

reviewed this aspectof the 1939awardandit is quite clear thatthereis absolutelyno substanceto

it. Each side operatedunder the principleof actori incumbitprobatio, each party is obliged to

proveitscase,andthis is,asthe recordshows,theway of thearbitrationprocedure.

33. Qatar hasalso arguedthat therewasno oral hearingand no opportunity to examineor

cross-examine witnessesas to mattersof fact. But thereis norequirementthat an arbitration,in

orderto be validand fair, haveoral hearings, northat live witnessesbe produced. Sometribunals,

like the OECDAdministrative Tribunalandthe NATO Appeals Board, conduct hearings.Many

tribunals,someof whichwere formerlysubjectto the review ofthe IntemationalCourt, allowfor

oral argumentor the productionof witnessesonly in very rare circumstances.The WorldBank

Administrative Tribunal,which has decided 225 cases, and its members have included

distinguishedformer Judges of this Court,has held hearingsin only two cases. Are 223 to be

annulled for that reason? The IL0 AdministrativeTribunal holds oral hearingsonly "very

exceptionally"- the last time at the initiativeof the Tribunalitself. TheIMF Administrative

Tribunal holds oralhearings only if the Tribunal considers that they "are necessary for the

dispositionof thecase". (RuleXII1(1) ofthatTribunal'sRulesof Procedure.)Whatis importantis

equalityof opportunity,informingthetribunaland basicfaimess. 34. Thegeneralnotion ofarbitrationbya thirdauthority selectedby the partieswas partof

the pre-Islamicregionalpoliticalculture andhas deeproots in Islam itself. Butthe idiosyncratic

proceduresof public internationalarbitrationwere not yetpart ofthe regionallegal culture nor

familiarto theRulersof Qataror Bahrain. It mightwell havebeen unfairto haveimposedthem.

The criticalquestionis whetherthe procedurethatthe UnitedKingdomdevelopedin the course of

the 1939arbitrationwas fair to both parties, providing"a level playing field". And,indeed,the

procedurewas fair, simple tobe sure,but entirelyappropriateto the culturalcontext. Fromthe

documentsthat remain fiom the 1939 procedure,it is clear that ifeither Qatar or Bahrain had

wantedto producewitnessesor to adduceotherevidence, each hadthe opportunity. TheRulerof

Qatar wascertainly satisfiedwith theprocedure. Hewrotetothe Political Agenton30March1939

"that1haveexplainedmy commentsand remarks to Your Excellency as fullyas is requiredby the

circumstancesof this casew2*.

Was the Awardsupportedby reasons?

35. Letme turn to Qatar's attemptto impeachthe 1939awardon the groundsthat it was,as

Qatar says,"unsupportedbyreasons". Thisassertionis simply factually incorrect. In retrospect, it

is clear that the process of reachingthe award is comprisedof two documents, bothin Qatar's

annexes. The firstwas theeight-page,detailedreview of the evidence by Sir HughWeightmanto

the Political Resident,of2April 1939,which,inthe nature ofbureaucracies,had to be approved

at higherlevels; the secondisthe shortercommunicationtotherespective Rulersfiom thePolitical

Residenton 11July 1939,which is plainlybaseduponand implements Weightman'smemorandum

of law and fact,in no way departingfiom it. The secondsimply informsthe recipients ofthe

award andis, as 1will show,quiteconsistentwithawards ofthetimerenderedby govemments. If

you wish to understand the1939 Award, andthat it is based on reasons, youmust look at both

documents.

36. We know fiom the memorandum of22Apnl 1939that the process involved a most

detailedassessmentof the positionsof the partiesalong with an appraisal ftheirrelativestrengths

and weaknesses.Thoseeight single-space pages demonstratbeeyondperadventurethat theprocess

28~emoriaol fBahrai, nn.279,Vol.5,p1160.involved a very careful examination of theevidence and of reasons and amply fulfilledthe b

requirementfor a reasoneddecisionin arbitrationof the time and, indeed,in modeminternational

arbitration. TheCourt willsurelystudythis document,so 1will simplydirectits attention tothe

final long sectionin which SirHughWeightman sumrnarizeshis conclusions, relatesthem to the

evidenceand makeshisrecommendationZ3 g03.

37.Nowthesereasonswerenottransmittedto theRulers atthetime,which was not unusual

in govemment-conductedarbitrationsofthe period,but one can simplynot Saythat therewere no

reasonssupportingthisdecision.

38.Theelaborationandtransmittalofreasonsmustbeputinthe contextof a special genreof

intemational arbitration thatflourished in the nineteenth and the beginning of the twentieth

centuries, when it wasnot uncommon to select headsof State andgovernmentto serve as sole

arbitrators. When two governments selectead s their arbitratora foreign governmentor its head,

they generally did not expectthat elaborate juridical reasons woulbe deliveredwith the award.

The boundary case between Bolivia and Peru in 1909 produced an Award, renderedby the

Presidentof theArgentine Republic, of one-halfa page3'.TheAwardof Victor-EmmanuelIII, the

Kingof Italy, in theGuianaboundarycasewastwo and one-half pageslong3'. TheAward inthe

Barotselendboundary casewas alsotwo and one-half pageslong33.The Cordilleracase between

Argentinaand Chilewhich was decidedby EdwardVII, wasone and one-half pageslong;" the

reportof the tribunal heappointedwas al1of five pages long. When examined togetheirs , it not

clear that heads of State or govemmentwere selected, as arbitrators, notto provide elaborate

statementswithreasons for the awardb , utfor theiruthorityto finallyresolvean issue and toraise

the costsof challenging theaward? It appearsthat it was simply notexpectedthat the elaborate

juridicalreasonsfoundin arbitrationsconductedmanifestlybyjurists wouldbe issuedby a headof

Stateora govemmentwhenhe or sheorit satas solearbitrator. Bythat standard, the 1939Award

29~emonalofBahrainA, nn.281,1166-1167.
30fiid.,atpp. 1171-1172.

3'~oundalyCaseBetweenBoliviaandPeru(Boliviav. Peru)11UNRZA433(1909).
"The GuianaBoundaryCase(Brazilv.GreatBritain)11 WRIAA 11(1904).

33~eBarotselandBoundaryCase(Great Britan.Portugal)11UNRIAA59 (1905).
34TheCordilleraofthe AndesBoundalyCase(Argentv. Chile)9 UNRIA 29 (1902).far exceededwhatone might haveexpected and wouldhave fulfilledthe reasons requirement,by

anycontemporarystandard.

Doesprotestaffectaresjudicaira?

39.1turnto the matterofQatar'sso-calledprotestsofthe 1939Award - by my count,three

timesbetween1939and 1965,including a periodof 17years ofsilence- andthe corollaryclaim

of non-acquiescence. Inits pleadings,Qataruses the wordprotestlike a mantra,as if the word has

somemagicalpower such thatmerelyintoningit againandagaincanundo the binding legal effect

of otherwise lawfil judgments and awards. 1s there something incongrnous in the notion of

protestinga resjudicata? Ordinarilywe speakof a protestof eventslike anotherState'sunilateral

military seinire of temtory. Through the unique legal institutionof protest, internationallaw

enablesa weakerStatetoresist the transformation of delictumintojus, ofdelict into law. Butwhat

does it meanto protest an internationalresjudicata of a procedureto which the protestingpar@

had consented? Can "protest" underminethe res judicata effect of a judgment or award in

internationallaw or, for thatmatter,in any system of law?No one likes to lose and many losers

protest. Convictedcriminalsprotesttheir innocence. Doesthat affectthejudgmentagainstthem?

Parties that lose in civiluits protest the judgment. Does that affect the binding effect of the

judgment? Statesthat have not likeddecisionsof this greatCourtprotestthem. Doesthat protest

affectthe validityofthesejudgments?

40. And wholly aside fiom the questionof protest of an international judgmentor award,

what is the effect,as amatterof international law, of aprotestthat was not based on valid legal

objections of lack of consent or procedural violation? When we hear that the Ruler of Qatar

protested the award, it means he said he did not like it, it wasunjust, unfair and he would not

recognize it. Thenagain,whatelsecouldhe Say? He was notand is not protestingthe awardas

such,but internationallaw itself, whichsays that titlederivesfromeffective occupationconsistent

with the ecologicalpossibilitiesand not proximityalone. The Ruler of Qatar'sprotestwas really

"but it'ssoclose".

41. 1respectfullysubmitthat the contentionthat Qatarprotestedthe 1939Awardis simply

devoidoflegal consequence. Was the1939 Award actuaiiya political, administrativedecision?

42. Qatar has presented the 1939 decision altematively as an arbitral award thatwas

procedurallydefectiveor an administrative decision that was ultra vires. The decisionmust be

somethingso if it is not an arbitral award,it has to be a Britishpolitical decision. Ifit is a British

political decision, the question of whether it met the procedural standardsof international

arbitrationis irrelevant,forpolitical decisionsare not reviewableby such a standard. The critical

questionasto whetherthelawfulnessofapoliticaldecisionis that whetherit wastakenintra vires,

which, in this instance, would mean whetherit was based on authonty that Bahrain andQatar,

respectively, had assignedto the UnitedKingdomto makethe decisionis whatcounts. In Qatar's

writtenpleadings,Qataroften shiftsbetweenthese two characterizations,becauseit wouldliketo

escapethe fmalityof a resjudicata, whilestill applyingthe highproceduralstandards ofmodem

international arbitrationto a politicalcisiontaken more than 60years ago. This permitsit to

recycleits allegationsaboutthe validityofthe awardagainstthe validityof the political decision.

It also pemits it to evadethe relativelysimple and dispositivequestion of whetherthe political

administrativedecisionwas taken intra vires. We believe thatthe 1939decisionwas an arbitral

award, buteven if onewereto assumethealternativehypothesis,it is clearthatwe still encountera

validandbindingdecision.

43. First, it is clearthat the lettersfromthe Ruler ofQatar to the British PoliticalAgent of

10and 27May 1938that 1reviewed earlierare an unequivocalassignmentof authorityto decide

the territorialsovereigntyof the Hawars. Howcan the questionof authority even beraisedwith

theselettersin therecord? Even ifthoselettersdidnot exist,the aggregateof formalizedandmore

informa1bilateral instrumentsand unilateraldeclarations,which were concludedor enactedover

the periodfollowing1820,constituted,together,the rightsandobligationsof the UnitedKingdom,

on the onehand,and of Bahrain andQatar,respectively,on the other. On 12 September1868,the

Al-ThaniChief signed aunilateralguaranteeregardinghis behaviourand explicitly undertook the

followingobligation.
F
"In the event of a ciifferenceof opinion [with Bahrain] arising as to any

question, whethermoney paymentor other matter, the same is to be referredto the
~esident."~'(Emphasisadded.)

35~emonal ofBahrain, nn12,Vol.2,p. 157. 44. In additionto suchexplicitcomrnitments,theUnitedKingdomacquired impliedpowers.

ConsiderArticle X ofthe Treatyof 1916, in whichthe Sheikh ofQatarstated:

"the High British Govemment,in consideration of these Treaties and Engagements
that 1 have entered into with them, undertaketo protect me and my subjectsand
temtory fiom al1aggressionby sea and to do their utmost to exact reparation foral1
injuries that 1, or my subjects, may sufferwhen proceedingto sea upon ourlawful
occa~ions"~~.

45. Even if one were to acceptSir Ian's contention thatthese treaties did not arnount to a

consentto arbitration,they certainlywerea consentto make a decision. Moreover, given thatthe

United Kingdomowed similar obligations of territorial protection to Bahrain and Qatar, and that

Qatar clairnedtemtory pertaining to Bahrain, the UnitedKingdom had no alternative but to

detenninethe fiontiers it wasobligedto protect,as an inherent part ofits obligation of protection.

46. When interpretingtreaties withclearobligationsbut non-specificpowersfor performing

thoseobligations,theInternational Court of Justice has found implied poweirns so farastheywere

indispensable forthe performanceof the major purposes of the agreement in question. 1 will

mentiononly Certain Expenses,wherethe Courtstatedthat

"when the Organization takes action which warrants the assertion that it was

appropriateforthe fulfillrnentof oneof the statedpurposesof the UnitedNations,the
presurnptionis that suchactionisnot ultra viresthe0rganizationW3'.

47. The Court reached a comparable conclusionin the Namibia decision3',and there are

otherprecedents.

48. The protective responsibilities that the aggregate agreements between the United

Kingdom, on the one hand, and, respectively, Bahrain and Qataro ,n the other, assigned to the

British Govemment could not be discharged if the United Kingdom did not know where the

boundaries were. Without the competence to determinea,s a matter of law, to whom territory

claimedby Bahrainand Qatarpertained,the UnitedKingdomwould not havebeenableto fulfilits

obligation to protectthe temtonal domainsof the respective Rulers. Hence, on an analogywith

3%femonalofBahrain,Ann. 84Vol. 3,p. 515.

37~ertainExpenses of the United Nations (Article.17, paragraph2, of the Charter), Advisory Opinion,
I.C.J.Reports 1962,151p.168.
38~egalConsequencesfor States of the ContinuedPresence of SouthAfrica in Namibia (South WestAfrica)
nohvithstandingSecurityCouncilResolution276 (1970),AdvisoryOpinion,I.C.J.Report16p.47.p.Certain Expenses, the actions of theUnited Kingdomin deciding where its responsibilities lay

mustbedeemedto havebeenintra vires.

i
Conclusion

49.Mr. President,distinguishedMembersof theCourt: A review ofthe allegations against

the validityof thatAwardthat Qatarhas raised has demonstratethatnoneofthemiswellfounded.

Moreover,the Couri must address the serious question of whether theDoha agreements that

establishedgeneraljurisdictionfor this case alsomadethe specialexpressionof consent thatthe

PermanentCourt and this Court have requiredbefore the Court would undertaketo reviewthe

validityofan internationalarbitralaward renderedby anothertribunal. As for Qatar's allegations

of British bias, there is, Bahrain submits, most serious doubt as to whether they are even

admissible,as theywouldrequiretheCourttodecideonthe lawfblnessofthe acts of a Statewhich

had not consented tothe presentjurisdiction. Finally,if, as Qatarhas intermittentlyargued, the

1939 decision is not an award but merely a political and administrative decision w,e have

demonstratedthat itmaynotbe testedbythe standardsofarbitration. Underthe standards ofvalid

internationalpoliticaldecisions,the 1939decisionwas intra viresandwaslawful andbindingon

theparties.

50. Mr. President,Members of the Court, arbitrationis a human creation and no human

creationisperfect. Evenif we were toassume that thereweresomedefectsin the 1939procedure,

quod non, and that none of the jurisdictional obstacles1 have mentioned obtained, there are

compellingprudential reasons againstreopeningan awardmade morethan 60 years ago, onthe

basis of which govemments and thirdparties havereliedand investedthemselves. One does not

forget,asajudge of thisgreatCourt, thatpart oftheburdenof decisionis that onesidewillalways

be disappointed. No govenunent likes to lose atemtorial dispute. They and nationalscholars

ofienresearchobsessivelyand publishexposésof suspectedor imaginedimproprietiesin various

arbitrations: VenemelalBritish Guiana; MexicoErance in Clipperton Island, indeed, even

intensely contested judgments of this Court. The list goes on and on. If the possibility of

reopeninglong settledawardsis afhed by the InternationalCourt,howmany Stateswill seekto

reviveancient claims? And why not? What wouldtheyhave to lose? And what effect willthishaveon internationaltemtonal stability? The Romans,fromwhosejuridicalwellinternationallaw

and many national systems have drawn long and deep, established the principle of resjudicata

because, they said, interesse rei publicae ut sit finis litium. "There is a public interest that a

litigationbe broughtto an end."Grisbadarnahas establishedthat a "settledstateof affairs"is not

tobe disturbed. Jellineklongago cornmented onthe normative forceof the factual. Theissueof

the sovereigniyof the Hawars was decidedby a lawful decision more than 60 years ago. The

partiesconsentedtotheprocess. Itsvalidityisunassailable. Itis asjudicata.

1thankyou, Mr. President, MembersoftheCourt,for your attention.

Le PRESIDENT : Je vousremercie, Professeur Reisman. Ceci marqul ee terme de notre

séancede ce matin. La cour seréuniraànouveaupourécouterla suite del'argumentation del'Etat

deBahreïnlemardi 13juin àdixheures. Laséance estlevée.

L'audienceest levéeà 12h 55.