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CR 2000110(traduction)

CR2000110(translation)

Mardi6juin2000

Tuesday6June2000008
The PRESIDENT: Please be seated. The Sitting is open and 1 give the floor to

ProfessorJean-PierreQuéneudecto continue with his presentation.

Mr. QUENEUDEC: Thank you, Mr. President. Mr. President, Members of the Court,

during yesterday aftemoon'ssitting we examined the points of disagreement between Qatar and

Bahrain concerningthe actualconceptof delimitationandthe question of the low-tide elevationsof

Dibal and Jaradh and the islandof Janan. It is now necessary toturn to the third and final part of

this presentationconceming theirrelevanceof certainofBahrain'smaritimeclaims.

III. Theirrelevance ofcertainofBahrain'smaritimeclaims

57. Mr. President, wenowcometo whatis no doubt the most extraordinary ofthe arguments

raised by Bahrain conceming the maritime delimitation tobe effected between itself and the State

of Qatar. Bahrain sees its situation as one of a multi-island State whose vocation is to exercise

sovereignty over the smallest islet, the smallest rock, the smallest reef, shelf ordbank to be

found within the area of delimitation. And in Bahrain's eyes, Qatar is, on the contrary, an

essentially land-bound State- if one can cal1it tha- turning its back on the delimitation zone

and whose statusas a peninsula thustendsto beobscured,or even eradicated.

This point of view propounded by Bahrain relies on the premise that Bahrain has an

intrinsically archipelagic status. From this premise flow, we are told, "rnanyimportant

implications" (Reply of Bahrain, para. 276). In particular, this "archipelagic factor" (Reply of

Bahrain, para. 343) is supposedlyimportantfor determiningany question of sovereigntyover what

Bahrain refers to as "maritime features"[«caractéristiques géographiquesmaritimes»], which,for

the most part, are in reality rocks and low-tide elevations. In its own rnind, owing to its

"archipelagicnature" (Reply of Bahrain, para.354), Bahrain automatically hastitle to these rocks
4
and low-tideelevations. It thereforecomesup with suchperemptorystatementsas that to be found

in, for instance,paragraph 357ofBahrain'sReply, whereit is statedthat: I

"even were some of the maritimefeatures closerto Qatar than to Bahrain,they would
still pertainto Bahrainbased... on the fact that anarchipelagicStateis confrontingan
exclusivelymainland State" (Replyof Bahrain,para. 357).In sum, if my understanding is correct, the simple fact that the delimitation is to be between a

self-proclaimed archipelagic State and a State described as "exclusively mainland" should

inevitably result in a recognitionthat these "maritimefeatures" [«caractéristiquesgéographiques

maritimes»] form an integral part of the territory of the archipelagic State. And, of course, the

entirety of the maritime areas surroundingthem and within which they are included could only be

subjectto the sovereigntyof that State.

58. The fallacious character of such a submissionis so obvious that it neither calls for nor

deservesmuch commentary. 1shall therefore confine myselfto demonstratingthat not only do the

variousfeatures existing in the maritime area concerned, whetherthey be simpleislets or low-tide

elevations, not al1belong to Bahrain, but they are also not significant features and are therefore

irrelevantfor purposes of the delimitation. Likewise,1shali then show that the archipelagicclaim

put forwardbyBahrain hasno real relevancefor the solutionthat the Court hasbeen called upon to

find with regardtothe issue ofdelimitation.

1. The irrelevanceofisletsandshoals

59. Let us fust address the question of what Bahrain refers to as "maritimefeatures"

[«caractéristiquesgéographiques maritimes*]. This expression is perhaps a convenient shorthand

label, but itisully open toandhas moreoverbeenthe subject of cnticism in Qatar'sReply (Reply

of Qatar,para 7.11et seq.). A multitude of islandformations,composedof rock, coral or sand, are

indeedto be foundin the delimitation area.

We have alreadydealt withsome of these features - those which are the most important -

namely: the Hawar Islands andJanan island, locatedin the southemmostpart of the area, and the

low-tideelevationsof Fasht Dibaland Qit'atJaradah,on either side of the line dividing the sectors

ofthe delimitationarea.

60. Apart from these, there are manyislets, rocks and low-tide elevations, al1of which are

located in the southem sectorbetween the coasts of the two States and whose main characteristic,

as we shall see, is that they are of little significancebecause of their srnall size, their location and,

inthe case of the low-tide elevations,heir legalcharacterization. Drivenby a veritablepredilectionforphotographieillustrations,Bahrainhas submittedto the
810

Court as Supplemental Documents 134new photographs, 22 of which are dedicated to these

maritimefeatures. Theseare, however,snapshots - not particularlyclearand withoutany precise

indicationof the conditionsnwhichthey weretaken. Theyfurnishno useful informationand are,

moreover, presentedin a charminglyhaphazard fashion. Al1are deliberately put on the same

footing, in line, it would seem, with the usualpattern followedby Bahrain in these proceedings:

i.e., confusingdifferentthingin such a way as to make islets out of low-tide elevations, not to

mention makingmountainsout ofmolehills.

Let us examinethese twotypesoffeatures.

(Illustration13)

(a) Zslets

61. The islets are in fact very small,uninhabitedislands, or even,in some if not al1cases,

simply rocks that are quite uninhabitable,found either directly off the coast of the island of

Bahrain, or at a distancefrom Bahrainisland barelyexceeding fourto five nautical miles. This

applies in particular to Al Hool, Halat Noon, Sabka Noon, Jazirat Mashtan, YabberRock and,

further north, Umm Jalid, Jaziratash Shaykh above the cape of Ras Hayyan, and another islet

above the capeof RasAbu Jarjur which,incidentally,is notnamedon the maps. Onlythe islet of

Mattera (or Al Mu'tarid)is at a distanceof nearly sevennautical miles fiom the main coast of

Bahrain.

Thesevariousisletsare practicallyal1fringedby coralreefsor sandbanksthat areexposed at

low tide,which can sometimesgivethe false impressionthattheyare significantisland formations.

Indeed, this is the impressionBahrain has tried to create. It has not hesitated in somecases to

exaggerate their depictionon the mapsproduced in its writtenpleadings, in such a manneras to

give the impressionthat these were not"minoraccessoriesof a mainlandtenitory" [«accessoires

mineurs d'un territoire continental»].Bahrain even wentso fax as to state that the islets were

"essentialparts of thegeographicalconfigurationand the political struof the StateofBahrain"

(Counter-MemorialofBahrain,para.544). Wemustbe dreaming!013
It is sufficientto refer to the nauticalchartsof the area, includingthose publishedby Bahrain

(in particular map 2501, scale 1:25,000,Al Manama to UmmJalid; rnap 5005, scale 1:100,000,

Qit'atJaradah to the Gulfof Bahrain), to realize that one is dealing here with tiny fragmentsof

emerged land, next to which the small island of Janan discussed yesterday wouldappear aimost

gigantic. Inreality, theseislets correspond towhatareoften referredto in intemationalcase-lawas

"minorgeographical features"[«accidents géographiquesmineurs»], in other words, to repeat the

words usedin theJudgmentin the Gulfof Maine case:

"the ... type of minor geographicalfeatures which ...should be discounted if it is
desired thata delimitationline should result so far as feasible an equal division of
the areas in which the respective maritime projections of thetwo countries'coasts
overlap". (I.C.JReports 1984,p. 332,para. 210).

62. One must therefore considerthese islets as insignificant factors that should be ignored

when drawing a delimitationline. Therefore,even if one accepts that Bahrain isjustified in using

some of these islets to establish baselines for its temtorial sea, these islets could not, however,

normally be used as basepoints for drawing a delimitation line between Qatar and Bahrain.

Particularly as the ownership of at least one of these islets depends on the Court's decision

conceming sovereignty over the Hawar Islands. Thus, the attribution of the islet of Mattera (or-

Al Mu'tarid)to one State or the otherwill depend on knowing on what side of the delirnitationline

the islet will be located. If the Court recognizes Qatar'ssovereignty over the Hawar Islands, the

islet of Mattera (or AlMu'tarid)willperhapsno doubtbe regarded as belongingto Qatar, sincethe

delirnitationline wouldput it on the Qatariide. Bahraincannot thereforeprejudgeits attribution.

63. When- as is the case here- one is dealing with tiny islets with regard to which the

existence of temtorial title is uncertaintoythe least,it is the drawing of the maritime boundary,

based on a number of otherfactors,that will determinethe attributionof sovereigntyover the islets

in question.

In this connection the Award rendered in the Beagle Channel arbitration in 1977 will be

O recailed. The Arbitral Tribunal had statedthat one of the effects attachedto the drawing of a line

representing the maritime boundary between the parties was to attribute al1the islands and other

formationsto be found on one side of the lineto Argentina andto attributeal1those tbe found on

the other side of the line to Chile (para. 105 of the award). Rejecting the Chilean claim to sovereignty overal1the islands and islets located in the Beagle Channel, the fivejudges of the

Court appointedas arbitratorswerecarefulto stressthat:

"a division of the waters of the Channel along a boundary line must necessarily
entai1...a con-espondingdivisionof the srnallislandslyingin it, dependingonwhich
sideofthe linetheyare situated"(ILM,para. 107,1978,p. 673).

[«le partage des eauxdu canal selon uneligne dedélimitation doit nécessairement

entraînerunpartage correspondand tespetites îlesqui s'ytrouvent, selonquecelles-ci
se situent d'uncôtéoude l'autrede la ligne.^][Translationby theRegistry.]

Therefore,itis not completelyinrelevantforthepurposesof the presentcase to citea passage

from the dispositifof this Award,the text of which was subsequently implicitlyvalidatedby the

1984TreatyofPeace and FriendshipbetweenArgentinaand Chile,in whichthe following wording

is to befound:

"thetitleto al1islands,islets,reefs,banksandshoals,if situatedonthenorthemsideof

the ...line,is vested in theRepublicof Argentina; andif situatedonthe southem,in
the Republic ofChile"(para. 176, 1(iii),ibid.,p. 674).

[«le titre de l'ensembledes îles, îlots, récifs et hauts-fonds, s'ils sont situés du côté
nordde la ligne, appartientà la République argentineet, s'ilssontsitués du côtsud
de la ligneà la Républiquedu Chili.»] [Translationby theRegistry.]

(b) Low-tideelevations

64. What is valid for al1the islets referred to above is valid a fortiori for the low-tide

elevationswhichare also scatteredthroughoutthe southem sectorof the delimitationarea. Thus,

the Thalib (orTighaylib)low-tide elevation,just over four nautical milesoff the coast of Bahrain,

is indisputablylocatedin an area that,in any event,will besubjectto Bahrain'ssovereignty. This

willbe the caseirrespectiveof whether the maritime boundary laiddownby the Court followsthe

1947line inthissectoror whetheritis a medianline betweenthe two maincoasts,that isfollowing

a line which,for instance, theEntredemen Arbitral Tribunal calleda "mainland-coastalmedian,

or equidistanceline" [«une ligne médiane ou ligne d'équidistance établ iepartir des côtesdes

territoires continentaux»in itsAwardof 17December1999(para. 152).

On the otherhand, there is everyreasonto believethat the Fasht BuThur, Qita'ael Ergeand

Qit'atash Shajarahlow-tideelevations, located respectively %, 6 % and less than 5 milesoff the

mainland coast of Qatar, will be located to the east of the delimitation line and thus within a

maritimearea underQatar'ssovereignty. For the reasons put forward during our examination of Fasht Dibal and Qit'atJaradah, the

013 three low-tide elevations of Bu Thur, El Erge and Shajarah cannot be considered as capable of

appropriation themselves. Therefore they cannot, in our view, be used as basepoints for the

determination of the delimitation line. On the contrary, it is the course of that line, based on the

tme coasts of the twoStates, that willhave the effect of confemng title to these low-tide elevations

in the light ofeirlocation inrelationto the delimitation line.

65. The sarneapplies to Fasht AlAzm. Indeed, as we saw yesterday,Fasht al Azmdoesnot

naturallyform a part of SitrahIsland,to whichit was,on the contrary,rtificiallyattachedin 1982.

Therefore,for the purposes ofthe delimitation,it mustbe treatedindependently,in otherwords asa

low-tide elevationoff the Coast. However, whatis called Fasht alAzm, far from consistingof a

singlelow-tideelevation, appearsin actualfact toe made up of a series of consecutive fragments.

Theseare in somecases drying reefs, and in othersdrying sandbanks,as can be seen,for instance,

on the 1993British Adrniralty Chart3790, to which afew minor corrections were made in 1999.

This Adrniralty Chart bears the wording "Dryingreefs and sandbanks" [«Récifset bancsde sable

découvrants»],a labelthat alsoappearsonthe 1987Bahraininauticalchart 5001. The formationin

fact consists ofseveral shoals that dry in pieces or patches, as indicated in the 1987edition of

British nauticalchart 3790- "Sand and coral (dries in patches)" [«bancs de sable et coraux

découvrantpar endroits»]- or Bahraini chart 1502: "Numerous shoals, dries in patches"

[«Nombreuxhauts-fondsdécouvrantp sar endroits»](seeReplyof Qatar,para. 7.17,p. 285).

Given these circurnstances Fasht alAzm can no longer, contrary to what is asserted by

Bahrain, be taken into account for the establishmentof the delimitationline. It is definitelynot a

portion of the temtory of Bahrain. And there is nothing,fiom the legal point of view, to prevent

the drawing of a delimitation line which would have the effect of cutting through this series of

shoals,as did the 1947line andtheBoggs-Kennedyline.

66. In sum, thenumerous isletsand low-tideelevationsthat we havejust examinedappearin

this case to be nothing more than minor geographical features in relation to the general

configurationof the coasts of the two States.hese items are of no significancewhenexaminedin

O1 4 the light of the overallgeographicalsituationprevailingin the delimitationarea. Which is whywe

contendthat theseislets and low-tideelevationscannotthereforebe consideredasrelevant factors. 2. Theirrelevanceofthearchipelagicclaim

67.The archipelagic claimadvancedbyBahrain is likewiseirrelevantfor the purposesofthe

present maritime delimitation. Qatar emphasized this pointin its fust two written pleadings

(Memorial of Qatar, para. 11.43 et seq.; Counter-Memorial of Qatar, para. 6.65 et seq.).

Therefore,1shalllimitmyselfhereto a fewadditional observations.

(a) Firstobservation

68. The fust observationone shouldrnakeconcems the fundamentalcontradictioninherent

in the positionaintainedby Bahrain inthepresentcase.

On the one hand, Bahrain claims sovereignty ovwhatit calls "theZubarah area",thatis a

portion of the Qataripeninsula,that itertsis part of its temtory. Onthe other hand,Bahrainat

the sarnetime maintainsthat it fulfilsal1of the conditions requiredto qualify as an archipelagic

Stateandis thus entitledto establish archipelagicbaselines.

However, thesearetwo claimsthataretotallyirreconcilableandmutuallyexclusive.

Indeed, asis patentlyclearfromworkof theThud UnitedNationsConferenceontheLawof

the Sea, only States whose temtory is entirely and exclusivelycomposed ofislands or partsof

islandscan be granted archipelagicState status. Therefore,if the temtory of a State is not solely

composedof one or moregroups of islandsbut also includesa portion of mainland territory,that

Statecannotclaim archipelagicState status.

69. It is perhapsbecause Bahrainwasaware of this incompatibilitythat it initiallyappeared

to put forward its archipelagicclaim only in the altemative, that is in the event that the Court

should decide not to recognize its claim to Zubarah. However,Bahrain quickly abandonedits

9 1 5 initiai prudenceand did not hesitate to assertthat, even if its claim to Zubarah were accepted, it

shouldstillbe consideredan archipelagic State. The Court willcertainlynot have failedto notice

that in its final writtenpleading, insofar as archipelagicstatusis concemed,Bahrain is no longer

relyingon an "alternativeclaim"[«demandealtemative»] tosubmitits archipelagicpretensions.

In any event, it is clear that Bahraincannotclaimrecognitionof an allegedterritorialtitleto

a mainlandzone, such as Zubarah, whileat the sametime also claimingarchipelagicStatestatus.

This is not only a caseof wanting "tohaveone's cakeandeat it too", but also of wantin"mix

oil withwater". In Qatar's view, this reason alone is sufficient to have the archipelagic claim raised by

Bahrain declaredirrelevantfor the purposesof the presentcase.

(b) Second observation
70. A second observation rnay also be added along the sarne lines, which reinforces the

precedingobservation.

This observation relates to the fact that, in the view ofthkd-party States, Bahrain is not

considered an archipelagic State within the specific meaning attached to this term since the

adoptionof the UnitedNations Conventionon the Law ofthe Sea.

Not only is Bahrainnot includedin the listcompiledby the Secretariatof the United Nations

of the 17States which are in fact currently claiming archipelagic status, but it is not even

considered as one of those States whichcould, under the Conventionon the Law of the Sea, claim

archipelagicState status.

Thus, in the report sent to the President of the United States on 23 September1994 in

support of transmittingthe 1982Conventionto the Senate for it to authorize the accession of the

United States to the Convention, the United States Secretary of State listed the 20 States that,

according to the study completed by his department, could legitimately claim archipelagic State

status (see InternationalLegal Materials, 1995,p. 1409). It is noteworthy that Bahrain was not

included in this list, aithough the list was considered to be a complete inventory of those States

entitledto have archipelagicbaselines and wasin factpublishedin Internationalkgal Materialsin

1995.

In other words, the mere possibility for Bahrain to establish archipelagic baselines has not

been recognized. This possibility was not even envisaged when the Geographer of the United

States StateDepartmentwasengagedin determining,in an objectiveand exhaustivemanner,which

Statescould do soby applyingthe criteriasetforth inthe Conventionon theLawof the Sea.

Thus, this secondconsiderationalsoleadsto the conclusionthat for purposesof themaritime

delimitationthe Courtshould nottakeinto account the archipelagicbaselines claimedbyBahrain. (c) Thirdobservation
71. Moreover,a thirdobservationmaybe madeconcemingspecificallythe impossibilityfor

the Court, within theramework of the present case, to decide in favour of the archipelagic

baselinesaspresentedby Bahrainfor thefust time in its Memorial(Illustration14).

The archipelagic polygon defined by these baselines, which is shown on the screen,

encompassesand includes maritimeareasto thenorth andeast of Bahrain,i.e., maritimeareasthat

are outsidethe areain whichthedelimitationwith Qatar isto takeplace, as rnaybe seenfrommap

No. 12in Bahrain'sMemorial.

However, to establish the maritime delimitation between Qatarand Bahrain, the Court

onlyableto takeinto accountwhatis containedwithinthedelimitationarea proper. Obviously, the

Court hasnojurisdiction in this case withregard to maritimeareas located outside thisInone.

other words,theCourtcertainlycannottakea decisiononthe portionof the archipelagicbaselines

locatedoutsidethedelimitationarea,Le.,essentiallythelinesdrawnbetweenpoints 20 (theydonot

appear very clearly on the map- 1 have made a note of them- 21, 22, 23, 24, 25, 26 and

point 1,as wellas a portion of the line drawnbetween points1and2. Part of this line isnonnally

outsidethedelimitationarea.

72. Does this mean that, as the Courtcannot rule on al1the archipelagicbaselines,it could

O 1 7 merelyrule on the portion of these linesfoundwithin the delimitationarea? That doesnot appear

to bethecase either,forthefollowingreasons.

The assessmentof the validityof archipelagicbaselinesunderinternationallaw canbe made

only by applyingthe des contained in Par IV of the 1982Conventionon the Law of the Sea,

whichis the sectiondealingwitharchipelagic States.Theproblemis, however,that as Qatarisnot

apartyto this Convention, the provisionsinquestion arenotopposableto it as treaty-basedrules.

Therefore,the Courtshouldfirst decidewhethertheseprovisionscanbe consideredas now

fonning part of custornaryinternationallaw, whichis the only law applicablein thepresentcase.

However, the genuinely custornary nature of several of the provisions of Part IV of the

1982Conventionis doubtfulto Saythe least.

73.But if it is assumedthat these provisionscan be recognized asking custornaryandthat

the Court is therefore able to rely on them, it could not, however, on the validity of thearchipelagicbaselines included withinthe delimitationarea withoutmaking a global evaluationof

the archipelagicpolygon definedby al1the baselines.

It would in fact, applying criteria based on those contained in Article47 of the

1982Convention, have to verify two things. First, it would have to evaluate the required ratio

between the area of the water contained within the archipelagic polygon and the area of the

emerged lands under Bahrainisovereignty. Second,it wouldalso have to assesswhetherornot the

drawing of the archipelagic baselines departs to any appreciable extent from the general

configuration of the Bahrain archipelago. The Court would, however, only be able to do this by

examining aspectsthat are outsidethe delimitationarea itself, which would lead it to go beyondthe

geographical fiamework of this case. Furthermore, this would risk calling into question the

delimitation thathasalreadybeenmade witha third State.

Under these circumstances, the Court does not appear to be in a position to rule on the

archipelagicbaselines thatBahrainwishesto establish.

74. It follows,Mr. President, from al1 these observations that the archipelagic claim put

forward by Bahrain should not be taken into consideration in the present case, as it is totally

lacking in relevance. As a result,there is no need to examine whether or not Bahrain is entitledto

draw archipelagicbaselines.

Conclusion

Mr.President,Membersofthe Court,

75.These, together withthe points now tobe set forthby Professor Salmon,are the essential

elements of Qatar'sposition with regardto theclaims and argumentsput forward by Bahrain with

regard to maritime delimitation. Itisaking some time to present them, and 1shouldlike to thank

the Courtfor its patience andattentiveness.

MI-. President, 1 should be very grateful if you would now call upon my colleague,

ProfessorSalmon.

The PRESIDENT: Thankyou,Professor,1shallnow call uponProfessor Salmon.

Mr. SALMON: Mr.President,Membersofthe Court, My colleague ProfessorQuéneudec has justdealt withcertain circumstancesthat have been

put forward by Bahrain as relevant circumstances, includingits alleged archipelagic status, and

urgedthe Court notto takethis lastelementintoaccount.

1. At this point my task is todraw the Court's attention,frrst, to two other facts that are

presentedby Bahrain as relevant circumstances:the pearlfisheries on theone hand and Bahrain's

econornicdevelopment plans on the other. Qatar considersthat these shouldnot be adrnittedas

relevantcircumstances. Second, 1willshow why,in Qatar'sview,the lineof23Decernber1947is,

in contrast,a significantrelevantfactor.

Let us fust reviewthe circumstancesto bedisregarded.

A.The circumstancesto bedisregarded

1. The pearlfisheriesargument

2.(a) Amongsuchcircumstances,letusfrrstlook atthepearlfisheries argument.

As was shown yesterday,for the purposes of maritimedelimitation, Bahrainrelies upon a

highlyquestionableprovisional equidistance line.

(Showsketch"Bahrainpearl fishingclaims 1961and 1996"[«Réclamation deBahreïn
concernantlespêcheries deperles en1961et 1996~1
judges'folders,No. 15).

Moreover, both in the claimthat waspresentedon 16August 1961'and in that found in the

Replyof 1996~,Bahrainpurportsto shiftthe line eastwardsonthe basis of the past activitiesof its

pearl fishermen3. The rnapnow on the screen(No. 15in thejudges' folders) shows ingreen the

line claimedin 1961,and inred the even morecuriousline claimedtoday.

1would remind the Court incidentally thatthe Qataridocuments referredto the 1961line as

the 1964line for a long time,simplybecausethe onlytextwehad inour archiveswasthat supplied

to usbythe Britishin 1964. It was notuntil30 yearslater,when we wereable to open the British

archives,that we discovered thatthedocument datednot from 1964,butindeedfrom 1961,but that b

theBritishhad takengoodcare not to transmitit to us until 1964.This explainswhythe Court will

-

'~eedetailinMemorialof Qatar,para10.34-10.40.
'~eplyof Bahrain,par391-399.

3See details in Memorial of Qatar, paras.10.37,andsApp.4. See also, Counter-Mernorialof Qatar,
paras..38-6.49. sometimesfind a reference to 1964in Qatar's pleadings,but inreality, in histoncal fact, it was in

1961that Bahrain madethis claim.

3. Qatar has already disposed of these surprising claims in its Memorial (and in App. 4 to

that pleading). Leaving aside the unreliabilityof the names and locations of thebanks claimed4,

Qatarnotes thefollowingelements,eachof which alone sufficesto destroyBahrain'sthesis:

(1) The pearl fisheries stretched throughout the entire southem region of the Gulf, and in

particularfromSaudi Arabiato theEmirates.

(Show sketchmap "Commonpearl fishinggrounds"
[«Pêcheried seperlescommunes»],
judges'folders,No. 16)

The sketchmap now on the screen(No. 16in thejudges'folders) shows a smallerarea, as it

covers only the areaof the southern watersoftheGulf,between50" and 51" 50" E, approximately.

From timeimmemorial,thesefisherieswereconsideredas cornmonto al1the tribes alongthe

shoresof the Gulf.

This positionwas consistentlyupheld bythe British authoritiesas early as the lastcentury5.

The legal situation was aclcnowledgedby Sir Hurnphrey Waldock in a legal opinion given to

BAPCO, for which he acted as adviser at the time of the negotiations on delimitation between

Bahrain and Saudi Arabia6, and by Mr.Al-Baharna, who is almost an honorary counsel to the

Qatari delegation and who was the previous Agent of Bahrain in the present case, and who said

exactly the same thing in his oft-cited work, TheLegal Statusof the Arabian Guy states7. The

jurisdiction of eachflag State wasthereforepurelypersona1andnot temtorial.

(2) The Qatans - like other nationalsof the Gulf Stat-s also fished for pearls on a significant

scaie8.

(3) In stating that the seabed delimitationit had operated did not affect traditional fishing rights,

the Britishdecisionof 23 December 1947implicitlyconfmed that thejurisdiction relating to

4~eeCounter-MernorioafiQatar,paras.6.42-6.48.
S~ounter-~emoriaolf Qatar, A.,paras.19-20,Vol.5,pp.155-158.

extractsinCounter-Memorioif Qatar,App.2,Vol.5,pp.155-158.ialof Qatar,App.4, Vol. 15,para.12. Seealso

'MemonalofQatar,App.4, Vol.15,para.14,pp.118-119.
8~emorialofQatar,App.4, Vol. 15,para.15,p. 119. the fisherieswas not an inremjurisdictionin the civillawsenseof ownershipbut a personal

one.

(4) The proclamationsby Bahrain and Qatar in June 1949concemingtheir sovereignty overthe
O 2 1

seabed similarlyreservedthetraditionalpearlingrightsonthe highseasg.

(5) The persona1jurisdiction that theRuler ofBahrainwasableto exercise overBahrainiboats or

citizensdidnot give rise to any right of sovereigntyover thefishing grounds; this is why

Bahrain'asrgumentsbasedon suchexercisein relation tothe Bu Saafabankswererejectedby

Saudi~rabia".

(Showsketchmap "Mapattachedto Belgrave'sletterdated21March 1951togetherwiththe
transposition ofthe lineofthe Agreement of22February1958"[«Cartejointe à la lettrede
Belgraveendate du21 mars1951,ainsiquela transpositionde la lignede l'accord du
22février1958x1,judges'folders,No. 17)

The rnapnow on the screen (No. 17 in the judges'folders) shows the banks that were

claimedby Bahrain in a letterwrittenby Belgraveon 21March 1951,in particularal1these banks

visible in this semi-trianglein the northern are1have supenmposed on them theline adopted

underthe agreementof 22 February 1958between thetwo States. This sketchrnapmakesit plain

that this agreementgave Bahrain no sovereigntyover the said fishing grounds.As will be seen

later,it was anotherargument, thatrelatingto BAPCO'soil operationsin the area, thatwasto lead

to SaudiArabiasharingthe oil revenuesfromthe zone concerned, azone thatwas to be subjectto

the exclusive sovereigntyof SaudiArabia.

(6) The discussions conceming sedentary fisheries during the framing of the Geneva and the

MontegoBay Conventionsdefinitivelyrejected anyideathat suchfisheriescouldbelongto a

Stateotherthanthe coastal State. The latter hasexclusiverightsoverthe continentalshelfand

itsresourcesll.

(Show againsketchmap "Commonpearlfishinggrounds"
[«Pêcheries deperles communes»],judges'folders,No. 16)

'~ernorialofQatar,App.4,Vol. 15, para.21, p. 121.

'%emorial of Qatar, App.4, Vol. 15, para.25, p. 123 and Counter-Mlf Qatar,App.2, Vol.5,
paras19-20pp.155-158.
"~ounter-~emorialof Qat, pp.4, Vol. 15, para.24, p. 122. (7) Incidentally,it will benoted that theseactivitiestook placein the northem area of the southem

area, if you take my meaning: i.e., the northem area before reachingthe Gulf medianline12,

and there was no pearling activity in what is sometimes called the Gulf of Bahrain, in

particular there had never been any pearlingactivity at ~awar'~;contrary to certain Bahraini

allegations,the Dowasircame to Hawarat the endof theirpearl-fshing season14.

(8) The pearl fisheries ceased to exist over half a century ago. They were already describedas

defunct by Young in an article publishedin 1973in NewDirections in the Law of the sea15.

Bahrain'sstatementthat "pearlingis nowsubstantiallyreduced"16[«la diminution substantielle

de l'activitéperlière»]must be brought to the Court's attentionas one of the rare occasions

where Bahrainhas exercisedeuphemismand restraintin its writtenpleadings.

(9) Lastly, Bahrain'sclaim that its coastguardnow patrols aroundthe pearl banks to the north of

~atar"- supposing this were proven- has, without prejudice to its temporal

inadmissibility,no particular legal significance,as we had the honourto state before theCourt

in ourearlierstatement.

Bahrain hasrefrained from replyingto al1this, or has given onlyunsatisfactoryresponses.

4. The last fonn of argument that has been put forward by Bahrain is to claim that it has

always exercisedan imperium,as opposed to a dominium,over the pearling banks, by legislative,

administrative andjudicial means. Moreover,it asserts, boldly and candidly,that this fact is not

challengedby ~atar'*.

The word "imperium"is a Latin term used in doctrine to denote the power exercised by a

State over persons wherever theymight be located. Thus, ProfessorsCornbacauand Sur,in their

well-lmownwork, make a distinction between space as an area where imperiumis exercisedover

people and space as an area where dominiumis exercised over temtory. In the case of imperium,

12~eplyofBahrain,para.54.

1SeeBahrain'saffidavitsatReplyof Bahrain, Anns.15,17-19and26-31.

141bid.,nns .2 and23.
lS~emonalof Qatar, Ann.IV.372,Vol. 13,p.297.
16
Replyof Bahrain,para.391.
1Replyof Bahrain,para.392 andAnn.24,Vol.2,p. 148.

1Replyof Bahrain, para.394. this is apersona1power, exercised overthepersons locatedwithina temtory (be it national,foreign

or even international)lg. And in the case of dominium, poweris exercised by the State overits

temtory asan object.

This terminology is relatively rare. Most jurists rnake a distinction between temtorial

jurisdiction andpersonaljdsdiction.

But this Roman garb changes nothing: whether one speaks of imperium or of personal

jurisdiction overBahraini subjects or over vessels flying the Bahraini flag, it does not in itself

confer anynght of a temtorial natureor of special management of thefishing grounds. This was

stated in no uncertain termsin 1903by Lieutenant-Colonel Kemball,the Political Residentin the

Persian Gulf,to a French businessmanby the nameof JosephDumas,who wanted to takepart in

pearl divingand who mentionedthepossibilityof obtainingtheagreementof the Rulerof Bahrain.

TheResident repliedas follows:

"1explainedto Monsieur Dumasthatthepeul bankswerethecommonproperty
of the CoastArabs and that the Chief of Bahrein had no nght to give any one
permissionto takepartin the divingoperationsW".

This could not be clearer. If by its use of Latin Bahrain purports to argue that this imperium

extendedto Qataricitizensor to vesselsflyingthe Qatariflag, thisclaimisformallydisputedhere.

5. Incidentally,theCourt willhave noted thatBahrain'swrittenpleadings, whichare full of

economicactivitiesfromthe lastcentury,do not dwellon the conductof the Partieswithregardto

oil concessions - an activitythat has assumeda predominantrole in the contemporaryera. If

there is oneeconomicactivity thatmightbe consideredrelevant,it is this. We shallcomebackto

this matterin a moment.

"J.CornbacauandS. SurD,roit internationalpuched.,Montchrestie1999,pp.394 and418.
%etterdated26March1903,fromLieutenant-coloneC l.A.Kemball,Politicai Residenitn thePersianGulf,to
L.W.Dane,SecretarytotheGovernmenotfindia,OF7815380 (SupplementaiDocumeo ns atar,No. 3). 0 2 4 2. Bahrain'sdevelopmentplans

(Showmap "Proposed reclamation oftheBahrainarchipelago"[«Projet d'aménagemend te
l'archipelde Bahrein»],Replyof Bahrain,facing page 181)

6. But let us first deal with the secondcircurnstancerelied upon by Bahrain. This concems

the grandiosereclamation projects it envisages, particularlyon Hawar, Fasht al-Azm, FashtDibal

and Qit'atJaradah, but alsoon Nun,Mashtan,Tighayliband Qit'atash shajarah2'.

The sudden unveiling of these futuristic construction worksin Bahrain'sReply is doubtless

aimedat impressingthe Courtwithargumentsof an economicnature. It mustbeemphasisedfrom

theoutset that, were such workscanied out, they would transfom certain low-tide elevationsinto

islandswhichwould thussubstantiallyencroachupon Qatar'sterritorialsea.

7. Qatar considers it unnecessary to dwell upon these projects, for the four following

reasons:

1. As 1 pointed out in my introductory statement, economicprospects as such have no role in

settlingthe issue of delimitation betweenthe Parties. As the Arbitral Tribunalheld inthe case

conceming delimitation of the maritimeboundary between Guinea and Guinea-Bissau,when

facedwiththe parties'developmentplans:

"this Tribunal has not, any more than the InternationalCourt of Justice in the

TunisiaILibyacase (I.C.J. Reports 1982,p. 77-78, para. 107), acquired the conviction
that economic problems constitutepermanent circumstancesto be taken into account
for purposes of delimitation. As the Tribunal can be concemed only with a
contemporaryevaluation, itwould be neitherjust nor equitable to base a delimitation
on the evaluation of data which changes in relation to factors that are sometimes
uncertain"".

2. Some of the low-tide elevations that Bahrain is planning to transfom are under Qatar's

sovereignty,as statedyesterday andagainthis moming,by the Counsel whoprecededme.

3. They are futuristic constructions contemplatedfor a time beyond any conceivable critical or

relevant date. Assuch,theargumentis inadmissible.

02 5 4. Moreover, artificial construction works thrust into such a narrow sea would profoundly

transformthe geographical configuration,and would undennine any reasonable application of

the legalulesof maritimedelimitation.

21~eemapin ReplyofBahrain,facingpage181.
U~wardof 14Febniary1985,ILM,Vol. 25,p. atp302. In conclusion to this fust part, Qatar considers that the pearl fisheries and Bahrain's

developmentprojects mustbe rejectedas relevantcircurnstances.

B. A circumstanceto betakenintoaccount: thelineof23December 1947

8. Any examination of the relevant circumstances which might have an impact upon the

determination of an equitable line of demarcation cannot fail to take into account the British

decisionof 23 December 1947.

(Show sketchmap "TheBritish Decisionof 23 December 1947"[«Lu décisionbritanniquedu
23 décembre1947~1j,udges'folders,No. 18).

The Court willhave noticed that toal1intents and purposesBahrain hasremained silentwith

regard to this decision, except when it is to its advantage (for Dibal and Qit'at ~aradah)~~.

Otherwise,this document by the British govemment is rebaptized "letterby a third stateWza 4nd is

loftilyignored by Bahrain.

Similarly, Bahrain says not one word about the impact that the adoption of this line may

have had uponoil operationsin the region.

Qatar has shown in its written pleadings that this document - which was adoptedby the

British Govemment in order to avoid any conflict between the oil interests on either side in the

waters separating Bahrain from the Qatar peninsula- is however a relevantcircumstanceto be

taken into considerationfor themaritimedelimitation.

9. The British, who were influenceciby the Truman Proclamation and the concept of

equitable principles,drew a dividing line based on the three following criteria: the use of only

those coasts which were opposite each other, the selection of a few easily identifiable turning

points, and the drawingof a simplifiedline.

It will be recalled that the line was formed of three segments and that there were two

exceptions. The first segment began at pointM in the south (shownby the arrow), at the entrance

of the Bay of DawhatSalwah (at latitude25'30'N) and wentup to pointQ.

TheBrst exceptionoccurred at this point. The line deviatedto the east, in order to enclose

inside apolygon theHawar Islands,whichhadbeen attributedto Bahrainin 1939.

-

23~eplyofBahrainpara.355.
24ReplyofBahrain,ara.274. The second segment extended from point L to point NSLB (standing for the North Sitrah

Light Buoy). The third segmentwas a straightlinerunning NNEup topointBLV (standingfor the

Bahrain Light Vessel). The line therefore ended at latitude 26"33' 33"N, while the Gulf median

line withIranlies a littlebeyond 27"N.

The second exception layin the fact thatthe decisionattributed sovereignrights overthe two

shoals of Fasht ad Dibal and Qit'atJaradah to Bahrain, while stressing that they were not islands

and that these low-tide elevations, which were enclaved in the area attributed to Qatar, had no

territorialwaters.

10.As Qatar has shown in its writtenpleadings,it does not rely on this line either as a final

and bindingBritishdecision,or for the wholeof its length.

It is not reliedupon asfinal and bindingBritishdecisionfor twofundamentalreasons.

First, the various authorities that expressed views on this point on behalf of the British

Government held differing opinions with regard to the nature of the decision. At times they

considered it a final decision, and at other times a provisional measurerequiring confirmation.

This is apparentfrom the variousdeclarationsmade after 1947which havebeen collectedandcited

in Qatar'swrittenpleadingsbeforethe Court.

Second, the two interested parties themselves expressedtheir opposition to the decision,

either (as Qatardid) because of theexceptionsthat it contained,or becauseof the course of the line

provided for therein (as did Bahrain, which wantedto regard it solely as confirming or enshnning

its allegedrights over the Hawar Islands or the Dibal and Jaradah shoals). His Bntannic Majesty

ultimatelyyieldedto the facts by agreeingto the matterking submittedto arbitrationbetweentwo

sheikhdoms. Consequently,this decisionwasnot legally opposableto thetwo States concemed.

11. Nor is the line relied upon by Qatar throughout ifs length, not only because Qatar

protested againstthe two exceptionsbut alsobecause if the southempart of the line wereretained,

it wouldencroachuponthe rights of SaudiArabiain the northofthe bay of Salwah. Finally,as has

just been noted, since the 1947 line tenninates at BLV, it leaves the course of the line in the

northem part ofthe areato be delirnited undetermined.

Qatar therefore considersthat the only part of the line that is relevantand should serveas a

referenceis the section runningfrompoint L to point BLV. (Showsketchmap"The 1947lineas a relevantfactorfor thedelimitationof the
singlemaritimeboundary" [«La ligne 1947en tant quefacteur pertinentpour
la délimitationdelafrontière maritimeunique»],judges'folders,No. 19)

In view of various circumstances that will be dealt with next by my colleague

ProfessorQuéneudec,this part of the 1947line is relied upon notthe starting point for a legal

argument,but as its end-result,as a reasonablesolution.

The 1947lineas areferenceline for petroleumactivities

12.It cannot be emphasized enoughthat the 1947linefulfilledthepurposethat was intended

by His Majesty'sGovemment: it was taken into account, significantly,as a reference line for the

activitiesof the oil companies. To demonstrate this pointresa detailedtechnicalexplanation,

for which we must beg the Court's indulgenceand patience.ecause of the doubts that Bahrain

had raised in this regard in its Reply and recent entirely unfoundedprotests, Qatarfelt obliged to

produce some of the relevant documentationin the Supplemental Documentsthat it filed with the

CourtinMarch.

For clarity of presentation, a distinction shouldbe made between the period prior to the

adoptionof the 1947line andtheperiodfollowingthe adoptionof that line.

13. Before the decision of 23 December 1947, before it was adopted by His Majesty's

Government, BAPCOhad madesurveysof the islands, islets and rocks and of low-tideelevations.

The picture displayed (whichis to found in thejudges'folders as item No. 20) depictsthe 1947

line- although it did notexist at the time-but simply to show the possible locations of

BAPCO'sactivities in relation to that line. So BAPCO had made surveys of the islets and rocks
O *
and of low-tide elevations such as Fasht Jarirn,Khor Fasht, bualso Fasht Dibal and Qit'at

~aradah". Sothis is before 1947.

(Show sketchmap "BAPCOactivities"[«Activités de la BAPCO»],
judges'folders,No. 20)

In 1940,BAPCO drilledstructureholes [«forages structurels»] atFasht Dibal, Qit'atJaradah

and Fasht~dham~~.This wason the othersideof the future 1947line.

2S~emorialof Qatar,Anns.N.54 and IV.55,Vol.9. pp269.3and

26~emorialof Qatar,Ann.IV.65,Vol.9,p.319and Memorialo,nn.N.176, Vol. 10,p.379. When Prior, the British Political Residentin the Persian Gulf, heard aboutthis drilling on

Fasht Dibal andQit'atJaradah,he protested stronglyin the followingterms:

"1cannot explain whyBelgrave took it upon himself to sanction drillingwhich
he must have realised was beyond his powersand trenchingon internationalpolitics,
and 1 have sent him an officialreprirnandthrough ~lban"~~.(Alban was the Politicai
Agent in Bahrain.)

In any event, from June 1942 onwards- we were in the middle of a war- the British

authorities ordered BAPCO to cease its activities. This prohibition was not lifted until

September 1945. In May 1946BAPCO sought British authorizationto perform structural drilling

atvariouslocationsto the south-eastof Fasht Dibal and Qit'atJaradah and on Hawarand the island

of Sawad ~anubi~ah~.

(Showsketchmap "BAPCOrequests 1946 [«Dimandesde laBAPCOen1946~1,
judges' folders,No. 21)

Authorizationwas refused, excepton the main Hawar ~sland~~T. here was a further refusa1

in 1947withregardto drillingon FashtDibal and Qit'at~aradah~'.

Al1this shows that BAPCO'sunilateral actions on the low-tide elevations between Bahrain

and Qatar were neither authorized nor approved by His Majesty'sGovemment before the 1947

decision.

However, in March 1947 PCL, or PDQ, which held the concession over Qatar'stemtory,
029

received authorization to make a topographical air survey over Fasht Dibal and Qit'at Jaradah,

providedthatno surfaceoperationswere involved31.

14. Wenow come to the secondpart, that isafter the decisionof 23 December1947. The

situationsubsequentlydevelopedasfollows.

The first offshore concession extending beyond the temtorial sea was granted by Qatar on

5 August 1949to aconsortiumformedby CentraiMining and Investment Corporation(CMIC)and

SuperiorOil Co. The concessionincluded,accordingto Article3thereof:

n~emorial of Qatar,Ann.IV.69,Vol. 9,p.335.

28~emonalof Qatar,Ann.IV.77,Vol. 9,p.373.
29~emonalof Qatar,Anns.IV.58,IV.71andIV.85, Vol.9, pp.283,345 and405. SeealsoMemonalof Qatar,
Ann.IV.76,Vol.9,p.367andthe attacmap.

%lemonalof Qatar,AM. IV.103,Vol.10,p. 13.
31~upplementalocumentsof Qatar,Nos. 18and19. "al1of the sea-bed and subsoil underlying the waters of the Persian Gulf which fa11
within thejurisdiction and control of the Ruler of Qatar and which lie beyond the

temtorial waters contiguous to themainlandand islandsof ~atar"~~.

No further details were given of the limits of the concession, andno map was drawn up on this

occasion. At anyrate we have not foundanytrace of one.

15.With a view to avoiding conflicts betweenthe oil companiesoperatingfor Qatar andfor

Bahrain within the limits of the 1947 line and in the still undelimited area in the north, an

interministerial meeting, held in London on 21 November 1949,instituted a policy of safe areas

[«zonesde sécurité»t]hat was to be complied withby comganiesoperating in the watersbetween

the two sheil~hdoms~~ F.rom thatmomenton,the oil companies'operationswere subjectto twofold

control by His Majesty's Government.First, any concession grantedby the two States concerned

had to be approvedin principle by His Majesty's Governmentby virtue of the agreements referred

to earlier entered into with each sheikhdom(third condition of the Agreement of 13March 1892

between Bahrain and the United ~in~dom~~ and Article IV of the Treaty of 3 November 1916

between Qatar and the United Kngdom3'). Second-and this is what was new - the

concessionaires themselves had to enter into "political"agreements[«accords «politiques»]with

His Majesty's Government which imposed upon them safe areas where drilling or exploitation

could be undertakenonly withthe authorizationof that Government.

And the fust Companyto be affected by this new policy was CMICfor Qatar. In a letter

from the Foreign Officeto CMICdated 8 September 1950,theUnitedKingdomrecognizedthatthe

westernlimits of thecompany'sconcession coincidedwiththe seabed boundary:

(Show sketchmap "Superior Oil Companylimits of safearea(accordingtoHMGletterof
8 September 1950)" [«Limitesde lazonede sécurité de la Superior Oil Company (selonlalettredu

gouvernementde saMajestédu8 Septembre 1950)»], judges'folders,No. 22)

"(a)The western boundary is the line announced in October 1947 to the Shaikhs of
Bahrainand ~atar"~~

32~ounter-~emoriolf Qata, nn.IV.4,Vol.4,p. 22.

33~emorialofQatar,Ann.N.152, Vol10p.263.
34~emorialof Qatar,Ann.11., ol5,p. 121.

35~emorialofQatar,Ann.11.47,Vol.5,p. 181.
36~ettefromFurlonge(ForeignOffitoMuir Warden(CMIC)of 8 September1950(SupplementalDocuments
of Qatar,No.26).Thus it was indeedthe 1947linewhich,forthe British,providedthe limit of theconcession. And it

was stated that "[tlhis line [did] not go beyond a certain pointat its northern extremity and the

question of extending it to a point approximately in the centre of the Persian Gulf [was] under

examination". It shouldbe bome in mind that the delimitations with Iran andAbu Dhabi - which

are indicated here with a dotted line- had not yet been fixed . They were not to be fixed until

1969.

16. Consequently,CMIC was authorized to drill - note that 1said drill- only in certain

specified areas of its concession (to identify them more easily, they are shown in green on the

sketch map displayedon the screen and on item No. 22 in the judges' folders), thus leaving safe

areas (zones de tranquillité)to the south, east and west. On the other hand, by letters of

8November 1950~'and 6 January19513',that is shortly afterwards,the UnitedKingdomagreedto

allow CMIC to make surveys in the area shown in orange on Document No. 23 in the judges'

folders,on conditionthat itperformedno operationson theground.

(Show sketchmap "Authorization givento SuperiorOil Companyto surveyin 1950-1951"
[c(Autorisationdonnée à laSuperior OilCompanyd'erffechse dres levésen1950-1951»],
judges'folders,No. 23)

Finally, the ForeignOffice spontaneouslyconsidered informingCMICandBAPCOthat they

could undertakeseismicsurveys(excludingdrilling)oneitherside of the extensionof the 1947line

towards 27" North, 51"20'~ast~'. This area, with regard to Qatar,is shown in pink on the same

DocumentNo. 23.

The officialdecisionwas transmittedon 21 July 1951to the PoliticalResidentin the Persian

Gulf:

"we propose to inform the Company that we have no objection to their carrying out

survey operationsin the area to theEast of the linejoining the Bahrain light-ship(the
Northem point of the 1947 line) and the point 27" North, 51°20 min East, provided
they understandthat this is a tentativeline givenfor the present purpose of oil survey
only and withoutprejudice to thefinal delimitationof the sea-bedboundary. The two
companiescouldat the sametimebe similarlyinformedua.

37~emorialof Qatar,Ann.IV.179, Vol.10,p. 393;andSupplemel ocumentsofQatar,No. 27.

38~eplyofQatar,Ann.IV.5,Vol.4, p.21.
39~tterof 13December fromFry(ForeignOffice)toHay(PRPG)(FO371182086);Replyof Qatar,Ann.IV.4,
p. 17.

"Letterof21July1951fromtheForeignOffice tothe PRPG, O371191319(Supplemental ocumentsof Qatar,
No. 20). Thesesurveysweremade forQatarin 1952~'.

(Showsketchmap"Marineseismicsurveyfor InternationalMarineOil Co.,Ltd."
[«Levéssismiquesmaritimes pourInternationalManne OilCo., Ltd.HI,

judges'folders,No.24)

17. After CMIChad abandoned its concession,the concessionwas grantedby the Ruler of

Qatar to Shell OverseasExploration CompanyLimited (SOEC)on 29 November1952. According

to Article 1of the concessionagreement, theconcessionarea covered:

"(i) al1the seabed and subsoil underlyingthe spring tide of the waters of the
Persian Gulf whichfall withinthejurisdiction of the Sheikhand whichlie

beyondtemtorial waters ...and

(ii) any andal1islands,islets, shoalsandba... abovespringtideof the waters
withintheareadefinedin (i)ab~ve"~~.

Inapplicationof its 1947decision,theUnitedKingdomconsideredthat the westernlimitof

the concession coincidedwiththe 1947~ine~~I.n turn, the Companywas authorizedto undertake

surveysto the eastof an extension ofthat lineup to the point which1mentionedjust now,narnely

latitude27"N, longitude51'20'E~~t,he limitsthusbeingthe sameas fortheearlierconcession.

032 (Showsketchmap "Extensionofthe 1947line"[«Prolongationde la lignede 1947~1,
judges'folders,No.25)

It is importantto note thatthis extensionof the NSLB-BLVline was notstraight. It turned

slightlytowards the east. If it hadbeen straight,it wouldhaveterminatedat 51" 15'30"E. As will

be seenlater,thisdistinctionisnotwithout interest.

At al1 events, rnaps prepared later of the Shell Company of Qatar offshore concession

illustratethe situationas ithadbeendecidedby theBritish~overnment~'.

(Show"TheShellCompanyofQataroffshoreconcession" [«La concessionenmerdela Shell
Companyof Qatar~],judges'folders,No. 26)

41~eportby RobertRay, 13 June1952 (MarineseismicsurvMC0or [nLevéssismiques maritimespour
IMCOw],No.24969)andthe attachmap(Supplemental ocumentsof Qatar,No. 21).

42~upplementalocumentsof Qa, o.29.
43~eplyof Qatar,Ann.iV.8,Vol.4, p. 33.

44~bid.
45~eplyof Qatar,Ann.N.12, Vol.4, p. 65. 18. With BAPCO, the United Kingdom took the same position of adherence to the

1947 ~ine~~w, hich BAPCO accepted, recognizing it "as being the effective boundary of their

operationsin practice"47even thoughthe Rulerof Bahrainhadnotyet acceptedit.

(Show sketchmap "Seismicisochronemap,Qatar marine area, BataafseInternationalePetroleum
Maatschappij,N.V." [«Carte sismiquede courbes isochrones,zonemaritimedeQatar,Bataafse
Internationale Petroleum Maatschappij,N.V. »], judges'folders,No. 27)

In this area,during the firstquarter of 1953,the Shell Companyof Qatar undertook research

on sedimentdistribution, and in 1953-1955 and 1959 seismic sur~e~s~~T . he image displayedon

the screen shows the isochrone map overprinted with the 1947 line, so that you can see quite

clearly that the geographical operationsmore or less adhered to the 1947 line. But Shell'sdrilling

programmewasthus limited tothenorth andeast of the peninsula49.

19. In 1963 Shell abandoned part of its concession, including the areato the Westof the

Qatar peninsula. Those areas were in turn granted to ContinentalOil Company of Qatar, withthe

(Show sketch map "Concessionareasgrantedto Continentai Oil Companyof Qatar, 1963"
[«Concessionsoctroyées àla ContinentalOil CompanyofQatar,1963»],
judges'folders, No. 28)

After BAPCO in turn had abandoned its offshore concession in the north (along the

1947line) andat Hawar, these areaswereacquiredon 20 September 1965by a new concessionaire,

the ContinentalOilCompanyofBahrain.

As a result, through two separate subsidiaries, the same Company found itself the

concessionaireoneach side of the 1947line. This exceptionalsituation offeredthe possibilityof a

compromisesolution. With yourpermission, Mr. President,1willleavethis for the continuation.

46~eplyofQatar, nn.IV.7,Vol.4, p.29.
47~etteof 7 December1953,Replyof Qatar,Ann.IV.lO,Vol.4, p.47. Drillingon Fashtal Azmwasto the
Bahrainisideofthe1947line.

"~ee "Interpretatinf the marineseismic survey offshoreBahrain-Qary Seismic Review Section",
11December1959,byBataafseInternationaleetroleum Maatschappi, ,TheHague, ReportP-30827andattached
isochronemap(SupplementaiocumentsofQatar, o.22).
"~e~l~ofQatarA, nn.IV.12,Vol.4, 65.

%eply ofQatarA, nn.IV.13,Vol.4, p.67,inpartir.73. ThePRESIDENT: Thankyou,ProfessorSalmon. The Courtwilladjouni fora quarterof an

hour.

TheCourtadjoumedfrom 11.30a.m.to 11.50a.m.

The PRESIDENT: Pleasebeseated. The Sittingis resumedand 1give theflooronce more

to ProfessorSalmon.

Mr. SALMON: Mr. President, Membersof the Court,as 1was saying, a quiteexceptional

situationobtained,in thatone andthe sameCompany,ContinentalOilCompany,wasonbothsides

of the line. Compromisesolutionswerethereforea possibility.

20.To give it full credit,Bahraintookthe initiative here. The initiativewas madein

a letter of 20February 1966from thePolitical Agent in Bahrain and confirrnedat a meeting on

12Apnl 1966 between the Political Resident,Luce, and the Ruler of Bahrain and his adviser

Sayyid Mahmoud. The Political Resident wrotein this connection that his interlocutorshad

indicated again that they were ready to accept the 1947line as the operating limit, without

prejudiceto an eventual settlementof the maritime boundary,and againmade the pointthat if any

oil structure were foundwhich straddled thatline operationsshoulde suspendeduntil the two

Govemments agreedon howthemattershouldbe dealtwith.

21. Things went a step further when, on the occasion of his visit to Qatar from 8 to

12Apnl 1967, the Ruler of Bahrain proposedto the Ruler of Qatar a solution to the seabed

delimitationproblem. According toinformation from Parsons, the PoliticalAgent inBahrain,

Bahrain'sproposalwas thefollowing,as shownon thescreen. This documentis not inyourfolders

but is reproduced as No. 37 of Qatar's Supplemental Documents.It is nonetheless of capital

importance.

(Showthefollowingtext)

"On Sayed Mahmoud'sinstructions,Yusuf outlined to me the details of the
Bahrainiproposals onthe seabed. Heconfmed thatthe bounciaryhad ken drawnon
the basis of amedian line ignoringal1islands, reefs and shoals. It ran roughly as
follows from South to North; - from the 1947line at E 50' 38'30" N 25'33'to
E 50"45'N 25" 46' 30" toE 50' 49' N26" to E 50" 50'N 26" 10'to E 50" 53'30"
N 26' 27' 30" and thence NNE dong the 1947line. They had also proposed that,

instead ofDibaYJaradehand Ekhchejera being two separate enclaves they should either be incorporatedby two separateeastward bulges or by linking them al1in one
eastwardbulge: in exchangeBahrain was preparedto concede an equivalent amount
of seabedin thenorthern zone,i.e.northof the pointwherethe 1947lineturns NNE at
N 26' 27'30" "".

The Court will note that it was confmed that the boundary proposed by Bahrain had been drawn

on the basis of a median line ignoringal1islands, reefs and shoals. Someoneelse who rnighthave

been included in our team! There followed a series of CO-ordinateswhich 1will spare the Court,

but youhave themin the texts,and in anycase 1shallrevertto them in detail.

(Showsketchmap "Bahrain'sproposa1of 1967withindicationof CO-ordinates"
[«Proposition de Bahreïnde 1967avec indicationdes coordonnées»],
judges'folders,No. 29)

This descriptionrequiressomeexplanation. First, the median line that was proposed did not

actually begin at a point situatedon the 1947line, butat a point slightlyfurther east. Second, the

last point identifiedby CO-ordinate, hichfalls more or less on the 1947line, is situatedbetween

NSLB and BLV. However, thisis not the point wherethe 1947line "turns"or "bends",since that

point isat NSLB. Third

(Showsketchmap "Bahrain'sproposa1of April 1967withindicationof prolongation"
[«Proposition de Bahreïnd'avril1967avecindicationduprolongement»],
judges'folders,No. 29bis),

0 3 5 since the proposed line continues "NNE along the 1947 line", it should end at around

27"N-51" 15'30" E. That can be said to be the baseline which the Bahrainis took as their

starting-point.

(Showsketch map "Bahrain'sproposa1ofApnl 1967withindicationof three areas"
[«Proposition de Bahreïnd'avril1967avec indicationde trois zones»],
judges'folders,No. 30)

Bahrain then proposed to exchange two areas. The first (called «PremièreZones ["First

Area"]) was to include the easternend of Fasht alm,Qit'atash Shajarah,Fasht Dibal and Qit'at

Jaradah and would be for Bahrain. The second (calied «Deuxième Zone» ["SecondArea"]), of an

equivalent surfacearea, was toe givenin compensationto Qatar to the Westof the final segment

of the extended 1947 line. One would thus arrive at a point situated at approximately

27" 2'18"N-51" 9'35"E.

S1~upplementalocumentsofQatar,No.37. Finaily, it should notbe forgottenthat in rnakingthis proposa1Bahrain did not giveup the

HawarArea[«zonedeHawar~]. Inconclusion,theproposedlinewasasfollows:

(Showsketch rnap"Bahrain'sproposa1of April 1967"[«Propositionde Bahreïn
d'avril1967>,]j,udges'folders,No. 31)

The important thingto noteat this stageof the negotiationsis that Bahrain'sproposa1forthe

maritime delimitationtook as its starting-point a median line from mainland to mainland,

disregarding islands, reefs and shoals. The proposals for gains to the eastof that line, in the

central portion,werebalancedby an equivalentarea to the Westof the line in thenorthernpart of

itscourse.

(Showsketch map "Comparisonofthe 1961and 1967lines"[«Comparaisondes lignes
de 1961et de 19674, judges'folders,No. 32)

It will alsobe notedthat Bahrain abandonedits extravagantintentionsof 1961-intentions,

moreover of whichQatarhad becomeawareonly in1964,as 1saida momentago. The Courtwill

note how striking the difference is. However,the negotiationscould not continueduring that

meeting at Doha because Qatar was unable to accept a solution that perpetuated Bahrain's

occupationofHawar.

22. On 5 September 1967 Qatar made a counter-proposa152 which left in abeyance the

contradiction conceming the problemof delimitation betweensovereigntiesandwas limited to an

agreementontheexploitationofpetroleumresourcesby Continental Oil.

(Showsketch map"Qatar's counter-proposao 1fSeptember1967"[«Contre-propositionde Qatar
de septembre1967~1j,udges'folders,No. 33)

Qatarproposedthat an agreementshould be concludedalongthe followinglines:

(1) BothpartieswouldreservetheirrightsregardingthequestionofHawarand the 1947line(thus

circurnventingthe contradictions);

(2) The 1947 line was taken as a starting-pointfor the division of petroleum operations. Both

parties asked Continental Oil to give priorityto drilling operations in three areas: the fust

similarto the oneproposedby Bahraininthe areaof the shoals,but leaving Fashtad Dibalto

Qatar, thesecondhavingan equaisurfacearea and beingin the shapeof an upturned triangle,

withits apex atNSLB,andthethirdbeingtheareaof theHawarIslands.

52~upplementaocument osQatarNo.41. (3) The idea was that in theeventoil was discoveredin thoseareas, the two parties woulddivide

it equallybetween them.

This proposa1remainedunanswereduntil the Ruler of Qatar paid anofficial visit to Bahrain

on 11May 1969. Here a documentdated 6May 1969is of thegreatestimportances3.

This again was a Bahraini proposa1for a final settlement of the maritime delimitations

between Qatar and Bahrain. In it the Governmentstated that it was anxious-1 repeat for the

benefit of the Court, because the tenninology of the passage is extremely important-the

Governmentstated that it wasanxious"tocorneto an agreement ...on an equitable division, based

onestablishedprinciplesofinternationallaw,ofthe seaareaslyingbetweenBahrainandQatar.

In Bahrain'seyes, its sovereignty overHawar was notcailed into questionby the proposaiit

put forward,and although the Bahrain Govemmenthad never accepted the line proposed in 1947

O 3 7 by the British Governrnent,it agreedto take that line"as a useful starti...in fmdingajust

solution...".And the document continued:

(Textto beshownon screen)

"(3) On the basis of the foregoing itis proposed thatBahrain and Qatar should

agree in principle to exchangetwo equal areas of sea lying on either side of this line
andthenproceed to definethem. Thesetwo areasare: AreaA lying onthe southeast
of the 1947line where it passes between Bahrainand Qatar and Area B lying on the
north Westside of the 1947line where it reaches the Gulf median line in the area of
the fust point (point A)ofthe six points recently agreed between Iran and Qatar."

Without seeing Areas A andB on a map, it is difficultto visualize precisely the proposalin

question. It is therefore withthemost hesitationand numerousquestion marksthat 1ventureto

displayon the screen the sketchmapwhichis No. 34in thejudges'folders.

(Showsketch map "Bahrain'sproposa1ofMay 1969 ???"[«Proposition deBahreïnde
mai 1969???> jd]ges'folders,No. 34)

The way in which Bahrain contemplatedthe extension of the 1947 line northwards is

unclear: the text of the agreementwith Iran, whichatthat time had not yet been fin-lbeing

signed in Doha only on 20 September1969~~a ,nd thus some months later- did not contain a

starting-point(point), but simplya point 2, and from this point2 a directionalbearing, and thus

no point 1or point A. We cannot thereforebe surewhere Bahrainwished this line to end. It may

53~upplementalocumentsof Qat, o.39.

54~.~.~.~Vol. 787,p. 172. SeeMemol fQata, nn.N.260, Vol. 12,p. 81.be assumed, however, that the more recent proposa1by Bahrain was something similar to its

proposa1of April 1967,except that the point of depart-re and wecan go by the Bahrainitext-

was the 1947line ratherthan a median line, and that, in the morerecent case, the turning-pointof

the line in the norths NSLB.

24. The line must therefore have been something of the sort, but 1cannot possibly commit

anyone to accepting this sketch map. Inany event Qatar was unable to accept this arrangement

becauseit did not resolvethe issue of sovereigntyoverHawar,andconsequentlytheseproposalsby

Bahrain - positive, itmustbe said,as theywer- werenonethelessunacceptableto Qatar.

Moreover, it isquite clear that the various proposals of April and September 1967 and of

May 1969,which Qatarproduces becausethey are inthe publicdomain, are not of course binding

upon eitherof the Parties. They are interestingybecause theydemonstratethe more reasonable

position thatwas taken by Bahrain when it was not embarking upon the simplistic procedural

strategyofaskingfor toomuch in thehopethat theCourtwill,asone says, "splitthedifference".

25.But let usretum to the main elementsof the concessionhistoryon the twosides.

In 1968mire Oil Middle East, actingon behalf of Qatar, drilledan exploratory well beyond

Jananislandand this was abandoned5'.

(Show sketchmap "Janaan 1drilledby Pure OilMiddleEast Inc. (Qatar), 1968"
[«Forage dupuits Janaan 1par la Pure OilMiddl Eeast Inc. (Qatar), 1968~1,
judges'folders,No. 35)

26.In1968ContinentalOil abandonedbothits Qatariandits Bahrainiconcessions.

Sincethen developmentshavebeenas follows:

27. (a) onBahrain'sside:

On 15December 1970, Supenor Oil (Bahrain) acquired two offshore blocks, one in the

northem area and the other in the area of EIawars6. Here we shall concem ourselves with the

northem area.

(Showsketchmap "1970SuperiorOil (Bahrain)safe area"[«Zonede sécurité de 1970de la
Superior Oil(Bahrain)~],judges'folders,No. 36)

55~upplementalocumentsof Qat, o.28.
5%eplyof Qatar,Ann.IV.19,Vol.4, p.99. It willbe noted thatthe limitsof the northemarea coincidewith the 1947line from NSLBto

BLV, then continueup to the median line with Iran. Althoughthe illustrativemaps publishedby

Petroconsultantsare doubtless imprecise, given their scale, they do indicate, from BLV, the same

direction as the NSLB-BLV segment, which would imply a tripoint at 27O01'30"N,

It is instructiveto notethathis linewasrespectedin practiceby Supenor Oil in regard to the

wellsdrilled at BuAmamain 1972~~ and at Annayawahin 1975".

28. On 20 November 1975Superiorrelinquishedpart of its conces~ion~~.

(Showsketchmap "Partial relinquishmentof concessionarea"

[«Renonciation à unepartie de la concession>>],
judges'folders,No. 37)

The map now displayed (judges' folders, No. 37) is particularly interesting since it

reproduces exactlythe officialmap attachedto the agreementand publishedby Barrow, and shows

the same lines as those 1have just indicated. Thereis nevertheless a slight inclination of the line

eastwards from BLV, which could, according to our calculations, signifj a difference of at most

10secondsfromthetripointwehavejust mentioned.

29. From 1979 onwards various concessionaires succeededeach other in the north, but 1

shallsparethe Courttheirnames.

(Showsketchmap "'BahrainandQatar' with indicationof Al-Wassmi-1,Rajah 1and Athari-1
wells,Petroconsultants,1986"[«Bahreïnet Qatar»avec indicationdesforages Al-Wassmi-1.
Rajah 1 etAthari-1,Petroconsultants,1968»],judges' foldersNo. 38)

In March 1980they drilled a well at Rajah 1,which was abandoned6l,and in 1985-1986two

expenmental wells at Al-Wassmi-1 and Athari-1, with no success. Al1of them appear on the

sketchmap now onthe screen (judges'folders, No. 38). Again it is significantthat these various

wellswere al1locatedto the Westofthe 1947line6'63,extendedtowardsthenorth-northeast.

57~upplementDalocumentsof Qata, os.31 and32.

"Replyof Qatar,Ann.IV.21,Vol.4,p. 137.
S9~eplyof Qata, nn.IV.23,Vol.4,p. 141.

"~eply of Qata, nn.IV.22,Vol.4,p. 141andrnapannexedto contra,. 145.
61~eplyof Qatar,Ann.IV.24,Vol.4,p. 151.

62~eplyof Qata, nn.IV.27,Vol.4, p. 163.
63~upplementDalocumentsof Qata, o.34. 30.(b) onQatar'sside

What is importantto note isthattherewerechangesin theconcessionairesat thisperiod. On

26March 1970theGovernrnentof Qatarenteredinto a concessionagreementwithSouthEastAsia

Oil and Gas Company (U.S.A., Texas). The concession area, referred to as Qatar Marine

AreaNo. 2, wasdefinedas follows:

(Showsketch rnap"ConcessionAgreement betweenGovermnentofQatarandSouth East AsiaOil
and GasCompany"[«Accordde concessionentrele Gouvernement de Qataret la

South EastAsia OilandGas Company,>] j,udges'foldersNo. 39)

"'ConcessionArea'meansthe offshore area calledArea No.2 generailyshown
on the rnapattached heretoasExhibit'A'andmorepreciselydefinedby the document
attachedheretoas Exhibit 'B',ail madean integralparthere~f'~~.

Thusfor this concessionwehaveboth a mapand a groupofpoints indicatedby CO-ordinates

or by coordinates and bearings. And in any case the endpoint,point 13 (which we can cail the

tripoint)has theCO-ordinates 27" 01' 30"N, 51" 15'30" E. Anillustrativemapwaspublishedwhen

AreaNo. 2 wasput outto tender6'.

Westernundertooka seismic surveyin 1972for SCQ, approximatelyfromthe north-westof

Dibalto thenorthofFasht al

31. On 18 June1973Qatar signeda concession agreementwithanother groupof companies

led by WintershallAktiengesellschaft. Thisconcessionhad the samelirnitsas those of the South

East Asia 0i1and Gas company6'. Wintershallcornmissioneda seisrnicsurveyoverthe wholeof

its concessiontemt~ry~~.

32. After Wintershall had alsorelinquishedpart of its concessionin 1979, keeping,in the

area with whichwe are concernedhere, the southempartfacingBahrain, the northempart of the

area under discussion and the area to the south of Hawar were finally granted to Qatar General

62~upplementDalocumentsof Qatar,No.30.
65~upplementDalocumentsof Qatar,No.30.

%&ne seismicswey by Westernfor SCQ [<Levéssismiques maritimespar Westem pour SCQw], 1972,
Supplemental Documenotf Qatar,No. 24.
67~eetextof theannexandthe mapattachedto theconcessionagreement in the MeifiQatar,Ann.11.66,
Vol.5,p.325.

"Shell Internatioletroleum,TheHague,Qatarmarineseismicsurveyby WestemforWintershail[«Levés
sismiques maritimes par Wesrernpour Winrershallw]1973 (Drawing10035and 1973-1974 (Drawing 10069),
SupplementalDocumeno tf Qatar,No.24.Petroleum Corporation(QGPC). A furtherseismicsurvey,of the part of the seabed lyingbetween

Fasht al Azm andFasht Dibal and Qit'atJaradah,wasundertakenfor QGPCin 19816'.

33. It may be concluded from al1this that althoughboth parties expressed reservationswith

regard to the 1947 line, it was adopted for reasons of expediency as a line of reference by

successive concessionaires on both sides of the line. Beyond the northem endpoint of the line

(BLV), its extension progressed from one with a tum in it to one which was straight or almost

straight- of the segmentNSLB-BSV. Intermsof CO-ordinatest,his meansthat the lineterminates

at 51"15'30" instead of 51"20'. This is the line that appears on al1the maps publishedby the

Bulletin of the American Associationof Petroleum Geologists, later known as the A.A.P.G.

Bulletin,from 1978to 198g70w , ithouttherehaving been amurmurof protestfromBahrain.

(Show sketchmap "'Bahrain and Qatar' withindicationof additionalwells and 1947line,
Petroconsultants, 1986"[~Bahreïnet Qatar),avec indicationdeforages supplémentaires
et de lalignede 1947»],judges'folders,No. 40)

The sketch map now on the screen, No.40 in the judges' folders, is a consolidated map

prepared by Petroconsultants 1986, overprinted withthe 1947 line. It shows the drillings which

took place on the two sides. InQatar'sview,it is thereforereasonableto considerthat the 1947line

is one of the relevantircurnstancesto be takeninto considerationby the Court in order to arriveat

an equitable solution.

1thank the Court for its particularlywelcomeattention,bearingin mind the tedious natureof

my remarks. Mr. President, ProfessorQuéneudecis now at the disposa1of the Court for the next

part of Qatar'spresentationconcerningmaritimedelimitation.

The PRESDENT: Thank you, ProfessorSalmon. 1 now give the floor to

ProfessorJean-PierreQuéneudec.

Mr. QUENEUDEC: Mr.President, Membersofthe Court.

"~hell Intemationi etroleum,TheHague,Qatarmarineseismicsurveyby GSI forQGPC[*Levéssismiques
maritimes parGSIpourQGPC*] (offshore)1981(A),drawingNo. 10064,Supplemeni ocumentsof Qatar,No. 25.
'Ouiadditionto the mapspreviouslypresented,see the mapsindicatingthe situation for1977 and 1988,taken
fromtheBulletinsof 1978and1989respectively,Supplemel ocumentsof Qatar,Nos. 35and36. THEMARITIME DELIMITATIO LNINE

1. The general aspects of the question of the maritime delirnitation between Qatar and

Bahrain have been dealt with in the two previous presentations, which underscored the major

shortcomingsof the position adoptedbyBahrainin this respect.

At this point, we willpresent the argumentsthat the State of Qatar relies on concerningthe

construction of the single maritime boundary that it requests the Court to draw between the

respectivemaritimeareasof the two States.

2. in geographicai situations such as the one in the present case, the first step consists of

establishing,provisionaily, an equidistance line, and thetwo Parties agree on this; buty are in

complete disagreement regarding the approach to be followed, and more particularly, on the

response tothe frrstquestionthat mustinevitablyarise: equidistancebetween whatandwhat?

3. The Parties are also in disagreementconcerning the factors or circurnstances thatmight

bring about a modification of the provisionalequidistance line. Thus, as we have seen, Bahrain

contendsthat the old pearling banksshouldbe takeninto account,even thoughthese banksarenow

abandoned, and thus, as ProfessorSalmon has just shown, are of no relevance. This is what,

despite everything, has prompted the opposingParty to propose a peculiar, zigzaggingcourse for

the delimitationline in therthem sector.

4. In Qatar'sview, in the present case there are further circumstances, geographical and

other, whose relevanceis diffïcult to deny. This raises the question whether, and to what extent,

these particular circumstances can lead to an adjustment of the provisional line established by

application of the equidistancemethod. Onlyonce this secondquestion has been answered willit

be possible to determinethedefinitivecourse of a delirnitationline, one that, taken overall,will be

equitableandreasonablethroughoutthedelimitationarea.

5.1 thereforeproposeto examinethe elements of the constructionof the delirnitationline by

dealing in tum with the followingfour steps,al1of which, in Qatar's opinion, area necessarypart

of the process:

1. establishmentof a provisionalequidistanceline;

2. particularfactorsto betakeninto consideration; 3. adjustmentof the provisional lineas a result oftheseparticularfactors;

4. drawingof the delimitationline in each of the twosectors.

1. Establishmentof a provisionalequidistanceline

6. The startingpoint of anydelimitation process,of course, consists in defining and taking

accountof the relevant coastsof the two States involved. In this case, the respectivecoastal fronts

of Qatarand Bahrainhavebeen defmedearlier. 1wouldsimplyrefer the Courtto whatwas saidon

this subjectduring an earlierpresentation.

043 At most, two important aspects of Qatar'sposition should be mentioned here; we have

alreadydrawn these to the Court's attention, buttheyshouldneverthelessbe highlighted.

7. First, the coaststo be taken into account arethose correspondingto the "high-waterline",

[«la laisse de pleine mer))]because this is preciselythe line that represents the coastline[«la ligne

de côte»], as we have already had occasion to highlight. The general configuration of the

delimitationarea is such,principallyinthe southernsector,that the coastline or the lineof the coast

is theonlystable elementthat can serveas a reference.

8. Second, nor can one take account ofthe variousislets and rocks found in the delimitation

area, because, as we have seen, they are not significantfeatures. Only islands of a certain size,

therefore,must be taken into consideration. Naturally,in this connection, this would include the

islandsof Sitrah and Muharraqon the Bahrainiside,and on the Qatari side,the main HawarIsland,

not onlybecause of its size, which clearly distinguishes itfrom the other insular formations, but

alsobecauseit is perfectlyintegratedinto the coastof the Qataripeninsula of whichit forms a part,

geologically,geographicallyand, as wehave shown, legally.

9.A provisionalline must thereforebe drawntakinginto account, on the one side,a senes of

basepointslocated on the coastlineof the islands ofBahrain, Sitrahand Muharraq and, onthe other

side,on the coastline of the Qatar peninsula, including HawarIsland. This is an equidistanceline

drawnfromthe mainlandcoaststhat are,in this case,the onlytme coastsof the two States.

(Illustration)

This line, now shownon the screen, has been drawn using 23 basepoints on the coast of

Qatar and 15basepoints on the coast of Bahrain. The geographical CO-ordinatesof these points, which it wouldtake too much time and would be too tiresome toenumerate,have beensubrnitted

to the Court as No. 41 in thejudges'folders; on the back of the same page is a map showingthe

position ofthesedifferentbasepoints.

1 wouldsimply add that althoughone point on the coast of SaudiArabiahas also been used,

this is for purely illustrative purposes, and not for the purposes of trying to identify a kind of

tripoint [((pointtriple*] on the provisionalequidistanceline; in anyevent the Court could not take
044

such a tripoint into consideration, since the present case concems only the two States that are

Partiesto thecase.

10.In1948,as the Court will recall, Boggs and Kennedyalso relied on the mainland coasts

of the two States when contemplatingthe possible delimitationline dividing the continental shelf

between QatarandBahrain, takinginto accountthe geographicalandhydrographical circumstances

of the region. Moreover the line they envisaged at that time was, of course, based on the

1939Britishdecision, so they assumedthat the Hawar Islands belongedto Bahrain. This explains

why theirlinedrew a semienclave around theseislands.

(Illustration2)

11. The sarne mainland-to-mainland method was also used to establish several maritime

boundariesin thePersian Gulfregion.

12. Allow me to recall, very briefly, that this is also what was decided recently by the

Arbitral Tribunal between Eritrea and Ethiopia, which referred to "a median line between the

opposite mainland coastlines" [«uneligne médianeentre les côtesdes territoirescontinentauxse

faisantface»] in its Award of 17December 1999(para. 132),and which stated, with regard tothe

northem portion of the EritreaîYemen maritime boundary, that "the boundary should be a

mainland-coastal median, or equidistance,line" [«lafrontièredoit êtla lignemédianeoula ligne

d'équidistanceétablieà partir des côtesdes territoires continentaux]para. 152).

13. The provisional equidistance line drawn by Qatar using basepoints located on the

mainland coast of Qatar and on the coast of the principal islandsof Bahrain is therefore not only

justified by the characteristics of theegion, but is also confmed by treaty practice and the

jurisprudence. The Court willnote, however, that this provisionalline also relies on the dual premise that,

first,Bahrain'sclaimto the "Zubarahregion"is dismissedand second,that Qatar'ssovereigntyover

the HawarIslandsisrecognized.

(Illustration)

14. Furthemore, the salient characteristics of this provisional equidistance line should be

noted. Although drawnfrom north to south,we will beginfromthe bottomof the map as shownon

the screen.

First, it wille seen that its terminalpoint, at the extremesouthem end of the delimitation

area, is very close to point 1 on the delimitation line between Saudi Arabia and Bahrain as

determinedby the Agreementof 22February 1958,shownhere aspoint SI.

Second, it will be seen that this provisional line cuts across the area of the Fasht al Azm

reefs,at around4,000m fromthe easternrnostpoint of thisgroupof reefs.

It will further be seen that this provisional equidistance line runs right above the

Qit'atJaradah shoalbeforeming alongthe westernedgeof theFasht Dibalshoal.

Lastly, it will be noted that the starting point of this line on the Gulf median line in the

middle ofthe Gulfis a point located slightlymore than 5 kmto the east of the terminal pointon the

Iran-Bahrain delimitationline (point2).

2. Theparticularfactorsto be takeninto consideration

15.These factors,as we will see, appearas circumstancesthat cannotbe completely ignored.

Someof them aregeographicalin nature andare, so to speak,"givenfacts", whereas othersfa11into

the category of "created" circumstances, to adopt the well-known distinction proposed by

Dean Gény.

(a) Geographicaf lactors

16.The geographicalfactors that distinguish the present case arise essentially from certain

characteristicsof thecoastal configuration.

17. The fust of these characteristicslies in the fact that there is a significant disproportion

between the lengths of the respective relevantcoasts of the two States. Measured in accordance with their general direction, these coasts measure approximately 55.5 km for Bahrain and

approximately88 km for Qatar, thatis, a ratio of coastallengthsof 1to 1.59in favourofQatar.

The disparityin coastallengths is therefore greater herethan it was in thGul ff Maine

case, where theCourtheldthat aratio of 1to 1.38 "shouldbe reflectedin the locationofthe second

segmentof thedelimitation line"(1.CJ.Reports 1984, p. 336,para.222).

046 And, as the Court hasstated in its most recentjudgment on maritime delimitation: "The

disparitybetweenthe lengthsof coasts ...constitutesa specialcircumstance"(caseconcerningthe

Maritime Delimitation in the Area between Greenlandand Jan Mayen, I.C.J. Reports 1993,

pp. 68-69, para.68). This determination, whichwasmade in the JanMayencase in thecontextof

the 1958Conventiononthe ContinentalShelf,rnaybe transposed to the customarylawframework

that is applicable tothe detenninationof a single lineof delimitation,where a disparityin coastal

lengthsis alsoa relevantcircumstanceorfactor.

18.Anexaminationofthe coastalgeographyalsobringsouta second characteristic, which is

undoubtedlyless obvious thanthe onejust mentionedbut nevertheless,despiteeverything,far fiom

beinginsignificant.

(IllustrationNo.4)

The Qatarpeninsuladoesnot extendas far towardsthe centreof the ArabianfPersianGulf as

does the group of islands consistingof Bahrain and Muharraq. The extremenorthem endof the

Qatarpeninsulais actually locatedat approximatelythesamelatitudeas the Sitrahjetty,on theeast

of Sitrah Island, whereas the extreme northem end of Muharraq Island clearlyextends further

seawards. The northernmost point of Muharraq Island (identified as pointMQ) is located at

latitude 26" 17'15"N, while the northernmostpoint of the Qatar peninsuia is located atlatitude

26"09' 25"N, thus a difference in latitudeof almost 8minutes. In itself, this differencemight

appearto be minimal,butitmustbe seeninrelationto the fact thattheseaward-facingcoastalfiont

of Qataris muchlongerthanthe seaward-facingcoastalfrontofMuharraq.

19. The result is a significantlyreater projection of the Bahraini coast in a northerly

direction,even thoughBahrain'scoastinthisarea is shorterthan Qatar's;thismayleadto arelative

encroachmentuponthemaritimeprojectionof the coastalfrontof Qatar. It will simply be recalledthat in the ContinentalShelfDelimitationcase betweenFranceand

the United Kingdom, the Arbitral Tribunalemphasized that, amongstthe distinctiveaspects of the

situation in the Atlanticregion, the Tribunalhad to take account of whatit called "[tlhe pertinent

dissimilaritybetween the two coasts", which meant that, with regard to the United Kingdom, "its

coastal frontage projects further into the Atlantic than that of the French Republic" (Decisionof

30June 1977,para. 235).

There can hardlybe any doubt thatin the presentcase we find, mutatis mutandis, thoughto a

lesserdegree,the sametypeof dissimilaritybetweenthe coastsof Qatar and Bahrain.

(b) Otherfactors

20. Other particular factors combine with these aspects of the geographical settingto give

thequestionof the delimitationbetweenQatarand Bahrainits specialcharacter.

21. Among the foremost of these factors is that a line was drawn in 1947 by the British

authonties in order to dividethe seabedbetween the two Sheikhdomsand so avoid conflictsin the

awardof offshoreoil concessions.

22. Doubtless,Qatarand Bahrain never viewedthis line withlovingeyes. Qatarconsistently

rejected the two exceptionsthat were applied to the line by the British aroundthe Hawar Islands

and the Dibal and Jaradah shoals, while Bahrain on the other hand was of the view that these

exceptionsalonehad anyvalue.

23. Whatever the meaning and valuethat each of the Parties intendedgiving this line, they

nonetheless both- "al tarafan", in a manner of speaking- were drawn to take account of it

subsequently.

The 1947line appearedas an establishedfact, something virtuallyset in Stone,even ifit was

open to challenge, given that in the years that followed al1the discussions undertakenunder the

aegis of the British Govemment and relating to the maritime delimitation between Qatarand

Bahrain revolved aroundthis line, eitherwiththe aim of transformingit into an agreed line or with

a viewto modifyingor adapting its course.

24. The 1947 line is therefore, in Qatar'sview, a factor of obvious relevance and thus one

that shouldbe taken intoconsideration. 25. We would merely point outthat the nature of the 1947line - in our view, that it is a

factor toetaken intoconsideration - relatesnot so much to the lineitself, as drawn, but ratherto
J
the elements on the basis ofwhich the line was drawn by the British; in our view the important

O 4 8 factor is, above all, that this line was drawnstartingfmm the principal coasts and was constmcted
I
in a simplifiedmanneron the basis ofa fewsignificant points.

(Illustration)

26. Inits Memorial, Qatar offeredreasons why it consideredthat the part of the 1947line

located south of point L could not be taken into consideration (see Memorial of Qatar,

paras. 11.21-11.33). This led Qatartoemphasizethe particularimportanceof point L (Memorialof

Qatar, para. 11.24). Qatarreturned to this aspectin its Reply, whereit reminded the Court that on

the 1947line points Land BLV - the lattercorresponding,as we have seen,to the locationof the

"BahrainLight Vessel" [«bateau-phare deBahreïn~] - werecertainlythe most significant points

and were, therefore,thepoints whoserelevancewasindisputable(Reply of Qatar, para.9.59).

27. Linked to and reinforcing this first particular factor there is a second consideration that

cannot be ignored. As Professor Salmonhas shown,the line that the British had drawn in 1947,

with a view to avoidingoverlappingand conflicts between the offshoreactivities of the petroleum

companies, subsequentlyserved as a referenceline for fvtingthe limits that these companies were

to respect when conducting their operations.

28. As we have seen, the 1947line,and more specificallythe NSLB-BLV segment between

the North Sitrah Light Buoy [«bouéelumineusede Sitrahnord>>a ]nd the Bahrain Light Vessel,

was also used to determinethe limits of certain offshore concessionsgranted both by Bahrain and

by Qatar.

It is significant that,n certain cases, express reference was made to this line. But it is

equally significantthat,in other cases,evenif the 1947line wasnotexpresslyreferredto, the limits

setfor concessions didinfact followalonga portionof it.

1
29. This fact in itself is certainlyofeat importance. It proves that the 1947line not only

fulfdled the role assigned to it by the British Government with regard to petroleurn Company

activities, but that it also affected the behaviourof Qatar and Bahrain in their dealings with these

same companies. It would certainlybe improperand inaccurateto infer the existence of anytype of "defacto"line fromthe Parties'conduct,as waspartly the case in 1982in the ContinentalSheZf
O 4 9

(Tunisia/Libya)case. The situation in the presentcase is in no way comparable to the situationin

that case. Whatis peculiar tothe present case, andwhat Qatarinsists uponrscoring,is simply

that the conduct of the Parties with regard to petroleum concessions has itselfnfmed the

importanceof the 1947lineasa factor.

31.Finally, thereis anotherparticularcircumstanceto which the Court'sattentionhas barely

been drawn until now, but one that nonetheless mightbe considered as a factor to be taken into

accountaswell.

(Illustration6)

This is the line, appearingon large-scalenauticalrts, that indicates the present limits of

the Port of Bahrain and thatencompassesthe buoyed approachesand stretches of water of the oil

port of Sitrahand the commercialport of Mina-Salman. Within these limits, since 15July 1984,a

singleauthority,the "BahrainPort Authority", hasbeen in charge of informationand CO-ordination

of ship movements. The present Bahrain Approach Buoy [«bouéed'approchede Bahreïh],

located at approximatelylatitude26" 22'N and at longitude50"47'E, in other words, in the upper

right-hand corner of the zone so delimited,marks this corner andalso the entrance to the buoyed

deepwater channelleadingto the variousportinstallations atSitrahand Mina-Salman.

32. Thiscircumstancemust doubtlessbe taken into account, given the fact that in order to

determinethe course ofthe 1947line, the Britishhad relied on the existenceand placementof what

was called at the time the North Sitrah Light Buoy«bouéelumineusede Sitrah nord>>]w , hose

position wasdefinedby the British both on the basisof its distance (15.20nautical miles) andby a

bearing (6"%) fiom the British Political Agent'sflagstaff in Manamah. The point NSLB that the

British Government referred to in 1947 had the following geographical CO-ordinates:

26"21'24" N - 50"49' 48"E, Le., a location very close to the present Bahrain Approach Buoy

within the limitsof the Port of Bahrain. The pointNSLB was however located slightlyto the east

of the location of the present BahrainApproachBuoy,Le.,it was outside the present limits of the

Port of Bahrain.050 33. These, Mr.President, are the different characteristicfactors that if taken into account

rnay,and in ou view must, lead to somekind of adjustmentof the line drawnprovisionallyon an

equidistancebasis.

3. Adjustmentoftheprovisionalequidistanceline

34. Given the observed disparity between the lengths of the respective coasts of the two

States, one might validly think that this circumstanceis of such a nature as tojustify the adoption

of a delimitation line different from the equidistance line in the whole of the delimitation area,

including the southem sector, where the coasts are directly opposite and where a median line

should in principledivide the twotemtorial seas.

35. It could doubtless be objected thatwithregard to the delimitationbetweenthe respective

territorialeas of the two States, the simple fact that there is more or less a disparitybetween the

lengths of the coastsis notnecessarily,in itself, sufficientreasonto depart fromthe medianline.

36. However, one must not lose sight of what the Parties have requested the Courtto do in

the present case,i.e., to "drawa single maritimeboundary betweentheir respective maritimeareas

of seabed, subsoil and superjacent waters",to use the words of the Court in the two judgments it

renderedin 1994and 1995 (I.C.J. Reports1994,p. 125,para. 38and 1995,p. 25, para. 46).

The Court has not been requested to determine, on the one hand, a line delirniting the

respective temtorial seas of Qatar and Bahrain, and, on the other, a delimitation line for the

continental shelf and the exclusive economic or fishing zonesof each State. The Court is called

uponto decide on the course of a single delimitationline betweenthe Qatari andBahraini maritime

areas,regardlessof the designation or intemationalstatusof suchareas.

37. Itwill benoted, moreover,that at the timeof the institutionof the presentproceedingsin

1991,each of the two Statesstill hada temtonal sea witha breadth of three nautical miles; thisleft

room, in the southem sector, for a delimitation of maritime areas beyond the temtorial sea and it

would be difficult to accept that the extension of the breadth of the temtorial waters to 12miles

undertakenby both Stateshas radically changedtheparametersof the delimitationproblem.

38. Moreover,when a single maritime boundaryhas to bedrawn throughoutthe delimitation

area,it might appear odd not totake into accounta significantdisparitybetweenthe coastal lengths in the sector of the area where the disproportionis obviousand is one of the characteristicaspects,

if not the most characteristicaspect, of the coastal geography. Surelythe purpose of drawing a

single maritime boundary is to determine a line whose course reflects al1 of the geographical

characteristicsof the delimitationarea, regardless of the legal natureof theous maritimeareas

involvedin the delimitation?

39 As the disproportion or disparity in coastal lengths is clearly in favour of Qatar, the

proposed adjustment can only be a shifting or displacement of thedelimitation line towards the

coasts ofBahrain, i.e., towards the west, inorder to reflect this attributeof the coastal geography.

The Court used an adjustmentof this typein 1985in the ContinentalSheZf(Libyahî4alta) case and

again (althoughin a differentmanner) in the JanMayen case, preciselyin order to take accountof

the disparityin the lengthsof the coasts.

40. The displacement ofthe provisional line towards the Westis also justified, even in the

northem sector, by the fact that the short coastal front ofarraq Island projects considerably

furtherthan the northem front of the Qatar peninsula. And because of this fact, the applicationof

the equidistance method, as we have already said, results in the drawing of a line that would

encroach to a certainextent upon the maritime projectionof Qatar in the northem sector. As this

encroachment is notjustified by any otherparticularcircumstance,a correctionis requiredthat can,

it seems,result onlyfrom an adjustmentof theprovisionalequidistanceline.

Thus, if the geographical factors that are peculiar to this case are taken into account,

recognitionof theneed to adjustthe equidistancelinefollows.

41. Now in the present case, 1would add that this adjustment appears necessary, in any

event, for reasonsofpracticality. Asindicated,this provisionalequidistanceline passesabovethe
*
Jaradah shoal and the Fasht Dibal shoal. And it is preciselythe questionof the ownershipof these

two low-tide elevationsthat is one of the issues in the dispute of whichthe Court has been seised.

There can be no doubt that the two Parties are entitled to hope that the judicial settlementof this

dispute will not cause new problems to arise between them. That would, however, be the

inevitableresult if the delimitationline laid down by the Courtfailed to place the entirety of

two low-tideelevationsin the maritimearea of one Partyor the other. 42. Therefore,it will benecessaryto rnakethis adjustment,as the Courtmust,in theexercise

of its judicial function, settle completely andally the disputes that are submitted to it. It can
s
hardly adopt a solutionthat mightrisk creating a new dispute. The Court must also keepin mind

the future peacefulrelations betweenthe two States. Judging andpeace-makingalwaysgo hand in .

hand.

It will also be noted that the equidistancelineawnin 1948by Commander Kennedyand

WhittemoreBoggsran well to the Westof theJaradahand Dibalshoals.

(Illustration

43. There remains, of course,the questionof the degreeto whichthe provisionallinemay be

adjusted by shifting it westwards. And this is where the particular factor of the 1947line may

come into play.

In its Application,in 1991,Qatarstated thatthe maritime boundaryit requested theCourt to

draw should be drawn "with . ..regard to the line dividing the sea-bed of the two States as

described in the British decision of 23 December 1947". Without there being anyneed to repeat

the explanationssubsequentlygiven inthe written pleadings,it will be sufficienthere toemphasize

thatrequesting the Court to take account of the 1947 line amounts to asking the Court not to

disregardit or not to ignore it, in otherwords, notto actas if thisline hadexisted.

44. In these circurnstances,it is no doubt possible to considerthat in shiftuigthe provisional

equidistance line westwards, the 1947line, betweenpoints L and BLV,is the "extremelimit" of

O 5 3 such a shift,to borrowthe words usedby the Court in 1985in the Libyn/Moltacase (I.C.J.Reports

1985,p. 51, para. 72). So, to conclude, what is the course of the delimitation line proposed by

Qatar?

4. Thecourseofthedelimitationline

45. Inits writtenpleadings, Qatarhas alreadypresentedin detail the critena and methods to

be used, as well as the reasonsstifymgthe course of the line it proposed,and there is thereforeno 1

need to go back over these. Consequently 1 shall confine myself to a brief summary of the

delimitationlineproposed in eachofthetwo sectors. (a) Thelineinthesouthernsector

(Illustration8)

46. As has alreadybeen mentioned, pointL as defined in 1947is of great importance. And

in Qatar's view,it is starting from and aroundthis point that the construction of the delimitation

line in the southem sectormuste envisaged.

47. Qatar has explained why account shouldnot be taken either of the enclave encompassing

the Hawar Islands or ofpointM, the starting-pointof the 1947line, because of the rights of a third

party Stateat the mouthofthe DawhatSalwa.

48. Therefore, Qatar'sproposed delimitation line in the extreme south of this sector is a

straight line joining the fust point of the maritimendary between Bahrain and Saudi Arabia

(point SI) to pointL on the 1947 line. This, it should be pointed out in passing, is a slight

adjustmentof the provisionalequidistancelinein favour of Bahrain.

(Illustration

49. Beyond point L, taking into considerationthe geographical and other factors that we

have mentioned, Qatarproposedan adjustrnent ofthe provisionalline in its own favour,bypushing

the delimitation line westwards, so that it coincides with the 1947line which, starting atpointL,

meets pointBLV in the northem sector and bisects the dividing line between the two sectors

(line MQ-RK)at point N.

054 (b) Thelineinthenorthernsector

(Illustration10)

50. The line proposedby Qatar startingfrom point (whichjoins, 1 repeat, what is situated

on line MQ-RK)passesthroughpoints NSLBand BLV on the 1947line and then meetspoint2 on

the delimitation line establishedbetweenBahrain andran. The course of this second segmentin

the northern sector is basedon method(whichin certainrespects is a variationof the equidistance

method) whereby a perpendicularis drawnfromthe dividingline MQ-RK,but a perpendicularline

passing throughpoint BLV,and is then modifiedso that it terminatesat point 2 on the delimitation

line between Bahrain and Iran. This thereforemeans that the maritime delimitation line between

Qatar and Bahrain terminates in the northem sector at the point described by CO-ordinates

51°05'54" E and 27"02'47"N. (Illustrations11, 12,13)

51. This, in a nutshell, is the courseof the delimitationlineproposed by Qatar in each of the

two sectorsof the delirnitationarea. I

52. In sum, it is a question of evaluating this single maritime boundary that Qatar has

submitted tothe Court. And it can be saidto have threesalientcharacteristics.

(Illustration4)

First, it is a line designed to take into account and reflect the particular circumstances and

characteristics of the present case. Second, it satisfies the fundamental requirement of being

equitable, as is confmed in the present case by the applicationof the proportionality test. From

this point of view,1shall do no morethan reiterate what was explained by Qatar in its Reply, that

is, that the proposed delimitation line complies with proportionality not only with regard to the

lengthof the coastalfronts and the sizeofthe maritimeareasofeach State, but alsoin anotherway:

as an additional test, Qatar has also shown in its written pleadings that the line passing through

point BLV and perpendicular to the dividingline between the northem and southem sectors splits

that dividing line into two segments, the respective lengthsof which are also in keeping with the

coastal lengths. 1 would make reference here in particular to paragraph 9.71 etseq. of Qatar's

Reply.

Finally, the third, in our view essential,characteristicof Qatar's proposed delimitationline

lies in itsreat simplicity,which is quiteobviousanddoesnot requireanyfurtherexplanation.

These three salientcharacteristicsareeven moreapparent whenthe lineproposedby Qataris

comparedto the lineproposed by Bahrain.

(Illustration 15)

Mr. President,Members of the Court.

At the end of a presentation that 1 have endeavouredto simplify and to reduce, as far as

possible,to theessential elements, 1shouldliketo Sayhowgrateful1have beenfor your attention.

Since this is Qatar's finalpresentationin the firstround of the oral proceedings,1shouldlike

to thank you on behalf of the whole of Qatar's delegation before this Court. Thank you,

Mr. President. The PRESDENT: Thankyou, Professor Queneudec. Thisdoes indeedcomplete the first

round of the oral argumentspresentedto the Courtby the Stateof Qatar and 1shouldlike, for my

part,to thank on behalf of the Courtthe Agentand Counselfor Qatarfor presentingtheir position.

The sittingis about to be adjoumed. The State of Bahrain will commencethe presentationof its

ownpositionon Thursday 8Juneat 10a.m. TheCourtis adjouxned.

TheCourtrose ut 1p.m.