Summary of the Judgment of 16 March 2001

Summaries of Judgments, AdviNot an official document of the Internationa
l Court of Justice

MARITIME DELIMITATIOIVAND TEIRRITORIALQUESTIONS BETWEEN

QATARAND.BAHRAIN (QA.TAR v. BAHRAIN) (MERITS)

Judgment of 116 March 2001

I:II its Judgment on the case concerning Maritime between therespectivemaritimezonesof Iran on the one
Delimitation and Territorial Questions between Qatar and hand and of Bahrain and Qatar 011 the other (see
Bah~.ain(Qatar v. Bahrain), the Court: unaninlously found paragraph249 of theJudgment).
that Qatar has sovereignty over Zubarah;fourldby twelve
The Court was composed as follows: President
vote:; to five that Bahrain has sovereigntyr:r the Hawar Guillaume; Vice-President Shi; Judges Oda, Bedjaoui,
Islands; unailimouslyrecalled that vessels ofQatar enjoy in Ranjeva, Herczegh, Fleischhauer, Koroina, Vereshchetin,
the territorial sea ofhrain separating the Hawar Islands Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-
from the other Bahraini islands the right ofinnocentpassage Khasawnch, Buergenthal; Judges ad hoc Torres Bernhrdez,
accorded by customary international law; found by thirteen Fortier; RegistrarCouvreur.
votes to four that Qatar has sovereignty over .JananIsland, *
including Hadd Janan; fo~mdby twelve votes;to five that
* *
Bahrain has sovereignty over the island ofQ.it'atJaradah; The full textof the operativeparagraph of the Judgii~ent
unanimously found thatthe low-tide elevatior. of Fasht ad reads asfollows:
Dibal falls under the sovereignty of Qatar; decided by
thirteen votes to four that the single maritimeboundary that "252. For thesereasons,
divides the various mariti:mezones of Qatar and Bahrain THE COURT,
shall be drawn as indicated in paragraph 250 of the (1) Unanimously,
Judgment.
Finds that the State of Qatar has sovereignty over
I:nthis latterparagraph,,the Court listed the coordinates Zubarah:
of tliepoints that have to bejoined, in a specifiedorder, by (2)(0)By twelve votesto five,
geod.esic lines in order to form the follclwing single
maritimeboundary: Finds that the State of Bahrain has sovereigntyover
in the southernpart, from the point of intersection ofthe the HawarIslands;
IN FAVOUR: President Guillaume; Vice-President
respective maritime limits of Saudi Arabia on the one Shi; Judges Oda, Herczegh, Fleischhauer, Higgins,
hand and of Bahrain and Qatar on the othcr, which Parra-Aranguren, Kooijmans, Rezek. Al-Khasawneh,
cannot be fixed, the boundary follows a north-easterly Buergenthal;Judgead hoc Fortier;
direction, then immediately turns in an easterly
clirection,after which it passes between Jaziratawar AGAINST: Judges Bedjaoui, Ranjeva, Koroma,
and Janan; it subsequentlyturns to the nor1.hand passes Vereshchetin;Judgead hoc TorresBernhrdez;
between the Hawar Islands and the Qatar peninsula and (h) Unanimously,
continues in a northerly direction, leaving the low-tide
Rectrllsthat vessels of the Stateof Qatar enjoy in the
e:levationof Fasht Bu Thur, and Fasht a1Azin, on the territorial sea of Bahrain separating tHawar Islands
I3ahraini side, and the low-tide elevations of Qita'a el from the other Bahraini islands the right of innocent
I!rge et de Qit'at ash Shajarahon the Qatari side; finally passageaccordedby custonlaIyinternationallaw;
it passes between Qit'at Jaradah and Fasht ad Dibal, (3) Bythirteenvotesto four,
leaving Qit'atJaradah on the Bahrainiside and Fasht ad
Ilibal on the Qatari side (see paragraph 222 of the Finds that the State of Qatar has sovereignty over
Judgment); JananIsland,includingHaddJanan:
IN FAVOUR: President Guillaume; Vice-President
in the northern part, the single maritime boundaIy is Shi; Judges Bedjaoui, Ranjeva, Herczegh, Fleischhauer,
formed by a line which, from a point siruated to the Koroma, Vereshchetin, Parra-Aranguren, Rezek, Al-
north-west of Fasht adDibal,meets the equidistanceline Khasawneh, Buergenthal; Judge ad hoc Torres
as adjusted to takeaccountof theabsenceof effectgiven
to Fasllt a1 jar in^The boundaIy then follows this Bernhrdez;
adjusted equidistance line until it meetsthe:delimitation AGAINST: JudgesOda, Higgins, Kooijmans; Judge
ad hoc Fortier;

Continued on next page (4) By twelvevotes to five, letters of 14July and 18August 1991,Bahrain contestedthe
Fi11d.t9hat the State of Bahrain has sovereignty over basis ofjurisdiction invokedby Qatar.
the islandof Qit'atJaradah; By a Judgment of 1 July 1994,the Court found that the
exchanges of letters between the King of Saudi Arabia and
FAVOUR: President Guillaume; Vice-President the Pmir of Qatar of 19 and 21 IIecember 1987, and
Shi; Judges Oda, Herczegh, Fleischhauer, Higgins,
Pa~a-Aranguren, Kooijmans, Rez&, Al-Khasawneh, between the King of Saudi Arabia and the Amir of Bahrain
Buergenthal;Judge ad hoc Fortier; of 19 and 26 December 1987, and the document headed
AGAINST: Judges Bedjaoui, Ranjeva, Koroma, "Minutes" and signed at Doha on 25December 1990by the
Vereshchetin;Judge ad hoc TorresBerniirdez; Ministers for Foreign Affairs of Bahrain, Qatar and Saudi
Arabia, were international agreements creating rights and
(5) Unanimously, obligations for the Parties; and that, by the tenus of those
Finds that the Fasht ad Dibal agreements, the Parties had undertaken to submit to the
falls underthe sovereigntyof the Stateof Qatar;
Court the whole of the dis~ute between them. as
(6) Bythirteen votesto four, circumscribedby the Bahraini foAmla. Having noted that it
Decides that the single maritime boundary that had before it only an Applicationfrom Qatar settingout that
divides the various maritime zones of the State of Qatar State's specificclaims in connection with that formula, the
and the State of Bahrain shall be drawn as indicated in Court decidedto afford the Partiesthe opportunityto subnlit
paragraph250 of the presentJudgment; to it the whole of the dispute. After each of the Parties had
fileda document on the questionwithin the time limit fixed,
IN FAVOUR: President Guillaume; Vice-President
Shi; Judges Oda, Herczegh, Fleischhauer, Vereshchetin, the Court, by a Judgment of 15February 1995,found that it
Higgins, Parra-Aranguren, Kooijmans, Rezek, Al- had jurisdiction to adjudicate upon the dispute between
Khasawneh.Buergenthal;Judge adhoc Fortier; Qatar and Bahrain which had been submitted to it; that it
AGAINST: Judges Bedjaoui. Ranjeva, Koroma; was now seized of the whole of the dispute; and that the
Application of the State of Qatar as formulated on 30
Judge ad hoc Torres Bernhrdez. November 1994was admissible.

In the course of the written proceedings on the merits,
Bahrain challenged the authenticity of 82 documents
produced by Qatar as annexed to its pleadings. Each of the
Judge Oda appendeda separateopinion to the Judgment. Parties submitted a number of expert reports on the issue;
Judges Bedjaoui, Ranjeva and Koroma appended a joint the Court made several Orders. By its last Order on the
dissenting opinion to the Judgment. Judges Herczegh, issue, of 17 February 1999, the Court, taking into account
Vereshchetin and Higgins appended declarations to the the concordant views of the Parties on the treatment of the
Judgment. Judges Parra-Aranguren, Kooijmans and Al- disputeddocuments and their agreement on the extensionof
Khasawneh appended separate opinions to the Judgment.
time 1.imitsfor the filing of Replies, placed on record the
Judge ad hoc Torres Berniirdez appended a dissenting decision of Qatar to disregard, for the purposes of the
opinion to the Judgment. Judge ad hoc Fortier appended a present case, the 82 documentswhose authenticityhad been
separateopinion to the Judgment. challenged by Bahrain, and decided that the Replies would
not rely on those documents. Following the filing of those
Replies, the Court decided to permit the Parties to file
supplen~entaldocuments.Public hearingswere held frorn29

May to 29 June 2000.
History of theproceedings and sllbmissions of the The final submissionsas presentedby each of the Parties
Parties at the conclusionof those hearingswere as follows:
(paras. 1-34) Onbehalfof the Governmentof Qatar,

On 8 July 1991Qatar filed in the Registry of the Court "The State of Qatar respectfully requests the Court,
an Application instituting proceedings against Bahrain in rejectingall contraryclaims and submissions:
respect of certain disputesbetween the two Statesrelating to I. To adjudge and declare in accordance with
"sovereignty over the Hawar islands, sovereign rights over internationallaw:
the shoals of Dibal and Qit'atJaradah, and the delimitation
of themaritime areas of the two States". In this Application, A. (1) That the State of Qatar has sovereignty over
Qatar contended that the Court had jurisdiction to entertain the Hawar islands;
(2) That Dibal and Qit'atJaradah shoals are low-tide
the dispute by virtue of two "agreements" concluded elevationswhich are under Qatar's sovereignty;
between the Parties in December 1987 and December 1990
respectively,the subjectand scopeof the comniitmentto the B. (1) That the State of Bahrain has no sovereignty
Court's jurisdiction being deternlined, according to the over the islandof Janan;
Applicant,by a formulaproposed by Bahrainto Qatar on 26 (2) That the State of Bahrainhas no sovereigntyover
October 1988 and accepted by Qatar in December 1990 Zubarah;
(hereinafter referred to as the "Bahraini formula"). By (3)Tliat any claim by Bahrain concerning The capital of the State of Qatar. Doha, is situated on the
archipelagicbaselines and areas for fishing forpearls easterncoast of the peninsula.
and swimming fish, would be irrelevant for the
Bahrain is composed of a number of islands, islets and
purpose of maritimedelimitationin the present case; shoals situatedoff the eastern and western coasts of its main
11. To draw a single maritime boundary betweenthe island, which is also called al-Awal Island. The capital of
maritime areas of sea.-bed, subsoil and superjacent the State of Bahrain, Manama, is situated in the north-
waters appertaining respectively to the State of Qatar eastern part of al-Awal Island. Zubarah is located on the
and the State of Bahrain on the basis that Zubarah, the north-west coast of the Qatar peninsula, opposite thenlain
islandof Bahrain.
Hawar islands and the island of Janan appartain to the
State of Qatar and not to the State of Elahrain, that The Hawar Islands are located inthe immediatevicinity
boundary starting from point 2 of the delimitation of the central part of the west coast of the Qatar peninsula,
aiy-eenlentconcluded between Bahrain and Iran in 1971 to the south-east of the main island of Bahrain and at a
(51°05'54"E and 27"02.'47"N), thence proceeding in a distanceof approxin~ately10nauticaliniles fromthe latter.
southerly direction up to BLV (50°57'30" E and
26O33'35"N), then following the line of the British Janan is located off the south-western tip of Hawar
Islandproper.
decisionof23 December 1947up to NSLB (50°49'48"E Fasht ad Dibal and Qit'at Jaradah are two maritime
and 26O21'24"N) and up to point L (50°43'00"E and features located off the north-western coast of the Qatar
25O47'27"N), thence ]proceedingto point S1 of the peninsula and to the north-east of the main island of
delimitation agreement concluded by Bahrain and Saudi
Arabia in 1958(50'31'45"E and 25O35'38" 1\1)." Bahrain.

011 behalfof the Govert~inentofBahrain, Historical context
"Having regard to the facts and arguments set forth (paras. 36-69)
in Bahrain's Memorial. Counter-Memorial: and Reply,
and in thepresenthearings; The Court then gives a brief account of the co~nplex
history which forms the background to the dispute between
Ma-vitplease the Court, rejecting all contrary claims the Parties(onlyparts of which are referredto below).
and submissions,to adjudgeand declarethat:
1. Bahrain is sovere:ignoverZubarah. Navigation in the Gulf was traditionally in the hands of
2. Bahrain is sovereign over the Hawar Islands, the inhabitants of the region. From the beginning of the
includingJanan and HaddJanan. sixteenth century, European powers began to show interest
in the area, which lay along one of the trading routes with
3. In view of Bahrain's sovereignty over all the India. Portugal's virtual inonopoly of trade was not
insular and other features, including Faslit ad Dibal challenged until the beginning of the seventeenth century.
and Qit'at Jaradah, comprising the Bahraini
archipelago,the maritime boundary between Bahrain GreatBritain was thenanxiousto consolidateits presence in
and Qatar is as described in Part Two of Bahrain's the Gulf to protect the growing commercial interests of the
East India Company.
Memorial." Between 1797 and 1819 Great Britain despatched
[For the delimitation lines proposed by each of the numerous punitive expeditions in response to acts of
Parties, see sketch-map No. 2 of the Judgment, which is plunder and piracy by Arab tribes led by the Qawasim
attached.]
against British and local ships. In 1819, Great Britain took
control of Ras a1Khaimah, headquarters of the Qawasim.
Geograpltical setting and signed separate agreements with the various sheikhs of
(pan. 35) the region. These sheikhs undertook to enter into a General
Treaty of Peace. By this Treaty, signed in January 1820,
The Court notes that the State of Qatar and the State of these sheikhs and chiefs undertook on behalf of themselves
Bahrain are both located in the southern part of the and their subjects inter alia to abstain for the future from
Arab,ian/PersianGulf (hereinafterreferred to as "the Gulf'),
almost halfway between the mouthof the Shaft a1Arab, to plunder and piracy. It was only towards the end of the
nineteenth century that Great Britain would adopta general
the north-west, and the Strait of Hormuz, at the Gulfs policy of protection in the Gulf, concluding "exclusive
eastern end, to the northof Oman.The inainlandto the west agreements" with most sheikhdoms, including those of
and south of the main island of Bahrain andto the south of Bahrain, Abu Dhabi, Sharjah and Dubai. Representation of
the Qatar peninsula is partof the Kingdom of SlaudiArabia. British interests in the region was entrusted to a British
The inainland on the northern shore of the Giilf is part of Political Resident in the Gulf, installed inshire (Persia),
Iran. The Qatar peninsula ~~rojectsnorthward into the Gulf,
on the west from the bay called DawhatSalwah,and on the to whom British Political Agents were subsequently
subordinated in various sheikhdoms with which Great
east from the region lying to the south of Khor al-Udaid. Britain had concludedagreements. SKETGH-MA NPO,2
Lh@ psopogedby Qatarand Bahrain

On 31 May 1861 the British Government signed amaintenance of security ofits possessions against
"Perpetual treaty of peace and friendship" with Sheikhssion. There was no provision in this treaty defining
Mahomed bin Khalifah. referred to in the treaty athe extentof these possessions.
independent Ruler of Bahrain. Under this treaty, BahFollowing hostilitieson the Qatar peninsulain 1867,the
undertook inter alia to refrain from all maritimeBritishPoliticalResident in the Gulf approachedSheikhAli
of every description, while Great Britain undertobin Khalifah, Chief of Bahrain, and Sheikh Mohamed Al-
provide Bahrain with the necessary support in theThani, Chief of Qatar, and, on 6 and 12 September 1868respectively, occasioned each to sign an agreement with Hawar belonged to the Sheikh of Bahrain. The content of
Great Britain. By these agreements. the Chief of Bahrain those communications was not conveyed to the Sheikh of
recognized inter alia that certain acts of piracy had been Qatar.

coiiiniittedby Mahomedbir~Khalifah, his prede:cessor,and, In 1937,Qatarattemptedto iiiiposetaxation onthe Naim
"[iln viewof preservingthe peace at sea, and pr,:cludingthe tribe inhabitingthe Zubarahregion; Bahrain opposedthis as
occurrence of further disturbance and in order to keep the it claimed rights over this region. Relations between Qatar
Political Resident informed of what happens", liepromised and Bahrain deteriorated. Negotiations between the two
to appoint an agent with the Political Resident; for his part, States started in spring of 1937and were broken off in July
the Clhief of Qatar undertook inter alia to return to and of thatyear.
reside peacefully in Doha, not to put to sea with hostile
Qatar alleges that Bahrain clandestinely and illegally
intention, and, in the event of disputes orisurlderstanding occupiedtlie Hawar Islands in 1937.Bahrain iiiaiiitainsthat
arising, invariably to refer to the Political Resident. its Ruler was simply perfonning legitimate acts of
Acco:rding to Bahrain, the "events of 1867-1868" continuing administration in his ownterritory. By a letter
demonstrate that Qatar was not independent from Bahrain. dated 10 May 1938, tlie Ruler of Qatar protested to tlie
Acco~rdingto Qatar, on the contrary, the 1868 Agreements
formally recognizedforthe first time theseparateidentityof British Governinent against what he called "the irregular
Qatar. action taken by Bahrain against Qatar". to which he had
alreadyreferred in February 1938in a conversationin Doha
While Great Britain had become the dominslntmaritime with the British Political Agent in Bahrain. On 20 May
Power in the Gulf by this time, the Ottoman Empire, for its 1938,the latter wrote to the Ruler of Qatar, invitingiill to
part, had re-established its authority over extensive areas of statehis case on Hawar at the earliestpossiblemoment.The
the land on the southern side of the Gulf. In the years Ruler of Qatar responded by a letter dated 27 May 1938.
following the arrival of the Ottomans on the Qatar
Some months later, on 3 January 1939,Bahrain submitted a
peninsula, Great Britain further increased itsnfluence over counter-claim. In a letter of 30 March 1939, the Ruler of
Bahrain. On 29 July 1913, an Anglo-Ottoman "Convention Qatarpresentedhis commentson Bahrain'scounter-claimto
relating to the Persian Gulf and surroundingterritories" was the British Political Agent in Bahrain. The Rulers of Qatar
signed, but it was never ratified. Section 11 of this and Bahrainwere informed on 11July 1939 that theBritish
Conventiondealtwith Qatar.Article 11describedthe course Governmenthad decidedthat the Hawar Islandsbelongedto
of the line which, according to the agreement between the Bahrain.
parties, was to separate the Ottoman Sunjako:t'Nejd from
In May 1946, the Bahrain Petroleum Company Ltd.
the "peninsula of al-Qatar". Qatar points out that the sought pernlission to drill in certain areas of the continental
Ottomansand the British had also signed, on 9 Ivlarch1914, shelf, some of which the British consideredinight belong to
a treaty concerningthe frontiersof Aden, which was ratified Qatar. The British Governinentdecided thatthis peniiission
that same year and whose Article I11provided that the line could not be granted until there had been a division of the
separating Qatar from the Sunjak of Nejd would be "in sea-bed between Bahrain and Qatar. It studied the matter
accordance with Article 11 of the Anglo-Ottoman
Conventionof 29 July 1913relating to the Persian Gulf and and, on 23 December 1947, tlie British Political Agent in
Bahrain sent the Rulers of Qatar and Bahrain two letters, in
the surrounding territories". Undera treaty concluded on 3 the same terms, showing the line which, the British
November 1916 between Great Britain and the Sheikh of Government considered divided "in accordance with
Qatar, the Sheikh of Qatar bound himself intei:alia not to equitable principles the sea-bed aforesaid". The letter
"have:relations nor correspond with, nor rcceive the agent indicated fUrtherthat the Sliaik of Bahrain had sovereign
of, any other Power without the consent of the :HighBritish rights in the areas of tlie Dibal andaradah shoals (which
Government"; nor, without suchconsent, to cede to any
other Power or its subjects, land;nor, without such consent, should not be considered to be islands having territorial
waters), as well as over the islands Hawar group while
to grant any monopolies or concessions. In return, the noting thatJanan Island was not regarded as being included
British Governinent undertook to protect the: Sheikh of in the islandsof theawar group.
Qatar and to grant its "good offices" shouldthe Sheikh or In 1971Qatarand Bahrainceasedto be Britishprotected
his subjects be assailed by land within the territories of
Qatar. There was no provision in this treaty definingthe States. On 21 September 1971, they were both admitted to
extentof those territories. the UnitedNations.
Beginning in 1976,mediation, also referred to as "good
On 29 April 1936 the representative of Petroleum offices", was conductedby tlie King of Saudi Arabia with
Concessions Ltd. wrote to the British India Office, which the agreementof the Amirs of Bahrain and Qatar. The good
had responsibility for relations with the protected States in officesof King Fahd did not leadto the desiredoutcomeand
the Giulf,drawing its attention to a Qatar oil concession of
17May 1935and observingthat the Rulerof Bahrain, inhis on 8 July 1991Qatar institutedproceedingsbeforethe Court
negotiatioiis with Petroleum Concessions Lttl., had laid against Bahrain.
claiin to Hawar; he accordingly enquired to which of the

two Sheikhdoms(Bahrainor Qatar) Hawar belonged.On 14
July :1936,Petroleum ConcessionsLtd. was informedby the
India Office that it appeared to the British GovernmentthatSovereigrtty over Zzrharah regretted that it was "not prepared to intervene between

(paras. 70-97) Sheikhof Qatarand Naim tribe".
The Court notes that both Parties agree that the Al- In view of the foregoing, the Court finds that it cannot
Khalifah occupied Zubarah in the 1760s and that, some accept Bahrain's contentionthat Great Britain had always
regarded Zubarahas belongingto Bahrain. The terms of the
years later, they settled in Bahrain, but that theydisagree as 1868 agreement between the British Government and the
to the legal situation which prevailed thereafter and which Sheikhof Bahrain,of the 1913 and 1914conventionsand of
culminated in the events of 1937. In the Court's view,the
terms of the 1868Agreementbetween Great Britain and the the letters in 1937from the British Political Resident to the
Sheikh of Bahrain (see above) show that any attempt by Secretaryof State for India, and from the Secretaiy of State
Bahrain to pursue its claims to Zubarah through military to the:Political Resident, all show otherwise. In effect, in
1937the British Government did not consider that Bahrain
action at sea would not be tolerated by the British. The had sovereignty over Zubarah; it is for this reason that it
Court finds that thereafter, the new rulers of Bahrain were refused to provide Bahrain with the assistance which it
never in a position to engage in direct acts of authority in
Zubarah. Bahrain maintains, however, that the Al-Khalifah requested on the basis of the agreements in force between
continuedto exercise control over Zubarah through a Naim- the two countries. In the period after 1868,the authority of
led tribal confederation loyal to them, notwithstandingthat the Sheikh of Qatar over the territory of Zubarah was
at the end of the eighteenthcentury they had moved the seat gradually consolidated; it was acknowledged in the 1913
Anglo-Ottoman Convention and was definitively
of their government to the islands of Bahrain. The Court established in 1937. The actions of the Sheikh of Qatar in
does not accept this contention. Zubarah that year werean exercise of his authority on his
The Court considers that, in view of the role played by
Great Britain and the Ottoman Empire in the region. it is territory and, contraiy to whatBahrain hasalleged,were not
significant to note Article 11 of the Anglo-Ottoman an unlawful use of force against Bahrain. For all these
Coilventionsigned on 29 July 1913,which states inter alia: reasons, the Court concludes that the first submissionmade
by Bahrain cannot be upheld and thatQatar has sovereignty
"it is agreed between the two Governments that the said over icubarah.
peninsula will, as in the past, be governed by the Sheikh
Jasim-bin-Sani and his successors". Thus Great Britain and
the Ottotnan Empire did not recognize Bahrain's Sovei.eigizty over the Hu~lni-LYIuizd.~
sovereignty over the peninsula, including Zubarah. In their (paras. 98-148)
opinion the whole Qatar peninsula would continue to be
The Court then turns to the question of sovereigntyover
governed by Sheikh Jassirn Al-Thani, who had formerly the Hawar Islands, leaving aside the question of Janan for
been nominated kcrirr~akui?y the Ottomans, and by his the moment.
successors. The Court observes that the Parties' lengthy arguments
Both Parties agree that the 1913 Anglo-Ottoman on the issue of sovereignty over the Hawar Islands raise
Conventionwas never ratified; they differ on the other hand
as to its value as evidence of Qatar's sovereignty over the several legal issues: the nature and validity of the 1939
decision by Great Britain; the existence of an original title;
peninsula. The Court observes that signed but unratified dfectivitks: and the applicability of the principle of tlti
treaties may constitute an accurate expression of the possirietis jurito the present case. The Court begins by
understanding of the parties at the time of signature. In the considering the nature and validity of the 1939 British
circuinstances of this case the Court has come to the decision.Bahrain maiiltaiilsthat the British decisionof 1939
conclusion that the Anglo-Ottoman Convention does inust be consideredprimarily as an arbitral award, which is
represent evidence of the views of Great Britain and the
resjudicatcr.
Ottoman Empire as to the factual extent of the authority of It claims that the Court does not have jurisdiction to
the Al-Thani Ruler in Qatar up to 1913. The Court also review the award of another tribunal, basing its proposition
observes that Article 11 of the 1913Convention is referred on decisions of the Permanent Court of InternationalJustice
to by Article 111of the subsequentAnglo-Ottomantreaty of and the present Court. Qatar denies the relevance of the
9 March 1914, duly ratified that same year. The parties to
that treaty therefore did not contemplate any authority over judgtr~entscitedby Bahrain.It contendsthat
thepeninsulaother than thatof Qatar. "['Nloneof thein are in the slightest degree relevant to
the issuewhich the Courthas to determinein the present
The Court then examines certain events which took case, namely, whether the procedures followed by the
place in Zubarah in 1937, after the Sheikh of Qatar had British Government in 1938 and 1939 amounted to a
attempted to impose taxation on the Naim. It notes, inter
alia, that on 5 May 1937,the Political Resident reported on process of arbitration which could result in an arbitral
those incidents to the Secretary of State for India, stating awardbinding upon theparties".
The Court first considers the question whether the 1939
that he was "[plersonally, therefore, ...of the opinion that British decision must be deemed to constitute an arbitral
juridically the Bahrain claim to Zubarah must fail". In a award. It observes in this respect that theword arbitration,
telegram of 15 July 1937 to the Political Resident, the
British Secretary of State indicated that the Sheikh of for purposes of public international law. usually refers to
Bahrain should be informed that the British Government "the settlement of differences between States by judges oftheir .ownchoice, and on the basis of respect 63r law" and Islands. The 1939 decision inust therefore be regarded as a
tliat .this wording was reaffirmed in the work of the decisioiithat was bindingfroin the outset on both States and
Intern.ationa1Law Commission, which reserved the case continued to be binding on those same States after 1971,
where the parties might have decided that the requested when they ceased to be British protected States.The Court
decisiori should be taken ex mqlroetbono.The Court further observes that while it is true that the competent

observes that in the present case no agreement existed British officials proceeded on the premise that Bahrain
between the Parties to subinit their case to an arbitral possessed prima facie title to the islands and that the burden
tribun.almade up ofjudges chosen by them. who would rule of proving the opposite lay on the Ruler of Qatar, Qatar
either on the basis of law 0.rexmquoetbono. The Parties cannot maintain that it was contrary tojustice to proceed on
had only agreed that the issue would be decided by "His the basis of this premise when Qatar had been infosmed
Majesty's Government", bul:left it to the latter totermine before agreeing to the procedure that this would occur and
how that decision would bc arrived at, and by which had consented to the proceedings being coiiducted on that

officials. It follows that the decision whereby. in 1939, the basis. During those proceedings the two Rulers were able to
British Governinent held tha.tthe Hawar Islands belonged to present their arguments and each of them was afforded an
Bahrain, did not constitute an international arbitral award. amount of time which the Court considers was sufficient for
The Court finds that it does not therefore need to consider this purpose; Qatar's coiltention that it was subjected to
Bahrain's argument conceniiiig the Coust's jurisdiction to unequal treatment therefore cannot be upheld. The Court
examine the validity of arbitral awards. also notes that, while the reasoning supporting the 1939
decision was not coinmunicated to the Rulers of Bahrain
The Court observes, however, that the fact that a
decision is not an asbitral award does not 1nc:anthat the and Qatar, this lack of reasoiis has no influence on the
decision is devoid of legal effect. In order to determine the validity of the decision taken, because no obligation to state
legal effect of the 1939 Britisli decision, itn recalls the reasons had been imposed on the British Government when
events which preceded and immediately followed its it was entrusted with theettleinent of the matter. Therefore.
adopt:ion. Having done so, the Court considers Qatar's Qatar's contentionthat the 1939 British decision is invalid
arguil.ient challenging the validity of tlie 1!)39 British for lack of reasons cannot be upheld. Finally, the fact that
the Sheikh of Qatar had protested on several occasions
decision.
Qatar first contends that itnever gave its consent to have against the content of the British decision of 1939 after he
the question of the Hawar Islands decided by the British had been informed of it is not such as to render tlie decision
Government. unopposable to him. contrary to what Qatar maintains. The
The Court observes, however, that fol:!owing the Court accordingly concludes that the decision taken by the
British Government on 11 July 1939 is binding on the
Excha.ngeof Letters of 10 and 20 May 1938, the Ruler of parties. For all of these reasons,he Court concludes that
Qatar consented on 37 May 1938 to entrust decision of the Bahrain has sovereignty over the Hawar Islands. and that
Hawar Islands question to the British Goveimmant.On that thesubn~issionsof Qatar on this question caiinot be upheld.
day he had submitted his complaint to the British Political
Agent. Finally, like the Ruler of Bahrain, hehall consented The Court finally observes tliathe conclusion thus reached
to participate in tlie proceedings that were to lead to the by it on the basis of the British decision of 1939 iiiakes it
1939decision. Thejurisdiction of the British Governmentto unnecessary for the Couit to 11deon the argunleiits of the
Parties based on the existence of an original title,
take t.he decision concerni~~gthe Hawas Islarlds derived effectiviat nds,the applicability of the principle of uti
from these two consents; the:Court therefore has,no need to poLs.sidetitL ostJuprescnt case.
examine whether, in the abscnce or such consent, the British
Goveinment would have had the authority to clo so under
the treaties making Bahrain and Qatar protected States of Sovereigro lviyrJannn Island
Great Britain. (paras. 149-165)
Qatar maintains in the secoiid place that the Britisli
officials respoiisible for tlie:ar Islands question were The Court then considers the Pasties' claims to Janan
Island. Itegins by observing that Qatar and Bahsain have
biased and had prejudged the matter. The procedure differing ideas of what should be understood by the
followed is accordingly alleged to have violated "the rule expression "Janan Island". According to Qatar, "Janan isn
which prohibits bias in a decision-makeron the international island approximately 700 metres loiig aiid 175 nietres wide
plane". It is alsolaimed tliat the parties were not given an situated off the southwestern tip of the main Hawar
equal aiid fair opportunity lo present their argllnlents and island...".For Bahrain, the ten11 covers "two islands,
that th.edecision was not reasoned.
situatedbetween one and two nautical iniles off the southern
The Court begins by recalling tliat the 1939 decision is coast of Jaziratawar, which merge into a single island at
not a11arbitral award made upon coinpletion of arbitral low tide ...".After examinatioli of the arguments of the
proceedings. This does not, however, mean that it was Parties, the Court considers itself entitled to treatiand
devoid of all legal effect. Quite to the contrary. the Hadd Janan as one island.
pleadings, and in particular the Exchange of Letterseferred The Court then, as it has done in regard to the Parties'
to above, shows that Bahrain and Qatar consented to the
claims to the Hawar Islands, begins by considering the
Britisli Government settling their dispute over the Hawar effects of the Britisli decision of 1939 on the question ofsovereigntyoverJanan Island. As has alreadybeen stated, in Maritinle Deliiilitatioi~

that decision the British Government concluded that the (paras. 166-250)
Hawar Islands "belong[ed] to the State ofBahrain and not to Tlle Court then turns to the question of the maritime
the State of Qatar7'.No mention was made of Janan Island. delimitation.
Nor was it specified what was to be understood by the
expressioil "Hawar Islands". The Parties have accordingly It begins by taking note that the Parties are in agreement
debated at length over the issue of whether Janan fell to be that the Court should render its decision on the maritime
regarded as part of the Hawar Islands and whether, as a delimitation in accordance with international law. Neither
Bahrain nor Qatar isparty to the GenevaConventions on the
result, it pertained to Bahrain's sovereignty by virtue of the Law of the Sea of 29 April 1958; Bahrain has ratified the
1939 decisioil or whether, on the contrary, it was not United Nations Convention on the Law of the Sea of 10
covered by that decision.
In support of their respective arguments, Qatar and Deceinber 1982 but Qatar is only a signatory to it. The
Bahrain have each cited documents both anterior and Court indicates that customary international law, therefore,
posterior to the British decision of 1939. Qatar has in is the applicablelaw. Both Parties,however,agree that most
of the provisions of the 1982Convention which are relevant
particular relied on a "decision" by the British Government for the present case reflect customary law.
in 1947relating to the seabed delimitation between the two
States. ahr rain reca thatet had submitted four lists to the
British Government - in April 1936, August 1937, May A single ~izaritinzebotrndary
1938and July 1946 - with regardto the composition of the (paras. 168-173)
Hawar Islands.
The Court notes that, under the terms of the "Bahraini
The Court notes that the three lists submitted prior to formula"? the Parties requested the Court, in Deceinber
1939 by Bahrain to the British Government with regard to 1990, "to draw a single maritime boundary between their
the composition of the Hawar group are not identical. In respective maritime areas of seabed, subsoil and superjacent
particular, Janan Island appears by name in only one of waters".
those three lists. As to the fourth list,which is differentfrom The Court observes that it sho~ildbe kept in mind. that
the three previous ones, it does make express reference to
Janan Island, but it was submittedto the British Government the concept of "single maritime boundary" may encompass
a number of functions. In the present case the single
only in 1946, several years after the adoption of the 1939 maritime boundary will be the result of the delimitation of
decision. Thus, no definite conclusion may be drawn from variousjurisdictions. In the southernpart of the delimitation
tl~esevarious lists. area, which is situated where the coasts of the Parties are
The Court then considers the letters sent on 23 oppo:;iteto each other, the distance between these coasts is
December 1947by the British Political Agent in Bahrain to nowhere inore than 24 nautical miles. The boundary the
the Rulers of Qatar and Bahrain. By those letters the Coun: is expected to draw will, therefore, delimit

Political Agent acting on behalf of the British Government exclusively their territorial seas and, consequently, an area
informed the two States of the delimitation of their seabeds over which they enjoyterritorial sovereignty.
effected by the British Government. This Government, More to the north.however, where thecoasts of the two
which had been responsible for the 1939 decision on the State:; are no longer opposite to each other but are rather
Hawar Islands, sought, in the last sentence of subparagraph comparableto adjacent coasts, the delimitationto be carried
4 (ii) of these letters, to make it clear that "Janan Island is out will be one between the continental shelf and exclusive
not regarded as being included in the islands of the Hawar
group". The British Government accordingly did not economic zone belonging to each of the Parties, areas in
which States have only sovereign rights and functional
"recognize" the Sheikh of Bahrain as having "sovereign jurisdiction. Thus both Parties have differentiated between a
rights" over that island and, in determining the points fixed southern and a northern sector.
in paragraph 5 ofthose letters,aswell as in drawingthe map The Court further observes that the concept of a single
enclosedwith those letters,it regardedJanan as belongingto maritime boundary does not stem from multilateral treaty
Qatar. The Court considers that the British Government,in
thus proceeding, provided an authoritative interpretation of law but from State practice, and that it finds its explanation
the 1939 decision and of the situation resulting from it. in the:wish of States to establishone uninterrupted boundary
line delimiting the various- partially coincident- zones
Having regard to all of the foregoing, the Court does not of maritimejurisdiction appertainingto them. In the case of
accept Bahrain's argument that in 1939 the British coincidentjurisdictional zones, the determinationof a single
Government recognized "Bahrain's sovereignty over Janan boundary for the differentobjectsof delimitation
as part of the Hawars". It finds that Qatar has sovereignty
over Janan Island including Hadd Janan, on the basis of the "can only be carried out by the applicationof a criterion,
decision taken by the British Government in 1939, as or combination of criteria, which does not give
interpreted in 1947. preferential treatment to one of these ...objects to the
detriment of the other and at the same time is such as to
be equallysuitable to the divisionof either of them",

as was stated by the Chamber of the Court in the Gtrlfof
Maitzecase. In that case, the Chamberwas asked to draw asingle line which would delimit both the continental shelf which are to be used for the determinationof the breadth of
and the superjacentwater column. the territorial sea,or have they produced official maps or
charts which reflect such baselines. Only duringthe present

Ddinzitntioiz of the territorial sea proceedings have they provided the Court with approximate
(paras. 174-223) basepoints which in their view could be usedby the Court
for the determinationof the maritime boundary.
Dselimitation of territorial seas does not present
conl~tarableproblems, since the rights of the coastal State in Therelevant coasts
the a.rea coilcerned are not functional but teiritorial, and
entai'l sovereignty over the sea-bed and the superjacent (paras. 178-216)
waters and air colun~n.Therefore, when carrying out that The Court indicates that it will therefore first determine

part of its task. the Courtlnasto apply in the present case the relevant coasts of the Parties, from which will be
firstand foremost the principles and rules of international determined the location of the baselines, and the pertinent
customary law which refer to the delimitation of the basepoints froin which enable the equidistance line to be
tei~itorialsea, while taking :intoaccount that itsultimatetask measured.
is to draw a single inaritiine boundary that serves other Qatar has argued that, for purposes of this delimitation,
purposes as well. The Parties agree that the provisions of it is the mainland-to-mainland method which should be
Article 15 of the 1982 Convention on the Lawof the Sea,
applied in order to construct the equidistance line. Itclaims
headed "Delimitation of the territorial sea between States that the notion of "mainland" applies both to the Qatar
with opposite or adjacentcoasts", are part of customary law. peninsula, which should be understood as including the
This Articleprovides: main Hawar island, and to Bahrain, of which the islands to
"Where the coasts of two States are opposite or be taken into considerationare al-Awal (also called Bahrain
adjacent to each other, neither of the bro States is Island), together with al-Muhamaq and Sitrah. For Qatar,

entitled, failingagreementbetweenthein to -thecontrary, application of the mainland-to-inainland inethod has two
to extend its territorial sea beyond themedian line every main consequences. First, it takesno account of the islands
point of which is equidistant from the nearest pointon (except for the above-inentioncd islands, Hawar on the
the baselines from which the breadth of the territorial Qatar side and al-Awal, al-Muharraq and Sitrah on the
seas of each of the two States is measured. The above Bahrainside), islets, rocks, reefs or low-tide elevations lying
provision does not apply, however, whereit is necessary in the relevant area. Second, in Qatar's view, application of
byreasoil of historic title or other special circumstances the mainland-to-mainland method of calculationwould also

to delimit the territorial seas of the two States in a way mean that the equidistance line has to be constructedby
which isat variance therewith." reference to the high-water line.
The Court notes that Article 15 of the 1982 Convention Bahrain contends that it is a de facto archipelago or
is virtually identical to Article 12,paragraph 1,of the 1958 multiple-island State, characterizedby a variety of maritime
Convention on the Territorial Sea and the Contiguous Zone, features of diverse characterand size. All these features are

and i:3to be regarded as having a customary character.It is closely interlinked and togetherthey constitute the State of
often referred to as theequidistance/specialcir~:umstances" Bahrain;reducingthat Stateto a limited numberof so-called
rule. The most logical and widely practisedappi-oachis first "principal" islands would be a distortion of reality and a
to draw provisionally an equidistance line and then to refashioning of geography. Since it is the land which
consider whether that line :mustbe adjusted in the light of determines maritime rights, the relevant basepoints are
the existence of specialcircnmstances. situated on all those maritime features over which Bahrain
has sovereignty. Bahrain further contends that, according to
The Court explains that once it has delimited the
territorial seas belongingto the Parties, it will determine the conventional and customary internationallaw. it is the low-
rules and principles of customarylaw to be applied to the water line which is determinative for the breadth of the
delimitation of the Parties' continental shelves and their territorial sea and for the delimitation of overlapping
exclusive econoinic zones or fishery zones. The Court will territorial waters. Finally, Bahrain has stated that, as a de
further decide whether the method to be chosen for this facto archipelagic State, it is entitled to declare itself an
archipelagic State under Part IV of the 1982Law of the Sea
delimitation differs from or is similar to the approach just Convention and to draw the permissive baselines of Article
outlined.
47 of that Convention, i.e., "straight archipelagic baselines
The equidistccnceline joining the outermost points of the outermost islands and
(paras. 177-216) drying reefs of the archipelago". Qatar has contested
Bahrain's claim that it is entitled to declare itself an
The Court begins by noting that the equidistance line is archipelagic Stateunder PartIV of the 1982Convention.
the line every point ofwhich is equidistant from the nearest
point; on the baselines fiom which the breadth of the With regard to Bahrain's claim the Court observes that
Bahrain has not made this claim one of its formal
territorial seas of each of the two States is measured. This submissions and that the Courtis therefore not requested to
line can only be drawn when the baselines are known. take a position on this issue. What the Court, however,is
Neither of the Parties has as yet specified tlie baselines called upon to do is to draw a single maritime boundaryinaccordance with international law. The Court can carry out Qit bt Juvccclrrh
this delimitation only by applying those rules and principles (paras. 191-198)
of customary law which are pertinent under the prevailing Another issue on which the Parties have totally opposing
circumstances. It emphasizes that its decisio~lwill have
binding force between the Parties, in accordance with view:; is whether Qit'at Jaradah is an island or a low-tide
Article 59 of the Statute of the Court, and consequently elevation. The Court recalls that the legal definition of an
could not be put in issue by the unilateral action of either ofisland is "a naturally formed area of land, surrounded by
water, which is above water at high tide" (1958 Convention
the Parties, and inpal-ticular,by any decision of Bahrain to on the Territorial Sea andConti~wousZone, Art. 10,para. 1;
declare itself an archipelagic State. 1982 Convention on the Law of the Sea, Art. 121,para. 1).
The Court, therefore, tui~lsto the determination of the
relevant coasts from which the breadth of the territorial seas The Court has carefully analysed the evidence subnlitted by
of the Parties is measured. In this respect the Court recalls the Parties and weighed the conclusions of the experts
refei~ed to above, in particular the fact that the experts
that under the applicable n~les of international law the appointed by Qatar did not theinselves maintain that it was
normal baseline for measuring this breadth is the low-water scientifically proven that Qit'at Jaradah is a low-tide
line along the coast (Art. 5, 1982onveiltioilon the Law of elevation. On these bases, the Court concludes that the
the Sea). maritime feature of Qit'at Jaradah satisfies the above-
In previous cases the Court has made clear thataritime
mentioned criteria and that it is an island which should as
rights derive from the coastal State's sovereignty over the such be taken into consideration for the drawing of the
land, a principlc which can be summarized as "the land equidistance linc. In the present case, taking into account the
dominates the sea". It is thus the terrestrial territorial size of Qit'atJaradah, the activities carried out by Bahrain
situation that must be taken as starting point for the on that island illust be considered sufficient to support
deterinination of the maritime rights of a coastal State. In Bahrain's claim that it has sovereigntyover it.
order to deternline what constitutes Bahrain's relevant
coasts and what are the relevant baselines on the Bahraini
FcrsR ud Dibal
side, the Court must first establish whicli islands come (paras. 199-209)
under Bahraini sovereignty. The Court recalls that it has
concluded that the Hawar Islands belong to Bahrain and that Both Parties agree that Fasht ad Dibal is a low-tide
Janan belongs to Qatar. It observes that other islands which elevation. Whereas Qatar maintains - just as it did with
can be identified in the delimitation area which are relevant regard to Qit'at Jaradali that Fasht ad Dibal as a low-tide
for delimitation purposes in the southern sector are Jazirat elevation cannot be appropriated, Bahrain contends that
Mashtan and Umm Jalid, islands which are at high tide very low-tide elevations by their very nature are territory, and

sinall in size, but at low tide have a surface whicli is therefore can be appropriated in accordance with the criteria
considerably larger. Bahrain claims to have sovereignty which pertain to the acquisition of territory. "Whatever their
over these islands,a claim which is not contestedby Qatar. location, low-tide elevations are always subject to the law
which governs the acquisition and preservation of territorial
sovereignty,with its subtledialectic of title and effecti~~itk~s."
Fusht a1Aznz The Court observes that according to the relevant
(paras. 188-190)
However, the Parties are divided on the issue of whether provisions of the Conventions on the Law of the Sea, which
reflect customary international law, a low-tide elevation is a
Fasht a1Azm illust be deemed to be part of the island of naturally formed area of land which is surrounded by and
Sitrah or whether it is a low-tide elevation which is not above water at low tide but submerged at high tide (1958
ilaturally connected to Sitrah Island. In 1982 Bahrain Convention on the Territorial Sea and the Contiguous Zone,
undertook reclamation works for the construction of a Art. 11, para. 1; 1982 Convention on the Law of the Sea,
petrocheinical plant, during which an artificial channel was
dredged connecting the waters on both sides of Fasht a1 Art. 13,para. 1).When a low-tide elevation is situated in the
Azm. After careful analysis of the various reports, overlapping area of the territorial sea of two States, whether
with opposite or with adjacent coasts, both States in
docuillents and charts submitted by the Parties, the Court principle are entitled to use its low-water line for the
has been unable to establish whether a permanent passage measuring of the breadth of their territorial sea. The same
separating Sitrah Island from Fasht a1Azm existed before low-tide elevation then forms part of the coastal
the reclamation works of 1982 were undertaken. For the configuration of the two States. That is so even if thelow-
reasons explained below, the Court is nonetheless able to
undertake the requested delimitation in this sector without tide elevation is nearer to the coast of one State than that of
the other, or nearer toan island belonging to one party than
determining the question whether Fasht a1 Azm is to be it is to the mainland coast of the other. For delimitation
regarded as part of the island of Sitrah or as a low-tide purposes the competing rights derived by both coastal States
elevation. from tlie relevant provisions of the law of the sea would by
necessity seein to neutralize each other. In Bahrain's view,

howe:ver,it depends upon the effectivi pressnted by the
two coastal States which of them has a superior title to the
low-tide elevation in question and is therefore entitled toexercise the right attributedby the relevant provisions of the may be assimilatedto a fringe of islands which constitute a

law of the sea, just as in the case of islands which are whole with the mainland. The Coui-tdoes not deny that the
situated within the liinits of the breadth oftlie territorial seamaritime features east of Bahrain's niain islands are partof
of more than one State.In the view of the Court thedecisive the overall geographical configuration; it would be going
question for the present caseis whether a State can acquire too far, however,to qualifythein as a fringe of islands along
sovert:ignty by appropriati,on over a low-tide elevation the coast. The Court, therefore, coiicludes that Bahrainis
situated within the breadth of its territorialsea when that not entitled to apply the iiietliodof straight baselines. Thus

same low-tide elevation lies also within the breadth of the each maritime feature has its own effect for the
territorial sea of another State. determinationof the baselines. on the understanding that, on
Iiiteniationaltreaty law is silent on the question whether the grounds set out before, the low-tide elevations situated
low-tide elevations canbe coilsideredto be "territory". Nor in the overlapping zone of territorial seas will be
is the Court awarc of a ilnifonii and wideslpread State disregarded. It is on this basis that the equidistance line
must be drawn. The Coui-t notes, however, that Fasht a1
practice which might have given rise to a cus;;oniaryrule Azrn requires special mention. If this feature were to be
which uiiequivocally penni1:sor excludes appropriation of
low-tide elevations. It isonly in the context of thelaw of the regarded as part of the islalid of Sitrah, the basepoints for
sea that a number ofpermis:;iverules have been established the purposes of determiningthe eqilidistanceline would be
with regard to low-tide elevations which are situated at a situated on Fashta1Azin's eastein low-water line.If it were
relatively short distancefrom a coast.The few existingrules not to be regarded as part of the island of Sitrah, Fasht a1
do not justify a general assu.mptionthat low-tide elevations Azm could not provide such basepoiiits. Asthe Court has
not determined whether this feature does form part of the
are territory in tlie same sense as islands. It has never been
disputed tliat islands constitute terrainna, and are subject island of Sitrah, it has drawn two equidistance lines
to the ~ules and principles of territorial acquisition; the reflectingeachof these hypotheses.
difference in effects wliich the law of the sea attributes to
islands and low-tide elevations is considerable.It is thusnot Special ci~uiilstailces
established that in the absence of other rule:; and legal (paras. 217-223)
princi-ples,low-tide elevaticas can, froin the viewpoint of
The Courtthen turns to the questionof whether there are
the acquisition of sovereignty, be fully assirr~ilatedwith special circumstances which make it necessary to adjust the
islands or other land territory. In this respect the Court equidistance line as provisionally drawn in order to obtain
recall:;the rule tliat a low-tide elevation wliich is situated
beyond the limits of the territorial sea does not have a an equitable result in relation to this part of the single
territorial sea of its own. A low-tideelevation, therefore,as maritimeboundaryto be fixed.
such does not generate the saine rights as islar.!dsor other With regard to the question of Fasht a1Azm, tlieCourt
considers that on either of the above-mentioned hypotheses
territory. The Court,conseqneiitly,is of the view that iiithe there are special circumstances which justify choosing a
prescnt case there is no grotlildfor recognizing the rightof
Bahrain to use as a baseline thelow-water line of those low- deliiiiitatioi~line passing between Fasht a1Azrn and Qit'at
tide elevations which are situatedin the zone of overlapping ash Shajarah.With regard to the question of Qit'at Jaradah,
claim:;,or for recognizii~gQatar as having such a right. The the Court observesthat it is a very small island, uninhabited
Court accordingly conc1ud.e~that for the purposes of and without any vegetation. This tiny island, which - as
drawing the equidistance line, such low-tide elevationsmust the Court has determined - comes under Bahraini
be disregarded. sovereignty, is situated about midway between the main
island of Bahrain and the Qatar peninsula. Consequently,if

hfethod of strc~ightbaselines its low-water line were to be used for deteimining a
(paras. 210-216) basepoint in the construction of the equidistance line, and
this line taken as the delimitation line, a disproportionate
The Court further observes that the method of straight effect would be given to an insignificant maritime feature.
baselines, which Bahrain ap:pliedin its reasoning and in the The Court thus finds that there is a special circumstance in
maps provided to the Court, is an exception to the normal this case warrantingthe choice of a delimitation line passing
rules for the detenninatioi~of baselines and may only be immediatelyto the east of Qit'at Jaradah.

applied if a11ui11beorf conditions aremet. Thismethodmust The Court observed earlier that, since it did not
be applied restrictively. Such conditions arc pr:imarilythat determine whether Fasht a1Azrn is part of Sitrah islandor a
either the coastline is deeply indented and cut into,or that separate low-tide elevation, it is necessary to draw
there is a fringe of islandsalong the coast in its immediate provisionally two equidistance lines. If no effect is given to
vicinity. The fact that a State considers itself a multiple- Qit'at Jaradah and in the event that Fasht a1 Azrn is
island State or a de facto archipelagic State doesnot allow it
to deviate from the normal rules for the determination of considered to be part of Sitrah island, the equidistance line
thus adjusted cuts through Fashtad Dibal leavingthe greater
baselines unless therelevant conditions are met. The coasts part of it on the Qatari side. If, however, Fashtal Azrn is
of Bahrain's main islandsdo not form a deeply indented seen as a low-tide elevation, the adjusted equidistance line
coast, iior does Bahrain claim this. It contends, however, runs west of Fasht ad Dibal.In view of the fact that under
that the maritime features o:Ffthe coast of the niain islands both hypotheses, Fasht ad Dibal is largely or totally on theQatari side of the adjusted equidistance line, the Court that the equidistancelspecial circumstances rule, which is
considers it appropriateto draw the boundary line between applicable in particular to the delimitation of the territorial
Qit'atJaradahand Fasht ad Dibal.As Fasht ad Dibal thus is sea,andthe equitable principleslrelevantcircumstancesrule,
situated in the territorial sea of Qatar, it falls under the as it has been developed since 1958in case-law andState
sovereigntyof that State. practice with regard to the delimitation of the continental
shelf aid the exclusive economic zone, are closely
On these considerations the Court findsthat it is in a interrelated.
position to determine the course of that part of the single
maritime boundary whichwill delimit the territorial seas of The Court then examines whether there are
the Parties.Before doingso the Courtnotes, however,that it circilmstanceswhich mightmake it necessary to adjust the
cannot fix the boundary's southern-most point, since its equidistance line in order to achieve an equitable result.
definitive location is dependent upon the limits of the With regard to Bahrain's claiin conceniing the pearling
respective maritime zones of Saudi Arabia and of the industry, the Court first takes note of the fact that that

Parties. The Court also considers it appropriate, in industry effectively ceased to exist a considerabletime ago.
accordance with common practice, to simplifywhat would It hrther observes that, from the evidence submittedto it, it
otherwise be a very complex delimitation linein the region is clear that pearl diving in the Gulf area traditionally was
of theHawarIslands. considered as a right which was common to the coastal
Taking accountofall of the foregoing,the Court decides population. The Court, therefore, does not consider the
that, from the point of intersection of the respective existenceofpearlingbanks, thoughpredoininantlyexploited
in the past by Bahraini fishermen, as forming a
maritime limits of Saudi Arabia on the one hand and of circumstance which wouldjustify an eastward shifting of
Bahrain and Qatar on the other, which cannotbe fixed, the
boundary will follow a north-easterly direction, then the ~zquidistanceline as requested by Bahrain. The Court
immediately turn in an easterly direction. afterwhich it will also considers that it does not need to determine the legal
pass between JaziratHawar and Janan; it will subsequently character of the "decision" contained in the letters of 23
turn to the north and pass between the Hawar Islands and December 1947of the British Political Agent to the Rulers
the Qatar peninsula and continue in a northerly direction, of Bahrainand Qatar with respectto the division of the sea-
leaving the low-tide elevation of Fasht Bu Thur, and Fasht bed, which Qatar claims as a special circumstance. It
suffices for it to note that neither ofthe Parties has accepted
a1Azm, on the Bahraini side,and the low-tideelevationsof
Qita 'a el Erge and Qit'at ash Shajarah on the Qatari side; it as a binding decision and that they have invoked only
finally it will pass between Qit'at Jaradah and Fasht ad parts of itto supporttheirarguments.
Dibal, leaving Qit'atJaradah on the Bahraini sideand Fasht Taking into account the fact that it has decided that
ad Dibal on the Qatari side. Bahrain has sovereignty overthe Hawar Islands, the Court
find:;that the disparity in length of the coastal fronts ofthe
With reference to the questionof navigation, the Court Parties cannot, as Qatar claims, be considered such as to
notes that the channel connecting Qatar's maritime zones
situatedto the south of theHawarIslands and those situated necessitatean adjustmentof the equidistanceline.
to the north of those islands, is narrow and shallow, and The Court finally recalls that in the northern sector the
little suited to navigation. It emphasizes that the waters coasts of the Parties are comparable to adjacent coasts
lying between the Hawar Islands and the other Bahraini abutting on the same maritime areas extending seawards
islands are not internal waters of Bahrain,but the territorial into the Gulf. The northern coasts of the territories
sea of that State. Consequently,Qatari vessels, like those of belonging to the Parties are not markedly different in

all other States, shall enjoy in these waters the right of character or extent; both are flat and have a very gentle
innocent passage accordedby customary internationallaw. slope. The only noticeable element is Fasht a1Jarim as a
In the same way, Bahraini vessels, like those of all other remote projection of Bahrain's coastlinein the Gulf area,
States, enjoy the same right of innocent passage in the which, if given full effect, would "distortthe boundary and
territorial seaof Qatar. have disproportionateeffects". Inthe viewof the Court such
a distortion,due to a maritimefeature locatedwell outto sea
and of which at most a minute part is above water at high
Delinzitation of the continental shelfand
exclusive economiczorze tide, would not leadto an equitable solutionwhich wouldbe
(paras. 224-249) in accordwith all other relevant factorsreferredto above.In
the circumstances of the case considerations of equity
The Court then deals with the drawing of the single require that Fasht a1 Jarim should have no effect in
maritime boundary in that part of the delimitation area deteiminingtheboundarylinein the northern sector.
which covers both the continental shelf and the exclusive The Court accordingly decidesthat the single maritime
economic zone. Referring to its earlier case-law on the
drawing of a single maritime boundary the Court observes boundaryinthis sector shallbe formedinthe firstplaceby a
that it will followthe same approachin the present case. For line which, from a point situated to thenorth-westof Fasht
the delimitation of the maritime zonesbeyond the 12-mile ad Dibal, shall meet the equidistancelineas adjustedto take
accountofthe absence of effect given to Fashta1Jarim. The
zone it will first provisionallydraw an equidistanceline and bourtdary shall then follow this adjusted equidistance line
then consider whether there are circumstances whichmust until it meets the delimitation line between the respective
lead to an adjustment of that line. The Court further notesmaritime zones of Iran on the one hand and of Eiahrainand 41 26" 43' 58" 51" 3' 16"
Qatar on the other. 42 27" 2' 0" 51" 7' 11"
*
Below point 1, the single maritime boundary shall
follow,in a south-westerlydirection,a loxodromehaving an
The Court concludes from all of the foregoing that the azimuth of 234"16'53",until it meets the delimitation line
single maritime boundary that divides the various maritime
zones of the State of Qatarnd the State of Bahri~inshallbe between the respective maritime zones of Saudi Arabia on
formed by a series of geodesic lines joining, in the order the one hand andof Bahrainand Qataron the other. Beyond
point 42, the single maritime boundary shall follow, in a
specified,thepoints with the followingcoordinates: north-north-easterly direction, a loxodronle having an
(WorldGeodeticSystem, 1984) azinluth of 12"15'12",until it meets the delimitation line

Loitgitude between the respective maritime zones of Iran on the one
50" 34' hand and of Bahrainand Qataron the other.
The course of this boundary has been indicated, for
50" 34' illustrativepurposes only, on sketch-mapNo. 7 attached to
50" 41'
the Judgment.
50" 41'
50" 44' Separate opiitioit ofJzrdgeOda
50" 45'
Judge Oda voted in favour of the Court's deli~nitationof
50" 46' a maritime boundary between the Parties in the hope that
50" 46' they - in the spirit of co-operation between friendly,

50" 47' ~leighbouri~lgStates - will find it mutually acceptable.
50" 48' Judge Odadisagrees,however,with the Court'smethods for
50" 48' determination of the maritime boundary and, further, with
the Court's decision to demarcatethe boundary's precise
50" 48' geographic coordinates. Accordingly, he sets out his views
50" 49'
in a separateopinion.
50" 48' Judge Oda first notes that the region of Zubarah
50" 47' occupies a procedurally distinct place in the present
50" 46' proceedings. Hc expresses his pleasure that the Court

50" 47' reaches a unanimous decision as to the sovereigntyof Qatar
50" 49' over this territory. Further, Judge Oda remarks upon the
relevance of the exploitationof oil reserves to many aspects
50" 50' of the dispute, includingthe Parties'nt decision (via their
50" 50' Special Agreement) to place certain land masses and
50" 50'
maritime features within the Court's jurisdiction and the
50" 50' expectations of the Parties with regard to the types of
50" 51' boundary they expect the Courtto delimit.
Judge Oda makes special mention of the Court's
50" 51' treatment of low-tide elevations and islets. He revisits at
50" 51'
50" 52' length the negotiating history of the law of the sea in order
to demonstratenuances of the issue not fully dealt with by
50" 51' the Court. In particular, Judge Oda notes the incongruity
50" 51' between the expansion of the territorial sea from3 to 12
miles and the rtgime under which low-tide elevations and
50" 51'
50" 50' islets are accorded territorial seas of their own; he further
50" 49' expresses the view that such a rtgime, addressed only
indirectly by the relevant provisions of the1982 United
50" 49' Nations Convention on the Law of the Sea, might not be
50" 48' considered customaly internationallaw.

50" 51' Judge Oda disagrees with the Court's use of the phrase
50" 54' "single maritime boundary" and notes the distinction
50" 55' between thertgimes governingthe exclusiveeconomiczone
(EEZ) and the continental shelf on the one hand and the
50" 55'
50" 55' territorialsea on the other.Accordingly.the Court's use ofa
"single maritimeboundary" isinappropriate.Judge Oda also
50" 57' objectsto theC0u1.t'~decisionto delimitthe southern sector
50" 59' asa territorialsea.He statesfurtherthat, even if thet'sapproach to the southern sector is appropriate, the Court conditions necessary to make the solutions it has arrived at
nonetheless misinterprets and misapplies the rules and socially acceptable, and that it will thus be capable of
principles governingthe territorial sea. In this regard, Judge performingto the full its calming,peace-makingfunction.
Oda notes that the "equidistru~ce/specialircumst;mces7r'ule
Turning to the question of the respective judicial
mistakenlyemployedby the Court for purposes of territorial strategies adopted by the Parties before the Court, Judges
sea delimitation instead pertains to the coiltinental shelf Bedjaoui, Ranjeva and Koroma set out the whole range of
rtgime. Judge Oda approves of the Court's attempt to legal grounds put forwardby the Parties and regret that the
determine a continental shelf boundary in the northern Court applied itself to considering only one of those
sector, but he feels that the Court does not adequately grounds, the British decision of 1939, which served as
explain the methods by which it anives at its final line of virtually the sole basis of the Court's Judgment. Judges
den~arcationin this sector.HI:concludeshis criticism of the
Bedjaoui, Ranjeva and Koroma fear thatthe Court is thus
Court's approach to this case by noting that the Court today handing down only an ittfrapetitcl ruling, as it has
should have indicated princil?lesto guide the drawing of a ignored all of the other grounds relied on by the Parties.
maritirne boundary without actually indicating the precise Moreover, theCourt's analysisof the formal validity of the
contours of the boundary itself. Judge Oda recalls in this 1939 British decision is incomplete and questionable.
regard his separate opinion in the case concerninl;Maritime However, Judges Bedjaoui, Ranjeva and Koroma do agree
Delimitatiotlin theArett hehaeil Greeillandaizd.JanMayeit with the Court that that 1939 decision was a political

(1993), wherein he noted that the application OFequitable decision and not an arbitral award having the authority of
principles affords an infinite variety of possibleoundaries; resjitdicata. They agree also that the first condition for the
the Coui-tshould exercise moderation and self-restraint and validity of the 1939 decision is the consent of the Parties.
avoid unjustifiable precision in its decisions on maritime But they are of the opinion that the circumstances of the
boundaries. Precise demarcationof the boundary can be left case and the historical context clearly demonstrate that the
to a pzmelof experts to be appointedjointly by the parties consentgivenby one of the Parties,which shouldhave been
for such purpose.
express, informed and freely given, as in the case of any
Having identified the flaws in the Court's approach, territorial dispute, was tainted here with elements offraud.
Judge (3dathen presents his own views.Noting tlie region's Thus, restrictingthemselvesto an examinationof the purely
political history and the importance therein of oil formal validity of tlie British decision of 1939, Judges
exploitation,Judge Oda opinesthat this case shouldconcern Bedjaoui, Ranjeva and Koroma find that that decision
demarcation only of continental shelf boundarics and not cannot properly serve as a valid legal title for an award of
those of territorial seas. After an extensive review of the theHawarIslands.

development of the rtgiine of the continental shelf (by Further, that decision was not binding upon the Parties,
reference to the negotiating history of the relevant for the consent of one of them, which was moreover
provisions of the 1958 and 1982 treaties on the law of the hndainentally flawed, was only a consent to the
sea and their attendant United Nations conferences), Judge proceedingsand in no sense a consentto the decisionon the
Oda reiterates his preference for an equitableolt~tionto the merits.
dispute. Judge Oda notes that his stance acc:ords with
positio:nstaken consistently .throughout hisjudicial career, The co-authors of the opinion regret, moreover, that the
Court failed to examine the substantive validity of the
as evidenced for example in liis argumentas cour~selfor the British decision of 1939,which, in their view,prevented the
FederalRepublic of Germanybefore this Court in the North Court from taking its considerationof the case to its logical
Sea Cc~rztiizentalShelfcases (1969). He prefers modesty in conclusion and reaching a compromise, or "o ~tinima"
the face of a geographicallyconlplex situation and suggests solution, consisting in sharing the Hawar Islands on the
principles to guide delimitation based on a
n~acrogeogi-aphicdapproach. In order to make clear the basis of Bahrain's effectivitks. The true signification and
direction of his thinking, Judge Oda appends two sketch constructionof the Bahraini fonnula need to be determined,
so that its internal coherence may be restored. In passing,
maps r,epresenting"one line fromamongthe man:, linesthat the co-authors note that there is a manifest incompatibility
may reasonablybe proposed". between theapplication of the Bahraini formulato the case
and the application of the principle of uti possidetis juris,
hint dissetzting opinioil of Judges Benjaoui, which the Court correctlydid not apply in this case. But the
Ranjeva and Koi-oma
In the introduction to their opinion, Judges Bedjaoui, question of effectivitks, which the Court sought to avoid
Ranjeva and Koroma, who regret that they had no other examining, was inevitably bound to come up again by
choice than to distance themselves from the majority, point reason of the very fact thatthe Court chose to base itself on
a legal ground deriving from the 1939 decision. Thus any
out that the dispute is a recurring one of long standing and examination of the substantive validity of that decision
that the case involves special difficulties. They call on the would have impelled theCourt to undertakean examination
Parties to draw upon the infinite resources offered by their of the efectivitks, for the Weightman Report - which
common genius to find the will to transc.end their
frustrationsthroughcooperation. underlay the British decision - justifies the award of the
main Hawar Island ("Jazirat Hawar") on the basis of
Judges Bedjaoui, Ranjeva and Koroma hope in this efectivitks, while the awardof the remainingHawar Islands
connection that the judicial settlementwill have inet all theis based on a simple presumption of eflectivitks. In this was combined with that of Bahrain, whose long tacit
regard, the co-authors of the dissenting opinion note an acquiescence marked the loss of its title, and with the
internal coiitradiction in the Weightman Report and the dian~etricallyopposite conduct of the successive Sheikhs of

application of a double standard as regards the principle of Qata.r, who extended their authority throughout the
proximity. In sum, the Court's Judgnient is notable for the penhsula of Qatar. This was all reflected in treaties. The
fact that it rulesu1tr.nyetitn", on the basis of ejectivitb Anglo-Ottoman Conventions of 1913 and 1914,the Anglo-
liinited to "Jazirat Hawar" and totally absent in the other Saudi Treaties of 1915 and 1927and, most importantly,the
islandsand isletsof the Hawar archipelago. 1916 Agreement between Great Britain and Qatar show
most clearly that Qatar had since 1868graduallyestablished
The co-authors note that, subsequently to its 1939 a historical title to the entire peninsula, including its
decision, the United Kingdoin showed some hesitation and
expressed doubts as to the correctness of that decision, adjacent features, which was definitively consolidated
going so far as to agree in the 1960sthat tliedecision be re- throughthe Anglo-Qatari Agreement.
examinedby some "neutral" authority. no doubt in the form According to the co-authors, the convergenceof history
of an arbitration. Added to this were the persistent protests and law, as interpreted in accordance with law, is also
by Qatar and its refusal to acquiesce either in the said matched in this case by the convergence of geography and

British decision of 1939 or in the successive acts of law, which serves as a countercheck to confirm the
occupation of Jazirat Hawar by Bahrain. This permanent existence of a valid, certain title held by Qatar to the
attitude of non-renunciation by Qatar, combined with the Hawars. The question of geographical proximity has given
weakness of the .Jfectivitb on tlie islands other than Jazirat birth to a legal concept which we ignore at our peril. The
Hawar, are, in the co-authors' view,such as to prevent the notion of "distance" has been given legal expression in
creation of a title in favour of Bahrain over thewars. The various ways in the modern international law of the sea.
These include the establishment of a strong legal
Judgment should also have taken account of the failure to
observe the territorial status quo, both during the period presumption that all islands lying in a coastal State's
1936-1939 when the final British decision was being territorial sea belong to that State. The co-authors believe
prepared, aiid in the course of the Saudi mediation from that the issue of the territorial integrity of a coastal State
1983, and since 1991 when the case has been szrhjudice deserved closer attention from the Court. From this
beforethe InternationalCourtof Justice. perspective, the solution for a legally unassailable award of
the .HawarIslands was obvious, and the law would have
According to the co-authors, there is no choice but to
return to the crucial ground which the two Parties argued at been inperfect harmonywith both historyand geography.
length and which the Court unfortunately disregarded: Judges Bedjaoui, Ranjeva and Koroma also regret the
identifying the historical title to the Hawars. Given the silence of the Judgment on the subject of the map evidence.
major importance taken on by historical facts in the Though it is true that the evidentiary importance of
dynamics of legal disputes over territory, tlie adjudicating cartographic material is only relative, it nevertheless

forum bears a compelling duty: to nieet the challenge with remains the case that maps are the expression or reflection
which history confronts it, even thoughit is not experienced of general public opinion and of repute. In this respect the
in that discipline. Contemporary international law provides voluminous map file submitted by Qatar, buttressed by the
standards forthe legal assessmentof historical facts. Yetthe fact that those maps were produced in a wide variety of
Court's Judgnient offers a purely descriptive, factual countries and at widely varying dates, together with the
narrative of the historical context of the case, without British War Office maps, which are particularly credible,
applying the legal rules and principles which provide a confirms Qatar's historical title to theHawars, as do the

framework for historical facts. The only occasion on which many historical documents establishing the respective
the Court sought to identify the historical title was, in the territorial extentof each Party.
co-authors' view, in connection with the attribution of As far as the maritime delimitationis concerned,the co-
Zubarah. and this makes it even niore unjustified that the authors have focused their critical remarks on four points.
same was not done with respect to the issue of the Hawars, First, the Judgment rulesiqfia petita, in the viewof Judges
where suchhistoricalresearchwas more imperative.
Bedjaoui, Ranjeva and Koroma, having regard to the
A legal consequence of the British presence in the Gulf Bahraini formula as applied to the course of the single
in the nineteenthand twentieth centurieswas the creation of maritime boundary, which the Judgment describes as a
two separate entities, Bahrain and Qatar, beginning in the single multifunctional line. Recourse to the technique of
last third of the nineteenthcentury.The historicaltitle of the enumerating the areas to be delimited has a dual aim: to
Al-Thanis to the peninsula of Qatar and its adjacent natural specify individually the areas for delimitation and to
featureswasthus graduallyfonned and consolidated. emphasize the distinct nature of each area in relation to the

Thereafter,the Ottomanpresence in Qatar, from 1871to others, since each possesses its own coherent character in
1914,had legal consequenceswhich definitivelyestablished law; it was therefore incumbent upon the Court to ensure
the historical title of the Al-Thani dynasty to Qatar. The that the result it achieved was coherent over the entire
United Kingdom's conduct constituted explicit recognition maritimearea delimited.
of Bahrain's loss of any titleto any part of Qatar, including This test of coherence was necessary, given the impact

tlie Hawar Islands. This conduct on the part of the British of the award of the Hawar Islands to Bahrain: confirmation in theoperativepartof the Judgnlentof the right of innocent This anomaly is aggravated by the fact that Qit'at
passage through Bahrain's territorial waters isnot enough. Jaradahis accordedan effect of 500metres,eventhough the
The co-authors of this dissenting opinion consider that it Courthad decidednot to give it any effect at all andto draw
would be wrong to undere:stimatethe risk of conflicts the delimitation line at a strict tangent to Qit'at Jaradah.
arisingin connectionwiththe implementationof he right of This has distortingconsequencesfor the northernpart of the
innocent passage. Although it had not been specifically line.

seized of this issue, the Cout-t, as it did in the case The position is further aggravated by the fact that the
concenling Kusikili/Sedudu Islalld (Botswana/Nrrmibia), Court has established a single maritime boundaryon the
should also have regarded as part and parc:el of the basis of two contradictory maps, an American one for the
settlementof the merits of the dispute the conclusion ofan southern sector and a British one for the northern sector.
agreement between the twoParties providing for the legal This duality in the Court's approach issomewhatpuzzling,
enclavement of the Hawar Islands under a regime of
internationaleasement". since it would have been more normal for it to rely on a
singlemap for the entirecourseof the line and to choosethe
Secondly, the method adopted to draw the provisional most recent one, providing the most up-to-date data. This
median. line was also criticized by the three judges as was the British map, preparedin 1994by the Admiralty of
contrary to the basic principles of delimitation. Underthe the country that had for many years been the protecting
adage '"theland dominates the sea", it is essentially terra power in the region and was thus quitewell informedof the
Jirnzczthat has to be taken into account, aiid special true situation. This British bathymetric chart clearly

circumstancesmust notbe allowedto influenceprematurely demonstrates the geographical continuity between the
the course of the theoretical provisionalmedian line. The Hawars and Qatar, which form a single entity and together
law does not require that the baselines and poims used for constitute the Qatari peninsula. But in choosing to rely
delimitation have to be the same as those used to fix the rather on the American map for this southern sectorof the
external seaward boirndaries of maritime areas. It is this single boundary, the Court could represent the low-water
interpretation of the law that prevailed in the work of the line in that southernsectorin an arbitrarymanneronly, thus
confere:nceson the lawof the sea, contraryto thej?ositionof raising fears as to the legibilityof the decisionand above all

the International Law Commission. Case-law has failed to creating rcreal risk of umputationof the territoiy of Qatar
espouse the trend towards .an interpretation favouring a proper. Thus the choice of the less suitable map for the
duality of function. The Court, contrary to the present southern sector leaves serious doubts, not only as to the
decision,has always favouredthe choice of equitablepoints, fairness, but also as to the simple accuracy, of the line
so that both the method for drawing the line and its result obtained. Having failed to choose the British map, itwould
should be fair. "The cquitableilessof an equidistance line have been better if the Judgment had not assunled

depends on whether the precaution istaken of eliminating responsibility for errors in the course of the line and had
tlie disproportionateeffectof certain islets,rocks anminor instead invited the Parties to negotiate that course on the
coastal projections." (I.C.J. Reports 1985, p. 48, para. 64) basisof indicatioilsfromthe Court.
This i!; a general rule which applies equa1:lyto the For all of the reasons set out above, Judges Bedjaoui,
calcu1at:ionof the equidistance line in a deliinitation of the Ranjeva and Koroina regret that they cannot accept
territorial sea.It is thus surprisingto find the sea dominated responsibilityfor anyamputationof Qatar's territory.
not by terra finla but by quite insignificant maritime
Finally, Judges Bedjaoui, Ranjeva and Koroma regret
features(suchasUtnmJalid, for exanlple),precise:lylacking that thevote by Membersof the Courtwas not made on the
in any solidbase. basis of a division of the final single maritime line into two
T/iirdly, the legal characterization of Qit'at .Jaradahis parts, given the Parties' positions and the award of the
not supportedby the co-authors.because of its geophysical Hawar Islands to Bahrain, which the authors could not
characteristics. The issue of islands hinges upon accept. The northern part, on the other hand, appeared
considerations of hydrography (high tide) and
overall to be acceptable to them, even if its course could
geomorphology(natural area of land). According to an old have beenimprovedby beingshiftedslightlyto thewest.
decision, theAnnacase, the origin of the landis immaterial In conclusion, Judges Bedjaoui, Ranjeva and Koroma
for purposes of characterization of a feature as an island. share the Court's analyses of the inapplicability of the
Howevl:r, since the inclusion in the 1958 Geneva :principleof utipossidetisjuris, to whicli theyare committed
Convention of the adjective "natural", the approach has
changed:a featureappearingabovethewaterlinernustbe an .as representatives of the various legal systems of the
area composed otherwise than of rocks 01. atolls, the continentof Africa. But theynote that it cannotbe said that
.therewas State successionin the present case, given thatno
unstable land composing such features being specifically new subject of international lawwas created. Also, simple
mentionedin the MontegoBay Conventionin theprovision !reasonsof legal ethics required them to deny application of
on deltas. Thus Qit'at Ja~radah does not meet the that principle owing to the real motives for the 1939
requirelilentsof Article 121 of the 1982Conventionon the decision:it wouldseem to themthat "oil dominatesthe land
Law of the Sea. Moreover,the authors disputethe:award to
Bahrain of this island, which iscloser to the coast of Qatar and the sea" was the watchwordof that decision.Any legal
1:dificefounded onthat notion wastherefore boundto have
than of Bahrain, according to the calculationsof t:heCourt- been colouredby artifice and deception, to the detrimentof
appointedhydrographer.the rights of the peoples. Finally, the principle of uti the delimitation of the territorial seas of the Parties and not
possidetis jui-iappliesto two States' boundariestaken"as a vice versa.
whole", while here the Court's examinationfocused on a
single text. Thus, Judges Bedjaoui, Ranjeva and Koroma
Declaration of Jzrdge Rosnljv~fiiggins
were led to conduct a critical examinatioliof the validity of
the 1939 decision, as measured by the yardstick of Judge Higgins considers that sovereigntyover Janan lies
contemporary international norms and modem methods of with Bahrain, for reasons that have been elaborated by
interpretation. Judges Kooij~nansand Fortier. She therefore voted in the
negative on paragraph 3 of the dispositifiBut as the Court
foundthat sovereigntyover Janan lieswith Qatar, and as she
Declaratio~l of Jzrdge Her-czegh agrees generally with the delimitation line drawn in the
In his declaration, Judge Herczegh stressed the Judgment,she voted in favour of paragraph 6.

importance of paragraph 2 (b) of the operative part of the Had it so chosen, the Court could also have grounded
Judgment, in which the Court stated tliat vessels of tlie State Bahraini title in tlie Hawars on the law of territorial
of Qatar enjoy in the territorial sea of Bahrain separatingthe acquisition.Anlong acts occurring in the Hawarswere some
Hawar Islands from the other Bahraini islands the right of that clidhave relevance for legal title. The&ectivitks were
innocent passage. This statement in paragraph 2 (b) has
enabled him to vote in favour of paragraph 6 of the no sparser than those on which title has been founded in
othercases.
operative part of the Judgment, which defines the single Even if Qatar had, by tlie time of these earlyejectivitbs,
maritime boundary that divides the maritime areas of the extended its own sovereignty to the coast of the peninsula
two Statesparty to the dispute. facing the Hawars, it performed no colnparable efectivitis

in tht:Hawars of its own.
Decluration of Judge Vereshchetirr These elements are sufficient to displace any
In his declaration Judge Vereshchetin briefly expounds presumptionof title by the coastal State.

the reasons which prevented him from concurring in the
Court's findings on thelegal positioli of the Hawar Islands Separate opinioit oj'.JudgePnrrt1--4?-cli1gu?.ei~
and the maritime feature Qit'at Jaradah. The Court's finding Even though voting in favour of the operativepart of the
on the Hawar Islands rests exclusively on the 1939decision
by the former "protecting Power". This implies that the Judgment, Judge Parra-Arangurenstates that his favourable
1939 British decision is viewed by the Court as a sort of vote does not mean that he shares all and every part of the
reasoning followedby the Court in reaching its conclusion.
legally binding third-party settlement of a territorial dispute In particular he considers paragraph 2 (b) of the operative
between two sovereign States. It also implies that the two part to be unnecessary and makes it clear, to avoid
States under British protection at the relevant time'could- misunderstandings,that inhis opinioilQatar enjoys the right
and actually did - freely express their sovereign will to be
legally bound by the British decision. In turn. the deciding of innocent passage accorded by customary international
"third party" mustbe presumed neutral andimpartial. In the law in all the territorial sea under the sovereignty of
Bahrain. Furthermore, Judge Parra-Aranguren explains tliat
opinion of Judge Vereshchetin, none of the above his vote for paragraph 4 of the operative part is the
prerequisites necessary for the affirmation by the Court of consequence of his agreement with the maritime
the formal validity of the 1939 decision existed in the delilnitation line between Qatar and Bahrain drawn in its
contextof the "special relationship7'betweenthe"protected"
and "protecting" Statesobtainingat the relevanttime. paragraph 6. In his opinion, the drilling of an artesian well,
advanced by Bahrain to demonstrate its sovereignty over
The inevitableuncertaintyas to the formalvalidityof the Qit'a.t Jaradah, cannot be characterized as an act of
1939decision, especially in an absolutely new political and sovereignty. Nor can the acts of sovereignty alleged in
legal setting, required the Court to revert to the legal respect of the low-tide elevation of Fasht ad Dibal, i.e., the
grounds lying at the basis of the 1939 decision. By construction of navigational aids and the drilling of an
abstaining fi-om analysilig whether the 1939 decision was
well founded in law and rectifying it if appropriate, the artesian well, be characterized as such. Therefore, in his
opinion. it is not necessary to take a stand, as the Judgment
Court failed in its duty to take into account all the elements does, on the question whether, fi-omthe point of view of
necessary for determining the legal position of the Hawm establishing sovereignty, low-tide elevations call be fully
Islands. assimilatedwith islands or other landterritory.
As to the legal position of Qit'at Jaradah, Judge
Vereshchetin takes the view that this tiny maritime feature,
Separate opirtio~z of Judge Koo~jnznns
constantly changing its physical condition, cannot be
considered an island within the meaning of the 1982 In his separate opinion Judge Kooijmans takes issue
Convention on the Law of the Sea. Rather, it is a low-tide with the Court with regard to that part of the Judgment
elevation whose appurtenancedepends on its location inthe which deals with the territorial issues which divided the
territorial sea of one State or the other. Therefore, the Parties (Zubarah, the Hawar Islands, Janan), although he
attribution of Qit'at Jaradah should have beer1effected after voted in favour of the Court's findingson sovereignty overZubarah and the Hawars, dissenting only with regard to Such ties of allegiance as may have existed between the
Janan. Ruler of Bahrain and certain tribes in the area were
He disassociates himself, however, fiom the Court's insufficient to establish ally tie of territorial sovereignty
reasoning on all three issues,since in his view theCourt has (Wester.nSaharacase). On the otlier hand itcan be observed
that Qatar gradually succeeded in coiisolidatingits authority
takcn an imdulyformalistic approachby basing itself mainly over the area.
on the position taken by theformer Protecting Power (Great
Britain) and not on substa.ntive rules and principles of Moreover, thereis evidence of acquiescence by conduct
international law. in particular those on the acquisition of on the part of Bahrain in the period before it revitalized the
territo1.y. dispute in tlie second half of tlie twentieth century. Judge
Judge Kooijmans starts by giving a picture of the Kooijmans therefore agrees with the finding of the Court
that Zubarali appertainsto Qatar, although in his view the
political and legal situation in the Gulf region in tlie
nineteenth and early twentieth century. At that time the Court reliedtoo much on the position taken by Great Britain
formation of States as territorially based sovereigii entities and the Ottoman Empire.
had not yet taken place. It was olily the discovery of oil in With regard to the Hawar Islands Qatar bases its claim
the 1920s which led to the need for clearly defined on original title as recognized by Great Britain (aiid the
boundaries and to tlie notion of exclusive spatial Ottomans) in conjunction with tlie principleof proximity or
jurisdiction. contiguity, since the islands are situated close tothe coast of

It is noteworthy that tlie legal character of the relations the peninsula and geographically are partof it. According to
between the main Western Power in the region, Great Judge Kooijmans it would be an anachronism to coiistiue
Britain, and the local rulers, which was laid down in a the 1868 Agreement concluded by Great Britain with tlie
nu1iibe:rof treaties concluded in that early period, did not chief in Doha as providing him withtitle to the wholeof the
changt: after the exploitability of natural resources had Qatar peninsula; as to the principle of contiguity, this isin
iiiternational law no more than a rebuttable presumption
become a dominant factor. The local sheikhdoms were not
colonized but kept their character as independent legal which must yieldto a better claim.
entities, even if political control by the Protecting Power Bahrain invokes long-standing tiesof allegiance with the
may have tightened. Dowasir of Hawar, a tribe which has its principal domicile
Judge Kooijinans thus is of the view that the principleor on Bahrain's main island, anda number of e~fectivitk~hich
rule of liti possicletis jlrr-is. invoked by Bahrain, is not allegedlyevidencea genuine display of authority.

applicable. Crucial in this respect is whether thereis (a) a Although it is plausible that links have existed between
transfer of sovereignty fromone State to anothei:State as a the inhabitants of theHawar Islands and Bahrain, it is less
result of which (6) administrative boundaries are certain that these links translated themselves into ties of
transfornied into iiiternational boundaries. "allegiance" with the Ruler of Bahrain. Nor can the
In -thepresent case neither of these criteria is met. When eSJi.ctivitis,presented by Bahrain, be interpretedas evidence
of continuous display of authority. In view ofthe fact,
the Protecting Power settled territorial issues it didso by
determ.ining intei~iationalboundarics between two entities however, tliatQatar has not presented any effictivitks at all,
with which it had treaty relations. the observation of the Pernianent Court of International
Under those treatiesthe Protecting Power had no right to Justice in the Eastertz Greerzlcindcase that tribunals often
detennine unilaterally the bo,undariesof the sheikhdoms or had to be satisfied with very littlein the way of the actual
to decide upon matters of territorial sovereignty. It coulddo exercise of sovereign rights, provided tliattlie other State
could not make out a superior claim, holds true for the
so only with the consent of the local rulers. present case also.
Juclge Kooijmans fundamentally disagrees with the
Court that, when in 1939the British Governnient attributed The Hawars must therefore beconsidered to appertain to
the Hawar Islands to Bahrain,this decisioiiwas the result of Bahrain, and the 1939 British decisionas being intrinsically
a dispute settlement procedure to which the Ruler of Qatar coirect.
had freely agreed at the appropriate time. There was no Sovereignty over Janan is a separate issue only because
it was excluded froiii the Hawar group by the British
consent from his part, iior was there subsequent acceptance
or acquiescence. The British decision consequently has no Governnieiit in its decision of 1947 on the division of the
legal validityirse. All territorial issues,aiidnot only that of sea-bed between the Parties. tt is clear from the facts
Zubarali, where the Protecting Power did nottake a formal however that, when the dispute abouttlie Hawars arose,
decision, niust be resolved iiithe light of tile general Janan was considered part of the Hawar group by both
principles of internationallaw. Parties as well as by the Protecting Power. Norwas it given
separate mention in the 1939 decision. Since the 1947
As for Zubarah, this part .oftlie dispute dates backto the decision is ambiguous as to its legal character and cannot be
ninetet:ntli century when tribal loyalties played a morc
importantrole than territorial claims.Bahrain bases its claim seen as attributing sovereign rights, Janan niust be
inaiilly on historic rights and ties of allegiance with (a considered part of tlie Hawars over which Bahrain already
branch of) tlicNaim tribe. had sovereignty at the time of the 1947 decision. For this
reason, Judge Kooijmans voted against the operative
provision in which the Court found that Qatar hassovereignty over Janan. The single maritime boundary nevertheless considered the Ruler of Bahrain to have
should consequently run between Janan and the Qatar ownership rights on the islands on the western coast of

peninsula and not between Hawar Island and Janan. Qatar. Additional effectivitkswere demonstratedby Bahrain
until 1936. When the spatial expanse of title is not clear,
Separate opinion of Judge Al-Khasawneh such effectivitks play an essential role in interpreting that
expanse. Notwithstanding their small number, Qatar could
While Judge Al-Khasawnehconcurredwith the majority show no comparable effectivitis, indeednone at all over the
decision regarding the territorial issues,i.e., Zubarah and islands. On this basis Judge Al-Khasawneh joins the
Hawars, with regard to the latter he criticized the Court's majorityview.
exclusive reliance on the 1939 British decision "as a valid
political decision that binds the Parties". He felt that
Dissenting opirzion ofJudge ad hoc
approach was too restrictive and unduly formalistic. TorresBentardez
Moreover, he believed that reasonable doubts linger
regardingthe reality of Qatari consentwhen set contextually 1. Judge Torres Bernardez voted in favour of
within the facts of almost total British control over Bahrain subparagraphs (I), (2) (b), (3) and (5) of the operative part
and Qatar. Moreover, he thought that accusations by Qatar of tht: Judgment. In these subparagraphs, the Court finds
that there was "bias and prejudgment" by some British that the State of Qatar has sovereignty over Zubarah and
officialswere notadequatelyansweredin the Judgment.The Janan Island, including Hadd Janan, and that the low-tide

absenceof anyreferenceto substantivelaw in thepart of the elevation of Fasht ad Dibal also falls under the sovereignty
Judgmentdealingwith Hawarswas also unwarranted. of the State of Qatar. Moreover. the adopted course of the
Instead, alternative lines of reasoning should have been single maritime boundary: (i) likewise places under the
explored by the Court if the decision is to stand on firmer sovereignty of the State of Qatar the low-tide elevations of
ground. These are ~rtipossidetis, historic or original title, Qit'at ash Shajarahand Qita'a el Erge; and (ii) leaves to the
State of Qatar most of the continental shelf andsuperjacent
effectivitis, andthe conceptof geographicproximity. waters of the Parties' northern sector of the maritime
With respect to utipossidetis jzrris he concluded that it
was inapplicablebecausethe British Government,unlike the delimitation area in dispute with its living and non-living
Spanish Crown in Latin America, had not acquired title. resources. Lastly, the operative part of the Judgmentrecalls
Moreover, he thought that the doctrine of intertemporallaw us that the vessels of the State of Qatar enjoy in the
argued against it. In general he felt that too ready a reliance territorial sea of the State of Bahrain separating theawar
Islancls fiom other Bahraini islands the right of innocent
on the principle is inimicalto other legalprinciples, e.g., the passage accorded by customary international law, thus
right of self-determination,and can detract from the proper placing this right of the State of Qatar within the res
function of international courts, which is to correct
illegalities where they occur and not simply to declare pre- judicata of the presentJudgment.
existing territorial situations legal- in the interest of 2. However. Judge Torres Bernardez regrets being
averting conflicts- without regard to title and other legally unable to supportthe findings of the majority with regard to
relevant criteria. sovereignty over the Hawar Islands and Qit'at Jaradah,
namely subparagraphs2 (a) and (4) of the operativepart, for
Acknowledging the difficulty of determining original
titles, which stems partly from the inherent limitation of reasons set out in his opinion. The conclusions of Judge
historical enquiries and partly from the paucity of Torres Bernardez on these two territorial questions are
information on the crucial question of Qatar's territorial exactlythe oppositeof those of the majority.
extent, he thought that nevertheless some historical facts 3. Judge Torres Bernardez also voted againstthe whole
emerge with relative clarity. Among these is that Bahraini of subparagraph (6) of the operative part of the Judgment
concerningthe single maritime bouildary,but forprocedural
sheikhsexercisedconsiderablecontrol over the affairs of the
Qatar peninsula until 1868.Notions of Qatari independence reasons because a vote by division was not allowed. This is
as of that date (when MohammadAl-Khalifah was punished his second regret. His position on the matter hadnothing to
by the British) are however greatly exaggerated.for the fact do with the findings in the Judgment onterritorialquestions.
that the British dealt directly with theeikhsof Qatar does In fact, Judge Torres Bernirdez accepts as fallingwithin the
not in itself create title. Moreover Qatar was an Ottoman parameters of an equitable solution the course of the single
maritime dividing line as from Qita'a el Erge up to the vely
territory. The real date for Qatari independence was 1913,
when the Ottomans concluded a treaty with Great Britain. lastpoint of the line in the Parties' northern sector,precisely
However, even then the territorial expanse of Al-Thani rule because the findings in the Judgment on territorial
remained unclear. Bahrain has claimed a number of questions. But, he cannot accept that the delimitation in the
effictivitks on the Hawars; some are modest and do not Hawar Islands maritime area - those islands becoming
carry much probative value. However the efectivitks carried foreign coastal islands by virtue of the Judgment - be
out from 1872to 1913are important,forno one coulddoubt effected through the application of the "semi-enclave
method" in favour of the distant sovereign and not by most
the authority of theOttoman rule over the whole peninsula.
The fact that the Ottoma~lsacquiesced to such effectivitks equitablemethodsapplied in such kind of situations,namely
shows that the Ottomans, while they did not recognize any by the application of the "enclave method" in favour of the
Bahraini territorial sovereignty on the Qatari mainland, coastal sovereign or other alternative means capable ofachieving an equitable maritime delimitation in the area 7. The opinion points out that the Al-Thani and Al-
concerned. Khalifali families were not the only protagonists in tlie
4. In the view of Judge Torres Ben..tirdez, the shaping of their respective original title to territory. There
conclusions of the majority on the issues referred to in were also other protagonists in the political scene of the
paragraphs 2 and 3above: (1) fail toacknowledge the scope Gulf from the last decades of the eighteenth centuiy
onwards such as Persia, Muscat, Oinan and, in pal-ticular,
of tlie original title of tlie State of Qatar to the entire
peninsula and its adjoining islands fully established by the Wahhabis. But the most important historically related
1913-191 5 through aprocess of historical consolidationand events occurred during the nineteenth century. First, Great
general recognition; (2) make of the 1939Britisf:"decision" Britain's presence in the Gulfin connection with its role in
on the Hawar Islands the source of a Bahraini derivative maintaining peace at sea became paramoui~tand, secondly,
title prevailing over the original title of Qatar, the establishment of the former Ottoman Empire 011tlie
mainland of the Arabian peninsula, including in Qatarfrom
notwithstanding the formal and essential invalidityof that 1871 to 191 5. For Judge Torres Bernardez the tei.ininatioil
"decision" in international law and the fact that the Hawar
Islands - geographically part of the western c:oastof the of the historical connection between Bahrain and Qatar
peninsula of Qatar - fall vlrithiilthe scope of .;heoriginal occurred in about 1868-1871. In any case, Qatari tribes
title ofthe Stateof Qatarand are located in the territorial sea ceased paying the common tribute (zakat) due fiom
generated by the west coast of Qatar; (3) characterize a Bahrainis and Qataristo theWahhabiAmir in 1872.
maritime feature as Qit'at Jaradah as an island and accept 8. The opinion also underlines Great Britain's

that such a maritime fee~turemay be the object of protection of Bahrain in the Bahrain islrii~ls and the
appropriation as land territory(ten-cl,firincrt)hro.~ghalleged importancein this respect of, inter alia, the 1861Agreement
Bahraini "activities" notainc~untingto acts perfolmed by the between Great Britain and Bahrain;and also the 1867 acts
State of Bahrain rititre de soui~eroiizand (4) disregard in of war across the sea by the Ruler of Bahrain against the
the maritime delimitation the resulting Qataris (Doha was destroyed) and British interventionto
geogra~phical/politicaslituation arising from the attribution stop the subsequent BahrainiIQatarihostilities described in
of the Hawar Islands to the State of Bahrain; this some conten~poraryBritish documents as a "war". The

supei-viiziens"special circumstance" should have been taken outcome of those events was the agreelilents concluded in
into account to achieve an equitable solution in the 1868 by Great Britain with the new Al-Khalifah Ruler of
delimitation of theHawarIslands areaby applying a balance Bahrain and with the Al-Thani Chief of Gutter. The arrival
of equities approach through the said enclave method, by of the Ottomans in Qatar three years later, in 1871, is the
defining an area of common territorial sea or by other second historical event which together with the 1868
measuresterritorial in character. Agreements would, according to the opinion, detennine, the
future scope of the original title to the territory of Qatar and

of Bahrain.
5. As to the territorial uspecfqf the case, Judge Torres 9. In fact, for Judge Torres Bemardez. the process of
Bern&-dezrecalls in his opinion that political and physical consolidation and recognition of the Al-Thani Rulers'
geography do not necessarily coincide. The opinion then original title to the territory of the entire peninsula of Qatar
and its adjoining islandsbegan precisely some years before
goes on to review the respective merits of the Parties' 1868. The respective conduct of Great Britain and Bahrain
claims to be the holder of an original title in tlie disputed
territorial questions. In this connection, the opinion first concerning the arrival of the Ottomans in Qatar is vely
analyses the original title to territory of each of the Parties revealing in this respect. The Ottomans organized Qataras a
as a whole and then the scope of such a title with respect to kuzu or administrative unit of the Ottomaii Empire and
the particular disputed territorial questions,namely Zubarah, appointed the Al-Thani Chief of Qatar as h-crimakanT z.hus,
the Hawar Islands and Janan Island. As the two States during the Ottoman period, the Chiefs of Qatar
parties are the result of an historical evolution,Judge Torres progressively developedtheir effective authority over Qatari
tribes and territory taking advantageof their dual capacity as
Bernardez underlines Ristoriicalcoirsolidationand general
recogizitionas a mode of ac,quiringoriginal title to a given Chiefs of Qatar and kaimakams of the Ottoman kazc~of
land territory. Qatar. The conduct of Great Britain vis-A-visthe Al-Thani
6. The opinion recalls the origins of theruling families Chief of Qatar during the Ottoman period enhanced the
of Qatar and of Bahrain, the settlement of theAl-Khalifah development of that effective authority. Great Britain did
not challenge the presence of the Ottoman Enlpire in the
on Bahrain Island in 1783 2nd the legal effects on title to Qatar peninsula and continued to deal with the Al-Thani
territo:ryconsequential on that settlement after 17 years at Chief of Qatar particularly in matters relating to the
Zubarah, namely the absence of colylrs possesionis by the
Al-Khalifah in the Qatar peninsula andits adjoining islands, maintenance of peace at sea. On the other hand, the
as well as the consequential effects of Al-Thani settlement territorial scope ofthe effective authority of the Al-Khalifah
in the Doha area on the establishmentand consolidation of Rulers of Bahrain was limitedby treaty obligationsassuiiled
their original title to the entire Qatar peninsula and its by thein with Great Britain to the Bahrain islands proper.In
any case, the Al-Khalifah did not exercise any kind of
adjoining islands. effective authority, directly or indirectly, overtheniiisula
of Qatar and its adjoining islandsdiiriiigtliewhole Ottomanperiod of Qatar which lasted until 1915, namely about 44 of Bahrain recognized by the Powers at the beginning of the
years. twentieth centuiy. The original title to territory of the State
of Qatar is confinned fiirthermore by general opinion or

repute as expressed in the copious collection of official and
10. In 1873, Bahrain submitted its first claim to unofjicial map evidence before the Court. including the map
Z~lbnrnhto the British alleging ill-defined rights in the area in Annex V of the 1913 Anglo-Ottoman Convention and
and invoking ties of allegiance between the Al-Khalifah and British official maps such as the one of 1920relating to the
negotiation of the Peace Treaty of Lausanne. There is also
the Naim tribe. The British rejected this claim as unfounded the 1923 map signed by Holiiles acting on behalf of
and coiitinued to reject subsequent Bahraini claims on BAPCO, etc.
Zubarah, iiicludingin 1937.In fact, Zubarah was part of the
krrraof Qatar where the Chief of Qatar and the Ottolnans 13. Moreover, between 1916 and 1936, British
exercised effective authority as shown by the docuiilentary representatives acted as though and indeed proclaimed that
evidence in the case file. Britain recognized tliat situation the P,1-ThaniRuler was the Chief of the whole of Qatar for
example, during the negotiations leading to the first 1935
which was also acknowledged on certain occasions by the Qatari oil concession. Furthennore, during that period the
Rulers of Bahrain themselves. The preocci~pationof the
British with the maintenance of peace at sea and ensuring Rule]:of Qatar continued the nonnal exercise of his effective
the security of the Bahraini islands explains that the sea authority over the whole territory of Qatar including the
between Qatar and Bahrain peninsula was seen by the Hawsr Islands, as proved by the coiisent requested by the
British as a buffer zone between the two countries frotn the British and granted by the Ruler of Qatar to an RAF aerial
1868Agreements onwards. surve:yof Qatar's territory. All the relevant British official
reports, documents and cartographic evidence concerning
11. Somewhat at odds with Bahrain's above-mentioned the period 1916-1936 confirm the conclusion that the Hawar
claims on Zubarah, the Al-Khalifah Rulers waited until
1936 to submit their first written claim over the Hawar Islands and Janan Island were part of the territory of Qatar
I.slrri~snd Jni~ailIslaild to the British. This first claim is andwere therefore islands under the sovereigntyof the State
dated April 1936.Bahrain's prolonged silence on the Hawar of Qatar.

Islands and Janan Island including at the veiy moment when
the original title of the Al-Thani Chief of Qatar had been
historically consolidated and generally recognized cannot be 14. Great Britain's conduct during theOttoiuan period
without legal effects in inteniational law. Bahrain had vis-A-visthe presence of the Ottoman Empire in the Qatar
occasion to claim the islandsreferred to. For example, at the peninsula, as well as the conduct of the Al-Khalifah Rulers
time of Major Prideaux's visit to Zakhnuniyah and Jazirat of Bahrain themselves during the same period. helped to
Hawar in 1909, Bahrain claimed Zakhnuniyah but not consolidate the original title of the Al-Thani Chief of Qatar

Jazirat Hawar (qzritfzceretcoilseiztirevidefur).This means to the whole of the peninsula. At that time Bahrain's
that for Judge Torres Bernhrdez the 1936Bahraini claim on territory was defined by all the main Powers in the area
the islands concerned is a somewhat belated one by (Great Britain, Ottoman Empire, Persia) as exclusively
international law standards and, in any case, could not have cotnposed by the Bahrain islands archipelago proper,
retroactive effect against the historical consolidation and namely without any Bahraini dependency in the Qatar
general recognition of the original title of Qatar already peninsula aiid adjoining islands. The fact tliat, in sharp
finnly establishedbefore 1936. contrast to the Zubarah case, Bahrain's first claim toHalrwr.

12. Bent's 1889 definition as well as other British Islartds dates fi-om 1936 speaks for itself. In international
descriptions of "Bahrain" and the 1908 authoritative law this can only mean acquiescence by the Rulers of
testimony of Loriiner approved by the British Political Bahrain to the existing teiritorial situation in the area.
Resident Prideaux, merely reflect tlie territorial realities in Territorial sovereignty also signifies obligations and. in the
the area, namely Qatar's original title over the entire first place, the obligation to observe vigilant coiiduct
towards possible inroads by other States in the holder's own
peiiinsula and adjoining Hawar Islands and Janan Island.
This results also fi-omthe presumption of international law telritoiy or in what it considered or claimed to be its own
concerning islands in the territorial sea of a given State (see territory. Ottoinan and Qatari authority over the entire
the first Award of the Erit~ea/YenzerAt rbitration Tribunal), penirisula is, in any case, recognized by the contemporary
and from the role of proximity or contiguity in the documentary records before the Court and confirmed by the
establishment of title to coastal islands, including the cartographic evidencereferred to above.

"portico doctrine" fonnulated by Lord Stowell in 1805.The 15. Until 1937 Bahrain was not present in the Hawnr
jurisprudence of the Permanent Court in the Errstern Islands and uiitil 1936 did not even claim those islands as
Greenland case and the blnitd of Palmas Arbitration. part of its territory. As islands adjoining the peninsula of
Articles 11, 12 and 13 of the 1913 AngloJOttoman Qatar, the Hawar Islands fell within the scope of the Chief
Convention and annexed maps - the I914 Anglo/Ottoman of Qatar's title to the whole peninsula. Lorimer's 1907-1908
Conventioii - tlie 1915 AngloJSaudi Treaty, and the 1916 articles on the principality of Bahrain and on Qatar, revised
AngloJQatari Treaty are conventional instruments which and endorsed by Prideaux, British Political Resident in the

reflect tlie scope of the respective original titles of Qatar anGulf,, are clear evidence that, at the beginning of the twentieth century,the Hawar Islands were consideredby all and 1914Anglo-Ottoman Conventions and the 1916Treaty
those most directly concernedto be a part of the:territoryof betweenBritainand Qatar.
theC.hiefof Qatar, in other words Qatariterrito~y.The case 19. In the circumstances of the present case, this
file contains no protest or claim by the Ruler of Bahrain contributes to a more precise definition of the territorial
againlstthe territorial situation existingin the Hawar Islands scope of Qatar's original title,as established by historical
until 1936-1939.
consolidation and general recognition. Thenonn based upon
16. Furthermore, the 1913 and 1914 Anglo-Ottoman criteria such as proximity and security was in force long
Conventions expressed in treaty fonn the understanding of before the 1930s and has continued to be in force since.
Great Britain and the Ottoman Empire that the extent of the Moreover,as a presumption which createsa right, the norm
territc~rialtitle of the Chief of Qatar enconlpassed the is subject to the intertemporallaw principle, according to
"penil?sulaof Qatar" as a w:hole.The Chief of Qatar was to which the continued manifestation of tlie right concerned
govern the whole of the said peninsula as in t!lepast and follows the conditions requiredby the evolution of the law.

Great Britain said it should. be understood that it will not Thus, authorizationby internationallaw for an exte~isio~if
all on^the iilteifereilce of the SIzeililzof Bah.l-uinin the the territorial sea up to a 12-mile coastal belt extends the
intenlul ujfairs of Qatul; his endangeringof the autoizoniy scope of the presumption to the islands lyingoff the 12-mile
of thatarea or his annexiilgit. It is difficult to express moreterritorial sea of the coastal State concerned. This washow
clearly that Bahrain did not have title to territcliyover the the 1998 Arbitral Award in the Eiihaa/Yenwn case
peninsula of Qatar and, therefore, over its adjoining islands understoodand appliedthe saidpresumption.
and tt:rritorial waters. Moreover, the 1913 Ang.10-Ottoman
20. This presumption isa logical and reasonablenorm
Convention did not recognize any right in favour of intended, like others, to facilitate the applicationin practice
Bahraini subjects in theIIawar Islands, as it did in the case of the principle of effective possession (in the form of
of Zakhnuniyah Island. The 1916 Anglo-Qatari Treaty presumed possession) to particular concrete situationsby
contains nothing which could be construed as iichange in reference to an objective geographical criterion, while
Great Britain'spositioii on the extent of the titleto territorypreserving a fully established case to the contrary that
of the Al-Thani Chief of Ruler of Qatar. Conventional
another State may have. In other words, and with reference
evidence therefore confirms the pre-existing territorial state to the present case, tlie nonn presumes that the Hawar
of affairs and also counters Bahrain's thesisof being the Islands and Janan Island are in the possession of Qatar,
holder of an original title to thewarIslands. unless Bahrain is ableto prove a fully established caseto the
1'7.The general opinion or repute reflected in the contrary. This is precisely what Bahrain failed to prove in
volum.inous map evidence before the Court corroborates the current proceedings with respect to the Hawar Islands
Qatar's original title to the Hawar Islands beyond any and Janan Island.

reasonable doubt. Qatar's conduct after the 1!)16Anglo-
Qatari Treaty also confirmsthe effective authority exercised
by the Chief of Qatar over the entire peliinsula and its 21. The opinion ends its considerationof thc original
adjoining islands, theHawars and Janan included.The saine title matter by concluding that Qcrturis the holder off'the
applies to the conduct of CireatBritain and Bahrain until
1936-1939. There were no ElahrainiState efjctivitis of any original title to the territorinl qlrestioilsin dispute, nuinely
kind in the Hawar Islands before the clandestineoccupatioli Zuharah, the Huwar Islaids nild Janan Island, and that,
consequently, in the absence of a better or prevailing
of the: main Hawar Island in 1937. By then, however, derivutive title of Bahrain, Qatar has sovereignty over
Qatar's original titleto the Hawar Islands was a'readyfully Zubarah, the Hawar Islands and Janan Island. The findings
consolidated and generally recognized according to the of the present Judgment on Zubaruk and Jmarz Islciizd
standards applied by international courts and tribunals coiiicide with the conclusions of Judge Torres Bernirdez.
relating to disputes onthe attributionof sovereignty.
However, they do not coincide with respect to the Hmvar
18. Furthennore, beyond the conduct of the Parties and Islai1ds,the finding of the majority being that Bahrain has
Great Britain, international law naturally also has to be sovereignty over the Hawar Islands. The opinion therefore
considered. In the case of islands, internationallaw has a wonders whether it may be said that Bahrain has a better or
general rule formulatedin terms of a presumptio~iaccording prevailing deri\!utivetitle to the HrrwarIskrulds,and begins
to which sovereignty over the islands wholly orpartly in the by considering the 1939 British "rlecisioil " on the Hawar
territorial sea of a given State belongs to that State unlessa Islands invoked by Bahrain because such a "decision" is
fir11case to the contmj:v is established by mtclther.State.
indeed the basis of the finding relevant of the majority.
This rille has recently been appliedby an arbitral tribunal to While agreeing with the Judgment that the British
groups of islandsin the Red Sea(EritreaNeineil)case. Most "decision" is not an international arbitral award with the
of the Hawar Islands were in the 1930s who1l:yor partly .forceof resjudicata, Judge Torres Bernirdez dissents from
within the 3-mile territorial sea of Qatar and today all are the conclusion of the majority that the 1939 British
wholly within the 12-mile territorial sea of Qatar. As a "decision" is ize~erttzele~~descision which had in 1939and
presun~ptionjuris tunturn.the nonn is also an element of
interpretation of the text of certain relevant treaty still has binding legal effects in the relations between the
Partiesto the present case.
undertakings, such as the 18158Pelly Agreements, the 1913 22. For Judge Torres Bemardez the conclusion of the
inajority is wholly erroneous in law, difficult to explain in
the light of tlie evidence~lbinittedby the<Partiesand rather 25. Having concluded as to the invalidity of the 1938
consent by the Ruler of Qatar and of the 1939 Britisli
flimsy in its motivating reasons. As the legal question at "deci:;ion", the opinion considers the two other derivative
issue iscoizsentto the 1938-1939 British procedure on the titles invoked by Bahrain, iiamely dfectivitks and lrti
Hawar Islands, the opinion begins .by underlining that
consent to a given procedure is not conseiitwhich might or, possitfetisjuris. As regardslrtipossidetisJuris, Judge Torres
should be ascertained iii ahstrclcto.It inust be considered in Bernhrdezconcludesthat, qua izorinof general international
the specificcontext where the alleged consent was given. In law, this principle isinapplicablkto the present case. As to
this respect, Judge Torres Bernardez notes that, in the effectivitksin the Hawar Islands allegedby Bahrain,they
are vohriizinozrsiiz quailtity but sparse iil usejicontent.
detennining the alleged legal effects of the 1939 British Most of them are not admissible because they are
"decision", the correspo~idingreasoning in the Judgment
failsto take into accountsome closelyrelated eventsprior to subsequent to the clandestine and milawful occupation of
1938, particularly the 1936 British "provisional decision" Jazira.t Hawar by Bahrain in, 1937. Others are in clear
and the clandestine and unlawful occupation by Bahrain in contradiction with the status quo accepted by the Parties in
1937 of the northern part of Jazirat Hawar made under the the context of the Saudi ~rabian mediation. Furthermore,
umbrellaof that "provisionaldecision". the atfmissibleeffectivitksdo.noi constitute an international
display of power and authority over territory, by the
23. The reasoning also fails - according to the exercise ofjurisdiction and State functions, on a continuous
opinion - to explain thescope of the authority or power of
the BritishGovernnient to make a "decision''on the Hawar and peaceful basis. The Dowasir activities are not acts
Islands with legnlly bindiilg effects iit i~zterizatioitallaw forerformed by Bahrain d titre de souveraiir. Thus. Judge
Qatar and Bahrain on thebasis of consent allegedlygiven to Torres Bernardez cannot upho19 the Bahraini effectivitks
plea either. Moreover, in the east as today the effectilitks
the 1938-1939 Britisli procedure. The Judgineiit likewise alleged by Bahrain relate to ~aziratHawar island alone. No
fails to analysethe question whether the determinedconsent Bahraini qfectivitb of any kind'existedor exist in the other
of the Ruler of Qatar to the 1938-1939 British procedure islandsof the Hawarsgroup.
implicd acceptanceby him of the outcome of the procedure
as a decision with legally binding effects in international 2,6.It followsfrom theabovethat sinceBahrain's three
law on the questions of title or sovereignty over theHawar pleas based upon alleged derivative titles to the Hawar
Islands.For Judge Torres Bemardez all these matters would Islands are rejected by Judge Torres Bernhdez, sovereigizfrf
over the Hawar Islailds belongs .for kiin to the State of
have deserved full treatment in tlie Judgment because what Qatar bj?virtue of its origiilal title to those islands.Tlze
is at the stakehere is therinciyle of'coiiseiwz~aliy hich in origiizaltitle of Qatar over theHawar Islairdshas not been
international law governs consent to any kind of peaceful
settlementwith binding or non-binding outcome. displncedbv anybetter derivative titleof Bahrain.
24. The two main reasons why Judge Toi~esBernhrdez
cannot accept the conclusion of the majority on the 1939
27. Regarding the iitaritimedeliinitationaspect of the
British "decision" are even more fundamental. They relate
to both the validity of the consent which has been case, the opinion rejects the "archipelagic State", the
determined of the Ruler of Qatar to tlie 1938-1939British "historic title or rights" and the "dej(dcto archipelago or
procedure and the validity in international law of the actual multiple-island State" arguments of Bahrain. The Judgment
1939 Britisli "decision" itself. On the iirst question, the also rejects tlie "archipelagic State" and "historictitle or
consent of the Ruler of Qatar which has been determined right:;"argumentsof Bahrain,but accordingto Judge Torres
Bernirdez is not immune to the "de.fact0 archipelago or
was not an informed consent to a meaningful procedure
freely given. Judge Torres Bernardez considers it proven by multiple-island State" argument.
the evidencebefore theCourt that such consent was vitiated ;!8. This explains in the view of Judge Torres
by induced error, fraudulent conduct and coercion. The bad Bernardez the peculiar way in which the Judgment
faith of the British Political Agent, Weightman, involved in interprets the relevant principles and rules of general
the negotiationswith tlieRuler of Qatar is quite obviousand international law applicable to the maritime deliillitationin
his pro~ilisethat the decision would begiven by the British
the present case. The Court's task was to draw a single
Government "in the liglzt of ti-utlzaizdjzrstic:e"was not maritimeboundary betweenthe relevant coasts of the States
intended to be fulfilled and was not fulfilled. As to the parties and this means, inter alia, that the result of tlie
second question, namely the validity of tlie 1939 Britisli delimitation should be "equitable"all along the course of
decision itself, Judge Torres Bernardez finds that. for the line, independently of the maritimejurisdiction divided
reasons explainedin his opinion,the "decision" isan invalid by the line in a given sector. In this respect, Judge Torres
decision in international law from the standpoint of both Bernardez considers that the majority gave excessive and
formal validity and essential validity. It follows that the
unjustified weight to the fact that in part of its course the
opinion considers it wholly unjustified, inthe circumstances line divideste~ritorialseas of the Parties.
of the case, that the 1939British "decision" could be the 29. Judge Toires Bernhrdez emphasizes that the
sourceof a dei.ivativetitle of Bahrainto the HawarIslands. Judgment avoids defining the "area of delimitation" and artificiallyidentifiesthe "Bahraini relevatttcoasts" which it 32. For Judge Torres Bernirdez the most legally
defines by reference to "basepoints" located intiny islands unjustified decision of the majority concerning the "special
and low-tide elevations.The result is that whilei:herelevant circumstances" relates to the Hawar Islands maritime area.
coast of Qatar is a geographical and continuo~s coast or The Hawar Islandsshould have been enclaved becausethey
coastal front (namelythe relevant western coastof the Qatar form part of the western coast of the Qatar peninsula and
peninsula), the "Bahraini relevant coasts" isconlposed of a are, therefore, located in the territorial sea of the State of

series of "basepoints" onthe said minor maritime features Qatar. By applying the semi-enclave method to .foreigtl
distant from each other as well as from the Bahraini coastal islands in favour of Bahrain, the result cannot be
mainlandcoast or coastal front.,Itfollowsthat the "Bahraini . more inequitable because the western coast of Qatar is
relevant coasts" of the ~udghent are formed uliimately by divided into two separate parts by the Hawar Islands
some isolated "basepoints" on minor maritime fcatures and thenuelves and byBahrainiterritorialwaters. The precedent
by water iiz between! It is certainly a peculiar and of the British Channel Islands(ZlesAtiglo-Nontlutldes)case
extraordinaryconclusionof the majority on the definitionof was disregarded, although subparagraph (2) (b) of the

the relevant coasts in order to effectaaritimedelimitation. operativepart of the Judgment recalls the right of innocent
30. The "equidistance liire" constructed by the passage of Qatari vessels in the territorial sea of Bahrain
Judgm.entis therefore not a'line between two coastal lines separatingthe HawarIslands from theotherBahrainiislands
but something else. Judge, Torres Bernardez rejects that as accordedby customaryinternationallaw.
"equidistance line" as a.tiiticial and without legal ' 33. In the light of the above considerations, Judge

justification. In facta iner &?nine la terre in the reasoning Torres Bernhrdez is of the opinion that the singlemaritime
of the Judgment. The n~n~applicationby the Judgment of boundary is not "equitable" in the Hawar Islands maritime
the mainland-to-mainland method means that the area and rejects it in that area. On the other hand, Judge
"equidistance line"of the ~u'dgmentis rrotan "equidistance Torres Bernardez finds that, as from Quita'a el Ergeto its
line" as normally understo'bb'inmaritime delimitations.For last point in the northern sector of tlie delimitation area, the
all practical purposes it represents the outer limit of the course of the single maritime bounda~y is acceptable,
claims of Bahrain and sometimes even more than that.It is although Bu Thur and Qit'at Jaradah should have been

true that the "equidistance line" constructed by the placed on the Qatarisideof the singlemaritime bounday.
Judgment is subsequently corrected in favour of Qatar in
some segments of the line. Nevertheless, the "ecquidistance
line" of the Judgment gives an ur!jtrstifiedinitial plus to
Bahrain and, in fact. Bahrain obtains at the end of the 34. In conclusion, the dissent of Judge Torres
de1ilnit:ationoperation more maritime spaces than through Bernardez relates essentially to the finding of the majority
previoils sea-bed dividing lines external to the Parties (the of the Court on theHawar Islandsdispute, the legal basisof
that finding,and the consequencesit entails for themaritime
1947British line and the Boggs-Kennedyline), particularly delimitation. In effect, this finding fails, according to the
in the central and southern sectors of the maritime opinion, to acknowledge (1) tlie original title and
deliniitationarea. corresponding sovereignty of the State of Qatar over the
31. With respect to the "special circtltrzstances"
justifling adjustment of the "equidistance line" of the Hawar Islands, a title established through a process of
historical consolidationand general recognition:and (2) the
Judgment, the latter does not:take account of the length of absence of any superior derivative title of the State of
the relevant coasts of the Parties either. Moreover, the Bahrain over the Hawar Islands. To this it should be added
majorily considers that Qit'at Jaradah is an island that the resulting supen7ii~ietzs maritime "spacial
(supposedly without territorial sea effects in the definition circumstance" is nottreated as such in the definition of the
of the single maritime boundary) and attributes sovereignty course of the singlemaritimeboundary in the Hawar Islands
over that particular maritime feature to Bahrain by
occupation! This finding is quite unfoundetl in law. maritimearea.
35. The opinion considers the conclusion of the
However, Fasht ad Dibal fills under the sovereignty of tnajority on the Hawar Islands dispute quite erroneous in
Qatar. In effect, this low-tidleelevation which lies in the international law and states, with regret, that as a result of
territorial sea of the State of Qatar is on the Qatari side of that conclusion the State of Qatar - which came to the
the single maritime boundary. For Judge Torres Bernhrdez
the same conclusions should have been applied to the low- Court in order inter alia to remedy a breach of its territorial
tide elevation of Qit'at Jaradah. Regarding the question integrityin theHawar Islandsthrough thepeaceful meansof
judicial settlement- did not in that respect obtain fromthe
whether Fasht a1Azm'is part of Sitrah Island as alleged by Court thejudicial answerwhich tliemerits of its case on the
Bahrain, the Judgment decides not to determine the Hawar Islands dispute deserved.This exampleinakes Judge
question. For Judge Torres Bernhrdezit is clear, in the light Torres Bernhrdez wonder whether judicial settlement is in
of unsi~spectedtechnical evidence before the Court, that fact a means of redressing notorious territorialusurpations
Fasht a1Azm was separated iiom Sitrah Island by a natural
channel used in the past by fishermen and, consequently, by effectingthepeaceful changethat the re-establishmentof
Fasht a1Azm is a low-tide elevation and not part of Sitrah international law niay require in a given situation. In any
case, quieta iioi~moveredoes not provide an explanation in
Island. the present case because the Judgment rloil nzowre in theHawar Islands dispute doesnot apply to the definitionof the consent to the British procedure as determined by the
single maritime boundary. In the maritime delimitation Judgment.The reality and validity of that consent - as well

aspect of the case, the Judgment is movere. But, the izorz as the pennanency of its affirnling legally binding effects
itlovere like the moveie of the majority always seems to be for the Pai-ties- is not adequately and convincingly
in one direction, in a manner which, in-tlie view of Judge explained in the reasoning of the Judgment. At the same
Tomes Bernirdez, does not coincidc with the normative time, as he has found no other relevant derivative title or
requirements of the applicable general international law titles ofBahrain, the original title of Qatar to the Hawar
and/or the relative weight of the arguments and evidence Islands cannot for Judge Torres Bernhrdez but prevail as
submitted by the Parties. Last but not least, the between the Parties in the Ha\ilar Islands dispute of the

considerationsin the reasoning of the Judgment concerning present case.
the finding on the Hawar Islands dispute are quite
inadequate. The reasoning is unable, according to the Separate opinion ofJudge ad hoc Foitier
opinion, to duly justify the finding of tlie majority on the
HawarIslands dispute. In his separate opinion Judge Fortier makes the
follovringobservations:
36. How is it possible to explain a finding on the basis
of a vitiated consent to a 1938-1939British procedure and
whose outcoiiie, the 1939 Britisli "decision", w-asclearly Preliminary issite
and obviously an invalid decision in internationallaw, both The only reference in the Judgment to the Qatari
formally and essentially, at the time of its adoption and
remains so? The resurrection in the year 2001 of an invalid docurnentswhose authenticitywas challengedby Bahrain is
colonially minded decision linkedto oil interests to resolve a narrative found in the section setting out tliehistory of the
proceedings before the Court. These documents played an
a territorial question in dispute between two States is more essential role in Qatar's Memorial, serving as allnost the
than amazing and for Judge Torres Bernkdez a quite only basis for Qatar's claim tothe Hawar Islands. Once the
unacceptable legal proposition. The Judgment's reasoning authenticityof these documentswas challengedby Bahrain,
on consent is to all practical purposes exclusively focused Qatar did not abandon its claim to the Hawar Islands. It
on Qatar. But the 1938-1939 British procedure was a
procedure with three participants. Where in the reasoning is adduced a new argument which.was not even developed in
the analysis of consent aiidits conditioilswith respectto the its original Memorial as an alternative argument. Qatar's
case cannot be considered without having in milid the
other two participants? It seems it has also been forgotten damage that would have been done to the administratioilof
that the British representatives in the Gulf involved in iilternational justice, indeed to ,the very position of this
dealing with Qatar and Bahrain, Fowle, Weightman and Court, if the challenge by Bahrain of the authenticity of
others, and the British officials in London, such as those of these documents, had not led Qatar, eventually, to inform
the India Office, were agents of the British Government
acting in that capacity. Thus, their acts, to the extent that the Court that it had decided to disregard all the challenged
docutnents.
they are proven as vitiated, are vitiated acts of the British
Government or imputable to the British Government in
international law, namely to the veiy Government which
made the 1939 "decision". Moreover, the reasoning of the The documents originating between 1869 and 1916 on
Judgment does not even explicitlyconsider the question of which Qatar relies in support of its claim to Zubarah, and
whether the 1939 British "decision" was valid at that time which the Court found dispositive, does no such thing. By
from the standpointof the essential validity requirementsof 1916:.Bahrain had not lost its title to Zubarah on the Qatar

tlielaw. peninsula. The allegiance of the Naim tribes that inhabited
37. Furthemlore, intertemporalvalidity is quite alien to the north-west of the Qatar peninsula and who remained
the reasoning of the Judgment.How may it be affirmedthat loyal to Bahrain and the Al-Khalifah until 1937 confinn
the 1939British "decision" has legallybinding effectstoday Bahrain's title over the Zubarah region. InternationaI law
between the Parties without analysingwhether the so-called recognizes that, in certain territories that are possessed of
exceptional circumstances such as low habitability, a ruler
"consent" to the 1938-1939 British procedure may be
considered a valid consent in the international law in force can establish and maintain title to his territory by
at the time of the adoption of the present Judgment? To mani.festationof dominion or control through tribes who
conclude that this is so, it would have been necessary to gave him their allegianceand lookedto him for assistance.
bring into the picture such as, for example, the possible In 1937,the Naim tribesmenwho lived in Zubarah were
existence ofjzrs cogensszrper-vinieiarules or of erga onznes attacked by tlie Al-Thani and forcibly evicted from the
imperativeobligations,as well as the fundamentalyriiiciples
region. The events of July 1937 must be characterized as
of the Charter of the United Nations and of the present acts of conquest by Qatar. If the seizure of Zubarah, in
internationallegalorder. 1937, by an act of force were to occur today it would be
38. It follows that Judge Torres Bernhrdezis unable to unlawful and ineffective to deprive Bahrain of its title.
accept the conclusion that the State ofBahrain is the holder However, forcible taking of territories in the pre-United
of a derivative title to the Hawar Islands on the basis of Nations Charter days cannot be protested today. The
principle of stability is a significant factor in questionsconcerning territorial sovereignty. The Court is not letters purported only to express the policy of the United
competent to judge and declare today, more than 60 years Kingdom and had no legal significance whatsoever
after the forcible taking, that Bahrainat all material times regarding ownershipof Janan Island. Janan, including Hadd
has remainedsovereignoverZubarah. Janan, must be considered to be partof the Hawars over
which Bahrainhas sovereignty.

The critical issuein relation toJanan is whether, by the Mnritinze delimitntiort

normal canons of interpretation, the939British decision is Judge Fortier has serious reservations withthe Court's
to be understoodas having, at the time.ncludedJanan. The reasoning in respect of certain aspects of the nlaritime
Court's soletask isto interpret the939decision.The 1939 delimitation. Hedoes not agree with that partof the single
British decisioncan onlybe understoodas including Janan. maritime boundary that runs westward between Jazirat
The Court has attached a great dealof impoitance to the Hawar and Janan. He does not, however, express his
reservationsordisagreement by casting a negative vote.
letter:; sent on 23 December 1947 by the British
Governnlent to the Rulers of Qatar and Bahrain. These