HIGHLIGHTED VERSION
The highlighted versions of Qatar's Memorial and Counter-
Memorial are designed to assist the Court in determining which
passages of those pleadings are no longer relied upon by Qatar
because they depend solely upon documentary annexes which
Qatar has pledged itself to disregard (See Qatar's Reply, para.
1.12)
MEMORIAL
SUBMITTED BY THE STATE OF QATAR
(MERITS)
VOLUME 1
30 SEPTEMBER 1996
PART I - IRODUCTION
Table of Contents
Chapter I Background to the Present Proceedings
PART II - T G EOGRAPHICAL AND H ISTORICALB ACKGROUND TO THE DISPUTE
Chapter II Description of the General Area of the Dispute
Chapter III Historical Background
PART III - T HAWAR SIANDS AND OTHER TERRITORIAL QUESTIONS
Chapter IV The Geography of the Hawar Islands
Chapter V The Territorial Integrity of Qatar and Qatar's Sovereignty over the
Hawar Islands
Chapter VI The Defective Nature of the British Decision of 1939
Chapter VII Janan Island
Chapter VIII The Question of Zubarah
PART IV - MARITIMED ELIMITATION
Chapter IX General Presentation of the Relevant Maritime Area
Chapter X The 1947 British Decision Concerning the Delimitation
Chapter XI The Single Maritime Boundary and the 1947 Line
Chapter XII The Single Maritime Boundary in the Northern Sector
PART V - SBMISSIONS
LIST OF MAPS AND ANNEXES
__________
CASE CONCERNING MARITIME DELIMITATION
AND TERRITORIAL QUESTIONS
BETWEEN QATAR AND BAHRAIN (QATAR V. BAHRAIN)
MEMORIAL OF THE STATE OF QATAR
- - - - - - - - - - -
PART I INTRODUCTION
This Memorial is filed in accordance with the Order of the Court dated 1 February 1996 which extended until
30 September 1996 the time-limit for the filing of Memorials by the State of Qatar ("Qatar") and the State of
Bahrain ("Bahrain").
CHAPTER I
BACKGROUND TO THE PRESENT PROCEEDINGS
1.1 For a long time - several decades - Qatar has been seeking justice in the face of what it regards as the illegal
occupation by Bahrain of part of the territory of Qatar. The solution of this long-standing dispute with Bahrain
is of vital importance for the two States and their people as well as for the restoration of peace and the
development of friendly relations between them. Qatar has always refrained from the threat or use of force in
any manner inconsistent with the Purposes of the Charter of the United Nations, and has always sought to settle
this dispute in accordance with Article 2(3) of the Charter, and therefore "by peaceful means in such a manner
that international peace and security, and justice, are not endangered".
Section 1. The Case submitted to the Court
1.2 A solution to the dispute was eventually sought, with the agreement of the Amirs of Bahrain and Qatar, in
the context of a mediation, sometimes referred to as "good offices", by the King of Saudi Arabia. That
mediation began in 1976 and has lasted for two decades. A set of "Principles for the Framework for Reaching a
Settlement" (hereinafter referred to as the "Framework") was approved during a tripartite meeting in May
1983 .
1.3 For the next few years, there was no progress towards the settlement of the dispute. The King of Saudi
Arabia then sent to the Amirs of Qatar and Bahrain letters in identical terms dated 19 December 1987, in which
he put forward new proposals for settlement of the dispute by the International Court of Justice. Those
proposals were accepted by letters from the two Amirs, dated respectively 21 and 26 December 1987. These
exchanges of letters are hereinafter referred to as the "1987 Agreement". In addition, on 21 December 1987 an
2
announcement was issued by Saudi Arabia, the terms of which had been approved by the two Parties .
1.4 During the work of the Tripartite Committee established by the 1987 Agreement, and following an initiative
by Saudi Arabia, on 26 October 1988 the Heir Apparent of Bahrain, when on a visit to Qatar, transmitted to the
Heir Apparent of Qatar a text (subsequently known as the "Bahraini formula") which reads as follows:
"Question
The Parties request the Court to decide any matter of territorial right or other title or interest which
may be a matter of difference between them; and to draw a single maritime boundary between their
respective maritime areas of seabed, subsoil and superjacent waters 3."
The work of the Tripartite Committee came to an end in December 1988.
1.5 On the occasion of the annual meeting of the Co-operation Council of Arab States of the Gulf at Doha in
December 1990, Qatar let it be known that it was ready to accept the Bahraini formula. On the sidelines of that
meeting, the Foreign Ministers of Bahrain, Qatar and Saudi Arabia signed on 25 December 1990 Minutes
placing on record the fact that Qatar had accepted the Bahraini formula and that the dispute could be referred to
the Court if it was not resolved through the good offices of King Fahd by May 1991 4. Those Minutes are
hereinafter referred to as the "Doha Agreement". Both Parties thus accepted that the Court, once seised, should
decide:
"... 'any matter of territorial right or other title or interest which may be a matter of difference
between [the Parties]'; and should 'draw a single maritime boundary between their respective
maritime areas of seabed, subsoil and superjacent waters' ".The formula thus adopted determined the limits of the dispute with which the Court would be asked to deal. It
was devised to circumscribe that dispute while leaving open the possibility for each of the Parties to present its
own claims to the Court, within the framework thus fixed.
1.6 The continuation of the good offices of King Fahd as envisaged in the Doha Agreement did not lead to the
desired outcome within the time-limit fixed in that Agreement, and on 8 July 1991 Qatar instituted proceedings
before the Court against Bahrain by filing an Application:
"... 'in respect of certain existing disputes between them relating to sovereignty over the Hawar
islands, sovereign rights over the shoals of Dibal and Qit'at Jaradah, and the delimitation of the
6
maritime areas of the two States' ."
1.7 Qatar's requests as contained in that Application were as follows:
"'Reserving its right to supplement or amend its requests, the State of Qatar requests the Court:
I. To adjudge and declare in accordance with international law
(A) that the State of Qatar has sovereignty over the Hawar islands; and,
(B) that the State of Qatar has sovereign rights over Dibal and Qit'at Jaradah
shoals;
and
II. With due regard to the line dividing the sea-bed of the two States as described in
the British decision of 23 December 1947, to draw in accordance with international
law a single maritime boundary between the maritime areas of sea-bed, subsoil and
superjacent waters appertaining respectively to the State of Qatar and the State of
Bahrain' ."
1.8 The President of the Court, having consulted the Parties, and taking into account the agreement reached
between them concerning procedure, decided by an Order of 11 October 1991 that the written pleadings should
first be addressed to the questions of the jurisdiction of the Court to entertain the dispute and of the
admissibility of the Application.
1.9 In its Judgment of 1 July 1994, the Court:
"... decided to afford the Parties the opportunity to ensure the submission to the Court of the entire
dispute as it is comprehended within the 1990 Minutes and the Bahraini formula, to which they
have both agreed. Such submission of the entire dispute could be effected by a joint act by both
Parties ... or by separate acts. Whichever of these methods is chosen, the result should be that the
Court has before it 'any matter of territorial right or other title or interest which may be a matter of
difference between' the Parties, and a request that it 'draw a single maritime boundary between
their respective maritime areas of seabed, subsoil and superjacent waters' 8".
The Court then fixed 30 November 1994 as the time-limit within which the Parties were, jointly or separately,
to take action to submit to the Court the whole of the dispute .9
1.10 On 30 November 1994, Qatar filed in the Registry a document entitled "Act to comply with paragraphs 3)
and 4) of operative paragraph 41 of the Judgment of the Court dated 1 July 1994". It referred to "the absence of
an agreement between the Parties to act jointly" and declared that it was thereby submitting to the Court "the
whole of the dispute between Qatar and Bahrain, as circumscribed by the text ... referred to in the 1990 Doha
Minutes as the 'Bahraini formula'". It continued thus:
"The matters which would be referred to the Court were exhaustively defined in the Tripartite Committee (see paragraph 18 of the Court's Judgment of 1 July 1994). The subject matters of the
dispute were described in identical terms in Bahrain's written pleadings and in a draft special
agreement proposed by Bahrain on 20 June 1992 (see Bahrain's Rejoinder, Annex 1.3, p. 113).
The following subjects fall within the jurisdiction of the Court by virtue of the rights and
obligations created by the international agreements of December 1987 and 25 December 1990 and
are, by virtue of Qatar's Application dated 5 July 1991 and the present Act, submitted to the Court:
1. The Hawar Islands, including the island of Janan;
2. Fasht al Dibal and Qit'at Jaradah;
3. The archipelagic baselines;
4. Zubarah;
5. The areas for fishing for pearls and for fishing for swimming fish and any other
matters connected with maritime boundaries.
It is understood by Qatar that Bahrain defines its claim concerning Zubarah as a claim of
sovereignty.
Further to its Application Qatar requests the Court to adjudge and declare that Bahrain has no
sovereignty or other territorial right over the island of Janan or over Zubarah, and that any claim by
Bahrain concerning archipelagic baselines and areas for fishing for pearls and swimming fish
would be irrelevant for the purpose of maritime delimitation in the present case."
1.11 In its Judgment of 15 February 1995 the Court held that:
"48. The dispute is thus described in the very terms used by Bahrain at the sixth meeting of the
Tripartite Committee held on 6 and 7 December 1988. Nor does it differ from the dispute described
in the draft joint acts proposed by Bahrain on 22 October and 12 November 1994, and
subsequently withdrawn by it, except in so far as these latter related to sovereignty over the Hawar
islands and sovereignty over Zubarah. It is clear, however, that claims of sovereignty over the
Hawar islands and over Zubarah may be presented by either of the Parties, from the moment that
the matter of the Hawar islands and that of Zubarah are referred to the Court. As a consequence, it
appears that the form of words used by Qatar accurately described the subject of the dispute. In the
circumstances, the Court, while regretting that no agreement could be reached between the Parties
as to how it should be presented, concludes that it is now seised of the whole of the dispute, and
that the Application of Qatar is admissible ."
11
1.12 Qatar welcomed the Judgment of the Court , which found "that it has jurisdiction to adjudicate upon the
dispute submitted to it between the State of Qatar and the State of Bahrain" and "that the Application of the
State of Qatar as formulated on 30 November 1994 is admissible". Since then, Qatar has been cooperating with
the Court in the conduct of the present proceedings. Qatar is confident that the forthcoming Judgment of the
Court, to the Statute of which the two States as members of the United Nations are ipso factoparties, will put
an end to the dispute between the two States in accordance with international law, and that the decision of the
Court will be complied with in accordance with the obligations of the Parties under the 1987 Agreement and
the Charter of the United Nations. During the present proceedings, Qatar is remaining at the disposal of the
Mediator to study any proposal it might make within the framework of the Doha Agreement which, as the
Court decided in operative paragraph 41(1) of its Judgment of 1 July 1994, is an "international agreement ...
creating rights and obligations for the Parties".
1.13 On 28 April 1995, having ascertained the views of Qatar and having given Bahrain an opportunity of
stating its views, the Court issued an Order fixing 29 February 1996 as the time limit for the simultaneous filing
of the written pleadings in accordance with paragraph 39 of the Judgment of 1 July 1994 and paragraph 49 of
the Judgment of 15 February 1995. On 1 February 1996, at the request of Bahrain the Court extended this timelimit until 30 September 1996.
1.14 It is now for each Party to present its claims to the Court. As the Court stated in its Judgment dated 15
February 1995 "... it falls to Qatar to present its submissions to the Court, as it falls to Bahrain to present its
own ".
1.15 As the Court is aware, Qatar's claims and initial submissions are to be found in its Application dated 5 July
1991 and in its "Act to comply with paragraphs 3) and 4) of operative paragraph 41 of the Judgment of the
Court dated 1 July 1994" filed with the Registry on 30 November 1994. In its Judgment of 15 February 1995
the Court found "that the Application of the State of Qatar as formulated on 30 November 1994 is
admissible ". As of today, Qatar remains incompletely informed of any of the claims and submissions of
Bahrain either under the five subject matters of the dispute which are submitted to the Court or under the
request that the Court draw a single maritime boundary between their respective maritime areas of sea-bed,
subsoil and superjacent waters. In this Memorial Qatar will therefore present its case with respect to those
subject matters, without prejudice however to the position that it may take once it has been informed of the
claims and submissions of Bahrain.
Section 2. The Violations by Bahrain of the status quo Commitments
1.16 Qatar recalls that, as a result of meetings during 1975 and 1976 between the King of Saudi Arabia, the
Amir of Qatar and the Amir of Bahrain, it was agreed that the Kingdom of Saudi Arabia would undertake
mediation between Qatar and Bahrain to resolve the outstanding disputes. In 1978, in the course of the
Mediation, King Khalid of Saudi Arabia proposed the Framework . As indicated above, the Framework was
15
approved on 22 May 1983 . The Second Principle provided for the maintenance of the status quo and declared
that any act to change the status quo would have no legal effect. The Third Principle incorporated undertakings
by the Parties to refrain from engaging in propaganda activities against each other or from doing anything to
sully the cordial atmosphere necessary to facilitate fruitful negotiations.
1.17 The Second and Third Principles of the Framework were reiterated and embodied in the 1987 Agreement
which, to use the words of the Court itself, is an "international agreement ... creating rights and obligations for
the Parties ".
1.18 The second point of that Agreement reads as follows:
"Secondly : Until a final settlement for the disputed matters is reached in accordance with the
preceding Article, the two sisterly States of Qatar and Bahrain shall abide by the principles of the
framework for a settlement on which they agreed on 10/8/1403 H - corresponding to 22/5/1983 -
and by the following in particular:
(a) Each party shall undertake from to-date to refrain from any action that would
strengthen its legal position, weaken the legal position of the other party, or change the
status quo with regard to the disputed matters. Any such action shall be regarded null
and void and shall have no legal effect in this respect.
(b) The parties undertake to refrain from to-date from any media activities against each
other whether in connection with this dispute or any other matters and until such time
as the desired settlement is reached.
(c) The parties undertake to refrain from any action that would impede the course of
the negotiations or disturb the brotherly atmosphere necessary for the achievement of
their objectives ."
1.19 In the course of the proceedings addressed to the questions of the jurisdiction of the Court to entertain the
dispute and of the admissibility of the Application, Qatar communicated a certain number of notes verbales
with respect to various incidents relating to the Hawar islands, the shoals of Dibal and Qit'at Jaradah and the
waters situated on the eastern side of the line indicated in the British decision of 23 December 1947, which
were in breach of the Second and Third Princi ples of the Framework and the second point of the 1987Agreement relating to the maintenance of the status quo . Qatar attaches to this Memorial copies of those notes
verbales , updated by the addition of more recent exchanges of notes verbales between the two States and/or the
18
Co-operation Council of Arab States of the Gulf .
1.20 With respect to the Hawar islands, Qatar has also prepared a written report accompanied by photographs
on Bahrain's actions and activities in those islands since the beginning of the Mediation . It has also prepared
20
photographs of mosaics of slides taken of the Hawar islands from 1958 on . These documents give evidence
of the construction of military and civilian installations and the introduction of military weapons into Hawar by
Bahrain, and also show that Bahrain has been intensifying such activities, in particular from the date of seisin of
the Court by Qatar on 8 July 1991. This has become more flagrant since the first Judgment of the Court on
1 July 1994. Indeed, in a note verbale , which it forwarded to the Registrar of the Court under cover of a letter of
21
8 January 1996, Bahrain acknowledges that it has carried out such activities .
1.21 In addition, it is apparent that Bahrain is continuing to undertake military activities on Hawar. For
example, on 24 May 1996, the Heir Apparent and Commander-in-Chief of the Defence Force of the State of
Bahrain went to the main Hawar island to visit the public security and defensive forces stationed there.
Moreover, Bahrain has undertaken other activities in an endeavour to consolidate its position, but these are
clearly no more than an artificial attempt to give the impression that there are civilian activities on Hawar. For
example, Bahrain has put up bungalows and a hotel for tourism on the main Hawar island, and has taken further
steps to encourage tourism on the islands. In particular, in July 1996, a Bahraini tourist company began
advertising tourist trips to the islands. Finally, Bahrain is taking legislative and administrative actions in
relation to the disputed shoals and maritime areas.
1.22 This situation is viewed very seriously by the Qatari authorities, whose concern was expressed by the
Agent of the State of Qatar at the meeting with the President of the Court on 27 April 1995. He indicated that
under the 1987 Agreement, by the terms of which Bahrain and Qatar have undertaken legal obligations (as
decided by the Court in its Judgment of 1 July 1994), the two Parties had agreed to refrain from hostile actions.
He drew the attention of the President of the Court to the necessity for Qatar and Bahrain to refrain from
adverse acts and breaches of the status quo :
"... Qatar considers that both Governments should refrain from any act likely to impede the
gathering of evidence material to the present case and that in regard to the administration of the
disputed islands, shoals and maritime area, the situation which prevailed previously should not be
modified. In ad22tion, both Parties should refrain from any adverse acts and any infringements of
the status quo ."
1.23 To conclude, the Bahraini activities that Qatar has brought to the attention of the Court are flagrant and
material breaches of the agreed status quo , and in particular of the 1987 Agreement, which has now been
confirmed by the Court as being an international agreement creating rights and obligations for the Parties.
Moreover, it is clear that under the Second Principle of the Framework agreed in 1983 (as again set out in
paragraph (a) of the second point of the 1987 Agreement), any action infringing the status quo is null and void
and can have no legal effect .3
Section 3. Outline of Qatar's Memorial
1.24 This Memorial is divided into four Parts. Following this Introductory Part I, Part II addresses "The
Geographical and Historical Background to the Dispute", Chapter II containing a geographical description of
the general area of the dispute, and Chapter III setting out the historical background from the 17th century until
today.
1.25 Part III then addresses "The Hawar Islands and Other Territorial Questions". With regard to the Hawar
islands, their geography is considered in Chapter IV, while the territorial integrity of Qatar and Qatar's
sovereignty over the Hawar islands is discussed in Chapter V. Chapter VI then explains the defective nature of
the British decision of 11 July 1939 that the Hawar islands belonged to Bahrain. Finally, in Chapters VII and
VIII, Qatar addresses the questions of Janan island and Zubarah respectively.
1.26 Part IV deals with the issue of maritime delimitation before the Court. Chapter IX gives a generalpresentation of the relevant maritime area for the purposes of this delimitation. Chapter X then considers the
1947 British decision, while Chapter XI addresses the relationship between the line drawn by the British in
1947 and the single maritime boundary which the Court is being asked to draw. Finally, Chapter XII considers
the drawing of a single maritime boundary by the Court in the area to the north of a notional line joining the
northernmost points of the respective land territories of Qatar and Bahrain.
1.27 This Memorial ends with Qatar's Submissions.
1.28 Attached to this Memorial there are 8 Appendices in 4 volumes, including a Map Atlas, and 12 volumes of
Annexes. A list of these Appendices, Annexes and Maps may be found at the end of this Volume. In general,
the Annexes are organised according to the Part of the Memorial in which they are referred to. In other words
Annexes to Part II of the Memorial are numbered Annex II.1, II.2, etc. However, certain important texts which
are referred to throughout the Memorial are only included once - among the Annexes to Part II of the
Memorial. A list of certain documents which are being deposited separately with the Registry pursuant to
Article 50, paragraph 2, of the Rules of Court is contained in the Agent of Qatar's letter to the Registrar dated
30 September 1996.
1.29 For the sake of convenience, a list of the main abbreviations used from time to time in Qatar's Memorial
and its annexes is set forth below.
RQ : Ruler of Qatar
RB : Ruler of Bahrain
PRPG : Political Resident in the Persian Gulf, sometimes referred to simply as the Political
Resident
PAB : Political Agent, Bahrain
PAQ : Political Agent, Qatar
ABG : Adviser to the Bahrain Government
IO : India Office
FO : Foreign Office
IOR : India Office Records
BAPCO : Bahrain Petroleum Company
PCL : Petroleum Concessions Limited
EGS : Eastern and General Syndicate Ltd.
APOC : Anglo-Persian Oil Company
Where reference is made in this Memorial to Archives of the State of Qatar, the documents are from the
Archives of the Diwan Amiri of the State of Qatar.
PART I INTRODUCTION 1
CHAPTER I BACKGROUND TO THE PRESENT PROCEEDINGS 1
Section 1. The Case submitted to the Court 1
Section 2. The Violations by Bahrain of thestatus quo Commitments 7 Section 3. Outline of Qatar's Memorial 10
1 Annex II.10 to the Memorial of Qatar in the phase of the proceedings relating to Questions of Jurisdiction and
Admissibility, Vol. III, p. 49. When the need arises for Qatar to refer to such proceedings, the references used
will be, for example, Q.M.J.A. or B.C.J.A., as appropriate.
2 Annexes II.15 and II.16, Q.M.J.A., Vol. III, pp. 101 and 107, and Annex I.4, B.C.J.A., Vol. II, p. 23.
3 Annex II.29, Q.M.J.A., Vol. III, p. 191.
4 Annex II.32, Q.M.J.A., Vol. III, p. 205.
5 Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Jurisdiction and Admissibility,
Judgment I,C.J. Reports 1994 , p. 123, para. 32.
6 Ibid., pp. 119-120, para. 20.
7 Ibid., p. 124, para. 35.
8 Ibid., p. 125, para. 38.
9 On 1 July 1994, H.E. Sheikh Mohammed bin Mubarak Al-Khalifa, the Foreign Minister of the State of
Bahrain, issued the following declaration: "The State of Bahrain appreciates today's decision of the
International Court of Justice which confirms the right of the State of Bahrain to submit to the Court its claim
over Zubarah, as well as its claims regarding other rights which are the subject of dispute between the States of
Bahrain and Qatar". This statement was sent to the Court under a covering letter from the Agent and Counsel of
the State of Bahrain dated 11 July 1994.
10 I.C.J. Reports 1995 , p. 25, para. 48.
11 See , for example, Annexes I.3 and I.6, Vol. 2, pp. 9 and 25.
12 I.C.J. Reports 1995 , p. 25, para. 49.
13 Ibid., p. 26, para. 50 (2).
14 Annex II.1, Q.M.J.A., Vol. III, p. 1. For a full account of the events relating to the Framework,ee ,
Q.M.J.A., Vol. I, pp. 35-40, paras. 3.09-3.20.
15 Annex II.10, Q.M.J.A., Vol. III, p. 49.
16 I.C.J. Reports 1994 , p. 126, para. 41 (1).
17 See , Annexes II.15 and II.16, Q.M.J.A., Vol. III, pp. 101 and 107 and Annex I.4, B.C.J.A., Vol. II, p. 23.
18 See , Appendix 1, Vol. 14. For the sake of convenience, a brief summary of the content of each note verbale
has been inserted at the beginning of Appendix 1.
19 See , Appendix 2, Vol. 15, p. 1, and the video tape entitled "Bahrain Actions and Activities in Hawar Islands
Since the Beginning of the Mediation". Twenty copies of the video are being filed with the Registry pursuant to
Article 50, paragraph 2, of the Rules of Court.
20 See , Appendix 7, Vol. 16. A mosaic is the composite photograph that is created when a number of aerial
photographs are joined together so that broader geographic areas can be studied from a single image. Mosaics
are created using either controlled or uncontrolled assembly techniques. Controlled mosaics are created from a
sophisticated assembly process which accounts for, and corrects, much of the distortion inherent in aerial
photographs, making them a reliable base source of information for topographic mapping. Uncontrolledmosaics, on the other hand, are created from a more simplistic assembly process and may be used for studying
land use and natural resources. The mosaics presented in Appendix 7 are all uncontrolled mosaics; as such, they
may be used to study features on the ground, but they would not be suitable for making precise distance or
aerial measurements.
21 See , Appendix 1, Vol. 14, p. 393.
22 Agent of Qatar's letter to the Registrar, 28 April 1995, p. 3.e, also, the statement, made upon the occasion
of the delivery of the Judgment of the Court on 15 February 1995, by the Heir Apparent and Defence Minister
of the State of Qatar, now the Amir, H.H. Sheikh Hamad bin Khalifa Al-Thani. He stated that: "The State of
Bahrain has, notwithstanding, continued to breach this commitment [maintenance of the status quo] by
constructing installations and effecting changes in places and positions in dispute such as the islands of
Hawar" (Annex I.3, Vol. 2, p. 9).
23 See , in this respect,gal Status of the South-Eastern Territory of Greenland, Order of 3 August 1932 ,
P.C.I.J.,eries A/B, No. 48 , p. 287.
__________
PART II
THE GEOGRAPHICAL AND HISTORICAL BACKGROUND TO THE DISPUTE
CHAPTER II
DESCRIPTION OF THE GENERAL AREA OF THE DISPUTE
Section 1. Introduction
2.1 Two geographical areas will be distinguished and briefly described below. The first is the broad one of the
Arabian/Persian Gulf which geographically, historically and politically forms a natural configuration with its
own particular characteristics which are relevant to this dispute. This general setting is shown onp No. 1 ,
facing this page and is discussed in Section 2 below.
2.2 Within this larger area, a second may be identified which is shown on Map No. 2 , facing the following
page. This covers an area between the Hasa coast in the west and the sea to the east of the peninsula of Qatar. It
thus includes the whole of Qatar and Bahrain and the waters surrounding Bahrain. It is within this second area
that most of the events which form the background to this dispute occurred.
Section 2. General Setting: The Geography of the Arabian/Persian Gulf
2.3 As can be seen from Map No. 1 facing this page, Qatar and Bahrain are situated on the southern side of the
Arabian/Persian Gulf almost midway between its mouth at the Strait of Hormuz and its termination at the Shatt
al Arab. Confined by the landmass of Persia (now the Islamic Republic of Iran) to the north, and the Arabian
peninsula to the south, and narrowing at the Strait of Hormuz, the Gulf is a semi-enclosed sea. It has an area of
approximately 240,000 square kilometres; its length is approximately 984 kilometres and its breadth varies
from a maximum of 336 kilometres to a minimum of 56 kilometres in the Strait of Hormuz.
2.4 The Arabian/Persian Gulf is formed by a shallow depression, constituting an unbroken continental shelf
underlying the whole of the Gulf. This depression produces depths averaging only 40 metres in the Gulf as a
whole with a maximum depth of 170 metres near the Strait of Hormuz. However, the basin formed by the
depression is markedly asymmetric with the slope of the southern and south-western sides of the Gulf,
adjoining the Arabian peninsula, being far gentler than that of the northern Iranian coast. Thus, the waters are
deeper near this northern coast and easier for navigation, while on the southern side the waters are generally
1
very shallow .2.5 These characteristics of the two sides of the Gulf are mirrored in the respective shorelines. The northern
side of the Gulf is mountainous, with the mountains falling sharply to the shoreline. The southern coast by
contrast is, as described in thePersian Gulf Pilot , "a desert of white sand". With the exception of the northwest
side of the Oman peninsula, this coastline is described by the same source as "exceedingly low; from it, for
nearly its whole length, reefs and shoals extend as much as from 30 to 50 miles in places ". The southern coast
of the Gulf starts at the tip of the Oman peninsula in the Strait of Hormuz and follows the coastline south-west
and then west until it meets the Qatar peninsula. After going round the Qatar peninsula, it turns in a steep north-
westerly direction following the coastlines of Saudi Arabia and Kuwait and Iraq to where it meets the border of
the Islamic Republic of Iran at the Shatt al Arab. This latter part of the coastline is often referred to as the Hasa
coast or the Qatif coast. Bahrain is situated in the gulf that lies between the Qatar peninsula and this coastline.
2.6 There are numerous islands, shoals and reefs in the Gulf, the largest islands being Jazirat-ye Qeshm on the
north side of the Strait of Hormuz and the island of Bahrain itself.
Section 3. Qatar, Bahrain and the Hasa Coast
2.7 The area to be discussed in this section is shown on Map No. 2, facing this page. This area is at the centre of
the dispute. It includes the seabed, subsoil and superjacent waters between Qatar and Bahrain, as well as the
shoals of Dibal and Qit'at Jaradah, the Hawar islands, the island of Janan, and Zubarah on the peninsula. The
British drew a line of delimitation of the sea-bed on 23 December 1947 at a time when both Bahrain and Qatar
asserted claims to a three-mile territorial sea limit Both States have since extended their territorial seas to 12
miles. Thus, in the area where the coasts of Qatar and Bahrain face each other, the waters are now territorial
sea. Map No. 2 , facing the preceding page, reproduces the lines of the existing seabed delimitation agreements
between Bahrain and Saudi Arabia, Bahrain and Iran, and Qatar and Iran. Qatar has also concluded a
delimitation agreement with Saudi Arabia in the Dawhat Salwah 4. The detailed description of the geographical
characteristics of these specific features will be taken up in detail in Parts III and IV of this Memorial.
A. Qatar
2.8 The peninsula of Qatar juts northward into the Arabian/Persian Gulf from the bay called Dawhat Salwah on
the west and, on the east, from south of Khor al-Udaid. The peninsula is about 180 kilometres long north to
south and a maximum of 85 kilometres wide and, excluding islands, covers an area of approximately 14,000
square kilometres. Its main ports are Doha, the capital, and Umm Said, on the east side of the peninsula. The
Hawar islands and Janan island are located on the western side of the Qatar peninsula. There is a major oil field
to the south of Ras Dukhan (just below the Hawar islands) on the west coast. Zubarah's ruins are to be found on
the north-western coast. The surface of the peninsula consists of an arch of limestone, in the sand-filled pockets
of which are seams of water which support good grazing in the winter and spring. The land of Qatar has
numerous hills on the western side. Towards the east the surface of the country becomes a less rugged
limestone plain sloping gently into the Arabian/Persian Gulf.
B. Bahrain
2.9 Bahrain is situated at a midway point along the Arabian/Persian Gulf and as a result gained much of its
importance as a trading centre, its geographical separation from the mainland making it relatively secure and
independent of the mainland's problems.
2.10 According to the latest version of the Persian Gulf Pilot, the State of Bahrain consists of the island of
5
Bahrain itself "together with a number of small islands and islets lying close to its shores ". The name Bahrain
has been used variously to refer to the main island of Bahrain itself (previously known as "Awal"), or to the
group of three principal islands which form the inhabited part of the State of Bahrain. The other two inhabited
islands lie to the north-east and east of the main Bahrain island, the larger being Al Muharraq, and the other
Sitrah. Lorimer, writing at the beginning of this century, described the group of islands that formed the
sheikhdom of Bahrain as follows:
"... taken all together these form acompact group almost in the middle of the gulf which divides the
6
promontory of Qatar from the coast of Qatif ."2.11 The main island of Bahrain is about 43 kilometres in length from north to south, with a breadth of about
12.8 kilometres for most of its length. For Qatar, Bahrain covers an area of approximately 652.8 square
kilometres.
C. The Hasa Coast
2.12 The Hasa coast is the third natural feature of the area. The relevant part of this coast for the purposes of
this dispute runs from Ras Tannurah in the north to the end of Dawhat Salwah (at the Saudi Arabian town of
Salwah), in a general north-west/south-east direction and is shown onap No. 2 , facing page 14.
13
PART II THE GEOGRAPHICAL AND HISTORICAL BACKGROUND TO THE DISPUTE
CHAPTER II DESCRIPTION OF THE GENERAL AREA OF THE DISPUTE 13
Section 1. Introduction 13
Section 2. General Setting: The Geography of the Arabian/Persian Gulf 13
Section 3. Qatar, Bahrain and the Hasa Coast 14
A. Qatar 15
B. Bahrain 15
C. The Hasa Coast 16
1 See, Annex II.1, Vol. 3, p. 13.
2 Ibid.
3 See, paras. 3.76et se., and paras. 11.13et se., below.
4 This delimitation agreement is not shown on Map No. 2 .ee , paras. 11.28et se., below.
5 Annex II.1, Vol. 3, p. 37.
6 Annex II.3, Vol. 3, p. 88 (emphasis added). This citation is taken from J.G. Lorimer,zetteer of the Persian
Gulf, Oman and Central Arabia, 1908 and 1915, reprinted by Archive Editions, 1986, Vol. II, p. 234. Lorimer
was an employee of the Indian Civil Service, whose career culminated in the post of Political Resident in the
Persian Gulf from December 1913 until his death in February 1914, and his Gazetteer was compiled as a British
governmental project.
__________
CHAPTER III
HISTORICAL BACKGROUND
Section 1. Introduction
3.1 The purpose of this Chapter is to outline the history of Qatar and Bahrain. It will first deal, in Section 2,
with the general background history of the presence of foreign powers in the Gulf, and will then turn, in
Sections 3 and 4, to the history of Qatar and Bahrain individually. Finally, Sections 5 and 6 will describe the
events which are more particularly related to the subject matter of the dispute in the present proceedings,
together with the Parties' attempts to resolve the dispute. Facing this page isNo. 3 showing the generalsetting, indicating the various places mentioned in this Chapter.
Section 2. Trade in the Gulf, and Presence of Foreign Powers prior to 1868
3.2 From early times there existed a considerable sea trade between the Gulf and Africa and India. Before the
arrival of the Europeans in the area, navigation was traditionally in the hands of the Arabs, on both the Arabian
and Persian sides of the Gulf. The first Europeans to arrive, at the end of the 15th century, were the Portuguese
who were attracted to the Gulf because it lay along one of the trading routes with India. Their commercial
interests lay in controlling the waters of the Gulf and thus assuring the safe flow of trade. They established forts
at Hormuz and Bahrain and had a virtual monopoly of trade in the Gulf throughout the 16th century. This
monopoly was first challenged by the Dutch, who arrived towards the end of the 16th century, establishing a
series of trading posts on the Persian coast. However, the real challenge came somewhat later from the British,
in the form of the East India Company, which was anxious to consolidate a presence in the Gulf because of its
commercial interests in India 1. Britain subsequently associated with Persia and succeeded in expelling the
Portuguese from Hormuz in 1622. Rivalry with the Dutch followed, and in 1766 the last Dutch trading post, on
Kharg Island, was abandoned. Thereafter, the British acquired almost a monopoly of the foreign commerce of
the Gulf ports, and were left as the only foreign power in the area until the arrival of the Ottomans some
decades later.
A. The British
3.3 By the end of the 18th century, in addition to its commercial interests, there were other reasons for Britain's
increased involvement in the Gulf, including the growing presence of Indian traders who were subject to British
protection. More significantly, the growing British presence in India made the Gulf an area of great strategic
importance for successive British governments. Maritime trade had considerably increased, as had piracies,
with the result that the southern coast of the Gulf came to be known as the "Pirate Coast". It was the
intensification of acts of piracy in the first part of the 19th century, directly affecting British commercial
interests, which led to the first major change in the British role in the area .
3.4 In 1797, two British vessels were attacked in the Gulf by Arab tribes led by the Qawasim, whose
headquarters were in Ras Al-Khaimah. In 1803-1804 and 1805, similar attacks occurred, including the seizure
by pirates of the British crew and passengers of a native vessel and, on another occasion, of two merchant
vessels owned by the British Resident at Bushire. Since these affairs were too serious to be ignored, the British
sent an expedition against the Qawasim in 1805, following which there was a temporary cessation of acts of
piracy.
3.5 In 1808, however, piratical attacks against British and Indian vessels began once again, and on two
occasions the crews of such vessels were massacred by the pirates. By this time the Qawasim reportedly
possessed 63 large vessels and a huge fleet of small ones, and about 19,000 men afloat. This strength even led
their sheikh to suggest that the Bombay Government should pay him protection money, in return for which he
would guarantee the safety of British commerce in the Gulf. Since the British could not allow this situation to
continue, they despatched a second expedition against the Qawasim in 1809-1810. While many of their vessels
were destroyed, the piratical tribes made no formal admission of defeat or written engagement for future good
conduct, and in 1812 there were already signs of a revival of piracy. In 1813 the Qawasim attacked and robbed
several British and native commercial vessels, and other vessels remained confined to port in India, not
venturing to sail on account of the increasing danger at sea. Similar offences occurred in 1814 and increased
greatly in 1815-1816, when on many occasions the pirates not only robbed ships, but also killed their crews.
These depredations continued until 1819.
3.6 In that year, a substantial force of combined British naval and East India Company vessels was led against
the Qawasim. The British took control of Ras al Khaimah, and "the other ports of the Pirate Coast were visited,
3
and a clean sweep was made of their military defences and their larger war vessels ". Similar measures were
taken against the two Bahraini Sheikhs. Thereafter, individual agreements were signed by the British with the
Sheikhs including an undertaking to enter into a General Treaty of Peace in the future . The General Treaty was
drawn up on 8 January 1820, and on various dates the Sheikhs of the Pirate Coast, including the two Bahraini
5
Sheikhs, severall y became parties thereto .3.7 By this Treaty the Arab signatories undertook on behalf of themselves and their subjects to abstain for the
future from plunder and piracy, as distinguished from "acknowledged war", and various arrangements were
prescribed for ensuring strict observance by them of their new obligations, among these being the adoption by
the tribes of a common distinctive flag, and the institution of a system of ships' papers for purposes of
identification.
3.8 In order to enforce the Treaty of 1820, the British stationed more permanent naval forces in the Gulf, and
subsequent acts of piracy, including several believed to have been perpetrated by tribes of Qatar and Bahrain,
were dealt with directly by these forces. However, piracy as well as numerous acts of aggression by one Arab
tribe against another continued, resulting in severe disruption to both British and Arab trade. Therefore, in
1835, on British suggestion, a maritime truce was established which was to be observed by the leading sheikhs
of the Pirate Coast for the period from 21 May to 21 November of that year. 6Because of the benefits to trade
this agreement brought, it was renewed on a yearly basis, until a Treaty of Maritime Peace in Perpetuity was
7
signed on 24 August 1853 . In 1836, the British had also imposed a de factorestrictive line between the Persian
coast and the Arab coast, beyond which the Arab tribes were not allowed to conduct any hostile operations.
3.9 While the aim of these treaties and of the restrictive line was to protect trade by ensuring maritime peace
and eliminating piracy, the British were inevitably drawn into resolving local disputes. This they did, for
example, by imposing fines and assisting in the recovery of plundered property, and at times by supporting one
sheikh rather than another.
3.10 It is worth noting, however, that British ascendancy in the Gulf from 1820 onwards and, in particular, over
the affairs of the Arab chiefs, was mainly a de facto position and not a position held as of right. In effect, the
moves to establish peace at sea referred to above, as well as others between 1838 and 1847 concerning the slave
trade, permitted the British to intervene to secure the execution of treaty obligations. But they did not establish
any supremacy of Great Britain over the Arab chiefs with regard to their other internal or external affairs. Nor
did Great Britain claim suzerainty over them on treaty grounds. This situation was not generally modified until
1892, when most Arab sheikhdoms concluded the so-called "Exclusive Agreements" with Great Britain, a
8
general policy of protection having been adopted at that time .
B. The Ottomans
3.11 Unlike British involvement, which was essentially maritime and directed against interferences with trade,
Ottoman involvement in the region was more concerned with the land, and was a reaction against the rise of
Wahhabi power . By 1795 the Wahhabis had taken control of Central Arabia and reached the Hasa coast, and
were preparing for further expansion "towards Kuwait, Bahrain, Qatar and Oman" . In 1802 the holy city of
Mecca fell to the Wahhabis, and from at least 1803 until 1811 both Bahrain and Qatar were subject to the
11
influence of Abdurrahman bin Saud, the Wahhabi Amir . The extent of this power was an embarrassment to
the Ottoman Sultan, who claimed to be the titular overlord of the Hijaz and the leading Muslim sovereign with
the right to control the Holy Places. He therefore invited the Viceroy of Egypt, Muhammad Ali (who was
subject to the Ottoman Sultan), to send a military expedition to obtain control over the Wahhabis on his behalf.
This first expedition took place between 1811 and 1815, and resulted in the occupation of the Hijaz, Nejd and
Hasa. After departure of the Egyptian troops by 1824, the authority of the Ottoman Sultan was not repudiated,
and a nominal tribute continued to be paid to him by the Wahhabi Amir . 12
3.12 Soon after the death in 1865 of Faisal bin Turki, the Wahhabi Amir, a conflict broke out between his sons
Abdullah and Saud. The Ottoman Turks supported Abdullah and appointed him as Kaimakam (or Deputy
Governor) of Nejd on their behalf, obtaining from him an admission of their suzerainty over Central Arabia . 13
When Saud subsequently sought to overthrow his brother Abdullah, the Sublime Porte intervened by sending a
14
military expedition to Hasa and the Nejd in 1871 to restore peace and order . This Ottoman involvement in the
area confirmed the division between control of the sea by the British and of the land by the Ottomans.
3.13 Already, in 1867 the Ottomans had begun to make surveys of the area and to produce maps on the basis of
these surveys . The British were aware of the existence of these maps, as witnessed by the stamps they bear.
They show Bahrain and Qatar as separate entities, the Ottomans being concerned to demonstrate that the
mainland, including Qatar, fell within their sphere of influence .63.14 Indeed, as will be further discussed below, in 1871, with the agreement of the Sheikhs of Qatar, the Qatar
peninsula came formally under the control of the Ottoman Empire with the raising of the Ottoman flag at
various localities and, in early 1872, the arrival of an Ottoman garrison . Ottoman control in Qatar was to last
until 1915. In general, the British did nothing to hinder this control, once they had obtained the necessary
assurances from the Porte that it would not interfere in any way in the affairs of Bahrain or the Arab Trucial
18
sheikhdoms nor disturb the peace at sea, which would have had severe adverse effects on British trade .
3.15 Against this background, it is now appropriate to turn to the history of Qatar and Bahrain themselves.
Section 3. The History of Qatar and Bahrain up to 1868
A. Events in Qatar
3.16 As the Court will appreciate, written evidence of events in the region of Qatar and Bahrain is
understandably scarce for this early period, given the difficult desert conditions and the largely nomadic life
that was led by the tribes. Nevertheless, there is evidence to show that a town existed at Zubarah on the
northwestern coast of the Qatar peninsula in early Islamic times, and there are also references to Qatari
19
products dating from those times . Further evidence shows that at least by the beginning of the 17th century
Zubarah was already a fortified town, with its own Sheikh and administration . 20
3.17 In 1715 members of the Al-Utub tribe from Central Arabia established themselves outside the walls of
Zubarah for about two years, after which they went to Kuwait. During this time three sections emerged in the
tribe: the Bin Khalifah, from whom the present ruling family in Bahrain claims descent, and the Bin Sabah and
Al-Jalahma . In 1766 the Bin Khalifah and Al-Jalahma sections left Kuwait for Bahrain, which had been
occupied by the Persians since 1753, and thence to the Qatar peninsula, where in 1768 they built a fort, known
as Al-Murair, at some distance outside the outer wall of Zubarah . 22
3.18 The growth of Zubarah was greatly stimulated by the Persian occupation of Basrah between 1776 and
1779, during which time a number of Basrah merchants together with fugitives from Kuwait resided there
temporarily, and the pearl trade and general trade with eastern Arabia centred there. In these circumstances, the
"reduction" of Zubarah became an object of importance to the Persian Government . Several attacks were
therefore made upon the place by the Sheikh of Bushire who was also Persian governor of Bahrain, supported
by Persian boats together with tribes from the Pirate Coast. These attempts commenced in 1777, but were
unsuccessful 24. It was after failure of these attempts that members of the Al-Utub, together with tribes from
various parts of Qatar, retaliated and finally took control of Bahrain in 1783 , whereupon the Al-Utub
26
transferred their headquarters to Bahrain . After these events, and following a struggle for power in Bahrain,
the Al-Jalahma section of the Al-Utub were evicted from the island by the Bin Khalifah section 27.
3.19 Since Britain was chiefly concerned about its trade, mentions of Qatar in British sources during the
following period, up until 1820, refer mainly to the activities of Rahmah bin Jabir of the dissenting Al-Jalahma
section of the Al-Utub tribe. He was regarded by the British as a notorious pirate, but his hostility was in fact
directed against the Bin Khalifah section of his tribe as a result of their eviction of his own section from
Bahrain. Rahmah bin Jabir managed to achieve a substantial degree of control in the peninsula at some periods,
in conjunction with the Wahhabis , and in 1809 the Wahhabis with his help took control of the whole
peninsula . The following year, they extended their control to Bahrain, but in 1811 they were forced to
30
withdraw from Bahrain and from the peninsula by the Imam of Muscat . In the course of these events the town
of Zubarah was burnt .31
3.20 After 1820 and the signature of the General Treaty of Peace 32 , the British continued to be principally
concerned with Qatar as a source of occasional acts of piracy. Although Qatar had not been a party to the
Treaty, the British appeared to think that its terms nevertheless applied to the peninsula. However, on a visit to
Al-Bida in 1823, the Political Resident observed that "the people seemed to know very little of the conditions
of the treaty and [their boats] had neither flag nor register ".3.21 During the first half of the 19th century both Qatar and Bahrain were marked by inter- and intra-tribal
conflict as well as by a struggle for their control by outside powers.
3.22 In Qatar, the 1850's saw the rise of Mohamed bin Thani bin Ali bin Jassim Al-Bin-Tamim, who
increasingly asserted his authority over the tribes of the peninsula and upheld their independence. In 1854, he
described himself as Chief of the people of Qatar, and by 1858 had entered into an agreement of friendship and
cooperation on behalf of Qatar with Faisal bin Turki, the Wahhabi Amir, thus asserting his control over the
country and people of Qatar34.
B. Events in Bahrain
3.23 During the 17th and 18th centuries Bahrain was occupied for most of the time by the Persians, who were
35
finally expelled in 1783 by sections of the Al-Utub tribe and tribes from Qatar . As noted above, the Bin
Khalifah section finally achieved ascendancy in Bahrain and evicted the Al-Jalahma section . 36
3.24 The Arab occupation of Bahrain in 1783 was followed by a confused period until 1820, with struggles for
control over the island by Muscat, the Wahhabis and Persia. During this time the Bin Khalifah from time to
time acknowledged their submission to one or other of these powers . 37
3.25 In the years following 1820, the year in which the General Treaty of Peace had been signed by Britain
with the Sheikhs of Bahrain, a series of further threats were posed by Muscat against Bahrain. All of these were
ultimately unsuccessful, the British intervening each time in an attempt to preserve peace in the region 38. The
1830s saw renewed threats to Bahrain from the Hasa coast, first by the Wahhabis and then by the Egyptian
forces who were engaged in another expedition in the Arabian peninsula in support of the Ottomans . Despite
assurances by Britain that it would protect Bahrain, the Bin Khalifah nevertheless acknowledged Egyptian
40
supremacy in 1839 and paid tribute to the Egyptians, themselves vassals of the Porte, in that year .
3.26 The period from 1840 to 1860 was marked in Bahrain primarily by a conflict between Sheikh Abdullah
bin Khalifah and his great-nephew, Sheikh Mohamed bin Khalifah, who were co-rulers at the time. In 1842,
Sheikh Mohamed was expelled from Bahrain and took refuge in the Murair fort outside the old walls of
Zubarah. Mohamed's presence at Murair did not last long because in April 1843, helped by a contingent of
41
Qataris, he retook Muharraq and ousted Abdullah , who was in turn expelled from Bahrain and proceeded to
seek alliances with both the Wahhabis and the Persians in an effort to regain control of the island . In 1848,
Sheikh Mohamed requested from the British a new agreement affording him protection, in an effort to secure
43
his control. This request was however ultimately rejected .
3.27 While they had refused Sheikh Mohamed's request for protection, the British nevertheless rejected various
claims of other parties to Bahrain, adopting an increasingly protective attitude towards the island. Thus, in May
1853, when there was renewed tension between the Wahhabi Amir - then nominally subject to the Ottoman
Porte - and Sheikh Mohamed, the British were ready to offer every obstacle to an attack upon the island of
Bahrain . However, as will be seen below, the British took no step to oppose the Ottoman forces when they
45
moved into Qatar .
3.28 The struggle for control over Bahrain came to a head in 1859, when further preparations for a descent on
the island were made by the Wahhabi governor of the littoral. While the British Political Resident had made it
clear that he was determined to preserve the independence of Bahrain, the situation was complicated by the
Wahhabi Amir's assertion that he had authority over Bahrain as a vassal of the Ottoman Sultan and by the fact
that towards the end of 1859 Sheikh Mohamed of Bahrain had made simultaneous applications to both the
Persians and the Ottomans for protection .46
3.29 In 1861, in response to further Wahhabi threats, Sheikh Mohamed began to blockade the Hasa coast and to
harass the pearl fishers of Qatif and Dammam. The British intervened with naval forces and the Sheikh was
forced to submit, being upbraided by the Political Resident, who had arrived in Bahrain "to preserve the
maritime tranquillity now openly endangered by the defiant attitude [the Sheikh has] assumed 47". Thereafter,
on 31 May 1861, Sheikh Mohamed, together with other sheikhs of Bahrain, was required to enter into anagreement proposed by the Political Resident, the purpose of which was stated in the preamble to be "the
advancement of trade and the security of all classes of people navigating or residing upon the coasts" of the
Gulf. In exchange for an undertaking to abstain from "all maritime aggressions of every description", Sheikh
Mohamed, recognised as "independent ruler of Bahrein", was granted British protection against similar
aggression from other chiefs or tribes in the Gulf .
C. Events leading to the Agreements of 1868
3.30 In 1867, an increase of the tensions between Mohamed bin Thani in Qatar and the Bin Khalifah in Bahrain
occurred as a result of the seizure and deportation to Bahrain of a Qatari bedouin by Sheikh Ahmed bin
Mohamed bin Khalifah, the representative of the Sheikh of Bahrain at Wakrah. This caused the headmen of Al-
Bida and Wakrah to demand the bedouin's release and, on their request being refused, they took measures to
expel Sheikh Ahmed from Wakrah. However, their action was forestalled by his removing himself to Khor
Hassan. A seeming reconciliation then took place, the Sheikh of Bahrain releasing the bedouin and the
headmen of Qatar apologising to the Sheikh for their behaviour. Sheikh Jassim bin Mohamed, the son of
Mohamed bin Thani, was then invited to Bahrain for the purpose of making a permanent arrangement for the
administration of the peninsula. As soon as he arrived, however, he was imprisoned 49.
3.31 Immediately thereafter, Sheikh Mohamed bin Khalifah of Bahrain, in coordination with Sheikh Zayed bin
Khalifah Al-Bin-Yas of Abu Dhabi, launched an attack on Qatar, directed at Wakrah and Al-Bida . Al-Bida
was totally destroyed, and the victims of this outrage appealed for redress to the Wahhabi Amir, who
maintained a claim to authority over Qatar, but whose demand for reparation was rejected by the Sheikh of
Bahrain .1
3.32 At around the same time, an encounter also occurred at Al-Hamroor, between the Al-Naim tribe and the
Bin Khalifah led by Sheikh Ahmed bin Mohamed bin Khalifah. This was provoked by Sheikh Ahmed's
apparent intention to impose a tax upon the inhabitants of Qatar, which had led to a general movement of
hostility throughout the population. In the battle of Al-Hamroor, Sheikh Ahmed was killed almost immediately,
and the Al-Naim defeated the Bin Khalifah forces . 52
3.33 In retaliation for the Bahraini attack on Wakrah and Al-Bida, in June 1868 the Qataris, led by Mohamed
bin Thani, sailed towards Bahrain with an armed force. They were attacked at Damsah, however, by the Bin
Khalifah of Bahrain, led by Sheikh Mohamed bin Khalifah, and the engagement resulted in heavy casualties
among the Qataris .53
3.34 Since this affair had quickly come to be regarded throughout the Gulf as a test of British preparedness to
maintain the peace at sea, the British resolved to intervene in the conflict, viewing Sheikh Mohamed bin
Khalifah's attack on Qatar as a violation of the agreement signed by him with them in 1861 . Sheikh
Mohamed, who was reportedly "well aware that a reckoning was at hand", fled to Qatar upon the arrival at
55
Bahrain of Colonel Pelly, the Political Resident, with three naval vessels .
3.35 As a result of the intervention by Colonel Pelly, on 6 September 1868 Sheikh Ali bin Khalifah, who had
been left as Ruler of Bahrain after the flight of Sheikh Mohamed, executed an agreement in settlement of the
56
affair . The Agreement provides as follows:
"We, the undersigned, Ali bin Khalifeh and the inhabitants and subjects of Bahrein in general, do
hereby declare that Mahomed bin Khalifeh having repeatedly committed acts of piracy and other
irregularities at sea, and having now, after his recent piratical act, fled from Bahrein, has forfeited
all claim to his title as principal Shaikh and Chief of Bahrein, and at the present moment there
being no other Shaikh, I, Ali bin Khalifeh, received the Resident's letter addressed to Mahomed bin
Khalifeh, and have understood the demands therein made, and I hereby agree and accept the
conditions as follows:-
1st.-To make over to-morrow morning 19th Jemadi-ool-awul 1285 (7th September 1868), to the
high in rank, Captain Brown, Commanding Her Majesty's ships present, all the war buglas and
buteels belonging to Mahomed bin Khalifeh and myself. 2nd.-To pay the Resident the sum of one lakh of dollars in the manner specified below:
25,000 dollars cash, payable on the spot on the 7th September 1868.
75,000 dollars by three annual instalments of 25,000 dollars, each instalment being payable on the
7th September of each successive year until the total sum is paid up.
3rd.-To consider Mahomed bin Khalifeh as permanently excluded from all participation in the
affairs of Bahrein and as having no claim to that territory, and in case of his returning to Bahrein I
promise to seize and make him over to the Resident. But if I do not act up to the stipulations now
agreed I may be considered a pirate, as Mahomed bin Khalifeh himself.
4th.-In view of preserving the peace at sea, and precluding the occurrence of further disturbance,
and in order to keep the Resident informed of what happens, I promise to appoint an agent on my
57
part at Bushire ."
3.36 After securing this Agreement from Ali bin Khalifah, Colonel Pelly entered into direct contact with
Mohamed bin Thani, writing him a letter dated 11 September 1868 which calls upon him to "continue ... the
peaceful relations formerly subsisting between Bahrein and Guttar" and invites him to settle the problems
immediately . This led, on 12 September 1868, to the conclusion of an Agreement with Mohamed bin Thani,
as follows:
"I, Mahomed bin Sanee, of Guttur, do hereby solemnly bind myself in the presence of the Lord, to
carry into effect the undermentioned terms agreed upon between me and Lieutenant-Colonel Pelly,
Her Britannic Majesty's Political Resident, Persian Gulf: -
1st. - I promise to return to Dawka and reside peaceably in that port.
2nd. - I promise that on no pretence whatsoever will I at any time put to sea with hostile intention,
and in the event of disputes or misunderstanding arising, will invariably refer to the Resident.
3rd. - I promise on no account to aid Mahomed bin Khalifeh, or in any way connect myself with
him.
4th. - If Mahomed bin Khalifeh fall into my hands, I promise to hand him over to the Resident.
5th. - I promise to maintain towards Shaikh Ali bin Khalifeh, Chief of Bahrein, all the relations
which heretofore subsisted between me and the Shaikh of Bahrein, and in the event of a difference
of opinion arising as to any question, whether money payment or other matter, the same is to be
59
referred to the Resident ."
3.37 On 13 September 1868, Colonel Pelly made an address to the tribes of Qatar, warning them that if anyone
were found "in any way breaking the peace at sea, he will be treated in the same manner as Shaikh Mahomed
bin Khalifeh, of Bahrein, has been". The address continued "The British Resident, in the most friendly but
solemn manner, warns all of you that the English Government are determined to preserve the peace at sea in the
60
Persian Gulf ".
3.38 In the Agreements of 1868, the position of Sheikh Mohamed bin Thani as Chief of Qatar was
acknowledged, and the two Agreements treated the Chief of Bahrain and the Chief of Qatar on an equal
footing. The Agreements also confirm British recognition that the authority of the Sheikh of Bahrain did not
extend to the territory of Qatar, since each Sheikh accepted an obligation to hand over Mohamed bin Khalifah,
who was said to have fled from Bahrain to Qatar, if he was found on his territory.
3.39 In the fourth condition of his Agreement, Sheikh Ali bin Khalifah, who was already bound to abstain from
maritime aggression by the agreement of 1861, was reminded of his obligation to respect the maritime peace
and, in that connection, to keep the Political Resident informed. For his part, Sheikh Mohamed bin Thani
promised not to put to sea with hostile intention and to refer to the Resident in the event of disputes ormisunderstandings arising. Thus, the sea was to act as a buffer between Bahrain and Qatar, and the Resident
was to be kept informed so that he could intervene if required to prevent any hostile action arising across the
sea by one party against the other.
Section 4. Events from 1868 to 1930
A. British Intervention in Bahrain following the 1868 Agreements
3.40 Some four months after signature of the 1868 Agreements, in January 1869, and despite the terms of the
third article of the Agreement signed with Sheikh Ali bin Khalifah, Sheikh Mohamed bin Khalifah was allowed
by the British to return to Bahrain. This was at the request of Sheikh Ali, who believed he could keep better
control over him if he was in Bahrain rather than elsewhere. However, he soon began to intrigue, and Sheikh
Ali deported him to Kuwait. By September 1869 Sheikh Mohamed had moved to Qatif, and from there attacked
Bahrain. In an engagement between the forces of Mohamed and Ali, Ali was killed and his forces were
61
defeated .
3.41 When Colonel Pelly learnt of the violation of the maritime peace by Mohamed bin Khalifah and his allies,
he proposed, inter ali, a blockade of Bahrain until the leaders of the disturbance, including Mohamed bin
Khalifah, were surrendered. He also proposed the recognition of Issa, the son of Ali bin Khalifah, as Chief of
Bahrain. The Government of India authorised Pelly to proceed with the blockade and stated that his
recommendation as to Issa seemed reasonable and that he could act on it after the blockade, if circumstances
seemed favourable .62
3.42 In November 1869, Pelly blockaded Bahrain, the garrison surrendered, and Mohamed bin Khalifah was
taken prisoner. Subsequently, the British invited Issa to assume the government of the country. Following this
British intervention, protests were made by Persia and the Porte, who both continued to maintain claims over
Bahrain . However, the British opposed such claims and, as will be shown below, were to increase their
involvement in and protection of Bahrain in the following years, supporting the rule of Sheikh Issa and his
successors .4
B. Formal Arrival of the Ottomans in Qatar: 1871-1873
3.43 As noted above, while the British had become the dominant power in maritime matters in the Gulf by this
time, the Ottomans had established their control over large parts of the land on the Arabian side of the Gulf, and
in 1867 had already performed various surveys of the area illustrating their view of the territorial limits of both
65
Qatar and Bahrain . In July 1871, shortly after an Ottoman expedition to Nejd, Sheikh Abdullah bin Sabah,
who had been appointed Kaimakam of Kuwait by the Ottomans, sailed to Qatar to meet Sheikh Mohamed bin
Thani and his son Jassim, and to offer them the protection of the Ottoman Empire, handing over to them four
66
Ottoman flags .
3.44 Thereafter, in January 1872 a detachment of Ottoman regular troops arrived to install a garrison in Al-
Bida. These were in turn replaced in 1873 by gendarmes 67. However, the immediate effect of these events was
not particularly significant as far as the political organisation of Qatar was concerned. Lorimer comments as
follows:
"Except in the internal affairs of Qatar, especially the administration of the chief town and its
immediate environs, little or no change was produced by the presence of a Turkish post at Dohah;
tribal relations generally continued on the same footing as formerly, and the Al Thani Shaikhs of
68
Dohah were still the principal factor in politics ."
3.45 The main concern of the British, when they had learnt of the Ottoman expedition to Nejd, seems to have
been to establish that the Ottomans would assert no claims over Bahrain. In response to a request for
clarification made to the Ottoman Government through the British Ambassador in Constantinople shortly
before Sheikh Abdullah bin Sabah's visit to Qatar on behalf of the Ottomans, it was reported on 12 May 1871
that: "The Ottoman Porte explicitly denies all intention of extending supremacy over Bahrein, Maskat,
69
or the independent tribes of Southern Arabia, and contemplates no attack against them ."
A further Ottoman assurance was given that the officer commanding the expedition had instructions "on no
account to turn his eyes on Bahrein ". Subsequently, having been asked by the British whether the Ottoman
intervention at Doha had been authorised by the Ottoman Government, the Vali of Baghdad "claimed that Qatar
was not covered by a previous Turkish assurance that there should be no interference with Bahrain ". 71
C. 1874-1892: British Attitudes to Qatar and Bahrain
3.46 British policy towards Bahrain during this period continued to be directed at isolating Bahrain from the
problems of the mainland and protecting it from claims of other powers. To this end, the British entered into an
Exclusive Agreement with the Sheikh of Bahrain in 1880 . This was the only agreement of its kind at the time,
and was testimony to the unique commercial and strategic position Bahrain held for the British, especially in
73
view of the growing interest of foreign powers in the Gulf . By this agreement, the Sheikh of Bahrain
undertook, inter ali, to abstain from negotiating or entering into treaties of any sort or from establishing
diplomatic or consular relations with any other government without British consent.
3.47 British relations with Qatar following the arrival of the Ottomans were marked by a desire to continue to
enforce the maritime peace against acts of piracy stemming from Qatari ports and to protect the local Indian
traders from Sheikh Jassim's continuous harassment. At the same time the British recognised that the Ottomans
had de facto control of the peninsula, and they were prepared to acknowledge this control.
3.48 In 1881, the Government of India sought clarification from the British Government as to how it should
treat the Ottoman presence in Qatar. The orders of the British Government, issued early in 1882, were to the
effect that the Sheikh, "though he had accepted the position of an Ottoman dependent on land, should be
encouraged to maintain close and direct relations with the officers of the Government of India and to defer to
them, as he appeared inclined to do, in all matters affecting the peace of the seas". Decision in particular cases
in event of the Sheikh putting to sea with hostile intentions was left to the Government of India, "upon general
considerations of expediency", and "needless questions with Turkish authorities" and "unnecessary
encroachment upon the jurisdiction of the Sultan" wherever it was effectually established on the coast to the
north of Udeid were to be avoided .74
3.49 Consequently, when the British became aware of various attempts by the Ottomans to strengthen their
position on the peninsula, they did not interfere. For example, when in July 1889 the British Ambassador at
Constantinople received a pro-memoria from the Ottoman Foreign Office to the effect that the troops in Qatar
were to be reinforced from the Baghdad Army Corps, he raised with the British Government the question of
Ottoman rights over the Qatar coast, but he was only instructed to remind the Ottoman Government that "Her
Majesty's Government could not view with indifference any attempt on the part of the Turkish authorities at
75
interference or aggression in Oman ".
3.50 At this time, the British were also becoming very concerned about the interest of other powers in the
region. It was these concerns, among others, which led to the signing in 1892 of Exclusive Protection
Agreements between Britain and the respective chiefs of the sheikhdoms of Abu Dhabi, Sharjah, Dubai, Ajman,
Umm al Qaiwain and Ras al Khaimah.
3.51 At the same time, and in confirmation and by way of extension of the Exclusive Agreement signed in 1880
and the previous treaty of 31 May 1861, the British also signed on 13 March 1892 a further exclusive protection
agreement with the then Ruler of Bahrain, Sheikh Issa bin Ali. That Agreement provided, notably, that he
bound himself and his heirs and successors not to enter into any agreement or correspondence with any Power
other than the British Government; not to consent to the residence in Bahrain of the agent of any other
Government without the assent of the British Government; and not to cede, sell, mortgage or otherwise give for
occupation any part of his territory save to the British Government .6
3.52 No such agreement was signed at the time with Qatar, since Qatar was at the time under the authority of
the Ottomans. Indeed, in 1891, Sheikh Jassim bin Mohamed bin Thani had sou ght from the British a treaty "onthe same terms as Trucial Chiefs". However, the British rejected this approach on the grounds that the "Sultan
77
would not agree to the proposal and nothing would be gained by making it ".
D. 1892-1916: End of the Ottoman Presence in Qatar and increased British Involvement in Bahrain
1. Events in Qatar
3.53 Although Sheikh Jassim had been appointed Kaimakam by the Ottomans in 1876, his relations with them
were not always good. In 1891 he had tendered his resignation, but this was not accepted, and he was instead
told "to work with zeal and to discharge the duties he had performed before 78". However, in 1893 he came to
blows with Ottoman troops when the Vali of Basrah led an army against him to punish him for various acts of
insubordination. A battle took place at Wajbah, some distance to the west of Doha. After heavy losses on both
sides, agreement was reached on an armistice and settlement whereby Sheikh Jassim resigned his position as
Kaimakam and left administrative matters in the hands of his brother Ahmed 79.
3.54 In March 1895, the Al-bin-Ali, a tribe which had been living in Bahrain since the time of the Arab
conquest of the island, fell into dispute with the Ruler of Bahrain and returned to Qatar to settle close to
Zubarah with the support of Sheikh Jassim bin Thani . The Ruler of Bahrain complained to the Political
81
Resident about the threat to Bahrain that he alleged was caused by this settlement , and the Political Resident
warned Sheikh Jassim that Great Britain could not accept it . The Ottomans then sent soldiers into the
region 83and the British, concerned to assure the security of Bahrain having regard to the Exclusive Protection
Agreements of 1880 and 1892 and the Treaty of 1868, sent a warship. Forty-four boats which had apparently
been assembled by the Ottomans and Sheikh Jassim to attack Bahrain were destroyed by the British, after
which Sheikh Jassim surrendered and accepted the British conditions, including removal of the Al-bin-Ali . 84
Ottoman protests followed, but the British replied that the measures taken were necessary for the defence of
85
Bahrain, which was under their protection .
2. The 1913 Anglo-Ottoman Convention
3.55 One of the raisons d'êtrefor this Convention was that, in the years preceding its negotiation, tensions had
come to a head between the British and Ottoman Governments over the Ottoman presence on the Hasa coast
and in the Qatar peninsula. As tensions built up it became apparent that it was essential to define and agree
upon the extent of British and Ottoman control over the region.
3.56 Negotiations for the Convention began in 1911 and ended with signature on 29 July 1913. Ratification was
twice postponed, however, and due to the outbreak of war the Convention was never ratified. Nevertheless, it is
by no means devoid of legal value. The provisions relating to Qatar and Bahrain are important. The provisions
relating to Qatar read as follows86:
"II. Al-Qatar
ART. 11. The Ottoman sancak of Najd, the northern limit of which is indicated by the demarcation
line defined in Article 7 of this convention, ends in the south at the gulf facing the island of al-
Zakhnuniyah, which belongs to the said sancak . A line beginning at the extreme end of that gulf
will go directly south up to the Rub'-al-Khali and will separate the Najd from the peninsula of al-
Qatar. The limits of the Najd are indicated by a blue line on the map annexed to the present
convention (annex Va). The Ottoman Imperial Government having renounced all its claims to the
peninsula of al-Qatar, it is understood by the two Governments that the peninsula will be governed
as in the past by the shaykh Jasim-bin-Sami and his successors. The Government of His Britannic
Majesty declares that it will not allow the interference of the shaykh of Bahrayn in the internal
affairs of al-Qatar, his endangering the autonomy of that area or his annexing it.
ART. 12. The inhabitants of Bahrayn will be allowed to visit the island of al-Zakhnuniyah for
fishing purposes and to reside there in full freedom during the winter as in the past, without the
application of any new tax."The provision relating to the territory of Bahrain noted:
"ART. 13. The Ottoman Imperial Government renounces all its claims to the islands of Bahrayn,
including the two islets Lubaynat al-Aliya and Lubaynat al-Safliya, and recognizes the
independence of the country. For its part, the Government of His Britannic Majesty declares that it
has no intention of annexing the islands of Bahrayn to its territories."
3.57 This Convention thus once again recognised the autonomy of the Qatar peninsula under Bin Thani rule, as
in the past. While it did not define the territorial limits of Qatar and Bahrain with any precision, the way it dealt
with islands such as the Libainat islands, situated approximately half way between Bahrain and the Hasa coast,
and Zakhnuniyah island, situated just off the Hasa coast, is important for this dispute, considering that the
Hawar islands, situated just off the Qatar coast, are not mentioned. If they had been considered as appertaining
to Bahrain, their location so close to Qatar would surely have required express confirmation of this fact, but the
Convention is consistent with the various maps produced by the Ottomans during the 19th century, many of
which were seen by the British authorities at the time, and which show the Hawar islands and other features
relevant to this dispute as appertaining to Qatar.
3.58 Since the 1913 Convention had not been ratified at the outbreak of the War in 1914, it never came
formally into force. However, it appears that Article 11 of that Convention was regarded as binding, since the
Anglo-Turkish treaty of 9 March 1914, which was ratified in London on 3 June 1914 , refers to that
Article 11, whereby the territory of Qatar was separated from the Ottoman sanjak of Nejd.
3.59 A further complication arose as a result of the conquest of Hasa in 1913 by Ibn Saud, at that time Ruler of
Nejd. He claimed to regard Qatar as part of his ancestral domains; but at the end of 1913 he was persuaded that
non-interference with Qatar was a condition of maintenance of friendly relations with the British Government.
Indeed, in a treaty concluded with the British Government on 26 December 1915, he undertook to refrain from
aggression on, or interference with, "the territories of ... the Sheikhs of Katr and the Oman coast, who are under
the protection of the British Government, and who have treaty relations with the said Government, and the
limits of their territories shall be hereafter determined ".
3.60 In spite of the signature of the 1913 Convention expressing recognition of the autonomy of Qatar and
renouncing all their claims thereto, the Ottomans continued to maintain a garrison at Doha, the remnants of
which departed as a consequence of the arrival of a British warship and a landing at Doha effected without
opposition on 20 August 1915.
3. The 1916 Agreement
3.61 As a result of the above events, negotiations were carried out directly between the British and Sheikh
Abdullah bin Jassim bin Mohamed Al-Thani, the successor of Sheikh Jassim, concerning an exclusive
agreement in the same form as those which had been agreed with other Arab Sheikhs in 1892. After the final
departure of the Ottomans, these negotiations led to signature of a Treaty by Sheikh Abdullah and the Political
Resident on 3 November 1916, and its ratification on 23 March 1918 89. This Treaty recognised the continuity
of Al-Thani rule in Qatar from 1868 to 1916 and set out various obligations for the Sheikh. In particular, he
undertook not to "have relations nor correspond with, nor receive the agent of, any other Power without the
consent of the High British Government", nor to "cede to any other Power or its subjects, land either on lease,
sale, transfer, gift, or in any other way whatsoever" nor to grant any concessions, without the same consent of
the British Government. In return, the British Government undertook to accord to the Sheikh, his subjects and
vessels the same treatment as it conferred on "the friendly Shaikhs, their subjects and their vessels", to give
protection against aggression by sea and to try to exact reparation for injuries suffered at sea, and to grant good
offices should the Sheikh or his subjects "be assailed by land within the territories of Qatar".
Section 5. 1917-1947: The Situation prior to the British Decisions of 1939 and 1947
3.62 This period is close to the beginning of the dispute itself. As a result it will inevitably be dealt with in
more detail in the Parts which follow. To avoid repetition, therefore, only a brief summary of the main events
will be given here. A. The Discovery of Oil and its Impact on the Economies of Qatar and Bahrain
1. The economies of Qatar and Bahrain prior to the discovery of oil
3.63 Despite the geographical proximity of Qatar and Bahrain, Bahrain's economy had always been by far the
more prosperous of the two until the 1950s, when the balance was redressed by the development of oil in Qatar.
This was due to a combination of more fertile land, supporting a diversified system of agriculture, and the long-
standing interest of various foreign powers in developing Bahrain as the trading and strategic centre of the Gulf.
In particular, the British saw Bahrain as a centre which could be developed for their own commercial and
90
political interests and to counter other foreign influence .
3.64 As mentioned above, like other Arabs of the Gulf States, both Qataris and Bahrainis were involved in the
fishing and pearl fishing industries. Fishing was an important activity, affording a livelihood to a proportion of
the population and being an important source of food. In addition, a certain amount of dried fish was exported.
There was no regulation of fishing activities or fishing areas, and the use of fish traps did not involve any
proprietary rights over their location. At that time the person who caught living resources in the sea became
their owner.
3.65 Only pearl fishing, on banks to be found along the coast between Kuwait and Oman, was however a real
source of income for the Arab tribes. It was an important though seasonal activity in Qatar and Bahrain, which
was governed only by custom and local traditions. As noted in 1840: "The right of (pearl) fishing is common to
91
all the Gulf ". Pearl fishing rights were thus a collective right or property of all the tribes of the Gulf. This was
an exclusive right, to the exclusion of third parties, and a concurrent right of all such tribes.
3.66 Qatar and Bahrain suffered a serious decline in their pearling industries during the early part of the 20th
century, being hit by the effects of the introduction of artificial and cultured pearls, and by the recession of the
1930s. The development of oil dealt a death blow to the once important activity of pearling as well as to the
other traditional economic activities. From that time on, oil became the predominant industry in both States.
2. The discovery and development of oil
3.67 The development of the oil economy occurred much more quickly in Bahrain than in Qatar . In 1923 the
representative of the Eastern and General Syndicate Limited ("EGS") prepared a draft agreement to be
concluded with Bahrain for a petroleum concession, and the Ruler of Bahrain granted a concession to EGS on
2 December 1925, which was subsequently transferred to BAPCO. Oil was first struck on 1 June 1932, and in
1934 oil storage facilities and a pipeline were constructed, with the first oil shipment being made in the same
year. Construction of a refinery began in 1935 and was completed in 1937. Oil from other parts of the Gulf,
especially Saudi Arabia, was brought to the refinery, and during the Second World War a plant was constructed
for the production of aviation spirit. In 1946 a large port facility, exclusively connected with oil production and
delivery, was completed off Sitra Island. The influx of wealth from oil, and foreign influences in the form of
oilmen and others, had a considerable influence on the political development and significance of Bahrain, as
did the importance of these oil supplies and the refinery in the context of the British war effort.
3.68 Oil development began considerably later in Qatar. There, the first concession agreement was not
concluded until 1935. In 1938 the concession-holder, Petroleum Concessions Limited ("PCL"), established its
camp at Dukhan on the western side of Qatar and started drilling. It struck oil in the following year. It drilled
two more wells with promising results and was about to drill a fourth when it was ordered by the British
authorities to close down its operations for the duration of the war and plug the wells it had already drilled. It
was not until 1946 that the company resumed its operations, and not until December 1949 that the first
shipment of oil took place from Qatar - a whole 15 years after the corresponding event in Bahrain. From the
date of the 1947 British decision, Qatar granted offshore concessions in the area of the enclave around the
Hawar islands, and also up to the line laid down by the 1947 decision and to the north of that line 93.
B. Other Events in Bahrain
3.69 By the 1930s, Bahrain was recognised by the British Government as a protected State (but not a British
Protectorate) enjoying special treaty relations with the British Government. The internal administration of theState was formally conducted in the late 1920s by Sheikh Hamad bin Issa Al-Khalifah, the acting Ruler of
Bahrain since the deposition of his father by the British Government in 1923, following serious complaints of
misrule and oppression. But, in practice, and at least until 1928, internal power in Bahrain was exercised by the
British Political Agent94 . In 1926, a British Financial Adviser, Mr. Charles Dalrymple Belgrave, was appointed
by the Bahraini authorities on the advice of the British to assist Sheikh Hamad in the task of internal
administration 95. He rapidly acquired pronounced influence and power, not only in Bahrain, but also in the
Gulf more generally. Belgrave's position is described as follows:
"From Isa's deposition until 1928 the Political Agent was the virtual ruler of Bahrain. Hamad was
indolent and took little interest in State affairs and from 1928 until his death in 1942 Mr. C. (now
Sir Charles) Dalrymple Belgrave, who had been appointed Financial Adviser in 1926, so far as
96
internal administration was concerned, was to all intents and purposes the ruler of the State ."
3.70 As will be seen, Belgrave's power was exercised during the 1930s not only in relation to matters affecting
the internal administration of Bahrain, but also in matters affecting Bahrain's relations with neighbouring
sheikhdoms, including Qatar. In particular, he played a leading and, it must be said, discreditable part in the
97
unsavoury man_uvres surrounding Bahrain's wrongful acquisition of the Hawar islands .
3.71 In addition to these administrative changes, in the 1920s Bahrain became more and more the commercial
centre of the Gulf, and by the 1930s had become of vital interest to the British as a key point on the air route to
India and beyond, without which a civil aviation service could not be maintained. With the construction of an
airport for the Royal Air Force, and with the creation of a new naval base in Bahrain in 1935, Bahrain also
98
became the strategic centre for Britain's position in the Gulf .
3.72 Another factor which operated to strengthen the ties of Britain to Bahrain was the Persian threat. As early
as 1922, there were signs that Persia would shortly revive its long-standing claim to sovereignty over Bahrain;
and indeed in 1927 the Persian claim was brought before the League of Nations, in the context of a Persian
protest against the Saudi/British Treaty of Jeddah of 20 May 1927 (concluded with Ibn Saud) in which Bahrain
is described as having "special treaty relations" with the British Government. This Persian protest provoked a
strong reply from the British Government repudiating the Persian claim . 99
C. Other Events in Qatar
3.73 During this same period, Qatar remained under the control of the Al-Thani family, with whom the British
Government maintained much more distant relations than it did with the Rulers of Bahrain. This may be
attributable to the consideration that the British had maintained a Political Agent in Bahrain since 1904
whereas, no doubt in part because of the Turkish presence in Qatar from 1871 to 1915, they had no such direct
representation in Qatar. Indeed, no Political Agent in Qatar was appointed by the British until 1949; prior to
1949, it was the Political Agent in Bahrain who was responsible for reporting on conditions in Qatar. Thus,
during the 1930s, British knowledge of the geography of Qatar and of its Rulers and other leading families was
inevitably limited; and this was to lead to some mistaken impressions on the part of British officials.
3.74 As mentioned above, the British aeronautical authorities, both civil and military, had strong reasons for
supporting the interests of the Ruler of Bahrain. By way of contrast, the Ruler of Qatar in the 1930s was
100
reluctant to afford aeronautical facilities in response to British requests . However, on 11 May 1935, at a time
when the Ruler of Qatar was under the pressure of a serious dispute with Ibn Saud over the limits of Qatar's
southern border, the British wrote to the Ruler of Qatar concerning the protection which they were prepared to
extend to him on land 101. It was pointed out at that time that, in order to enable the British to implement their
guarantee of protection, it was necessary that the Royal Air Force should be accorded certain facilities, and
102
thereafter the Ruler raised no objection to the construction of a landing gound . It was also a condition for
this extended British protection that an oil concession was granted by the Ruler of Qatar to the British company
Anglo-Persian Oil Company ("APOC") on 17 May 1935, to be transferred to Petroleum Development (Qatar)
Ltd. in October of the next year.
D. The Issue of the Hawar Islands and Qatar's Protest3.75 On 28 April 1936 a formal claim to the Hawar islands was submitted by Belgrave, the Ruler of Bahrain's
103
British adviser, in a letter to the Political Agent in Bahrain . The events following Bahrain's formal claim and
the procedure adopted thereafter by the British are discussed in detail below in Chapter VI. The British decision
that the Hawar islands belonged to Bahrain was eventually communicated to the two Rulers by letters of 11
July 1939. The Ruler of Qatar immediately protested this decision, but, in spite of serious doubts about the
correctness of the decision by certain British officials, this and subsequent protests were rejected or ignored by
the British.
E. Events leading up to the British Decision of 1947
3.76 Although the necessity for some kind of maritime delimitation had been recognised in 1940, the Second
World War and the resulting suspension of oil company activities put an end to further discussions of the
territorial issues between Bahrain and Qatar for several years.
3.77 Immediately after the war a change took place in British administrative arrangements in the area. In 1946,
the Political Residency was transferred from Bushire in Persia to Bahrain, confirming Bahrain's position at the
centre of British interests in the Gulf. In 1947, Her Majesty's Government took over responsibility for Gulf
affairs from the Government of India, and the Political Resident now became answerable to the Commonwealth
Relations Office until 1 April 1948, when full control was transferred to the Foreign Office 104.
3.78 The end of World War II, the Truman Proclamation and the resumption of oil company activities gave a
new urgency to the maritime delimitation issue. In May 1946, BAPCO asked for permission to drill in certain
areas, some of which the British considered might eventually be found to belong to Qatar. The British
Government decided that this permission could not be granted until there had been a division of the sea-bed
105
between Bahrain and Qatar .
3.79 At the same time, the British authorities resumed the review of the status of Fasht ad Dibal and Qit'at
Jaradah which had started before the war. The review concerned not only the status of these features but also
whether Bahrain or Qatar asserted any rights over them and, if so, the nature of such rights. It was considered
by the British that any delimitation would have to take account of these features, and also of the 1939 decision
106
over the Hawar islands .
3.80 The subsequent British decision was communicated to the two Rulers by letters of 23 December 1947
issued by the British Political Agent in Bahrain. The letters stated, inter alia, that the operations of the oil
companies in the territories of Qatar and Bahrain made a delimitation necessary, that the British Government
considered the line "divides in accordance with equitable principles" the sea-bed between Qatar and Bahrain,
and that this was a median line based generally on the configuration of the coastline of the Bahrain main island
and the peninsula of Qatar 107.
3.81 The decision specified two exceptions. The first purported to recognise that Bahrain had "sovereign rights"
in "the areas of the Dibal and Jaradeh shoals" lying east of the line on the Qatar side. It was further stated that
"After a full examination of the position under international law", the British Government was of the opinion
that "these shoals should not be considered to be islands having territorial waters". The second exception was
the drawing of the line with the intention of giving effect to the British decision of 11 July 1939 that the Hawar
islands belonged to Bahrain.
Section 6. Protests over the 1939 and 1947 British Decisions, and Negotiations
A. Protests
3.82 As noted above, the Ruler of Qatar had immediately protested the 1939 decision. He requested
reconsideration and further enquiries into the facts, while reserving his rights to the Hawar islands. This protest
was followed by renewed protests, inter aliaon 18 November 1939 and 7 June 1940 and, after the War, on 13
108
July 1946 and 21 February 1948 .
3.83 The British decision of 1947 was protested by both Qatar and Bahrain 109. The Ruler of Qatar accepted theline drawn by the British but could not accept the two exceptions made for the Hawar islands and for the shoals
of Dibal and Qit'at Jaradah. The Ruler of Bahrain contended that the line should run further to the east, and
asserted alleged rights to all the seas, shoals and reefs between Bahrain and Qatar. Specifically, he protested the
fact that the two shoals had been treated as "enclaves" on the Qatar side of the line. He also protested against
the fact that Janan island was attributed to Qatar in the 1947 decision, although he regarded it as part of the
Hawar group and therefore as belonging to Bahrain.
3.84 There were further protests into the early 1950s from both Rulers and also from the oil companies
themselves. Although there is a good deal of evidence, from internal British correspondence of the period, that
the British authorities might have been prepared to reconsider certain elements of the 1947 decision (including
questions over the real geographical nature and legal status of the shoals of Dibal and Qit'at Jaradah and over
the identity of the Hawar islands), the British repeatedly confirmed in response to protests that they regarded
the decision as final.
3.85 Nevertheless, the British encouraged Qatar and Bahrain to make sea-bed proclamations in 1949, on the
basis of texts that the British had themselves prepared 110. Two features of these proclamations are of note.
First, they stress that the sea-bed boundaries should be delimited on the basis of equitable principles, and
second they contain express reservations regarding sovereignty over islands and for "fishing and traditional
pearling rights".
B. Negotiations
3.86 It was not until the 1960s that any progress was made on the disputes over the Hawar islands, Dibal and
Qit'at Jaradah and the 1947 line. At this time both Qatar and Bahrain were still under British protection. In a
Memorandum of 1961 the Government of Bahrain requested the British to make a modification of the 1947
line, alleging that Dibal and Qit'at Jaradah were islands with territorial waters and belonged to Bahrain, and that
the fact that Bahrainis fished for pearls in the area to the east of the 1947 line was a special circumstance within
the meaning of Article 6 of the 1958 Geneva Convention, justifying modification of the line 111. The extent of
the proposed modification was shown on a map attached to the Memorandum. It will be noted that it passed to
the east of Dibal and Qit'at Jaradah and extended in a way not defined in the Memorandum into the maritime
area to the north of the Qatar peninsula. This Memorandum was not made known to the Government of Qatar
until September 1964 112.
3.87 A detailed description of the various steps taken after that date with a view to resolving the dispute
between the two States may be found at paragraphs 3.02 to 3.65 of Qatar's Memorial in the phase of this case
relating to Questions of Jurisdiction and Admissibility. Briefly summarised, there were first attempts, under the
auspices of the British Government, to settle the matter through arbitration, but these attempts failed. Following
the final withdrawal of British troops from the Gulf in 1971, it was agreed as a result of meetings in 1975 and
1976 that the Kingdom of Saudi Arabia would undertake mediation between the two States. During the
following years, the King of Saudi Arabia directed his efforts, at different times, at securing a settlement of the
substance of the disputes, at submitting the matter to adjudication, and at preventing or resolving incidents
creating tension between the two States. It was in the context of this mediation that the Parties entered into the
agreements of December 1987 and 25 December 1990 whereby they undertook, inter alia, to submit to the
Court the whole of the dispute between them.
CHAPTER III HISTORICAL BACKGROUND 17
Section 1. Introduction 17
Section 2. Trade in the Gulf, and Presence of Foreign Powers prior to 1868 17
A. The British 18
B. The Ottomans 20
Section 3. The History of Qatar and Bahrain up to 1868 22 A. Events in Qatar 22
B. Events in Bahrain 24
C. Events leading to the Agreements of 1868 26
Section 4. Events from 1868 to 1930 30
A. British Intervention in Bahrain following the 1868 Agreements
30
B. Formal Arrival of the Ottomans in Qatar: 1871-1873 31
C. 1874-1892: British Attitudes to Qatar and Bahrain 33
D. 1892-1916: End of the Ottoman Presence in Qatar and increased
British Involvement in Bahrain 35
1. Events in Qatar 35
2. The 1913 Anglo-Ottoman Convention 36
3. The 1916 Agreement 38
Section 5. 1917-1947: The Situation prior to the British Decisions of 1939 and 1947
39
A. The Discovery of Oil and its Impact on the Economies of Qatar
and Bahrain 39
1. The economies of Qatar and Bahrain prior to the discovery
of oil 39
2. The discovery and development of oil 40
B. Other Events in Bahrain 41
C. Other Events in Qatar 42
D. The Issue of the Hawar Islands and Qatar's Protest 43
E. Events leading up to the British Decision of 1947 44
Section 6. Protests over the 1939 and 1947 British Decisions, and Negotiations 46
A. Protests 46
B. Negotiations 47
1 For further information about the East India Company, see , Appendix 3, Vol. 15, p. 95.
2 For further details relating to the contents of paras. 3.3-3.6,e, Lorimer, op. cit, Annex II.5, Vol. 3, pp. 161-
168 and 175-181.
3 Lorimer, op. cit.,Annex II.5, Vol. 3, p. 181.
4 Ibid.See , also, Annex II.7, Vol. 4, p. 171.5 Annex II.14, Vol. 5, p. 9.
6 See, Lorimer, op. cit.Annex II.5, Vol. 3, pp. 182-183.
7 See,ibid., pp. 188-189. The treaty was signed by the Chiefs of Umm Al-Qaiwain, Ajman, Dubai, Abu Dhabi
and Ras Al-Khaimah, whose territories thereafter became known as the "trucial sheikhdoms".
8 See, paras. 3.50-3.51, below.
9 The terms "Wahhabi" and "Wahhabism" come from the name of a religious scholar, Muhammad Ibn Abdul
Wahhab (1703-1792), who in 1741 launched an appeal for a drastic reform of the religious, political and social
life of the Arabs, preaching in essence a return to the faith as known in the days of the Prophet. He came into
contact with Muhammed ibn Saud, who adopted his preachings. Indeed, the term "Wahhabi" thereafter began to
be associated with Saudi power and gave great impetus to the rise of this power by providing a sense of Arab
unity combined with the desire for reformation. The rise of Wahhabi power is dealt with in more detail by
Lorimer, op. cit, (Annex II.5, Vol. 3, pp. 354-355) and J.A. Saldanha in thePersian Gulf Gazetteer (Annex
II.9, Vol. 4, pp. 256-259).
10 See , Lorimer,op. ci., Annex II.5, Vol. 3, p. 354.
11 The leader of the Wahhabis was variously known as the Amir or as the Imam.
12 See , Lorimer,op. ci., Annex II.5, Vol. 3, pp. 172-175.
13 Ibid., p. 356.
14 Ibid., pp. 356-357.
15 See, Map No. 4 facing the preceding page and Annexes II.21 -II.24, Vol. 5, pp. 51-70.
16 See, also, paras. 5.15 et seq., below.
17 See , paras. 3.43-3.44, below.
18 See , para. 3.45, below.
19 Annexes II.68, II.71-II.73 and II.76, Vol. 5, pp. 333, 385-396 and 405.
20 See , paras. 8.7-8.8, below, and Annexes II.12 and II.13, Vol. 5, pp. 1 and 5.
21 These three sections remain in existence today, under the names of Al-Khalifah, Al-Sabah and Al-Jalahma.
Only the Al-Khalifah section is present in Bahrain now, whereas members of all three sections live in Qatar.
Members of the Al-Khalifah section living in Qatar are citizens of the State of Qatar.
22 See , Mohamed Khalifa Al-Nabhani, Al-Tuhfah Al-Nabhaniya fi Tarikh Al-Jazira Al-Arabiya , Beirut and
Bahrain, 1986, p. 83 (Annex II.69, Vol. 5, pp. 340-342). Al-Nabhani is an official historian of Bahrain.
Consequently, Qatar expresses a formal reservation with respect to any parts of his account which may support
Bahrain's position in the present case.
23 See , Lorimer,op. ci., Annex II.5, Vol. 3, pp. 194-195.
24 Ibid., p. 195.
25 Ibid., pp. 246-247. The Qatari tribes involved included the Al-Musallam, Al-Bin Ali, Sudan (from Doha),
Al-Bu Ainain, Kibisah, Sulutah (from Doha), Manana'ah, Sadah, Al-Bu Kuwarah, and Al-Naim.
26 Ibid.,p. 195.27 Ibid., p. 247.
28 Ibid., pp. 196et seq.
29 Ibid., p. 197.
30 See ,bid ., p. 198 and Annex II.75, Vol. 5, p. 401; Muscat corresponds to present-day Oman, which should
not be confused with what was known as Trucial Oman, corresponding to the present-day United Arab
Emirates.
31 See , Lorimer, op. ci., Annex II.5, Vol. 3, pp. 198 and 250 and Annex II.75, Vol. 5, p. 401.
32 See , paras. 3.6t seq., above.
33 Annex II.15, Vol. 5, p. 21. The town of Al-Bida on the eastern coast of Qatar forms part of what is now
called Doha, the capital of Qatar. The name "Doha" began to be used around the middle of the 19th century.
34 See, Annexes II.17 and II.18, Vol. 5, pp. 33-40.
35 See , Lorimer, op. ci., Annex II.5, Vol. 3, pp. 246-247.See , also, para. 3.18, above.
36 See , para. 3.18, above.See, also, Lorimer,op. cit., Annex II.5, Vol. 3, pp. 195 and 247.
37 See, ibid., pp. 248-255.
38 See ,bid ., pp. 255-263.
39 See ,bid ., pp. 263-266.
40 See ,bid ., pp. 268-273.
41 See ,bid ., pp. 206 and 276-277.
42 See ,bid ., pp. 279-286.
43 See ,bid. , p. 289.
44 See ,bid ., p. 294.
45 See , para. 3.45, below.
46 See , Lorimer, op. ci., Annex II.5, Vol. 3, pp. 294-295.
47 Ibid., p. 296 and Annex II.19, Vol. 5, p. 41.
48 Annex II.20, Vol. 5, p. 45.
49 See , Lorimer, op. ci., Annex II.5, Vol. 3, pp. 299-300.
50 Ibid., p. 300 and Annex II.69, Vol. 5, pp. 363-365.
51 See , Lorimer, op. ci., Annex II.5, Vol. 3, p. 300.
52 See , Annex II.74, Vol. 5, p. 397.
53 See , Annex II.69, Vol. 5, pp. 369-371 and Lorimer, op. ci., Annex II.5, Vol. 3, p. 301.54 See , Annex II.67, Vol. 5, p. 329.
55 See , Lorimer, op. ci., Annex II.5, Vol. 3, p. 302.
56 Ibid.
57 Annex II.26, Vol. 5, p. 75.
58 Annex II.27, Vol. 5, p. 79.
59 Annex II.28, Vol. 5, p. 83.
60 Annex II.29, Vol. 5, p. 87.
61 See , Saldanha, op. ci., Annex II.7, Vol. 4, pp. 39-40.
62 See ,bid ., pp. 40-45.
63 See ,bid. , pp. 45-46.
64 Ibid., and see, paras. 3.46et seq., below.
65 See , para 3.13, above, and Annexes II.21-II.24, Vol. 5, pp. 51-70.
66 See , Lorimer, op. ci., Annex II.5, Vol. 3, p. 209.
67 See ,bid ., pp. 209et seq.
68 Ibid., p. 210.
69 Saldanha, op. ci., Annex II.7, Vol. 4, p. 48.
70 Ibid., p. 49.
71 Lorimer, op. ci., Annex II.5, Vol. 3, p. 210.
72 Annex II.36, Vol. 5, p. 117.
73 See , Lorimer, op. ci., Annex II.5, Vol. 3, pp. 328et seq.
74 See, ibid., p. 217.
75 Saldanha, op. ci., Annex II.8, Vol. 4, pp. 221-222. In this context, "Oman" refers to what was known as
"Trucial Oman", which has now become the United Arab Emirates.
76 Annex II.37, Vol. 5, p. 121.
77 See , Saldanha, op. ci., Annex II.8, Vol. 4, pp. 225-226.
78 See ,bid ., pp. 223-224.
79 See , Lorimer, op. ci., Annex II.5, Vol. 3, pp. 229-230.
80 See , Annex II.39, Vol. 5, p. 129.
81 Ibid.82 See , Annex II.38, Vol. 5, p. 125.
83 Annex II.40, Vol. 5, p. 133.
84 Annex II.42, Vol. 5, p. 141.See , also, Lorimer,op. ci., Annex II.5, Vol. 3, pp. 330-333 and Annex II.69,
Vol. 5, pp. 375-378.
85 See , Saldanha,op. cit., Annex II.7, Vol. 4, p. 106 and Lorimer,op. ci., Annex II.5, Vol. 3, p. 333.ee, also,
para. 8.24, below.
86 The full text of the Convention can be found in Annex II.44, Vol. 5, p. 151.
87 Annex II.45, Vol. 5, p. 161.See , also, Annex II.48, Vol. 5, p. 187.
88 Annex II.46, Vol. 5, p. 175.See , also, Annex II.10, Vol. 4, p. 274.
89 Annex II.47, Vol. 5, p. 181.
90 See , Saldanha,op. cit., Annex II.7, Vol. 4, pp. 153-154 and Annex II.43, Vol. 5, p. 145.
91 Q.M.J.A., Annex I.56, p. 342. See, also, Appendix 4, Vol. 15, p. 111.
92 For further details concerning the development of oil,see, paras. 6.12et seq., below.
93 See , Annex II.57, Vol. 5, p. 227. It may be noted that in the sector located in the north, during the presence
of the British, Qatar refrained from granting concessions or authorizing drilling west of a line from longitude
51°20' N and latitude 27°E to Ras Rakan. From 1971, Qatar granted concessions and authorized drilling to the
west of that line, in accordance with an extension of the line of the segment North Sitrah Light Buoy/Bahrain
Light Vessel of the 1947 decision up to its intersection with the seabed delimitation agreement between Iran
and Qatar. See, Annex II.66, Vol. 5, p. 325.
94 See , Annex II.11, Vol. 4, p. 291.
95 Belgrave's education at Oxford University was interrupted by World War I. He became a "temporary
officer", receiving his commission through the Officer Training Corps. He served in the Sudan in 1915-1916,
and subsequently in Palestine and Egypt. Towards the end of the war he was seconded to the Frontier Districts
Administration Camel Corps, where he spent several years in the Western Desert of Egypt. His duties at that
time included a certain amount of court and political work. From 1923 to 1925 he was an administrative officer
in the Colonial Service in Tanganyika where he also had experience of court work. During his time with the
Colonial Service, he passed two of its law examinations. In March 1926 Belgrave took up the appointment of
Financial Adviser to the Ruler of Bahrain, although by 1928 he had achieved much wider powers. He retired
from Bahrain in 1957 and died in 1970.
96 Ibid.
97 See , in particular, Chap. VI, Sects. 2 and 3, below.
98 See , Annex II.11, Vol. 4, pp. 296-297.
99 See , Annex II.10, Vol. 4, pp. 266-271.
100 See , Annex II.11, Vol. 4, p. 310.
101 Ibid., p. 311.
102 Ibid., p. 310.103 The history of Bahrain's claim to the Hawar islands and the procedure adopted by the British are dealt with
in greater detail in Chap. VI, below.
104 See, Appendix 3, Vol. 15, p. 95.
105 See , Annex II.11, Vol. 4, p. 293. The history of the sea-bed division is dealt with in greater detail in
Chap. X, below.
106 See , paras. 10.44et se., below.
107 Annexes II.52 and II.53, Vol. 5, pp. 205 and 209;see , paras. 10.13t seq., below. Qatar has, for illustrative
purposes only, prepared a map ( Map No. 12, facing page 215) showing the 1947 line based on the text of the
British decision. The map showing the 1947 line attached to Qatar's Application, and of which a further
enlarged copy was given to the Court upon the request of the Registry, was not the map attached to the letter
sent by the British to the Ruler of Qatar in 1947. In this regard, since the filing of its Application, Qatar has
found a copy of a letter dated 10 April 1961 from the Political Agency in Doha to the British Residency
reporting a request from Qatar for a copy of the 1947 letter and a copy of the map which was enclosed, since
this, along with many other of Qatar's official documents, was believed to have been stolen;ee, Annex III.286,
Vol. 8, p. 421 and paras. 6.197-6.198, below. However, as of today, Qatar is still not in possession of this map.
The 1947 line starts in the south from point "M", defined as "180° true 18.03 Nautical Miles from the
Triangulation Station No. 102 at Ras al Barr" and ends in the north at the "Bahrain Light Vessel", the position
of which was assigned in 1947 at "046 1/4° true 28.05 Nautical Miles from the Political Agent's flagstaff
Latitude 26°14'.1N, Longitude 50°35'.2E (approximately), as the positions of floating marks are subject to
frequent alteration". This northern point is hereinafter referred to as "BLV", in order to avoid confusion with
another Bahrain Light Float, which is today located at the following coordinates: 26°33'N, 51°03'E (ee Annex
II.1, Vol. 3, p. 39),., it is moored 23 miles NNW of Ras Rakan Light and "28 miles northeastward of the
northern extremity of Jazirat al Muharraq" (ee, Annex II.2, Vol. 3, p. 60).
108 Annexes II.49-II.51 and II.54, Vol. 5, pp. 191-204 and 213.
109 See , Chap. X, Sect. 3, below.
110 Copies of these proclamations are included in Annexes II.55 and II.56, Vol. 5, pp. 219 and 223.
111 Annex II.59, Vol. 5, p. 237.
112 See , para. 10.37, footnote 61, below.
_________
PART III
THE HAWAR ISLANDS AND OTHER TERRITORIAL QUESTIONS
CHAPTER IV
THE GEOGRAPHY OF THE HAWAR ISLANDS
Section 1. Location and Composition
4.1 For the purpose of this presentation the Hawar islands are defined as the collection of islands and islets
1
situated within the enclave described by the British on 23 December 1947 . These islands are situated in a
compact cluster along the central portion of Qatar's west coast, just north of the parallel 25°30'N, and just east
of the meridian 50°40'E.4.2 Upon first examination of Maps Nos. 2 and , facing pages 14 and 50, one is struck immediately by the
2
shape of this island group, which fits neatly within the general shape of the Qatari coast . The group's
distinguishing characteristic is the presence of a rather long, narrow island shaped a little like a crescent,
positioned so that its southeastern tip starts from, and its northeastern tip returns to, the mainland of Qatar. This
is the main Hawar island, whose name was used in the 1939 decision to describe the group of islands of which
it forms part. It can be seen that the island of Hawar is a direct continuation of Qatar's western coast which,
starting from the southern reaches of Dawhat Salwah, proceeds north to Hawar, then bends slightly to the north-
northeast until it reaches Ras Rakan, where it turns sharply to the east. Qatar's western coast in the vicinity of
the Hawar islands is very ragged, resembling a jigsaw puzzle with a few missing pieces. The Hawar islands
appear to be the missing pieces that would be needed to complete the curve of Qatar's western coast between
Ras Uwaynat and Ras Umm Hish. When fitted together, these pieces reflect the continuous geographical
structure of Qatar. In fact, the Hawar islands are physically an integral part of the landmass of Qatar.
4.3 Several recent surveys 3 indicate that approximately 31 islands and islets are situated within the perimeter of
the enclave described in the 1947 British decision.
4.4 The area of the islands at high tide is extremely varied, ranging from less than 1 square kilometre for
several of the islets found just south and southeast of Suwad al Janubiyah to 27 square kilometres for the main
island of Hawar. Hawar is by far the largest island in the group. Its total length from north to south is
21.3 kilometres and its maximum width is 5.3 kilometres. Hawar island also forms the western perimeter of the
island group. A video film documenting the recent construction on Hawar island and the geographic situation o f
4
the island group relative to both Qatar and Bahrain was prepared in September 1995 .
4.5 As illustrated on Map No. 5 facing this page, the distance between the main island of Hawar and the nearest
coastal point on Bahrain's main island is 21.85 kilometres; the distance between the island in the Hawar group
that is closest to Bahrain (Rabad al Gharbiyah) and the nearest point on the Bahraini coast is 18.75 kilometres.
In other words, the Hawar islands are separated from Bahrain by a sizeable expanse of open water. In general,
the waters between the Hawar islands and the mainland of Qatar are extremely shallow even at high tide. At
low tide the distance between the tip of the spit of Hawar island and the nearest point on the Qatari coast is only
250 metres. Approximately half of the islands of the Hawar group lie either wholly or partially within 3 nautical
miles of Qatar's mainland coast. The 3-mile limit from Qatar's high tide coast depicted on Map No. 5 shows that
Suwad ash Shamaliyah, Suwad al Janubiyah, the Wakurs and the Bu Sadads are all wholly within this area;
Umm Haswarah is just touched by the line and the entire southern half of Hawar lies within 3 nautical miles. In
the northern part of Hawar, Rabad al Gharbiyah, Rabad ash Sharqiyah, Ajira and several other small islets to
5
the north of Hawar lie just beyond the 3-mile limit; while in the south, Janan is practically bisected by the line .
An examination of Map No. 5 clearly illustrates the compact nature of the Hawar group.
Section 2. Geology and Geomorphology
4.6 Geologically, it is likely that the bedrock of the Hawar islands is the same age and type as that of the
6
adjacent Qatar Peninsula . The folding along the Dukhan structure created a single landscape from which the
present bedrock surfaces of both the peninsula and the islands were eroded by the sea, by wind and possibly by
rivers. This landscape was lower than, and quite separate from the initial folded landscape of Bahrain, which
was developed along different structures. Thereafter the sea level rose and flooded the fringes of the landscape
of the Qatar Peninsula to create a series of islands, including Hawar. This rise of sea level probably occurred
about 5,000 - 8,000 years ago. Since then, sea level has fallen slightly exposing coastal sediments around some
of the islands and shoals. This has also created an area between the Hawar islands and the peninsula which is
subject to coastal deposition. In terms of coastal processes, this area is part of the western Qatar coastal system.
Today, this zone of small islands, shoals and shallow waters is protected against the "shamal" winds and the
wave erosion that accompanies them by the shield provided by Hawar island and its "spit". This sheltered zone
between the Hawar islands and the Qatar mainland appears to be characterized by sediment accumulation, and
the intervening areas of water are becoming narrower and shallower. If the sea level remains the same, it is
probable that the islands will grow, join together and link up with the peninsula - in other words, for the Hawar
islands to be physically reunited with the mainland. This phenomenon has already occurred at a number of
locations along the western coast of the Arabian Gulf. The reuniting is only likely to be fully achieved,
7
however, over centuries and only affects the area described .4.7 Hawar island and its associated islands are part of the major evolving coastal system of the western Qatar
peninsula. The Hawar islands are therefore a flanking offshore island group that, in terms of coastal dynamics,
is part of Qatar. Furthermore, this coastal system is entirely separate from that of Bahrain. Indeed it is a long
way from Bahrain and separated by relatively deep waters or a channel. The occurrence of fine muddy sands
and muds in these deep waters separating Bahrain and Qatar suggests that there are probably no transfers of
sediment between the Qatar coastal system and the Bahrain island coastal system, and that the two systems are
dynamically separate. The occurrence of some shoals and reefs, trending NNE/SSW, in the expanse of sea
between Bahrain and Qatar reinforces this view, because they were probably created by strong tidal currents
running in the deep waters or channel.
PART III THE HAWAR ISLANDS AND OTHER TERRITORIAL QUESTIONS 49
CHAPTER IV THE GEOGRAPHY OF THE HAWAR ISLANDS 49
Section 1. Location and Composition 49
Section 2. Geology and Geomorphology 51
1 The line as so described is shown on Map No. 12 , facing p. 215.
2 The expressions "the Hawar islands" and "the Hawar group" are used interchangeably in this Memorial.
3 A satellite photo (Landsat thematic mapper image, prepared by Barringer, Golden, Colorado); "Qatar",
1:100,000, Doha, Edition of 1982 (Sheet 1540); "The State of Bahrain", 1:50,000, 1986, Sheet 3, Edn. 2. A
copy of each of these documents is being deposited with the Registry of the Court in accordance with Article
50, paragraph 2 of the Rules of Court.
4 See, Appendix 2, Vol. 15, p. 1, and the video "Bahrain Actions and Activities in Hawar Islands Since the
Beginning of the Mediation". Twenty copies of the video have been deposited with the Registry pursuant to
Article 50 of the Rules of Court.See , also, Appendix 7, Vol. 16, which contains mosaics of the Hawar islands.
5 It may be noted that Janan was not included within the perimeter of the enclave described in the 1947 British
decision.
6 See, the Geological Map of Qatar, 1:200,000, 1970. A copy of this map is being deposited with the Registry
of the Court in accordance with Article 50, paragraph 2 of the Rules of Court.
7 See, A.I.M. Alsheeb, 1988, Coastal Geomorphology of the Qatar Peninsula , Ph.D. Thesis, University College
of Swansea, University of Wales; A.A.A. Babikir, 1986, "The vegetation of natural depressions in Qatar in
relation to climate and soil",. Arid Environments, 10 , (3), pp. 165-73; C. Cavelier, 1975, "Le Tertiaire du
Qatar en affleurement", Lexique Stratégraphique International, pp. 3, 10, 63, 89-120; Department of Petroleum
Affairs, Qatar, 1988, Interpretation of Subaqueous Structures with Structural Overlay ; Director of Petroleum
Affairs, Qatar, 1970, Geological Map of Qatar, 1:200,000 ; J.C. Doornkamp et al., 1980,Geology,
Geomorphology and Pedology of Bahrain , Geobooks, Norwich; J.J.H.C. Houbolt, 1957, Surface sediments of
the Persian Gulf near the Qatar Peninsula , Ph.D. thesis, University of Utrecht; P. Kassler, 1973, "The
structural and geomorphic evolution of the Persian Gulf", in B.H. Purser (ed.), The Persian Gulf , Springer-
Verlag, Berlin, pp. 11-32; R.W. Powers et a., 1966, "Geology of the Arabian Peninsula: sedimentary geology
of Saudi Arabia", U.S. Geological Survey Professional Paper 56,-D ; E.A. Shinn, 1973, "Carbonate coastal
accretion in an area of longshore transport, NE Qatar, Persian Gulf", in B.H. Purser (ed.),The Persian Gulf ,
Springer-Verlag, Berlin, pp. 180-98; J.C.M. Taylor and L.V. Illing, 1969, "Holocene intertidal calcium
carbonate cementation, Qatar, Persian Gulf", Sedimentology, 12 , pp. 69-107; J.W. Tleel, 1973, "Surface
geology of the Dammam Dome, Eastern Province, Saudi Arabia", Am. Ass. Pet. Geol. Bull.,7 , pp. 558-76.
See, also, Annex III.301, Vol. 8, p. 507.
__________ CHAPTER V
THE TERRITORIAL INTEGRITY OF QATAR AND QATAR'S SOVEREIGNTY OVER THE
HAWAR ISLANDS
Section 1. Introduction
5.1 In this Chapter, it will be shown that the territorial integrity of Qatar, together with all islands immediately
adjoining the mainland, was recognized and confirmed, from at least the middle of the nineteenth century by
the British in the course of their efforts to maintain maritime peace in the Gulf area; and that it was further
confirmed by specific Ottoman surveys carried out in the second half of the 19th century, surveys which were
also acquiesced in or formally accepted by the British. It will be shown that the Hawar islands, and Zubarah,
were similarly always accepted as being part of Qatar by countries in the region. The Ruler of Bahrain is
himself on record in 1907 as having accepted Qatar's sovereignty over the Hawar islands. The extent of Qatar's
territory, including the Hawar islands, was confirmed in numerous maps covering a period of some seventy-five
years, in a description recorded in 1908 by Lorimer, in the Anglo-Ottoman Convention of 1913, in a British
Admiralty survey of 1915, read with the British-Qatar Treaty of 1916, and otherwise in British Government
records until at least 1933. This long-standing state of affairs was only brought into question with regard to the
Hawar islands by the British, giving entirely unjustified credence to a Bahraini claim to the Hawar islands from
1936, after oil became a significant feature in the Gulf area; and thereafter making the decision of July 1939
that the Hawar islands belonged to Bahrain - a decision which was almost immediately seriously attacked as
wrong by a senior British official and eventually acknowledged by the British Government itself as being an
appropriate subject of dispute to be arbitrated.
5.2 As shown in Chapter III, from early in the nineteenth century, Bahrain became an important mainstay of
British policy in the Gulf, the main objective of which was to maintain the maritime peace in order to facilitate
sea trade with and a safe sea-route to India. Beginning with the General Treaty of Peace of 1820 concluded
with the Sheikhs of the Pirate Coast and with Bahrain with a view to eliminating piracy, the British entered into
a number of treaties mentioned hereafter to ensure such maritime peace. The importance of the Bahrain islands
in particular to the British was stressed a few years later in a letter of 6 February 1851 from the Foreign Office
to the Government of India stating:
"... it would be injurious to British interests that the Islands of Bahrein should be placed under the
sovereignty, the protection or the directing influence of any foreign Power; and that there is a
1
danger ... that Islands might fall under the control of France, of Turkey, or of Persia
5.3 When violations of maritime peace originating in Bahrain continued to occur, the British Resident in the
Persian Gulf wrote to Sheikh Mohamed bin Khalifah of Bahrain on 18 May 1861, reaffirming his determination
sternly to repress any hostile attempts on the neighbouring tribes, made by Bahrain or in the name of Bahrain.
He went on to say:
"... you are now engaged in aggressions on the coast of your neighbours, the Wahabees ... Hence
my arrival here to preserve the maritime tranquillity now openly endangered by the defiant attitude
you have assumed 2."
5.4 This letter was followed by the signing of the "Friendly Convention" between the Ruler of Bahrain and the
British Political Resident on 31 May 1861. By Article 2 of this Convention, the Ruler undertook to " abstain
from all maritime aggressions of every description, from the prosecution of war, piracy, and slavery by sea, so
long as I receive the support of the British Government in the maintenance of the security of my own
possessions against similar aggressions directed against them by the Chiefs and tribes of this Gulf ".
5.5 However, rivalries among the ruling family of Bahrain on the one hand, and between them and other local
Sheikhs of the Gulf, on the other, continued during this period . Friction between Bahrain and Qatar had
become endemic in the first half of the nineteenth century as Qatar was frequently used as a base for dissident
members of the Bin Khalifah family to pursue their quarrels with the ruling section in Bahrain. This effectively
ceased by the middle 5f the century, when the whole of Qatar was generally under the leadership of Sheikh6
Mohamed bin Thani . The later Bahraini attacks in the battles of 1867 and 1868 described in Chapter III wereregarded by the British as aggression contrary to the Agreement of 1861 and they therefore decided to punish
7
the Ruler, denounced him as a "pirate" and replaced him by his brother Sheikh Ali .
5.6 As described above, these events led to two British agreements in 1868 - one with the Chief of Bahrain and
another with the Chief of Qatar. The principal object of these agreements again was the maintenance of
maritime peace and each agreement incorporated an undertaking by each Ruler to preserve peace at sea. As a
result of these agreements, the sea was to act as a buffer between Bahrain and Qatar, which were thus
considered as distinct and separate entities. As the object of these agreements was to achieve peace at sea they
clearly also recognised the territorial integrity of the peninsula of Qatar and its immediately adjoining islands. It
could not have been and was not within the contemplation of any of the parties that Bahrain had or could have
any rights over any part of the peninsula or its adjoining islands, including the Hawar islands, located mostly
within Qatar's territorial waters and almost eighteen nautical miles away from Bahrain. A contrary view would
deprive the Agreements of 1868 of any meaning or purpose.
5.7 As already described in Chapter III, early in the 19th century, the Ottoman Sultan had begun to take
effective steps to displace the Wahhabi control over the Muslim holy places and other areas in the Arabian
8
peninsula . After the death of Faisal Bin Turki in 1865, his successor acknowledged to the British that he was
ruling under the effective control of the Ottoman Government. Although the British attitude was ambivalent
about Ottoman rights in Qatar, they did not want to intervene so long as the Ottomans remained within the
territorial limits of Qatar and did not interfere with the British or their influence and authority in Bahrain.
Indeed, the British sought and were able to obtain from the Ottomans in May 1871 an assurance that the
Ottoman Porte had no intention of extending supremacy over Bahrain, Muscat, or the independent tribes of
9
Southern Arabia . The Ottomans reassured the British again soon thereafter that on no account did they want to
turn their "eyes on Bahrein" . As a result, the British did nothing to hinder the Ottoman expansion to include
the peninsula of Qatar, its immediately adjoining islands and waters.
5.8 During the latter part of the 19th century, Bahrain from time to time advanced vague pretensions to various
islands (including Zakhnuniyah and the Hawar islands) where fishermen from different countries in the region
(Oman, Hasa, Qatar, Abu Dhabi, Bahrain, and the Persian Coast) undertook seasonal fishing activities . Its11
pretensions also extended to Zubarah on the mainland of the Qatar peninsula and even the shoals of Dibal
(Mamzoor) and Qit'at Jaradah - pretensions which were either not accepted or firmly rejected both by the
British and the Ottomans as well as other countries in the region. In particular, the Ruler of Abu Dhabi (in spite
of the fact he had fought many battles with Qatar over their own border differences) repeatedly confirmed that
the Hawar islands, Janan, the shoals of Dibal and Qit'at Jaradah, and Zubarah belonged to Qatar.
Section 2. Recognition of Territory
A. General
5.9 Qatar submits that recognition by third countries of the extent of territory controlled by a State or other
entity is highly significant in establishing title to that territory. Even more significant is recognition by the other
party to the territorial dispute which can also form the basis of an estoppel.
5.10 As pointed out by Shaw, the principle of effective control of a territory to demonstrate title:
"... comprises a series of elements, and clearly the more such elements are satisfied the stronger
and more certain will the title be. But this principle, which relies upon acts performed or
assimilated by a State authority, must be seen in conjunction with the important principle of
recognition.
With regard to this principle, one must distinguish between international recognition and bilateral
recognition. In the former case, one is concerned with the acceptance by the international
community as a whole of a particular situation as a valid one despite any ambiguous or illegal
origin, while in the latter case one or more States recognize a particular situation and may therefore
be estopped from denying the validity of the same in the future; that is, the situation is opposable to
such States but not necessarily to others. The two may shade into one another, but it is believed
that a fundamental distinction lies between the two. Bilateral recognition is important as regards 12
evidence of effective control and should therefore be treated as an element within that principle ."
That the probative nature of recognition is well recognised was also noted by Professor R.Y. Jennings who
wrote:
"... it is, of course, obvious that all forms of acknowledgement of a legal or factual position may be
of great probative or evidentiary value even when not themselves an element in the substantive law
of title. Recognition - and also acquiescence - is likely, therefore, for that reason alone, to have a
prominent place in territorial questions ."
5.11 International jurisprudence generally confirms the probative character of recognition, in particular in
matters of territorial title. In thelagoa Bay case (1875), the Arbitral Tribunal cited, in support of its decision
in favour of the territorial title claimed by Portugal, the recognition of this title by Holland and Austria on the
basis that:
"Attendu que, les actes par lesquels le Portugal a appuyé ses prétentions n'ont soulevé aucune
réclamation de la part du Gouvernement des Provinces Unies; qu'en 1782, ces prétentions ont été
tacitement acceptées par l'Autriche, à la suite d'explications diplomatiques échangées entre cette
Puissance et le Portugal 14."
5.12 Similarly, in the Rann of Kutch case (1968), the majority decision of the Arbitration Tribunal relied on
British declarations recognising that the territory in dispute between India and Pakistan belonged to Kutch, the
State of which India was the successor:
"The statements made on the British side that the Rann was Kutch territory carry greater weight ...
the attitude was most clearly expressed in the Bombay Gazetteers for the years 1905 and 1914 in
15
which it was stated that the total area of 9,000 square miles of the Rann belonged to Kutch ."
5.13 Again, in the Dubai/Sharjah case (1981), the Tribunal took note of the fact that:
"... the British authorities ... always recognised the territory of the Bani Qitab as forming part of
Sharjah "6
and therefore concluded from this that this territory did indeed belong to Sharjah.
5.14 In the present case, apart from the recognition accorded by other countries in the region , the recognition by
the British of Qatar's sovereignty over the Hawar islands until oil became a factor in the Gulf area can similarly
be regarded as significant evidence of this sovereignty.
B. Specific Instances demonstrating Recognition
1. The Turkish presence, their survey maps, and British and regional recognition
5.15 In the 1860s, the Turkish authorities were anxious to extend Ottoman influence in the Gulf area by
bringing certain territories under Ottoman control. These territories included Qatar, with which at the time the
British had no treaty relations. Ottoman Marine Commanders therefore undertook surveys of the territory of
Qatar and its adjoining islands. A survey map of the borders of Qatar (including Zubarah, the Hawar islands
and the Dibal and Jaradah shoals) was completed by an Ottoman Exploratory Marine Captain in September
1867 . Another Ottoman survey map, completed in November 1867, shows the distances in leagues between
18
the mainland and the shoals of Dibal and Jaradah . A third Ottoman survey map of 1867 similarly shows the
boundaries of Qatar and Bahrain , and a further map, of October 1867, shows the boundaries of Bahrain . 20
Many of these survey maps were shown to and apparently approved by British officials at different times.
5.16 A later survey report of 5 October 1870 made by the Vice Commander of the Sultanic Marine Fleet to the
Provincial Governor of the Province of Basra states, inter alia, that: "Hawar island ... is linked to the land of
Qatar ". A second report states, inter ali, that "The borders of Bahrain ... end before Hawar island by threemarine leagues, and before the city of Zubarah by ten marine leagues ", and that the Ruler of Bahrain "...oes
22
not possess any island or lands in land of Qatar ".
5.17 The Ottoman authorities had already collected material with regard to the ownership, nature and activity of
even the main Hawar island. In a report dated 15 April 1871 an Ottoman Naval Captain stated:
"The huts that we have seen in Hawar belong to fishermen from the country of Al-Hassa, the
country of Qatar, the country of Oman and some from Bahrain.
There is no structure, and there is no water. The fishermen say that it is an island which belongs to
the land of Qatar ."
5.18 A further report, dated 22 May 1871, by an Ottoman Marine Vice-Commander stated:
"... we met, in the sea of Qatar, two groups of Hassawi fishermen coming from Hawar island. They
confirm that the island is empty of English military personnel; and that the island is open to all
fishermen. The two groups confirm that there are in Hawar huts similar to the huts at the marshes
at Shat Al-Arab. There is no water; there are no houses; there is no fort. In the summer it is empty
of inhabitants; empty of people. There are some people who hunt birds in the winter. Water is
brought only from the land of Qatar, from the spring of Al-Dawakhil. There are no animals i.e.
donkeys, mules or goats.
24
We assure you that we will visit it in two days time. We need your prayers ."
5.19 By 1871, the Qatar peninsula, with its adjoining islands including the Hawar islands as shown in the
Ottoman survey maps had come under the control of the Ottoman Empire, as had the Nejd and the Hasa coast.
In 1872, having already persuaded Sheikh Jassim bin Thani, the son of the then Chief of Qatar, to agree to their
presence in Qatar, the Ottomans installed a small garrison in Doha. They also presented Sheikh Jassim bin
25
Thani with a steam launch to enable him to control the coasts and waters within his jurisdiction .
5.20 Apart from exploring the extent of the territories of Qatar and Bahrain through the surveys mentioned
above, the Ottomans also made specific inquiries from Qatar's neighbours, in particular from the Rulers of Abu
Dhabi. There was considerable correspondence in this connection between the Ottomans and Sheikh Zayed bin
Khalifah, who was the Ruler of Abu Dhabi from 1860 to 1909 (which covers most of the period of the Ottoman
presence in the Gulf area). Kelly writes that after the eclipse of the Wahhabi power in Eastern Arabia followed
by the occupation of Hasa by the Turks in 1871, the politics of the area:
"... south of Hasa, came to be dominated ... by the figure of Zaid ibn Khalifah ... the ruler of Abu
Dhabi. Zaid, who had succeeded to the chieftainship on the deposition of his cousin, Sa'id ibn
Tahnun, in 1855, had become the most powerful of the Trucial Shaikhs by the early eighteen-
seventies ... By the last decade of the century Zaid ibn Khalifah had extended his authority over the
greater part of the hinterland of Trucial Oman, and even into the Dhahirah province of Oman,
where his influence exceeded that of the Al Bu Sa'id Sultan, who consequently entrusted him with
the care of his interests there. Indeed, the only serious challenge that Zaid had to contend with in
these years came from the Al Thani Shaikh of Qatar, who endeavoured, in the eighteen-seventies
and eighteen-eighties, ... to take possession of Khaur al-Udaid ."6
5.21 On a number of occasions, the Ottoman authorities inquired from Sheikh Zayed about the extent of Qatar's
territories and about Bahrain's ambitions towards such territories. In his responses to such inquiries, Sheikh
Zayed's descriptions of Qatar's territories were always consistent with the Ottoman survey maps of 1867
onwards. Furthermore, he constantly warned the Ottomans of Bahraini intentions to make claims on Qatari
territory and in a letter of 4 June 1870 advised:
27
"Do not allow Bahrain to snatch what it can and to dump what it cannot ."
5.22 It was against this background that the Ottoman Vali of Hasa in a communication addressed to the Rulerof Bahrain, Sheikh Issa, in October 1871 sternly warned against any Bahraini pretensions to Qatar territory and
stated:
"According to what has been proved to us, Zubarah and its surrounding area and the islands of
Qatar opposite your country are all clearly and absolutely the property of Qatar. This is a warning
to you and you must be aware that we have the demarcation of your borders and that the British
Ambassador to Constantinople has seen it ."28
5.23 Sheikh Zayed bin Khalifah of Abu Dhabi, in another letter to the Ottoman Vali of Hasa on 17 November
1871 in the context of any Al-Khalifah interests in the territories of Qatar, stated:
"As for Qatar, we know it well, and the fighting which has been going on between Khalifah's and
its [Qatar's] people is well known. It is a big country and if you intend to take it, do not forget to
take its sea and diving spots. They are commendable and rich. If dates are in Al-Qateef, money is
in Qatar [an old proverb - if Al-Qateef is known for dates, Qatar is known for wealth].
It has a spring of fresh water in its northest sea which they call Al-Mamzoor. Below, there is
Jaradah which belongs to the sea of Qatar. To its east lies Zubarah and below Zubarah you find the
islands of Hawar opposite to the mountain on it [the mainland i.e. Brooq].
I have already been asked by people who came before you about Hawar. I told them all I knew
about it. Al-Hassa has not got a nail on this island [they own nothing] nor has Bahrain any hand
over it. You can go to it from the shore of Qatar on foot. We were informed a long time ago that
there were huts and a rain-water pool which belonged to some people of Faris [Persians]. There
were also Shiites from Qateef who came there as fishermen at the time of Al-Btain [severe winter].
Do not worry. It belongs neither to Bin Khalifah nor to anyone from the people of Al-Hassa. It
belongs to Qatar29."
In fact, Sheikh Zayed bin Khalifah, in the same letter, went on to make a proposal of his own to the Ottomans
when he stated:
"If you want a refuge from which to monitor the English, Hawar is the place. Your reputation and
your understanding with Bin Thani would make Bin Thani give it to you. We are in disagreement
with Bin Thani, otherwise we would have helped you30."
5.24 Soon after the Ottoman presence in Qatar had been established and upon a complaint by Sheikh Jassim bin
Thani against Bahrain's conduct in relation to the territories of Qatar, the Ottoman Vali of Hasa in March 1872
responded to Sheikh Jassim by stating:
"We have received your letter and we do not accept Bin Khalifah's conduct in Bida and Wakrah.
On the basis of orders from our Vali, the Vali of Baghdad, and orders from the Sublime Porte, may
his shadow last forever [may he live forever], we have carried out a survey of your country, Al-
Qatar, including its sea, land and islands. The survey was carried out by Mohammed Quli Abdu, a
Sultanic Marine Commander, who is an exploratory marine captain. He has done a lot of surveys in
the Ottoman Sultanic world. These surveys have been approved by the Sublime Porte and by the
ambassador of Great Britain to Constantinople.
On each map there is a small signature, a decorated Latin Letter. He signed and agrees to that31."
5.25 Shortly after that, the Ottoman Vali of Hasa obtained further information concerning Hawar from Sheikh
Zayed bin Khalifah of Abu Dhabi who wrote in his letter dated 7 October 1872:
"Regarding Hawar, you are free to say whatever you think about it. No-one understands more than
you do and no-one knows as much as you do, but we want you to understand that Hawar has been
[part] of Qatar since the time of our fathers and grandfathers, and no-one has any right to it. This is
what we are sure of by virtue of all we have known and all whom we have mentioned ... We have people who [would] tell you about Hawar and that it is a fishermen's refuge belonging to Qatar,
and its Sheikh is Bin Thani not Bin Khalifah32."
5.26 By contrast, British knowledge about Qatar (in which it had shown no interest) including its territory, its
tribes and its activities was extremely meagre. This is demonstrated by the contents of a letter from the Political
Resident in the Persian Gulf, Col. E.C. Ross dated 4 September 1873 to the Secretary to the Government of
India where he states:
"4. The position of the Turks on that coast, however, had perhaps better be again brought to notice,
in reference to their proceedings now reported.
5. The accompanying slight sketch of that part of the Coast may serve to illustrate my report. The
red marks denote places where there are Turkish troops quartered.
6. It will be observed that there is an extensive cape or promontory called by the general name of
Guttur, or properly, Katr. The greater part of this tract is desert land, but a few Bedouin tribes find
pasture for their flocks. On the coast are fishing villages, such as Zobarah, Khor Hassan, el Biddah
&c. - the most considerable being Biddah. The whole coast is called the Guttur Coast and the
population is fluctuating.
7. The question of the sovereignty over Guttur, generally, has never yet been decided. It has,
perhaps, been a debatable land, between Oman on the one side and Wahabee Power on the other.
At one time the Chief of Aboothabee is said to have exercised authority in Guttur. Later the
Uthoobees having settled there and at Bahrain, became paramount. These in time had to pay
religious tithe to the Wahabee Ameer - who established a Governor of his own at Biddah.
8. Since the Turkish occupation of El Hassa, the whole line of Coast as far as Odeyed had fallen
under Turkish influence, and the chiefs in [question?] have been forced to accept the Turkish flag.
Biddah has been actually occupied, and a body of Turkish troops is now quartered there.
9. In October 1871 Government of Bombay requested Colonel Pelly to report on the question of
sovereignty over Guttur, but Colonel Pelly asked permission to defer this, as there was a
probability of the Turks withdrawing from Najd.
10. Such is, briefly, the present position of affairs at Guttur, and there does not appear at present to
33
be cause of complaint against the proceedings of the Turkish authorities ."
5.27 In 1873, an Ottoman detachment was reported to be arriving in Zubarah 34 and the Chief of Bahrain wished
35
to offer help to the Naim who he claimed owed allegiance to him . The British advised him not to involve
himself on the mainland 36 so as to avoid complications with the Ottomans , and warned him of dire
consequences if he ignored this advice . While the British accepted that the Ottomans exercised de facto
39
control over the Qatar peninsula, they never formally recognized Ottoman sovereignty over the peninsula .
Indeed, they insisted on maintaining direct relations with the Ruler of Qatar and the rights they had acquired by
treaty -
"... in order to preserve the peace of40he seas or to obtain redress for outrages on British subjects or
persons entitled to British protection ."
5.28 But the British did not want to intervene so long as the Ottomans remained within Qatar's territorial limits,
as understood and recognized by the British, and thus did not threaten maritime peace or British interests in
Bahrain and other Sheikhdoms with whom Britain had treaty relationships. However, being suspicious of
Ottoman intentions, the British concluded an Exclusive Agreement with Bahrain in December 1880, mainly to
prevent any arrangement being reached between the Ottomans and the Sheikh of Bahrain . A further
agreement was concluded on 13 March 1892 by which the Sheikh of Bahrain agreed not to "enter into any
agreement or correspondence with any Power other than the British Government", not to permit the agent of
any other Government to reside in Bahrain without the consent of the British Government, and also not to"cede, sell, mortgage or otherwise give for occupation" any part of his territory, save to the British
42
Government . It is important to note that the British, having accepted Qatar (as shown in the Ottoman survey
maps) as being part of the area of Ottoman influence, made no attempt to enter into any such agreement with
the Ruler of Qatar at this time.
5.29 At about the same time as Col. Ross was addressing his above communication of September 1873 to the
Secretary to the Government of India displaying vague overall knowledge about Qatar, the Ottomans were
surveying and increasing their control over territories which included Hawar. With regard to Hawar island, by a
communication dated 27 November 1873, the Ottoman Vali of Hasa writing to the Vali of Baghdad stated:
"As for your queries regarding Hawar Island, which belongs to Qatar, no-one inhabits the island
except sailors from the countries of the Persian Coast and the Omani land, people of Qatar and
Shiites of Bahrain. In all, there are thirty of them and there are no houses or permanent homes43."
Two days later, the Ottoman Naval Captain Mohammed Quli Abdu on 29 November 1873 reported to his
Marine Vice-Commander as follows:
"Sir, we have been to the intended place. We raised the flag of the sublime Sultan, may his shadow
[life and authority] last on earth, on Hawar island without any objection. The English were aware
of this and were present, but did not approach us.
Regarding the matter of urgency that we have received from you, we went and measured the sea
from the coast of Qatar. Down below the island appears a strip in the sea which can be walked on
for three quarters of an hour with water at knee level. We found on it [Hawar] fishermen from
Oman and from Al-Hassa and we found one person from Qatar repairing a ship. There is no one
from Bahrain and no English. This is what we wanted to inform you. There is no fear of the
inhabitants [for they are] very weak. We have also seen the maps of Hawar and Qatar on the
Sultanic ship. We recommend modification of the shape of Hawar in the file of Qatar. We shall
send you maps of the island later, God willing44."
5.30 On 10 December 1873, about ten days later, Capt. Mohammed Quli Abdu did in fact finalise a survey map
of Hawar (Map No. 6 facing the preceding page) which clearly illustrates that Hawar belongs to Qatar.
5.31 It is significant that in a British memorandum of March 1874 concerning the claims of Persia and the
Ottomans to Bahrain, the extent of Bahraini territory was described as consisting only of the following:
"The Bahrein Islands are a small group of islands, three in number, on the south-west side of the
Persian Gulf, in the centre of Bahrein Bay, the principal of which is Bahrein (or Aval), lying about
ten miles off the Coast of Arabia 45."
This description of Bahrain self-evidently could not include the Hawar islands.
5.32 It would appear that there were recurring changes in the Ottoman officials (Valis) posted in the Gulf area
and a new official would often seek information from Sheikh Zayed bin Khalifah of Abu Dhabi. In response to
one such inquiry in a communication dated 23 December 1874 to the Vali of Hasa, Sheikh Zayed bin Khalifah
wrote:
"... with reference to what we have been discussing with you concerning Al-Mamzoor and Jaradah,
you know what the Al-Hala is. Al-Hala [a piece of land usually submerged by the sea at high tide]
is a piece of uninhabited land as you were told by the one who came to you from Bahrain. You see,
these [Halas] belong to Qatar and they are Qatari territories and Bahrain has no hand over them
[rights]. You see the English know nothing about them except through what they hear. As for Al-
Zubarah we have already told you that it belongs to Qatar and the Al-Khalifah inhabited it but did
not stay long. As for Hawar I cannot say more than what we have already said to your
predecessors; it belongs to Qatar. If we were entitled to it, then Bin Khalifah would be rightly
entitled to it. If it is to be judged by its population, there are more of our people and more people
from the Persian Coast who are ruled by Al-Qawasim [than there are Bahrainis]46."5.33 In another such communication three years later of 22 July 1877 to a new Vali of Hasa, Sheikh Zayed bin
Khalifah wrote:
"As for Hawar, we have said to your predecessor what we know: that it belongs to Qatar. Because
we are neither afraid of anybody nor in awe of anyone. Yes, we took Bin Khalifah's side in
hostility to Jassim. We did not think that matters would develop in this way. Undoubtedly,
dialogue between Bin Khalifah and Jassim would extinguish the fire - but to take Hawar by
deception is neither good for them nor for us47."
5.34 It is also relevant to note that, from time to time, Sheikh Zayed bin Khalifah was resisting claims on his
own territory in Udeid by Sheikh Jassim bin Thani of Qatar. Differences over these territorial claims became
extremely severe between 1881 and 1889, when they fought a number of battles.
5.35 Thus, although Sheikh Zayed bin Khalifah had serious differences with Sheikh Jassim of Qatar, in respect
of their own territorial borders and engaged in numerous battles against Qatar (at times with the support of
Bahrain), he continued to reaffirm his strongly held view as to the extent of the territories of Qatar, consistently
asserting that Hawar constituted an integral part of Qatar and that Bahrain had no valid claims to those islands
or indeed to Zubarah. He continued to maintain these opinions up to the time of his death in 1909 and, as shown
below, his successors reiterated the same view from time to time.
5.36 It is important to note that the Ottoman authorities had continued to arrange for more detailed surveys of
the borders of Qatar and even Hawar to be carried out from time to time. Such survey maps were also presented
to other governments and authorities (including the British), as shown by the stamps which they bear. Survey
maps in respect of Qatar of the years 1874 and 1891/98 are Annexes III.29 and III.4648 and the survey map in
respect of Hawar of 7 July 1890 is Annex III.3749. It is particularly significant to note that the territories of
Qatar and Bahrain shown in the Ottoman maps from 1867 to 1889 are also substantially similar to those shown
in a number of other maps of the period published in the West in the years following50.
5.37 There is other evidence from the turn of the century which demonstrates that the Hawar islands (and
Zubarah) were recognised as belonging to Qatar.
5.38 A geographical dictionary of the Gulf region, compiled by Lorimer in 1908, also clearly listed the Hawar
islands under Qatar as one of the places and features on its west coast and provided a detailed description of
Hawar and adjoining islands:
"About 10 miles long, north and south, and roughly parallel to the Qatar coast. There are no wells,
but there is a cistern to hold rain-water built by the Dawasir of Zallaq in Bahrain, who have houses
at two places on the island and use them in winter as shooting boxes. Fishermen also frequent
Hawar. The island is adjoined on the north by Jazirat Rubadh and on the south by Jazirat Janan,
51
while Jabalat Ajirah and Jazirat Suwad lie in the channel between it and the mainland ."
On the other hand, Lorimer described Bahrain as follows:
"The present Shaikhdom of Bahrain consists of the archipelago formed by the Bahrain, Muharraq,
Umm Na'asan, Sitrah and Nabi Salih islands and by a number of lesser islets and rocks which are
enumerated in the articles upon the islands: taken all together these form a compact group almost
in the middle of the gulf which divides the promontory of Qatar from the coast of Qatif ."52
5.39 After a visit to the island of Zakhnuniya and the Hawar islands in March 1909, Major F.B. Prideaux, the
Political Agent in Bahrain, reporting to the Political Resident, appeared to be concerned about the fact that the
Ottoman officials might seek to extend their authority more securely in the district generally. He noted in his
letter of 20 March 1909:
"The facts are that Dowasir of Budaiya and Zellaq on the north-west coast of Bahrain are in the
habit of every winter partially migrating to Zakhnuniya and Hawar Islands for fishing (sharks as
well as edible fish) and hawking. A Dosiri is said to have built the Zakhnuniya fort many decades
ago, and Shaikh Ali bin Khalifa (Esa's father) rebuilt the fort during the reign of his brother Muhammad whom we deposed. Since then, the Dowasir have once again repaired the fort, but now
53
it is in ruin and only the four unroofed bastions are standing ."
5.40 The Political Agent hoped the Ruler of Bahrain would lay claim to Zakhnuniya and Hawar Islands so as to
be able to try and challenge Ottoman authority over these islands. He therefore stated in his letter of 20 March
1909:
"If Shaikh Esa is willing to claim sovereignty over Zakhnuniya our position will be fairly plain
sailing ... but if Shaikh Esa doesn't want or dare assert his sovereignty over Hawar we shall be in
rather a quandary. However, I hope next week to be able to give a satisfactory report about his
attitude ."
As it happened, the Ruler of Bahrain did in fact lay claim to Zakhnuniya by his letter of 30 March 1909
addressed to the Political Agent 55 but obviously refrained from daring to do so in respect of Hawar.
5.41 The successors of Sheikh Zayed bin Khalifah continued to maintain the position that the Hawar islands
(and Zubarah) belonged to Qatar. In fact Sheikh Tahnoon bin Zayed, the immediate successor of Shaikh Zayed,
in a communication dated May 1909 addressed to Sheikh Issa, the Ruler of Bahrain, advised him:
"... We do not question what you say except from worrying about you. You see, O brother, you
must tell the truth to us and to yourself. A man is bound by his own word, as are his children after
him.
As for Zubarah, by Allah, no brother, you must not get into hostility with Bin Thani; these lands, as
you and we know, do not belong to you. They belong to Qatar. As regards the dividing up [of these
lands] you have told us about, you see it is not fair to divide up already-recognised countries; this is
the first thing I want to say. Second: yes we know Hawar well due to what our predecessors, who
have been to it, have told us. Some of our friends had given the messenger of Jassim Bin Thani a
slave by the name of Naseeb as a levy. Those who had nothing to give, gave either a fishing net or
fish. We are certain of this. Third: Father, may God have mercy on him, gave his fingerprint to the
soldiers in Hassa56 to testify that Hawar is one of the lands of Qatar and that Al-Zubarah is the
same... Leave Zubarah and Hawar to their owner Bin Thani. There are no gains from conflict57."
It is important to notice that in this communication, the new Ruler of Abu Dhabi not only reiterated his
country's recognition of Qatar's ownership of Zubarah and Hawar but also stated that he had been told that a
levy (in the form of a slave, a fishing net or fish) had been given to the messenger of the Ruler of Qatar,
apparently by itinerant fishermen who were visiting the islands. This confirms other contemporary evidence of
the payment of levies to the Ruler of Qatar by itinerant fisherman visiting Hawar58.
5.42 As shown earlier, in view of certain tensions that had developed between the British and Ottoman
Governments, negotiations between them led to the signing of the Anglo-Ottoman Convention of 1913. By
Article 11 of the Convention, the Ottoman Government "renounced all their claims with regard to the El-Katr
peninsula", and the two Governments agreed that it "shall be governed, as heretofore by Sheikh Jassim-bin-Sani
and his successors". Consistent with their stand of nearly fifty years (reaffirmed on numerous occasions), the
British Government declared "that they will not permit the Sheikh of Bahrain to interfere in the internal affairs
of El-Katr, to infringe the autonomy of the country, or to annex it ".
5.43 The 1913 Convention did not specifically define the territorial limits of Qatar and Bahrain. However, as
60
explained above, the inference must be that the Hawar islands were considered to be part of Qatar .
5.44 Thereafter, a survey by the British Admiralty War Staff (Intelligence Division) carried out in 1915
61
included Hawar (and Janan) in the description of the territory of Qatar .
5.45 Although the Ottomans recognized the autonomy of Qatar by the 1913 Convention, they continued to
maintain a garrison at Doha which did not leave until the arrival of a British warship on 20 August 1915 . To2
formalise their position, the British signed the 1916 Treaty with the Sheikh of Qatar containing the various 63
mutual obligations described above . The opening recital of the Treaty refers to the Agreement of 1868
whereby the Ruler of Qatar undertook "not to commit any breach of the Maritime Peace" and the Ruler
confirms that "these obligations to the British Government have developed [ sic: ? devolved] on me his
successor in Qatar". The British, in turn, undertook to protect the Sheikhdom against aggressions by sea 64 . A
clear implication of this provision must necessarily be that the land territory of Qatar (including the Hawar
islands) was to be protected against any aggression by sea by anyone including Bahrain (in the same way as it
was not to be violated under the 1868 Agreement).
5.46 A German map published by Freytag and Berndt in 1914, and another by Geographia Ltd. London,
published in 1919 ( Maps Nos. 7 and 8 , both preceding this page), show the Qatar peninsula and the Hawar
islands in one colour and Bahrain in another. Consistent with these maps are those of Bahrain alone: one to be
found in the proceedings of the Royal Geographic Society, 1890 Atlas , and another being Tivener's map of
1898 from the records of the same Society .66
5.47 As at the time of signing the Anglo-Ottoman Convention of 1913, no need was felt when signing the
British-Qatar Treaty of 1916 to define Qatar territory or to refer specifically to Hawar or Janan islands as the
British and Qatar were clear about the fact that the Hawar islands were part of Qatar.
5.48 It is important to note that the British Government in fact continued to regard the Hawar islands as part of
Qatar almost until the so-called "provisional" decision of 1936 to the effect that the islandsprima facie
belonged to Bahrain 67. This is apparent from the following:
(i) In a report of the British India Office of 1928 entitled "Status of Certain Groups of Islands in the Persian
Gulf", the Bahrain archipelago is defined as consisting only of "the islands of Bahrain, Muharraq, Umm
Na'assan, Sitrah, and Nabi Salih, and a number of lesser islets and rocks forming part of the same compact
geographical group ."8
(ii) Again on 3 May 1933, Laithwaite, of the India Office, referring to the territories of Bahrain, gave an almost
identical description and stated that the dominions of the Ruler of Bahrain may be regarded as consisting of
"the Island of Bahrein, and of the adjoining islands of Muharraq, Umm Na'assan, Sitrah and Nabi Salih ... in
69
considering any grant of a concession in respect of his 'dominions' or 'Bahrain' ."
(iii) In connection with the concession for the unallotted area, when the Secretary of State for India requested a
"marked map showing area recognized as Bahrain Islands 70", the acting Political Resident's response of 4
71
August 1933 and the accompanying map showed that Bahrain's territory did not include the Hawar islands .
72
(iv) As shown hereafter , also in 1933 and in the same context, when the Ruler of Bahrain had suggested to
the Political Agent that the Bahrain islands should not be listed by name because of an alleged ninety-year old
agreement that the islands off Qatar were dependencies of Bahrain , the Political Resident was content to
74
recommend acceptance of the suggestion "as Hawar Island is clearly not one of the Bahrain group ". The India
Office agreed that the area under the Ruler of Bahrain's sovereignty for this purpose did notinclude Hawar,
which was not under his control and belonged geographically to Qatar . 75
(v) Other evidence reviewed in detail in Chapter VI below demonstrates that the British Government
consistently denied, even as late in the day as 1933, that the Hawar islands belonged to Bahrain 76and that
indeed the 1935 Concession Agreement between the Ruler of Qatar and APOC covered the Hawar islands as
77
part of the territory of Qatar . In fact, it was not until 1936 that the British Government suddenly, and without
apparently being conscious that it had previously denied any validity to Bahrain's designs upon Hawar, took its
"provisional decision" in favour of the Bahraini claim to Hawar.
2. Bahraini Recognition of Qatar's Sovereignty over the Hawar Islands
5.49 There was good reason for Sheikh Tahnoon bin Zayed of Abu Dhabi to advise the Bahraini Ruler Sheikh
Issa in his letter of May 1909 quoted above "to tell the truth to us and to yourself78". As will be seen from a
letter of 7 July 1907 addressed to Sheikh Saeed Al-Mutawwa Al-Binhajer, who was Sheikh Jassim'srepresentative on the western side of Qatar, Sheikh Issa himself pleaded for citizens of Bahrain to be permitted
to visit Hawar, promising to meet "your demands" and undertaking responsibility for the behaviour of Bahrainis
visiting Hawar. Sheikh Issa wrote:
"Sheikh, we are ready to meet your demands. But we want nothing but your permission for our
people to anchor at Hawar. We, by God, ask for nothing but your satisfaction and forgiveness. Our
people have pestered us in their demands to write to you and to send you a letter. We are
responsible for any misbehaviour that may occur by our people on your island and in your
country79."
Earlier in the same year, on 15 February 1907, Sheikh Issa also endorsed and sealed a request from one of the
Bahraini fishermen to visit Hawar80.
5.50 Bahrain's Ruler therefore acknowledged Qatar's sovereignty over the Hawar islands and secured
advantages by way of access and fishing rights for "his people". Having thus recognised the original title of
Qatar to the Hawar islands, it was hardly open to Bahrain to challenge this title.
5.51 Another important event that demonstrates Bahrain's assumption and therefore its recognition that the
Hawar islands belonged to Qatar occurred in the early days of the development of prospects of discovery of oil.
As described in Chapter III above, on 2 December 1925, the Ruler of Bahrain granted a concession to the
Eastern and General Syndicate Limited ("EGS") to explore the whole of the Ruler's territories for oil. This
concession was subsequently transferred to the Bahrain Petroleum Company ("BAPCO"). A review of the
negotiations leading up to the 1925 Agreement shows that in 1923 when Major Holmes, then representing EGS,
drew up the draft of the Concession Agreement, Article I of the draft referred to the territory of the concession
as being that portion of the land known as "THE BAHRAIN ISLANDS ... more particularly shown and
81
delineated on the Map attached to this Agreement, and MARKED in RED colouration thereon... ". It is to be
noted that on this map, the Bahrain islands are coloured red while the Hawar islands are coloured white like
Qatar .2
5.52 Later oil concession negotiations confirm that, in the late 1920s and early 1930s, neither Bahrain's
concessionaire under the 1925 concession (EGS) nor its successor (BAPCO) considered the Hawar islands to
be part of the territories of Bahrain. There is clear evidence, which is reviewed in detail in Chapter VI below,
that when Major Frank Holmes (representing EGS) applied in 1928 for permission to negotiate for a concession
over the so-called "unallotted" area ( ., the area of Bahrain and its territorial waters remaining after
EGS/BAPCO had chosen the 100,000 acres of Bahrain territory for the mining lease to which it was entitled
under the 1925 concession), he did not regard the Hawar islands as falling within the "unallotted" area. As will
be seen, Major Holmes had calculated that the "unallotted" area amounted to 97,920 acres, an area altogether
83
too small to include the Hawar Islands, Fasht Dibal or Qit'at Jaradah . Neither the Ruler of Bahrain nor the
Political Agent demurred from these calculations at the time.
5.53 Another instance of Bahraini recognition of Qatar's ownership of the Hawar islands is the express
admission in a letter of 21 September 1926 from the Ruler of Bahrain to the Ruler of Dubai wherein he states
that "we have reached an understanding with the English here [in Bahrain]: that they will give us the island of
Hawar which belongs to Bin Thani84". To similar effect is the admission in the letter of 20 July 1938 from
Belgrave to the Representative of the British State in Sharjah informing him that Bahrain, "by the approval of
the British State, is going to take the Island of Hawar which belongs to Qatar85". And again, in a letter of 15
February 1939 to a subordinate of the British Political Resident in the Trucial States, Belgrave states that: "even
if Hawar belongs to Qatar we don't disagree with this, it is in the interests of the British State that it should
belong to Bahrain86".
5.54 These documents represent firm evidence that, over a long period, Bahrain expressly recognised or
assumed that Qatar had sovereignty over the Hawar islands. In such circumstances, Bahrain has no valid basis
for having changed its position or for questioning Qatar's sovereignty over the Hawar islands.
Section 3. The Subsequent Change in Bahrain's Position and its Efforts to secure Support for its Claim
A. The Discovery of Oil and Bahrain's Initial Efforts to secure Support for its Claim5.55 As described earlier, the British had considered Bahrain, ever since the beginning of the nineteenth
century, as the centre of their activity in the Arabian/Persian Gulf; by 1904, it was considered important enough
by them to appoint a Political Agent for Bahrain. The importance of Bahrain was further increased in the 1920s
when there came the promise of oil. Soon after Bahrain granted the first prospecting licence for oil in December
1925 to EGS, Belgrave, in collusion with the Ruler of Bahrain, Sheikh Hamad, began to plan the eventual
mounting of a formal claim to the Hawar islands in the expectation that oil would be found in these islands. At
about that time and for the same reason, even Ibn Saud began to make an "ancient claim" to Qatar and to
include the peninsula in the tract of country for which he was prepared to negotiate an oil concession . 87
However, the British quickly and effectively restrained Ibn Saud from pursuing any such claim. But, as will be
seen, in the years to come, the British were prepared to lend encouragement to a Bahraini claim 88 . The Bahraini
Ruler also sought, though unsuccessfully, the support of other rulers in the area. He had sought support for his
claims to Hawar from successive Rulers of Abu Dhabi but instead of securing any such support was continually
advised not only that there was no justification for any such claims but even to avoid making them.
5.56 In the light of the fact that up until 1933 the British had always taken the view that the Hawar islands
belonged to Qatar and that a similar view had been taken by the rulers of other sheikhdoms in the Gulf,
Belgrave set about implementing plans in an effort to show that the main Hawar island belonged to Bahrain. As
described in detail in Chapter VI, Belgrave set about fabricating evidence for this purpose. On 28 April 1936,
Belgrave formally wrote to the British Political Agent in Bahrain that:
"In connection with the present negotiations for an oil concession over the territory of Bahrain
which is not included in the 1925 oil concession, [Sheikh Hamad of Bahrain] has instructed me to
state to you that the Hawar group of islands lying between the southern extremity of Bahrain island
and the coast of Qatar is indisputably part of the State of Bahrain ."
There is evidence to show that the British Political Agent in Bahrain was at least partly aware of, if not actively
initiating or supporting, Belgrave's plans, presumably to show his superiors gains in increasing the area of
British influence. It is interesting to note that in his letter to the Political Resident dated 6 May 1936,
forwarding Belgrave's above letter of 28 April 1936, the Political Agent supported Bahrain's claim and also
suggested that:
"... it might in certain circumstances suit us politically to have as large an area as possible included
under Bahrain ."0
5.57 In other words, efforts were to be made to add to the territory of Bahrain. This "plot", which began to be
implemented from around 1930, and evidence which subsequently became available about the false basis of
Bahrain's claims to the Hawar islands is dealt with in detail in the next Chapter.
B. Bahrain's Illegal Occupation of Hawar Island
5.58 However, in regard to Bahrain's claims of exercise or recognition of its sovereignty, it is most important to
consider that when Bahrain began seriously to press its claim to the Hawar islands in the 1930s, it did so
through a clandestine occupation by moving a garrison to the islands. This occupation took place at around the
time when Bahrain made a written claim to the Hawar islands in Belgrave's letter of 28 April 1936 to the
Political Agent in Bahrain . The Ruler of Qatar took the view that this action clearly amounted to aggression
within Article X of the 1916 Treaty, and complained to the British on 10 May 1938 in view of:
"the treaties which exist between me and H.B.M.'s Government upon which I rely..."
requesting:
"prompt action and to prevent the aggressors who ventured to take these actions without my
knowledge. I am quite confident that you will, in order to keep the peace and tranquillity, do what
92
is necessary in the matter ."
In his subsequent letter of protest of 27 May 1938, the Ruler of Qatar again characterised Bahrain's action as"an aggressive act ".
5.59 Bahrain's aggression and hostile occupation is clearly unsupportable in international law and would have
no basis in law. As stated in Oppenheim:
"The principle ex iniuria ius non orituris well established in international law, and according to it
acts which are contrary to international law cannot become a source of legal rights for a
94
wrongdoer ."
In support of this proposition, the learned authors point out that "The ICJ has repeatedly held that a unilateral
act which is not in accordance with law cannot confer upon a State a legal right ".95
C. Bahrain's continued Failure to secure Regional Support
5.60 It appears that during this period Belgrave was also seeking support for Bahrain's claim to the Hawar
islands by writing to the various rulers in the region. In response to one approach, Sheikh Shakhboot bin Sultan,
the then Ruler of Abu Dhabi, in a letter of 27 July 1930 informed Belgrave:
"Regarding your queries concerning whether the Hawar islands belong to Qatar, to Qatar and
Bahrain, or to Bahrain only, we inform you that the Hawar are uninhabited islands which belong to
Qatar, as we have been told by people whom we trust, and we believe what they say. Bahrain has
no right to them [the islands] neither in the past nor in the future.
They [the Hawar Islands], as reported by people who have been there are [made up of] seven or
eight pieces [islands] the largest of which is Hawar surrounded by smaller [islands]. They say that
its name Hawar is like Hawar Al-Naqa [baby camel], the camel being the country of Qatar.
Why do you ask about it? I hope there is no dispute about it, for we are ready to testify96."
5.61 Thus Sheikh Shakhboot bin Sultan from the time he became the Ruler of Abu Dhabi in 1927 (until 1966)
continued, as did his predecessors, to reaffirm Qatar's ownership of Hawar. In a further letter of 22 August 1934
to the Ruler of Bahrain himself, he was strongly critical of Bahrain's designs to take the Hawar islands from
Qatar. He wrote:
"You know, as well as we do and those who are present with us, that those islands belong to Qatar.
It is one of Qatar's islands. So, dear [sir], if one took all one wants, we would take part of Persia,
part of the Levant and part of Egypt. We hope that the Adviser will not compel you to take our
country as well. What you have done will not escape the notice of those who will come after you
and, my dear [sir], injustice is a terrible thing. What you have done is too much. You have never
wanted a reconciliation with Bin Thani.
Our son in Qatar has told us that poor Bin Thani is trapped by those whom you and we know. If,
my dear [sir], they are not loyal to their country how can they be loyal to you? The one who does
harm to his country would not mind doing harm to other countries as well. We know that all those
with Bin Thani - Darwish, Al-Hitmi and Al-Jabor - keep the old man in the dark97."
5.62 In view of his frustration upon failing to secure the support of the Sheikh of Abu Dhabi, Belgrave even
wrote to one of Sheikh Shakhboot's representatives (in the eastern province of Abu Dhabi) to enlist his support
in persuading Sheikh Shakhboot that it would be in his interest to cooperate with Bahrain. By a letter of 15
March 1936, he wrote to Al-Sheikh Ahmed bin Hilal Al-Dhahiri:
"We inform you that Sheikh Abdullah Bin Jassim, Sheikh of Qatar, has asked his adviser to define
the borders [of the lands] which belong to him and to Sheikh Shakhboot, in which he knows there
is oil. Sheikh Shakhboot did not listen to what we had told him and did not listen to the advice. We
would like you to bring to his attention that Bahrain seeks what is good for him. This is to keep the
Sheikh of Qatar preoccupied with more than one issue, coming from all directions. With this letter
you get 200 rupees, three sacks of rice, three of sugar and 25 sacks, made of palm leaves, full of Qateefi dates from the Sheikhs [of Bahrain] for your people. We are awaiting your reply98."
5.63 This attempt to put indirect pressure on Sheikh Shakhboot to support Bahrain also failed. Indeed, Sheikh
Shakhboot was becoming annoyed at the persistent attempts by Bahrain to enlist his support in its designs
against Qatar. In a strongly-worded letter to Belgrave of May 1937, Sheikh Shakhboot states:
"We have received your respected letter at the most blessed hour. We have noted what you said.
Yes, we talked about the subject of our people living in Hawar. This cannot be denied by any sane
person who knows the sea of our country and the region. I have got the names of each and every
one of those who inhabited it. I think you know that the Al-Dawasir, who allege that they are its
owners, have no right to it. They are, as we and you know, followers of Bin Saud and they live in
Zallaq in Bahrain.
If you give them Hawar, we will ask for compensation from you for our people here. This means
that you have no right to ask us not to interfere. We communicate with our brother Sheikhs of
Qatar in the eyes of Allah and His creatures [openly].
We see and understand everything and keep silent but without making any concession. We inform
you that we do not want you to take our side in the matter of Al-Udeid as it is the home of our
people, the Al-Manaseer. As for Dass and Delma, let whoever is entitled to them speak up.
We are not disagreeing with Bin Thani. Let bygones be bygones. It was the custom of our
ancestors to invade and their descendants should not be harmed by their deeds.
We demand that you keep out of our country's affairs, whether your intentions are good or evil. We
know how to protect them without you. We will not accept your communicating with us unless it is
only for greeting. If you need something let your man here, Bin Rizoogi, inform us. He is assigned
the task of taking this letter to you. May Allah's peace and blessing be upon Muslims only; one and
all99."
This communication is particularly important in demonstrating that Sheikh Shakhboot also rejected Bahrain's
support in its territorial differences with Qatar relating to Al-Udeid in exchange for Abu Dhabi support to
Bahrain on its claim to Hawar islands.
5.64 Another important communication which demonstrates Bahrain's failure to secure support from rulers in
the region for its claim to the Hawar islands is a letter of 13 December 1937 from Sheikh Shakhboot of Abu
Dhabi to Sheikh Saeed bin Maktoom of Dubai where he states:
"Well, you see the treachery of taking Hawar. Hawar is an absolute right of Bin Thani; we expect
this treachery from Al-Khalifah and the English. It is an absolute injustice. We fear they will turn
against us and that we will be taken off guard. The point in your message is fully understood and
will always be kept in mind. We hope nothing will upset us as the case with Bin Thani did. His
messenger came to us and we spoke with him and informed him [of what is going on]. He who is
in a weak position has got to make promises to the one who is in a stronger position. I believe the
meaning of this does not escape your notice. You see, his [Bin Thani] weakness is caused by those
who are beside and around him, and we cannot speak for fear of the messenger who is a bastard.
He is the source of our plight, the one-eyed man and nobody else. May Allah help us treat him in
the way he deserves100."
5.65 Closer to the time of the July 1939 decision, Belgrave made further and firmer efforts to secure the support
of the regional rulers. In a letter dated 20 July 1938 addressed to Khan Bahador Issa Abdul Lateef Al-Sarkal,
representative of the British government in Sharjah, Belgrave wrote:
"After inquiring about your health and your children's health, we order you to inform the Sheikhs
around you, in each of Sharjah, Dubai and Abu Dhabi, of the following:
First, to inform them, Bahrain, by the approval of the British State, is going to take the Island of
Hawar which belongs to Qatar. Second, we are going to give them a copy of the signed document concerning the issue when it is
disclosed after it is signed by the Government.
Third, we do not want anybody to interfere in the issue or to take Qatar's side until the entire issue
is revealed and we do not want anybody to support what Qatar says.
Fourth, the matter of taking Hawar from Qatar is over, and if anybody from any of these cited
countries gives witness, the ruler will be responsible for it, and nobody else, since the people of
these countries have huts in Hawar and they have been sold since olden times to the people of
Bahrain. Please inform the Sheikhs of all these matters. Give them our regards and relay to them
the Government's satisfaction with them101."
5.66 In another letter of 15 February 1939 addressed to Abdul Razag Rizoogi, a subordinate of the Political
Resident in the Trucial States, Belgrave stated:
"... The issue of Hawar does not concern the Rulers of the Trucial Coast, therefore it is better for
them to change the subject. But we inform you that even if Hawar belongs to Qatar and we don't
disagree with this, it is in the interests of the British State that it should belong to Bahrain. This is
what the honourable officials who preceded us decided. We carry out what we have been asked to
do, especially because to us the interests of Bahrain are superior to the interests of Qatar and its
Sheikhs.
It is in the month of July a royal decree will be issued to annex Hawar of Qatar to Bahrain. We
inform you that we have prepared everything that will guarantee the right of Bahrain to it,
including reports and help [other necessary things]. We ask you to give the rulers of the countries
our regards and the regards of Sheikh Hamad Bin Issa Al-Khalifah who expects them to stand with
him and does not forget the stands taken by the Sheikhs of Qatar with regard to their countries in
their [Qataris'] repeated attacks and the attacks on their relatives in Oman102."
5.67 In fact, in a letter of 2 December 1939, from Abdul -Aziz bin Abdul-Rahman Al-Faisal of Saudi Arabia
addressed to Sheikh Shakhboot on the subject of Bahrain's taking of Hawar, he had stated:
"As for the Qatari Sheikh's arguments. Allah knows that we are on his side, but we are still waiting
for his reply to Bahrain's claims. If Bahrain acts in this way it is [because] Bahrain is coerced and
not endowed with free will. O mare, join the horses [i.e. when in Rome, do as the Romans do]. I
was angry with Mohammed Bin Hazeem and with Ahmed Bin Rashid's sons regarding the
document which they had sent to the English. For they are my subjects in Al-Khubar and Al-
Dammam. They have made me a promise not to harm anybody and not to interfere in the matters
going on in Bahrain, if they want to be safe103."
It is significant to note that Mohammed bin Hazeem and Ahmed bin Rashid's sons were signatories to a
document forwarded by Belgrave in January 1939 to the British which was intended to establish that these
persons belonged to the Dawasir tribe, lived in Hawar and owed allegiance to Bahrain. Repudiations of
signatures to this document by a number of other signatories are referred to in detail in Chapter VI, below104.
5.68 It is also relevant to refer to yet another communication to the Ruler of Abu Dhabi, Sheikh Shakhboot bin
Sultan on 4 October 1940, addressed by his representative in Bahrain, where he states:
"You have been aware of the situation between Qatar and Bahrain, since you heard of the taking of
Hawar from Qatar, and [the fact that] the Adviser has paved the way for Bahrain into the Island
[Hawar] by settling the Al-Dowasir there, the reason for which was not understood by people at the
time.
We have been aware of the taking of Hawar since the issue of Al-Zakhnooniyyah; and since the
Al-Dowasir's departure to Al-Zallaq and the visit of Qatar's Adviser with Nassir Bin Atiyyah after
Al-Zubarah [battle]. But what keeps us worried is the news regarding the issue of the maritime
boundaries between Qatar and Bahrain: that many islands will be taken by Bahrain in the same
process. The fear is that we may suffer the same105."5.69 Finally, in a letter of 13 December 1940 addressed to Sheikh Shakhboot, Sheikh Saeed bin Maktoom of
Dubai confirmed that:
"With reference to your question about what we think of your reply to the Sheikh of Qatar, we
would like to inform you that we suggest you send a word to the Sheikh there that you, along with
Bin Maktoom, hold the same views, and that annexation (taking things by force) is something that
Allah and his creation would not approve of. We see that the issue of Hawar, ad-Dibal and Jaradah
is a plot the British are making to divide us106."
He further went on to say:
"We have known of Sheikh Bin Thani's arguments and I suggest that he submit his complaints to
King Bin Saud since the English are his friends. I also suggest that he write to the Sultan Master of
Oman since there has been an issue between them. We see that Bahrain has no rights whatsoever.
This is what we said in our letter to Sheikh Hamad Bin Issa. May you live long for your sincere
brother107."
Section 4. Qatar's Territorial Integrity and its Security
5.70 As shown in Chapter IV, most of the main Hawar island as well as many of the other islands in the group
fall within three nautical miles of the coast of Qatar108. It will also be seen fromMap No. 14 , facing page 250,
that after Qatar's extension of its territorial sea in 1992 up to 12 nautical miles, the entire group of the Hawar
islands falls within Qatar's territorial waters.
5.71 It is well known that the territorial sea had almost universally come to be regarded ever since the 17th
century as so essential to the security of the coastal State that it was accepted as part of its territory and subject
to its complete sovereign jurisdiction and control. This aspect is of particular importance in relation to the
security of Qatar in view of the close proximity of the Hawar islands to the mainland, and given Bahrain's
actions on the islands. A description is given in Appendix 2 of the fortifications constructed by Bahrain on
Hawar in recent years as well as its placing military arms and equipment there, posing a direct danger to the
security of the territory of Qatar. It is particularly important to draw attention to the fact that this threat to
Qatar's security is posed to its south-west region where its principal oil fields are located.
5.72 It seems pertinent to refer here to the very old and well known Anna case of 1805, dealing with the status
of certain alluvial islands formed off the coast of the Mississippi River and emphasising that the security of a
coastal State was a paramount consideration. In that case, it was stated:
"Consider what the consequence would be if lands of this description were not considered as
appendant to the mainland, and as comprised within the bounds of territory. If they do not belong
to the United States of America, any other power might occupy them; they might be embanked and
fortified. What a thorn would this be in the side of America! It is physically possible at least that
they might be so occupied by European nations, and then the command of the river would be no
longer in America but in such settlements. The possibility of such a consequence is enough to
expose the fallacy of any arguments that are addressed to shew, that these islands are not to be
considered as part of the territory of America. Whether they are composed of earth or solid rock,
will not vary the right of dominion, for the right of dominion does not depend upon the texture of
the soil109."
In an Indian appeal to the Privy Council of Great Britain, Lord Shaw cited with approval the above-mentioned
judgment of Lord Stowell in the Anna case, and stressed:
"The confusion that might be produced by leaving islands, emergent within the three-mile limit, to
be seized by the first comer is clear beyond controversy. He might be a foreign citizen: he would of
course hoist the flag of his own nation, and that nation might proceed to fortify the emergent
lands...10 ."
5.73 It is relevant to note that the verBritish officials (Fowle and Weightman) who recommended the decisionof 11 July 1939 on the Hawar islands were themselves fully aware of the rule relating to islands falling within
territorial waters. At about the same time as the decision about the Hawar islands was being made, Fowle and
Weightman proposed the application of the rule in determining the ownership of two islands claimed by both
111
Bahrain and Saudi Arabia. In his letter of 10 November 1938 , Fowle (the Political Resident) wrote that one
of the islands "is within 3 miles of the Umm Na'san island i.e. within the territorial waters of that island which
undoubtedly belongs to Bahrain". Accordingly, he and Weightman (the Political Agent in Bahrain) took the
view that the island belonged to Bahrain - a view that was supported on the same ground by the Foreign Office
112 113
in its letter of 20 December 1938 and by the India Office in its letter of 4 January 1939 .
5.74 It is therefore Qatar's submission that if the fact that most of the Hawar islands were located in Qatar's
territorial waters had been taken into account, the British decision would necessarily have been different.
Section 5. Conclusion
5.75 The above review of the records establishes that the integrity of the territory of Qatar, including the islands
of Hawar, was clearly accepted and recognised by the British and the Turks as also by rulers of other countries
in the region, and by Bahrain itself. In fact, until a short period before the "provisional" British decision of 1936
that the Hawar islands belonged to Bahrain, the British authorities in London and in India had consistently
recognised that the Hawar islands were part of Qatar. The British decision of 1939 is accordingly indefensible,
particularly when account is taken of the fact that the Hawar islands fall mostly within three nautical miles of
the Qatar mainland coast.
CHAPTER V THE TERRITORIAL INTEGRITY OF QATAR AND QATAR'S
SOVEREIGNTY OVER THE HAWAR ISLANDS 53
Section 1. Introduction 53
Section 2. Recognition of Territory 56
A. General 56
B. Specific Instances demonstrating Recognition 58
1. The Turkish presence, their survey maps, and British and
regional recognition 58
2. Bahraini Recognition of Qatar's Sovereignty over the
Hawar Islands 73
Section 3. The Subsequent Change in Bahrain's Position and its Efforts to secure
Support for its Claim 75
A. The Discovery of Oil and Bahrain's Initial Efforts to secure
Support for its Claim 75
B. Bahrain's Illegal Occupation of Hawar Island 76
C. Bahrain's continued Failure to secure Regional Support 78
Section 4. Qatar's Territorial Integrity and its Security 83
Section 5. Conclusion 86
1 Annex III.4, Vol. 6, p. 13.
2 Annex III.5, Vol. 6, p. 27.3 Annex III.6, Vol. 6, p. 31; emphasis added.
4 See, Annex III.297, Vol. 8, p. 487 and Lorimer, op. cit., Annex II.5, Vol. 3, pp. 294et seq.
5 See, Annexes II.17 and II.18, Vol. 5, pp. 33 and 37.
6 See, paras. 3.30 et seq, above.
7 See, Annex III.297, Vol. 8, p. 487 and Lorimer, op. cit., Annex II.5, Vol. 3, pp. 207-209.
8 See, paras. 3.11 et se., above.
9 See, Saldanha, op. cit, Annex II.7, Vol. 4, pp. 48-49.
10 See ,bid ., p. 49.
11 See , Annexes III.15, III.25 and III.26, Vol. 6, pp. 75, 125 and 129; and Annex III.128, Vol. 7, p. 141.
12 Annex III.310, Vol. 8, pp. 566-567. See, also, Annex III.307, Vol. 8, p. 550 reproducing an extract from
Oppenheim's International Law, stressing the importance of recognition in relation to consolidation of title over
a period of time, and stating, "One of the most important of the new factors is the attitude towards a given
situation of the international community, partly by the process of recognition...".
13 Annex III.304, Vol. 8, p. 531.
14 Annex III.290, Vol. 8, p. 454.
15 Annex III.294, Vol. 8, p. 472.
16 Annex III.295, Vol. 8, p. 481.
17 Annex III.8, Vol. 6, p. 41.
18 Annex III.10, Vol. 6, p. 51; see, also, Q.M.J.A., Annex I.11, Vol. II, p. 49, where the date was erroneously
translated as "November 1884". On the copy of the same map filed with the present Memorial, Qatar has
corrected this material error.
19 Annex III.7, Vol. 6, p. 37.
20 Annex III.9, Vol. 6, p. 45.
21 Annex III.14, Vol. 6, p. 69.
22 Annex III.19, Vol. 6, p. 93; emphasis added.
23 Annex III.15, Vol. 6, p. 75.
24 Annex III.16, Vol. 6, p. 81.
25 See , Q.M.J.A., Annex I.13, Vol. II, p. 59.
26 Annex III.305, Vol. 8, p. 535.
27 Annex III.13, Vol. 6, p. 65.
28 Annex III.17, Vol. 6, p. 85; emphasis added.29 Annex III.18, Vol. 6, p. 89.
30 Ibid.
31 Annex III.20, Vol. 6, p. 99.
32 Annex III.21, Vol. 6, p. 103.
33 Annex III.24, Vol. 6, p. 117. See, also B.C.J.A., Annex III.4, Vol. III, p. 15. The archaic spellings in the
original text correspond to the following present-day spellings: Guttur or Katr = Qatar; el Biddah or Biddah =
Bida, now known as Doha; Wahabee = Wahhabi; Aboothabee = Abu Dhabi; Uthoobees = Al-Utub; Odeyed =
Udeid.
34 See , Saldanha, op. ci., Annex II.7, Vol. 4, p. 53.
35 See , B.C.J.A., Vol. 3, Annexes III.2 and III.3.
36 See, Saldanha, op. ci., Annex II.7, Vol. 4, p. 53.
37 See, ibid., p. 54.
38 See, Lorimer, op. ci., Annex II.5, Vol. 3, p. 223.
39 See , paras. 3.47et seq. , above.
40 Saldanha, op. ci., Annex II.8, Vol. 4, p. 214.
41 See , Annex III.35, Vol. 6, p. 165.
42 Annex III.41, Vol. 6, p. 189.
43 Annex III.25, Vol. 6, p. 125.
44 Annex III.26, Vol. 6, p. 129.
45 Annex III.28, Vol. 6, p. 137.
46 Annex III.31, Vol. 6, p. 149.
47 Annex III.34, Vol. 6, p. 161.
48 Annexes III.29 and III.46, Vol. 6, pp. 141 and 209.
49 Annex III.37, Vol. 6, p. 173.
50 See, para. 5.46, below.
51 Lorimer, op. ci., Annex II.4, Vol. 3, pp. 120-121.
52 Lorimer, op. ci., Annex II.3, Vol. 3, p. 88.
53 Annex III.51, Vol. 6, p. 233.
54 Ibid.
55 Annex III.52, Vol. 6, p. 241.56 The reference clearly is to various communications addressed by Sheikh Zayed to the Turkish authorities.
57 Annex III.54, Vol. 6, p. 251; emphasis added.
58 See, paras. 6.178 et seq., below. See, also, paras. 6.180 et seq., below, describing other actions of exercise of
Qatari sovereignty over the Hawar islands including controlling access to the island for fishing (Annexes III.48,
III.49 and III.50, Vol. 6, pp. 221, 225 and 229), expelling those refusing to pay levies, granting recognition to
ownership of fishing traps (Annex III.40, Vol. 6, p. 185), pursuing and arranging arrests of criminals (Annex
III.39, Vol. 6, p. 181), Qatari officials raising a banner on the island (Annex III.36, Vol. 6, p. 169) and visits by
the Sheikh's representative or by the Sheikh himself to the island (Annexes III.36 and III.71, Vol. 6, pp. 169 and
375).
59 See, paras. 3.55et seq., above.See , also, the Map which was Annex V to the Convention and which is being
deposited with the Registry, pursuant to Article 50, paragraph 2 of the Rules of Court.
60 See , para. 3.57, above.
61 See, Annex III.296, Vol. 8, p. 483.
62 See , Annex III.61, Vol. 6, p. 291.
63 See , para. 3.61, above.
64 Annex III.63, Vol. 6, p. 301.
65 Annex III.38, Vol. 6, p. 177.
66 Annex III.45, Vol. 6, p. 205.See , also, the maps of the Persian Gulf published in the 1891, 1905 and 1914
editions of Stieler's Hand Atlas, Bartholomew's Library Reference Atlas of 1890, the English Imperial Atlas of
1891 and Philips International Atlas of 1931, all of which show the Qatar peninsula and the Hawar islands in
one colour and Bahrain in another. Copies of these maps have been deposited with the Registry in accordance
with Article 50, paragraph 2 of the Rules of Court.
67 See , para. 6.38, below.
68 Q.M.J.A., Annex I.18, Vol. II, p. 99.See, also, Q.M.J.A., Vol. I, p. 17. Reference is also invited to
para. 5.31, above, reproducing the description of Bahraini territory in a British memorandum of nearly 50 years
earlier (in 1874), confining such territory to three islands; and to para. 5.38 reproducing Lorimer's description
of Bahrain in 1908 as consisting of the same islands as mentioned in the 1928 report reproduced here. None of
these descriptions included the Hawar islands.
69 See, Annex III.84, Vol. 6, p. 431.
70 Annex III.89, Vol. 6, p. 453.
71 Annex III.90, Vol. 6, p. 457.See , also, para. 6.22, below.
72 See , para. 6.20, below.
73 Annex III.87, Vol. 6, p. 445.
74 Annex III.88, Vol. 6, p. 449.
75 Annex III.91, Vol. 6, p. 461.
76 See , paras. 6.18t seq., below.77 See , para. 6.26, below.
78 See, para. 5.41, above.
79 Annex III.49, Vol. 6, p. 225; emphasis added.
80 Annex III.48, Vol. 6, p. 221. See, also, para. 6.180, below.
81 See, Annex III.66, Vol. 6, p. 327.
82 Ibid.,p. 345.
83 See, paras. 6.16et seq., below.
84 Annex III.69, Vol. 6, p. 365; emphasis added.
85 Annex III.167, Vol. 7, p. 339; emphasis added.
86 See, Annex III.180, Vol. 7, p. 405; emphasis added.
87 See, Annex II.11, Vol. 4, pp. 307-308.
88 See , paras. 6.35t seq., below.
89 See, Annex III.103, Vol. 7, p. 15.
90 See, Annex III.106, Vol. 7, p. 27.
91 See, Belgrave's letter dated 22 December 1938 confirming "a military garrison was only posted there
recently" and also referring to the building of "fortifications" on the islands (Annex III.174, Vol. 7, p. 371).
also, the Political Agent Alban's note of 1941 to the Political Resident, Prior, where he draws attention to the
"'building' of a fort there" and "garrisoning it with police" (Annex III.228, Vol. 8, p. 123).
92 See, Annex III.150, Vol. 7, p. 253. It appears the Ruler of Qatar may in addition have been invoking the
more recent assurance of protection against aggression granted to him by the Political Resident's letter of
11 May 1935 subject to his granting the oil concession to APOC. See,Annex III.98, Vol. 6, p. 501.
93 See, Annex III.157, Vol. 7, p. 285.
94 Annex III.307, Vol. 8, pp. 545-546, and footnote 4 thereto and the cases there cited.
95 Ibid., footnote 4.
96 Annex III.76, Vol. 6, p. 397.
97 Annex III.95, Vol. 6, p. 489. Underlined as in the original.
98 Annex III.101, Vol. 7, p. 5.
99 Annex III.128, Vol. 7, p. 141.
100 Annex III.141, Vol. 7, p. 203; emphasis added.
101 Annex III.167, Vol. 7, p. 339.
102 Annex III.180, Vol. 7, p. 405; emphasis added.103 Annex III.216, Vol. 8, p. 73.
104 See, paras. 6.58 et seq., below.
105 Annex III.223, Vol. 8, p. 103; emphasis added.
106 Annex III.224, Vol. 8, p. 107.
107 Ibid.
108 See , para. 4.5, above andMap No. 5 , facing page 50.
109 Annex III.289, Vol. 8, p. 447.
110 Annex III.291, Vol. 8, p. 455.
111 Annex III.171, Vol. 7, p. 357.
112 Annex III.172, Vol. 7, p. 363.
113 Annex III.176, Vol. 7, p. 389. The letter is erroneously dated 1938. In the event, when the Saudi Arabian
Government pointed out that the island in question was somewhat more than 4 miles from Umm Na'san, the
view was abandoned both by the Political Resident and the India Office. See, Annex III.196, Vol. 7, p. 507 and
Annex III.205, Vol. 8, p. 23.
__________
CHAPTER VII
JANAN ISLAND
Section 1. The Geography
7.1 Janan is an island approximately 700 metres long and 175 metres wide situated off the southwestern tip of
the main Hawar island 1. The island is located 2.9 nautical miles or 5,360 metres from the nearest point on
Qatar's low water line and 17 nautical miles from the nearest point of Bahrain (Ras al Barr). Its coordinates are
as follows: 25°33'20" and 50°44'E. It is separated from Bahrain's main island and the coast of Saudi Arabia by
the relatively deep water of the Gulf of Salwah which is over 20 metres deep in places, much deeper than the
waters separating Janan and mainland Qatar at Ras Dukhan which do not exceed 1.5 metres at the lowest
astronomical tide. It is located 1.6 nautical miles or 2,890 metres from the main Hawar island. The coralline
area of the island as a whole is aligned (approximately NNE/SSW) with the general trend of Hawar island and
is separated from the latter by a very shallow sea of no more than approximately 2.0 metres at the lowest
astronomical tide.
7.2 At high tide Janan island appears as a long low reef rising above the sea, comprised of sand and coral. It is
2
"dry at all tides at its western end, and dries out a long way towards the mainland ". It has no water supply nor
any human settlements. A beacon has been constructed on the island, surmounted by a Qatari flag.
7.3 Janan has no geomorphological connections at all with Bahrain. On the other hand, in a slightly broader
context, Janan can be seen as a component of the offshore topography and the nearshore dynamic system
associated with the Qatar coast.
Section 2. Janan and Qatar's Territorial Integrity
7.4 It is the submission of the State of Qatar that the evidence described in Chapter V, in particular the Turkishsurvey maps (covering the territories of Qatar) and their acceptance by the British, as also references to Janan in
the letters of the Rulers of Abu Dhabi and the various maps, clearly establishes that Janan, as much as the
whole group of the Hawar islands, is a part of Qatar territory. Consistent with all this evidence, Lorimer, in his
geographical dictionary of the Gulf, also described Janan (as he does the Hawar islands) under the heading
"West side of Qatar" .3
Section 3. Bahrain's Claim is Unfounded
7.5 Most of the reasons given in this Memorial to show that the Hawar islands belong to Qatar also apply to
Janan. However, in this Section, it will be shown, by considering the reasons why Janan has become an issue of
dispute in the present proceedings, how some of the important reasons for which the British decided in 1947
that Janan belonged to Qatar also apply to the other islands in the Hawar group.
7.6 At the time when the British Government began its consideration of proposals to delimit the maritime
boundary (eventually notified in its decision of 23 December 1947), it was realised that the composition of the
group referred to as the Hawar islands had never been addressed when the decision was made on 11 July 1939
to the effect that these islands belonged to Bahrain. The letter containing this decision simply declares that "on
the subject of the ownership of the Hawar Islands ... His Majesty's Government ... have decided that these
islands belong to the State of Bahrain and not to the State of Qatar". It is significant to note therefore that the
British authorities at the time were ignorant of the area whose fate they were deciding. In fact, the decision
appears to have been made only on the basis of whatever evidence Bahrain tendere4 to prove its "occupation"
of the main Hawar island without any reference to the other islands or islets .
7.7 While analysing details of the area for the purpose of considering the maritime boundary, in his letter of 31
December 1946, the Political Agent stated that each of the islands had not been individually considered at the
5
time Hawar was allotted to Bahrain . Unspecified islands had been allotted to Bahrain simply because they
were "assumed" to form a group and so awarded to Bahrain together with the main Hawar island. He further
pointed out that the Bahrain Government had submitted:
"... at least three conflicting statements of the composition of the 'group'. In August, 1937, it was
stated that there were nine islands in the Hawar archipelago, in 1938 their list included Hawar and
16 islands or groups of islets, and in 1946 the list comprised Hawar and 17 ." 6
7.8 Even as late as 1946, officials in the British Government were still unclear about the composition and extent
of the Hawar group. Thus, the Secretary of State for India noticed the situation in his letter of 3 August 1946 to
the Political Resident when he said:
"... the exact extent of the Hawar Islands (i.e. the off-lying Islets and their territorial waters) never
seems to have been accurately defined 7."
Even Lorimer, according to the Political Agent:
"... did not know of a 'group', and only mentions four in the area individually ."
He further notes:
"It will be seen how vague the conception of the group is, and also how it has increased in size
with the growing importance of the area 9."
7.9 At the time of the consideration of delimitation of the maritime boundary, it was the 1938 list, sent with
Belgrave's "preliminary statement" of 29 May 1938 10, which came to be regarded as the specific list on the
basis of which the decision of 11 July 1939 was made. In his letter of 31 December 1946, the Political Agent
noted (in paragraph 9) that:
"The 1938 list was submitted in connection with the Hawar arbitration, and I propose to take that
as their considered claim, particularly as no explanations have ever been given for changes."He went on to state (in paragraph 14):
"Janan is shown on charts and plans as a pimple of an island, but, in fact, at low tide it shows a
long low reef rising above the sea. It is dry at all tides at its western end, and dries out a long way
towards the mainland. It has not been surveyed, but to the layman it appears to be part of the Ras
Awainat Ali feature, and completely separate from Hawar. The island is barren, but is used by
Bahrain fishermen, and I dare say by Qataris on occasions. It has neither water nor habitation, and
beyond the erection of a cairn by the Bahrain Government I know of no justification for their claim
to ownership. The erection of a cairn should, in my opinion, be given but little consideration since
it was not included in the Bahrain Government's 1938 list. Further the eastern half of the island lies
within Qatar territorial waters and south of the deep water channel which runs close to Janan and
not Hawar. For these reasons, I am of the opinion that it is not and should not be considered to be a
member of the 'group' and should be awarded to Qatar and included in [ sic] their side of the
dividing line11."
7.10 The Political Resident endorsed the above views in a letter of 18 January 1947 to the Secretary of State for
12
India . These views were eventually accepted, and hence in the letters of 23 December 1947 it was specifically
stated:
"It should be noted that Janan Island is not regarded as being included in the islands of the Hawar
13
group ."
Bahrain disputes this conclusion.
7.11 It is reiterated that Janan was in any event one of the islands clearly forming part of the territories of Qatar,
and some of the grounds on the basis of which the British made their decision regarding Janan applied equally
to the Hawar islands as a whole, in particular, that it was part of the Ras Awainat Ali feature and that a large
part of it is located within three nautical miles of the coast of Qatar (as is the main Hawar island) while some of
the other islands/islets are wholly within three miles of Qatar's mainland coast. Bahrain's claim to Janan (as also
to the Hawar islands) is therefore unfounded. Qatar accordingly submits that Bahrain has no sovereignty or
other territorial right over the island of Janan.
CHAPTER VII JANAN ISLAND 183
Section 1. The Geography 183
Section 2. Janan and Qatar's Territorial Integrity 183
Section 3. Bahrain's Claim is Unfounded 184
1 See ,ap No. 5 facing page 50.
2 Annex III.249, Vol. 8, p. 219. There is little available data on Janan island other than that provided by
satellite images and the Admiralty Chart (No. 2886).
3 Lorimer, op. ci., Annex II.4, Vol. 3, p. 121.
4 Except Bahrain's claim of having placed beacons on some of these. See , paras. 6.41et seq., above.
5 See , Annex III.249, Vol. 8, p. 219.
6 Ibid.See , also, Belgrave's letter of 28 April 1936 whereby Bahrain claimed "the Hawar group of islands" and
named 7 specific islands (including "Ginan") "as well as a number of small islets" (Annex III.103, Vol. 7, p.
15).
7 See Annex III.246, Vol. 8, p. 207.8 See Annex III.249, Vol. 8, p. 219.
9 Ibid.
10 See , paras. 6.149et se.
11 Ibid.
12 Annex III.250, Vol. 8, p. 233.
13 Annexes III.256 and III.257, Vol. 8, pp. 265 and 269.
__________
CHAPTER VIII
THE QUESTION OF ZUBARAH
8.1 Zubarah is one of the subject matters of the dispute which fall within the jurisdiction of the Court in the
present proceedings. In the absence of any knowledge of the Bahraini case on Zubarah, Qatar has prepared this
Chapter of its Memorial on the basis of its understanding that Bahrain defines its claim concerning Zubarah as a
claim of sovereignty .
Section 1. Presentation of Zubarah
8.2 Zubarah is located on the northwestern coast of Qatar at the co-ordinates of latitude 26° North and longitude
51°1' East. As may be seen from Map No. 10 facing this page, Zubarah was a fortified town. The most ancient
part of the town was on the coast itself with a surrounding wall and towers along this wall. Another ancient
part, built outside this first wall, was also surrounded by a wall along which were guard towers at intervals. The
town covered an area of approximately 60 hectares. It was about 1500 metres long and about 400 metres wide.
On the northeastern side of the town, houses were also built outside the second wall.
8.3 In the 18th century, sections of the Al-Utub tribe settled outside the town of Zubarah and erected a fort
called Murair about 1500 metres from the outside wall. Later, two walls were built apparently with a view to
connecting the fort to the town. However, there is no evidence that they did actually reach the outside wall of
the town or of the fort. The sabkha between those two walls was uninhabited. A channel 1250 metres long also
led from the sea to the vicinity of the fort, and was used for the transit of small boats. During the period from
the early 17th century to the 18th century, Zubarah became one of the main merchant towns in the Gulf. Its
prosperity came mostly from the trade in natural pearls fished in the Gulf, which was then the main economic
2
activity in the area, and from general trade between Europe and India . However, the town ceased to exist as a
populated place in the 19th century.
8.4 Today, Zubarah is an archaeological site, having the legal status of public property owned by the State of
3
Qatar. The site is protected under Law No. 2 of 1980 relating to Antiquities .
Section 2. Bahrain has no Sovereignty over Zubarah
A. Introduction
8.5 From Bahrain's Counter-Memorial in the jurisdiction and admissibility phase of this Case, it appears that
Bahrain's claim over Zubarah rests on the fact that certain members of the Al-Khalifah family allegedly resided
at Zubarah in the 18th century and helped develop the place into a well-known trading centre . Bahrain also
asserts that the Al-Khalifah retained certain ties with Zubarah subsequent to their departure from Zubarah in
1783, in particular retaining the allegiance of the Naim tribesmen in the area, maintaining homes, preservingthe mosques, grazing cattle, and regularly visiting for these purposes and for hunting. Bahrain recognises that
the intensity of these alleged activities "waned with time", but argues that "there was never any formal
5
abandonment of rights in this area by the Al-Khalifa family ". According to Bahrain, as late as 1937, one
Rashid bin Mohamed al Jabor, who Bahrain alleges was the Chief of the section of the Naim tribe resident in
the area, confirmed to the Ruler of Bahrain that the Naim were Bahraini subjects and that Zubarah was under
the control of Bahrain. Finally, Bahrain alleges that Qatar forcibly took control of Zubarah in 1937 and that
thereafter Zubarah became an issue in dispute between the Parties.
8.6 Assuming that these allegations represent the legal and factual basis for Bahrain's claim, Qatar will show in
this Section that Bahrain's factual allegations are inaccurate on every point and that, in any event, Bahrain does
not have any basis, factual or legal, for a claim to sovereignty over Zubarah.
B. The Factual Background
1. The Early History of Zubarah
8.7 There is evidence to show that a town existed at Zubarah on the northwestern coast of the Qatar peninsula
from early Islamic times , and that at least by the beginning of the 17th century it was already a fortified town,
with its own Sheikh and administration. Thus, when in April 1612 members of the Al-Utub tribe from the
centre of the Arabian peninsula attempted to enter Zubarah, Sheikh Sultan bin Ali Al-Muraikhi Al-Zubari Al-
Qatari issued an order to the guard of the gate, according to which he was to prohibit the entry of strangers, in
particular Al-Utub . If such strangers entered Zubarah, they had to be removed and put outside the walls,
together with the persons who had received them. Further information may be derived from an account written
by Hamad bin Nayem bin Sultan Al-Muraikhi Al-Zubari Al-Qatari in April 1638 according to which Zubarah
8
was at the time a prosperous settlement of 150 houses with 700 inhabitants, owning boats and livestock . The
same account also records that a levy was imposed, and that the inhabitants were the "Naim, Musallem, Twar,
Hawajer, the Beduins, Lisaud, freemen and slaves".
8.8 These two documents are of great interest in that they show that by the beginning of the 17th century,
Zubarah was a settled and prosperous walled town, and thus that, contrary to what has been written by western
and Bahraini authors, it was not settled and developed only after 1766 by the Al-Utub tribe, but that the Al-
Utub were regarded as strangers by the original Qatari tribes who had settled it.
8.9 In 1766 two sections of the Al-Utub tribe - the Bin Khalifah and Al-Jalahma - left Kuwait for Bahrain then
9
under Persian occupation, and thence made their way to Zubarah . The local sheikhs laid down a condition for
their settlement: if they were to trade in Zubarah, they would have to pay the usual taxes. The Al-Utub refused
this condition and in 1768 built the fort known as Murair at some distance outside the outer wall of Zubarah . 10
8.10 It is from this period of their presence in the fort of Murair outside Zubarah that the Bahraini claim to
Zubarah apparently stems. However, this presence only lasted until 1783, when sections of the Al-Utub,
together with Qatari tribes, retaliated against Persian attacks on Zubarah from Bahrain and finally took control
of that island. Following these events, the Al-Utub moved from Murair to Bahrain . 11
12
8.11 Zubarah was burnt by the Imam of Muscat in 1811 .
2. 1867 - 1937
8.12 As described in Chapter III above, following the violent skirmishes between Bahraini and Qatari tribes in
1867-1868 the British took action through the Agreements of 1868 to bind the Chiefs of Bahrain and Qatar to
preserve the maritime peace, with the sea acting as a buffer between them. From the time of these agreements,
the British were repeatedly prepared to recognise that Qatar was effectively separated from Bahrain, and that
Zubarah was a part of Qatar.
8.13 The same recognition of the separation of Qatar and Bahrain was confirmed in the same period both by
Turkish authorities in the region and by other regional powers. The numerous Turkish surveys, maps and
documents prepared from 1867 on, and referred to in Chapter V, confirm that Zubarah was regarded as part ofQatar. In addition, Sheikh Zayed bin Khalifah of Abu Dhabi repeatedly confirmed to the Turkish authorities, in
response to their enquiries about the extent of the territory of Qatar, that Zubarah was part of Qatar. In fact, as
early as June 1870, i.e., even before the Turkish arrival in Qatar, Sheikh Zayed wrote and confirmed to the
Turkish Vali of Hasa as follows:
"... Zubarah is one of the meadows of Qatar. We have those who would vow to you that Bin
Khalifah's people came there when it was already thickly populated. The Khalifah people did not
urbanise it and did not set up any buildings there. Pay no heed to what opportunists say, it is
useless. On the other hand if Qatar owns it, we cannot deny that. The enmity between us and Bin
13
Thani does not entitle us to deny his rights in the seas of his country and its islands ."
8.14 Subsequently, the Turkish Vali of Hasa, in a communication addressed to the Ruler of Bahrain, Sheikh
Issa, in October 1871, warned Bahrain against any interference in Zubarah, stating:
"As you know, you have no rights whatsoever to Zubarah, otherwise we shall do whatever is
necessary. Therefore, take your hands off and stop your people from making claims, deceit and
looting. According to what has been proved to us, Zubarah and its surrounding area and the islands
of Qatar opposite your country are all clearly and absolutely the property of Qatar ."
8.15 The British did not seek to interfere with or prevent the establishment of a Turkish presence in Qatar from
1871 onwards, nor did they seek to interfere when Turkish or Qatari authorities sought to exercise control over
Zubarah. On the other hand, they were repeatedly concerned to ensure that Bahrain did not seek to interfere in
the mainland and to ensure the respect of the maritime peace between Qatar and Bahrain.
8.16 It was in this period - following the arrival of the Turks in Qatar - that a Bahraini claim concerning
Zubarah was first advanced. Thus, in August 1873, it came to be reported that a Turkish detachment of some
100 men had embarked at Katif for "Zobarah on the mainland ". The Chief of Bahrain stated to the British at
this time that he claimed the Naim tribe living at Zubarah were his subjects . The British rejected Bahrain's
allegations and pointed out:
"... that though the matter of sovereignty over Katar had apparently never been formally decided,
still the Turkish authorities in Nejd had established an influence over the Katar Coast as far as the
Odeid boundary ."17
8.17 The Political Resident also expressed the view that the "Bahrein Chief had not the power, if he wished, to
protect tribes residing in Katar, and that he could not expect Government to interfere where the rights were
involved in uncertainty ". The Bahrain Chief was therefore advised to continue to remain strictly neutral and
19
to "keep aloof from all complications on the mainland with the Turks, Wahabis, etc. ".
8.18 In 1874, Nasir bin Mubarak, the head of a rival branch of the family of the Ruler of Bahrain, went into
exile in Qatar, with members of his tribe, the Beni Hajir, and appeared to be planning to attack Bahrain from
the west coast of Qatar. The Ruler of Bahrain feared that Nasir might decide first to attack Zubarah and the
members of the Naim tribe living there. Reporting to the British Government, the Political Resident in the
Persian Gulf wrote on this subject:
"The Chief of Bahrein being apprehensive of an attack on his allies, and as he considers, subjects,
who hold the fort of Zobarah, asked whether he would be allowed to reinforce the garrison of that
place, which he considered a dependency of Bahrein. Sheikh Esau necessarily relies much on the
Naim tribe of Zobarah, who came to his aid in his late dangers, and if he were to be deprived of
their support, his means of defence would be greatly weakened. A refusal on his part to aid the
Naim garrison of Zobarah if attacked by other Arab tribes of Katar would undoubtedly lose the
friendship of that tribe for Sheikh Esau ."
8.19 The Political Resident was informed by Government that:
"The Governo r-General in Council observes that by the correspondence marginally noted, it was shown that the Chief of Bahrein had no possessions on the mainland of Katar, and that his rights
there were of a very uncertain character...
His Excellency in Council, therefore, considers that the Chief of Bahrein ... should be advised to
rely for support on the assistance of the British Government, which will, if necessary, be given him
either to repel attacks by sea or to frustrate a threatening movement from the mainland.
It should be clearly pointed out to the Chief that so long as he adheres to his treaty obligations, the
British Government will protect him; but if such protection is to be accorded to him, he must not be
the aggressor or undertake measures, which will involve him in complications and which are
considered inadvisable by the British Government ." 21
22
8.20 The Political Resident subsequently wrote to the Ruler of Bahrain informing him of this view . The
British thus refused to recognise that Bahrain had any rights in Zubarah. Clearly, this approach was consistent
with the 1868 Agreements which recognised the separation of Bahrain from the Qatar mainland by a maritime
buffer zone. In April 1875, the Government of India rebuked the Chief of Bahrain once again and noted with:
"... regret the continued disposition of the Shaikh to entangle himself in the affairs of the continent
and ordered that he should be made to understand that, if he persisted in a course opposed to their
advice and thereby became involved in complications upon the mainland, the consequences would
be upon himself, and they would hold themselves free to take such measures with respect to him as
they might think necessary ."3
Again, such British statements were consistent with the terms of the 1868 Agreements which had precisely
sought to ensure that there was no resumption of hostilities across the seas between Qatar and Bahrain.
8.21 The British confirmed their attitude to Zubarah in 1878, following piracies and attacks on other tribes by
the inhabitants of Zubarah in which several people were killed. The Political Resident was directed by the
Government of India to demand of the Turkish authorities that the inhabitants of Zubarah be punished. While
this was a clear recognition by the British of Turkish authority over the mainland (including Zubarah), it was in
fact Sheikh Jassim bin Thani - who continued to be the most influential figure in the peninsula - who took steps
to control Zubarah. During the ensuing conflict, there was further destruction of Zubarah and the Naim (some
500 tribesmen) were besieged in the fort of Murair. They eventually surrendered and were removed to Doha,
"and Zubarah as a populated place ceased to exist ".4
8.22 During this conflict, Sheikh Issa, Ruler of Bahrain, had requested that some action be taken by the British
in favour of the Naim, but the British refused. Bahrain's concern appears to have been that Zubarah might be
used by Sheikh Jassim as a staging-post for attacks on Bahrain and thus represented a threat to Bahrain's
security. Apparently both the British and the Sheikh of Bahrain took the view that the best solution to this
problem would be the permanent occupation of the place by the Turks. 25 This proposal was not put into effect
and Zubarah remained in ruins. However, Bahrain's support for such a proposal was clearly inconsistent with
any claim of sovereignty.
8.23 While the British entered into forms of exclusive agreements with Bahrain in 1880 and 1892, given the
events of 1873-1875 and 1878, these agreements clearly only applied to Bahrain, and did not include any part
of the peninsula of Qatar. Indeed, part of the purpose of these agreements was to protect Bahrain from other
26
influences in the region, such as Persia, the Turks and the Wahhabis .
8.24 The British position was again made clear in 1895 when it was feared that Sheikh Jassim bin Thani
intended to invade Bahrain from Zubarah with Turkish support and the support of the Al bin Ali tribe, a tribe
hostile to the Ruler of Bahrain. The British intervened to destroy the alleged invasion fleet that had been
27
gathered, and thus to ensure the maritime peace between and separation of Qatar and Bahrain . As the British
later noted, this action "shows clearly that at that date the Bahrain Government, far from having any control
over Zubarah, were actually threatened by invasion from that place ".28
8.25 Throu ghout this same period, the Turks also took the view that Zubarah formed part of Qatar and thatQatar - under the control of Sheikh Jassim bin Thani - came within the Ottoman area of influence. This is made
clear in an Annex relating to Qatar to an Aide Mémoire dated 15 April 1912 sent by Tewfik Pasha to the British
in the context of the negotiation of the Anglo-Turkish treaty concerning the Persian Gulf area, a treaty
eventually signed on 29 July 1913. 29 It is noted in the Annex to the Aide Mémoire for example that the Turks
had informed the British in 1891 that Zubarah came within the Vilayat of Basrah and had for many years been
governed by Turkish appointed kaimakams and mudirs. It is also noted that the British had not protested when
30
informed of these facts .
8.26 The same Aide-Mémoire also notes that the Political Agent in Bahrain had requested in 1911 to be
allowed to settle some Bahrainis at the site of Zubarah in exchange for payment of an annual sum of 10,000
31
rupees, but that this request had been turned down by Sheikh Jassim . Again, such a request could only have
been made on the assumption that Qatar had full and effective control over Zubarah.
8.27 The Anglo-Turkish Treaties of 29 July 1913 and of 9 March 1914 discussed in Chapter III above did not
explicitly mention Zubarah. However, Article 11 of the 1913 Treaty provided that "the peninsula [of Qatar] ...
will be governed as in the past by the shaykh Jasim-bin-Sami and his successors", and contained a declaration
by the British Government that it would "not allow the interference of the shaykh of Bahrayn in the internal
affairs of al-Qatar, his endangering the autonomy of that area or his annexing it" 32. As explained further in
Chapters III and V, it was clear that for both the British and the Turks the reference to the Qatar peninsula
meant the whole peninsula - including Zubarah.
8.28 This position was further confirmed when following the departure of the Turks, the British concluded the
1916 Treaty with the Ruler of Qatar . Although the extent of Qatari territory was not explicitly defined in the
Treaty, the British had obviously for many years prior to 1916 clearly recognised that Zubarah was part of
Qatar.
8.29 This understanding of the Treaty is confirmed by subsequent events. Thus, when in 1919 the Ruler of
Bahrain made a request to the British to be allowed to occupy Zubarah and develop a port there, this was
rejected by the British.34Further more specific confirmation of the application of the 1916 Treaty to Zubarah
occurred as a result of the negotiations for a grant of an oil concession over his territory by the Ruler of Qatar.
The 1916 Treaty provided that the Ruler of Qatar would not grant oil concessions over his territory without
British consent. A concession was finally signed in 1935 which clearly included the whole of the peninsula,
including Zubarah, as also confirmed by the map attached to the concession . 35
8.30 It may also be noted here that the discussions relating to the granting and then to the extension of Bahrain's
petroleum concession in the 1920s and 1930s also show that Bahrain did not consider Zubarah as being part of
its territory to be covered by the concession .
3. The Events of 1937
8.31 Despite Bahrain's recognition during the discussions relating to the granting of its oil concession in the
1920s and 1930s that it had no claim of sovereignty over Zubarah, there is evidence that at least by 1936
Bahrain was seeking to manufacture a basis for such a claim.
8.32 In the 1930s, Qatar was increasingly concerned to protect the security of its borders and control imports
through the imposition of customs duties. To this end, in 1937 the Ruler of Qatar took steps to impose such
controls against certain dissenting members of the Naim tribe who were obstructing such efforts . 37
8.33 This obstruction of the Ruler of Qatar's efforts was being led by one Rashid bin Jabor, who had influence
over one section of the Al-Naim tribe. 38 It is apparent, however, that Rashid bin Jabor's actions were being
controlled at least in part by Bahrain, and that Belgrave, in particular, was using him to seek to obtain (or even
manufacture) evidence of alleged Bahraini rights over Zubarah. The similarity between the activities of
Belgrave in advancing on behalf of Bahrain a claim over Zubarah at this time with his earlier actions with
regard to Hawar will be apparent.
8.34 From a letter of 5 May 1936 from Rashid bin Jabor to Belgrave, it seems that the former was thoroughlyunhappy with the task he had been assigned and the way he was treated, for he wrote to Belgrave:
"O Adviser, things have gone too far. I am not so mean as to be sworn at by you all the time. I have
already sent a messenger to the Sheikh about Bin Kanoo's issue with me. I have dissociated myself
from my people and abandoned my acquaintances. My closest friend has become my enemy
because of my love for you and my affection for the Sheikhs to the extent that they resent
mentioning my name in Abdullah Bin Jassim's Majlis ... I have nothing to do with your affairs and
39
I do not want letters from you ."
8.35 However, Belgrave appears to have overcome Rashid bin Jabor's reluctance with promises on behalf of
Bahrain's Ruler of benefits to come and wrote to him on 12 February 1937 to say:
"We have come to an agreement with Sheikh Hamad Bin Issa regarding your stay in Zubarah. This
is for your own good and to show your allegiance to your sheikh, the Sheikh of Bahrain. Zubarah,
as Sheikh Hamad has said, is yours. You have authority over Bin Khalifah's properties. I know
better what is good for you and for your people and prior to that comes the interest of Sheikh
Hamad Bin Issa. You represent us in Zubarah and its surroundings.
This deed is yours and you rule according to the decree of Sheikh Hamad Bin Issa, the Sheikh of
40
Bahrain ."
8.36 Pursuant to Belgrave's plan, Yousuf Al -Shirawi of Belgrave's office sent a circular (undated) through
Rashid bin Jabor as follows:
"This is what the Adviser emphasises according to the news he has received: whoever inhabits the
lands of Al-Zubarah, Fraiha, Ar-rubayqah, Ain Mohammed, Musaykah and Al-Mhaimat ... is a
citizen of Bin Khalifah, Sheikh of Bahrain. He [each citizen] has to fingerprint the paper which is
with Sheikh Bin Jabor. Whoever disobeys the order shall leave [the lands], together with his
children and his property; and whoever puts his fingerprint will be given a present and a monthly
payment from the Sheikhs of Bahrain.
41
This is to be made public and to be implemented urgently ."
8.37 But Rashid bin Jabor obviously found the assignment very difficult and wrote to Belgrave on 14 April
1937 stating:
"You see, Adviser, I do not think we will fingerprint the people whom you have asked for, for to
speak is simple and to act is impossible. How can I get you six hundred men to fingerprint unless
you send some more people from there [Bahrain] to add to those we have? I am, by God, baffled
by these orders and I do not know what to do. We are urgently awaiting a reply from you ."42
8.38 However, Belgrave apparently persisted with the effort and wrote again to Rashid bin Jabor prescribing
the form in which the affidavit was to be procured, as follows:
"We, the undersigned, the inhabitants within the borders of Al-Zubarah for more than one hundred
years, state that we follow the rulers of Bahrain, the Al-Khalifah.
We have never been under the authority of any other ruler. As for the borders of Al-Zubarah, they
are from Ras Ushayriq, Ar-rubayqah, Umm-Alma, An-na'man, Hulwan, Lisha, Musaykah, Al-
Thaqab, Ras Al-Hiddiyya, and Al-Faraihat to Zubarah. [The lands within] the aforementioned
boundaries have been the property of the rulers of Bahrain, the Al-Khalifah, from time
immemorial ."3
And at the bottom of the form, Belgrave noted:
"P.S. Nothing else is required. Have the people fingerprinted without their names. Everyone is to fingerprint above and below.
We need a lot of fingerprints, even those of your slaves.
This and greetings ."
8.39 By early 1937, however, the Ruler of Qatar was aware that a part of the Naim tribe under Rashid bin Jabor
- who by this time was in the official pay of the Ruler of Bahrain - were established in towns north of Zubarah
and appeared to be engaged in smuggling from Bahrain into Qatar. Accordingly, in March 1937 the Ruler of
Qatar went to Zubarah and affirmed his intention to impose customs duties on all the Naim and to stop the
45
smuggling. A party of the Ruler's men were obstructed in their efforts to achieve this by Rashid bin Jabor .
Following inquiries about these disturbances from the British - who were informed of them by the Ruler of
Bahrain - the Ruler of Qatar replied on 23 April 1937 pointing out that these were purely internal matters, that
Rashid bin Jabor was a Qatari subject, and that the Ruler of Qatar intended to bring an end to these
disturbances 46. However, on 28 April 1937, the British requested the two Rulers not to aggravate the situation
47
further while they examined the question of Zubarah .
8.40 In a comprehensive review of Bahrain's claims in relation to Zubarah submitted on 5 May 1937 to the
Secretary of State for India, the Political Resident (Fowle) recognised that juridically a Bahraini claim to
Zubarah must fail, noting also that the British Government's endorsement of the Qatar Oil Concession seemed
to commit the Government "to the recognition of the ownership of Zubarah by the Shaikh of Qatar ". 48
Nevertheless, the British took the provisional view that - for political reasons - it would be better if an amicable
49
solution could be reached between the Rulers .
8.41 In this regard, proposals were put forward by Bahrain and Qatar in an effort to solve the problem. The
Ruler of Bahrain was prepared to agree not to press his claim to Zubarah or to the Naim tribe, provided inter
alia Zubarah was not developed in any way by Qatar. It was confirmed, however, that this would not affect any
50
work carried out by the oil company under Qatar's oil concession . Further proposals were exchanged, and
meetings took place, but no solution was reached . It is interesting to note that in May 1937, Belgrave
suggested to the Political Agent in Bahrain that the "Na'im should be given the right to decide by plebiscite as
52
to which ruler they desire to serve ". This proposal was clearly consistent with Belgrave's scheme to obtain
fingerprinted affidavits of allegiance to the Ruler of Bahrain from members of the Naim tribe through Rashid
bin Jabor. Indeed, in June 1937 Belgrave forwarded to the Political Agent in Bahrain copies of certain
53
fingerprinted affidavits which used the wording earlier provided by Belgrave to Rashid bin Jabor .
8.42 In June 1937, negotiations were broken off. The Ruler of Qatar thereafter decided in July 1937 to impose
his authority over the dissenting Naim under Rashid bin Jabor by force and put an end himself to the smuggling
and other activities occurring. When the Ruler of Bahrain requested the British to intervene to stop the Ruler of
54
Qatar, the British refused . Writing on 4 July to the Secretary of State for India, the Political Resident noted
that the Ruler of Qatar's claim to Zubarah was good and in fact went back to 1875, and that the British therefore
could not intervene on behalf of the Naim at Zubarah . On 15 July, the Secretary of State for India concurred
in this view, even pointing out that the Ruler of Bahrain should not be given the impression that the British
recognised that he had even "a prima facie claim" to Zubarah .56
57
8.43 In fact by 5 July the dissenting Naim had surrendered . Moreover, in a meeting on 13 July between the
Political Agent in Bahrain, the Ruler of Bahrain and Rashid bin Jabor, the latter announced that he had:
"... entered into an agreement with the Ruler of Qatar and that he had agreed to obey the laws of
58
Qatar while he resided in Qatar ."
When Rashid bin Jabor nevertheless went on in the same meeting to protest against the Ruler of Qatar's actions,
he was informed by the Political Agent that it was not British Government policy to interfere in the internal
affairs of the Sheikhdoms and that if he had any complaints to make, he should make them to the Ruler of
59
Qatar, but that if he did not want to obey he could always leave Qatar .
4. 1937 to the Present8.44 Following the events of 1937, relationships between Qatar and Bahrain soured. The Ruler of Bahrain
imposed restrictions on the circulation of persons and goods between Qatar and Bahrain, with Qatar taking
60
similar actions . Because of Qatar's concerns about the continuing infiltration of persons from Bahrain into
Qatar, in particular in the area of Zubarah, Qatar built a small guard post there . When the Ruler of Bahrain
62
protested to the British at this action, the British decided not even to reply .
8.45 Nevertheless, the British were prepared to intervene in the ensuing years in order to attempt to reach some
arrangement concerning Zubarah which would bring about a restoration of friendly relations between Qatar and
63
Bahrain. Throughout 1943 and 1944, the British engaged in extensive efforts to this end . While the precise
nature of what Bahrain wanted remained unclear and varied in almost every discussion the British held with
Bahrain's representatives, it is significant that neither the British nor Qatar ever envisaged any kind of
arrangement that would call into question Qatar's sovereignty over Zubarah . The most that was envisaged
was some kind of status quo agreement whereby Zubarah would not be developed by Qatar (however, without
prejudice to any oil company activities). The Ruler of Qatar made it crystal clear that he refused to concede that
the Ruler of Bahrain possessed any property in his country . 65
8.46 When the British succeeded in their efforts to bring about a limited arrangement between the Rulers of
Qatar and Bahrain in June 1944, the agreement only provided that:
"The Ruler of Bahrain and Ruler of Qatar agree to the restoration of friendly relations between
them as they were in the past. The Ruler of Qatar undertakes that Zubara will remain without
anything being done in it which did not exist in the past. This is from consideration and reverence
to Al Khalifah. The Ruler of Bahrain, also, on his part undertakes not to do anything that might
harm the interest of the Ruler of Qatar. This agreement does not affect the agreement with the Oil
Company operating in Qatar whose rights are protected ." 66
It will be seen that none of the provisions of this agreement amounted to the grant of any rights by the Ruler of
Qatar to the Ruler of Bahrain. All that the Ruler of Qatar agreed to was "that Zubarah will remain without
anything being done in it which did not exist in the past". In other words, he was content to leave Zubarah as
the archaeological site that it has continued to be until today. It will be seen that the provision in the agreement
according full protection to the rights of Qatar's oil concessionaire at Zubarah constitutes a clear
acknowledgment by Bahrain of Qatar's sovereignty over Zubarah.
8.47 In the following years, Bahrain nevertheless continued to make further complaints about Zubarah. In
general, these complaints concerned claims of a private nature at Zubarah - property rights to certain graves,
rights of visit, etc.. Bahrain from time to time disclaimed sovereignty over Zubarah and in any event the British
remained firm in their opposition to any such claim.
8.48 Thus, in a letter of 11 July 1946 from the Political Agent in Bahrain to the Political Resident, Colonel Hay,
67
it was recorded that Qatar's sovereignty over Zubarah was officially recognised by the British in 1937 .
8.49 In the same year, the Ruler of Bahrain appeared to recognise that his claim to Zubarah was more a matter
of prestige than of anything else. In a note of 4 September 1946, which the Political Resident sent to the
Political Agent in Bahrain, he referred to a conversation with the Ruler of Bahrain and recorded:
"If I understood him rightly he stated that he did not claim sovereignty over Zubarah but only
wanted his grass and water. When I remarked that there was no profit for him in Zubarah he replied
that it was not a matter of profit as he knew thatthere was nothing of value in Zubarah but one of
68
prestige ."
In another note dated 1 October 1946 by the Political Resident, Colonel Hay, it was recorded that the Ruler of
Bahrain had been even more explicit, declaring that he did not claim sovereignty over Zubarah . 69
8.50 On 25 January 1950, the Political Agent in Bahrain confirmed in a letter to the Ruler of Qatar that:
"His Hi ghness the Shaikh of Bahrain does not claim sovereignty over Zubarah or any other part of 70
Qatar territory, nor does he claim rights to oil or any other material therein ."
8.51 In 1950 and 1954, following extensive discussions, the British sought to bring about new arrangements
between the two Rulers with regard to Zubarah whereby, while Qatar's sovereignty was preserved, Qatar would
agree to allow the Ruler of Bahrain to exercise certain limited rights at Zubarah (such as rights of visit) while
his private property claim would be submitted to a Qatari court for decision. However, none of these
71
arrangements proved workable and aspects of them were objected to by both Rulers .
8.52 The Ruler of Bahrain thereupon unilaterally requested the British for a final decision as to their attitude to
Zubarah. In a letter dated 13 June 1957 from the Political Resident to the British Foreign Secretary, Mr. Selwyn
Lloyd, on this subject, it was recorded:
"Successive Political Residents and Political Agents have attempted to compose this dispute, but
without success, faced as they were by the growing intransigence of the Qataris on the one hand
and by the obstinacy, based on a feeling of personal humiliation, on the part of Shaikh Salman. I
should note here that Shaikh Salman's feelings about Zubarah do not appear to be shared by anyone
else in Bahrain.
...
It is clear thatt no time have the Government of India or H.M.G. in the United Kingdom given the
Rulers of Bahrain any encouragement or support in their claim to exercise sovereignty over
Zubarah, and the present Ruler of Bahrain has admitted that he has no such right though he claims
72
private ownership of the ruins there ."
8.53 Upon instructions from London, the Political Resident then wrote to the Ruler of Bahrain on 10 August
1957 73 and reminded him that "Her Majesty's Government have never supported any claim by Bahrain to
sovereignty in Zubarah" and informed him that the arrangement for special facilities (for example, for rights of
visit) negotiated in the past with the Ruler of Qatar could not be continued and that, furthermore, considerations
of Qatar's security required stricter entry arrangements. He concluded:
"It is therefore necessary that for the future Bahrainis wishing to enter Qatar should do so through
the normal ports of entry and be in possession of the normal passports or travel documents.
...
It follows from what I have said above that the Ruler of Qatar must be free to do what is necessary
to control the entry of all people into Qatar, and that no special rights can be claimed on behalf of
any particular group of people there ."4
8.54 When the Ruler of Bahrain sought to revive his complaints concerning Zubarah in 1961 , the Political
Agent in Bahrain responded simply by reiterating the views expressed in the Political Resident's letter of 10
August 1957 - that Bahrain had no sovereignty or other rights at Zubarah. In particular, he noted that Her
Majesty's Government "... do not recognise that any such claim to sovereignty, either immediately prior to the
76
Agreement of June 17, 1944, or at the present time, has been established ".
8.55 No further claim concerning Zubarah was alleged by Bahrain until the meetings of the Tripartite
Committee in 1988.
Section 3. Conclusion
8.56 In the preceding sections, Qatar has dealt with the question of Zubarah only in terms of sovereignty, since
it understands that once Bahrain states its claim, it will define it as one of sovereignty.
8.57 Qatar has shown that there is however no factual basis for a claim of sovereignty by Bahrain. As far as
Qatar can ascertain at present, it appears that any such claim would be based on the alleged residence in anddevelopment of Zubarah by the Bin Khalifah section of the Al-Utub tribe in the 18th century, their retention of
ties with Zubarah after their departure in 1783 from Bahrain, and the allegation that Qatar forcibly took control
of the town in 1937. But as Qatar has demonstrated, Zubarah was already a flourishing town by the beginning
of the 17th century, long before the Bin Khalifah arrived, and the Bin Khalifah were only resident in an area
outside Zubarah - Murair - for a brief period of about 20 years.
8.58 By the time of the 1868 agreements which formally recognised the separation between Qatar and Bahrain
and which established the sea as a buffer between the two countries, the Bin Khalifah had been out of Zubarah
and settled in Bahrain for over 80 years. Since that time Qatar has had full control over Zubarah, and has
exercised that control and sovereignty in many different ways.
8.59 The fact that Zubarah forms a part of Qatar was moreover repeatedly and explicitly confirmed by the
Turks and the British from the 1870s. Even more significantly, Bahrain itself has on many occasions recognised
Qatar's sovereignty over Zubarah, and from at least 1961 until 1988 made no mention of any claim that it might
have had to Zubarah. In conclusion, therefore, Qatar submits that Bahrain has no sovereignty over Zubarah.
CHAPTER VIII THE QUESTION OF ZUBARAH 189
Section 1. Presentation of Zubarah 189
Section 2. Bahrain has no Sovereignty over Zubarah 190
A. Introduction 190
B. The Factual Background 191
1. The Early History of Zubarah 191
2. 1867 - 1937 192
3. The Events of 1937 198
4. 1937 to the Present 203
Section 3. Conclusion 207
1 See, Qatar's "Act to comply with paragraphs 3) and 4) of operative paragraph 41 of the Judgment of the Court
dated 1 July 1994".
2 See, for general accounts on this subject, Abu Hakima, History of Eastern Arabia , Amman, 1965; Esmail
Ra'in,History of Iranian Navigation , Tehran, 1971, Vol. 11.
3 See, Annex III.288, Vol. 8, p. 431.
4 See, B.C.J.A., paras. 2.7-2.11.
5 Ibid., para. 2.8.
6 Annex III.298, Vol. 8, p. 493.
7 Annex III.1, Vol. 6, p. 1.
8 Annex III.2, Vol. 6, p. 5
9 See, para. 3.17, above.
10 Annex II.69, Vol. 5, p. 337.11 Lorimer, op. ci., Annex II.5, Vol. 3, pp. 194-195 and 246-247.
12 See , para. 3.19, above.
13 Annex III.13, Vol. 6, p. 65.
14 Annex III.17, Vol. 6, p. 85.
15 Saldanha, op. ci., Annex II.7, Vol. 4, p. 53.
16 Ibid.
17 Ibid.
18 Ibid.
19 Ibid.See , also,ibid., p. 54.
20 Ibid., p. 61.
21 Ibid. (emphasis in original).
22 Annex III.30, Vol. 6, p. 145.
23 Lorimer, op. ci., Annex II.5, Vol. 3, p. 223.
24 Ibid., pp. 224-225.
25 Ibid.See , also, Saldanha, op. ci., Annex II.8, Vol. 4, p. 199.
26 See , paras. 3.50-3.52, above.
27 See , para. 3.54, above.See, also, Annex II.135, Vol. 7, p. 177, and the observation of the Political Resident
in his telegram of 4 July 1937 to the Secretary of State for India clarifying that "... it should be noted the action
taken in 1895 by His Majesty's sloops in destroying hostile dhows at Zubarah was to prevent the invasion of
Bahrain from Qatar and in no way supported the claim of Bahrain to Zubarah."
28 Annex III.126, Vol. 7, p. 125.
29 Annex III.56, Vol. 6, p. 259.
30 Ibid.
31 Ibid.
32 See , paras. 3.55et seq., above.
33 See , para. 3.61, above.
34 Annex III.64, Vol. 6, p. 307.
35 Annex III.99, Vol. 6, p. 507. See , also, para. 6.26, above.
36 See , paras. 6.12et seq., above. Indeed, Bahrain was later to acknowledge explicitly in 1944 that Zubarah
was covered by Qatar's oil concession. See , paras. 8.45-8.46, below.
37 Annex III.120, Vol. 7, p. 89.38 Annex III.121, Vol. 7, p. 97.
39 See, Annex III.105, Vol. 7, p. 23.
40 See, Annex III.116, Vol. 7, p. 73.
41 See, Annex III.117, Vol. 7, p. 77.
42 See, Annex III.119, Vol. 7, p. 85.
43 Annex III.127, Vol. 7, p. 135.
44 Ibid.
45 See, Annex III.125, Vol. 7, p. 113.
46 See, Annex III.120, Vol. 7, p. 89.
47 See, Annexes III.123 and III.124, Vol. 7, pp. 105 and 109.
48 See, Annex III.126, Vol. 7, p. 125.
49 Ibid.
50 See, Annex III.129, Vol. 7, p. 147.
51 See, Annexes III.130-III.133, Vol. 7, pp. 151-171.
52 See, Annex III.131, Vol. 7, p. 157.
53 See, B.C.J.A., Annex III.16. See, also, para. 8.38, above.
54 See, Annex III.134, Vol. 7, p. 173.
55 See, Annex III.135, Vol. 7, p. 177.
56 See, Annex III.139, Vol. 7, p. 195.
57 See, Annex III.136, Vol. 7, p. 181.
58 See, Annex III.138, Vol. 7, p. 189.
59 Ibid.
60 See, Annexes III.137, III.144 and III.160, Vol. 7, pp. 185, 225 and 305.
61 See, for Qatar's protests about such activities, Annexes III.160, III.169 and III.181, Vol. 7, pp. 305, 347 and
409.
62 See, Annexes III.197 and III.198, Vol. 7, pp. 511 and 515 and Annex III.200, Vol. 8, p. 1.
63 See, in general, Annexes III.231-III.239, Vol. 8, pp. 137-182.
64 See, for example, Annex III.234, Vol. 8, p. 153. The Political Agent notes in this letter that it was never the
British "intention to acknowledge his [the Ruler of Bahrain's] sovereignty over the Zubara area".
65 See, Annex III.235, Vol. 8,p. 157.66 See, Annex III.240, Vol. 8, p. 183.
67 Annex III.244, Vol. 8, p. 199. It is of interest to note another passage in the same letter as follows: "The
Shaikh of Bahrain talks large about the graves of his ancestors, but Shaikh Hamad bin Abdullah was most
scornful and said that he knew of no more than two, or at the most three, Al Khalifah graves in Zubarah. He
said that they belonged to the dead and would continue to do so and that no one would interfere with them.
There are Al Thani buried under the Petroleum Concessions Limited tennis court at Jufair, but that does not
give the living Al Thani any right to play tennis on the P.C.L. court!"
68 Annex III.247, Vol. 8, p. 211; emphases added.
69 Annex III.248, Vol. 8, p. 215.See, also, Annexes III.258 and III.260, Vol. 8, pp. 273 and 283, where the
Ruler of Bahrain insists that he only claims private rights at Zubarah.
70 Annex III.266, Vol. 8, p. 317; emphasis added.
71 See, Annexes III.266-III.282, Vol. 8, pp. 317-400.
72 Annex III.283, Vol. 8, p. 401; emphasis added.
73 Annex III.284, Vol. 8, p. 409.
74 Ibid.
75 Annex III.285, Vol. 8, p. 413.
76 Annex III.287, Vol. 8, p. 425.
__________
PART IV
MARITIME DELIMITATION
CHAPTER IX
GENERAL PRESENTATION OF THE RELEVANT MARITIME AREA
Introduction
9.1 The Court is requested to draw a single maritime boundary between the respective1maritime areas of
seabed, subsoil and superjacent waters appertaining respectively to Qatar and Bahrain . Thus, the Court will
have to draw a single maritime boundary which will divide the respective maritime jurisdictional zones of the
Parties recognized by international law,i.., (a) their 12-nautical mile territorial seas , (b) their 24-nautical mile
3
contiguous zones , (c) their continental shelf, comprising the seabed and subsoil of the submarine areas that
extend beyond the territorial seaand (d) their superjacent waters adjacent to the territorial sea . Such boundary
is to be drawn with due regard to the line dividing the seabed of the two States as described in the British
6
decision of 23 December 1947 .
Section 1. The Relevant Maritime Area for Delimitation
9.2 The maritime area within which the Court is requested to draw a single maritime boundary, in other words,
the geographical area directly concerned in this delimitation, is depicted onp No. 11 facing this page. As
can be seen, the area is located between the east coast of Bahrain and the west coast of Qatar. Its southern partis constituted by the mouth of the Dawhat Salwah and the northern part extends up to the existing delimitations
with Iran.
9.3 The relevant coast of Bahrain has a general northerly direction without any major indentation or change in
direction. From Ras al Barr, at the southernmost point of the island of Bahrain, which is a low sandy spit, to
Ras al Jamal, 4 ½ miles NNE, the coast is featureless and steep-to, then it runs in a northerly direction to Ras
Hayyan, thence to the Sitrah jetty , to the southeastern corner of the A.I.S.C. jetty and finally to the
northeastern tip of the island of Muharraq 9. The general direction of the coastal front from Ras al Barr to the
northern tip of Muharraq is 7° northeast.
9.4 The relevant coast of Qatar extends from Ras Uwaynat in the south to the northernmost point of the coast of
Qatar 10located east of the light of Ras Rakan, in a general direction of 30° NNE without any major indentation
11
or change in direction. The coast is low . From Ras Uwaynat to Ras Rakan a coastal front can be constructed,
passing through Janan, Almatraz island (one of the Hawar islands), Hawar island, and Ras Ushayriq, close to
Zubarah .12
9.5 The relevant coasts of the two States are opposite each other. The coast of Bahrain from Ras Al Barr to
Muharraq is around 26 nautical miles or 48 kilometres long and the coast of Qatar between Ras Uwaynat and
Ras Rakan is 48 nautical miles or 89 kilometres long. The ratio between the coastal fronts of Bahrain and Qatar
is 0.63/1 or 1/1.59.
9.6 The mouth of Dawhat Salwah constitutes the southern part of the geographical area concerned in this
delimitation. Dawhat Salwah is a bay, the east coast of which is Qatari and the west coast Saudi 13. The tripoint
between Qatar, Saudi Arabia and Bahrain is not yet fixed between the three States.
9.7 The northern part of the geographical area concerned in this delimitation is bordered by the seabed
delimitation agreement between Bahrain and Iran of 17 June 1971 which ends at the following coordinates:
latitude 27°02'46"N and longitude 51°05'54"E ("Point 2") 14 and the seabed delimitation agreement between
Qatar and Iran of 20 September 1969 which ends at the following coordinates: latitude 27°0'35"E and longitude
51°23'00"N ("Point 2") . The tripoint between Bahrain and Iran and Qatar has not been agreed between the
three States.
Section 2. The Main Geographical Features in the Relevant Maritime Area
9.8 The maritime area between the coasts of Qatar and Bahrain is characterized by the existence of shallow
waters. As to the maritime area situated to the north of the area where Qatar's and Bahrain's coasts are opposite,
there is geological and geomorphological unity of the seabed. There is no fundamental discontinuity. The depth
of the waters, subject to certain variations, reaches an isobath of an average of 50 to 60 metres.
9.9 Three and a half miles south of Ras al Barr lies Al Hool, a small uninhabited islet16. Meshtan and Mattera
17
are two uninhabited islets lying about 4 ½ miles ENE and 5 ½ miles E, respectively, of Sabkha Noon . Sabkha
Noon and Halat Noon are low uninhabited islets lying, respectively, about 2 miles E and SE of Ras al Barr . 18
Thalib is a reef, 3 miles NE of Yabberi rock 19. Yabberi rock is situated 3 miles NE of Ras Al Jamal near the
20 21
centre of an extensive reef . Fasht Adham is a reef which dries . Fasht al Azm is a shoal outside the Sitrah
island which extends up to the East side of the line of the British decision of 1947. Qit'at ash Shajarah is a reef,
lying about 5 miles WNW of Ras Ushayriq which is covered in its entirety at high tide 22. A navigational
23
channel exists from Bahrain Light Float to the port of Mina Salman (including the port of Sitrah), passing
North Sitrah Light Buoy ("NSLB").
9.10 From Ras Rakan to Zubarah the coral reef extends from 2 to 3 miles offshore; it is covered in its entirety at
high tide. The two shoals of Dibal and Qit'at Jaradah are situated between Qatar and Bahrain, off the west coast
of Qatar and the east coast of Bahrain. They are nearer to the Qatar coast than to the coast of Bahrain.
9.11 Dibal is a shoal located 9.3 nautical miles from the nearest point on the low water line (and about 11.5nautical miles from the high water line) of Qatar and 13.7 nautical miles from the nearest point on the low
24
water line (the A.I.S.C. jetty, which is also the nearest point on the high water line) of Bahrain . It is bordered
to the northwest and east by water which is 7 to 8 metres in depth. The sea between Dibal and Qatar is
shallower than that between Dibal and Bahrain.
9.12 Seven miles south is Qit'at Jaradah. It is a shoal located 9.4 nautical miles from the nearest point on the
low water line (and 10.6 nautical miles from the high water line) of Qatar's coast and 10.8 nautical miles from
the nearest point on the low water line (the A.I.S.C. jetty, which is also the nearest point on the high water line)
25
of Bahrain .
Section 3. Factors Irrelevant to the Delimitation to be Effected
9.13 In its Act of 30 November 1994, Qatar requested the Court to adjudge and declare, inter ali, that any
claim by Bahrain concerning archipelagic baselines and areas for fishing for pearls and swimming fish would
be irrelevant for the purpose of maritime delimitation in the present case.
9.14 Qatar would simply note here that Bahrain has not to date made a claim to archipelagic baselines in
accordance with the rules laid down in the 1982 United Nations Convention on the Law of the Sea. For this and
other reasons, discussed more fully at paragraphs 11.43 et seq., below, Qatar submits that any archipelagic
baselines claim by Bahrain would be totally irrelevant in the present case.
9.15 Qatar has also dealt more fully below with the irrelevance of pearl fishing for the purpose of maritime
delimitation in the present case. As will be shown in paragraphs 10.37 et seq. and in Appendix 4, Bahrain's
assertion that it exercised exclusive rights over the pearl fisheries off the western coast of Qatar is contradicted
by a wealth of evidence according to which rights in pearl fisheries in the Gulf were the collective property of
all tribes living in the Gulf, and that Qatar too had a role in pearl fisheries. Furthermore, it will be shown that
even if Bahrain had had such exclusive rights, this would not in law be a special circumstance to be taken into
account in delimiting the maritime areas between Qatar and Bahrain.
9.16 Finally, fishing for swimming fish was, until the development of the oil industry, an important activity for
the overall economy of the coastal countries of the Gulf, and was traditionally exercised by all communities in
the Gulf, with no exclusive rights. Unlike pearling, the fishing industry has not died out in the Gulf, but has
been encouraged as part of the Gulf States' national diversification plans for the post-oil era. At present, the
respective catches of Qatar and Bahrain are roughly equivalent. Fishing is thus of equal importance to the
economies of both States, and there do not appear to be any reasons based on fishing activities for modifying
the course of the single maritime boundary line which might otherwise be determined by the Court to produce
an equitable result.
PART IV MARITIME DELIMITATION 209
CHAPTER IX GENERAL PRESENTATION OF THE RELEVANT MARITIME AREA
209
Introduction 209
Section 1. The Relevant Maritime Area for Delimitation 209
Section 2. The Main Geographical Features in the Relevant Maritime Area 211
Section 3. Factors Irrelevant to the Delimitation to be Effected 213
1 Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Jurisdiction and Admissibility,
Judgment, I.C.J. Reports 1994 , p. 125, para. 38.ee , also, Qatar's Application filed with the Registry on 8 July
1991 and Qatar's "Act to comply with paragraphs 3) and 4) of operative paragraph 41 of the Judgment of the
Court dated 1 July 1994".
2 See, Annex IV.278, Vol. 12, p. 241 and Annex IV.281, Vol. 12, p. 261. It should be noted that neither of theStates has issued a map of the baselines or the coordinates of the basepoints.See , also, Chapter XI, below.
3 Ibid.
4 See, Annexes IV.138 and IV.139, Vol. 10, pp. 203 and 207.
5 Annex IV.269, Vol. 12, p. 169 and Annex IV.276, Vol. 12, p. 223. For Qatar both extend to the median line
"on which each point is situated at equidistance from the base line from which the breadth of the territorial
waters of Qatar and any other state concerned is measured". This zone of superjacent waters could also be
considered as covering the exclusive economic zone under the 1982 Convention on the Law of the Sea, when
one or more Gulf States have declared it.
6 See, paras. 3.76et seq. and para. 3.80, footnote 107, and Annexes IV.115 and IV.116, Vol. 10, pp. 71 and 75.
7 The description is taken from the Persian Gulf Pilot 1982-94, pp. 180 et seq. (Annex II.1, Vol. 3, pp. 37et
seq.).
8 Sitrah, an island 4 miles long from north to south, lies close to the northeast side of Bahrain; it is connected to
Bahrain by a causeway at its north end, and by a short neck of reclaimed land, carrying road links, on its west
side.
9 See, Bahraini Chart 1501 "Approaches to Mina Sulman" which shows the A.I.S.C. jetty. Muharraq lies close
off the northeastern extremity of Bahrain to which it is connected by a stone causeway and a road bridge. Reefs,
which are extensive, fringe Muharraq on all sides. The reef extending about 3 miles south from Muharraq
terminates in an area of reclaimed land, which is connected to the island by a causeway. The coordinates of
Muharraq are as follows: 50°37'54"E and 26°17'15"N.
10 At coordinates 51°15'02"E and 26°09'25"N.
11 The description is taken from the Persian Gulf Pilot 1982-1994, pp. 178 et seq. (Annex II.1, Vol. 3, pp. 35et
seq.).
12 See , Appendix 6, Vol. 15, p. 143.
13 There is a delimitation agreement between Qatar and Saudi Arabia dated 4 December 1965, under which the
start of the delimitation in the Dawhat Salwah is not described with coordinates. Article (1) only states that
"Dohat Salwa shall be divided equally between the two countries by the method of equidistance points from
both shores". There is also a continental shelf agreement between Bahrain and Saudi Arabia dated 22 February
1958. According to its Article 1, "The boundary line ... on the basis of the median line, begins at Point 1 located
at the midpoint of the line connecting the tip of Ras al-Barr at the southernmost extremity of Bahrain, and Ras
Abu Maharah (B) on the coast of the Kingdom of Saudi Arabia" (Annex IV.262, Vol. 12, p. 95). In the vicinity
of the two starting points mentioned above is to be found the end of the line of the British decision of
23 December 1947. This is point "M". It is located at the following coordinates: latitude 25°30'00"N, longitude
50°33'54"E (Annexes IV.115 and IV.116, Vol. 10, pp. 71 and 75).
14 Annex IV.264, Vol. 12, p. 111.
15 Annex IV.260, Vol. 12, p. 81.
16 Annex II.1, Vol. 3, p. 44.
17 Ibid.
18 Ibid., p. 43.
19 Ibid.20 Ibid.
21 Ibid., p. 55. "Fasht" is the Arabic term used to described a shoal.e , Annex II.1, Vol. 3, p. 7.
22 Ibid., p. 37.
23 See, para. 3.80, footnote 107, above.
24 See , Appendix 5, Vol. 15, p. 125.
25 See, ibid.
__________
CHAPTER X
THE 1947 BRITISH DECISION CONCERNING THE DELIMITATION
Section 1. The General Legal Context: the State of International Law on the Continental Shelf and its
Delimitation at the Time of the British Decision
10.1 The British decision of 23 December 1947 ( see, Map No. 12 , facing this page), so far as it delimited the
sea-bed lying between the territory of Qatar and that of Bahrain was adopted within the context of the emerging
new legal continental shelf doctrine, and sought to apply the principles enunciated in the Truman Proclamation
of 28 September 1945.
10.2 It is customary to regard the Truman Proclamation as the first clear assertion that the continental shelf
belongs to the coastal State . Underlining the "special status" of this instrument, the International Court of
Justice stated in theorth Sea Continental Shelf Judgment:
"The Truman Proclamation ... soon came to be regarded as the starting point of the positive law on
2
the subject, and the chief doctrine it enunciated ... came to prevail over all others ."
The Truman Proclamation acted as a catalyst in the formation of the legal notion of the continental shelf as a
part of international law, and provided the impetus for a spate of other similar declarations concerning claims to
offshore zones. In particular, it was closely followed by several Latin American claims made successively by
Argentina, Mexico, Panama, Nicaragua, Chile and Peru, to mention only those which arose before the drawing
3
of the 1947 line between Qatar and Bahrain by the British authorities . As the Court said in its 1969 Judgment,
the legal regime of the continental shelf "furnishes an example of a legal theory derived from a particular
source that has secured a general following" and "it was the Truman Proclamation of 28 September 1945 which
was at the origin of the theory ".
10.3 One particular but important point, which is of the greatest relevance in the present case, lies in the
circumstance that, concerning the question of delimiting the U.S. continental shelf with neighbouring States,
the Truman Proclamation stated:
"In cases where the continental shelf extends to the shores of another State, or is shared with an
adjacent State, the boundary shall be determined by the United States and the State concerned in
5
accordance with equitable principles ."
With regard to the way in which the Truman Proclamation dealt with the question of delimitation of the
continental shelf, the International Court of Justice inevitably recognized that:
"These two conce pts, of delimitation by mutual agreement and delimitation in accordance with equitable principles, have underlain all the subsequent history of the subject. They were reflected
6
in various other State proclamations of the period, and after, and in the later work on the subject ."
10.4 The idea of delimitation in accordance with equitable principles was thus from the outset inherent in the
continental shelf doctrine as expressed in the Truman Proclamation. This was so, not only because the early
delimitations of the continental shelf evidenced the application of no clear rule and no strict method, but mainly
because of the idea of the uniqueness of each boundary delimitation. According to the observations presented
by M.O. Hudson in the 69th and 79th meetings of the International Law Commission, "Geographical
differences prevented the formulation of a general principle 7". It was stated also at that time that:
"Each situation is unique, and can be solved satisfactorily only in the light of its own facts and the
particular interests there involved ."
This explanation has been summarized as follows:
"From the very inception of the doctrine of the continental shelf, the argument has been put
forward that geographical features varied so greatly that it was difficult, if not impossible, to posit
fixed rules governing the establishment of maritime boundaries between states ."9
10.5 The major forerunner of the Truman Proclamation was the United Kingdom-Venezuela Treaty relating to
the submarine areas of the Gulf of Paria, of 26 February 1942 . This agreed delimitation in the Gulf of Paria
was said to have secured an equitable division between the two States concerning the submarine areas lying
between the then British colony of Trinidad and the Venezuelan facing coast. Taking into account the fact that
the respective coasts involved were opposite to each other, the 1942 Treaty established a quasi-median line.
Nevertheless, the median line method was not scrupulously followed in drawing the boundary under that
instrument .1
10.6 The practice of Arabian Gulf States laid particular emphasis on equitable principles. For example, the
Saudi Arabian Royal Pronouncement of 28 May 1949 on the continental shelf stated that:
"The boundaries of such areas will be determined in accordance with equitable principles by Our
Government in agreements with other States having jurisdiction and control over the subsoil and
12
sea-bed of adjoining areas ."
The proclamation of Saudi Arabia was immediately followed in June 1949 by nine other proclamations issued
by the Rulers of the coastal countries of the Arabian Gulf or, for some of them, by the United Kingdom acting
as protecting power: Bahrain (5 June), Qatar (8 June), Abu Dhabi (10 June), Kuwait (12 June), Dubai (14 June),
13
Sharjah (16 June), Ras-al-Khaimah (17 June), Ajman and Umm-al-Qaiwain (20 June) . All of these referred to
equitable principles for the delimitation of submarine areas with neighbouring States. For example, Qatar's
Proclamation referred to "boundaries to be determined more precisely as the occasion arises, on equitable
principles ".
10.7 Evidence that delimitation in accordance with equitable principles was perceived as part of the emerging
continental shelf legal regime may be seen in the fact that not only had the concept of equitable principles for
the purpose of delimiting the continental shelf been adopted by almost all national regulations promulgated by
various Gulf States, but also that this concept "has always been the unquestionable basis for continental shelf
15
delimitation in all negotiations conducted by the Gulf States ".
Section 2. The Circumstances in which the 1947 British Decision was made
10.8 The driving force for a division of the seabed between Qatar and Bahrain stemmed from the desire to
exploit oil resources. The role of oil companies will therefore be examined first, before considering the events
leading to the decision of 23 December 1947.
A. The Role of the Oil Companies10.9 An account of the evolution of the Qatar and Bahrain oil concessions up to 1939 has already been given
16
above . The Deed of Further Modification, dated 19 June 1940, extended BAPCO's Mining Lease to cover the
Bahrain unallotted area ("all 'the Shaikh's present and future dominions' "). The company in fact began its
exploratory work in the Additional Area in 1939, before the terms of the concession were approved and the
Deed signed in June 1940. PCL was also anxious to pursue its programme of exploration, and on 26 February
1940, Wheatley of that company wrote to Peel of the India Office to enquire whether any decision had been
reached concerning "the line of division between the territories and the territorial waters of Bahrain and
Qatar 18".
10.10 After the Truman Proclamation, the practical significance of claiming rights to the resources of the
seabed beyond territorial waters in the relatively shallow waters of the Arabian Gulf rapidly became apparent,
and the question soon became perceived as one involving not just the attribution of particular reefs and shoals
to one Ruler or another, but the division of the whole seabed between the two States. By this time BAPCO was
impatient to resume its exploratory drilling, and for this reason was anxious that the British decision should not
be long delayed.
10.11 Qatar's concessionaire since 1936 had in effect been Petroleum Development (Qatar) Ltd., a subsidiary o f
PCL. Its local representative wrote to the Political Agent, Bahrain on 30 September 1944 inquiring whether the
time was thought opportune to raise again the question of the boundary between the two States and the two
concession areas. The issues concerned not only the composition of the Hawar group of islands and the extent
of their territorial waters, but also reefs and islets beyond territorial waters which might constitute possible
19
drilling locations . The Political Agent replied on 1 October 1944 that he would prefer not to have had the
question raised, but he noted that in any event it was being considered in London . 20
10.12 In 1946, with the resumption of operations by the two companies, PCL again expressed anxiety about the
question of the division, and raised the matter with the India Office, insisting that the BAPCO concession over
the Bahrain unallotted area could not properly oust Qatar's rights or those of its concessionaire . This together
with the roughly contemporaneous request by BAPCO to resume structural drilling in the Hawar islands 22
seems to have set in motion the internal consultations amongst the British authorities which culminated in the
decision of 23 December 1947.
B. Events leading to the 23 December 1947 Decision
10.13 On 3 August 1946 the Secretary of State for India instructed the Political Resident in the Gulf to prepare
a dividing line drawn according to the following principles:
"Such a line could be regarded either as simply demarcating the areas in which H.M.G. are willing
to permit the respective Oil Companies to operate, or as dividing the sea-bed, including the portion
outside territorial waters, between Bahrain and Qatar, and allotting to each Ruler virtual
sovereignty over his respective portion without prejudice to existing navigation rights. In the latter
case the application of the principles of President Truman's Proclamation regarding the Continental
Shelf is involved ... Whatever the outcome, the first step must in any case be to obtain the
recommendations of the Political Agent as to the most equitable dividing line. The Political Agent
should perhaps base his recommendation primarily on the configuration of the main Bahrein
Island, the Hawar Islands and the Qatar peninsula, with their respective territorial waters, and
should so far as possible discount the recent assertions by the Bahrein Government of claims to
reefs and rocks by the erection of cairns. He should, in fact, attempt to arrive at as simple and
equitable a division of the sea-bed as possible ."
24
10.14 The recommendation of the Political Agent in Bahrain, sent on 31 December 1946 , was commented on
by the Political Resident in the Gulf . The matter was then the subject of intensive discussions between the
India Office, the Foreign Office and Admiralty, and the eventual decision was communicated to the two Rulers
by letters dated 23 December 1947. The Court is respectfully referred to the full text of the decision which may
26
be found in Annexes IV.115 and IV.116 .
C. The Equitable Principles referred to in the Truman Proclamation10.15 At the time the British decision was taken, there were no helpful precedents or established rules of
delimitation, and no specific rule or method of delimitation could yet be regarded as being already part of the
emerging legal doctrine of the continental shelf. Existing State practice concerned the delimitation of territorial
waters between States with opposite coasts, and that practice consisted of using generally the median line 27 .
This had been done in particular for the establishment of the maritime boundary between Denmark and Sweden
under the 1932 Danish-Swedish Declaration concerning the Sound 28, and there were a number of similar
examples for other straits around the world, constituting a consistent general practice in this field. However, the
only precedent dealing with the drawing of a sea-bed boundary as such was the 1942 Treaty relating to the Gulf
of Paria, which had just established an equitable division by an adjusted median line, at least for the main
portion of the boundary . Some assistance could therefore be derived from principles or methods applied in
connection with territorial sea boundaries, and it was seen as desirable that any new development should be in
30
harmony with what had gone before .
10.16 When the British Government drew the 1947 line, it had to select a few objective criteria in order to
apply equitable principles. Indeed, these principles, as such, did not provide a criterion or a method of
delimitation which was capable of being used to produce a line on a map. This is still the case today, since the
search for equity in contemporary maritime delimitations does not always lead inevitably to one single practical
boundary. In order to achieve an equitable delimitation between Qatar and Bahrain as regards their respective
rights over the sea-bed, the British authorities were confronted with the need to define a practical methodology,
each element of which had to be subordinated to the broader concept of equitable principles. They did so
through the adoption of the three following criteria: they decided to take exclusively into consideration the two
main coasts; they selected some fixed turning points; and they drew a simplified line.
1. Exclusive consideration of the two main coasts
10.17 The absence of identification of the low-water mark in an area which was largely unsurveyed, coupled
with the presence of several small islets, rocks and sand-banks lying in shallow waters immediately off the
coasts of both States, made it difficult to have a precise knowledge of the detailed configuration of the
coastlines. These factors were regarded as constituting in themselves sufficient justification for taking into
account only the high water line on the main coasts, that is the eastern coast of the main Bahrain island and the
western coast of the Qatar peninsula. This option was not an extraordinary one, especially given the specific
problems in the Gulf area .31
10.18 In addition, the drawing of a line based on the main configuration of the two coastlines found a more
theoretical justification in the continental shelf doctrine itself, since the sea-bed to be divided was at the time
seen as the logical extension of the mainland :
"2. ... (a) The median line should be based on the main configuration of the coastlines since we are
dealing here with the logical extension of the continent and minor reefs and shelves on the sea bed
have no bearing on the main principle 32."
2. Selection of fixed turning points
10.19 The same reasons which dictated the decision to take exclusively into consideration the main coastlines
also governed the selection of certain points on the dividing line itself. Because of unsurveyed coasts and
maritime areas, the British authorities selected identified points, either by way of triangulation or by reference
to aids to navigation such as buoys and lights. Another consideration which the British Government no doubt
took into account was the desirability of protecting maritime access to Bahrain through the Sitrah Channel, and
this probably provided sufficient reason for the choice of the North Sitrah Light Buoy and the Bahrain Light
Vessel as points of reference for the drawing of the dividing line. In this particular case, the method presented
the advantage of eliminating any uncertainty of demarcation. Undoubtedly, the requirement of certainty was
33
regarded as significant .
3. A simplified line
10.20 The different portions of the 1947 line were drawn as straight lines joining selected points, a methodwhich has since been used on numerous occasions, both in maritime delimitation agreements and in decisions
by international tribunals in this matter. Such a method has the virtue of simplicity, a requirement that was
expressly incorporated into the instructions delivered in 1946 by the India Office to the Political Resident in the
Gulf and the Political Agent in Bahrain, when they were asked to make suggestions about the line to be drawn.
The first continental shelf boundary agreement in the Gulf region, concluded between Bahrain and Saudi
Arabia on 22 February 1958 which was significant since it could be regarded as a leading precedent in this area
employed the "middle line", to translate the exact wording of the original Arabic text 34. But the course of that
35
particular dividing line is just an "approximation of the median line " and has been presented as "a variation of
the equidistance principle ".
10.21 The 1947 line is neither an equidistant line, nor the strict or true median line. It was not the strict or true
median line, because this was not the intent of the British authorities. It was the aim of the British authorities to
decide upon a line of delimitation in accordance with equitable principles. One of the factors taken into account
(although this is nowhere explicitly stated) may have been the difference in coastal lengths, the coast of the
Qatar peninsula being much longer than that of the main Bahrain island.
Section 3. Reactions of the Parties - The Different Attitudes of Bahrain and Qatar
A. Qatar's Attitude
10.22 Qatar's attitude with regard to the 1947 decision was fairly simple. By a telegram to the Commonwealth
Relations Office of 8 January 1948, the Political Resident reported:
"4. Sheikh of Qatar, whom I saw on January 5th, stated that while he could not voluntarily
surrender the islands and shoals East of the line which he regarded as Qatar territory, he would
accept His Majesty's orders ."
38
10.23 Pressed by a letter of 4 February from the Political Agent in Bahrain to "confirm this acceptance ", the
Ruler of Qatar adopted a much more reserved position. By letter of 21 February 1948 to the Political Agent in
Bahrain he stated that :
"... I like to invite Your Excellency's attention to the correspondence exchanged some ten years ago
on the subject of Huwar (Island) and the clear representation I made regarding its position in my
letter submitted to His Excellency the Political Agent, Bahrain, at the time, in which I expounded
my points of view in regard to this Island which is a part of Qatar and in which I expressed my
protest against the behaviours of Bahrain Government. But H.M.'s Government acted as they
wished, and I had nothing but to submit, reserving in the meantime to myself my own rights.
The map you were kind enough to send me shows clearly that Deebil shoal and Huwar Islands are
within the territory of Qatar. Huwar is directly attached to the coast of Qatar with a piece of
shallow water disconnecting, which recedes at ebb tide, thus establishing access for pedestrians...
Yet as I have mentioned to Your Excellency I cannot but exercise patience, being content with
what your Excellency said that this decision is liable to alteration at any time in case more exact
geographical data are forthcoming. This strengthens in me the hope that H.M's Government will
reconsider the matter once again and award a more correct decision based on geographical data ." 39
In a word, the Ruler was content with the line, but not with the exceptions relating to Hawar and the two shoals
of Dibal and Qit'at Jaradah. A similar view was taken by the Iraq Petroleum Company in a letter to the
Commonwealth Relations Office dated 19 March 1948 . 40
10.24 Assuming or wishing to assume that these replies amounted to acquiescence, the Political Agent in
Bahrain thought fit to write to the Ruler of Qatar on 30 April 1949 that His Majesty's Government noted "with
pleasure Your Excellency's ready acceptance of their decision", which was a far-fetched interpretation of the
Ruler's cautious observations . Mr. Morgan Man, of the Political Residency, Bahrain, was more perspicacious
when he wrote in a letter of 13 January 1962: "I read it [the Ruler's reply] as a polite rejection of H.M.G's
42
awar d ".10.25 Qatar confirmed its position by supporting the proposal of arbitration about the sea-bed, although it made
it clear that such proceedings should not be confined to the question of the sea-bed. On 2 July 1962, the
Political Agent in Doha warned the Foreign Office that any arbitration proceedings between Bahrain and Qatar
could not be confined to the sea-bed, and that according to Qatari views they should include the other issues,
such as the Hawar islands, in the terms of reference .43
B. Evolution of Bahrain's Attitudes
10.26 In the maritime field Bahrain's claims and their factual or legal basis have fluctuated. As a matter of fact,
Qatar is not aware of Bahrain's present claims, which will be known only when Bahrain files its own Memorial.
In the meantime the evolving situation may be summarized as follows.
1. First phase, 1947-1960: Claim to sovereignty over all the sea between Bahrain and the Qatar peninsula
10.27 On the whole, the position taken by Bahrain after the 23 December 194744ecision was similar to that
expressed in various letters written in 1946 before the decision was taken . The reaction of Bahrain to the
letter of 23 December 1947 was immediate and negative. It was expressed in a letter from the Ruler of Bahrain
to the Political Agent in Bahrain dated 31 December 1947 45 in the following terms:
"2. We wish to point out that since the time that our ancestors conquered Bahrain from their town
of Zubara until the present day the seas lying between our Eastern coast and the western coast of
the Qatar peninsula have been under our control and we have held domination over the islands,
shoals and reefs which exist in these waters. Our people own fishing rights, which have never been
disputed, in the waters inside this area.
3. During the lengthy negotiations between our Government and the two oil companies, Bahrain
Petroleum Company and Petroleum Concessions Limited who were competing for an oil
concession in the seas belonging to Bahrain, in 1938 and 1939, many discussions took place and
maps and plans were made showing the sea area which was the subject of the negotiations. These
negotiations were carried on through H.B.M.'s Political Agent who was either present during the
meetings or who was provided with a detailed note about all matters which were discussed. The sea
area which we were then prepared to lease to the companies between the coasts of Bahrain and
Qatar was from and including the island of Jinan, the most southern island of the Hawar Group, to
a point approximately 10 miles north east of Fasht al Dibal. It was at no time suggested by
H.B.M.'s Political Agent that we had no rights over any part of the sea area lying between Bahrain
and this line. If our ownership of this area was in doubt why were these negotiations approved by
H.B.M.'s Political Agent ?
4. In para 4 of your letter you state that our sovereign rights in Dibal and Jaradah shoals, which are
above spring tide low water level, are recognised. These two shoals are in fact the terminus of one
long continuous shoal which begins off Sitra Island and reaches Dibal and Jaradah. There is no
deep water channel crossing this shoal and the highest points of this shoal, at Dibal and Jaradah,
cannot be separated from the main shoal. We contend that all the sea lying between our coasts up
to and including Dibal and Jaradah should be included in the sea over which we have sovereign
rights.
...
6. In conclusion we consider that the delimitation described in your letter should be readjusted and
the dividing line should run from and including Jinan up to the north east corner of Dibal,
including the whole length of the shoal which starts at Sitra and which appears above the surface at
Dibal and Jaradah."
10.28 Another letter from the Ruler of Bahrain to the Political Agent in Bahrain on 23 May 1949 asserted a
similarly extravagant claim:
"The ownership of the sea between Bahrain and Qatar is claimed by us. We have never heard that the Shaikh of Qatar made any claim to this sea. If he has made a claim to it we ask that we should
46
see his claim and the evidence which he may have to prove it ."
10.29 On 6 January 1950 the Ruler of Bahrain referred not to the sea but to the sea-bed :
"I should say that the sea-bed between Bahrain and Qatar has on no day been under the sovereignty
of the Shaikh of Qatar and that I do not accept that. Secondly, what confirms this is that there exist
some possessions belonging to Bahrain subjects the right in the disposal of which vested in us and
in our subjects, without the Ruler of Qatar or his subjects having any control over them.
Thirdly, when the Company wanted to install buoys between Bahrain and Zikrit it was we who
granted the permission which apart from the numerous reasons and conclusive proofs, establish our
47
right in the sea-bed between Bahrain and Qatar ."
But in the next two protests Bahrain referred again in general to the sea48 .
10.30 The British authorities consistently and firmly rejected Bahraini claims. Thus, the Political Agent in
Bahrain in a letter dated 30 May 1949 to the Political Resident stated:
"A claim to 'ownership' of the high seas outside the farthest limit of the claims made to territorial
waters by any country in the world must be something unique 49."
The Ruler's claim was rejected by letter of the Political Agent dated 2 January 1950:
"I am further to remind your Highness that your claim to sovereignty over all the seas between
50
Bahrain and Qatar has not been admitted by His Majesty's Government ."
10.31 Sixteen months later, on 14 May 1951, the Political Agent sent a further reply to the Ruler of Bahrain
containing the following paragraphs:
"3. ... Since then [the Ruler of Bahrain's letter of 23 May 1949], however, Your Highness has
issued a proclamation asserting jurisdiction and control over the sea-bed and sub-soil beneath the
high-seas contiguous to the territorial waters of your State. The Ruler of Qatar has issued a similar
proclamation. It is therefore more than ever necessary that all the parties concerned should observe
the line laid down in 1947 as the limit of the sea-bed over which you and the Ruler of Qatar have
since asserted your control in these proclamations. This line was determined in accordance with
equitable principles after careful examination of Your Highness' claims and of those of the Ruler of
Qatar and is the only line recognised by His Majesty's Government. ...
5. ... His Majesty's Government are not prepared to recognise a claim by Your Highness to any
area of the seas outside the territorial waters of the State of Bahrain; nor indeed does the Ruler of
Qatar make any claim to the seas outside his territorial waters. As has been pointed out on many
occasions this discussion concerns the sea-bed beneath the high seas and its division between
Bahrain and Qatar. These two States asserted the right to exercise jurisdiction and control over
their respective areas of the sea-bed in the proclamations referred to in paragraph 3 of this letter,
which were issued by Your Highness and the Ruler of Qatar at the initiative of His Majesty's
Government ."51
10.32 This was to no avail, since on 22 September 1951, the Ruler of Bahrain again wrote to the Political
Agent:
"Our waters reach to the Western shore of Qatar - this has been the fact down the ages - and that
the bed upon which those waters rest and the sub-soil of that bed are within and form an integral
part of Our domain and We make that statement once again with all the conviction of which We
are capable ."This position was still taken by the Ruler of Bahrain in April 1960 with Wiltshire, Political Agent in Bahrain,
who reported the Ruler's view as follows:
"Qatar had no sea-bed rights in the west at all ... everything in the sea between Zubara and Bahrain
belonged to the Al Khalifas and should be included in his claims ."
10.33 The claim that Qatar's sovereignty was limited to the mainland reveals great ignorance of Qatar's history,
and disregards several facts and cases connecting the fashts with Qatar since the middle of the previous century.
Many documents show that during the 19th century Qatar's jurisdiction and sovereignty were not at all limited
to the mainland . This sovereignty was at the time recognised officially by the Turkish and British authorities.
For Bahrain to displace such a title would have required acquiescence from Qatar which was never obtained. In
fact, the image of "Bahrain ruling the waves" was fabricated by Belgrave only in the late 1930s, when he put
into practice a systematic policy of maritime imperialism linked to oil discovery .
2. Second phase, since 1960: continental shelf claim based on the Geneva Convention together with
special circumstances
10.34 Around 1960, Bahrain gave up its claim to the sea by advancing a claim limited to the sea-bed and based
on the median line together with fishing rights as a special circumstance. A first sign of this evolution was
reflected in the Political Resident's letter of 19 December 1960, addressed to the Ruler of Bahrain, where the
following is noted:
"Your Highness has on a number of occasions told me that because the pearling and fishing fleets
of Bahrain had established her sovereignty over certain areas of the sea bed, Bahrain also had the
right to exploit minerals below the surface of those areas. The legal experts in the Foreign Office
have carefully considered Your Highness's assertion but they have come to the conclusion that the
56
validity of your claim cannot be recognised ."
10.35 This new position of the Ruler of Bahrain was formally conveyed to the British Government by a letter o f
16 August 1961 from the Ruler to Sir William Luce, the Political Resident, to which was attached a
Memorandum outlining his case in support of his claim and suggesting that preliminary discussions be held
57
between his legal advisers in London and those of the Foreign Office . One of the maps illustrating Bahrain's
claim is reproduced as Map No. 13 facing the following page. Bahrain's claim was rejected outright by a letter
from the Foreign Office of 5 June 1962, while leaving open the possibility of discussions between the Foreign
Office and the Ruler's legal advisers , and on 20 June and 2 August 1962 inconclusive meetings were held at
the Foreign Office between the legal advisers of the Ruler of Bahrain and Mr. Walmsley and some Foreign
Office legal advisers .
10.36 A direct challenge to the legal right of the British Government to promulgate the 1947 decision and to
make a binding "award" was advanced in a strong and well-reasoned opinion obtained by Bahrain from Sir
Lionel Heald (a former Attorney-General), which was handed over to the Foreign Office by Bahrain's legal
advisers on 3 July 1963 .0
61
10.37 Bahrain's Memorandum of 1961 contained several substantive claims:
1. The sea bed should be divided according to the equidistance method provided for in the 1958 Geneva
Convention;
2. The line so obtained should however be modified to take account of a special circumstance: the historical
rights of Bahrain to pearl fisheries;
3. Subsidiarily, Dibal and Qit'at Jaradah are not shoals but islands and should therefore carry territorial
62
waters .
10.38 The claims mentioned under points 1 and 3 are dealt with elsewhere in this Memorial . With respect tothe pearl fisheries, Bahrain's position was basically as follows: (a) Bahrain had exercised exclusive rights over
the pearl fisheries off the western coast of Qatar; and (b) these pearl fisheries were a special circumstance
justifying a departure from the median line according to the Continental Shelf Convention adopted in Geneva in
1958 64.
10.39 With regard to the facts, the claim that Bahrain exercised exclusive historic rights over the pearl fisheries
off the western coast of Qatar is contradicted by a wealth of evidence, including investigations and statements
made by the British Government, according to which rights in pearl fisheries in the Gulf were the collective
property of all tribes living in the Gulf. Furthermore, there are many documents showing that Qatar also had a
role - even if less important than that of Bahrain - in the exploitation of pearl fisheries. Finally, in any event, it
is an acknowledged fact that, by 1960, pearling in the Gulf was defunct for practical commercial purposes.
10.40 As a matter of law, by relying on the 1958 Geneva Convention on the Continental Shelf, Bahrain appears
to have abandoned the concept of common right to sedentary fisheries. According to the Geneva Convention,
sedentary fisheries are an exclusive right of the coastal State stemming from its sovereign rights to exploit the
continental shelf. However that may be, it appears that, in its 1961 claim that pearl fishery rights were a special
circumstance justifying a departure from the median line, Bahrain was applying the 1958 Convention wrongly.
The Bahraini argument consisted in claiming that since Bahrain was the historical owner of the oyster beds it
should obtain the continental shelf where they lay. But Bahrain misunderstood the system. In the 1958
Convention and, for that matter, also in the 1982 Convention, sedentary fisheries - a category to which pearl
fishing undoubtedly belongs - are considered as resources of the continental shelf. Hence the coastal State in
whom is vested the continental shelf rights possesses sovereign rights to them with respect to exploration and
exploitation, ipso iure and to the exclusion of any other State. It is thus not surprising that the weakness of the
Bahraini position was repeatedly pointed out to the Ruler of Bahrain and his lawyers by the British authorities.
C. Evolution of the British Government's Position
10.41 In the face of the complaints of both Rulers, but particularly of the Ruler of Bahrain, and confronted with
requests to revise the 1947 line, the British Government's position was equivocal for many years, maintaining
in some statements that the line was final and admitting in others that it could be revised . However, in spite of
the doubts expressed internally, the British Government stuck as long as possible to the position that it could
not revise the decision.
10.42 This having been said, the Foreign Office slowly came round to the view that the line could be revised if
both Rulers agreed. Among the factors which led to this gradual shift of position were the following:
(a) the uncertain nature of Dibal and Qit'at Jaradah, in particular the question whether these two features were
66
islands or low-tide elevations ;
(b) the course of the line itself, having regard to the perception that there might be an inconsistency between the
1947 line (which was not in its origin conceived of as a strict median line) and the solution recommended in the
Boggs-Kennedy Report issued at the end of 1948 (which envisaged the application everywhere in the Gulf of
the median line principle based on an equidistance line between the mainland coasts of countries facing each
other);
(c) the incompleteness of the line in the north, giving rise to the idea that Bahrain could be compensated in the
northern part of the seabed boundary for what it regarded as the unfairness of the more southerly part of the
1947 line;
(d) the unhappiness of both Rulers with the 1947 line, combined with serious legal doubts which had been
67
raised as to the validity and binding character of the 1947 decision .
10.43 This shift of position coincided with a suggestion ventilated at the beginning of 1962 that the dispute
between Qatar and Bahrain over the 1947 line might be referred to an international arbitration process. The
Ruler of Bahrain consented in principle to arbitration in a letter addressed to Lord Carrington after a formal
68
visit to London on 27 July 1964 . It was only on 31 August 1964, that Qatar received a copy of the Ruler of
Bahrain's Memorandum of 1961 together with a copy of the two maps . In reply to this Memorandum, Qataraddressed a Memorandum to the British Government on 21 April 1965 refuting Bahrain's allegations and
70
recommending arbitration as a solution to the dispute between the two States . For Qatar, however, the dispute
over the Hawar islands, not mentioned in the Memorandum of 1961, must be included among the disputes to be
submitted to arbitration; and it was Bahrain's objection to the inclusion of the Hawar islands among the
questions to be submitted to arbitration which was to lead to the breakdown of the arbitration proposal in the
late 1960s.
Section 4. The Dibal and Qit'at Jaradah Shoals
A. Introduction
10.44 Paragraph 4 of the letters of 23 December 1947 ran as follows:
"His Highness the Shaikh of Bahrain is recognized as having sovereign rights in
(i) The areas of the Dibal and Jaradeh shoals which are above the spring tide low-water level. After
a full examination of the position under international law, His Majesty's Government are of opinion
71
that these shoals should not be considered to be islands having territorial waters ."
As noted above, this part of the decision was not accepted by either of the two Rulers .72
10.45 It is first of all necessary to describe the circumstances in which the British Government adopted this part
of the disputed decision of 23 December l947. Attempts by Belgrave to assert a claim of Bahraini sovereignty
over these two fashts began in the late 1930s, in connection with the extension of the oil concession of BAPCO
beyond the main Bahraini islands. The opinion of both Rulers on the subject was officially sought by Galloway,
73 74
the Political Agent in Bahrain in June 1946. Belgrave replied by letters of 18 June 1946 , 10 July 1946 , 22
July 1946 75 and 20 October 1946 , also providing a map . The Ruler of Qatar replied on 13 July 1946 , and 78
79
Galloway reported on his enquiries to the Political Resident on 31 December l946 . In his letter he discussed
the conflicting claims over the shoals and gave his own opinion. His proposal was to allocate sovereignty over
the two shoals to Bahrain. Hay, the Political Resident, in a letter of l8 January l947 to the Secretary of State for
India "reluctantly agree[d] with the Political Agent" with regard to the ownership of these two features, "if it is
possible for anybody to establish a claim over shoals of the kind described ".0
10.46 The British authorities which dealt with the matter at governmental level did not query the views of the
Political Agent and the Political Resident on the problem of ownership of the fashts. However, they did not
draw the consequences of these findings for the maritime delimitation, in that they did not consider that either
of the shoals carried territorial waters.
10.47 The final internal decision appears in a letter dated l0 November l947 from the Secretary of State for
Commonwealth Relations to the Political Resident. The part relating to the two shoals ran as follows:
"(b) Dibal and Jaradeh shoals. Since the Sheikh of Bahrein has taken steps usually regarded as
sufficient for an assertion of sovereignty, it is considered that these shoals must be allotted to him.
It is not considered, however, that they should have territorial waters and Bahrein sovereignty over
them will thus extend only to the areas which are above the spring tide low-water level ... H.M.G.
do not consider that there would be justification for deviating the median line to include Dibal and
Jaradeh on the Bahrein side 81 ."
10.48 With respect to the Dibal and Qit'at Jaradah shoals, the decision of 23 December 1947 involved three
issues which have each been disputed: the ownership of the shoals; their character as low-tide elevations or
islands, and their impact on the seabed dividing line. These points are closely interrelated.
10.49 As will be seen below, the British Government appears to have allocated sovereignty over the shoals to
Bahrain by a reasoning based on an analogy between low-tide elevations and land territory. However, unlike
islands, whose ownership is acquired by the usual methods of acquisition of land territory, the acquisition of
low-tide elevations was in 1947 and still is governed by application of the law of the sea. Consequently the firstquestion to settle is the nature of the two shoals: islands or low tide elevations? It is submitted that they are low-
tide elevations and that accordingly the law applicable to the attribution of these features is the law of the sea.
Therefore the reasoning of the British Government insofar as it was based on the analogy of land territory lacks
conviction. The nature of Dibal and Jaradah as islands or shoals as a question of fact and law will first be
examined hereafter. This will be followed by a discussion of the rules of attribution of sovereign rights over
low-tide elevations.
B. Nature of these Features: Islands or Shoals? A Question of Fact and Law
10.50 During the period 1947-1960 there were differing views among British officials both on the facts and on
the applicable legal principles.
10.51 On the facts, the officials concerned could not make up their minds as to the nature of these two shoals:
were they islands or low tide elevations? During the period under review, there were conflicting statements
about the physical nature of these two shoals, in particular whether or not they were above water at all states of
the tide.
10.52 In law, the lawyers were equally divided as to the definition of an island capable of carrying territorial
waters; in a nutshell, the official view, for some time, was that a mere rock or shoal, which was above water at
all states of the tide, carried territorial waters only if it was capable of permanent habitation. Moreover, there
were differences of view as to whether an artificially made island could be deemed to be an island in its own
right.
1. Hydrographical characteristics
10.53 The location of Dibal and Qit'at Jaradah has been discussed in Chapter IX above. The hydrographical
characteristics of these two features are extremely important to determine whether they are islands or low-tide
elevations. In Appendix 5 82 are listed in chronological order the various sources and authorities which describe
these two features, from which the following conclusions may be drawn:
10.54 For Dibal there seem to be no conflicting views on its physical characteristics: from at least 1825 it has
been a coral reef covered by water at high tide and drying in patches at low tide. The only features rising
permanently above water were or are artificial. There are at present two light beacons consisting of a metal
pedestal on a concrete base. The photograph facing this page, taken at the beginning of October 1995, shows
the artificial structure at the north-east of the shoal, which is all that appears above the water at high tide83.
Dibal is therefore clearly a low-tide elevation in its natural form. It extends approximately 4.7 miles north to
south and 2.7 miles east to west.
10.55 For Qit'at Jaradah, in spite of some hesitation from 1940 onwards, it appears that it is partly a coral reef
which is not dry at high tide and partly a sand bank which may not be dry at all states of the tide along its
southern edge; this latter part varies in shape and elevation with the wind (which is to be expected). The only
features which are permanently above water are artificial. At present there is a light beacon, erected on a
masonry base structure on the southern end of the reef, and a pole. The photograph facing this page, taken at the
84
end of July 1996, shows those artificial structures, which are all that appear above the water at high tide .
Qit'at Jaradah is a low tide elevation in its natural form.
2. Legal controversies about the definition of an island
a) Definitions of "islands" and of "low-tide elevations" in the Geneva and Montego Bay Conventions
10.56 According to Article 10 of the Geneva Convention of 29 April l958 on the Territorial Sea and the
Contiguous Zone:
"l. An island is a naturally-formed area of land, surrounded by water, which is above water at high
tide."
Article 11 defines as follows a low-tide elevation : "1. A low-tide elevation is a naturally-formed area of land which is surrounded by and above water
at low-tide but submerged at high tide."
These definitions have been confirmed by the 1982 United Nations Convention on the Law of the Sea: Article
121, paragraph 1, for islands and Article 13, paragraph 1, for low-tide elevations. However, things have not
always been so clear. In particular, at the time of the British decision of 1947 and for some years later, there
were differing views among British lawyers and decision-makers as to the exact definition of these concepts.
b) Hesitations of the British Government about the concepts of islands and of low-tide elevations
10.57 During the period under review there were doubts about the legal nature and impact of islands and of
low-tide elevations. Among these doubts were the following:
- To be entitled to territorial waters should an island be capable of use and occupation? A negative conclusion
was eventually reached.
- Is an artificial island to be assimilated to a natural island? Again, the 1958 Convention on the Territorial Sea
and the Contiguous Zone and the 1982 Convention on the Law of the Sea have settled this point beyond doubt:
an artificial island cannot be assimilated to a natural one and therefore does not carry territorial waters.
- Can a low-tide elevation be converted artificially into an island? Here also the reply is now settled in the
negative.
- Should a feature be permanently above water to qualify as an island? The reply is yes, otherwise it is a low-
tide elevation.
10.58 These considerations of fact and of law lead to the conclusion that Dibal and Qit'at Jaradah are low-tide
elevations, and that the artificial structures built on them have not altered their character.
C. Rules of Attribution of Sovereign Rights over Low -Tide Elevations
1. The law of the sea is the applicable law
10.59 As already noted, the British Government appears to have attributed sovereign rights over the shoals to
Bahrain by a reasoning based on a mistaken analogy between low-tide elevations and land territory. In the
following paragraphs it is submitted that the rules of attribution of sovereign rights over low-tide elevations are
governed by the law of the sea.
10.60 In his letter of 18 January 1947, Hay, the Political Resident, writing to the Secretary of State for India,
although acquiescing in the solution proposed by the Political Agent, expressed his doubts:
"With regard to the ownership of these two places I reluctantly agree with the Political Agent that if
it is possible for anybody to establish a claim over shoals of the kind described, they must be
85
regarded as belonging to Bahrain ."
In fact, it would have been more appropriate to attribute sovereign rights over low-tide elevations by reference
to criteria deriving from the law of the sea. Some British officials took this approach. Thus, Prior, the Political
Resident, in his letter of 7 June 1940 to the Secretary of State for India, wrote concerning Dibal: it "... belongs
86
to neither and is resorted to by all fishermen under stress of weather" .
10.61 Qatar submits that the proper law concerning appropriation of sovereign rights over low-tide elevations
entirely relies on the law of the sea, and that the rules governing the status and legal effect of low-tide
elevations vary according to their location.
10.62 A low-tide elevation in the territorial sea of a State belongs to that State as part of the bed of its territorial
sea. As provided in Article 2 of the 1982 Convention on the Law of the Sea: "1. The sovereignty of a coastal State extends beyond its land territory and internal waters ... to an
adjacent belt of sea, described as the territorial sea.
2. This sovereignty extends to the air space over the territorial sea as well as to its bed and subsoil."
When the low-tide elevation is situated in territorial waters, it may affect the breadth of these waters. As
provided in Article 13, paragraph 1, of the 1982 Convention:
"Where a low-tide elevation is situated wholly or partly at a distance not exceeding the breadth of
the territorial sea from the mainland or an island, the low-water line on that elevation may be used
as the base line for measuring the breadth of the territorial sea."
10.63 If the low-tide elevation is in the high seas it is not capable of appropriation. Article 89 of the 1982
Convention, of indisputable customary character, provides:
"No State may validly purport to subject any part of the high seas to its sovereignty."
As stated in Oppenheim's International Law :
"Since the high seas are free, no part of it can be the object of acquisition of sovereignty by
occupation nor can mere rocks or banks in the open sea, although lighthouses may be built on
87
them ."
10.64 Most importantly, as part of the seabed, a low-tide elevation may form an integral part of the continental
shelf of the relevant coastal State. In such a case, as declared by Article 77 of the 1982 Convention:
"1. The coastal State exercises over the continental shelf sovereign rights for the purpose of
exploring it and exploiting its natural resources."
By its status as part of the continental shelf, the low-tide elevation is incapable of appropriation by a third State.
Paragraph 2 of the same Article provides:
"The rights referred to in paragraph 1 are exclusive in the sense that if the coastal State does not
explore the continental shelf or exploit its natural resources, no one may undertake these activities
without the express consent of the coastal State."
2. Practice in the Gulf in this regard
10.65 Various examples of the practice followed in the Gulf are as follows:
- Seal, from Admiralty, Military Branch, in a letter to Clauson, India Office, of 29 April 1937, impliedly
suggested that sovereignty over Fasht al Jarim, Fasht Dibal and other fashts of the region (also called rocks or
islands) should in general be attributed according to proximity . 88
- During the negotiations between the British Government and Saudi Arabia concerning the maritime boundary
between Bahrain and Saudi Arabia, Fry, of the Foreign Office, dealing with the case of Fasht al Jarim wrote to
Sir Rupert Hay on 3 April 1951 as follows:
"We do not trace any claim to Fasht-al-Jarim... ever having been made by Ibn Saud and presume
therefore that it is acknowledged to belong to Bahrain; as it will fall on the Bahrain side of the sea-
bed boundary which we intend to propose, we have omitted it from our list ." 89
Saudi Arabia proposed that Bainah-as-Saghir island and Fasht-al-Jarim and Rennie shoals should go to Bahrain
and Bainah-al-Kabir and Fasht-bu-Sa'afa shoal to Saudi Arabia:
"Their claims to these places were made on similar grounds to the claims of Bahrain and especially
on the fact that both the places which they claimed lie nearer to the Saudi Arabian coast than to 90
Bahrain ."
The Bahrain/Saudi Arabia agreement of 1958 is a good example of the practice followed in the Gulf, where all
the islands and shoals taken into account during the negotiations were allocated on the previously mooted basis
that shoals or submerged banks should belong to the State on whose side of the median line dividing the
91
Bahrain/Saudi Arabia sea-bed area they lie .
10.66 This position was summarized by C.M. Rose of the Foreign Office in a minute dated 26 February 1953
on the London talks:
"It was further agreed that after settlement of the ownership of the islands and shoals under dispute
and the subsequent drawing of the dividing line, the remaining islands and shoals should be
regarded as belonging to the party on whose side of the line they lay ."92
10.67 Under these circumstances it is worth reading again the letter addressed by the Ruler of Qatar to the
Political Agent in Bahrain dated 13 July 1946 and the main argument it put forward:
"If we look into the question from the point of view of equality, Qatar is to be entrusted with
Deebil and Jaradah Fashts which are situated between Qatar and Bahrain, and they are nearer to
Qatar. You see that Qatar has been treated unjustly in her clear right in the question of Hawar
islands which I am still tenacious to claim their ownership, then how about the others 93 ."
It will be noted that this opinion of the Ruler of Qatar was shared by several British officials who expressly or
by implication saw the reasonableness of the proximity principle with regard to these two shoals . 94
10.68 At the time, Dibal and Qit'at Jaradah, being low-tide elevations, located in the area beyond the outer limit
of the territorial sea (and in conformity with the practice in the Gulf), had to be considered as located on the
part of the continental shelf which, according to the 1947 decision, had to be attributed to Qatar. Accordingly,
Dibal and Qit'at Jaradah also had to be attributed to Qatar, because they were on the Qatari side of the line.
10.69 Now that both States have proclaimed a territorial sea of 12 miles, the matter may be viewed from
another perspective. As mentioned above, Dibal is 9.3 nautical miles from the nearest point on Qatar's low
water line (and about 11.5 nautical miles from the high water line) and 13.6 nautical miles from the nearest
point on the low water line (which is also the nearest point on the high water line) of Bahrain. Qit'at Jaradah is
9.4 nautical miles from the nearest point on Qatar's low water line (and about 10.6 nautical miles from the high
water line) and l0.8 nautical miles from the nearest point on the low water line (the A.I.S.C. Jetty, which is also
the nearest point on the high water line) of Bahrain . In both cases the two shoals are closer to the territory of
Qatar.
Section 5. Conclusion
10.70 The British decision of 1947 delimiting the sea-bed between Qatar and Bahrain was issued in the context
of the emerging continental shelf doctrine, which requires that delimitation be made in accordance with
equitable principles, rather than in application of fixed rules to be applied in every case. In order to make this
delimitation, the British authorities adopted three criteria: exclusive consideration of the two main coasts,
selection of fixed turning points, and a simplified line, for reasons of simplicity and certainty. For these reasons
the line determined by the British is not the true median line, which was not the intent of the British authorities;
rather, their aim was to decide upon a line in accordance with equitable principles.
10.71 Although the Ruler of Qatar was content with the line itself, he protested at the exceptions which were
made for the Hawar islands (for the reasons outlined in Chapters V and VI above), and the shoals of Dibal and
Qit'at Jaradah. As far as the latter are concerned, Qatar has demonstrated in fact and in law that they are both
low-tide elevations, and that the artificial structures built on them cannot alter their character. Consequently
they cannot carry territorial waters. Being, at the time of the 1947 decision when the breadth of the territorial
sea of both States was only three miles, low-tide elevations located on the continental shelf which extends in an
uninterrupted way from Qatar to Bahrain, Dibal and Qit'at Jaradah were parts of the sea-bed recognised as
appertaining to Qatar and should have been attributed accordingly.10.72 As both States have now proclaimed a territorial sea of 12 miles, the matter may be considered from
another perspective. In this context it may be noted that Qit'at Jaradah is wholly situated in the area where the
territorial seas of Qatar and Bahrain overlap, and that Dibal is situated partly within the territorial sea of Qatar.
In both cases the two shoals are closer to the territory of Qatar.
10.73 In the submissions contained in its Application dated 5 July 1991, Qatar requested the Court to adjudge
and declare that the State of Qatar has sovereign rights over Dibal and Qit'at Jaradah shoals. In view of the
subsequent extension of the territorial waters of both States, Qatar now requests the Court to adjudge and
declare that Dibal and Qit'at Jaradah are low-tide elevations which, by their very location, are under Qatar's
sovereignty.
CHAPTER X THE 1947 BRITISH DECISION CONCERNING THE DELIMITATION 215
Section 1. The General Legal Context: the State of International Law on the
Continental Shelf and its Delimitation at the Time of the British Decision 215
Section 2. The Circumstances in which the 1947 British Decision was made 218
A. The Role of the Oil Companies 218
B. Events leading to the 23 December 1947 Decision 220
C. The Equitable Principles referred to in the Truman Proclamation
221
1. Exclusive consideration of the two main coasts 222
2. Selection of fixed turning points 223
3. A simplified line 223
Section 3. Reactions of the Parties - The Different Attitudes of Bahrain and Qatar 224
A. Qatar's Attitude 224
B. Evolution of Bahrain's Attitudes 226
1. First phase, 1947-1960: Claim to sovereignty over all the
sea between Bahrain and the Qatar peninsula 226
2. Second phase, since 1960: continental shelf claim based on
the Geneva Convention together with special circumstances
230
C. Evolution of the British Government's Position 233
Section 4. The Dibal and Qit'at Jaradah Shoals 235
A. Introduction 235
B. Nature of these Features: Islands or Shoals? A Question of Fact
and Law 237
1. Hydrographical characteristics 237
2. Legal controversies about the definition of an island 238 a) Definitions of "islands" and of "low-tide elevations"
in the Geneva and Montego Bay Conventions 238
b) Hesitations of the British Government about the
concepts of islands and of low-tide elevations 239
C. Rules of Attribution of Sovereign Rights over Low-Tide
Elevations 240
1. The law of the sea is the applicable law 240
2. Practice in the Gulf in this regard 242
Section 5. Conclusion 244
Annex IV.75, Vol. 9, p. 363.
I.C.J. Reports 1969, pp. 32-33, para. 47.
See , R. Young, "Recent developments with respect to continental shelf", A.J.I.L., 1948, p. 849. The United
Kingdom for its part made similar claims in respect of Jamaica on 26 November 1948 (Annex IV.126, Vol. 10,
p. 119), the Bahamas (Annex IV.125, Vol. 10, p. 115) on 27 November 1949 and the Falkland Islands on 21
December 1950 ( see, I.C.J. Pleadings, Fisheries, United Kingdom v. Norway, Vol. IV, p. 598).
North Sea Continental Shelf, Judgment I.C,J. Reports 1969 , p. 53, para. 100.
Annex IV.75, Vol. 9, p. 363.
North Sea Continental Shelf, Judgment I.C,J. Reports 1969 , p. 33, para. 47.
Annex IV.322, Vol. 13, p. 265.
R. Young, "The International Law Commission and the Continental Shelf", A.J.I.L., Vol. 46, 1952, Annex
IV.325, Vol. 13, p. 279.
L.D.M. Nelson, "The roles of equity in the delimitation of maritime boundaries", A.J.I.L, 1990, Annex IV.309,
Vol. 13, p. 191.
Annex IV.72, Vol. 9, p. 349.
In a sector of the delimited area called the Serpent's Mouth, located at the south-eastern entrance of the Gulf of
Paria, Venezuela was limited to a three-mile submarine area, while Trinidad's outer limit of seabed was at a
distance of seven miles, under the delimitation line drawn in that sector. Among the explanations given in order
to justify such a departure from the strict median line was the following: "... it may be recalled that in 1942 the
Island of Patos in the Gulf of Paria was ceded by Britain to Venezuela. Therefore, the unusual course which the
1942 boundary line follows may be explained on the ground that Britain obtained something in return for the
cession of Patos" (Anselm Francis, "Treaty between the Republic of Trinidad and Tobago and the Republic of
Venezuela on the delimitation of the marine and submarine areas", International Journal of Estuarine and
Coastal Law, Vol. 6, 1991, pp. 169-187, at p. 175). The island of Patos is located at the northern entrance of the
Gulf of Paria, called the Dragon's Mouth.
Annex IV.135, Vol. 10, p. 189.
See, Annexes IV.138-IV.146, Vol. 10, pp. 203-240.
See
, Annex IV.139, Vol. 10, p. 207.S.H. Amin, "Law of the Continental Shelf delimitation: the Gulf Example", Netherlands International Law
Review, Vol. XXVII, 1980, Annex IV.292, Vol. 13, p. 66.
See , paras. 6.12et seq., above.
Annex IV.64, Vol. 9, p. 313.
Annex IV.57, Vol. 9, p. 279.
Annex IV.73, Vol. 9, p. 355.
Annex IV.74, Vol. 9, p. 359.
Annex IV.84, Vol. 9, p. 401.
Annex IV.77, Vol. 9, p. 373.
Annex IV.88, Vol. 9, p. 419.
Annex IV.92, Vol. 9, p. 435.
Annex IV.93, Vol. 9, p. 449.
Annexes IV.115 and IV.116, Vol. 10, pp. 71 and 75.
See , the detailed study of the subject in G. Gidel,e droit international public de la mer, Paris, 1981, Vol. III,
pp. 746-759, where the author summarized the existing legal situation as follows: the boundary is to be
established according to the median line, unless the States concerned otherwise agree, or in cases where the
geographical configuration is such that the median line would produce an extreme disproportion in the different
uses of the sea by both States (Annex IV.300, Vol. 13, p. 113).
Annex IV.263, Vol. 12, p. 105.
See, para. 10.5, above.
See, the anonymous and undated Memorandum on the Persian Gulf sea-bed, entitled "Offshore Areas in the
Western Persian Gulf", very likely produced by ARAMCO for the Saudi Government before the meeting of the
1958 Geneva Conference (FO 371/132510), where it was stated that "any systematic legal treatment of this new
field must be grounded firmly on the concept of equity. Fortunately, all the Gulf States which have made
offshore claims have embodied this concept in their assertions, so it is already at hand for use. Yet while equity
must be the predominant factor, it must be tempered with practicality" (para. 5) (Annex IV.218, Vol. 11, p. 249;
emphasis in original).
The same problem arose again a few years later, during the negotiation of the 1968 Saudi Arabia-Iran
Delimitation Agreement, where the Parties encountered difficulties arising out of the absence of sufficient
geographical data to construct the accurate median line upon which they were agreed. As then explained by a
lawyer who was indirectly involved in those negotiations "At the outset no single map was found which
showed both sides of the Gulf in adequate detail and which was satisfactory to both sides for use in connection
with the agreement". And the same commentator added in a footnote: "Nautical charts of the Gulf, though
much improved in recent years, were found to lack accurate shoreline detail in areas not important for
navigation, and to have other shortcomings for delimitation purposes" (R. Young, "Equitable Solutions for
Offshore Boundaries, the 1968 Saudi Arabia-Iran Agreement", A.J.I.L., Vol. 64, No. 1, 1970, Annex IV.326,
Vol. 13, p. 288).
See, in particular, Annex IV.97, Vol. 9, p. 479.
In the Memorandum "Offshore Areas in the Western Persian Gulf", referred to in para. 10.15, footnote 30,above, the following suggestion was made: "Boundary lines should be as simple and regular as possible, to
facilitate quick ascertainment and prevent disputes. It is useful to have them related to well-defined points on
land or at sea" (Annex IV.218, Vol. 11, p. 249).
Annex IV.216, Vol. 11, p. 235.
S.H. Amin, "Customary Rules of Delimitation of the Continental Shelf. The Gulf States' Practice", Journal of
Maritime Law and Commerce, Vol. 11, No. 4, July 1980, Annex IV.291, Vol. 13, p. 57.
Annex IV.262, Vol. 12, p. 95.
Annex IV.119, Vol. 10, p. 89.
Annex IV.120, Vol. 10, p. 93.
Annex IV.121, Vol. 10, p. 97.
Annex IV.123, Vol. 10, p. 107.
Annex IV.131, Vol. 10, p. 169.
Annex IV.235, Vol. 11, p. 361.
Annex IV.246, Vol. 11, p. 415.
See, Annexes IV.82, IV.86 and IV.89, Vol. 9, pp. 393, 411 and 423. In the letters of 10 July 1946 and 22 July
1946 (Annexes IV.82 and IV.86), the claim was directed to the islands and shoals, as will be discussed in
Section 4, paras. 10.44 et seq., below.
Annex IV.118, Vol. 10, p. 83.
Annex IV.134, Vol. 10, p. 185. The same letter queried in very strong terms the right of the British Government
to decide boundary disputes between Bahrain and Qatar. In a further letter of 21 November 1949 the Ruler of
Bahrain repeated his claim to ownership of all the seas between Bahrain and Qatar (Annex IV.151, Vol. 10, p.
259).
Annex IV.158, Vol. 10, p. 295.
See, letter from Belgrave to the Political Agent in Bahrain dated 14 February 1950: "I have the honour to
inform you that His Highness has heard that an arbitration court is sitting at Doha to consider the claims of two
oil companies to the seas around Qatar. His Highness wishes the court to be informed that he claims the
ownership of the sea which lies between Bahrain and the coast of Qatar which is opposite to Bahrain, His
Highness fears that the court may come to some decision which will affect the sea which he claims. His
Highness desires me to remind you that he has at no time agreed to the boundary of his domain being restricted
by the line which was shown on the map which was enclosed in your letter N° C/1226 dated 23rd December
1947" (Annex IV.161, Vol. 10, p. 307). See , also, Annex IV.171, Vol. 10, p. 357.
Annex IV.136, Vol. 10, p. 193.
Annex IV.157, Vol. 10, p. 291.
Annex IV.193, Vol. 10, p. 473; emphasis added.
Annex IV.197, Vol. 10, p. 497. This claim seemed linked to the Ruler's pretensions over Zubarah ( see, for
instance, Annex IV.199, Vol. 10, p. 507), even if this was denied by Bahrain (Annex IV.201, Vol. 11, p. 5).
Annex IV.227, Vol. 11, p. 325.- An Ottoman sketch of June 1867 showing the borders of Qatar includes Dibal and Qit'at Jaradah clearly
separated from Bahrain by a dotted line (Annex IV.5, Vol. 9, p. 19);
- An Ottoman sketch of September 1867 showing the borders of Qatar includes Dibal and Qit'at
Jaradah (Annex IV.6, Vol. 9, p. 23);
- Conversely, an Ottoman sketch of October 1867 showing the borders of Bahrain does not include
Dibal and Qit'at Jaradah (Annex IV.7, Vol. 9, p. 27);
- An Ottoman sketch of November 1867 showing the borders of Qatar indicates that Dibal and
Qit'at Jaradah are the property of Qatar. The distance from these two fashts to the mainland are
indicated in leagues (Annex IV.8, Vol. 9, p. 33);
- A statement of November 1867 from a Turkish Marine Captain to the Vali in Hasa mentions that
Al Mamzoor (Dibal) and Qit'at Jaradah belong to Qatar (Annex IV.9, Vol. 9, p. 39);
- A statement from Barakah Bin Era'ar, Vali of Hasa, dated 26 February 1870 describes the sea
borders of Qatar as extending "from the coast of Zubarah up to approximately 20 marine
leagues" (Annex IV.11, Vol. 9, p. 49);
-A statement of the Vice Commander of the Sultanic Marine Fleet to Hafidh Basha, Governor of
the Province of Basrah, dated 5 October 1870 indicates the sea borders of Qatar: "from Zubarah
from the west in the direction of Bahrain is twenty marine leagues". Considering these distances,
the accompanying sketch would include the two fashts if they were drawn (Annex IV.13, Vol. 9, p.
57);
- A letter dated 17 November 1871 from Zayed Bin Khalifah, Sheikh of Abu Dhabi and Bin Yass,
to Medhat Basha, Vali of Hasa, specifies that Al-Mamzoor (Dibal) and Qit'at Jaradah belong to the
sea of Qatar (Annex IV.12, Vol. 9, p. 53);
- Another sketch dated 5 and 10 October 1874 with British and Turkish stamps represents Qatar
and includes specifically Qit'at Jaradah and Mamzoor (Dibal) (Annex IV.14, Vol. 9, p. 63);
- A letter from Zayed Bin Khalifah, Sheikh of Abu Dhabi, to Barakar Bin Era'ar, Vali of Hasa,
dated 23 December 1874 describes Al-Mamzoor (Dibal) and Qit'at Jaradah as belonging to Qatar
(Annex IV.15, Vol. 9, p. 67);
- A sketch of Qatar's borders made during the reign of Saeed Basha Al-Mousily, Vali of Hasa,
dated May 1898, and stamped by various Turkish and European seals shows Dibal and Qit'at
Jaradah as lying within those borders (Annex IV.17, Vol. 9, p. 75);
- A letter from the Vice Commander of the Sultanic Marine Fleet, Bash Jawish, to Hafidh Basha,
Governor of the Province of Basrah (undated) defines the sea borders of Bahrain as ending ten
marine leagues before the city of Zubarah. The accompanying sketch shows also the sea borders of
Qatar which face those of Bahrain; the two fashts would appear on the Qatari side if they were
shown (Annex IV.10, Vol. 9, p. 43).
See , paras. 6.41et seq., above.
Annex IV.231, Vol. 11, p. 343. In acknowledging receipt of this letter the Ruler of Bahrain informed the
Political Resident that he had put the matter in the hands of his lawyers (Annex IV.232, Vol. 11, p. 349).
The letter and Memorandum are reproduced as Annex IV.233, Vol. 11, p. 353 and Annex IV.254, Vol. 12, p.
17, respectively. The Memorandum was accompanied by two annexes (the first, dated 12 October 1950, is an
affidavit by Dr. Bhandarker; the second, dated 26 October 1950, is a statement by Jabor Musallam, a pearl
merchant of Bahrain). This Memorandum is referred to in a further letter from the Ruler to the Political
Resident dated 18 February 1962, reproduced as Annex IV.238, Vol. 11, p. 373. The final maps illustrating the
claim were officially sent by the Ruler's lawyers under cover of a letter dated 2 March 1964, corrected by afurther letter of 10 March 1964. These letters and the maps are reproduced as Annexes IV.250 and IV.251,
Vol. 12, pp. 1 and 5.
Annex IV.245, Vol. 11, p. 411. The reasons were not given. However, a confidential memorandum dated 17
May 1962 from Walmsley on the Bahrain/Qatar Seabed Boundary gives some clues:
"4. The claim embodied in the memorandum is extremely far-reaching. It is shown in green on the attached
chart. The claim as it stands is quite untenable, being based on the assumption that ancient rights over pearl
banks confer the right to sovereignty over the seabed" (Annex IV.242, Vol. 11, p. 391).
Annex IV.247, Vol. 11, p. 419.
Annex IV.248, Vol. 11, p. 425.
It was only on 31 August 1964 that Dr. Hassan Kamel, Adviser to the Qatari Government, was handed a copy
of the Ruler of Bahrain's 1961 Memorandum together with a copy of the two maps (Annex IV.254, Vol. 12, p.
17). This is the reason why, until the British archives were open and perused by the Qatari Government, this
document was referred to by Qatar as the "September 1964 memorandum" ( see,for instance, Qatar's
Application dated 5 July 1991, para. 23).
In his Memorandum the Ruler of Bahrain contended that "both Jaradah and Fasht Aldeeble are islands i.e. that
Jaradah and a part of Fasht Aldeeble are permanently above water at high tide, and have been for many years
universally recognised as belonging to Bahrain. There is permanent evidence of this in the well and watertap
established on each of them by the Bahrain authorities for the use of sailors and fishermen in their
areas" (Annex IV.254, Vol. 12, p. 17).
Dibal and Qit'at Jaradah are discussed in Section 4 of this Chapter; and the method for drawing a single
maritime boundary is addressed in Chapters XI and XII, below.
A detailed report on this subject is to be found in Appendix 4, Vol. 15, p. 111, hereto.
For instance, the line was officially confirmed to the Rulers on 30 April 1949 ( see, Annexes IV.131 and IV.133,
Vol. 10, pp. 169 and 179) but a little later in the year (21 November 1949) it was decided not to reconfirm it
(see,Annex IV.152, Vol. 10, p. 263). See, also, Annexes IV.153 and IV.163, Vol. 10, pp. 269 and 317. In mid-
1950 there was a decision not to modify the line: see, letter from FO to PAB dated 29 August 1950 (Annex
IV.173, Vol. 10, p. 365), after which there were many statements showing adherence to the 1947 line.
This issue will be analysed in the following section.
See , Annex IV.152, Vol. 10, p. 263. See, in particular, Annex IV.248, Vol. 11, p. 425. See , also, Annex IV.147,
Vol. 10, p. 241.
Annex IV.252, Vol. 12, p. 9.
See, para. 10.37, footnote 61, above.
Annex IV.255, Vol. 12, p. 51.
Annexes IV.115 and IV.116, Vol. 10, pp. 71 and 75.
See , paras. 10.22et seq., above.
Annex IV.79, Vol. 9, p. 381.
Annex IV.82, Vol. 9, p. 393.
Annex IV.86, Vol. 9, p. 411.Annex IV.89, Vol. 9, p. 423.
Annex IV.90, Vol. 9, p. 427.
Annex IV.83, Vol. 9, p. 397.
Annex IV.92, Vol. 9, p. 435.
Annex IV.93, Vol. 9, p. 449.
Annex IV.108, Vol. 10, p. 35.
Appendix 5, Vol. 15, p. 125.
See, "Prediction of High and Low Waters", October 1995 and July 1996, Ministry of Communication and
Transport, Annex IV.328, Vol. 13, p. 303.
See, Annex IV.328, Vol. 13, p. 303.
Annex IV.93, Vol. 9, p. 449; emphasis added.
Annex IV.63, Vol. 9, p. 309.
Annex IV.310, Vol. 13, p. 195.
Annex IV.35, Vol. 9, p. 161.
Annex IV.191, Vol. 10, p. 465.
Annex IV.195, Vol. 10, p. 483. The same position was conveyed in similar terms by the Political Agent
Bahrain to the Ruler of Bahrain on l7 September l951 (Annex IV.196, Vol. 10, p. 491). Similarly, on 21
January 1952, Prof. C.H.M. Waldock produced in favour of BAPCO an opinion entitled "The North Jarim Area
- The Sheikh of Bahrein's Claim to the Sea-bed and Subsoil" in which he mentioned the following: "21. It is
understood from the Foreign Office that in the London negotiations Saudi Arabia admitted Bahrein's claim to
the Jarim Shoal. I am not clear whether this admission was made on the footing that Bahrein was acknowledged
to have previously possessed territorial sovereignty over the Shoal or on the footing that a median line would in
any case place the Shoal on the Bahrein side of the boundary" (Annex IV.203, Vol. 11, p. 27).
Annex IV.216, Vol. 11, p. 235. See, also, Annex IV.162, Vol. 10, p. 311: "We are glad to see from your letter
EA 1276/1 of the 27th January, to Sir R. Hay that you contemplate that, where there is no clear cut title to any
island it will go to the State in whose sea-bed it is situated".e, also, Annex IV.192, Vol. 10, p. 469. "... the
Rennie and Bu Sa'afah shoals, ... are not, to the best of my belief, strictly speaking shoals at all, in that they are
never exposed at any state of the tide though they both have lights or some sort of marker on them. Their
ownership should, in my opinion, be based on any decision which may be reached regarding the position of the
sea-bed boundary. On the other hand, if these two shoals are taken into account in the forthcoming negotiations,
we shall also probably have to take into consideration other similar shoals such as Ashira and Bu Athama."
Annex IV.205, Vol. 11, p. 61.
Annex IV.83, Vol. 9, p. 397.
See, PAB to PRPG, 20 August 1937, expecting that Qatar "might lay claim" to Fasht Dibal, Jaradah and the
Hawar group (Annex IV.36, Vol. 9, p. 167); Prior, PRPG, to Secretary of State for India, 7 June 1940: "The
only equitable boundary for the two companies [ sic] should lie midway between respective shores" (Annex
IV.63, Vol. 9, p. 309) and Prior to Peel, IO, 26 October 1941 (Annex IV.70, Vol. 9, p. 339); Harrison, Under-
Secretary of State for India to Stock, Ministry of Fuel and Power, 2 July l946: "From the map it looks as though
the spots where Bapco want to drill in both these areas might more properly fall to Qatar" (Annex IV.80, Vol.9, p. 385); Stock, in his reply of 17 July 1946 concurs: "... a frontier line should then be drawn due north from
the Hawar Islands which would leave Jabal and Jaradeh ... in Qatar territory" (Annex IV.85, Vol. 9, p. 405); and
Harrison, India Office, to Gault, FO, l3 February l947 :"It looks as though the Bahrein claims to these shoals
will have to be upheld in spite of the fact that they would on grounds of contiguity most naturally fall to
Qatar." (Annex IV.94, Vol. 9, p. 459).
95 See , paras. 9.11-9.12, above.
__________
CHAPTER XI
THE SINGLE MARITIME BOUNDARY AND THE 1947 LINE
Introduction
11.1 In its Application filed in the Registry on 8 July 1991, the State of Qatar requested the Court:
"With due regard to the line dividing the sea-bed of the two States as described in the British
decision of 23 December 1947, to draw in accordance with international law a single maritime
boundary between the maritime areas of sea-bed, subsoil and superjacent waters appertaining
respectively to the State of Qatar and the State of Bahrain."
11.2 Accordingly, the task of the Court in this respect is to draw a boundary line which will divide the different
maritime zones that the two States are entitled to claim under present international law, and which has to be an
all-purpose dividing line. In the drawing of such a line, it cannot be said that the Court is faced with a purely
novo maritime delimitation, since in a part of the relevant maritime area a line dividing the seabed between the
1
Parties had already been drawn in 1947 by the British authorities . It follows from this consideration that the
Court will have to make an evaluation of what weight should be given to this previous line in the drawing of the
single maritime boundary. In the view of Qatar, it will be convenient to consider the delimitation in two distinct
sectors. The southern sector is the one in which the main part of the line of the British decision of 1947 is
located. In this sector the coasts of Qatar and Bahrain are opposite. The northern sector is the sector starting
north of a notional line joining Ras Rakan and Muharraq up to the lines of the continental shelf delimitation
agreements of the two States with Iran. The BLV point mentioned in the British decision of 1947 is to be found
in the southern part of the northern sector.
11.3 It may be noted that the extension of their respective territorial seas by Qatar in 1992 and by Bahrain in
1993, up to twelve nautical miles, has generated a new legal situation with respect to which the weight to be
given to the 1947 dividing line has to be evaluated. Within the context of this situation, the 1947 line is now
certainly an important factor to be taken into account for the purpose of drawing the single maritime boundary.
11.4 This Chapter will be devoted to these different aspects and, having regard to the new situation referred to
above, it will also demonstrate that any claim by Bahrain concerning archipelagic baselines would be irrelevant
for the purpose of maritime delimitation in the present case.
Section 1. The Extension of the Territorial Sea by Qatar and Bahrain
11.5 The movement towards the extension of territorial waters began in the Gulf when Saudi Arabia and Iraq in
2
1958 and Iran in 1959 enacted national legislation establishing a 12-mile limit . Kuwait and Oman took steps to
that end in 1967 and 1972, respectively . Since the decisions taken by Qatar in 1992, and by both Bahrain and
4
the United Arab Emirates in 1993, all the Gulf States now have a 12-mile territorial sea .
A. The 1992 Qatari Decree and Bahrain's Reaction
11.6 When Amiri Decree No. 40 of 1992 was issued on 16 April 1992, defining the breadth of the territorial seaand contiguous zone of the State of Qatar, it was made clear that this decision was fully in accordance with the
5
existing rules of international law .
11.7 In a protest note dated 14 May 1992, the Ministry of Foreign Affairs of the State of Bahrain raised the
point that the Qatari Decree did not make any provision for a maritime boundary with Bahrain and, arguing that
different islands and features lying within the maritime areas concerned were part of Bahrain's territory, it
stressed the impossibility for the Qatari territorial sea to be extended to 12 nautical miles where the coasts of
the two States faced each other. The Ministry of Foreign Affairs of the State of Qatar rejected the Bahraini
allegations concerning those islands and features by a note dated 26 May 1992, in which emphasis was put on
the fact that Qatar had never recognized the British decisions that had purported to declare that the Hawar
islands belong to Bahrain and that it had recently submitted to the International Court of Justice the question of
sovereignty over those islands pursuant to the 1987 and 1990 Agreements which had been reached between the
two States 6.
B. The 1993 Bahraini Decree-Law
11.8 One year after the Qatari decision extending to 12 nautical miles the breadth of its territorial waters, the
State of Bahrain issued on 20 April 1993 a Law by Decree with respect to its territorial sea and contiguous
zone, whose object and purpose were exactly the same as those of Qatari Decree No. 40 of 1992 7. The only
difference between these two national texts lay in the fact that the Bahraini decree-law contained no explicit
provision dealing with the right of innocent passage through territorial waters, the navigational rights of foreign
vessels in those waters being simply identified through the broad reference made to the 1982 United Nations
Convention on the Law of the Sea in the preamble but not in the operative part of the text.
11.9 The 1993 Bahraini decree-law was undoubtedly issued as a reaction to the 1992 Qatari decree. In this
respect, it is noteworthy that, in its above-mentioned protest of 14 May 1992, Bahrain had made it perfectly
clear that it would extend in due time its own territorial sea to 12 nautical miles and would claim also a
8
contiguous zone up to a further 12 nautical miles, as had been done by Qatar .
C. The Consequence of the Extension of the Territorial Sea in the Present Case
11.10 It is apparent that as a consequence of the extension of their respective territorial seas by both States,
there has been a change in the status of some parts of the maritime areas in which the Court is asked to draw a
maritime boundary. At the time of the filing by Qatar of its Application in the Registry of the Court, on 8 July
1991, each of the two territorial seas had a breadth of 3 nautical miles and they did not overlap, thus leaving an
area of continental shelf and superjacent high seas between the two facing coasts of Qatar and Bahrain. But by
the time of the Court's Judgment of 15 February 1995, that part of the maritime area lying between the coasts of
Qatar and Bahrain was formed by the overlapping territorial seas of the two States.
11.11 In the present situation, the two areas of territorial waters overlap in the southern sector ( ., south of the
line drawn between Ras Rakan and Al-Muharraq), as a result of the short distance between the two opposite
coasts which virtually nowhere exceeds 24 nautical miles. Consequently, in that part of the delimitation area,
the request presented to the Court, in conformity with the Bahraini formula, "to draw a single maritime
boundary between [the] respective maritime areas of sea-bed, subsoil and superjacent waters" of the Parties
effectively concerns the delimitation of their respective areas of territorial sea,i.e. maritime zones where by that
very fact, sovereignty extends to the waters as well as to the bed and subsoil of the sea and also to the
9
superjacent air space . Moreover, it may be seen from Map No. 14 , facing this page, that the shoal of Qit'at
Jaradah is wholly included in the area where the territorial seas of Qatar and Bahrain overlap, and the shoal of
Dibal is situated partly within the territorial sea of Qatar . In these circumstances, the question arises of what
weight should now be given to the 1947 line.
Section 2. The 1947 Line in the New Situation created by the Extension of the Territorial Seas
11.12 Not only do the new 12-mile territorial seas overlap in the maritime area located between the two
opposite coasts of Qatar and Bahrain, but there is also an overlap between some portion of the sea-bed as
delimited in 1947 and the extended territorial waters. The latter is all the more important in that it could involve
some conflict between soverei gn rights pertaining to one State and the sovereignty of the other State. Thus, therequest presented to the Court for the drawing of a single maritime boundary has to be examined in the light of
that situation.
A. Sovereign Rights over the Sea-Bed as delimited in 1947 and their Overlap with the Extension of
Sovereignty
11.13 The British decision of 23 December 1947 delimiting the sea-bed areas lying between the territory of
Qatar and that of Bahrain was taken within the context of the then emerging continental shelf legal doctrine and
11
the fact that in the Gulf three miles was the generally recognized breadth of the territorial sea . The purpose of
the dividing line so established was to delimit the respective areas in which the two Sheikhdoms possessed
sovereign rights over the natural resources of the sea-bed and the subsoil thereof. By adopting recently the 12-
mile rule for their territorial seas, the State of Qatar and the State of Bahrain are now entitled to claim and to
exercise full sovereignty over those areas, at least up to whatever delimitation line between their respective
coasts may be determined.
11.14 Such a change in the nature and extent of the rights of the two coastal States would have no legal or
practical consequences if the 1947 dividing line were a strict median line. However, it was not the strict median
line between the two main coasts, as has been previously demonstrated . This was not the intent of the British
authorities. The line resulting from the 1947 British decision was an adjusted line which was drawn closer to
the coast of Bahrain, the adjustment being made, especially in the area lying directly between the two coasts,
apparently in view of the difference between coastal lengths 13. Consequently, there is a portion of the sea-bed
area concerned where the State of Qatar would be entitled to exercise its sovereign rights pursuant to the 1947
decision, while that portion would fall under the sovereignty of the State of Bahrain as part of its new territorial
sea, on the supposition that the boundary between the two new territorial seas would be a median line.
11.15 Sovereign rights over the sea-bed as delimited in 1947 now overlap with the extended sovereignty of
both States over the same area as a result of their respective 12-mile territorial seas. According to the legal
regime of the continental shelf, the sovereign rights inhering in the coastal State are exclusive and do not
depend on effective or notional occupation or on any express proclamation ; they exist " ipso facto and ab
15
initio" and are regarded as the expression of "an inherent right ". On the other hand, it is indisputable that
every coastal State has the right to establish the breadth of its territorial sea, to which its sovereignty
automatically applies, up to a limit not exceeding 12 nautical miles 16 (in the absence of an opposite State within
24 miles of the relevant baseline) and that it has the exclusive power to act with respect to the delimitation of
the outer limit of its territorial waters: "the act of delimitation is necessarily a unilateral act, because only the
coastal State is competent to undertake it... ". The problem thus created may have practical consequences in
view of the task of the Court in the present case.
B. What is the Effect of the Request for the Drawing of a Single Maritime Boundary in these
Circumstances?
11.16 In the southern sector, the maritime boundary will in any case be a single line in the sense that it will
divide the respective areas of seabed, subsoil and superjacent waters, and will be an all-purpose dividing line.
In fact, as already noted, it will be the boundary between two territorial seas. It is quite obvious that different
questions arise immediately as far as the pre-existing dividing line drawn in 1947 for the continental shelf is
concerned.
11.17 If the boundary line were to be drawn by the Court with due regard to the 1947 line, as Qatar submits it
should be, what would be the impact of the general trend in State practice, and in particular in the practice of
Gulf States, according to which boundaries drawn for the sea-bed quite automatically become maritime
boundaries for any purpose, especially when exclusive economic zones or fishing zones are established ? 18
Could the solution of transforming a continental shelf delimitation line into a single maritime boundary
applying also to EEZ delimitation be transposed in the present case? In other words, would it be possible for the
1947 dividing line to be used partly as the boundary between the two areas of territorial sea, as has sometimes
been the case when part of a preexisting continental shelf delimitation line was transformed into a territorial sea
boundary in consequence of the extension of the breadth of their territorial waters by the States concerned ?1911.18 In the submission of Qatar, the role and effect of the 1947 dividing line have to be appraised in the light
of the present rules applicable to maritime delimitation between States as reflected in the now substantial body
of case law. Qatar also submits that, subject to the situation explained hereunder concerning the southern part of
the 1947 dividing line, that line constitutes an important factor to be taken into consideration.
Section 3. The 1947 Line as an Important Factor for the Delimitation of the Maritime Boundary
11.19 Qatar does not contend that the 1947 line is to be automatically regarded as theboundary line to be
delimited between the maritime areas pertaining to Qatar and those pertaining to Bahrain. However, the Court,
when drawing the single maritime boundary, cannot act as if that line had never existed. As was stated in the
submissions contained in Qatar's Application instituting the present proceedings, the single maritime boundary
that the Court is requested to draw should be delimited "with due regard to the line dividing the sea-bed of the
two States as described in the British decision of 23 December 1947 20". In other words, the 1947 line, by the
very fact that it was drawn as a continental shelf boundary between the two Parties, is a factor or a circumstance
highly relevant for the purpose of the drawing of a single maritime boundary.
11.20 The reason why Qatar is asking the Court to draw the single maritime boundary "with due regard to" the
1947 line and is not claiming a single maritime boundary drawn "along" that line lies in the fact that the
southern part of the 1947 line (south of point L) now has to be disregarded because of two basic legal
considerations, namely: Qatar's sovereignty over the Hawar islands, and a third State's rights at the entrance of
the Dawhat Salwah. In the view of Qatar, it is necessary first to deal with those considerations which require
the southern part of the 1947 line to be disregarded, and then to show how the remaining part of that line is to
be viewed both as a special circumstance for the delimitation of the territorial seas, and as a relevant
circumstance for the single maritime boundary beyond the outer limit of the territorial seas.
A. Qatar's Sovereignty over the Hawar Islands and its Effect on the Portion of the 1947 Line Enclaving
those Islands
11.21 The British decision of 23 December 1947 delimited the sea-bed lying between Qatar and Bahrain by a
main dividing line starting from a point in the south defined as point M, running northward through a point
identified as point K, thence to the North Sitrah Light Buoy (NSLB), and from there to the Bahrain Light
Vessel (BLV). However, because of the previous 1939 decision that the Hawar islands belonged to Bahrain, the
1947 British decision provided for an exception concerning the islands of the Hawar group and the territorial
waters pertaining thereto. Thus it drew a line comprising initially twelve segments and enclaving the Hawar
islands. According to the letter dated 23 December 1947 from the British Political Agent to the Ruler of Qatar,
the dividing line in the region of the Hawar islands was shown on a map by a line joining successively points
A, B, C, D, E, F, G, H, I, J, I and L. Furthermore, the said letter added the following indication:
"As this delimitation will, however, leave a narrow tongue of water (formed by the points M, J, and
I) pertaining to Qatar it has been decided to alter the line H, I, J, to H, P, Q, thus exchanging an
equal area PIO for OJQ 21."
The enclave finally drawn around the Hawar islands was therefore a line starting from point L and joining
points A, B, C, D, E, F, G, H, P and Q, as shown on Map No. 15 , facing this page.
11.22 It suffices to recall here that the Ruler of Qatar protested against the British Government's decision of
1939 upholding the claim of Bahrain to the Hawar islands . Later on, while declaring he had no alternative but
to accept the line defined in the 1947 British decision, he made a reservation concerning in particular the
23
exception relating to the Hawar islands . Thus the part of the 1947 line enclaving the Hawar islands was not
accepted by Qatar.
11.23 In the present proceedings, Qatar has requested the Court to adjudge and declare that it has sovereignty
over the Hawar islands, and it has fully demonstrated above that its claim is well-founded both in fact and in
24
law . Therefore, it follows that the part of the 1947 line enclaving those islands, on the false assumption that
they belonged to Bahrain, cannot be taken into consideration for the purpose of the delimitation of the single
maritime boundary that the Court is requested to draw. That part of the line has to be disregarded on the
assumption that the Hawar islands are recognized by the Court as pertaining to Qatar . 2511.24 The part of the 1947 line which must be disregarded is that portion starting from point L and running
26
around the Hawar islands up to point Q . It is noteworthy that point K, which was defined in the 1947 British
letter as one of the "points on the main dividing line" , disappeared as a result of the construction of the line
enclaving the Hawar islands. As a matter of fact, instead of starting from that point to draw the enclave around
the Hawar islands, the British Government decided to create a new point located north of point K and identified
as point L, the latter being considered at that time as an integral part of the enclaving line. The justification for
so doing was to be found in the express intent of the British Government to include within the enclave the
territorial waters pertaining to the Hawar islands and to delimit them "in accordance with the usual principles of
international law" 28. Thus, point L was the point from which the Hawar islands produced an effect on the
drawing of the main dividing line. As such it had, and still has, an important legal significance.
11.25 Contrary to the starting point of the enclaving line (point L), the ending point of that line (point Q) was
not defined in the 1947 British letter, which did not give its position in terms of bearing and distance from an
identified base-point. Point Q was a purely artificial point generated by the particular exchange of two small
triangular areas between Qatar and Bahrain settled by the British Government, when they decided to alter the
last segment of the enclaving line, as previously indicated . Point Q had no actual justification of its own.
11.26 As the southernmost segment of the 1947 line was a straight line joining point Q to point M, that segment
must also be disregarded, especially when it is understood that, due to the location of point M, the said segment
of the line would interfere with the rights of a third State in that area.
B. Rights of a Third State at the Entrance of the Dawhat Salwah and their Impact on the Southern
Segment of the 1947 Line
11.27 According to the 1947 British letter, point M, which was the starting point of the dividing line drawn by
the British Government, was defined as "180° true 18.03 Nautical Miles from the Triangulation No. 102 at Ras
al Barr" . Point M was shown on the map appended to that letter as being plotted at: latitude 25°30'00"N,
longitude 50°33'55"E. It was located at the entrance of the Dawhat Salwah, a tongue of sea lying between the
peninsula of Qatar and the coast of Saudi Arabia.
11.28 It appears from more precise data available today that point M is clearly situated within the maritime
zone pertaining to Saudi Arabia and cannot therefore be regarded as a dividing point between Qatar and
Bahrain. This is self-evident when one takes into consideration the delimitation agreements that have been
concluded since the drawing of the 1947 line, both between Qatar and Saudi Arabia and between Bahrain and
Saudi Arabia, the lines of which also begin in or near the entrance of the Dawhat Salwah.
11.29 The Qatar-Saudi Arabia Agreement signed on 4 December 1965 does not describe with coordinates the
starting point of the maritime delimitation within the Dawhat Salwah. Article 1 of that agreement only states
that "Dohat Salwa shall be divided equally between the two countries by the method of equidistance points
from both shores". It seems quite obvious that the first equidistant point between Qatar and Saudi Arabia in that
area would not coincide with point M of the 1947 line, whatever may be the manner of practical application of
the equidistance method, but would certainly be located to the north of point M.
11.30 By way of consequence, the starting point of the 1947 dividing line (Point M) must be disregarded in
order not to encroach on the rights of a third State. When it is a question of making a maritime delimitation, all
judicial or arbitral organs are extremely careful to ensure that they do not prejudice the rights and interests of
third States. Thus, in 1977, the Anglo-French Arbitral Tribunal preserved the rights of Ireland in accordance
with the relative authority of the res judicata principle, because the decision that it took was not to be binding
31
on Ireland and was not to prejudice any future Anglo-Irish delimitation . Similarly, in 1982, the Court left in
existence some uncertainty as to the terminal point of the maritime border between Libya and Tunisia, in order
to take into account any future delimitations in the area, likely to involve the rights of third States such as Italy
32
or Malta . More clearly still, in the Libya/Malta case, taking into account the Judgment of 21 March 1984 in
relation to Italy's application for permission to intervene , the Court decided in 1985 to limit its geographical
scope, so as not to affect Italy's claims4.
11.31 As for the Agreement signed on 22 February 1958 by Bahrain and Saudi Arabia, it provides for a startingpoint at "Point 1 located at the midpoint of the line connecting the tip of Ras al Barr at the southernmost
35
extremity of Bahrain, and Ras Abu Maharah ... on the coast of the Kingdom of Saudi Arabia ". The
coordinates of the point so defined are: 25°35'38"N-50°31'45"E. Thus, one can see that point 1 of the Bahraini-
Saudi delimitation does not coincide with point M of the 1947 line, but is located to the north of it. For reasons
of convenience and clarity, point 1 of the delimitation agreement between Bahrain and Saudi Arabia will
hereafter be referred to as "point S1" 36.
11.32 In Qatar's view, in the area of the entrance of the Dawhat Salwah, the maritime zone pertaining to Saudi
Arabia certainly does not extend to the north beyond point S1. Moreover, under the agreement between Bahrain
and Saudi Arabia, it seems also quite obvious that Bahrain is not entitled to claim rights over the maritime area
extending to the east of point S1. Such a situation leaves it open to the Court to decide on a maritime boundary
between Qatar and Bahrain starting from point S1 . 37
11.33 It follows from the above considerations that the segment of the 1947 line between points M and Q as a
whole has to be disregarded. Consequently, taking into account what has previously been said concerning the
Hawar islands enclave, Qatar submits that, south of point L as defined in 1947 by the British Government, the
single maritime boundary between Qatar and Bahrain could be a straight line joining point S1 and point L.
11.34 Therefore the part of the 1947 line which constitutes a relevant factor for the delimitation of the single
maritime boundary with Bahrain is the part of the line extending north of point L, in other words the line
starting from point L and running northwards to North Sitrah Light Buoy (NSLB) and to Bahrain Light Vessel
(BLV) ( See,Map No. 16 , facing this page). Accordingly, attention will now be directed to that aspect.
C. The 1947 Line as a Special Circumstance for the Delimitation of the Territorial Seas
11.35 The maritime boundary is to be drawn in accordance with international law. As far as the delimitation of
the territorial seas between Qatar and Bahrain is concerned, the applicable rule of international law is embodied
in Article 15 of the 1982 United Nations Convention on the Law of the Sea, which reads as follows:
"Where the coasts of two States are opposite or adjacent to each other, neither of the two States is
entitled, failing agreement between them to the contrary, to extend its territorial sea beyond the
median line every point of which is equidistant from the nearest points on the baselines from which
the breadth of the territorial seas of each of the two States is measured. The above provision does
not apply, however, where it is necessary by reason of historic title or other special circumstances
to delimit the territorial seas of the two States in a way which is at variance therewith."
11.36 Qatar signed the Convention on 27 November 1984 but has not yet ratified it. Bahrain, which signed the
Convention on 10 December 1982, ratified it on 30 May 1985. The Convention is now in force, since 16
November 1994, between States which have ratified or acceded or succeeded to it, but it does not constitute a
convention in force between Qatar and Bahrain. Nevertheless, if the rule enunciated in Article 15 is not binding
on Qatar and Bahrain as a conventional rule, there can be no doubt that the delimitation rule incorporated in
that article is part of customary international law and, as such, is applicable to the present case. As a matter of
fact, the terms of Article 15 of the 1982 Convention are, with the exception of two minor stylistic changes,
exactly the same as those of Article 12 of the 1958 Convention on the Territorial Sea and Contiguous Zone,
which has long been considered as forming part of customary international law . 38
11.37 Accordingly, in the relatively restricted maritime area lying between the opposite coasts of Qatar and
Bahrain, the boundary of the two territorial seas is to be established by application of the equidistance method,
at least as a first step in the delimitation process. Such a provisional median line has to be drawn by taking
exclusively into consideration the two main opposite coasts, without regard to the numerous particular features
existing in the area, because most of those features do not qualify as islands generating their own maritime
zone. Those features can be regarded as "unusual features" which are to be neglected or disregarded for
delimitation purposes. Such a solution is in accordance with the general practice as followed by Gulf States in
their delimitation agreements already concluded. Thus, in the 22 February 1958 agreement between Saudi
Arabia and Bahrain and the 20 September 1969 agreement between Iran and Qatar, islets and low-tide
elevations were not taken into consideration39or the drawing of the median line and more particularly for the
calculation of the boundary turning points . And one has also to keep in mind that with the so-called "Boggs-Kennedy line" drawn in 1948, the authors did not take account of any shoal, rock or islet, and suggested that the
lateral line between Qatar and Bahrain be the median line equidistant from the mainland of Qatar and the
40
Bahrain islands .
11.38 Among the "special circumstances" referred to in the general rule governing the delimitation of territorial
seas, it may be wondered whether the difference between the length of the respective coasts of Qatar and
Bahrain facing the maritime area in this sector might not be a circumstance rendering it "necessary" to delimit
the territorial seas in a way at variance with strict equidistance. From this point of view, there is no strict
equality between the two States in terms of coastal geography. There is no doubt that such a consideration,
which has played a role in cases relating to the delimitation of continental shelves, may also be taken into
account for the purpose of delimiting two territorial seas, because the reference to special circumstances here is
also a clear indication that the final aim of the delimitation process must be a balanced representation of the
geographical circumstances. Summarising the main trend of the international jurisprudence concerning the
delimitation of the continental shelf, in a study devoted to the single maritime boundary, Professor Paul Reuter
stated as follows:
"... cette jurisprudence s'efforce de ne pas aggraver par le recours à la géométrie, qui est
l'instrument inévitable des délimitations maritimes, les fantaisies et les inéquités de la nature, mais
de leur donner une traduction équilibrée; on ne voit pas a priori cette tendance nécessairement
limitée aux délimitations du plateau continental; les préoccupations auxquelles elle ré pond doivent
être présentes lorsqu'il s'agit de la délimitation de n'importe quel espace maritime ."1
Therefore, in the drawing of the maritime boundary of the territorial seas of the Parties, there is no reason not to
reflect, to some extent, the geographical situation by means of an adjustment of the median line. And it must be
remembered that the 1947 line was indeed a sort of adjusted median line.
11.39 Even if the coastal geography, as such, were not regarded as a special circumstance authorising the Court,
in the present case, to depart from a strict or true median line, the Court nevertheless could not totally ignore
the fact that a previous dividing line had been drawn concerning the sea-bed areas, and that that line was based
42
on geographical considerations . In fact, the 1947 line in itself constitutes a special circumstance insofar as it
was drawn in order to permit each of the two interested States actually to exercise its inherent right over the
sea-bed. While it cannot be said that any historic title has derived from that decision, the situation thus created
however does not fall far short of it. This consideration alone sufficiently demonstrates the importance of the
1947 line as a circumstance covered by the "historic title or other special circumstances" reference contained in
Article 15 of the 1982 Convention.
D. The 1947 Line as a Relevant Circumstance for the Single Maritime Boundary beyond the Outer Limit
of the Territorial Seas up to BLV
11.40 The 1947 dividing line was drawn up to the Bahrain Light Vessel (BLV) through the North Sitrah Light
Buoy, two points located 28.05 and 15.20 nautical miles respectively from the Political Agent's flagstaff in
43
Bahrain . BLV lies outside the extended territorial seas of the Parties. When the British authorities selected
those points, they had in mind the requirements of maritime access to Bahrain through the Sitrah Channel, and
this was probably sufficient motivation for the choice of these aids to navigation as points of reference for the
drawing of the dividing line, coupled with the advantage of eliminating any uncertainty in the demarcation.
Although the expression was not used at the time for obvious reasons, the concept of relevant circumstances
was unquestionably at the root of the choice made by the British authorities.
11.41 Beyond the outer line of the territorial seas of the two States, the single maritime boundary that the Court
has been asked to draw will be determined by application of the well-established international law rule
according to which the aim of any maritime delimitation process is to reach an equitable solution. And, as
underlined by the International Court in the case concerning Maritime Delimitation in the Area between
Greenland and Jan Mayen, in a case involving opposite coasts, the application of "an equidistance-special
circumstances rule produces much the same result as an equitable principles-relevant circumstances rule ...,
whether in the case of a delimitation of continental shelf, of fishery zone, or of an all-purpose single
44
boundary ".11.42 For purposes of the present delimitation, the 1947 line, and particularly its identified terminal point at
BLV, is a circumstance that is all the more relevant in that there is no other objective factor in this part of the
delimitation area which could be taken into consideration. In one way or another, the location of BLV and the
fact that it played an important role in the definition of the 1947 line seem to be highly relevant circumstances
for the drawing of the maritime boundary beyond the external limits of the two territorial seas, not only up to
BLV but also beyond that point 45.
Section 4. Irrelevance of an Archipelagic Claim by Bahrain
11.43 The 1982 United Nations Convention on the Law of the Sea has recognised for the first time the concept
of "archipelagic States", to which Part IV of the Convention (Articles 46-54) is devoted. It is noteworthy that
this new conventional regime was devised in order to permit States constituted by one or more mid-ocean
archipelagoes to draw, under certain conditions, straight baselines joining the outermost islands and drying
reefs of the archipelago, and to use those lines, known as "archipelagic baselines", to measure the breadth of
their territorial sea, contiguous zone, exclusive economic zone and continental shelf. It is also noteworthy that,
according to information available in the Office of Legal Affairs of the United Nations (Division for Ocean
Affairs and the Law of the Sea), Bahrain is not listed among the 15 States which have claimed archipelagic
status46.
47
11.44 The item "archipelagic baselines", which was raised at the instance of Bahrain , has been placed on the
list of subjects falling within the jurisdiction of the Court by virtue of the 1987 and 1990 agreements concluded
by Qatar and Bahrain. It was submitted to the Court through the Act filed in the Registry by Qatar on
48
30 November 1994 .
11.45 However, Bahrain has never actually produced a claim of archipelagic status, either as regards its
relations with Qatar or with respect to other States. The basic reason for Bahrain's refraining from any
archipelagic claim may well be found in the circumstance that it could hardly legally qualify as an archipelagic
State as defined by the 1982 Convention, since it would have difficulty in proving that it meets the
requirements of that Convention, in particular the ratio of the area of water to the area of land provided for in
49
Article 47, paragraph 1 .
11.46 Moreover, in the absence of any formal Bahraini claim of archipelagic status, there is not, properly
speaking and in the legal sense, any dispute between Qatar and Bahrain concerning an archipelagic claim. Even
if there were a dispute, in the circumstances a decision of the Court would be moot and therefore would be
incompatible with the judicial function of the Court. As the Court said in its Judgment of 18 November 1953 on
the Preliminary Objection in the Nottebohm case, "the seising of the Court is one thing, the administration of
justice is another ". In the Northern Cameroons case, the Court was thus obliged to recall:
"There are inherent limitations on the exercise of the judicial function which the Court, as a court
51
of justice, can never ignore ."
In that case, the Court decided that the circumstances rendered any adjudication devoid of purpose and,
considering itself as being the guardian of the Court's judicial integrity, it stated that:
52
"The Court must discharge the duty ... to safeguard the judicial function ."
Accordingly, Qatar submits that an archipelagic claim by Bahrain is totally irrelevant in the present case.
Section 5. Conclusion
11.47 The single maritime boundary that the Court is requested to draw with due regard to the 1947 line could
be a line starting from point S1, the first segment of which being a straight line between point S1 and point L of
the 1947 line, the second and third segments following the 1947 line (from point L to BLV through NSLB)
(see, Map No. 16 , facing page 258). Qatar's submission that the single maritime boundary is to be drawn with
due regard to the 1947 line applies not only to the southern sector in which the main part of that line is located,
but also concerns directly the part of the northern sector where the 1947 line extends up to the point referred toas BLV, as has been demonstrated in the present Chapter. Therefore, in considering the starting point of the last
segment of the single maritime boundary, which will be discussed in the following Chapter, the Court will
necessarily have to pay due regard to the 1947 line.
CHAPTER XI THE SINGLE MARITIME BOUNDARY AND THE 1947 LINE 247
Introduction 247
Section 1. The Extension of the Territorial Sea by Qatar and Bahrain 248
A. The 1992 Qatari Decree and Bahrain's Reaction 248
B. The 1993 Bahraini Decree-Law 249
C. The Consequence of the Extension of the Territorial Sea in the
Present Case 249
Section 2. The 1947 Line in the New Situation created by the Extension of the
Territorial Seas 250
A. Sovereign Rights over the Sea-Bed as delimited in 1947 and
their Overlap with the Extension of Sovereignty 251
B. What is the Effect of the Request for the Drawing of a Single
Maritime Boundary in these Circumstances? 252
Section 3. The 1947 Line as an Important Factor for the Delimitation of the Maritime
Boundary 253
A. Qatar's Sovereignty over the Hawar Islands and its Effect on the
Portion of the 1947 Line Enclaving those Islands 254
B. Rights of a Third State at the Entrance of the Dawhat Salwah and
their Impact on the Southern Segment of the 1947 Line 256
C. The 1947 Line as a Special Circumstance for the Delimitation of
the Territorial Seas 258
D. The 1947 Line as a Relevant Circumstance for the Single
Maritime Boundary beyond the Outer Limit of the Territorial Seas
up to BLV 261
Section 4. Irrelevance of an Archipelagic Claim by Bahrain 262
Section 5. Conclusion 264
1 See,Chapter X, above.
2 See, Annexes IV.215, IV.217 and IV.219, Vol. 11, pp. 231, 245 and 269.
3 See, Annexes IV.257 and IV.265, Vol. 12, pp. 65 and 121.
4 See, Annex IV.282, Vol. 12, p. 265.
5 See,Annex IV.278, Vol. 12, p. 241.
6 For the text of the Bahraini and Qatari notes of 14 and 26 May 1992,ee,Annexes IV.279 and IV.280, Vol.12, pp. 247 and 253.
7 Annex IV.281, Vol. 12, p. 261.
8 See, Annex IV.279, Vol. 12, p. 247.
9 Article 2 of the 1982 Convention on the Law of the Sea.
10 See , para. 10.72, above.
11 See , paras. 10.2t seq., above.
12 See , paras. 10.13t seq., above.
13 See , para. 10.21, above.
14 See , Article 2 of the 1958 Geneva Convention on the Continental Shelf and Article 77 of the 1982 United
Nations Convention on the Law of the Sea.
15 North Sea Continental Shelf ,udgment I.,.J. Reports 1969 , p. 22, para. 19.
16 See , Article 3 of the 1982 Convention on the Law of the Sea.
17 Fisheries,Judgment, I.C.J. Reports 1951 , p. 132.
18 See , para. 12.8, below.
19 See , for example, the Agreement between France and the United Kingdom on the Territorial Sea Boundary
in the Straits of Dover, signed on 2 November 1988, transforming the status of the boundary in that Straits from
a continental shelf boundary to a territorial sea boundary, as a result of the extension of the United Kingdom's
territorial sea up to 12 nautical miles. J.I. Charney and L.M. Alexander (eds.),ternational Maritime
Boundaries, Martinus Nijhoff Publishers, Dordrecht/Boston/London, 1993, Vol. II, pp. 1752-1754.
20 Application filed in the Registry on 8 July 1991, p. 18, para. 41.
21 See , Annex IV.115, Vol. 10, p. 71, andMap No. 15 , facing this page.
22 See , paras. 6.239t seq., above.
23 See , para. 10.23, above.
24 See , Part III, above.
25 Moreover, the part of the 1947 line enclaving the Hawar islands is open to criticism on technical grounds.
26 See ,ap No. 15, facing page 254, and para. 11.21, above.
27 Para. 6(b) of the letter dated 23 December 1947 from the British Political Agent in Bahrain to the Ruler of
Qatar, see, Annex IV.115, Vol. 10, p. 74.
28 Para. 4(ii) of the letter dated 23 December 1947,see, Annex IV.115, Vol. 10, p. 73.
29 See , para. 11.21, above.
30 Para. 6(b) of the letter dated 23 December 1947, see, Annex IV.115, Vol. 10, p. 74.
31 Annex IV.287, Vol. 13, p. 15.See , also, the Delimitation Agreement of 7 November 1988 concerning thecontinental shelf between Ireland and the United Kingdom, in J.I. Charney and J.M. Alexander, (eds.), op. ci.,
together with the commentary by D.H. Anderson. See , also, the commentary by C.R. Symmons, "The
U.K./Ireland Continental Shelf Agreement: A Model for Compromise in Maritime Delimitation" in
International Boundaries and Boundary Conflict Resolution, C. Grundy-Warr (ed.), Durham, 1990, pp. 387-
412.
32 Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1982 , p. 90, Map No. 3.
33 Continental Shelf (Libyan Arab Jamahiriya/Malta Appl),ation for Permission to Intervene, Judgment,
I.C.J. Reports 1984, p. 27, para. 43.
34 Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, I.C.J. Reports 1985 , p. 26, para. 21.
35 Annex IV.216, Vol. 11, p. 235.
36 See ,ap No. 12 , facing page 215.
37 It should also be noted that point S1 is nearly equidistant from the coasts of the three countries concerned
according to the headland-to-headland method.
38 The second sentence of Article 12 of the 1958 Convention was as follows: "The provisions of this
paragraph shall not apply, however, where it is necessary by reason of historic title or other special
circumstances to delimit the territorial seas of the two States in a way which is at variancewith this
provision" (emphasis added to indicate which words were altered).
39 See, the commentary relating to those agreements by the State Department Geographer in Limits in the Seas,
No. 94, p. 7 (Annex IV.216, Vol. 11, p. 235 and Annex IV.260, Vol. 12, p. 81).
40 Commander R.H. Kennedy, of the Hydrographic Department of the British Admiralty, and S.W. Boggs,
Special Adviser on Geography of the U.S. Department of State, recommended on 16 December 1948 to their
respective governments the basis of a geographical division of the Persian Gulf. In their proposal, they limited
themselves to the technical aspects of the problems of determining what they believed to be a fair and equitable
division of the seabed and subsoil areas of the Gulf on scientific principles, and they tried to indicate what they
understood to be the geographical factors that should be taken into consideration. See, Annex IV.127, Vol. 10,
p. 123.
41 Annex IV.315, Vol. 13, p. 223.
42 The letter of 23 December 1947 from the British Political Agent in Bahrain to the Ruler of Qatar explicitly
stated: "This is a median line based generally on the configuration of the coast-line of the Bahrain main island
and the peninsula of Qatar" (Annex IV.115, Vol. 10, p. 71).
43 See , para. 3.80, footnote 107, below.
44 Judgment I,C.J. Reports 1993 , p. 62, para. 56.
45 See , para. 3.80, footnote 107, above.
46 The 15 States claiming archipelagic status are the following: Antigua and Barbuda, Cape Verde, Comoros,
Fiji, Indonesia, Kiribati, Marshall Islands, Papua New Guinea, Philippines, Saint Vincent and the Grenadines,
Sao Tome and Principe, Solomon Islands, Trinidad and Tobago, Tuvalu, Vanuatu. See, United Nations, The
Law of the Sea, Practice of States at the time of entry into force of the United Nations Convention on the Law of
the Sea, New York, 1994, p. 9. The relevant legislation of those archipelagic States, with the exception of the
Marshall Islands, has been published in United Nations, The Law of the Sea: Practice of Archipelagic States ,
New York, 1992.
47 Bahrain has on several occasions spoken about archipelagic baselines, namely during the TripartiteCommittee meetings, and in its oral pleadings before the Court. However, Bahrain has never actually produced
a claim in this respect.
48 See, para. 18 of the Judgment of 1 July 1994, I.C.J. Reports 1994 , at p. 118.
49 Art. 47, para. 1: "An archipelagic State may draw straight archipelagic baselines joining the outermost
points of the outermost islands and drying reefs of the archipelago provided that within such baselines are
included the main islands and an area in which the ratio of the area of the water to the area of the land,
including atolls, is between 1 to 1 and 9 to 1".
50 I.C.J. Reports 1953 , p. 122.
51 Judgment I,C.J. Reports 1963 , p. 29.
52 Ibid., p. 38.
__________
CHAPTER XII
THE SINGLE MARITIME BOUNDARY IN THE NORTHERN SECTOR
Introduction
12.1 In its Application Qatar requested the Court:
"With due regard to the line dividing the sea-bed of the two States as described in the British
decision of 23 December 1947, to draw in accordance with international law a single maritime
boundary between the maritime areas of sea-bed, subsoil and superjacent waters appertaining
respectively to the State of Qatar and the State of Bahrain ".
In the Memorial which it submitted to the Court on 10 February 1992 on questions of jurisdiction and
admissibility, Qatar indicated with respect to "the dispute relating to maritime delimitation" that "The area
involved in this dispute ... runs from the mouth of the Dawhat Salwah in the south ... up to the Gulf median line
between the Islamic Republic of Iran on the one side and Qatar and Bahrain on the other 2".
12.2 Consequently, the dispute relating to maritime delimitation between Qatar and Bahrain is not limited to the
sector covered by the British decision of 23 December 1947, i.., from the mouth of the Dawhat al Salwah up to
the point identified as BLV. It also concerns the maritime areas lying beyond BLV, i.e., essentially in the
northern sector, up to the Gulf median line laid down by the delimitation agreements previously concluded by
Qatar and Bahrain with Iran on 20 September 1969 and 17 June 1971.
12.3 In the following discussion, Qatar will endeavour to demonstrate the specific nature of this northern
sector; to determine the law applicable to this aspect of the dispute; and, in the light of the relevant
circumstances, to identify the appropriate method of delimitation which will allow an equitable solution to be
achieved.
Section 1. The Specific Nature of the Northern Sector
12.4 The circumstances for the delimitation of the single maritime boundary in the maritime areas situated to
the north of BLV are quite different from those for the maritime delimitation in the sector to the south of BLV,
3
which has been discussed above . The delimitation in the northern sector has three main characteristics which
clearly highlight its specific nature: first, it is avo delimitation; second, it has to be performed in an area
lying beyond the outer limits of the Parties' territorial waters; and third, it is a delimitation which does not
require any categorization. A. A de novo delimitation
12.5 The seabed delimitation effected by the British decision of 23 December 1947 does not go beyond BLV.
Indeed, the British decision states that the course of the dividing line shown on Map No. 17 facing this page
runs "from point 'M' to the 'Bahrain Light Vessel"'. The decision also indicates that "the assigned position" of
BLV is "046¼° true 28.05 Nautical Miles from the Political Agent's flagstaff Latitude 26°14'1 N, Longitude
50°35'2 E (approximately), as the positions of floating marks are subject to frequent alteration ". Beyond BLV
- which thus appears as a turning point in the maritime delimitation between Qatar and Bahrain and as a true
reference point or anchor point - no boundary has ever been established, either by agreement or otherwise. It is
thus clearly a de novo delimitation that has to be performed in the northern sector 5.
B. A Delimitation concerning Maritime Areas lying beyond the Outer Limit of the Parties' Territorial
Waters
12.6 The specific nature of the delimitation of a single maritime boundary in the northern sector is apparent also
from a second point of view, insofar as, unlike the delimitation already made as far as BLV, it concerns in its
entirety maritime areas lying beyond the outer limit of the Parties' territorial waters.
12.7 The starting point of this delimitation in the northern sector coincides, as has just been mentioned, with the
end point of the dividing line laid down by the 1947 British decision. This point, BLV, is situated 53.31 km,
i.e., approximately 28.8 nautical miles, from RK, which is the northernmost point on the Qatar peninsula, and
44.40 km, i.e., approximately 24.0 nautical miles, from point MQ on the island of Al Muharraq, the relevant
point in Bahrain as shown on Map No. 17 facing the previous page . However summary this geographical
localisation may be, it allows the definition, without the slightest hesitation, of the legal nature of the maritime
areas lying to the north of BLV. In 1992 and 1993 Qatar and Bahrain, respectively, extended the breadth of
their territorial seas to 12 nautical miles, to be measured from baselines determined in accordance with the rules
of international law . In addition, beyond the outer limits of their territorial waters as shown on Map No. 14 ,
facing page 250, the two States have and exercise exclusive sovereign rights over their respective continental
shelves and fishing zones. It may be noted in this regard that in a Proclamation by the Ministry of Foreign
Affairs dated 2 June 1974, Qatar proclaimed its exclusive and absolute sovereign rights over the natural and
marine resources and over the fisheries in the zones contiguous to the territorial sea off the coasts of the State
and its islands and that it has exclusive rights with respect to exploration, prospection, exploitation,
enhancement, fishing and the installation of facilities and of safety, control and protection zones for all the
marine and natural resources situated on the sea-bed, in the subsoil or in the superjacent waters .8
12.8 Since BLV is outside the territorial waters of the Parties, the same will be true, a fortior, of the end point
of the dividing line in the northern sector, since the delimitation has to be made up to a point located at the
intersection of the line that the Court will determine and the median line in the central part of the Gulf, as
established by the agreements delimiting the continental shelf concluded in 1969 and 1971 by Iran with Qatar
and Bahrain, respectively 9. This conventional continental shelf boundary has been applied by Iran to the
column of superjacent waters and, from Iran's point of view, has become the boundary of its exclusive
economic zone with the facing Arab States. Thus, according to Article 19 of the "Act on the Marine Areas of
the Islamic Republic of Iran in the Persian Gulf and the Oman Sea" of 1993, "The limits of the Exclusive
Economic Zone and the Continental Shelf of the Islamic Republic of Iran, unless otherwise determined in
accordance with bilateral agreements, shall be a line every point of which is equidistant from the nearest point
10
on the baselines of two States ". These new Iranian regulations cannot unilaterally modify the object and
purpose of the continental shelf delimitation agreements concluded with Qatar and Bahrain. From a formal
point of view, the application ("exhaussement") of the continental shelf boundary to the fishing zones, and
perhaps to the exclusive economic zones, once these countries have proclaimed their creation in their national
legislation, requires their consent. Such an application may nevertheless be inferred with respect to the fishing
zones, given the proclamations made by both Iran and Qatar . 11
12.9 In these circumstances Qatar submits that the line delimiting the continental shelf, as established in the
agreements concluded by Qatar and Bahrain with Iran in 1969 and 1971, may be "raised" to the superjacent
column of water to constitute as from now the line delimiting the exclusive fishing zones of the two States 12.
Furthermore, the object of the maritime delimitation between Qatar and Bahrain in the northern sector will beto draw a single maritime boundary from BLV to the Gulf median line established by treaty.
C. Irrelevance of the Usual Distinction between Frontal and Lateral Delimitation
12.10 The part of the boundary to be drawn between the maritime jurisdictions of Qatar and Bahrain to the
north of BLV is situated throughout its length in the open sea. From the strictly geographical point of view,
which may be verified by glancing at a map, it is a part of the delimitation area lying completely outside the
13
area where Qatar and Bahrain have directly facing coasts, i.e., beyond the imaginary line from RK to MQ ,
without however corresponding to the situation of two adjacent States.
12.11 Therefore, Qatar considers that in the present case it is unnecessary to make a legal characterisation of
the geographical situation in the northern sector, for two main reasons. First, although the delimitation in this
area cannot be categorized as a delimitation relating to a situation of "adjacent States", one might be reluctant to
put it in the category of a frontal delimitation relating to a situation of "opposite States", to use a distinction that
is frequently found in the law of maritime delimitations - even if it is closer to the latter category. Insofar as the
northern sector may be reminiscent of the Atlantic sector in the Anglo-French case, beyond the area where
France and the United Kingdom were directly opposite each other in the English Channel, it is important not to
forget the hesitations in the arbitral award of 30 June 1977 as to the characterisation of the Atlantic region .4
Moreover, and above all - and this is the second reason why Qatar believes that it is unnecessary to become
hidebound by the alternative between "opposite States" and "adjacent States" in characterising the northern
sector - the distinction which is frequently made has no direct legal effect. Not only does the law of 1958 and
1982 lay down rules which are essentially identical for both situations, but also the jurisprudence does not
attach any real importance to this distinction 15.
12.12 In these circumstances, it is not necessary to characterise the northern sector in terms of the distinction
between frontal and lateral delimitation. As Professor Weil has rightly stressed, "la distinction entre côtes
adjacentes et côtes opposées ne saurait être tenue pour une circonstance pertinente bénéficiant d'un poids
réel ". On the other hand, what matters, in an operation of maritime delimitation, is to take into account the
geographical circumstances which are peculiar to each case or, to use the words of the Anglo-French award, it
17
is necessary to identify the "real facts", the "natural facts" or the "actual geographical conditions ", so true is it
that it is the geographical situation which indicates the applicable method of delimitation . According to the
much cited dictum of the Chamber in the Gulf of Maine case, "the choice of method to be used is essentially
19
dependent upon geography ".
Section 2. The Law Applicable to the Maritime Delimitation in the Northern Sector
12.13 The maritime delimitation to be effected by the Court to the north of BLV, will naturally be based on the
sources of international law as set forth in Article 38 of the Statute. But given that neither the 1958 Convention
on the Continental Shelf 20nor the 1982 Convention on the Law of the Sea is formally applicable in the present
case, the principles of customary international law relating to maritime delimitation, as identified inter alia by
the jurisprudence, will thus be applicable to the delimitation of the continental shelf and fishing zones in the
northern sector. In Qatar's view, three of these principles especially must be applied to these maritime areas.
First, the delimitation must be made in conformity with the "fundamental norm" according to which the course
of the dividing line must be drawn by applying equitable principles and taking into account all relevant
circumstances in order to achieve an equitable result; second, the applicable law is common to the delimitation
of maritime areas lying outside territorial waters, whatever the legal regime of such areas may be; and third and
finally, equity does not necessarily imply equality.
A. The Delimitation must be made in Conformity with the "Fundamental Norm" according to which the
Course of the Dividing Line must be drawn by applying Equitable Principles and taking into account all
Relevant Circumstances in order to achieve an Equitable Result
12.14 Qatar considers, first, that the delimitation in the northern sector must be effected on the basis of
equitable principles, taking into account all the relevant circumstances, in order to achieve an equitable
solution. In its Judgment of 1969 in the North Sea Continental Shelf case, the Court held that the "delimitation
is to be effected ... in accordance with equitable principles, and taking account of all the relevant 21
circumstances ". Similarly, in the most recent Judgment that it has issued on the subject, in 1993, in the Case
concerning Maritime Delimitation in the Area between Greenland and Jan Mayen, the Court stated again that
"That statement of an 'equitable solution' as the aim of any delimitation process reflects the requirements of
customary law as regards the delimitation both of continental shelf and of exclusive economic zones" 22.
Between these two decisions, the chain of jurisprudence has used similar language, and the Court has clearly
taken care to show that the application of equitable principles "should display consistency and a degree of
predictability ".
12.15 Thus, in the Judgment of 1982 in the Libya/Tunisia Continental Shelf case, the Court again stated that:
"the delimitation is to be effected in accordance with equitable principles, and taking account of all relevant
circumstances ", and that "The result of the application of equitable principles must be equitable ". Similarly,
in the Case concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area i.e - ., in a case which,
like the present case, concerned the drawing of a single maritime boundary - the Judgment of the Chamber of
1984 defined "what general international law prescribes in every maritime delimitation between neighbouring
States" as follows: "delimitation is to be effected by the application of equitable criteria and by the use of
practical methods capable of ensuring, with regard to the geographic configuration of the area and other
relevant circumstances, an equitable result" . Finally, in its Judgment of 1985 in the Case concerning the
Continental Shelf between Libya and Malta, the Court confirmed that "judicial decisions are at one ... in
holding that the delimitation of a continental shelf boundary must be effected by the application of equitable
27
principles in all the relevant circumstances in order to achieve an equitable result " and that this is "the
'fundamental norm' of the law of delimitation ".8
B. The Existence of Common Principles Applicable to the Delimitation of Maritime Areas lying outside
the Territorial Waters of the Parties, whatever the Legal Regime of such Areas may be
12.16 Qatar submits that Articles 74, paragraph 1, and 83, paragraph 1, of the 1982 Convention on the Law of
the Sea are the expression of customary international law with respect to the delimitation of the continental
29
shelf and exclusive economic zones , and that they also apply to the delimitation of fishing zones. The fact
that there is an equivalence between the conventional law of 1958, customary international law and the new
conventional law was stated as early as the 1977 Anglo-French arbitral award . A similar idea is to be found in
the Court's Judgment of 1993 in the case between Denmark and Norway, which made a striking short-cut in
order to ensure the consistency of the jurisprudence on the subject of maritime delimitations, be it concerning
the continental shelf, fishing zones or exclusive economic zones, and on the basis of the 1958 Convention,
customary international law or the 1982 Convention 31. The Court concluded its reasoning as follows: "That
statement of an 'equitable solution' as the aim of any delimitation process reflects the requirements of
32
customary law as regards the delimitation both of continental shelf and of exclusive economic zones ". There
is thus an equivalence between the regime for delimiting the continental shelf as laid down in the 1958
Convention and customary international law concerning delimitation of the continental shelf and of the
exclusive economic zone, just as there is an equivalence between the regimes for delimiting fishing zones and
for delimiting exclusive economic zones. In fact the application of a "general norm based on equitable
principles" and the search for an "equitable solution" are the common denominator of the law applicable to the
delimitation of the maritime areas lying outside the territorial waters of the States concerned, as is the case here
in the northern sector. Moreover it may be noted that in view of the specific nature of the Arabian/Persian Gulf
and the absence of any exclusive economic zone, the practice of the Gulf States is to have a single maritime
boundary for the seabed and fishing zones.
C. Equity does not necessarily imply Equality
12.17 Finally, Qatar would like to recall a well-known principle of customary international law, which is
particularly applicable in the present case. This is the principle that equity does not necessarily imply equality.
Although the principle of equality of States plays a certain role in the law of maritime delimitation, a dividing
line giving unequal areas to the Parties cannot per sebe considered as inequitable. As Judge Mosler remarked:
"The rule of equity requires equal treatment of the Parties. In disputes concerning territorial boundaries,
including submarine areas, equal treatment does not necessarily mean the attribution of equal shares. A
delimitation according to equal areas on either side is in conformity with the rule of equity only in so far as the
relevant criteria and circumstances in their totality in fact indicate this result ". The series of judgmentsrendered on the subject of maritime delimitation has never put this principle into question. As Professor Weil
34
has stressed, "la jurisprudence est d'une constance qui ne connaît pas d'exception ".
12.18 As early as 1969, the Court made a strong statement in a dictum which is often cited: "Equity does not
35
necessarily imply equality ". The Court explained immediately afterwards that "There can never be any
question of completely refashioning nature, and equity does not require that a State without access to the sea
should be allotted an area of continental shelf, any more than there could be a question of rendering the
situation of a State with an extensive coastline similar to that of a State with a restricted coastline ... It is
therefore not a question of totally refashioning geography whatever the facts of the situation ... ".
12.19 Similarly, in 1977 the Anglo-French Court of Arbitration repeated the same principle: "The function of
equity ... is not to produce absolute equality of treatment... ". Mention may also be made once more of the
Libya/Malta Continental Shelf case, where in 1985 the Court rejected the Maltese argument relying on the
principle of the sovereign equality of States:
"... it is evident that the existence of equal entitlement,so jure and ab initio, of coastal States,
does not imply an equality of extent of shelf, whatever the circumstances of the area; thus reference
to the length of coasts as a relevant circumstance cannot be excluded a priori. The principle of
38
equality of States has therefore no particular role to play in the applicable law ".
In the same case, the Court mentioned, among the equitable principles which are applicable to all maritime
delimitations:
"... the principle that there is to be no question of refashioning geography, or compensating for the
inequalities of nature; ... the principle that although all States are equal before the law and are
entitled to equal treatment, 'equity does not necessarily imply equality' (I.C.J. Reports 1969 , p. 49,
para. 91), nor does it seek to make equal what nature has made unequal ". 39
40
There can be no better systematisation of the equitable principles of "normative character " which are directly
applicable to the delimitation of a single maritime boundary between Qatar and Bahrain in the northern sector.
Section 3. The Relevant Circumstances in the Northern Sector
12.20 Having outlined the specific nature of the delimitation in the northern sector and determined the law
which is applicable in the present case, Qatar will now identify the relevant circumstances which should be
used in order to effect the delimitation of a single maritime boundary between Qatar and Bahrain to the north of
BLV, so that an equitable result is attained. This means taking into consideration the particular facts, or the
factors which are peculiar to the area under consideration, permitting the determination of what is equitable.
12.21 The legally relevant circumstances that Qatar wishes to identify in order to make the delimitation in this
sector, in accordance with equitable principles, depend upon the Parties' title to the maritime areas to be
delimited, since they are linked both to the continental shelf and to fishing zones. It should be recalled that in its
Application of 5 July 1991, Qatar requested the Court to draw "a single maritime boundary between the
41
maritime areas of sea-bed, subsoil and superjacent waters" appertaining to each Party respectively . This
means that, like the Chamber in the Gulf of Maine case, the Court must in the present case carry out "a
delimitation of two distinct elements" - the continental shelf and the fishing zones - "by means of a single
line ". The Court therefore has to make a "dual purpose" delimitation, a delimitation with a "twofold
43 44
object ", in a word, a "multi-purpose delimitation ". And in this fact there is already in the present case, as in
the Gulf of Maine case, "a special aspect of the case which must be taken into consideration even before
proceeding to examine the possible influence of other circumstances on the choice of applicable criteria ". 45
12.22 Having recalled this point, a consequence of which will be the choice of criteria that, "because of their
more neutral character, are best suited for use in a multi-purpose delimitation ", Qatar will identify two types
of legally relevant circumstances which will allow an equitable delimitation to be achieved in the northern
sector. These relevant circumstances are of two kinds: the first are geographical; the second are linked to theexisting delimitations in the area.
A. The Relevant Geographical Circumstances
1. The geological and geomorphological unity of the area of seabed to be delimited
12.23 The first relevant geographical circumstance which must be identified in the northern sector for the
application of equitable principles concerns the geological and geomorphological unity of the sea-bed area. It is
true that the concept of natural prolongation, like reference to geophysical considerations, no longer seems to
have the particular place in recent jurisprudence that it occupied in the first rulings issued on the subject of
continental shelf delimitation . That jurisprudence was justified at the time "in a regime of the title itself which
used to allot those factors a place which now belongs to the past, in so far as sea-bed areas less than 200 miles
48
from the coast are concerned ".
12.24 However, it is not without interest, in effecting the maritime delimitation in the northern sector, that the
sea-bed in that area is characterised by its geological and geomorphological unity. There is no fundamental
discontinuity forming a sort of natural boundary to interrupt the extension of Qatar's continental shelf towards
the north and north-west, or that of Bahrain's continental shelf towards the east and north-east. From the
bathymetric point of view, it is sufficient to glance at the marine charts of the area, such as British charts No.
2837 or, even better, No. 2838, to see that the sea-bed in the northern sector, subject to certain variations,
reaches an isobath of an average of 50 to 60 metres. On the other hand, to the south, it hardly goes beyond the
10-metre isobath. These observations fit in very well with the general description of the Arabian-Persian Gulf
by R. Young: "Generally shallow, its greatest depth is about 100 metres and its average no more than 40. The
deeper waters are found mostly in the lower part of the Gulf and along the mountainous Iranian coast, which
49
contrasts markedly with the generally low-lying shore on the Arabian side ".
12.25 This brief and summary mention of the first relevant circumstance, relating to physical geography, is
sufficient to show that the northern sector is an area without any major irregularities or significant natural
anomalies. Geologically and geomorphologically, the area to be delimited is simple. This idea is confirmed by
the second legally relevant circumstance that has to be taken into consideration, which is the regularity of the
coastal geography.
2. The regularity of the geographical configuration of the coasts of the Parties
12.26 As was emphasised by the Court as early as 1969, it is necessary "to examine closely the geographical
50
configuration of the coastlines of the countries whose continental shelves are to be delimited ". Similarly, in
1977 the Anglo-French Arbitral Tribunal held that "the method of delimitation which it adopts ... must be one
that has relation to the coasts of the Parties actually abutting on the continental shelf ". Indeed, is it not true
that, as the Court held in 1982, "The coast of each of the Parties... constitutes the starting line from which one
has to set out in order to ascertain how far the submarine areas appertaining to each of them extend in a seaward
52
direction "? In other words, the basis for a State's legal title to submarine areas and the superjacent column of
water off its territory is determined "through" its coasts and founded on the geographical relation between that
State's coastline and the maritime areas concerned. This primacy of the general configuration of the coasts of
the States which are parties to a delimitation process is quite naturally explained by the direct impact of the
Parties' coastlines and of their configuration on the course of the dividing line. As the Chamber noted in its
judgment of 1984 in the Gulf of Maine case, "The delimitation line to be drawn in a given area will depend
53
upon the coastal configuration ".
12.27 In the present case, a quick glance at the geographical configuration of the coastlines of Qatar and
Bahrain is sufficient to show that they have two main characteristics. First, they are notable for having no deep
indentations or irregularities, pronounced deviations or distortions, or major anomalies or, in a word, for having
54
no "markedly pronounced configurations", to use the words of the Court in 1969 . Second, the coastlines of
Qatar and Bahrain are also notable for having no pronounced concave or convex features or, in other words, for
having no sharply defined receding coasts or coastal projections.
12.28 These coastal characteristics of the States which are parties to the present dispute thus highlight theirregularity, in a manner of speaking their "ordinariness", or in fact their "normality". In these circumstances, it is
all the easier to determine their general direction, which is an objective reflection of the coastal configuration of
the Parties. Any cartographer or geographer who might undertake this exercise would not encounter the
difficulties which arose in the Libya/Tunisia Continental Shelf case as to the question of whether it had to be
considered that the Tunisian coast changed direction, or of exactly what point marked the change in direction of
the coast55. Nor would they encounter the difficulties that they might have met in the Gulf of Maine case .6
12.29 In these circumstances, there is no need to take into account any irregularity in the general direction of
the coastlines of Qatar and Bahrain. It is therefore possible to apply to them the words of the Court in its
Judgment of 18 December 1951 in the Norwegian Fisheries case, concerning the so called "tracé parallèle"
method of determining the outer limit of territorial waters, which "may be applied without difficulty to an
57
ordinary coast, which is not too broken ". Indeed, Qatar's and Bahrain's coastlines are "simple"; they are "not
too broken" in any significant way. In other words, for purposes of the maritime delimitation in the northern
sector, there are no relevant circumstances linked to the coastal geography of the States parties which might
lead to an inequitable result.
3. The disparity or disproportion between the lengths of the relevant coasts of the Parties
12.30 The jurisprudence has consistently stressed that the respective coastal fronts of the States parties to a
maritime delimitation operation must be taken directly into account, since they are the very basis of the coastal
State's title to the adjacent maritime areas58. As the Court declared in 1982, "the coast of the territory of the
59
State is the decisive factor for title to submarine areas adjacent to it ". And again, in 1985, in the Libya/Malta
Continental Shelf case, it stated:
"It is by means of the maritime front of this landmass, in other words by its coastal opening, that ...
territorial sovereignty brings its continental shelf rights into effect... The juridical link between the
State's territorial sovereignty and its rights to certain adjacent maritime expanses is established by
means of its coast. The concept of adjacency measured by distance is based entirely on that of the
coastline ."
Consequently, the rights which States may claim with respect to the sea, whether concerning the continental
shelf or fishing zones, are directly related to their coasts and, more precisely, depend upon their coasts and the
way in which they edge their territory. "Tout dépend de leurs façades maritimes respectives et de la façon dont
elles se présentent ".
12.31 In the present case, one of the most significant characteristics of the geographical relationship between
Qatar and Bahrain is precisely the disparity or disproportion between the respective lengths of their coasts. This
self-evident observation, which may be made simply by examining a map, is confirmed when they are
measured. In order to do so, no account will be taken either of islands and islets or of low-tide elevations, both
for purposes of simplification and in order to conform with the practice that is generally followed in the
Arabian-Persian Gulf in respect of maritime delimitation. Moreover, use will be made of the method which
allows the coastal fronts of the Parties to be schematised as accurately as possible, and two straight coastal
fronts to be determined, to which the coasts under consideration may reasonably be assimilated. This method of
measurement is therefore based on the concept of general direction of the coasts, to which the international
jurisprudence has often referred .2
63
12.32 On the basis of this method the eastern coast of Bahrain, measured in its general direction and without
taking into account the islands and islets or low-tide elevations, is approximately a straight coastal front from
Al Muharraq to Ras al Barr . Its length is approximately 55.5 kilometres or 29.99 nautical miles. Measured in
accordance with the same parameters, Qatar's western coast is also a straight coastal front, running
approximately from the northernmost point of the Qatar peninsula to Ras al Uwaynat . Its length is
approximately 88.2 kilometres or 47.6 nautical miles. Thus, it is possible to quantify the marked disparity
between the relevant lengths of the respective coastal fronts of the Parties to the present dispute. It results, as
precisely as these constructions allow, in a proportionality ratio of 1.59 to 1 in favour of Qatar.
12.33 This disparity or disproportion between the respective lengths of the coasts of Qatar and Bahrain cannotbe disregarded in the delimitation between the two countries in the northern sector, because there is indeed a
certain relationship between the length of the coasts and the maritime areas engendered by those coasts, which
must be taken into consideration in order to arrive at an equitable solution. As the Court recalled in 1993 in the
Denmark/Norway case:
"The frequent references in the case-law to the idea of proportionality - or disproportion - confirm
the importance of the proposition that an equitable delimitation must, in such circumstances, take
66
into account the disparity between the respective coastal lengths of the relevant area ."
There are well-known dicta in the jurisprudence, which is equally applicable in continental shelf delimitations
67
and in continental shelf and fishing zone delimitations .
12.34 This jurisprudence has been reaffirmed in the cases concerning delimitation of a single maritime
boundary. Thus, in 1984 the Chamber in the Gulf of Maine case held that "a substantial disporportion" in
relation to the respective lengths of the coasts of the parties in the relevant area "that resulted from a
delimitation effected on a different basis would constitute a circumstance calling for an appropriate
correction 68". Indeed, in the Chamber's view, the ratio between the coastal fronts of the United States
(284 nautical miles) and Canada (206 nautical miles), which was 1.38 to 1 in favour of the United States in the
69
Gulf of Maine, had to be "reflected in the location of the second segment of the delimitation line ". The
Chamber considered that this geographical characteristic justified the correction that it made to a delimitation
based on the equidistance method, and was a "valid ground for correction", which was "more pressing" than
others . In short, therefore, the course of the central segment of the dividing line was to correspond "over its
71
entire length" to the corrected median line as so established .
12.35 In 1993, in the Case concerning Maritime Delimitation in the Area between Greenland and Jan Mayen ,
the Court noted that the lengths of the coastal fronts were, respectively, according to the methods of calculation
that were used, 54.8 or 57.8 km for Jan Mayen and 504.3 or 524 km for Greenland, and that thus, "the ratio
between the coast of Jan Mayen and that of Greenland is 1 to 9.2 on the basis of the first calculation, and 1 to
9.1 on the basis of the second ". Therefore, in the view of the Court:
"The disparity between the lengths of coasts ... constitutes a special circumstance within the
meaning of Article 6, paragraph 1, of the 1958 Convention. Similarly, as regards the fishery zones,
the Court is of the opinion, in view of the great disparity of the lengths of the coasts, that the
application of the median line leads to manifestly inequitable results 73."
And the Court concluded that "in the light of the disparity of coastal lengths, the median line should be adjusted
or shifted in such a way as to effect a delimitation closer to the coast of Jan Mayen ".4
12.36 Qatar has certainly not forgotten that every delimitation operation is specific and is "monotypic", to use
the expression of the Chamber in the Gulf of Maine case . But it believes that in order to arrive at an equitable
result in the delimitation of the northern sector, it is necessary, in view of the jurisprudence analysed above, to
take into account the disparity in the respective coastal fronts of Qatar and Bahrain, where the ratio determined
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on the basis of the simplifying method that has been used is 1.59 to 1. This must be so, whatever may have
been the terminology used by the Court or arbitral tribunals in the above-mentioned cases, and whether
proportionality is considered as "a factor to be taken account of "; a "factor "; a "criterion "; a "test "; an
81 82
"aspect of equity "; a "touchstone of equitableness " or even, in the most recent of the Court's judgments, a
"principle83 ".
B. Taking into Consideration the Existing Delimitation Agreements
12.37 A relevant circumstance that the jurisprudence has also always taken into account in delimitation
processes is the existence of agreements of this type which have already been made in the area in question. In
1969, in the North Sea Continental Shelf cases, the Court had already recommended that the States parties take
into account, in the course of negotiations, "the effects, actual or prospective, of any other continental shelf
delimitations between ad jacent States in the same region ". Again, in 1982, in the Libya/Tunisia ContinentalShelf case, the Court expressly listed, amongst "the relevant circumstances which characterize the area", "the
existence and interests of other States in the area, and the existing or potential delimitations between each of the
85
Parties and such States ". Equally clearly, the arbitral tribunal, in its Decision of 14 February 1985 in the case
concerning Delimitation of the Maritime Boundary between Guinea and Guinea-Bissau , declared that:
"Une délimitation visant à obtenir un résultat équitable ne peut ignorer les autres délimitations déjà
86
effectuées ou à effectuer dans la région ."
Such jurisprudence is readily justifiable since, as Professor Weil has rightly remarked:
"Opération essentiellement inter partes , la délimitation judiciaire ou arbitrale ne peut s'effectuer en
vase clos, coupée du monde alentour et isolée des autres délimitations déjà réalisées, ou encore à
faire, dans la région ."
12.38 In the present dispute, at least as far as the northern sector is concerned, the Court will not have to take
into consideration possible future delimitations to be carried out in the region, since the delimitation it must
now make is the last for the central-western part of the Arabian-Persian Gulf. On the other hand, in order to
reach an equitable result, the Court will inevitably have to take into account the various delimitations already
made by conventional means, and in particular their effect on the solution to be applied to the problem of the
Qatar/Iran/Bahrain tripoint.
1. The conventional delimitations already effected and to be taken into consideration
12.39 The Court will necessarily attach primary importance to the agreements concluded by Iran with Qatar on
20 September 1969 88and with Bahrain on 17 June 1971 , respectively, since these two agreements define the
northern boundary of the area that the Court will have to delimit in the present dispute. However, it must be
noted that they raise a problem of interpretation, notably in determining the segment where the Qatar/Iran
boundary and the Bahrain/Iran boundary meet each other. This is because point 1 on the Qatar/Iran boundary
and point 1 on the Bahrain/Iran boundary were not determined in the agreements of 29 September 1969 and 17
June 1971. Nevertheless an analysis of Article 1 of the Qatar/Iran agreement of 1969 and of Article 1 of the
Bahrain/Iran agreement of 1971 allows the conclusion that point 1 in the 1971 Bahrain/Iran agreement, situated
at the "latitude of 27 degrees, 00 minutes, 35 seconds North and longitude 51 degrees, 23 minutes, 00 seconds
East, and having a geodetic azimuth of 278 degrees, 14 minutes, 27 seconds" coincides exactly with point 2 on
the delimitation line drawn in the Qatar/Iran agreement of 1969. There is strict continuity 90 , as a result of the
coincidence of these two points, of the dividing line of the Iranian continental shelf opposite the Qatar
continental shelf and the Bahrain continental shelf, respectively, and consequently the whole of the continental
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shelf and, as has already been shown , the superjacent fishing zone, are delimited with regard to Qatar as well
as with regard to Bahrain.
12.40 The Court will have to take into consideration the existing continental shelf delimitation agreement
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concluded on 22 February 1958 between Saudi Arabia and Bahrain . It is true that there is no question of
taking into account the whole of the dividing line established by the 1958 agreement, in order to delimit the
northern sector between Qatar and Bahrain, but only of a relevant segment of the boundary, i.e.a segment
comprised approximately between a point to the north of point 14 on that boundary, determined by the 1958
agreement, and the western end point (point 4) of the 1971 Bahrain/Iran agreement, which also coincides with
the starting point (point 1), in the agreement of 24 October 1968 between Saudi Arabia and Iran, for which the
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geographical coordinates are latitude 27°10'00" North and longitude 50°54'00" East . This is therefore the
Bahrain/Iran/Saudi Arabia tripoint 94 .
2. The Qatar/Iran/Bahrain tripoint
12.41 The problem of the tripoint has already been dealt with in this Memorial with respect to the relationship
between Qatar, Saudi Arabia and Bahrain at the southern end of the delimitation area . It was recalled in that
context that judicial and arbitral bodies are always extremely careful to ensure that they do not prejudice the
rights and interests of third States, both in maritime delimitations 96 and in land delimitations . In the northern
sector, since the Qatar/Bahrain delimitation is the last to be made, no rights and interests of any third State, i..,in fact, Iran, can be affected by the future decision of the Court in the present case. They will be adequately
protected by Article 59 of the Statute of the Court in Iran's relations with each Party, as the Chamber noted in
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the Burkina Faso/Mali case, in its Judgment of 22 December 1986 .
12.42 The only effect of the delimitation agreements between Qatar and Iran of 1969 and Bahrain and Iran of
1971 is to clarify that Iran has no rights over the continental shelf situated to the south of the dividing lines
established by these agreements, and also that neither Qatar nor Bahrain has rights over the continental shelf
situated to the north of the same lines. Thus, if the principles applied to a land delimitation in the Burkina
Faso/Mali Judgment are extended to maritime delimitations , it appears that the Court could, at least, in the
present dispute, "determine" how far the maritime zones of both Qatar and Bahrain extend. The Court would
therefore restrict itself in this way to indicating the location of thed quem point, the end point of this dividing
line,i.e.the point where the single maritime boundary no longer separates the respective maritime zones of
Qatar and Bahrain. It would indicate nothing less, but it might also indicate nothing more, in other words
nothing which might bring Iran's rights and interests into issue. In the present dispute, the Court has no
jurisdiction to determine the Qatar/Iran/Bahrain tripoint without the express consent of Iran.
Section 4. The Appropriate Delimitation Method in the Northern Sector
12.43 Qatar submits that, in the circumstances of the present case, the most appropriate method of delimitation
in the northern sector is the perpendicularity method. This geometrical method is very well suited to the
geography of the area, since it is based on the coasts of the Parties themselves, and on the northernmost points
of their respective territories, which are the only elements that may be used as a basis for the delimitation
operation which the Court has been requested to perform. It is moreover the only method that allows an
equitable solution to be achieved in the sector concerned, by application of equitable principles 100 and by
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taking into account the relevant circumstances which are peculiar to the case . This is why Qatar, after
recalling the rationale underlying this method of delimitation and the circumstances in which it has been used in
State practice and in international jurisprudence, will demonstrate the application of the perpendicularity
method in the northern sector and then will proceed to an a posteriori verification of the equitable nature of the
line thus obtained, by means of proportionality calculations.
A. The Rationale underlying the Perpendicularity Method
12.44 The perpendicularity method applied to a maritime delimitation is derived from the same rationale as the
equidistance method. In fact it is only a variant of that method, as has always been stressed by the doctrinal
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authorities. As early as the period between the two world wars, Gidel, referring to Münch , noted that in
cases where two sovereign States are, in his words, "au contact latéral", the solution consisting of
perpendicularity in relation to the general direction of the coast was no more than "une modalité spéciale de la
ligne médiane entendue au sens large 103 ".
12.45 Current doctrine shares the same point of view. Thus, in the opinion of Professor Weil, this method of
delimitation, whether it be by a line perpendicular to the coast or a line perpendicular to the imaginary closing
line of a gulf, is only one of the "variantes de l'équidistance104". The same learned author states moreover that:
"... une ligne d'équidistance entre deux points est par définition la perpendiculaire à la droite
unissant ces deux points qui coupe cette droite en son point médian, tant et si bien qu'une ligne
d'équidistance n'est rien d'autre qu'une succession de perpendiculaires ... Dans le cas d'une côte à
peu près rectiligne ou lorsqu'on est en présence d'une ligne imaginaire de fermeture d'un golfe, on
peut parler presqu'indifféremment d'une ligne perpendiculaire coupant la ligne de fermeture en son
milieu ou d'une ligne d'équidistance 105."
Similarly, L. Legault and B. Hankey have observed:
"Another method of delimitation is the perpendicular, generally a perpendicular to the general
direction of the coast, although perpendiculars to the closing lines of coastal indentations have also
been used. 106
The rationale for this method is that it constitutes a simplified form of equidistance ."
12.46 The jurists' point of view is shared by technical experts in hydrography, marine cartography or the
drawing of maritime boundaries. To give just one example, of the highest scientific authority, the International
Hydrographic Office in Monaco has expressed the view that:
"In plane geometry a perpendicular to a straight line is also a line of equidistance relative to that
line. This method of delimitation may therefore be seen as a special case of equidistance but it will
be essential to compute the results in geodetic terms 107."
12.47 This convergence in analysis by jurists and technical experts explains why the jurisprudence has echoed
the links existing between the perpendicularity method and the equidistance method. Thus, in the Gulf of Maine
case, the Judgment rendered on 12 October 1984 by the Chamber of the Court stressed that there are methods
of delimitation other than the equidistance method -
"... differing from it in varying degree even while prompted by similar considerations, which may
prove equally appropriate or even distinctly preferable, given that the task is to delimit not only a
continental shelf, as provided for in the 1958 Convention, but also the volume of superjacent
waters 108."
Here, the Chamber was referring to the perpendicularity method and also to the method of the bisector of the
angle formed by the coastlines and, as we know, it applied these methods, together with the corrected
equidistance method, to the various segments of the maritime boundary between Canada and the United
States109 . Indeed, as the Chamber remarked:
"Nor should one overlook the possibility that, over the whole course of a long delimitation line,
various, though related, methods may successively appear more appropriate to the different
segments 110."
B. Use of the Perpendicularity Method in State Practice and in the Jurisprudence
1. The line perpendicular to the general direction of the coast
12.48 As may be seen from the foregoing remarks, the perpendicularity method may be used in maritime
delimitation in two geographical contexts. State practice and international jurisprudence first used it in cases of
lateral delimitation between two States with adjacent coasts, as a line perpendicular to the general direction of
the coast111 . Mention may be made here of the agreement of 18 March 1958 for delimitation of the territorial
sea between Poland and the Soviet Union 112, the maritime delimitation agreement of 21 July 1972 between
113 114
Brazil and Uruguay , and the delimitation agreement of 2 February 1980 between Costa Rica and Panama ,
all of which used this method at least partially. International jurisprudence has also used this method of a line
perpendicular to the general direction of the coast, in one way or another and for a more or less extensive
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segment of the maritime boundary in question. Mention may be made here of the Grisbadarna case , the
Libya/Tunisia Continental Shelf case for the segment of the dividing line closest to the coast 116, and, from a
more macro-geographical point of view, the Guinea/Guinea Bissau case 117 .
2. The line perpendicular to the closing line of a coastal concavity
12.49 State practice and international jurisprudence have also used the perpendicularity method in another
hypothesis, as a line perpendicular to an imaginary line closing a more or less pronounced coastal concavity,
whether it be a gulf or an estuary. Here the geographical situation is different from the previous one. It is no
longer a question of effecting a strict lateral delimitation, but a delimitation of the maritime areas located in the
prolongation, in the open sea, of a situation where the coastlines of the two States concerned are at least
partially opposite. Since the maritime delimitation in the northern sector between Qatar and Bahrain is related
to such a situation118, attention should be paid to two particularly significant precedents, the Rio de la Plata
treaty of 19 November 1973 and the Judgment of the Chamber of 12 October 1984 in the Gulf of Maine case.This is particularly important in view of the fact that use of the perpendicularity method is much more
appropriate in the case of a line perpendicular to the closing line of a deep coastal concavity or of a relatively
narrow maritime passage, than in the case of a line perpendicular to the general direction of the coast in the case
of a lateral delimitation, unless the adjacent coasts are practically straight. As Professor Weil has remarked:
"La méthode de la perpendiculaire est d'une application infiniment plus discutable dans le cas d'une
côte qui n'est pas tout à fait rectiligne, car elle suppose alors que soit déterminée d'abord une
direction générale de la côte entre des points qu'il faut choisir. Or c'est là, on le sait, une opération
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éminemment aléatoire ."
One might add to Professor Weil's remarks that this operation is unnecessary when the same method is applied
in the other hypothesis, i.. that of a line perpendicular to the closing line of a coastal indentation or of a
maritime passage.
a) The Rio de la Plata Treaty signed on 19 November 1973 between Argentina and Uruguay
12.50 The Rio de la Plata Treaty is of particular interest with respect to its provisions concerning delimitation
of the lateral maritime boundary 120. First, the construction is based on closure of the Rio de la Plata by an
imaginary straight line joining its furthest entry points, i.e. Punta del Este on the Uruguayan side and Punta
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Rasa del Cabo San Antonio on the Argentinian side . Second, the maritime boundary, which is therefore
beyond the closing line of the Rio de la Plata, towards the open sea, may be characterised more or less
interchangeably, at least along a large part of its course, as an equidistance line or as a line perpendicular to the
closing line of the Rio.
12.51 It is true that Article 70 of the Treaty of 19 November 1973 provides that:
"The lateral maritime boundary and that of the continental shelf between the Oriental Republic of
Uruguay and the Argentine Republic are defined by an equidistant line, determined by the adjacent
coasts methods, which begins at the midpoint of the baseline consisting of an imaginary straight
line that joins Punta del Este (Uruguay) and Punta Rasa del Cabo San Antonio (Argentina) 122."
However, although it is called an "equidistance line" in the parties' agreement, the line separating the maritime
areas lying seawards of the closing line of the Rio de la Plata, which concerns both delimitation of the
continental shelf and delimitation of the superjacent waters, may also be characterised as a line perpendicular to
the closing line of the Rio de la Plata. This is the case at least with respect to the first section of the line,
between point 23 which, according to Article 70, is equidistant from Punta del Este and Punta Rasa del Cabo
San Antonio on the closing line, and point A, i.e. for a distance of approximately 112.7 nautical miles 123.
12.52 The State Department's Geographer, in his commentary upon the Rio de la Plata Treaty, taking into
consideration the lack of precision in the text of the agreement concerning determination of the course of the
dividing line, and in particular the fact that point 23 is not exactly the median point of the closing line of the
Rio de la Plata, drew the following conclusions:
"Beyond point 23 the shelf boundary is defined in Article 70 as 'an equidistant line, determined by
the adjacent coasts methods'. Since specific coordinates of this segment of the boundary are not
cited in the Treaty, the continental shelf boundary on the attached chart beyond point 23 consists of
provisional lines developed by the Department of State's Geographer on a U.S. chart.
From point 23 the line continues seaward as the perpendicular bisector of the Argentina-Uruguay
closing line of the Rio de la Plata. Point 23 is supposed to be equidistant from the two States; a .09
nautical mile calculated discrepancy from equidistance can probably be attributed to the different
charts used. While point 23 is the intended mid-point of the river closing line, it is not an
equidistant point between the two States. Pta. Brava, south of Montevideo, is closer to point 23
than any other Uruguayan or Argentine territory.
The perpendicular bisecting line is the boundary until it reaches point A, approximately 112.70
nautical miles seaward of point 23. At this point the configuration of Argentina's coast would cause the true equidistant boundary to be diverted toward Uruguay. Assuming, that the phrase in the
Treaty 'determined by the adjacent coasts methods...' (Article 70) means that all possible points on
both coasts are to be considered in drawing the equidistant boundary, then the shelf boundary
continues as the line connecting point 23 to points A, B, C, D, E, and F. If, however, the intention
of the Treaty is to continue the shelf boundary seaward from point 23 as the perpendicular bisector
of the river closing line, then this is depicted on the attached chart as a dashed line to points where
it is 200 nautical miles from Uruguay (UR) and from Argentina (AR) 124."
12.53 In sum, to repeat the well chosen words used by Professor Weil in his summary of the provisions of the
Rio de la Plata treaty concerning delimitation of the maritime front:
"L'accord Argentine/Uruguay ... définit la ligne de délimitation au large du Rio comme une ligne
d'équidistance; cette ligne aurait aussi bien pu être définie comme une perpendiculaire à la ligne
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imaginaire de fermeture du Rio ."
b) The Judgment of 12 October 1984 in the Gulf of Maine case
12.54 In the Gulf of Maine case, the Chamber held that:
"The course of the single maritime boundary that divides the continental shelf and the exclusive
fisheries zones of Canada and the United States of America in the area referred to in the Special
Agreement concluded by those two States on 29 March 1979 shall be defined by geodetic lines
connecting the points [A, B, C and D]"
126
of which it indicated the geographical coordinates . This meant that the dividing line between Canada and the
United States consisted of three segments, of which the first two - segments A-B and B-C - were situated inside
the Gulf of Maine and the third - segment C-D - corresponded to the delimitation outside the Gulf 127. Thus the
line of delimitation drawn by the Chamber between points A and B was the bisector of a reflex angle of about
278° formed by two lines perpendicular to the two coastlines, joining the end point of the international
boundary to Cape Elizabeth (United States) and to Cape Sable (Canada), respectively 128. As for the second
segment of the maritime boundary, linking points B and C, it is a "corrected median line 129", the Chamber
having taken into account various special circumstances (difference in length between the coasts of the two
States adjoining the delimitation area, and existence of the Canadian Seal Island, which was given half effect by
the Chamber) in order to modify the strict application of the equidistance method in this sector.
12.55 Finally, with respect to the third segment of the maritime boundary between points C and D, which is
therefore beyond the imaginary closing line of the Gulf of Maine, the Chamber used the perpendicularity
method. It considered that for this sector lying outside the Gulf:
"The portion of the line now to be determined will inevitably, throughout its length, be situated in
the open ocean. From the geographical point of view, there is no point of reference, outside the
actual shores of the Gulf, that can serve as a basis for carrying out the final operation required.
That being so, it appears obvious that the only kind of practical method which can be considered
for this purpose is, once again, a geometrical method. Within the range of such methods, the most
appropriate is that recommended above all by its simplicity, namely in this instance the drawing of
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a perpendicular to the closing line of the Gulf ."
12.56 Thus, the dividing line in this third sector, lying outside the Gulf proper, and linking points C and D,
forms a 90° angle with the closing line of the Gulf which joins Cape Sable to the island of Nantucket. But it
must be noted that, unlike at least the literal wording of the Rio de la Plata Treaty as analysed above, this C-D
perpendicular does not cut the imaginary closing line of the Gulf of Maine at its mid-point. It cuts it at a point
lying to the east of the mid-point, since it must not be forgotten that the second segment of the dividing line is
not a strict median line, but a median line corrected in favour of the United States, since the Chamber took into
account various special circumstances, as noted above 131 . The proportion between the lengths of the coastal
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fronts of the United States and Canada in the Gulf of Maine is 1.38 to 1 in favour of the United States . But
taking into account the half effect attributed by the Chamber to the Canadian Seal Island, the proportion to beapplied in order to determine the position of the corrected median line in the second sector was "approximately
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1.32 to 1 in place of 1.38 to 1 ". As Professor Weil has rightly pointed out, this C-D perpendicular "équivaut
à une ligne d'équidistance contrôlée par les deux points extrêmes de la ligne de fermeture et qui aurait fait
l'objet d'une translation vers l'est4".
C. Application of the Perpendicularity Method in the Present Case
1. Justification for use of this method of maritime delimitation
12.57 State practice and international jurisprudence thus show that when certain geographical conditions are
fulfilled, the perpendicularity method allows a reasonable and equitable delimitation of maritime areas lying off
a coastal concavity, be it deep or shallow, an estuary or a gulf. They also show that this method is particularly
appropriate when a single maritime boundary has to be drawn, as is the case here. The technique is simple. It is
sufficient to draw the line perpendicular to the imaginary closing line of the indentation concerned. As for the
starting point of the seaward segment of the boundary, it corresponds to a point situated on the closing line of
the concavity, which point may coincide, but does not necessarily do so, with the mid-point of the closing
line135. In fact, this starting point or, if one prefers, the base of the boundary of the seaward maritime areas,
must be the same as the end point of the previous segment of the dividing line in the maritime areas where the
two neighbouring States have opposite coasts, and therefore before that boundary meets the closing line. In
these circumstances, as was stressed by the Chamber in the Gulf of Maine case, "the essential question ... to be
resolved" is to determine "the precise point on the closing line of the Gulf from which the perpendicular to that
line should be drawn seawards 136". The Chamber explained its method of work in the following terms:
"However, if it is considered necessary to remain guided by geography, all the considerations
already set forth in regard to the determination of the final segment of the line militate in favour of
having this new choice coincide with the very point where the corrected median line encounters the
closing line of the Gulf. Indeed the Chamber has borne constantly in mind the problem of
determining the final segment of the delimitation line when applying itself so meticulously to the
task of establishing the previous segments. It would be unthinkable that, in that part of the
delimitation area which lies outside and over against the Gulf, the dividing line should not follow
or continue the line drawn within the Gulf by reference to the particular characteristics of its coasts.
If one were to seek for a typical illustration of what is meant by the adage 'the land dominates the
sea', it is here that it would be found37."
12.58 The perpendicularity method used in this way to delimit the maritime areas lying beyond the closing line
of a coastal concavity may be applied to similar geographical situations and also to achieve an equitable result
in such situations. Indeed, it is possible to relate to the hypothesis adopted in theGulf of Maine Judgment or in
the Rio de la Plata treaty a geographical configuration which, while not in the strict sense of the word a gulf or
an estuary, is certainly reminiscent of such a configuration. This could for example be the case for the
delimitation of areas lying outside a relatively narrow maritime passage between two States with at least
partially facing coasts, in which case the perpendicular is drawn from the imaginary line joining the furthest
points of the land territory of the two States.
12.59 The present case, where two sectors must be geographically distinguished from each other, falls within
this hypothesis 138. On the one hand there is the internal sector where the coasts of Qatar and Bahrain are
directly facing each other, and on the other hand there is the sector beyond the facing coasts of the two States,
in the open sea. It is quite clear that the territories of Qatar and Bahrain do not meet in the south, for example in
the area of the Dawhat Salwah or at the level of the Hawar islands. In this respect they are different from the
territories of Argentina and Uruguay which meet at the end of the Rio de la Plata; they are also different from
the territories of Canada and the United States which are contiguous at the end of the Gulf of Maine.
Nevertheless, the facing situation of Qatar and Bahrain is strangely reminiscent of the relationship between
Argentina and Uruguay, at least in the widest part of the Rio de la Plata, which is delimited by the segment
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linking points 22 and 23 of the maritime boundary by the Treaty of 19 November 1973 . The facing situation
of Qatar and Bahrain is even more reminiscent of the relationship between Canada and the United States in the
sector between Nova Scotia and Massachusetts, which is delimited by segment B-C of the maritime boundary
laid down b y the Judgment of 12 October 1984 140. Similarly, the furthest and northernmost points of Qatar andBahrain on the land, the furthest point of the Qatar peninsula on the one side and Al Muharraq on the other, are
even more significantly reminiscent of the natural points of entry of a deep coastal indentation appertaining to
two different States, such points being, on either side of the Rio de la Plata, Punta del Este and Punta Rasa del
Cabo San Antonio or, on either side of the Gulf of Maine, Cape Sable and the island of Nantucket, just as the
imaginary line joining the northernmost point of the Qatar peninsula to Al Muharraq is reminiscent of the
straight lines joining respectively Punta del Este and Punta Rasa del Cabo San Antonio and Cape Sable and the
island of Nantucket.
12.60 Use of the perpendicularity method in a geographical situation such as the one between Qatar and
Bahrain in the northern sector is easily justified, in view of these precedents. Indeed, to determine the course of
the outer dividing line, beyond the facing situation of the two States which are Parties to the present case, "there
is no point of reference" - to use the words of the Chamber in the Gulf of Maine case141 - beyond the respective
coasts of Qatar and Bahrain where they are opposite each other and, in particular, beyond the end points of the
closing line linking the northernmost point of the Qatar peninsula to Al Muharraq. These coasts and furthest
points on the land of Qatar and Bahrain are necessarily points which must be relied upon for drawing the course
of the maritime boundary between these two States in the northern sector. There can be no other points which
might serve as a basis for the delimitation.
12.61 In these circumstances, to quote once again from the Judgment of 12 October 1984 142, "it appears
obvious that the only kind of practical method which can be considered for this purpose is ... a geometrical
method" and, within the range of methods of this type, "the most appropriate is ... the drawing of a
perpendicular to the closing line" of the area where Qatar and Bahrain are opposite, which would be the
imaginary line linking the northernmost point of the Qatar peninsula to Al Muharraq. This perpendicularity
method is recommended, as was stressed by the Chamber, "above all by its simplicity 143 ". It is also
recommended insofar as it ensures an objective basis for the course of the maritime boundary between Qatar
and Bahrain in the northern sector. In their commentary on the Gulf of Maine case and the delimitation adopted
by the Chamber in the third sector beyond the line from Cape Sable to the island of Nantucket, two authors
remarked that:
"... the open sea beyond [the concavity] should be delimited by a line perpendicular to the closing
line of the concavity. Such a formula provides an objective means of delimitation and can be
applied to any deep c144tal concavity, no matter where the land boundary terminus is located
within the concavity ."
The same authors concluded their analysis by stating that "The specific contribution of this case may well be
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the guidance that it provides for the delimitation of a deep coastal concavity ". This conclusion covers
equally well the delimitation of maritime areas which extend seawards a relatively narrow maritime passage
between two States with facing coasts, as is precisely the case in the northern sector of the delimitation area
between Qatar and Bahrain.
2. Technical implementation of the perpendicularity method in the present case
12.62 The single maritime boundary between Qatar and Bahrain in the northern sector must necessarily pass
through point BLV. Indeed, this point, which is the end point of the 1947 line, is, as has been shown above, a
circumstance of the greatest relevance in the maritime delimitation between the two States 146 . Up to the turning
point of BLV, the boundary corresponds to the line laid down by the 1947 decision. Therefore, beyond the area
where Qatar and Bahrain are directly opposite each other, it is the course of the British line that links points N,
NSLB and BLV, as shown on Map No. 20 , facing this page, the geographical coordinates of which are
respectively, for N, longitude 50°48'31"E and latitude 26°15'02"N; for NSLB, longitude 50°49'48"E and
latitude 26°21'24"N; and for BLV, longitude 50°57'30"E and latitude 26°33'35"N. Beyond this turning point, in
order to link BLV to the median line established in the central part of the Gulf by the above-mentioned
delimitation agreements concluded between Qatar and Bahrain on the one hand and Iran on the other hand, the
147
boundary must be drawn in accordance with the perpendicularity method . This construction is based on the
following two elements.
12.63 The construction of the perpendicularity method in the northern sector is based first of all on the closing
line of the area where Qatar and Bahrain have facin g coasts, which, as has been seen above, links on Qatar'sside the northernmost point of the Qatar peninsula and, on Bahrain's side, the northernmost point of Al
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Muharraq . This is the line linking points RK and MQ, shown on Map No. 20 facing the previous page, the
geographical coordinates of which are longitude 51°12'02"E and latitude 26°09'25"N for RK and longitude 50°
37'54"E and latitude 26°17'15"N for MQ. The choice of point RK as a basis for the closing line on the Qatari
side has been made out of a desire to be strictly consistent with the position that is always taken in the present
Memorial, that no account should be taken of islands, islets, rocks and low-tide elevations in drawing the
149
dividing line . Qatar could have put forward serious arguments in favour of the island of Ras Rakan, which
would have been more favourable to it insofar as this point would have moved the closing line of the area
where the coasts of Qatar and Bahrain are opposite by approximately 2° northwards, and consequently would
have moved westwards the perpendicular to that line. As for the choice, on the Bahraini side, of point MQ on
the island of Al Muharraq, it is justified by the same desire for consistency, insofar as Al Muharraq, unlike Ras
Rakan in relation to Qatar, may be considered as part of the main Bahrain island and as forming with it one and
150
the same territory , since it "lies close off the NE extremity of Al Bahrayn to which it is connected by a stone
causeway and a road bridge 151".
12.64 The second element upon which the construction is based is the drawing of a perpendicular to the line
previously established, linking the north of the Qatar peninsula to Al Muharraq. This is simply a question of
drawing a line at right angles to the line from RK to MQ, passing through BLV and finally reaching the Gulf
median line established by treaty in the central part of the Gulf. The starting point of this perpendicular on the
closing line RK-MQ of the area where Qatar and Bahrain are opposite corresponds to point R, which is shown
on Map No. 20 , facing page 298, and whose geographical coordinates are longitude 50°52'28"E and latitude 26°
14'12"N. As for the end point of this perpendicular, at its intersection with the Gulf median line, it corresponds
to point S on Map No. 20 , the geographical coordinates of which are longitude 51°05'12"E and latitude 27°
03'04"N. Point S is located approximately 1270 metres (to be precise, 1271.97 m) to the west of point 2B on
152
Map No. 21, facing this page, which corresponds to point 2 laid down by the agreement for delimitation of
the continental shelf signed on 17 June 1971 between Bahrain and Iran, the geographical coordinates of which
are longitude 51°05'54"E and latitude 27°02'46"N 153. The proximity between point S, which is the end point of
the perpendicular, and point 2B of the 1971 agreement is striking, the distance of 1270 metres being quite
insignificant, given the degree of accuracy of the construction. Thus, for the sake of simplicity, point S can be
moved to point 2B, and consequently the last segment of the dividing line, BLV-S, can be moved to the BLV-
2B segment 154. In a manner of speaking, this operation performs itself, by a simple rounding-up, and the line
from BLV to 2B remains perfectly in harmony with the spirit of the method of perpendicularity, especially
since the extension of segment 2B-BLV of the dividing line is practically perpendicular (to the accuracy of 1°)
to the closing line, from point RK to point MQ, of the area where Qatar and Bahrain have opposite coasts. The
base of the BLV-2B line on RK-MQ corresponds in fact to point T on Map No. 21 , facing the previous page,
the geographical coordinates of which are longitude 50°51'59"E and latitude 26°14'18"N. And point T is
approximately 800 metres (to be precise, 822.24 metres) to the west of point R, which corresponds, as has
already been mentioned, to the base of the BLV-S perpendicular on RK-MQ. The shifting effect - 800 metres at
the starting point of the construction (R-T) and 1300 metres at its end point (S-2B) - is practically negligible at
the scale of the construction. Qatar concludes in these circumstances that the extension of the 1947 line for the
segment BLV-2B is a technically simple line which results in a reasonable delimitation, the equity of which is
confirmed a posteriori by proportionality calculations.
D. The a posteriori Verification of the Equity of the Result thus obtained in the Northern Sector
12.65 In the earlier discussion in this Chapter, Qatar has stressed the disparity and disproportion between the
155
respective lengths of the coastal fronts of the Parties to the present dispute . It has also recalled the use of the
principle of proportionality by the jurisprudence to evaluate the equity of the result of a maritime delimitation
after implementation of the method resulting from equitable principles, taking the relevant circumstances into
account 156. In the submission of Qatar, it is therefore not a question of making a direct division of the
delimitation area in the northern sector in proportion to the length of the Parties' coasts, but only of using the
idea of proportionality as a test of the equity of the delimitation once it has been made. Consequently, for Qatar,
proportionality is, as the Chamber stated in theGulf of Maine case:
"... a means of checking whether a provisional delimitation established initially on the basis of
other criteria, and by the use of a method which has nothing to do with that concept, can or cannot 157
be considered satisfactory in relation to certain geographical features of the specific case ."
In the present case, proportionality allows the checking of the equity of the result of the delimitation performed
in the northern sector on the basis of the perpendicularity method or, more precisely, the equity of the single
maritime boundary to the north of the area where the Parties have directly opposite coasts, linking points N,
NSLB, BLV and 2B ( Map No. 20 , facing page 298). It allows this verification taking into account the ratio
between the lengths of the relevant coastal fronts of the Parties and the size of the maritime areas appertaining
to them. But this verification presupposes that before comparing the ratios, the delimitation area in the northern
sector must be accurately defined.
1. The delimitation area in the northern sector
12.66 In the Gulf of Maine case, the Chamber stated that "the concept of the delimitation area ... is a legal
158
concept, albeit one developed against the background of physical and political geography ". On this basis,
how is the delimitation area in the northern sector to be defined in the present case? Its southern limit clearly
corresponds to the closing line of the area where Qatar and Bahrain are directly opposite each other, which has
been referred to several times 159, and which links points RK and MQ, i.e., the northernmost point of the Qatar
peninsula and of the island of Al Muharraq ( Map No. 22 facing this page). The northern limit of the
delimitation area is just as obvious: it is the continental shelf boundaries which were established by the
agreements between Qatar and Iran of 1969 and between Bahrain and Iran of 1971 160. As for its eastern and
western limits, they correspond to the lines drawn at a right angle from the furthest points of the closing line of
the area where Qatar and Bahrain are opposite, i.., from point RK, at the northernmost point of the Qatar
peninsula and from point MQ on Al Muharraq.
12.67 More precisely, the eastern limit of the area in dispute links point RK and point WQ ( Map No. 20, facing
page 298) at the point of intersection of the continental shelf boundary established by the agreement between
Qatar and Iran of 1969. Point WQ, the geographical coordinates of which are longitude 51°28'15"E and latitude
26°59'32"N, is located approximately 8900 metres (to be precise, 8910.96 metres) to the east of point 2 of the
161
dividing line fixed by the Qatar/Iran agreement ( Map No. 22 , facing the previous page) , the geographical
coordinates of which are longitude 51°23'00"E and latitude 27°00'35"N 162.
12.68 The western limit of the disputed area in the northern sector has two segments. The first segment links
point MQ and point WB on Map No. 22 , facing the previous page, at the intersect163 of the continental shelf
boundary established by the Bahrain/Saudi Arabia agreement of 22 February 1958 , the geographical
coordinates of point WB being longitude 50°50'10"E and latitude 27°04'42"N 164. The second segment of the
western limit corresponds to the line WB-4B on Map No. 20, facing page 298, and is the northernmost part of
the boundary under the Bahrain/Saudi Arabia agreement of 24 October 1958, point 4B being point 4 of the
Bahrain/Iran agreement of 1971 165and point 1 of the Iran/Saudi Arabia agreement of 24 October 1968 166, i..,
the Bahrain/Iran/Saudi Arabia tripoint, the geographical coordinates of which are longitude 50°54'00"E and
latitude 27°10'00"N 167.
12.69 This definition of the delimitation area in the northern sector is readily justifiable. Its southern and
northern limits are self-evident. As for its eastern and western limits, they have the merit of being logical, given
their strict symmetry over the greater part of their course, but also insofar as the chosen method of delimitation,
based on perpendicularity, is also a geometrical method. The delimitation area is perfectly suited to the
geographical conditions of the region. In particular, it takes into consideration the dissymetry in the respective
positions of Qatar and Bahrain and in the greater thrust forward or, if one prefers, in the overtaking, in their
168
projection northwards, of Bahrain and Al Muharraq in relation to the northernmost point of Qatar .
2. Proportionality between the lengths of the coastal fronts and the size of the maritime areas
12.70 On the basis of the above definition of the delimitation area in the northern sector, which links - as shown
on Map No. 23 , facing this page - points RK, N, MQ, WB, 4B, 3B, S, 2B, 2Q, WQ and RK, the overall surface
area is approximately 5215.11 km . The surface area of the maritime areas lying to the east of the dividing line
linking points N, NSLB, BLV and 2B, corresponding to the polygon RK, N, NSLB, BLV, 2B, 2Q, WQ, RKattributed to Qatar, is approximately 2,978.6 km². As for the surface area of the maritime areas lying to the west
of the same dividing line and corresponding to the polygon MQ, N, NSLB, BLV, 2B, 3B, 4B, WB, MQ
attributed to Bahrain, it is approximately 2,336.51 km². Thus, the ratio between the sizes of the maritime areas
on either side of the boundary proposed by Qatar in the northern sector is 1.68 to 1 in favour of Qatar.
12.71 It is true that these figures do not coincide exactly with the ratio between the respective lengths of the
coastal fronts of the Parties which, as has been established above, is 1.59 to 1 in favour of Qatar9 . However,
the fact remains that the equity test of the dividing line N, NSLB, BLV, 2B is quite conclusive for the following
reasons. First, it should be noted that the ratio of coastal lengths (1.59) is not very far distant from the ratio of
surface areas corresponding to the dividing line established by Qatar (1.68). The difference is only in the region
of 6%, which in itself is very little in the light of the constructions and, in any event, does not allow the
conclusion that the boundary is inequitable; there is no real disproportion between the respective values of 1.59
and 1.68. Moreover, if one defines the dividing line on the basis of the ideal ratio between coasts and surface
areas (1.59) and if one draws it on the same map to compare it with the dividing line proposed by Qatar, one
cannot fail to see that the balancing point thus obtained, at the intersection of the boundary established by the
agreements concluded by the Parties with Iran in the central part of the Gulf, corresponds to point EQ on Map
No. 23, facing the previous page, the geographical coordinates of which are longitude 51°07'44"E and latitude
170
27°02'32"N . And point EQ - which, it bears repeating, would be the end point of the dividing line
established on the basis of the exact ratio between the respective coastal lengths of the Parties (1.59) - is only
about 3000 metres (to be precise, 3054 metres) to the east of point 2B, which, again, is about 1270 metres from
point S171. This means that the final segment, beyond BLV, of the single maritime boundary in the northern
sector, as proposed by Qatar - i.., segment BLV-2B - is in a manner of speaking framed on the one hand by the
BLV-S segment, which corresponds to a strict application of the perpendicularity method, and on the other
hand by the BLV-EQ segment, which corresponds to a strict application of the proportionality method. This
means that the proportionality test performed in this way is sufficient to permit the conclusion that the N,
NSLB, BLV, 2B line is equitable.
3. Conclusion
12.72 The a posterioriverification made on the basis of proportionality calculations allow Qatar to conclude
that the only means of reaching an equitable solution for the delimitation of the maritime areas lying beyond the
area where the Parties' coasts are opposite is to draw a single line for the continental shelf and fishing zones,
linking points N, NSLB, BLV and 2B, and thus comprising two segments. The first segment, N, NSLB, BLV,
is the part of the boundary defined by the 1947 British decision, lying beyond the area where Qatar and Bahrain
are opposite. As for the second segment, BLV-2B, it corresponds to the perpendicular from BLV on the line
RK-MQ, it being understood that this perpendicular has been slightly modified so that the end point of the
boundary in the northern sector can coincide with point 2B. Point 2B, the geographical coordinates of which are
longitude 50°05'54"E and latitude 27°02'47"N 172, is indeed a very significant reference point in the maritime
delimitations in the area, not only because it is a turning point on the continental shelf boundary established by
the Bahrain/Iran agreement of 1971, but also because it is the Qatar/Iran/Bahrain tripoint, being "in fact"
173
equidistant from the coasts of those three countries .
CHAPTER XII THE SINGLE MARITIME BOUNDARY IN THE NORTHERN SECTOR
265
Introduction 265
Section 1. The Specific Nature of the Northern Sector 266
A. A de novo delimitation 266
B. A Delimitation concerning Maritime Areas lying beyond the
Outer Limit of the Parties' Territorial Waters 266
C. Irrelevance of the Usual Distinction between Frontal and Lateral
Delimitation 269Section 2. The Law Applicable to the Maritime Delimitation in the Northern Sector
271
A. The Delimitation must be made in Conformity with the
"Fundamental Norm" according to which the Course of the
Dividing Line must be drawn by applying Equitable Principles and
taking into account all Relevant Circumstances in order to achieve
an Equitable Result 271
B. The Existence of Common Principles Applicable to the
Delimitation of Maritime Areas lying outside the Territorial Waters
of the Parties, whatever the Legal Regime of such Areas may be
272
C. Equity does not necessarily imply Equality 274
Section 3. The Relevant Circumstances in the Northern Sector 275
A. The Relevant Geographical Circumstances 276
1. The geological and geomorphological unity of the area of
seabed to be delimited 276
2. The regularity of the geographical configuration of the
coasts of the Parties 278
3. The disparity or disproportion between the lengths of the
relevant coasts of the Parties 279
B. Taking into Consideration the Existing Delimitation Agreements
283
1. The conventional delimitations already effected and to be
taken into consideration 284
2. The Qatar/Iran/Bahrain tripoint 286
Section 4. The Appropriate Delimitation Method in the Northern Sector 287
A. The Rationale underlying the Perpendicularity Method 287
B. Use of the Perpendicularity Method in State Practice and in the
Jurisprudence 289
1. The line perpendicular to the general direction of the coast
289
2. The line perpendicular to the closing line of a coastal
concavity 290
a) The Rio de la Plata Treaty signed on 19 November
1973 between Argentina and Uruguay 291
b) The Judgment of 12 October 1984 in the Gulf of
Maine case 293
C. Application of the Perpendicularity Method in the Present Case 295
1. Justification for use of this method of maritime
delimitation 295
D. The a posteriori Verification of the Equity of the Result thus
obtained in the Northern Sector 301
1. The delimitation area in the northern sector 302
2. Proportionality between the lengths of the coastal fronts
and the size of the maritime areas 303
3. Conclusion 305
1 Para. 41, II.
2 Q.M.J.A., Vol. I, p. 26, para. 2.54.ee, also,Map No. 1 , facing p. 13, and Chapter IX, above.
3 See, Chap. XI, above.
4 Annexes IV.115 and IV.116, Vol. 10, pp. 71 and 75. See, para. 3.80, footnote 107 and Map No. 12 , facing
page 214, above. BLV should not be confused with the "Bahrain Light Float" which is at 26°33'N, 51°03'E. The
present geographical coordinates of the point referred to in the 1947 decision are 50°57'30"E and 26°33'35"N.
5 See, para. 10.42, above.
6 Points RK and MQ are located on the high water line of the coasts concerned ( see, paras. 12.10, 12.63, 12.66
and 12.70, below).
7 See, paras. 11.5et seq., above, and Annexes IV.278 and IV.281, Vol. 12, pp. 241 and 261.
8 See, para. 9.1, footnote 5, above, and Annex IV.269, Vol. 12, p. 169.
9 Annexes IV.260 and IV.264, Vol. 12, pp. 81 and 111.
10 Annex IV.283, Vol. 12, p. 271.
11 Indeed, the Iranian Proclamation of 30 October 1973 and the Qatari Proclamation of 2 June 1974 are in
harmony. First, in its Proclamation of 30 October 1973 "concerning the outer limit of the exclusive fishing zone
of Iran in the Persian Gulf and the Sea of Oman", the Iranian Government, "in order to safeguard the fishing
rights and interests of Iran in the seas adjacent to its coast and the coasts of its Islands", declared:
"The outer limits of the exclusive fishing zone of Iran in the Persian Gulf shall be the outer limits of the
superjacent waters of the continental shelf of Iran.
(a) In areas where the continental shelf of Iran has been delimited under bilateral agreements with other States,
the outer limits of the exclusive fishing zone of Iran shall correspond to the outer limits of the continental shelf
of Iran as specified in those agreements" (Annex IV.267, Vol. 12, p. 145).
This Iranian proclamation of 1973 is consistent with the 1969 Agreement between Qatar and Iran, and
constitutes express recognition by Iran of the application of the seabed line to the exclusive fishing zones.
Moreover, it was confirmed during the Third United Nations Conference on the Law of the Sea. Indeed, during
the Caracas Session, the Iranian delegation insisted several times upon the specific problems of semi-enclosed
seas (see, Annexes IV.270 and IV.272, Vol. 12, pp. 177 and 193) and expressly admitted the existence of a link
between the 1973 Proclamation and the 1969 Delimitation Agreement. On 13 August 1974, Mr. Kazemi stated,
at the 38th meeting of the Second Committee:"As to the management of resources, the fact that the total area of the semi-enclosed seas lay above the
continental shelf of the coastal States justified the working out of a special régime. In that connexion, the
delimitation of the various areas of jurisdiction would present problems which were peculiar to semi-enclosed
seas and which would have to be solved on the basis of the principles of justice, equity and equidistance. Iran
had already established the limits of its continental shelf in agreement with Saudi Arabia, Qatar and Bahrain on
the basis of those principles. His Government's Proclamation of 30 October 1973 relative to the establishment
of an exclusive fishery zone had also been based on those principles" ( see , Annex IV.271, Vol. 12, p. 183).
Second, this boundary for the fishing zones, corresponding to the "raised" continental shelf boundary, has
moreover been confirmed by the subsequent conduct of both States. In this regard, it should be recalled that
Qatar has also declared, in its Proclamation made in Doha on 2 June 1974, that:
"Without prejudice to freedom of movement of maritime and air international navigation, in accordance with
the established principles of international law, the State of Qatar to the exclusion of all others possesses rights
of total authority over natural resources, marine wealth and fishing in the areas adjacent to the territorial waters
of the coasts of the State and its islands.
The external boundaries of these areas shall be demarcated in accordance with bilateral agreements already in
force and those concluded in the future". See , Annex IV.269, Vol. 12, p. 169.
12 With respect to the coincidence between the continental shelf boundary, as established by agreement, and
the boundary of the fishing zones in Iranian practice, see, Annex IV.284, Vol. 13, p. 1 and J.I. Charney & L.M.
Alexander (eds.), op. ci., pp. 1506, 1514 and 1523.
13 Map No. 17 , facing page 266.
14 Annex IV.287, Vol. 13, pp. 25-28.
15 Thus, in the award of 30 June 1977, it is stated that "... to fix the precise legal classification of the Atlantic
region appears to this Court to be of little importance. The rules of delimitation prescribed in paragraph 1 and
paragraph 2 [of Article 6 of the 1958 Convention on the Continental Shelf] are the same, and it is the actual
geographical relation of the coasts of the two States which determine their application" ( ibid., p. 28). Moreover,
when it examined the role of special circumstances in the implementation of the rules contained in Article 6 of
the Convention, the Court was careful to stress that the equitable nature of a delimitation "cannot depend on
whether the case is legally to be considered a delimitation between 'opposite' or between 'adjacent'
States" (ibid., p. 27; emphasis in original). Similarly, in the case between Guinea and Guinea-Bissau, where one
of the parties considered the States were opposite, while the other considered they were adjacent, the arbitral
tribunal held that "il n'est pas nécessaire de s'attarder ici sur cette circonstance" (Annex IV.288, Vol. 13, p. 37).
16 Annex IV.321, Vol. 13, p. 259.
17 Annex IV.287, Vol. 13, p. 27.
18 Ibid.
19 Delimitation of the Maritime Boundary in the Gulf of Maine Area, Judgment, I.C.J. Reports 1984 , p. 333,
para. 216.
20 It may be noted that neither Qatar nor Bahrain is a party to the 1958 Convention.
21 I.C.J. Reports 1969 , p. 53, para. 101, C.1.
22 I.C.J. Reports 1993 , p. 59, para. 48;ee, also, p. 69, para. 70.
23 Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment I.C.J.,Reports 1985 , p. 39, para. 45;see, also,
I.C.J. Reports 1993, p. 64, para. 58.24 I.C.J. Reports 1982 , p. 92, para. 133, A.1.
25 Ibid., p. 59, para. 70.
26 I.C.J. Reports 1984 , pp. 299-300, para. 112.
27 I.C.J. Reports 1985 , p. 38, para. 45;ee,also, p. 57, para. 79, A.1.
28 Ibid., p. 47, para. 62. The arbitral jurisprudence follows the same line. Mention may be made, in particular,
of the 1977 Anglo-French award ( see , Annex IV.287, Vol. 13, pp. 19-20 and 22) and of the 1985
Guinea/Guinea-Bissau award (Annex IV.288, Vol. 13, p. 37).
29 See ,elimitation of the Maritime Boundary in the Gulf of Maine Area, Judgment, I.C.J. Reports 1984 , p.
294, para. 94.
30 See , Annex IV.287, Vol. 13, pp. 21-22, referring to Articles of the Revised Single Negotiating Text (Annex
IV.273, Vol. 12, p. 199). Subsequently, the contents of the provisions of the Revised Single Negotiating Text
were changed so that agreement could be reached at the Conference as to the wording of Articles 74 and 83 of
the 1982 Convention, which entered into force on 16 November 1994.
31 Maritime Delimitation in the Area between Greenland and Jan Mayen, Judgment, I.C.J. Reports 1993 , p.
59, paras. 46-47, where the Court noted that the parties took the same position, neither of them seeing any
objection to "the boundary of the fishery zones being determined by the law governing the boundary of the
exclusive economic zone, which is customary law" ( ibid., para. 47).
32 Ibid., p. 59, para. 48.
33 Continental Shelf (Tunisia/Libyan Arab Jamahiriya ), Dissenting Opinion of Judge Mosler, I.C.J. Reports
1985, p. 119.
34 Annex IV.321, Vol. 13, p. 262.
35 North Sea Continental Shelf, Judgment I.,.J. Reports 1969 , p. 49, para. 91.
36 Ibid., pp. 49-50, para. 91.
37 Annex IV.287, Vol. 13, p. 32.
38 I.C.J. Reports 1985 , p. 43, para. 54.
39 Ibid., pp. 39-40, para. 46.
40 Ibid.
41 See , para. 12.1, above.
42 Delimitation of the Maritime Boundary in the Gulf of Maine Area, Judgment I.C,J. Reports 1984 , p. 326,
para. 192. The Court will however be aware that in the present case, in sharp contrast with the situation in the
Gulf of Maine case, the fisheries element is essentially irrelevant.
43 Ibid., p. 326, para. 193.
44 Ibid., p. 327, para. 194.
45 Ibid., p. 326, para. 193.
46 Ibid., p. 327, para. 194.47 See , in particular,orth Sea Continental Shelf, Judgment I.C,J. Reports 1969 , p. 51, para. 95 and
Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment I.C.J, Reports 1982 , p. 47, para. 44 and p. 57,
para. 66.
48 Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment I.C.J.,Reports 1985 , p. 36, para. 40.
49 See, Annex IV.327, Vol. 13, p. 293. Even supposing that there are a few structural irregularities in the sea-
bed in the northern sector, these are not very significant and can only be considered as "minor structures". The
traditional analyses by Graham Evans of the geology, geomorphology and sedimentology of the Gulf (G.
Evans, in R. Fairbridge (ed.), Persian Gulf in the Encyclopedia of Oceanography , Reinhold Publishing
Corporation, New York, 1966, pp. 689-695) do not belie this presumption of unity and uniformity of the sea-
bed throughout the sector to the north of BLV, and this analysis is confirmed by the more recent study by P.
Kassler (The Structural and Geomorphic Evolution of the Persian Gulf: Holocene Carbonate Sedimentation
and Diagenesis in a Shallow Epicontinental Sea, New York, Springer Verlag, 1973).
50 North Sea Continental Shelf, Judgment I.C,J. Reports 1969 , p. 51, para. 96;ee, also, p. 54, para. 101.D.I.
51 Annex IV.287, Vol. 13, p. 30.
52 Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment I.C.J, Reports 1982 , p. 61, para. 74.
53 Delimitation of the Maritime Boundary in the Gulf of Maine Area, Judgment I.C.J.,Reports 1984 , p. 330,
para. 205.
54 North Sea Continental Shelf, Judgment I.C,J. Reports 1969 , p. 51, para. 96.
55 See, I.C.J. Reports 1982 , pp. 86-87, para. 123.
56 I.C.J. Reports 1984 , p. 320, para. 176.
57 Fisheries, Judgment I,C.J. Reports 1951 , p. 128.
58 See , para. 12.31, below.
59 Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment I.C.J, Reports 1982 , p. 61, para. 73.
60 I.C.J. Reports 1985 , p. 41, para. 49. In the same case, three of the Court's judges declared, in their joint
separate opinion, that "The extent and limits of [the] shelf are given concrete form by the coastal front, and as a
function of its geography, which comprises all its physical characteristics, length included. The sea-board is a
parameter which enables use to be made of the sea; it is a more or less important, more or less extensive, means
of access to the sea. For that purpose it is expressed in units of measurement. Territorial sovereignty generates
continental shelf rights by way of the coastal front (as is proved by the fact that it cannot engender them in the
case of landlocked States). This coastal front generates a certain area of continental shelf, because of its length,
among other things; this seems a statement of the obvious". I.C.J. Reports 1985 , pp. 83-84, para. 21.
61 See , Annex IV.288, Vol. 13, p. 41.
62 I.C.J. Reports 1969 , p. 52, para. 98;.C.J. Reports 1982 , p. 86, para. 122;I.C.J. Reports 1984 , p. 268, para.
29; pp. 318-319, paras. 170-171 and p. 320, para. 176; see , also, Annex IV.288, Vol. 13, pp. 39 and 40.
63 See , Appendix 6, Vol. 15, p. 143.
64 Ibid.
65 Ibid.
66 I.C.J. Reports 1993 ,p. 67, para. 65.67 See , paras. 12.6-12.9, above.See, also,I.C.J. Reports 1969, p. 54, para. 101, D.3;ibid., p. 52, para. 98;C.J.
Reports 1982 , pp. 43-44, para. 37;.C.J. Reports 1985 , pp. 43-45, paras. 55-57.See, also, para. 12.19, above.
68 I.C.J. Reports 1984 , p. 323, para. 185.
69 Ibid., p. 336, para. 222. The disproportion there was therefore not as great as that in the present case. The
ratio between the lengths of the coastal fronts of Qatar and Bahrain is, it should be recalled, 1.59 to 1 in favour
of Qatar. See, para. 12.32, above.
70 Ibid., p. 323, para. 185.
71 Ibid., p. 337, para. 223. It will also be recalled that, in a situation of lateral delimitation relating both to the
continental shelf and to the exclusive economic zone, the arbitral award of 1985 in the case concerning
delimitation of the Guinea/Guinea-Bissau boundary also used proportionality as a test to be applied a
posteriori, thus allowing it to be verified whether each Party had obtained a maritime area in proportion to the
length of its coastline;ee, Annex IV.288, Vol. 13, p. 41.
72 I.C.J. Reports 1993, p. 65, para. 61.
73 Ibid., pp. 68-69, para. 68.
74 Ibid., p. 69, para. 69.
75 I.C.J. Reports 1984 , p. 290, para. 81.
76 See , para. 12.32, above.
77 I.C.J. Reports 1969 , p. 52, para. 98.
78 Ibid., pp. 53-54, para. 101, D; Annex IV.287, Vol. 13, pp. 22 and 23; I.C.J. Reports 1985 , p. 44, para. 57;
I.C.J. Reports 1993, p. 67, para. 66.
79 Annex IV.287, Vol. 13, pp. 23 and 30; I.C.J. Reports 1982, p. 91, paras. 130-131.
80 I.C.J. Reports 1985 , p. 53, para. 74.
81 I.C.J. Reports 1982 , p. 91, para. 131;.C.J. Reports 1985 , p. 55, para. 75.
82 I.C.J. Reports 1982 , p. 78, para. 108.
83 I.C.J. Reports 1993 , p. 68, para. 67.
84 I.C.J. Reports 1969 , p. 54, para. 101, D.3.
85 I.C.J. Reports 1982 , p. 64, para. 81;ee, also, p. 93, para. 133, B.5.
86 Annex IV.288, Vol. 13, p. 38.
87 Annex IV.321, Vol. 13, p. 261.
88 See , Annex IV.260, Vol. 12, p. 83 and Map No. 11 , facing page 209 .
89 See, Annex IV.264, Vol. 12, p. 113 and Map No. 11 , facing page 209.
90 Subject to a discrepancy of one second, which might be explained by a simple error in calculation. In fact
point 2 in the Bahrain/Iran agreement of 1971 is not situated exactly on the line defined both by that agreement
and by the Qatar/Iran agreement of 1969. In order to be strictly accurate to a second of latitude and longitude,27°02'47" North should have been taken for the latitude of point 2 and not 27°02'46", it being understood that
the longitude figure of 51°05'54" East must remain the same. In any event, this error has no practical effect on
the maritime delimitation between Qatar and Bahrain in the northern sector.
91 See , paras. 12.8-12.9, above.
92 See , Annex IV.262, Vol. 12, p. 95 and Map No. 11 , facing page 209.
93 See , Annex IV.258, Vol. 12, p. 71.
94 See , para. 12.68, below.
95 See , paras. 11.27et seq., above.
96 Annex IV.287, Vol. 13, p. 18; I.C.J. Reports 1982 , p. 90, Map No. 3; I.C.J. Reports 1985 , p. 26, para. 21,
following the Judgment of 1984 concerning Italy's application for permission to intervene, I.C.J. Reports 1984,
p. 27, para. 43.
97 Frontier Dispute, Judgment I,C.J. Reports 1986 , pp. 577-578, paras. 46-47;Territorial Dispute (Libyan
Arab Jamahiriya/Chad), Judgment I.C,J. Reports 1994 , pp. 33-34, para. 63.
98 I.C.J. Reports 1986 , pp. 577-578, paras. 46-47.
99 On this point, the Chamber concluded that it had "a duty to decide the whole of the petitum entrusted to it;
that is, to indicate the line of the frontier between the Parties over the entire length of the disputed area. In so
doing, it will define the location of the end-point of the frontier in the east, the point where this frontier ceases
to divide the territories of Burkina Faso and Mali; but ... this will not amount to a decision by the Chamber that
this is a tripoint which affects Niger" (C.J. Reports 1986 , pp. 579-580, para. 50).
100 See , paras. 12.14et seq., above.
101 See , paras. 12.20et seq., above.
102 Die technischen Fragen des Küstenmeers , Kiel, 1934, p. 156.
103 Le droit international public de la mer , T. III, La mer territoriale et la zone contiguë, Paris, Sirey, 1981
(Annex IV.300, Vol. 13, pp. 129-130).
104 Annex IV.321, Vol. 13, p. 257. In Professor Weil's view, "Il serait à peine exagéré de dire que la méthode
de l'équidistance constitue le développement scientifique de celle de la perpendiculaire, plus fruste car
'vraisemblablement la plus ancienne qui soit venue à l'esprit' pour délimiter la mer territoriale entre Etats
limitrophes" (ibid., p. 259). Prof. Weil refers in this respect to the observations of the Chamber in thelf of
Maine case (I.C.J. Reports 1984 , pp. 319-320, para. 175).
105 Annex IV.321, Vol. 13, p. 263.
106 Method, Oppositeness and Adjacency, and Proportionality in Maritime Delimitation in J.I. Charney &
L.M. Alexander (eds.), op. ci., International Maritime Boundaries, Vol. I, p. 213.
107 Annex IV.302, Vol. 13, p. 147.
108 I.C.J. Reports 1984 , p. 329, para. 200.
109 See, paras. 12.54 et seq., below.
110 I.C.J. Reports 1984 , p. 329, para. 200.111 It may be recalled that this was one of the four methods submitted to the Committee of Expert
Hydrographers by the International Law Commission in 1953, in the hypothesis of a lateral delimitation of the
territorial waters of two adjacent States, the others being, respectively, equidistance, the extension seawards of
the land boundary, and the drawing of a line perpendicular to the coast at the point where the land boundary
reaches the sea (see, also,I.C.J. Reports 1969 , p. 34, para. 51 andI.C.J. Reports 1984 , pp. 319-320, para. 175).
112 Limits in the Seas, No. 55; J.I. Charney & L.M. Alexander (eds.), op.cit., Vol. II, pp. 2039-2056.
113 Annex IV.274, Vol. 12, p. 201. See , also, J.I. Charney & L.M. Alexander (eds.), op. cit.Vol. I, pp. 785-
792 and the observations of L. Legault & B. Hankey, ibid., Vol. I, p. 214.
114 Limits in the Seas, No. 97; J.I. Charney & L.M. Alexander (eds.), op. cit.Vol. I, pp. 537-549.
115 Annex IV.285, Vol. 13, p. 7, and the observations of G. Gidel, op. ci. (Annex IV.300, Vol. 13, pp. 129 et
seq.).
116 I.C.J. Reports 1982 , p. 85, para. 120, and the observations of E. Decaux (Annex IV.296, Vol. 13, p. 93).
117 Annex IV.288, Vol. 13, p. 33, and the commentaries by E. David in the Annuaire français de droit
international, 1985 (Annex IV.295, Vol. 13, p. 83) and in J.I. Charney & L.M. Alexander (eds.), op. cit.,Vol. I,
p. 861.
118 See,paras. 12.59-12.61, below.
119 Annex IV.231, Vol. 13, p. 263.
120 Annex IV.268, Vol. 12, p. 149. J.I. Charney & L.M. Alexander (eds.), op. cit.,Vol. I, pp. 757-776.
121 This is independent of the question - which was subject to controversy for a long time in the past but which
is of hardly any interest today - of whether the Rio de la Plata should be assimilated to a bay or to an estuary.
122 Annex IV.268, Vol. 12, p. 149.
123 See, Map No. 18 , facing this page, taken from B. Conforti, G. Francalanci, Atlante dei confini sottomarini ,
Milano, Giuffrè, 1979, p. 187.
124 Annex IV.268, Vol. 12, p. 149.
125 Annex IV.321, Vol. 13, p. 263.
126 I.C.J. Reports 1984 , p. 345, para. 243.
127 See, Map No. 19 , facing this page (.C.J. Reports 1984 , p. 346).
128 I.C.J. Reports 1984 , p. 333, para. 213.
129 Ibid., p. 337, para. 223.
130 Ibid, pp. 337-338, para. 224; see , also, the commentaries by E. Decaux (Annex IV.297, Vol. 13, p. 97);
L.H. Legault & D.M. McRae (Annex IV.306, Vol. 13, p. 165); J. Schneider (Annex IV.318, Vol. 13, p. 243);
see, also, Annex IV.290, Vol. 13, p. 53.
131 See,para. 12.54 above.
132 I.C.J. Reports 1984 , pp. 335-336, paras. 221-222.
133 Ibid., p. 337, para. 222;ee , also, the Technical Report of P.B. Beazley, ibid., pp. 350-351, paras. 14-15.See, also, the observations of L. M. Alexander (Annex IV.290, Vol. 13, p. 53).
134 Annex IV.321, Vol. 13, p. 264.
135 Two commentators upon the Judgment of 12 October 1984 have remarked in this respect: "In the Gulf of
Maine case ..., in establishing the third segment of the boundary, which divides the Atlantic area seaward of the
Gulf of Maine, the Chamber drew a line perpendicular to the closing line of the Gulf. This method was used
instead of equidistance because the Chamber did not wish the line in this area to commence from the midpoint
of the closing line, which would have been the approximate result if the equidistance method had been
employed. By using the perpendicular, in conjunction with other methods for the segments inside the Gulf, the
Chamber had more freedom to adjust the starting point of the outer segment of the boundary", in J.I. Charney &
L.M. Alexander (eds.), op. cit.Vol. I, p. 213.
136 I.C.J. Reports 1984 , p. 338, para. 226.
137 Ibid., p. 338, para. 226.
138 See, paras. 12.10-12.12, above.
139 See, Map No. 18 , facing page 292.
140 See, Map No. 19 , facing page 293.
141 I.C.J. Reports 1984 , p. 337, para. 224.
142 Ibid., pp. 337-338, para. 224.
143 Ibid.,p. 338, para. 224.
144 Annex IV.306, Vol. 13, p. 165.
145 Ibid.
146 See, para. 12.5, above.
147 See , para. 12.39, above.
148 See , paras. 12.10 and 12.59, above.
149 See , paras. 12.31-12.32, above.
150 As noted by the Persian Gulf Pilot, "Ra's Rakan (26°11'N, 51°13'E) is the NW extremity of a low sandy
islet which lies about 1 1/4 miles off the N extremity of Al Qatar; the reef between the islet and the mainland
dries" (Annex II.1, Vol. 3, p. 35).
151 Ibid., p. 38.
152 See, Map No. 20 , facing page 298.
153 Annex IV.264, Vol. 12, p. 111. The latter coordinate is subject, naturally, to the correction by one second
which must be made to the determination of the latitude of this point (para. 12.39, note 90, above). The exact
coordinates of point 2 are therefore longitude 51°05'54"E and latitude 27°02'47"N, and not 27°02'46", as
indicated by the 1971 agreement. It will also be noted that point 2 is particularly remarkable, since it may be
considered as being, at least approximately, equidistant from each of Bahrain, Iran and Qatar. First, this point is
located, as the Department of State's Geographer has noted, "nearly the same distance from Bahrain and Qatar"
and is "in fact" an equidistant point, since it is located 51.2 nautical miles from an islet to the north of Al
Muharra q and 50.7 nautical miles from the Iranian island of Nakhilu. If the same calculation is made followingthe method which is consistently used in the present Memorial, i.e, without taking into account islands, islets,
rocks or low-tide elevations, and starting from the high water level, it will be seen that point 2 is located 51.85
nautical miles or 96,032 metres from Al Muharraq and 101,838 metres or 55.0 nautical miles from the Iranian
coast (Ras Jabrin). Second, point 2 is similarly roughly equidistant from Bahrain and Qatar, since it is located
53.81 nautical miles or 99,671 metres from the northernmost point of the Qatar peninsula, this calculation being
made on the basis of the same principles as before. It may therefore be considered that point 2 is a tripoint at
practically the same distance from Qatar, Iran and Bahrain or, at the very least, that it is more significant than
any other point on the Gulf median line established by the agreements between Qatar and Iran and Bahrain and
Iran in 1969 and 1971, respectively.
154 Point 2B could become, with Iran's agreement, the Qatar/Iran/Bahrain tripoint ( see,para. 12.42 above and
para. 12.72, below).
155 See , paras. 12.30-12.32, above.
156 See , paras. 12.33-12.36, above.
157 I.C.J. Reports 1984 , p. 323, para. 185.
158 I.C.J. Reports 1984 , p. 272, para. 41.
159 See , paras. 12.10 and 12.63, above.
160 Annexes IV.260 and IV.264, Vol. 12, pp. 81 and 111.
161 Annex IV.260, Vol. 12, p. 81.
162 In the delimitation agreements between Iran and Bahrain and Iran and Qatar, several numbered points are
identified along the line of delimitation. These are indicated onap No. 22 , facing the previous page, as points
2, 3 and 4 on the Iran/Bahrain line and 2 and 3 on the Iran/Qatar line. For ease of reference in the text of this
Memorial, these points are from time to time referred to, for example, as 4B on the Iran/Bahrain line and 2Q on
the Iran/Qatar line.
163 Annex IV.262, Vol. 12, p. 95; Map No. 22 , facing the previous page.
164 Point WB is located on the last segment of the boundary under the Bahrain/Saudi Arabia agreement of
1958, 11,455 metres to the north-east of point S14, the geographical coordinates of which are longitude 50°
46'24"E and latitude 26°59'30"N.
165 Annex IV.264, Vol. 12, p. 111.
166 Annex IV.258, Vol. 12, p. 71.
167 See , para. 12.40, above.
168 The general orientation of the delimitation area towards the north-north-east is not favourable to Qatar.
However, Qatar does not want, under cover of equity, to make an adjustment to the dividing line N, NSLB,
BLV, 2B that it is proposing in application of the perpendicularity method, since this would be "refashioning
geography" (para. 12.28, above). It may be recalled in this connection that in the Anglo-French case, the
Arbitral Tribunal held that in the Atlantic region, the presence of the Scilly Isles to the west-south-west of
Cornwall would cause quite a marked deviation of the equidistance line, and that it should therefore be a
"special circumstance" within the meaning of Article 6 of the 1958 Convention on the Continental Shelf,
"justifying a boundary other than the strict median line" (Annex IV.287, Vol. 13, p. 29).
169 See , para. 12.32, above, and Appendix 6, Vol. 15, p. 143.
170 The ideal dividing line with regard to the proportionality calculations should in this case correspond to theline N, NSLB, BLV, EQ.
171 See, para. 12.64, above.
172 See, para. 12.39, footnote 90, above.
173 See, para. 12.42 and para. 12.64, above.
__________
LIST OF MAPS
Map No. 1. General Setting of the Arabian Gulf 13
Map No. 2. General Area of the Dispute 14
Map No. 3. Historical Background 17
Map No. 4. Ottoman Map of Qatar and its Borders with Bahrain dated 27 June 1867 20
Map No. 5. Proximity of the Hawar Islands to Qatar 50
Map No. 6. Ottoman Survey Map of Hawar dated 10 December 1873 64
Map No. 7. "Ägypten, Palästina und Arabien", published by Freytag & Berndt, 1914 70
Map No. 8. "Arabia", published by Geographia Ltd., 1919 70
Map No. 9. The Hawar Islands and Janan Island 145
Map No. 10. Zubarah 189
Map No. 11. General Presentation of the Maritime Area 209
Map No. 12. The British Decision of 23 December 1947 215
Map No. 13. Map attached to Bahrain's letters dated 2 and 10 March 1964 232
Map No. 14. 12 Nautical Mile Projection from Opposite Coasts 250
Map No. 15. The British Decision of 23 December 1947 (Details) 254
Map No. 16. The Single Maritime Boundary Requested by Qatar in the Southern Sector 258
Map No. 17. The Closing Line of the Area where Qatar and Bahrain have Opposite Coasts 266
Map No. 18. The Continental Shelf Boundary between Uruguay and Argentina
(The Rio de la Plata Treaty of 19 November 1973) 292
Map No. 19. The Maritime Boundary between Canada and the United States
(The Judgment of 12 October 1984 in the Gulf of Maine Case) 293Map No. 20. Application of the Strict Perpendicularity Method in the Northern Sector 298
Map No. 21. Application of Modified Perpendicularity in the Northern Sector 300
Map No. 22. Area of Delimitation in the Northern Sector 302
Map No. 23. Test of Proportionality in the Northern Sector 304
Map No. 24. The Single Maritime Boundary Requested by Qatar 306
Highlighted version of the Memorial of the Government of the State of Qatar