IN THE NAME OF GO0
THE MERCIFUL, THE BENEVOLENT INTERNATIONAL COURT OF JUSTICE
CASECONCERNINGMARITIMEDELIMITATION
AND TERRITORIALQUESTIONS
BETWEEN
QATARAND BAHRAIN
(QATVBAHRAIN)
COUNTER-MEMORIAL
SUBMITTEDBY
THE STATEOF QATAR
VOLUME 1
31 DECEMBER 1997 TABLEOFCONTENTS
PREFACE ..........................................................
...............................................
PART 1 INTRODUCTION ...........................................................1
..........................
CHAPTERI THE MAIN ELEMENTS OF THE CASE AT THE
PRESENT STAGEOF THE PROCEEDINGS ......................
Section 1. Summaryof the centraleIementsof the case ................1......
A . Territorialquestions....................................1........................
1 . TheHawar islands ....................................1........................
2 . Janainsland...........................................3............................
3 . Zubarah ..............................................3.......
.......
B. Maritimedelimitation ...................................4...............
Section2 . Bahrain'lsitigationstrategy................................7.............
A. Observationson Bahrain'spresentationof its case............
B. Observationson Bahrain'shistoricalperspectiveof the
disputes ...............................................9.........
...
C. The violations by Bahrain of the status quo
cornmitments ..........................................Il.................
Section3. Structure ofQatar'sCounter-Mernorial ....................11............
PART II THE HISTORICAL ANDGEOGRAPHICAL BACKGROUND TO
THEDISPUTE ..........................................................
1.........................
CHAPTERII MISSTATEMENTSAND OMISSIONS INBAHRAIN'S
PRESENTATION OF THE HISTORICAL AND
GEOGRAPHICAL BACKGROUND ........................1........
Section l. Development of Al-Thani authority over the entire
peninsula................................................1...........
........
A . Theinternationalcontextinthe area ......................4
1. TheWahhabipresencein Qatarand Bahrain................. .4 2. The Ottoman presencein Hasaand Qatar ...................
3. The British presenceinthe Gulf ........................1.........
4 . ThePersianclaimto sovereignty overBahrain ..........1..
E. The interna1context: existenceof a tribal system .........1..
1. Qatar .............................................................
....
2 . Bahrain ................................................2..........
...
C. Establishment by the Al-Thani of authority and
control overQatar ........................................1............
1. Thepolicyof the Al-Thani ..............................1........
2. The establishment and consolidation of Al-Thani
authority................................................2...........
..
a) Generalauthorityprior tothe Ottomanpresence ...22
b) General authority following arriva1 of the
Ottomansin 1871 .................................24...........
Al-Thaniauthorityonthe Hawarislands ....,......29..
c)
d) Al-Thaniauthorityin and aroundZubarah ..........2..
e) Al-Thani authorityin the south-westof Qatar .......1
f) Al-Thaniauthorityin the interior ...................1...
D . Theabsenceof Al-malifah authorityin Qatar ...............
Section2. The myth of Bahrain's maritime supremacy and the
failureof itsexpansionistpolicies ..........................38..............
A . Zakhnuniyaisland ........................................9...........
B. TheLubainahislands ....................................40............
C. FashtBu Saafa ........................................................PART II1 THEHAWARISLANDSANDOTHERTERRITORIALQUESTIONS ...43
CHAPTERIII THE HAWAR ISLANDS .....................................3..............
Section 1. Introduction...............................................3...........
....
Section2 . Qatari title to the Hawar islands prior to1936 and its
recognitionby third States................................45....................
A . Events leading up to the Agreements of 1868 and
British recognition of the separate identities of Qatar
and Bahrain ............................................0................
B. Eventsof 1867and 1868..............................................5
C. Paymentof "tribute" ..................................................
D. Anglo-OttomanConvention of 191 3 ...........................
E. British-Qatar Treatyof 3November 1916 ...............6.....
F. Otherevidenceof British recognition......................5.......6
G. Regionalrecognition ....................................6...........
Section3 . Bahrain'sillegaloccupationofthe main Hawarisland ........
Section4 . Bahrain'sfailure to mention the crucial events of 1936
when Bahrain first formally asserted a claim to the
Hawar islands and the British Government made a
"provisionaldecision"inBahrain'sfavour .................72......
A . The first forrnalBahrain claim tothe Hawarislandsof
28 April 1936 .........................................72.................
B . Attitudeofthe oil cornpaniesinthe 1930s.................5....7
C . British knowledge of Qatar'stitleto the Hawarislands...77
D . Chronology of significant events relating to Hawar:
1933-1936 .............................................9.............
..
E . The map attachedto the Qataroil concession of 1935 ....84Section5. Activities of Bahrain in or in relation to the Hawar
islands cannot be invoked to establish titlifthey were
motivated by an intent to deceive or occurred after the
dispute between Bahrain and Qatar on this issue had
becomeapparent .........................................8.................
A . Bahrain's"evidence"inrelationto Hawar ...............87........
B . Statusand allegianceof the Dowasir ....................8.7......
C . The relevanceof the date of the first fonnal claim by
Bahrainto the Hawarislands ...........................95................
Section6 . Inadequacy of Bahrain'sevidence to sustain a claim of
title to the Hawarisiandsprior to 1936.............................
A . Bahrain's contentions as to the Dowasir tribe are
withoutanysubstance ..............................................
B. Bahrain's other groundsin support of its claim to the
Hawarislands are equallywithoutsubstance ...........105....
1 . The 11878Ottomanmap .............................1.........
2 . TheZakhnuniya paralle.............................1..........
3 . TheBruckssurvey ..................................1..7..........
4 . TheshipwreckedOttomansoldiersof 1873 ..............8
5. The Ruler of Bahrain's jurisdiction to serve
surnrnonson inhabitantsof Hawarislands ............108.....
6 . Bahrain'spost-1936 evidence ........................1........
Section7 . TheBritishdecisionof 11July 1939 ......................1..1.....
A . Bahrain's account of events omits many significant
factsandembodiesanumberofmisleadingstatements..112
B. The me significance of Annex 292 to the Bahain
Memorial .......................................................
..
C. MiscellaneousBahrainiarguments ....................1......
1. Fishing.............................................1...........
.. 3. Animal husbandry ....................................124..................
4. Gypsumquanying ....................................25...........
5. Permanentsettlement .................................12.........
6. Actsofadministrationor authority ....................12....
7. Statusquo ............................................2...............
8. Generaitraverse .......................................2.............
D . Further evidence of pre-judgment by the British
authoritiesin theGulf .................................1..........
E . Thedecisionof 11July 1939is not resjudicata ........13.1
Section8 . Qatar has never acquiesced in Bahrain'sdefacto control
ofthe Hawarislands ......................................13............
CHAPTER IV JANAN ISLAND ............................................14.............
Section 1. The geography ........................................................
Section2 . Bahrain'sclaim is unfounded ..............................144...............
CHAPTER V ZUBARAH ..................................................14........
......
Section 1. Introduction..............................................1.........
...
Section2. Thehistory corrected:Qatar's titleto Zubarah .............1...
A . Earlyhistory .............................................1.............
B . Theperiodfrom 1868-1937 ............................1........
1. Britishrejection of Bahrain'sclaim to Zubarah at its
inception ............................................151.........................
2. Bahrain daim of resistance to OttomadAl-Thani
controlofZubarah ...................................1..5.......
3. Bahrain's "claim" relating to Zubarah and concem
forthe security ofBahrain ............................1..0.......
4 . Recognitionof Zubarahaspart of Qatar ..............1.... 5. Zubarah andthe discoveryof oil .....................1......
6. The events of 1937 ..................................1..........
C . Theperiodafter 1937 .................................1.........
Section3 . Bahrain has no legal basis for its claim to sovereignty
over Zubarah ............................................1..8..........
...
A . Absence of acts of sovereignty performedby Bahrain
in or inrelatiotoZubarah ............................178...............
B . There is no factual or legal basis for Bahrain's
argument based on the supposed allegiance of the
Naim ....................................................8...
......
1. The lack of foundationofthe allegiance argumentin
factand in law.......................................1..9.............
a) The links of allegianceof the Naim towards the
Rulerof Bahrainare not proved ..................179........
b) The territory claimed by Bahrain was not
occupiedpermanentlyor regularlyby the Naim....181
c) TheterritoryclaimedbyBahrainwas frequented
by sectionsof the Naim tribe other than the Al-
Jabr ............................................1..2...........
...
2. Theabsenceofany legal basis forthe Bahrainiclaim
to sovereigntyover Zubarah .........................1.........
PARTIV
MARITIMEDELIMITATION ..........................................1...............
CHAPTER VI GENERAL ASSESSMENTOFBAHRAIN'SPOSITION......187
Section 1. Main pointsof agreement and disagreement betweenthe
Parties..................................................1.....
..........
A . Points ofagreementbetweenthe Parties ................1..7...
B . Points ofdisagreementbetweenthe Parties .....................
Section2 . Bahrain'ssovereignty argument ....................................
A . The falsity of Bahrain's argumentation concerning
acquisitionof rights overmaritime features............1..9. B. The so-cailed evidence of Bahraini "acts of
sovereignty" ...........................................1.................
1. Erectionof beaconsor cairns ...........................9........
2. Activitiesof oil companiesoperatiiiginBahrain ......1.92
3. Aids to fishermen provided by the Bahrain
Government .........................................1...............
.
4 Exclusiveuse of fashtsby Bahrainiboats .............1.94..
5. Navigational safetyandpolice ........................1.......
Section3 . The Bahrainclaim relating topearling and fishing .........1..5
A . Pearl fishing...........................................1...............
Section4. The Bahrainiclaimto archipelagicstatus ...................0....
A . Theextraordinarypresentationof the Bahrainiclairn ..... 01
B. Theconceptof ageographicalarchipelago ..............20...
C. Irrelevanceof any Bahraini archipelagic claim for the
present maritimedelimitation ....................................
D . Irrelevanceof archipelagicbaselinesin Statepractice ...206
Section5. The division of the relevant maritime area into two
sectors...................................................208.............
A. The artificial character of the Bahaini dividing line
betweenthe two sectors ...............................2..8.......
1. The distortion by Bahrain of the geographical
relationshipbetweenthe two States...................2.......
2. The treatment of what Bahrain ternis "insuiar and
other legally relevant maritimefeatures"..............211......
a) Featuresrecognised as beinglow-tideelevations
are not the relevantBahrainicoast ..................2.
b) Qit'atJaradahis a low-tideelevation ..............213..... B. The reasons forthe choice of the notional linejoining
pointsMQand RKasdefinedby Qatar ................2.....
1. Theactualcoastof thetwo States .....................21.....
2. Thenorthernmostpointsof the two oppositecoasts ...217
a) The northernmostpoint of the coastof Qatar .....217.
b) The northernmostpoint of the coastof Bahrain ...218
3. The resulting line dividing the relevant maritime
area into twosectors.................................2........
C . The southern and the northern limits of the relevant
maritime area and existing delimitations with third
States................................................2..9.......
.......
1. The agreednorthernlimit resultingfrom delimitation
agreementswithIran ................................219..................
2. Inconsistency in the Bahraini treatment of
delimitationwithSaudiArabiain the south ..............9
CHAPTERVII THE SINGLE MARITIME BOUNDARY IN THE
SOUTHERNSECTOR ........................................1..
Section 1. Geographicaicharacteristics .......................................
Section2 . Historicalcircumstances .............................................
A . The silenceof Bahrainconcerningthe 1947line ...........4
B . The relevanceofthe pre-existing sea-beddividingline ..225
1. The taking into account of a pre-existing
deli..tation in the drawing of an all-purpose
maritimeboundary .....................................5......
2. The precedent of the maritime delimiiationbetween
Venezuelaand Trinidadand Tobago.an archipelagic
State .................................................2...........
....
Section3 . Themaritimeboundaryin the southem sector ...............7.
A . Mainland-to-mainland delimitation: general
considerations ........................................228....................... 1. The rationale of using the mainland coasts in a
territorial sea delimitation between States having
opposite coasts........................................2...........
2. Theconsequences ....................................23..
B . Application of the mainland-to-mainland method in
the presentcase ........................................3..............
1. Theprovisionalmedianline ..........................2.1.....
a) The provisional median line cannot be drawn
fromthe baselines claimedby Bahrain ............232....
(i) Basepoints used for delimitationpurposes ...233
(ii) The Court's task is not "to split the
difference" between the two extreme
claims .....................................2.6..........
b) The drawing of the provisional median line
fiom relevant pointsonthe two mainlandcoasts ..237
2. Theadjustmentofthe medianline ....................237.........
C . Thetakinginto accountofthe 1947line ................239.......
CHAPTERVIII THE SINGLE MARITIME BOUNDARY IN THE
NORTKERNSECTOR .....................................24............
Section 1. Generalremarks .............,.. .........................2.........
A . The omissions in the BahrainMernorial ................243....
B. The clearly inequitable nature of the maritime
boundaryclaimedby Bahraininthe northern sector .....244
Section2. Points of agreement between the Parties in the northern
sector....................................................24....
............
A . The Parties' agreementasto the nature of the dividing
lineto be detemined by the Court ......................246..........
B . The Parties' agreement to take into considerationthe
delimitation agreementswithIran .......................4..... C. The partial agreement of the Parties as to the law
applicableto the present dispute ........................2.9...
Section3. The maritime boundary claimed by Bahrain in the
northern sector fails to take "geographical realities"into
account ....................................................252.......
.........
A. Bahrain has wrongly characterised the delimitation to
beperformedin the northernsector ...............................
B. The course of Bahrain's linein the northern sector
takes no account of the disparity or disproportion
between the lengths of the relevant coasts of the
Parties...................................................5........
......
1. Bahrain'ssilencewithrespect to coastal geography ....256
2. Bahrain's use of general economic considerations
that have consistently been rejected by the
jurisprudence .........................................2............
a) Disparityof naturalresources .....................25....
b) Traditionalfishingactivities ......................259..........
c) The...le of present-day or recent fishing
activitie........,..................................6.0
C. The line drawn by Bahrain takes no account of the
maritime projection of Qatar in the northern sector
andignoresthe principle ofnon-encroachment ..........2..2
Section4. There is no legal basis for the single maritimeboundary
claimedbyBahrain in the northernsector ..................26....
A. Unacceptability of the first section, OQR,because of
the disproportionateeffect of Dibal as a basepointfor
the closing line used for the constructionof Bahrain's
equidistanceline ........................................26............
1. Dibalfallswithin the categoryof low-tideelevations ..267
2. Dibai has no maritime areas of its own, and cannot
be used forpurposesof calculatingthe outer limit of
Bahrain'sterritorialwaters ....................................... 3. Dibal cannot be an appropriate basepoint for tlie
equitabledelimitationof the maritime areasbetween
Qatarand Bahrainin the northern sector ...............27.3.
a) First reason: Dibal is not an integral part of
Bahrain'scoastline ................................7.........
b) Second reason: Dibal is only a "minor
geographicalfeature" ..............................7..........
B. The unjustified corrections made by Bahrain to
sectionRSTUZof its equidistanceline .................27....
1. Pearl fishing on the banks claimedby Bahrain came
to an endlong ago .....................................7...........
3. Bahrain cannot claim to have exercised in the past
exclusive rights over the pearling banks that it
claimsinthe presentdispute ..........................27.8...
a) Bahrain does not prove that it exercised
exclusive rights over the pearling banks that it
claimsin the northernsector ......................2........
b) Bahrain'sclaimthat it exercisedexclusiverights
over the pearling banks is contrary to the
traditionalcustomarylaw inthe regian ...........2..2.
(i) The principle of common ownership of
the pearling banks and pearl fisheries by
the tribes andsheikhs on the Arabian side
ofthe Gulf .................................2..........
(ii) Consequences of the principle of
exclusive common ownership of the
pearling banks and pearl fisheries by the
tribesand sheikhs on the Arabian side of
the Gulf ...................................2............
3. Bahrain'sallegedhistoricrights to pearlingbanks are
not specialor relevantcircurnstances .................288........
a) The Ruler of Bahrain'sargument, in his 1961
Memormdurn, that "Bahrain'shistoricrights to
the pearling banks" were a "special
circumstance" within the meaning of Article 6
of the 1958Conventiononthe continentalshelf ..289 b) Bahrain's argument that "Bahrain's historiç
rights to the pearling banks" are special or
relevant circumstances within the meaning of
customaryinternationallaw ......................2..1....
Section5 . Qatar'sline in the northern sector leads to anequitable
result ....................................................2....
........
A . Qatar's line is in conformity with custornary
internationallaw .......................................2..............
1. Cornpliancewiththe principleof non.encroachrnent ..296
2. Compliancewith the principIethat "equity does not
necessarilyimplyequality" ...........................2........
B. The a posteriori verificationof the equitablenature of
Qatar's line.by the test of proportionali...............2.....
Section6 . Conclusion ...............................................3..............
...
PARTV SUBMISSIONS ...........................................................
3.......................
LISTOF MAPS .........................................................
............3..5......................
LISTOF DOCUMENTARYANNEXES ............................................................
..
Volume2 ............................................................
............7........................
Volume 3 .............................................................
.....................................
Volume 4 ...........................................................
......................................
LIST OFAPPENDICES ...........................................................
..3.....................
Volume 5 ...........................................................
.............5.........................
Volume6 ............................................................
............5........................... xiii
PREFACE
For the sakeof convenience,a list of the main abbreviationsused fromtime to time in Qatar's
Counter-Mernoria1and its DocurnentaryAnnexesand Appendicessetforth below.
RQ Rulerof Qatar
RB Ruler ofBahrain
PRPG : Political Resident in the PGulf,sometimesreferred tsimply as
the Political Resident
PAB Political Agent, Bahrain
PAQ : PoliticalAgent,Qatar
ABG : Adviserto the BahrainGovernment
IO IndiaOffice
FO Foreign Office
IOR India Office Records
BAPCO : Bahrain Petroleum Company
PCL PetroleurnConcessions Limited
EGS EasternandGeneralSyndicateLtd.
APOC : Anglo-PersianOil Company
Memorialof the Stateof Qatar
QM
BM Mernorialof the Staof Bahrain
QMJA : Mernorialofthe Stateof Qatar on Questions ofJurisdiandon
Adrnissibility
Where referenceis made in this Counter-Mernorialto Archives of the State of Qatar,
the documents arefromthe Archivesof the DiwanAmiriof the Stateof Qatar. CASECONCERNINGMARITIME DELIMITATION AND
TERRITORIALQUESTIONSBETWEEN QATARAND BAHRALN
(QATARV. BAHRAIN)
COUNTER-MEMORZAL OF THE STATEOFQATAR
PART 1
INTRODUCTION
This Counter-Mernorialof the Stateof Qatar is filed pursuantto the Orderof the Court
dated 30 October 1996,fixing 31December as9the time-limit for the filingby each of
the PartiesofCounter-Mernorialon the merits.
CHAPTER1
THE MAINELEMENTSOFTHECASEAT THEPRESENTSTAGEOFTHE
PROCEEDINGS
1.1 In this Chapter Qatar will outline briefly what it sees as the central elements of the
casein the lightof theMemorialsfiledbythe Parties, and wil then presenta fewobservations
on Bahrain'slitigationstrategy.
Section1.Summaryofthe centralelementsof the case
A.Territorial questions
1.The Hawarislands
1.2 Qatar has demonstratedParIIIofitsMernorialthe territorial integrity of Qatar as
comprisingthe whole peninsula and the Hawarislands. It has also shown that such tei~itorial
integrity has been recognised at least since the middle of the 19" ccentury,not only by the
Britishand the Ottomans, but also by local rulers and even on occasion by the RuIer of Bahrainhimself.In Qatar'ssubmission,this recognition, which was unquestioneduntiIat hast
the mid-1930s,is significantevidence ofQatar'ssovereigntyover the Hawarislands.
1.3 Qatar has further shown the existence of a presumption in international law that
islands which, likemost of the Hawar islands including a large part of the main island, lie
withitlthe territorial waters oaState, arepart of the territoryof that State and are subject to
itsfull sovereignjurisdiction andcontrol.
1.4 Furthemore, Qatar has shown the worthless nature of the so-called evidence that
Bahrain submittedto the British authorities in support of its claim to Hawar in the 1930s,
upon which Bahrain continues to rely in its Memorial. Conversely, Qatar has provided
evidence of its own acts of sovereignty performed on the Hawar islands prior to Bahrain's
illegaland clandestineoccupationofthose islands.
1.5 Qatar has also shown that it consistently protestedBahrain'soccupation of Hawar. It
was Qatar'sfirstprotest -which Bahrainhas chosen in its Memorialto characteriseartificially
as a "claim"- which ledto the Britishdecisionof 11Jufy 1939,accordingto whichthe Hawar
islandsbelonged to Bahrain.
1.6 It is Qatar'scontentionthat that decisionwas defective as regards both procedureand
substance. Thus, the British authoritieshad not obtainedthe consent of the Ruler of Qatar to
make a binding decision,andthe procedure wasunfair and marredby clearbias on thepart of
some British authorities in favour of Bahrain. As for substance,the decision was based in
large part on unsupported assertions by Belgrave, on documents of doubtful value, and on
wIzollyerroneousassumptions.
1.7 Finally, and despite Bahrain's assertions to the contrary, the 1939 decision is not
opposable to Qatar. Qatar protested it immediately and has continued to protest it to the
. present day; indeed, by the mid-1960s the British authorities had acknowledgedthat the
questioncouldbe reopened.1.8 In summary,therefore,it is Qatar'ssubmissionthat the evidencenow beforethe Court
establishes that Qatar had original title to the Hawar islands and that such title has been
unaffected by either Bahrain's clandestine occupationof the islands, the British decision of
11July 1939 or subsequentevents.
2. Janan island
1.9 Qatar has shown in ChapterVI1of its Memorial that, likethe Hawar islands,Janan is
an integral part of Qatar'sterritory and was recognised as such by the Ottomans,the British
and local rulers.Furthemore, Jananwasnot even claimedby Bahrainin what was held by the
British to be its "consideredclaim"to theHawar islands, and for that reason and others was
expressly excluded from the Hawar islands when the British issued their decisionon the
division of the sea-bed between Qatarand Bahrain on 23December 1947. Therefore, it is
Qatar'ssubmission that there is no substance to Bahrain's claim of sovereignty over Janan
island.
3. Zubarah
1.10 Qatar has submitted in ChapterVI11of its Memorial that Bahrain has no sovereignty
over Zubarah. Zubarah forms part of the mainland of Qatar. Moreover, Qatar has provided
evidence of recognitionof Zubarah as part of Qatar by the British, the Ottomans and local
mlers including the Ruler of Bahrain himself, and of confirmation of such recognition in
varioustreaties.
1.11 Qatar has also shown that thereis no factual basis for Bahraintsclaim of sovereignty
over Zubarah. In particular, it has shown that despite Bahrain'sassertions to the contrary,
Zubarah already existed as a flourishingtown when the Al-Utub, including tlie Al-Khalifah,
the futurerulingfamilyof Bahrain,settledcloseby; thatthe Al-Khaiifah's presencethere only
lasted for about 20 years; and that at least since 1868the Rulers of Qatar hava had control
over the whole of the peninsula including Zubarah, and have exercised that control.
Consequently,the action taken by the Rulerof Qatar in Zubarah in 1937 was far fiom beingan uniawful seizureof territoras allegedby Bahrain,but was a purely interna1affair,for the
purposeof makinginhabitantsof Qatariterritorycomplywith Qatari lawsandregulations.
1.12 Finally, Qatarhas demonstratedthatthe attemptsby the Britishto seek an arrangemeni
between QatarandBahrainwith respectto Zubarah involvedno questionof possible Bahraini
sovereignty;that indeed Bahrain on several occasions expressly denied that itwas claiming
sovereignty;and that the matter was closed when, in 1957, following the Ruler of Bahrain's
unilateralrequest foa final decisiononthe matter,the Britishredfirmed that Bahrain hadno
sovereigntyor other rights in Zubarah. Accordingly,it is Qatar'ssubmissionthat the evidence
before the Court shows that there is no substance in Bahrain'sclaim of sovereignty over
Zubarah. Xndeed,Qatar considers that the recent attempt by Bahrain to claim Zubarah is
artificial and is designed simply to counter-balanceQatar'swell-founded submission that it
has sovereigntyover the Hawarislands.
B. Maritimedelimitation
1.13 Qatar has dealt with the questionof maritime delimitationin Part IV of its Mernorial.
The Patties have requested the Court to draw a single maritime boundary between the
maritime areas of sea-bed, subsoiland superjacent waters appertaining respectivelyto Qatar
and Bahrain. This maritime boundary is to be draw in accordance with customary
internationallaw.
1.14 Qatar defines the relevant maritimearea for the delimitation as being that area lying
between the east coast of Bahrain and the west coast of Qatar dom to the mouth of the
Dawhat Salwah in the south, and boundedin the north by the delimitationsbetween Iranand
Qatar and between Iran and Bahrain.Qatar has divided the delimitation area into a southern
sectar and a northern sector, oneither sideof a notional linejoini~lgthe northemost point of
the Bahrainiisland ofMuharraq to the northernmostpoint of the Qatar peninsula.
1.15 Sincethe recent proclamationby both QatarandBahrainof 12-mileterritorialseas,the
territorial seas of the Parties overlap in virtually the whole of the southern sector.The rule
expressed in Article 15 of the 1982 Convention on the Law of the Sea (the "1982 Convention"), concerning the territorialsea, is recognised as forming part of customary
internationallaw, and is therefore applicablein the present case.In applicationof that Article,
the first stepin the delimitationprocessinthe areawherethe territorial seasoverlapwiIlbe to
deterrninea provisionalequidistanceline. In accordancewith the general practice followedby
Gulf States, such line should be drawnby taking exclusivelyinto considerationthe two main
oppositecoasts,withoutregardto the numerousparticularfeaturesexistinginthe area.
1.16 Once the provisional equidistance linehas been established, and again in accordance
with the rule expressedin Article 15of the 1982Convention, it must be determinedwhether
thereare specialcircumstanceswhichrequire an adjustmentto be made to that line.
1.17 In Qatar'sview, such an adjustment is warranted because of the special circumstance
ofthe existenceof a sea-bedboundary between theParties whichwas laiddown in the British
decision of 23 December 1947. That decision applied equitable principles on the basis of
objective criteria, resulting in a simplified line, basedon exclusive considerationof the main
coasts, with a selectionof fixed turning points, possibly taking into accountthe difference in
coastallengths.
1.18 Therole and effectof that 1947line now have to be appraisedin the light of a number
of shortcomings, it being clear that while it is an important factor to be taken into .
consideration, the line cannot be retained in its entirety as the single maritime boundary
between Qatarand Bahrain. Thus, it wil first have to be altered to take into account Qatar's
sovereigntyover the Hawar islands; second, itmust be adjustedin order not to encroach ona
third State's rights at the entranceof the Dawhat Salwah; and third, it must be extended
beyondits terminai point in the north, sinceitdoesnot delimitthe entirenorthernsector.
1.19 It is Qatar'ssublnissionthat the maritime featuresof Dibal and Qit'atJaradah are Iow-
tide elevationswhich are under Qatar'ssovereigntyby virtue of the applicationof the law of
, the sea in the drawingofthe singlemaritimeboundary.1.20 Beyond the areawhere the Parties'territorialseas overlap -and thus essentially in the
northern sector as defined above - customary international law requires the applicatioi~ of
equitable principles, taking into account a11relevant circurnstances,in order to achieve an
equitableresult, it being understoodthatequitydoesnot necessarily implyequality.
1.21 Within this area, and up to the point definedas BLV in the 1947decision, thc 1947
line mustbe considcredas areIevantcircumstance,especiallysincethere is no other objective
factor in this part of the delimitation area that could be taken into consideration. As for
relevant geographical circumstances,there areno significantnatural anomaliesin the area, nor
any markedlypronouncedcoastal configurations.A furtherrelevant circumstanceto betaken
intoaccount in the delimitationin the northern sectoris the disproportion,in the ratio of 1.59
to 1 in favour of Qatar, betweenthe lengths ofthe relevant coasts of the Parties. Finally, the
Court will have to take into account the existenceboth of the continental shelf delimitation
agreements between Qatarand Iran andBahrainand Iran, such delimitationagreementsbeing
nûw applied also to the respective Bshing zones of such States, and also of part of the
continentalshelfdelimitationbetweenBahrainand SaudiArabia.
1.22 In Qatar'sview, the appropriate method of delimitationin the northern sector is the
perpendicularitymethod.This isa variantof equidistance,used in bothState practiceand the
jurisprudence, which allows a reasonable and equitabIe delimitation to be made, and is
particularly appropriateforthe drawingof a singlemaritimeboundary.
1.23 On this basis, it is Qatar's submisçionthat the single maritime boundaryto be drawn
by the Court should start at point S1on the Bahrain-SaudiArabiadelimitation, should foIlow
a straight line to point L on the 1947line, and should thenpass throughNSLB and BLV,and
endat point 2 on theBahrain-Irandelimitationline'.
1SeeChaps.V11andVIII,below. Section2. Bahrain's Iitigationstrategy
1.24 Qatar feels compelledin this introductory Chapter tomake a few brief comments on
the extraordinarynatureof Bahrainfslitigationstrategy as revealedby Bahrain'sMemorialand
by its attitudeincethe institutionofthe mediationin 1983.These comments are ofcoursenot
intended to be exhaustive,but will be taken up again and developed in the relevant parts of
this Counter-Memorial.In the present section, Qatar willsimply draw attention to the more
striking aspects of Bahrain's litigationstrategy relating, first, to Bahrain'spresentation of its
case, second, to Bahrain's historical perspective of the disputes and, third, to Bahrain's
violationsof itsstatusquo commitments.
A. Observations on Bahrain's presentation of its case
1.25 Mile Bahrain's Memorialis superficially plausible and may well impress a reader
who is unfamiiiar with the case, when one looks more deeply into the substance of the
dispute,the picturechanges completely.
1.26 Moreover, as the Court will not fail to notice, Bahrain has introduced exaggerated
politicaland economicelementswhichare irrelevantto the decisionsto be madeby the Court.
Thus, the Court is invited to feel sympathy forBahrain, with its small territory, diminishing
oil reserves and rapidly expanding population, as against Qatar with its huge territory and
enorrnousoil and gasreserves.
1.27 In fact, Bahrain'sapproachmay well be designed asa pIoyto distractthe Court froma
true appreciation of thesituationin these proceedings or of the real issues in dispute between
the Parties. This appearsal1the more evidentwhen Bahrain asserts, forexarnple,that Qatar's
claim to the Hawar islands is "nothing more than an attempt to fashion a counter-weight to
Bahrain'swell-documentedhistorical rightsin the Zuba. regionU2T. his assertioncan hardly
be taken seriously ifit is remernberedthat for several years Qatar was battling to have its
BM, para.353.position on the Hawar islands decided by the Court, while Bahrain was clearly less than
enthusiasticto bring before the Court itsown allegedlysolid daim to Zubarah3.Indeed, Qatar
submitsthat the opposite is true and that Bahrain's claim to Zubarahis itself only an arlificial
claim, designedfirst ta dissuadeQatarfiom bringingthe questionof the Hawar islandsbefore
the Court, and aiming now to counter-balance and distract attention from that claim. In
keeping with that aim, Bahrain has devoted by far the largest part of its Memorial to a
discussionof Zubarah, which it deals with beforeanyof theother issues.
1.28 Also symptomatic of Bahrain'sapproach to these proceedings is its presentation of
grossly extravagantclaimsto both land and sea.Thus, for example,its claim to Zubarah now
encompasses the "Zubarah region" - a very extensive area of Qatar's territory - and is
unsupported by any of the facts and documents reliedupon by Bahrain. Similarly,Bahrain's
Map 11, showing Bahrain's proposed maritimeboundary4, demonstrates the outrageous
exaggerationof Bahrain'sclaim.
1.29 Further, Qatar must point out that Bahrainalso appears to have adopted a strategy of
concealing essential elements fromthe Court. Indeed,as will becomeapparentto anyonewho
reads Qatar's Memorial alongside Bahrain's, and as will be discussed in greater detail below,
Bahrain's Memorialis striking by its silence on certain significantpoints. Thus, Bahrain has
simply failedto mention, for example,the original claim by Bahrain to the Hawar islands of
April 1936,and also the British provisionaldecisionof July 1936which followedthat claim.
Failure to mention that provisional decision and the clairn which provoked it has entirely
flawed Bsthrain'saccount of the events leadingup to the 1939decision on the Hawar islands.
In addition,Bahrainmakes not a singIemention of its sea-bedclaim of 1961,where no claim
was made to areaslyingoff Zubarah,a factthat is now no doubta sourceof embarrassrnentto
Bahrain in view ofits ciaimto sovereignty over Zubarah. Similarly, the 1947British decision
delimiting the sea-bed between Qatar and Bahrain hasbeen swept under the carpet, being
mentioned only onceor twice incidentally,and not as the relevantor specialcircumstancethat
it certainly is for purposes of maritime delimitation. By failing to mention these various
highly relevant facts, Bahrainhas put a seriously distortedpicturebeforethe Cowt.
4See,QMJA,Chap.III.
BM. Vol. 7.1.30 FinalIy, Bahrain has further distortedthe picture by its rnisuse of the evidencethat it
has provided. Thus, in countless instances, Bahrainhas included in the text of its Mernorial
highly selective quotations, taken completely out of context. Moreover, while purportedly
relying on documentary evidence, it makes numerous allegations which are no more than
misinterpretations or distortions of such evidence, or even inaccurate staternents. It is
therefore necessary for the reader to veri@against the documentaryevidence each and every
quotation and statementmade by Bahrain on the basis of such evidence.A final aspectof the
problem rclatingto evidence is that, time andtime again, Bahrain fails even to provide any
substantiationfor its allegations.
B. Observations on Bahrain's historical perspective ofthe disputes
1.31 Bahrain's historicalperspectiveof the disputesis similarlyflawed.A strikingaspectof
Bahrain'sgeneral presentationof the historical backgroundis the way in which it constantly
strivesto exaggeratethe extent of the power of the Al-Khalifah farnilyand the scope of their
control and territorial sovereignty, while in paralel belittling the power of the Al-Thani
farnilyand the extent of the territory appertainingto QatarIn doing so,Bahrain clearlywants
to give the impression of a strong Al-Khalifah family,subject ta no other authority, ruling
with a firm hand throughout the ages not only the tribes and territory of Bahrain itself, but
also those of the whole peninsula of Qatar and al1 the maritime areas between the two.
Conversely, it seeks to give the false impressionthat until recent times the Al-Thi family
were very local sheikhs who were subject to the Al-Khalifah and whose authority extended
hardly any firther than the tom of Doha,if indeedit was established eventhere.
1.32 Thus, Bahrain bas no hesitation in declaring that use of the narne "Bahrain" on the
Qatar peninsula on one map dating from the early 19"' century implies recognition of
"Bahraini dominance over thepeninsula"'. On the otherhand, it is quite happy to assert that
whenthe narne"Qatar"is usedto denotethe peninsula,this is a pureIygeographicalusage and
5See,forexample,BM, para.16. C. TheviolationsbyBahrainof the stafusquo commitments
1.37 In its Mernorial Qatarhas drawn to the attention of the Court various violations by
Bahrain of itsstutus quo commitments embodied in the 1983 Principles for the Framework
for Reaching a Settlementand in the 1987Agreement betweenthe Parties". Sincethe filing
by the Parties of their Memorials, Bahrainhas continuedto violate those commitments.Qatar
attaches to this Counter-Mernorial a number of notes verbales concerning various such
violation^' ^.ith respect to the Hawar islands, Qatar has prepared a new photograph of
mosaics of slides taken in April 1997, which provides evidence of extensive further
constructionof both military andcivilianinstallati~ns'.t is Qatar'ssubmissionthat under the
Second Principle of the Framework agreedin 1983(as again set out in paragraph (a) of the
second pointof the 1987Agreement),anyaction inftingingthe stutusquo is nul1and voidand
can haveno legaleffect.
Section 3. Structureof Qatar'sCounter-Mernorial
1.38 This Counter-Mernorialis divided into four Parts. Followingthis introductory Part 1,
Part II addresses "The Historical Background", highlighting the major omissions and
misstatementsin Babain's presentation.
1.39 Part III then addresses "The HawarIslands and Other Territorial Questions". The
Hawar islands are considered in Chapter III, and in Chapters IV and V, Qatar addresses the
questionsof JananislandandZubarahrespectively.
1.40 Part IV deals with the issue of maritime delimitation. Chapter VI is an introductory
chapter, containing a general assessrnent ofBahraints position. Chapters VITand VI11 tlien
consider the single maritime boundary to be drawn in, respectively, the southern sector and
the northern sector.
See,QM,paras. 1.16etseq.
12
QCM,Appendix1,Vol. 5, p. .
l3QCM,Appendix3, Vol. 6.1.41 This Counter-Mernorialendswith Qatar's Subrnissions.
1.42 Attached to this Counter-Mernorial there are four Appendices in two voIumes,
including a Map Atlas, and three volumes of Docurnentary Annexes. A list of thcse
Appendices, Annexes andMaps may be found at the end of this Volume. In general, the
Annexes are organised accordingto the Partof the Counter-Mernorial in which they are
referred to. In other words Annexes to Part II of the Counter-Memorial are numbered
AnnexII.l,II.2, etc.A list of certain documents whicharebeingdepositedseparatelywith the
Registrypursuant to Article50,paragraph 2,of the Rules of Court is containedin the Agent
of Qatar'sletterto the Registrardated31December1997.
1.43 Qatar has sought to present its Counter-Memorialin such a way as to eradicateany
confusionwhich may have been createdby Bahrain. However,anyfailureby Qatarto answer
specificallegations by Bahrain shouldnot of course be construedas an implicit admission of
such allegations. Nor should any failureby Qatar to indicate errors in the translations
producedby Bahrainbe construedas anacceptanceby Qatarof suchtranslations. PARTII
THE HISTORICALANDGEOGRAPHICAL BACKGROUNDTO THEDISPUTE
CHAPTER II
MISSTATEMENTSANDOMISSIONSINBAHRAIN'SPRESENTATIONOF THE
HISTORICALANDGEOGRAPHICALBACKGROUND
2.1 In this Chapter, Qatar will confine itself to drawing attention to sorne significant
misstatements and omissions in Bahrain's presentationof the historical and geographical
background.
Section1.DevelopmentofAl-Thaniauthorityoverthe entire peninsula
2.2 One of the most flagrantfalse assertionscontainedin the BahrainMernorialis that by
1916 the authorityand controlof the Ru'tersof Qatar did notextendmuch beyondDoha,and
that it was not until the 1930sthat their "expansion" reachedthe Zubarah region'. Equally
falsely,Bahrain allegesthat the authonty of the Rulers of Qatar never extendedto the Hawar
islands2.On the basis ofhese assertions,Bahrainclaims that it was only as the authorityof
the Rulers of Qatargradually expandedthat the authorityof the Rulers of Bahrainwithin the
peninsulacontracted3.
2.3
Qatarwill demonstratein the presentsectionthat, contraryto Bahrain'sassertions,the
Rulers of Qatar exercisedtheir authority andcontrol in and over Qatar on different occasions
during the second haIf of the 1century, and that at least by the 1870stheir authority and
controlcovered the whole peninsula including the Hawrslandsand Zubarah.Conversely,it
will be seenthat farfromexercisingauthority overQatar, the Rulersof Bahrain wereat many
tirnesunableeven to exerciseeffectiveauthorityin andoverBahrrtin.
'See,for example, BM,paras.23-24.
See,for example, BM,para. 342.
See, BM,para.64. A. Theinternational contextin the area
2.4 Enits Mernorial,Bahrainhasof course completelyfailedto acknowledgethe influence
that was exercisedin the area by powers otherthan the Al-Khalifah. Aswill be seen below,
variousforeignpowers fromtimeto time exercisedsuchinfluence.
1.The Wahhabipresence in Qatar and Bahrain
2.5 In 1795 the Wahhabis defeatedthe Beni Khalid tribe who had been occupying the
Hasa region. Following that victory, and with the assistance of the Al-Naim and other
tribesmen,they besieged Zubarah andvariousother localitiesin the north of Qatar4.By 1802-
1803 they had nominally subjected al1the inhabitants of the Arab shore of the Gulf from
Basrato Muscat'.
2.6 The Wahhabis also tumed their attention to Bahrain, demanding in particuIar the
payment of zakut6, and their influence was extended over Bahrain from 1803 to 1809,
culminating in a period of strict Wahhabicontrol in 1810-1 811 7.After a confused period of
twenty yearsmarked by attacks on Bahrain by Muscat, the Wahhabis again obtained the
submission of the Sheikhs of Bahrainin 1830"nereafter, they cûntinued to play a role in
Bahrain'saffairs, notablyby intervening in the struggles for power that took place between
rivai BahrainiSheikhsduringthe period from1840to 18609.
See, A.M.A.Hakima, HistoryofEasternArabia, 1750-1800,Beirut,1965,QCM, Annex 11.72,Vol.2, p. 391;
see,also,Z.M. Al Rashid,Su'udiRelationwithEastern Arabiaand 'Uman(1800-1871),London,1981,QCM,
' Annex 11.69Vol.2, p. 377atp.379.
See, R.H. Thomas(ed.),ArabianGu&"InteIligenS cel,ectionsfrthe Recordsof rheBombay Government,
New Series,No.XXIV, 1856,QCM, Annex 11.79Vol.2, p.429.
See,J.B. KellEasternArabian Frontiers, ondon,1964,QCM,Annex11.73,Vol. 2,p.395.
'&e, J.G.Lorimer,Gazelteerof thPersian Gulf:Oman andCentral Arabia 1908and1915Q ,M,Annex 11.5,
Vol. 3,pp.249-250.
See,ibid.p.263.
See, QM,paras. 3.26etseq.2.7 Meanwhile, on at least two occasions, in 1835" and again in 1851", the people of
Qatar took advantage of the Wahhabis'presence to oppose the attempts of the Sheikhs of
Bahrainto exercise authority overthem. It is importantto notethat at one time between 1852
and 1866the WahhabiArnirhad a representative atnoha12.
2.The Ottoman presenceinHasa and Qatar
2.8 The Ottomans undertook surveys in the region in the 1860s and early 1870sL3a ,nd
were presentin Hasa uninterruptedlyfrom 1871until 1915.As has alreadybeen noted, at the
sametime they also established apresencein Qatar at the invitationof Sheikh Jassim,the son
of Sheikh Moharned bin Thani, and a Turkish garrison was installedin Bida hm January
187214.
2.9 Hasa and Qatar were thus included in the administrative system of the Ottoman
Empire, and the sanjak or sub-province of Nejd and Hasaincluded the kaza or district of
Qatar.Inturn, the kaza of Qatar included thenahiyeo sisub-districtsof Zubarahand dei id".
2.10 In 1876,SheikhJassim bin Moharnedbin Thaniwas appointedkaimakamor governor
of the km of QatarI6.Althoughthe Turks were nominally in control of the whole peninsula,
it was Sheikh Jassimwho wieldedthe realpower in Qatarduringthe Turkishperiodl'. As will
be seenbelow, the nominal Turkish authority together with the exercise of power by Sheikh
Jassim preventedany thirdparties -notablyBritainandthe Bahraini sheikhs -from exercising
anyform of authonty in the peninsuladuringthe period fiom 1871to 19 1518.
'('Sec,Lorimer,p.cit.QM, Annex 11.5Vol.3,p. 201.
" Ses, ibid.,p. 207.
'2Ibid.
l3See, QM, paras.5.15etseq.and QM, Annexes 11.30,Vol.5,p. 91,and 111.7-111.01,1.14-111and 111.19-
111.20, ol.6, pp.37,41,4551,69,75,81, an3d99.
" See, QM,paras.3.43-3.44.
l5BM,para.65;see, also,BM,Annex 66,Vol.2, p.279.
''Lorimer,op.cit.QM,Annex11.5V , ol3, p.211.
17See,paras.2.28erseq.,below.
'*See,paras.2.30etseq.,below. 3. TheBritishpresencein theGulf
2.11 The British began entering into treaties with the local sheikhly powers from 1820
onwardsi9. Although ostensibly for the purpose of preventing pitacy and protecting trade
routes, these treaties allowed the British to increase their influence in the interna1affairs of
someof the local sheikhs,as was notablytrue in the case of Bahrain. As from 1871onwards,
the British adopteda "handsoff' policy with respectto the Ottomanpresence in Qatar, there
being a tacit understandingthat they wouldnot interferein Qatar,provided that the Ottomans
would notinterferein Bahrain.
4. ThePersianclaim to sovereigntyoverBahrain
2.12 In 1622the Persians had expelled the Portuguese fiom Bahrain and held possession
until 1783. From 1843 the Persian Government renewed its claim to sovereignty over
~ahrain*', In response, the British decidedto resist by force any atternpt of the Persian
Governmentto establish troops on the island of Bahrain and refused to recognize its claims.
However, the Persian claimwas renewed regularly, in particular in 1869,when the British
deposed the Ruler of Bahrain, and again in the 1920s.This claimwas dropped only in 1970,
oneyearprior tothe endof the Britishpresencein Bahrainin 1971.
B. Theinterna1 context: existenceof atribal system
2.13 Forpurposesof the followingdiscussion,it is helpful to bear in mindthe factthat until
1923for Bahrain andafier World War IIfor Qatar, the type of governinentwas "traditional",
as opposed to the "modern"type, which was characterised by the establishment of modern
administrationalong with greaterBritish involvementin the domesticaffairsof each country.
'YSee,QM,paras.3.6,etseq.
For an accountof the Persianclaim,see the "Mernorandumon the separateClaims of Turkey and Persiato
Sovereignty over the Islandof Bahrein"by E. Hertslet, which describes Bahrainas "a smallgroup of islands,
three in number"QCM, Annex 11.4,Vol. 2, p. 13. See, alsotwohIranian maps depicting the extent of
Bahrain,whicharebeingdepositedwiththe Registry,pursutoArticle50, paragraph2 oftheRulesof Court.2.14 Thus,in the 19Ihcentury neitherBahrain nor Qatar could be consideredas Statesin the
modern sense of the word. At that time there were only tribal chiefs who endeavoured to
consolidate their position by developingtheir relations with othertribes and controlling the
trade networks. Thefunctioningofthistribal system has been described as follows:
"As longas [theindividualbedouin] is withhis tribe,he must conform to certainruies,
and he takes part in al1its deliberations, but he cm at any tirne withdraw from its
authority,if hefindshis opinionsin a minorityor his independenceharnpered.
The individual then is the basis, fiom which one should start in a review of the
political system of the desert,.. he is fkeeof allcontrol, whether from tax-gatherer or
policeman, and he is obliged to contribute nothing, not even his services in time of
war,to his neighbours. Itis howeverimrnenselyto his advantageto yield a littleof this
absolute independence,for the sake of protection, forhe cannot practicallylive alone,
or he wouldbe pillaged by the men of other tribes, who have a natural rightto despoil
him.
The systemof govenunent is a simple one. Each tribeor sectionof a tribe is under the
nominal de of a sheykh, chosenby vote; and there is no qualification requiredeither
in the electors or the elected. Common prejudice, nevertheless,is in favour of the
supreme power being entrusted ta members of certain families; and the sheykh is
usually chosen out of these. A certain arnountof wealth is necessary too in a sheykh,
for on him the principal burden of hospitality falls; and the qualities for goveming,
whichseem to be hereditaryeverywhere, arehlly recognisedas suchin the Desert ...
Each tribe, in fact,is a separate nation with its own rights of peace and war, andits
ownpoliticalindependenceM2'.
2.15 It shouldhoweverbe borne in mindthat it was difficultfor outsidersto determinewhat
the true situation was on the ground. This has been highlightedby the Gazetteer of Arabian
Tribes,which tells the story of Arabia'sttibes fiom the mid-nineteenth century tothe mid-
twentieth century:
2'R. Trench(ed.), Gazetteer ofArabianTribes,ArchiveEditions,1996, QCM,Annex 11.80Vol. 2, p.433,at
pp.437-443. "Aword of caution, however. Few tribespeople couldread or write before the 1950s.
Most of the writtenrecords cornefromEuropean travellers,British administratorsand
oil Companyemployees - outsiders. These outsiders were not always told the truth.
'Front men'were appointed by tribes to deal with these new power claimants, while
real powerrernainedinviolateandhidden ...
To compound the problem, European officiais, with their preconceived cultural
attitudes and over-respectfor hierarchiestended to assume that tribal structures were
permanent. In reality structureschanged al1the time, depending on the ever-changing
relationshipbetween shaikhsand tribespeople.Sectionstunied into independent tribes
attimes of weak centralised authority, and confederationsturned into single units at
times of strongleadership ...
Most of the Europeans in Arabia were unable to penetrate into the tme tribal society:
eitherbecause, like the travellers andexplorers, they were more interested in places
than people; or because, like the policeman and the administrator, they constantly
soughtto imposetheir concept(and canvenienthierarchy)onthe ~ibe"~~.
1. Qatar
2.16 Until the development of oil in relatively recent times,the tribes in Qatar could be
divided i~itotwo groups. One was composedof the settled tribes (hadar), concentrated in
towns and villages along the Coast,and the other of nomadic tribes (bedu) living in tents.
Some of the latter were partiallynomadic,others primarilynomadic. They frequentedmainly
the interior of Qatar,but alsothe borderlandsand the coastalsidesofthe penin~ula~~.
*'Ibid.,at pp.435-436.
23Theearliestsource of informationontsibesinQataris to befoundinAnne11.13to Qatar's Mernoria(lVol. 5,
p.S),which datesfrom 1638. In that document,the inhabitants of Zubarahare Iisted asthe Naim, Musallam,
Twar, Hawajer,Beduins, Lisaud,freemenand slaves. Afurthersource ia lettero1858 to Sheikh ZayedBin
KhalifahAl Bin Yasof Abu Dhabi signed by three chiefs of îribes in Qatar and their Sheikh, MohBind
Thani, whereit is indicated that Qatarexteinthe south up to Al-Silaand beyond forthe distance ofhalf
day'swalk, and that the tribes livingin Qatar includedthe Al-Bin-Hajer,Al-Moslamani, HassanBin Bakheet,
Al-Mizaree, Al-Rawashid, Al-Maharbah,Hawamil,Mroor and Qamzan(QM,Annex 11.18Vol. 5,p. 37). Ten
yearslater,the 13September1868undertakingby variouschiefsof Qatarto paythe Chiefof Bahrainan annual
sumof money for paymenton to the Wahhabis,cited at page55 of Bahrain'sMemorial. refersto the Mahanda,
Al Bu Aainen,Nayim,AIBuKuwara,Keleb,Sudan,Maadhid,MussallamandAmamera tribes(BM,Annex 13,
Vol.2, p. 159).A report dated 16August1873 mentions the Chibisa,Maranareh,Saleh, Hamada1aiid Naim
tribes, al1of whom are said to beliving in Zubarah(QCM, Annex11.2,Vol.2, p. 5). In Lorimer'sGazetteer
(QM, Annex11.4,Vol.3, pp. 137-1391t,he tribesand cornmunitiesmentionedas being in Qatar are as follows:
Al-Bu-Ainain, Al-Bin-Ali,Amamarah, Arabs of Najd, Baharinah, Baqaqalah, Dawasir, Hamaidat, Huwalah,
Khalaifat,Kibisah, Al-Bu-Kawarah, Maadhid, Madhahakah, Mahandah, Mananaah, Al-Bin-Maqla, Al-
Musallam,Negroes (free), Negroes (slaves, butnot livingin theirmasters'houses),Negroes (slaves, livingwith
their owners), Persians,Sadah, Sudan, Sulutah, Bani Yas of the Al-Bu FalandhQubaisat sections.In the
Handbook ofArabia of 1916(QCM,Annex 11.68,Vol.2, p. 373), the populationof Qatar wassaidto fall into
some 25 groupsof whichthe most numerous wereesfollows:Aibu 'Ainein,a clanoftheAl Subaih sub-tribeof
the Beni Khalid,Al Bin 'Ali,Huwalah,Khaleifat,Al Bu Kuwarah,Ma'adhid,Mahandah,Sulutah,negro slaves,2.17 Thereis no substance whatsoeverin the Bahrainiargumentsthat Al-Thani authority in
Qatar in the nineteenth centuryand up until the 1930swas confined to a small area around
Doha,andthatthe interiorof Qatar wasessentiallyuninhabited.In fact,the extentof Al-Thani
authority with respect to the tribes living permanently or temporarily in Qatar may have
varied from time to time, but there is no doubt that it extended in some measure to thetribes
or tribal elements listedin footnote23;there is equally no doubtthat the interior of Qatar was
the preserveof most ofthe bedouin tribesreferredto in that footnote.
2.18 The tribal situationin Qatarhasbeen described as follows as far as the bedouins were
concerned:
"The principal bedouintribes that migrated to Qatar from Hasa were the Murrah and
the Ajman.Those that came fiom Trucial Oman were theManasir; and the Naim, the
other important tribe, fluctuatedbetween Bahrain and Trucial Oman. The pattern of
the migratory population of Qatar couldthus be seen as almost mosaical in the power
structure of the peninsula; their vicissitudes caused considerable apprehension in the
coastal towns and villages, Doha being the most prominent. The Bani Hajir, for
exarnple,who werealliedby religion tothe Wahhabis,paid the latterzakat,and at the
same time received gifts from the ruler of Qatar. The role of the bedouin in the
political evolution of Qatar cannot be underestimated, since they could hold most of
the settled placesat their mercy. The Murrah were perhaps the most fearedof al1the
tribes, with the BaniHajircominga close second"24.
2.19 As will be seen in greater detail belo$', as time went by the Al-Thani family, a
division of the Maadhid tribe, who already dominatedDoha by the end of the 1 8'hcentury,
becarneprogressively recognised asrulersof Qatar:
"Towards the end of the nineteenth century,the Al-Thani grew to prominence as the
Ieading family of Qatar. As their relationship with first the Ottomans and later tlie
British govemrnent of India developed, their position was given an added
acknowledgementof authority ...
free negroes,Arabsfrom Nejd, Baharinah, Persians, Beni Hajar,Ka'ban,Na'irAl Murrah, Manasirand
'Ajman.
24R.S. Zahlan, TheCrealionoQatar,London,1979,QCM,Annex 11.82Vol.2,p. 449, at p. 452.
25Sm, paras.2.22, etseq., below. The ruler governed in a paternal fashion. He was the sole source of power, and
conducted al1 the administration of Qatar himself. No government services or
departmentsexisted untilvery recently.Althoughhe governedwith absoluteauthority,
he would offen consult his majlis (assembly of notables) on matters of iinusuai
importance. He was supposed to remain accessible to his people since they had
rccourse to no one else for their petitions and problems. He also had to reassure his
peopleof his protection,particularlyfiom the inlandbedouins,and oftenpaid the latter
largesubsidiesto obtainthis sec~rity''~~.
2. Bahrain
2.20 Before 1923, the populations who were actually under the control of the Sheildi of
Bahrain or the Al-Khalifahfamily lived in the north (Manama,Muharraq) and centre (Rifa')
of Bahrain.Outsidetheseareas,the Sheikhhad moretenuousrelationswith the tribes.
2.21 The general administration of Bahrain under the rule of Isa bin Ali (1869-1932) has
been describedas follows:
"The Governmentof Bahrain is of a looseand ill-organisedcharacter. 1tis ruled by a
Shaikh - at present Isa bin-Ali - who, with the assistance of a Wazir or principal
adviser,disposes of mattersof politicalor generalimportance and personally governs,
unless when absent on sportingexpeditions to the mainland, theisland of Muharraq
and the part of BahrainIsland which is adjacent taManamah.During four months in
the hot weatherthe Shaikhhas his seatat Manamah:his headquartersduringthe restoc
the year are at MuharraqTown, but he indulges in frequentjourneys. A brother, sons,
nephews and other near relations hold fiefs in various places, of which thcy have
almost independentpossession for life; upon these estates they collect taxes for their
own behoof and exercise magisterial and seignorialjurisdiction. The most important
semi-independentholdingof this sortat the presenttime is inthe hands of the ShaiMl's
brother Khalid; it includes the islands of Sitrah and Nabi Salih, as well as al1the
villages on the east sideof Bahrain Island tothe southof Khor-al-Kabband the inland
villagesof Rifa-ash-Sharqi and Rifa-al-GharbiM2'.
This citation dernonstratesthatinthe 1gth centurythe Sheikhsof Bahrainwere farfron~
exercisingcontrol over the whole of Bahrain. In addition, it may be noted that no mention is
madeof any control thatthe Al-KhaIifahsheikhsmight havehad over thetownsof Zellaqand
Budaiya,on the westcoastof Bahrain,whichwere heldbythe Dowasirtribez8.
27Lorimer,op.cit.QM, Annex 11.3Vol.3, p.102., app. 453-455.
See, also,para3.82,etseq.below. C.Establishmentby the Al-Thaniof authorityandcontrol over Qatar
1. Thepolicy of the Al-Thani
2.22 As Qatar has alreadyshown in its Memorial, by the 1850sMohamed bin Thani, the
Sheikh of Bida, had established himselfas the paramount sheikh in Qatar and had even
enteredinto relations withthe WahhabiAmir forthe purposeof protectinghisterritoriesZ9A . t
that time, Qatar was far from being closely controlled by the Sheikhs of Bahrain, who
maintained a claim to authorityover the territory, and on severaloccasionsthe Qatari tribes
revoltedagainstattemptsto imposeBahrainiauthorityoverthern3'.
2.23 As has also been seen,the separationof Qatar fromBahrain was formallyrecognised
by the British in 186g3'.Thereafter, SheikhMohamed bin Thani and, particularly, his son
Sheikh Jassim, undertook a policy of consolidation of their rule over the whole of Qatar,
relying on the tribal system and often playing off against each other the various foreign
powersin the area.Thispolicyhas beendescribedas follows:
"For the next forty years [following the Ottoman occupation of. Hasa], Qasim
(sometimes referred to as Jassim) bin Muhammad had to balance the power of the
Ottomans againstthe growingBritishfearsof Ottomanencroachmenton theirinterests
in the Gulf...Althoughthe resultssometimesleft Qasimin a precariousandvulnerable
position,his tenacity ultimately brought rewards to Qatarandthe Al-Thani"32.
29Sec, QM,para.3.22 andQM,Annexes11.17and 11.1,Vol. 5,p.33andp.37.
See, QM, paras3.19, eseq.and3.30,etseq.
j'See, QM,para.5.6;see,also,paras2.26and3.20, etseq.beiow.
32Zahlan,op.càt.QCM,Annex 11.82V,ol.2, p. 449,atp.461. 2. The establishment and consolidation of Al-Thaniauthority
a) Gcneral authority prior to the Ottomanpresence
2.24 The originsofthe Al-Thani have beendescribedas follows:
"Somewheretowards the end of the seventeenthcenturythe Ma'adid (which included
the forebears of the Al Thani Family) and the closely relatedAl Bu Kawara migrated
frorn Ashayqir in Washm first to Jabrin, hm where they migrated onwards to al-
SikWSakak and to Salwa near the base of the Qatar Peninsula; theMa'adidinitially
settled in the former andthe Al Bu Kawara in the latter. Theysoon moved on to the
prosperingnorth, the Ma'adidgroupingsettlingin the Zubara areaand nearby Ruways
(then the Jalahima 'capital')and the Al Bu Kawara towards the north-east, wherethey
started to develop a fairly important settlement at Fuwayrit in the vicinity of the
Musallarncentre at al-Huwayla ...settlement inthe north-eastern corner of Qatar was
intensifjing when the Al Khalifa rnoved to Bahrain, and it was to Fuwayritthat the
eponymous Thani (b. Muhammadb. Tharnirb. 'Ali)moved whenthe Zubara area was
r~ined"~~.
2.25 Mohamed bin Thani subsequently ieft Fuwayrat and settled in Doha, of which he
became the governing sheikh, rising to theposition of paramount sheikh of Qatar by the
1850s". In his Narrativeofa Year'sJourneythroughCentral and EasfernArabia (1862-631,
written at a time when the Sheikhs of Bahrain still claimed nominal authority over Qatar,
Palgravereportadthat:
"Ebn-Thanee, the govemor of Bedaa',is indeed generally acknowledged forliead of
the entire province, which is itseIfdependent on the Sultan of 'Oman; yet the Bedaa'
resident has in rnatter of fact very little authority over the other villages, where
everyone settles his affairs with his own local chief, and Ebn-Thanee is for those
3'Bahrainassertsthatthe Al-Thaniwereof theAl binAli trib(BM, para. 131)andthat the Al bin Aliremained
loyalsubjectsf the Al-Khalifah afterhelpingthernto conquer Bahrain, that howeversome ofthem felloutwith
theRuler of Bahrain during a dynastic stniggle, and at some point thereafter, the Al-Thani family began to
' exercise influencein Doha itsprincipalpearl merchantsand taxcollectors(BM,para. 132). In truth,Al-e
Thani tribe is a branch of the Al-Maadid:"Accorto Lorimer ..he belongedto the Maadhidsection ofthe
BaniTamirntribe consisting ofthe descendantsof theeponyrnous Maadhidb. Musharraf, overlordof the Jabrin
oasis in central Arabi(A.de L. Rush, Ruling Families ofArabia, Qatar: TheRuling Family of Al-Thani,
QCM, Annex11.77,Vol.2, p.421).
34J.C.Wilkinson,Arabia's Frontiers: The Sfaryof Britain'sBoundaryDrawing in the Desert, 1991,QCM,
Annex 11.81Vol. 2,p.445.
3See, QM,Annexes11.17and 11-18Vol. 5p. 33and p.37. around only a sort ofcollector-in-chief,or generalrevenue-gatherer [forthe AI-Thani
farnily], whose occupation is to look after and to bring in the annual tribute on the
pearl fishery. Mohammed-el-Khaleefah has also a sort of control or presidential
authority in Katar, but its only exercisein the hands of this worthy seems tobe that of
choosing now and then a pretty girl... on whom to bestow the brief honours of
matrimonyfor a fortnight ora monthat furthest,with a retiringpension after~ards"~~.
2.26 Thus, even prior to the eventsof 1867and 186837 M, oharned binThani was governor
of Bida and acknowledgedas head of the entire provinceof Qatar. When in 1868the British
entered into agreements with Sheikh Ali bin Khalifah and Sheikh Mohmed bin Thani,
respectively, Sheikh Mohamed bin Thani's position as Chief of Qatar gained formal
recognition:
"After..the devastationofDohaand ...Wakrahin 1867,the British decided to resort to
Draconian measures to impose peacein the region. They forced out the ruler of
Bahrain,Muhammadb. KhaIifah,and replaced him with his more docile brother, Ali;
and, in September 1868,they sent the Political Agent in the Gulf, Colonel Pelly, to
Qatar to hold direct talks with the local people.Even at the time the visit must have
been seen as an historic occasion.For it signaEZed the endingof Britain'streafmentof
Qatar as a dcpendencyof Bahrainand thefist recognition ofQatar asaplace in its
own right. For the Al-Thani, tno, the meeting was historic since it was Shaikh
Muhammadb. ThaniwhoreceivedtheResidenton behavof 'al1theshaikhsand rribrs
of Guttar'and whosigneda Treatyof MaritimePeaceprecludingfurther invalvement
inthefiuds of the KhalfahfamiS..." 38.
2.27 A further point with regard tothe 1868 Agreements has become significant only
because of Bahrain'scontinua1insistence in its Memorial that any reference to "Qatar"until
comparatively modern times simply meantDoha and that thus even when reference was
made, for example, to Mohamed bin Thani "of Guttur",this in no way imptied that his
authority extended beyondDoha. In this respectit should be noted that the Agreement signed
with Moharned binThani made a clear distinctionbetween the two, Moharned binThani "of
Guttur"promising "to returnto Dawka[~oha]"",
'W.C. PalgraveNarrativoef aYear'sJourneythroughCentraland EasternArabia(1862-1-53),ondon, 1865,
QCM,Annex11.75,Vol.2, p.413.
37See,QM,paras.3.30,etseq.
A. de L. Rush,opci[.Q,CM,Annex 11.77,ol.2, p. 421, atp.424;emphasisaddesee,also,paras3.20,et
seq.,below.
39QM,Annex11.28,Vol. 5, p.83. b) General authorityfollowingarriva1of the Ottomansin 1871
2.28 It will be remembered that in 1871-1872 the Ottomans had entered Qatar aiid
established a garrison at Bida at the invitation of Sheikh ~assirn~!They had also prepared
rnaps which showed the boundary between Qatar and Bahrain and which were seen and
apparently approvedbythe British authorities4'.For Sheikh Jassim, the Ottomanpresence had
the desired effect of preventing outside intervention, notably by Britain, Bahrain and the
Wahhabis, in the area thus demarcatedby the Ottomans as cornprisingQatar, i.e., the whole
peninsula and adjoining i~lands~~ I.ndeed, as will be seen in more detail below, although the
Ottomansdid not establisha permanent garrisonin Qatar elsewherethan in Doha, they were
well aware of the extent of the territory forming the kuza of Qatar, and did from timeto time
go to otherparts of thepeninsula andto the Hawarislar~ds~~.
2.29 The Ottomanpresencedid little to changethe political situation in Qatar, in particular
insofarasthe statusofthe Al-Thanisheikhs was concerned.Lorimercornmentedas follows:
"Exceptin the interna1affairs of Qatar, especiallythe administrationof the chieftown
and its imrnediate environs,little or no change was produced by the presence of a
Turkish post at D0ha.h;tribal relations generally continued on thesarne footing as
formerly and the Al-Thani Shaikhs of Dohah were stiil the principal factor in
politi~s"~~.
Indeed, far from diminishing Al-Thani authority, the Ottoman presence helped
consolidate it, inparticularby the appointmentof Sheikh Jassim as kaimakumof the Icaza of
Qatar in 1876, and as Ottoman governorof Doha in 1879. Conversely, the appointment as
kuimakamof Sheikh Jassim,who wieldedthe real power inthe country,helped the Ottomans
assert their nominal authority over the whole peninsula despite their limited physical
presence.
4uSee,QM, paras3.43, et seq.
4'See,QM,paras.5.15,et seq.
42See, ibid.,and par. .8, et seabove.
43See,paras.2.8, eseq.above,and2.36, etseq.2.39, eseq,and3.40, etseq., below.
44Lorimer,op.cil., QM,AnnexIL5,Vol. 3,p.210.2.30 Thus, althoughthe Ottomans' onlygarrison in Qatar was atDoha, they were able, via
the authority personally exexcisedby Sheikh Jassim, their kuimakum,to claim jurisdiction
over al1the areas wherehe exercised such authority and, while the British from time to time
purported to deny Ottoman jurisdiction over the whole of Qatar, they assertedneitlier their
own nor Bahrain'sjurisdiction over the place,therebytacitly acknowledgingboth the Ottoman
presenceand the controlofthe Al-Thanisheikhsin Qatar.
2.31 The British attitudemay be seen in a letter of 28 August 1873fiom Colonel Ross, thc
British Political Resident, according towhich, although the matter of sovereigntyover Qatar
had apparently never been formally decided, the Turkish authorities had established an
influenceover the Qatar coastas far as the Odeidboundary - in other words, from the souih-
west of the Qatarpeninsula (in the vicinity of Dawhat Salwa)as faras the extreme south-east
of the peninsula45.In a subsequent letter Colonel Ross again pointed out that "Since the
Turkish occupation of El Hassa, the whole lineof coast as far as Odayd has fallen undcr
Turkish infl~ence"~'.
2.32 Indeed, in a Government of India memorandurn on Ottoman jurisdiction alongthe
Arabian coast of the Gulf, dated 22 May 1879,reference wasmade to a note of 28July 1871
fromthe Foreign Secretary,Mr.Aitchison, according to which:
"It is a matter of absolute indifference whether these quasi-independent tribes are
sovereign or absolutely controlled by Turkey ...There is nothing ...in our maritime
position to cal1for our interferenceon land...1think it would be rather an advantage
thanothenviseto establisha firm Turkishrule along thecoastM4'.
2.33 Again, in a letterfromthe India Officeof 17September 1879,the followingis stated:
"Provided,however,that no obstacles be interposed to any operations which may be
necessary to presewe the peace of the seas and to punish marauders, and that no
interferenceis attempted either with Bahrein,or the trucial Chiefs from Odeidto Ras-
el-Khymah,or with Muscat, Lord Cranbrook does not considerthat exceptionneed be
takento the proceedingsof the Turksat any pointof thecoastnorth of Odeid.
45QCM,Annex 11.3Vol.2,p. 11.
4%M, Annex20, Vol.2,p. 174.
47QCM, Annex II1,Vol. 2,p. 1. In expressingthis opinion, hisLordship does not forget that the Government of India
would restrain the Porte from extendingits influencebeyond Ojair; but, subject to thc
conditions above stated, Lord Cranbrook does not see any sufficient reason for
objectingto the establishmentof such relations between the Turkish authorities in El
Hassa andthe tribes of the Gutturpeninsula to thenorth of Odeid, as may be agreeablc
to theparties ~oncerned"~'.
TheIndia Officenotedthat Colonel Rosshad concludedin 1879that:
"The Turkish Government may ...with sorne reason arguethat their present actual
position on this coast does invotve, constructively, domination over the entire tract
Iying between Ojair and El Bidaa. Such a claim would, of course, be affected by the
existenceof any Britishrights or obligationson the coast referred to.But it is not held
that the British Governmenthas engagements, as concems this particular tract, of a
nature to constitutean obligationto oppose the full establishmentof Turkish authority
therein;nor has it seemedprobablethat oppositionwouldbe offered on othergrounds.
Wehave, in fact,ratherpreparedthe way for recognitionof the eventualestablishment
of Turkishmle by graduallywithdrawingfromactive supervisionand controloverthis
portion of the mainlandcoa~t"~~.
2.34 Alongside nominal Ottoman control, the British also recognised Sheikh Jassim's
authority, holdinghim responsiblefor maintainingorder in Qatar and preventingpiracy from
Qatariports. In this connectionBahrainhas not failedto point out thaton oneoccasion Sheikh
Jassim diçclaimedthis responsibility whenhe was requestedby the Britishto keep orderalong
the whole coastlineof Qatarso.However,it has been suggested thatthis disclaimerwas rnerely
a part of SheikhJassim's policyof playing off the greatpowersagainsteach other:
"This particular statement could have been made to avoid responsibilityfor reported
casesof piracyin Qatarthat the British representative wasinvestigating,forthere is no
doubt that it was during the Ottoman period that Qasim extended the authorityof the
Al-Thanithroughout the peninsula of Qatar. Three factors combined toenable this to
take place. The first and most important of these was the complexity of Anglo-
Ottoman relations. While the British Governmentnever officiallyaccepted the Porte's
claim of sovereignty overQatar, it avoidedany possibility ofjeopardising its delicate
relations with the Ottomans at a time when Bntish policy was to maintain tlie
territorial integrity ofthe Ottoman Empirein orderto preservethe balanceof power in
Europe.The 'vexedquestion'of Qatar,as it was referred toby Foreign Officeofficiais,
48QCM,Annex11.8,Vol.2, p.35.
49QCM,Annex 11.7Vol.2,p.27.
50See, BM,para.133. conflicted with another, equally important,aspect of Britishpolicy: the maintenance of
the Gulf as a British lakewhich provideda vital link inthe route to India.Thisclash of
interestswas reflectedin the opposingattitudestowards Qatar ofthe Foreign Officein
London and the Government of India in Delhi ...The resdting situation was a
curiously nebulous attitude on the part of British officials: while never actually
acceptingthe dejure mle of the Porte in Qatar, they tacitlyacknowIedgedthe de facto
situation, consequently steering clear of any embarrassing confrontation, an attitude
echoed by the Ottomanswho repeatedly claimed sovereignty over both Bahrain and
Qatar.
The second factor was the personality and character of Qasim himself. A headstrong,
sometimesrash man, he also displayed great tenacityand courage. While itis doubtful
that he was awareofthe many aspectsof Anglo-Ottomanrelations,he seemed toknow
intuitivelythe valueof setting offthe two powers againsteach other. His actionsoften
had him walking a tightrope, but he finally emerged in a far more powerful position
than the onehe had inheritedfromhis father.
The third factor was the nurnerous claims made by the Al-Khalifah for sovereignty
over Zubarah. These claims led to arrned clashes in which Britain and the Porte
became involved. Both powers, however, sought to avoid the very real dangers of
direct confrontationby reaching compromise^"^'.
2.35 British reportson the statusand position of SheikhJassim and his sons were issued in
the period 1902-1904.On 7March 1902the Political Residentwrotethat:
"Sheikh Jasimlivesin the interiorof Katr...
It would be possible to arrange that Sheikh Ahmad should be interviewed at some
place in Katr, Say,at Zobara, whereaninterviewcouldbe heldwithoutinterfereri~e"~~,
andon 26 April the Political Resident statedthat if he
"...may be authorisedto enter into an agreement with the Chief of Katar whereby his
independence is recognized and a promise of protection from interference by other
Powers given to him, on the condition that he is responsible for the maintenance of
order in Katar andfor the preventionof piracies by sea, most satisfactoryresults may
be expectedtofollow ...
Zahlan,op.citQCM, Annex11.82V, ol.2, p449,atpp.462-463.
52QCM,Annex 11.1Vol.2,p. 71. SheikhJasim is the actual Chiefsi,faras the tribes are concerned 53...".
2.36 As has alreadybeen seen,a Conventionwas signedby the British and theOttomansin
191354 . hile Bahrain contends that "what was at issue in the relevant part of the Anglo-
Ottolnan negotiationswas the future ofthe Ottomanprovince of 'Qatr', inother words Doha
and its environsMssi,tis in fact quite clear,as will be seen below,that the negotiationsfor the
Conventionconcernedthe whole geographicalentity of ~atar~~.
2.37 Again, when it cornesto discuss the 1916Anglo-Qatari Treatys7,which was entered
into followingthe final departureof the Ottomans,Bahrain once again asserts that in signing
this Treaty the British formally recognised the exercise of authority by the Al-Thani "in the
area aroundDoha Town" andno furthe?'. In thisconnection, Bahrainpersists in referring to
the "Ottoman administrative unit of Qatar", ignoring both the fact that such administrative
unit extended much furtherthan Doha and its environs, and alsothe fact that Qatar had been
clearly understood by both the British and the Turks in 1913 (and indeed much earlier) as
comprisingthe whole peninsula.Further,the text of the 1916 Treaty itself speaksof the Ruler
of Qatar's"territories", "frontiers" and "ports", elements which are clearly inconsistent with
Bahraintsproposition that Al-Thani nile was recognised only overa few square kilometres;
and it may also be noted that,like the Agreementof 12September 1868,the Treaty refers to
bath Al Bidaa andQatar,a clear indicationthat the twoarenot ~~non~rnous~~.
2.38 As Qatar will now show, in addition to the general assertionand recognition of Al-
Thaniauthority overthe wholeof Qatar,there were, contrary toBahrain'srepeatedcontention,
manyinstancesof effectiveexerciseofAl-Thaniauthority elsewherethanin Doha.
" Saldanha,ThePersianGulfPrécis,QM, Annex11.8,Vol.4,pp.235-236.
54See,QM,paras.3.55,etseq. andparas.5.42,etseq.
55BM,para.194.
56See, paras.3.40, etseq., below.
57BM, Annex84,Vol.3,p. 512.
58See, BM,para.221.
59FOC adiscussionofthe1916Treaty,see,also,paras.3.44-3.4below.SpeclallypreparedforpreseniatitotheInterndiiondCourt oJustice.
MAP No 1Speciallyprqarrfor prcscnt~tionta the InterCouttofJustice.
MAP Na 1 c)Al-Thaniauthority on the Hawarislands
2.39 As has already beeii seen, when the Ottomans performed their surveys and drew up
inaps on the basis of those surveys in the 1860s, showing the boundary between Qatar and
Bahrain, the Hawar islands were always included as part of Qatarb0.Indeed, Qatar has
provided evidence thatby the time ofthe Ottoman arrival in Qatar, the Hawar islands werc
recognised by third parties and by the fishennen who visited them as beingunder Al-'Thani
control" .
2.40 Once the Ottomans had established their presence inQatar at the invitationof Sheikl~
Jassim, they raised their flag on Hawar, without any objection from the British". They
subsequently undertook fûrther surveys and, in particular, produced maps of the various
dwellings on ~awar". On several occasions following the arrival of the Ottomans, Sheikh
Jassim'sbanner was raised on the main Hawarisland, and a representativewas sent to collect
levies from the fishermen who used the place, on behalfof Sheikh~assirn~~T . he Al-Thani
continued to exercise their authorityon Hawar following the departure of the Ottomans, and
oii several occasions Sheikh Hamad bin Abdulla himself, Sheikh Jassim's grandson, visited
the islands".
d)Al-Thani authorityin and aroundZubarah
2.41 A full rebuttal of Bahrain'sarguments relatingto Zubarah is contained in Chapter V
below. In the present section, Qatar's intention issimplyto highlight a few omissionsof which
Bahrain is guilty in its attcmptto showthat the Al-Thani didnot exercise any authority in the
"Zubarahregion".
6DQM, Annexes 11.21-11.4nd 11.30-11.3, ol5,pp.51,55, 59,65,91,95, 101, 105, 109and 113.
QM, Anncxes111.13,111.15I,II.18and 111., ol.6, pp.65,75, 89and 103.
62QM, Annex 111.26,Vol.6, p. 129.
63See,Map No.I, facingthispageSee,also,QM,Annex 111.37V, ol.6, p173.
" QM, Annexes111.36and 111.39-111.40,ol.6,pp. 169, 181and185.
" QM, Annexes 111.82,ol. 6, p. 421 and III.175,Vol. 7, p.385.2.42 A fîrsl omission relates to the events which occurred in 1874,when several hundred
Beni Hajir bedouins attemptedto seize boatsfrom the villagersof northern Qatarwith which
to attack Bahrain, in sympathy with the Al-Khalifah dissident Nasir bin Mubarak, and
encouragedby the Ottomans. IJowever,the Beni Hajir were prevented from obtaining boats
bythe interventionof Mohamedbin ha ni^^a,factwhich Bahrainhas failedto mention.
2.43 Significantly, Bahrain has alsa omitted from its Mernorial any explanation of the
events which took place in Zubarah four years later. Thus, although it mentions the
destructionof the townof Zubarahin 1878,it fails to mention that priorto this destructionthe
British had complainedto the Turks aboutdisorders and piratical activities occurring in and
aroundZubarahandrequestedthat they takeaction againstthe place, butthat beforethe Turks
could do so, Sheikh Jassim had taken the necessary action himself7. This event is furtller
evidence that Sheikh Jassim, rather than the Turks, was the effective power in Qatar at the
time, and thathis authority extendedto Zubarah.
2.44 Bahtain's assertion that the Al-Thani did not exercise any authority in the Zubarah
region is again belied by the events of 1895. In that year, 1500 members of the Al bin Ali
tribe moved over to Qatar from Bahrain to settle at Zubarah, with the support and
encouragement of Sheikh Jassimand the Turks. Panic mounted in Bahrain because it was
fearedthat Zubarahwouldbe used as a base for attacking theisland. As a preventive measure
to protect Bahrain, the British destroyed forty-four native craft assembled at Zubarah.
Thereafter the British imposed upon Sheikh Jassim the payment of a fine, and when Sheikh
Jassim refused to pay this fine his fleet was also destroyedby the British. Nevertheless,these
events servedto consolidaieyet furtherthe authorityofthe Al-Thaniin Zubarah:
"But the defeat held unexpected gains. The British Governrnentrealised how close
they had corneto an armedconflictwith the Ottomans,and wanted to make sure there
would be no repetition of events. The Resident was consequently instructed to warn
the mler of Bahrain againstinterfering in the affairs of Qatar. This was, of course, an
implicit recognition ofthe rightsof the Al-Thaniin Zubarah.At almostthe same time,
"Saldanha, op. ciQM,Annex11.7,Vol. 4,p. 59see,also,para5.17(1), below.
67Saldanha,op.citQ,M,Annelt11.7V,ol. 4, p.see,also,para.5.1(S)b,elow. but without the knowledgeof the warningto Bahrain, Qasim soughtto strengthenhis
hold on the town. He was successfulin influencing those members of the Naim tribe
who still lived inZubarah to transfer their allegiance from the Al-Khalifahto the Al-
Thani"68.
e) Al-Thaniauthority inthesouth-west of Qatar
2.45 By 1905it wasclear that theAl-Thani hadalso established their authorityin the soiith-
west of the peninsula. When in the summerof that year the son of the WahhabiArnir visited
"districts adjoining Qatart',including the wellsof Araiqa few miles to the north-eastof the
foot of Dawhat Salwah, he was warned by Sheikh Ahmad, Sheikh Jassim'sbrother, not to
crossthe borderof Qatarsg.
2.46 The Al-Thani were also active in imposing order arnong the Bedouin on their
southwestern border. In April 1905 Sheikh Ahmad led a raid of Al Murra and Al
Makhadhdhaba (Beni Hajir) against the Ajman, Amayir and Al Muhammad (Beni Hajir)in
the Jafura desert7'.In July 1906Sheikh Abdullahbin Jassim led raids against bedouin near
Salwa and Sufayra, and Sheikh Jassim arrested Manasir robbers who had attacked the mail
convoy onthe darbal-sali(the route fromDohato al-Hasa)near salwa7'.In the sameyear the
long-standing feud between Qatar and the Ajman was brought to a conclusion by the
restorationof capturedcamelsto Qatar,and friendlyallianceswereconcludedbetween Sheikh
Jassim and the Chiefs of the Al Murra (Ibn Shuraym)and Beni Hajir (Ibn Shafi)72.In 1909
there were further Bedouin raids about Hasa and southwesternQatar and Sheikh Jassim sent
SheikhAbdullahto retaliateagainstthe Ajrnanl3.
f) Al-Thaniauthorityin the interior
2.47 Al-Thani authorityinthe interiorof the peninsula rested on the carefulmanagementof
allianceswith semi-nomadicbedouintribes.
68Zahlan,op.cit.,CM,AnnexIi.82, Vol.2, p.449,atpp.465-466.
69See,Lorimer,op. ciQ.M,Annex11.5,Vol.3,p. 242.
70See,QCM,Annex11.15,Vol. 2,p. 83.
''See, QCM,Annex 11.16V, ol.2,p. 93.
"Sec, QCM,AnnexII.17,Vol.2,p. 103.
73See,QCM,Annex11.18,Vol.2, p. 113.2.48 In 1875itwas reported that SheikhJassim subsidisedand maintained the BeniHajir as
almost a standing army: 200 armed Beni Hajir tribesmen werethen living semi-permanently
in Doha while a further 300camped close to the town14.Because of the close associationof
the Beni Hajir with Nasir bin Mubarak, a dissident rnember of the Al-Khalifah family, the
British tended alwaysto view SheikhJassim's support forthemin terms of a threat to Bahrain,
but in fact there was very little to indicate that Jassim was ever seriously interestedin
invading Bahrain;rather,his concernwaswith the unityof Qatar75.
2.49 Fears of an impending attack on Doha by the Abu Dhabi forces in 1881 caused a
general mobilisationin Qatar, demonstratingthe strength and breadth of support for Sheikh
Jassim in the face of anoutside enemy. About 4000men came to his aid from Fuwayrit,
Khawr Shaqiq,Wakra,andthe Al-NaimandQubaysat tribes:
"They Say even the Persians in El Bidaa went to his assistance and had a separate
standard.The Al BookoowarahandAmamerah [fromFuwayrat, but who were visiting
Bahrain]proceededmostquickly from Bahrain alsoto assist him"76.
2.50 In 1891 an open rift developed between Sheikh Jassimand the Turks overthe Twkish
planto establish acustomspost at Dohaandto appoint aTurkish assistantkuimakumI .n order
to deal with the problem, the Vali of Basra arrived at Doha in February 1893, travelling
overlandaccompaniedby Turkish cavalryand troops. SheikhJassim, who was campingin the
interior, refused tomeet him but sent his brotherAhmad to negotiate.Ahmad was seized by
the Turks, who sent a force to Wajbato compel Jassim's attendance.However,these troops
were ambushed by Sheikh Jassim's bedouin armyon 3April 1893 and a large numbcr were
killed. A second battle took place about two weekslater in which many lives were lost on
both sides7'.The consequencesof theseevents havebeendescribedas follows:
"Qasim's popularity and reputation in Qatar as a man of valour and strength grew
further whenthe Ottomans hadno choice but to granthim a full pardon. His authority
was completely established,and although he chose to live in semi-retirement forthe
74Saldanha ,p. citQM,Annex 11.8Vol.4, p197,andQCM,Annex11.9,Vol.2, p. 43.
'"CM, Annexes 11.9and11.14Vol.2, p.43 andp.75.
76QCM,Annex 11.1,Vol.2, p. 59see,also,QCM,Annex11.10,Vol.2, p. 55.
77Saldanha,op.cit.QM,Amex 11.8,Vol. 4,p.224. rest of his life, no one everquestionedhis position as ruler. His brother, and later his
sons, deputised for him in al matters that concemed relations with the Turks,but his
decisionsremained the most important.He had obviouslydonemuch for Qatarbesides
giving it a more independent status; he had also contributed to the beginning of its
deveiopment as a state, instituting several social and economic measures to unify
Qatar. Once his position was more secure throughout the peninsula, for exarnple,he
constructed roadsto connectthe main towns of Qatar"78.
D.The absence of Al-Khalifahauthorityin Qatar
2.51 In order to build up its fanciful image of the Al-Khalifah family'spower, Bahrain
conveniently forgets many events that occurred during the 19' and early 20thcenturies. For
exarnple,no mention is made in Bahrain'sMernorial of the period from 1783to 1820,when
Muscat,the WahhabisandPersia al1vied for controlover the island of Bahrain,and whenthe
Al-Khalifah from time to time acknowledged their submission to one or other of these
powers". Nor is any mentionmade of the later attemptson Bahrainby Muscat,the Wahhabis
and the Egyptians which were rebuffed ody because of intervention by the British who,
following signature of the 1820 General Treaty of Peace, took action each time in order to
preserve peacein the regions0.Similarly, Bahrainmakes no referenceto its acknowledgement
of Egyptian supremacyin 1839 and its payment of tribute to the Egyptians in that year8'.
Bahrain further ignores the nurnerousinterna1conflicts by whichthe Al-Khalifah farnilywas
riven, in particular during the period from 1840 to 1860, when the two CO-rulerswere
constantly vying with each other and expelledeach other in turn from the country8*.Bahrain
also chooses to mention neither the various inroads into the Qatarpeninsula by the Wahhabis
and Muscat,nor the use of Qatar territoryby Rahmahbin Jaber,a dissidentmember ofthe Al-
Utub tribe, for his attacks on Bahrain, nor the fact that exiled members of the Al-Khalifah
farnilyalso used Qataras a foreign basefor preparing toretake Muharraq.
2.52 It is therefore hardly surprising that Bahrainprovides no evidence whatsoever for its
sweeping statementthat "the territorialextentof the authority held by the Al-Khalifaover the
7?ahlan, op.cil., QCM,Annex11.82,Vol.2, p. 449, atp.469.
79See,QM,para.3.24andLorimer,op. cit.QM,Annex11.5,Vol. 3, pp.247-255;see, also,paras.2.6 and2.12,
above.
BoSee, QM,para.3.25 andLorimer,op.cil.QM, Annex 11.5Vol.3, pp.255-266.
''See,QM, para.3.2and Lorimer,op.cit.QM, Annex 11.5Vol.3, pp.268-273.
82See, QM,para.3.26 and Lorimer,opcd.,QM,Annex11.5,Vol.3, pp.206 and276-286. inhabitedsectionof the Qatar Peninsula encompassedboth the Zubarahregion and the region
around Doha Town as wel1as al1the territory in betweenVa3T .his statement simply takes na
accountof the facts set out abovenor of the various uprisingsby Qataritribes against the Al-
Khalifah,andit confiictswiththe realitiesof triballife atthe time inthe peninsiilaR4.
2.53 In fact, Al-Khalifah influencein Qatar dwindled progressivelyfrom the time they
movedtheir headquartersto Bahrainin 1783%~:
"From the 1780s to the mid 1800s, the Al Khalifas became involved in a complex
struggle to maintain control of both Bahrain and Qatar. The Al Khalifas faced a
steadily greater challengefi-omthe Al Thanis, a tribe that had lived in Qatar forncarly
200 years and had migrated fmm the Najd in the Arabian Peninsula. The Al Thanis ...
emergedas the leadingfamily in eastern and southern Qatar in the 1850s,after the Al
Khalifas migratedto Bahrain and beganto compete withAl Khalifas for control over
the Qatari peninsula.
This struggle occurredai a time when the British, Turks,Omanis, Iranians and other
Atab familieswerecompetingto controlthe GulftB6.
2.54 In its Memorial Bahrain seeks to reduce theevents of 1867 and 1868, referred to
aboveg7,to a rebellion by tribal chiefs in Doha and its environs against the level of taxation
imposedby Bahrain. It also seeksto give the impressionthat this rebellion was repressed by
the British, who compelledthe rebellious tribalchiefs to recognisethe authorityof the Ruler
of Bahraina8.
2.55 In fact, thetrue story,as explainedin greaterdetailbelow,is quite differents9.Far from
simply lending assistance to Bahrain in order to compel a few unruly tribesmen from the
Doha area to acknowledgetheir submissionto Al-Khalifah authority,Britain'sfirst move was
to take punitive measures against Bahrain. It deposed Mohamed bin Khalifah as Ruler of
Bahrain and established Ali bin Khalifahas Ruler in his place, signing an agreementwith the
' 83BM,para.121.
84See, paras.2.7and2.14, above.
'"ee, QM, paras.3.19,etseq.
'%.H. Cordesman,Bahrain, Oman, Qa~ar and the U.A.E.Challenges of Securig, Boulder, 1997, QCM,
Annex 11.70Vol.2, p.381.
'See,para.2.26,above.
8See, BM,para.127.
8See,paras.3.20, eseq.,below.latteron 6 September 1868wherebyhe undertook tohand over al1war vessels, topay a heavy
fine, to make over Mohamed bin Khalifah to the British if he returned to Bahrain, and in
generalto preserve the peace at sea. This can hardly be construed as British support forAl-
Khalifah.authorityin Qatar.
2.56 It was only after this first Agreement had been secured that the Political Resident
rnovedonto Qatarto signanAgreement withMohamedbin Thani, describedas the "Chiefof
Guttur". That Agreement neither states nor irnplies any acknowledgment by Mohamed bin
Thaniof any Bahrainiauthority either overhimselfor overanypartof the tenitory of Qatar.
2.57 Despitethis recognition of Al-Thani authority in Qatar and the correspondingabsence
of Al-Khdifah authority,the Al-Khalifah continued after 1868 toraise claims with regardto
Zubarah.Aswill be seenbelow,suchclaimswere alwaysrejectedbythe ~ritish~'.
2.58 Furthermore,Zubarah was destroyedin 1878. With regardto the events that occurred
inthat yed', an authormuchreliedon by Bahrainhas writtenas follows:
"..in 1878 Zubarah was finally destroyed by the Al-Thani Shaykh of Dohah, who
thereby confirmedhis controloverthe whole ofthe Qatarpeninsulatf92.
In other words, anyresidual connectionthat the Sheikhs of Bahrain might have had
withthe peninsuladisappearedafterthe eventsof 1878.
2.59 Indeed, Al-Khalifah control even over Bahrainitself was much more tenuous than
Bahrainwould have theCourtbelieve:
"The Al Khalifas maintained their de over Bahrain from 1783-1861 -although they
sporadically acknowledged the authority of Iran, Muhammed Ali, the Ottoman
Empire, and even the WahhabiErnirsof the Najd, when the Al Khalifas found this to
be politically expedient or usefiil as a way of avoiding attack.On several occasions,
the Al Khalifas paid fealty to several outside states at once- balancing the power of
90See,paras.5.14,et seq.,below.
See, para.5.1(2)below.
92K.FerdinandB,edouinsofQatar,London,1993,QCM,Annex 11.71Vol.2,p.385. one state against another until the complex power stmggles in the Gulf again allowed
the Al Khalifasto asserttheirindependen~e"~~.
2.60 Bahrain is thus clearly exaggeratingwhen it asserts before the Courtthat it has been
recognisedas a sovereignentity since 1820.Although it maybe saidthat the 1820Treatywith
Britain laid down the initial foundations of the State of Bahrain, this hardly amounted to
sovereignty :
"Britain'sinvolvementin local politicalaffairsand her decisionin 1820to style herself
policeman of the Gulf opened a new phase in the history of the area, altering the
forma1authority system. Whoeverwas grantedthe right to negotiateand sign a treaty
with British imperial authorities was likewise accorded a 'legitimate'right to the
territoryhe, or his tnbe, happenedto occupy at that tirne.It was throughthis seriesof
treaties concludedin the nineteenthcenturythat the initial foundationsof the small but
sovereign states ofthe contemporaryGulfwerelaid"94.
2.61 In addition, it is to be recalled that followingtheir arriva1in Bahrain in 1783,the Al-
Khalifah divided intotwo factions:the Al-Salmanbranch at Manama and the Al-Abdullahat
Muharraq, eachretaininga separatetribal admini~tration~~ F.romthat period up to 1846,when
the Al-Salman branchof the Al-Khalifahdefeatedthe Al-Abdullahto become the sole rulers
of Bahrain, there wasoften civil strifebetween the two factions;and even after 1846,various
claims to Bahrain continued tobe advanced by the Wahhabis,the Turks and the ~ersians'~.
The British took this opportunity to place Bahrainunder their protection andfrom then on
intervened from time to time in its interna1affhirs. Thus, for exarnple,in 1868they deposed
Mohamed bin EChalifah as Ruler and replaced him with Ali bin Kha1ifahg n. 1869Ali was
killed in battle againstan invasion forceorganisedby Mohamedbin Khalifah,who had been
joined by Mohamedbin Abdullah,a relative fromthe Al-Abdullah branchwho until then had
been ruling in Rifa town. Mohamed bin Abdullahtook power shortly aftenvards, only to be
deposed two months later by the British, who replaced him by Isa bin AliyB.Isa bin Ali
himselfwas inturnforcedby the Britishto abdicatein 192399.
'
93Cordesman, up.cit., QCM,Annex 11.70,Vol. 2, p.381.
94F.I.Khuri,Trib andState inBahruin,Chicago,1980Q ,CM,Annex 11.74Vol.2, p. 399,at p.401.
95See, ibid.,p.402.
Sec,ibid.,p.403.
'7See,ïbid.,p.404.
" See,ibid.,p405.
99See,ibid.,p.411.2.62 As to the territorial extent of Al-Khalifah authority,this was limited evenon the main
island of Bahrain itself.Once the Al-Khalifahhad arrived in Bahrain they occupiedManama,
Muharraq and Rifa',then they seized the palm-groves, locatedin the north of Bahrain island,
whicli were held by the Baharnah and Huwalah populations. These cultivated areas were
limitedto the northernandwesternstripsof the main island of Bahrain.
2.63 On the other hand, the Al-Khalifah at no time had any effective control ovcr
autonomoustribal groupingsengaged in fishingandpearlingactivities:
"Whereaspalm cultivation was directly controlledby Al-Khaiifa shaikhs of different
orders, pearl production fell almost entirely into the hands of enterprising Arab
tribesmen. Each group ofthem was an autonomousunit governed by a tribal chief or
chiefs assistedby a council composedof fellowtribesmen and other intimates. Within
their domain,tribal chiefsand councilsruled as sovereigns,maintainingorder, settling
disputes, holdingcourt,and resolvingconflicts.Short oftax collection,their autonomy
was no different from that of the ruler and other Al-Khalifa shaikhs, each within his
own estateor domain ...
Pearl production fellalmostentirelyintothe hands of tribal settlementsscattereddong
the coastline in the northern half of the island ...Each of these tribes had roots,
alliances, andtribal followings on the mainiand, either in Qatar or in central Arabia.
The powerand influencethese tribes or segmentsof tribes exerted in Bahrain,and the
autonomy theyexercised,were dependent uponthe entire tribal power structureof the
Gulf and Arabia. Al-Dawasir of Budayya and Zallaq, for example, were the most
powerfül, influential, and autonomous ofal1tribal groups because they wererelatively
numerous, wealthy,and, above all, able to mobilize a wide variety of tribal alliances
on the mainland. Othertribes exercised autonomy as grantedthem by the Al-Khalifa
rule...
Withintheir settlements,tribal chiefs exercised complete autonomy
...Tribes or segmentsoftribes resisted interferencein their affairs and considered it a
limitation of sovereignty.They dealt with the regime assovereigns and threatened to
'emigrate'en mass fiom Bahrain at the slightesthint of intrusion or limitation of their
freedorn of action. This was what happened with the Bin Ali tribe in 1895 after an
irreconcilableconflict with Al-Khalifa over a petty affair of invasion of privacy, and
withAl-Dawasirin 1923whentheir fieedom of operationwas restricted ..."lm.
'" Ibid.,pp.406-407 and408-410. Thesecommentsappeatoapplyto aperiodupuntil 1923.Section 2. Themyth of Bahrain's maritime supremacy and the failure of its cxpansionist
policies
2.64 Among the major misstatelnents and omissions in Bahrain's presentation of the
historicalbackgroundtheremusi be includedthe fantasy of Bahrain's suprernacyoverthe seas
andBahrain'stelling silenceas to the failuresof its expansionistpolicy.
2.65 Indeed, looking atthe hisioryof Bahrainone is struckby the fact thatthis smallisland
in the Gulf was, just like any other territorial entity in thearea - no less but no more -
legitimately encouraging its fishemen to exploit the natural resources of the Gulf (fish and
pearls).It will be recalled thatpearIingbankswere considered tobe the commonproperty of
tlie tribes bordering theGulf and that membersof those tribes traditionally enjoyed freedom
of fishing forswimrningfish in the waters of the Gulf. But unlike other territorialentities in
the Gulf, Bahrain soughtto invoke this feature of its economicIife as a device for territorial
expansionismby always using the same argument. This was thatit had acquired sovereignty
over islandsor shoalsin consequence ofthe use of these geographical featuresby rnembersof
local tribes who were allegedlyBahraini subjects. In a word, it tried to utilise the private
economic activities of individualsit claimed to be its subjects as a basis of title to acquire
sovereignty oversuch features.
2.66 What the BahrainMemorial carefully conceals is that this policy was based on the
arguments presently raised with Qatar as regards maritime features off the eastCoast of
Bahrain; and that the policy hadcompletely failed in the context of the resolution of earlier
disputes betweenBahrainand Saudi Arabia (or the Ottoman Empire) overthe legal status of
silnilarfeatures.Qatarwill illustratethis by three exarnples:Zakhnuniya,the Lubainahislands
andFashtBu Saafa'O1.
'O'See, also, QCM,Appendix2, Vol.5, 145.Thesefeatures areshownonMapNo. 2, facingthis page. A. Zakhnuniyaisland
2.67 Zakhnuniya island (Jezirat Zakhnuniyah) is situated close to the mainland of what is
now Saudi Arabia; it lies imrnediately off the southern Hasa coast near the entry of the
Dawhat Salwa.It wasclaimed in 1909-1910by the Rulerof Bahrain on the basis of exercise
ofjurisdiction (whichwas not evidenced), building ofa fort (whichby then wasin ruins) fifty
yearspreviously,anduse ofthe islandby allegedBahrainifishermen(Dowasirtribesmen).
2.68 The Hasa coast was at the time in the hands of the Ottoman Empire.The Ottoman
authorities based their own claim to Zakhnuniya exclusively on proximity to the mainland.
They nevertried tojusti@their claim by anyact ofjurisdiction or occupation.
2.69 The validity of the Ottoman position was finally acknowledged by the British
Govenunent whentheAnglo-OttomanConventionwas concludedon 29 July 1 913. Article 11
of that Conventionreads as follows:
"The Ottoman sancakof Najd ...ends in the south of the Gulf facing the island of al-
Zakhnuniyahwhichbelongs to the said ~ancak"'~~.
The Ruler of Bahrain was paid £1,000 in compensation for the waiver of his clairn.
UltimatelyZakhnuniyawastobecomepart of the territoryof SaudiArabia.
2.70 It will be seenthereforethat this instance,far from reinforcingthe claim of Bahrain to
Hawar,as arguedby Bahrainin its ~emorial'~~s ,ubstantiallyweakensit. It showsthat the use
of an island for fishing purposes-an activity which was opento al1the tribes in the Gulf- by
some Dowasir tribesmen (whose allegiance to Bahrain was in any event doubtful) was
incapable of displacing and overriding the prior sovereign rights of the State to which the
island wascloser.
'O2QM, Annex 111.5V,ol. 6, p.273.
'" BM,paras.426, eseq. B. TheLubainahislands
2.71 The Lubainah islands consist of two small rockyislets: a southern one, Lubainah al-
Saghirah or Bain-al-Saghir (lying between Bahrain andthe Hasa coast at 26°10'16" N,
50'18'40"E within the territorial watersof the Bahraini island UmmNa'san)and a northern
one, Lubainah al-Kabir& or Bain-al-Kabir (lyingnearer to the Hasa coast than to Bahrain at
26O15'08" N, 50' 19'00"E).
2.72 Both islets were from time to time claimed by Bahrain on the following grounds:
ancient occupation, levy oftaxes on al1boats collectingtwtleshell fiom the islands, a private
sale deed in respect of a part of the sea including these islets, the marking of the islets with
beacons and the fact that Article 13of the above-mentionedAnglo-TurkishConventionof 29
July 1913recognisedBahrain'ssovereignty overboth islets.
2.73 This claim was disputed however by the Saudi Government. Saudi Arabia,having
been inoccupationof theHasacoastsincethe beginningof 1913,consideredthat the Ottoman
Empirehad no right to disclaimtitle to a territory which wasno longer under its control and,
in any case, the SaudiGovernmentnever acceptedthat Saudi Arabiawas bound by the 1913
Convention as a successor State. Saudi Arabia also denouncedthe evident weakness of the
otherBahraini arguments.Althoughfi-omtirneto time it referred touse ofthe isletsby its own
fishermen, Saudi Arabia essentially invoked proximity to support its clah to the northern
islet.
2.74 The solution eventually agreed upon between Saudi Arabia and Bahrainin their
Agreement of 22 February 1958 was the sharing of the islets: Lubainah al-Saghirah for
Bahrain and Lubainah al-Kabir& for the Kingdom of Saudi Arabia. The text is essentially
declaratory in character. The solution was based on the proximity principle, Saudi Arabia
being given the isletloser to the mainlandand Bahrainthe one closerto its own shores.The
usual expansionistargumentsofBahrainwerethereforetotallydisregarded. C. Fasht Bu Saafa
2.75 Fasht Bu Saafa is located at approximalely 26"58'N - 50°23'Elo4.This feature was
claimed by Bahrain dunng the negotiations with Saudi Arabia on the delimitation of their
respectivecontinentalshelves,on thefallowing grounds:erectionof beacon lights, erectioiiof
markers,pearlfisheriesandoil drillingby BAPCO.
2.76 Saudi Arabia, for its part, relied largelyon the proximity principle, arguing that its
sovereigntyextendedto the places in dispute fyingnearerto its own shoresthan to Bahrain's.
Saudi Arabiamaintained with great tenacity al1along its preference for attribution of islands
or shoalsto the Stateto whose shoresthey lay closer.
2.77 The final settlement reached by the Agreement of 22 February 1958 relied on the
modified equidistance principle without taking into account the economic arguments
advanced by Bahrain. Saudi Arabia accepted to share the revenues abtained by the
Government in the area called the Fasht Bu Saafa hexagon, but it was specifically stated in
Article2 of the Agreement that: "It is understood that this shall not impair the right of
sovereignty and administration of the Saudi Arabian Govemment in the above-mentioned
areaw105
'0See, QCM,Annex 11.76Vol.2,p.417.
'O5QM, AnnexIV.262,Vol. 12,p.95. PART111
THE HAWARISLANDSANDOTHERTERRITORIAL QUESTIONS
CHAPTERIII
THE HAWARISLANDS
Section1.Introduction
3.1 Qatar has already shownin its Memorialthat it has original title to the Hawar islands,
and has describedthe various events indicating clearly consolidation of this title through its
recognition and confirmation by countries in the region including Bahrain itself, by the
Ottomans, and also by the British, certainly up to 1936 when Bahrain made a clairn to the
Iiawar islands soon after oil becarne a significant feature in the Gulf area'. Qatar has also
shown how the British gave unjustified credence to this claim, and has set out compelling
reasonswhythe Britishdecisionof 11July 1939is fimdamentallyflawed2.
3.2 Bahrain, however, as shown above3,has chosen to build up a fanciful image of the
Bahrain rulingfarnilyexercising "authorityand control" not onlyover the Bahrainislandsbut
over the entire Qatar peninsula,its adjoining islandas well as "al1the waters" between the
main Bahrainislandto the west and the Zubarahcoast and Hawarislands to the east4.Bahrain
further claims that even after 1871,when the Ottomansarrived in Qatar, the authority of the
Al-KhalifahChiefsreceded onlyfromaround Doha on the eastem coast ofQatar but not from
elsewhere5.Bahrain in fact carries these fanciful assertions to the extreme in claiming that
despite the provisions of the Agreementsof 1868,of the Anglo-OttomanConventionof 1913
andthe British-Qatar Treatyof 1916, therewas no effectivepolitical entitycalled"Qataru6.
3.3 With regardto the Hawarislands, Bahrain claims to show that its title to these islands
was confirmed by the British "adjudication"of 1939, which it contends is resjudicata. It
'See,QM, Chap.V.
See,QM, Chap.VI.
See,paras.1.31,etseq..and2.etseq., above.
BM,paras. 16-17.
BM,para.22.
"M, para.23.furtlierclaims that inany event, it has continuously exercisedmore than the appropriate level
of occupationand administrationrequiredby internationallaw7.
3.4 Qatarin its Memorial8has alreadygiven compelling reasons forits submissionthatthe
British decisionof July 1939to the effect thatthe Hawarislandsbelongedto Bahrainis wrong
and must be disregarded. It will show later in this chapter how the plea of res.judicutu is
unavailable to~ahrain'.
3.5 Bahrain'sother assertion in support of its alleged title -that it has exercised "control
and authority" over the Qatar peninsula and the adjoining islands - is a remarkable and
deliberateattemptat distortionof the historical factsand is dealt with more fully elsewherein
this Counter-Mernorial"'.
3.6 Qatar has shown that the Al-ThaniChiefs had already established their influence and
authority in Qatar at least by the rniddle of the 19thcentury. Afier a flagrant breach of the
maritimepeace followingupon Bahrain'sattemptto suppressby force an agitationin Qatar in
1867,the Al-KhalifahChiefof Bahrainand the Al-Thani Chief of Qatarwere prevailed upon
to enter into separate Agreements with the British in 1868, undertaking to maintain the
maritime peace. Qatar will elaborate and explain in the next Section some of the well
documentedhistorical facts and events leading up to the Agreements of 1868,the scope of
these Agreements and their significance for Qatar'stitle to the peninsula and the Hawar
islands". It will be shown that there is no substance in Bahrain's contention that the
formalisation, at the time of the 1868Agreements, of the arrangements for the payment of
tributeby the Qatar Chiefsto the Chief of Bahrain conf3nnedhim as the sovereign authority
on the peninsula; the proposed payments had no effect on Qatar's title since they were for
onward transmission to the Wahhabi Arnir and were in any event stopped altogetherafier
1871.The significanceof the Anglo-Ottoman Convention of1913 and the scopeand intent of
some ofthe provisions ofthe Treatyof 1916between Qatar andBritainas well as some other
See,BM, para1 1.
QM,Chap.VI.
See, paras.3.163eseq., below.
'OSee, paras.k02,etseq.,below.
" je, paras.3.17etseq., below.facts will also be considered to show how Qatar'stitle to the peninsula and its adjoining
islandshas been sustainedovera longperiod'2.
Section 2. Qatari title tthe Hawarislandsprior to 1936 and its recognitionby third
States
3.7 The Court will recollectthat Qatar has submittedin its Mernorialdetailed evidence of
the territorial integriof Qatar and its long-standing sovereignty over the Hawar i~lands'~.
Suchevidenceincludes,apartfiomthe Agreementsof 1868:
- numerous Ottoman documentsand maps showingthe extent of the respective
territoriesof QatarandBahrainthat clearly show the Hawarislandsas part of Qatar,
- express recognition of Qatar's title to the Hawar islands by local rulers
includingthe Rulersof AbuDhabi,Dubai andSaudiArabia,
- similar recognition by Baiirainitself (with its Ruler seeking Qatari permission
for Bahrainisto enterHawar),
- evidencefrornBritish archivesand documents including Lorimer's description
of the Hawarislandsas partof Qatar,
-
recognition of the territories of Qatar (obviously understood to include the
Hawar islands)by the Anglo-OttomanConventionof 1913,
- the description of the Hawar islands as part of Qatarin the British Admiralty
Surveyof 1915,
- the British-Qatar Treatyof 1916,
I2See,paras.3.4etseq.and3.44 ,tseq.below.
l3See,QM, ChapV.. - numerous maps from renowned publishinghouses in Europe similarlyshowing
theHawar islands as partofQatar,
and a nurnber of other documents in the British records which show that the
Hawarislands were alwaysregardedby the Britishaspart of Qatar right up until 1936.
3.8 There is additional evidence showing the~aw& islands as part of Qatar in a rnap
compiled after a geologicaI survey of Qatar was carried out at the instance of the Anglo-
PersianOilCompany(APOC)in 193314.
3.9 An aerialreconnaissanceby the RoyalAir Forceprior to the 1935British assuranceof
protection ofQatarterritoriesagainstaggressionfromland isfurtherevidence ofthis fact. 1tis
of particular significance that not only did the survey report cover Hawar and have a
photograph of Hawar attachedto itI5, but that the British Political Agent in Bahrain,Lt. Col.
Loch, accornpanied the RAFteam and in his letter dated 12 May 19341 r6porting on the
reconnaissanceof Qatarspokeabout the flight having "proceededover Hawar Island ..."17.
3.10 As indicated above, Bahrain has sought to challenge Qatar's title and assert its
ownership over the Hawar islands on two main grounds. Bahrain claims, firstly, that "the
historicaIgenesis of Bahrain'stitle to the Hawar Islands is Bahrain'soriginal dominanceand
authority over al1the territoriesin the Gulf of Bahrainand the Qatarpenin~ula1 "taternpts
to demonstrateon the other hand that the Al-Thani Chefs of Qatarhad only a restricted area
of influenceon the south-eastcoast of Qatarpeninsula in and around Doha and that the land
and the waters as wcll as islands to the Westof that area were somehow under Bahrain's
"authority and control"; and that Bahrain's authoritymet no opposition "whatsoeverin the
''QCM,Annex111.35,Vol.3,p. 183;xee,also,para.3.72(7)below.
l5QM, Annex 111.94, ol.6, p. 479.
'"CM, Annex 111.43Vol.3,p.237.
l7LochalsoStates"Studiouscare wastakennot to cross theSaudiArab frontierand theFlying Boatdid not fly
over eitherthe island (Zakhnuniya)or over the Gulf to the south of it"(ibid., at p.240) but no mentionwas
made at the time of any Bahrainiinterestin Hawareitherin the report or inthediscussionsheld withtheRuler
of Qatarin connectionith the reconnaissance.It isalso noteworthy thatthe British authorities neither sought
nor obtained permissionof the Ruler of Bahrain forthis reconnaissance.In view of this, Loch's roletwo years
laterin supportingBahrain'sclaimconharyto the earlierBritish position whichisdealtwith inthe next Section,
isal1themoresurprisingandintriguing.See, also,para.3.7bebw.
laBM,para. 345;emphasis added.Qatarpeninsula"'g.Bahrain contends, secondly,that the Dowasirtribe who were "subjects" of
the Rulersof Bahrainhad occupiedthe Hawarislands "on behalf ofthe Ruler of Bahrain"for
some 200 years and that this evidenced Bahrain'ssovereignty over the island2".While this
contention and certain other grounds mentioned by Bahrain are dealt with later in this
Chapter, it would be useful to begin by showing the lack of any historical or other factual or
legal basis for the first main contentionput fonvard to support Bahrain's claim to the Hawar
islandsbased on its alleged "dominanceand authority"overthe whole of the Qatarpeninsula.
Qatar will show that there has in fact been no such "dominanceand authority" and that any
political connection between Bahrainand the peninsulaas well as its adjoining islands cnded
wellover a centuryago.
3.11 Qatar has shown in its Mernorial the limited nature of Utubi presence on the Qatar
peninsula (near Zubarah)fiom 1766to 1783when the Al-Khalifah movedtheir headquarters
to Bahrain2'.There is hardlyanyevidenceof the involvementof the Al-KhalifahChiefs in the
territories of Qatar thereafter except for occasions when some members of the Al-Khalifah
family took refuge in the vicinity of Zubarah following internecine ~onflicts~~A . s noted in
ChapterII above,by 1809the Wahhabis had brought Qatarunder their rule and Bahrain itself
succumbed to the powerful Wahhabi influence which was then directed frorn Zubarah in
Qz~ta?~a ;nd in 1810the Wahhabi Governorshipof Qatif, Qatar and Bahrain was instituted,
with its headquartersin Bahrain. As shown above, Wahhabipower and influence in the area
continued intermittentlyuntil 1860~~F .urthemore, in the years following 1811, Rahmah bin
Jabr (whose hatred for the Utub of Bahrain was well known), in association with otkers,
including at times the Ruler of Muscat, engagedin various skirmishes with the Al-Khalifah
l9BM,para.20.
20BM,para.346.
21,TeeQM, paras.3.17-3.18.
l2,Teethe listthat Bahrain itselfprovidesin BM,para. 120of the occasionswhen variousmembersof tAl-
Khalifahfamily took refugeon the Qataricoastor planned attacks onBahrtobeableto returnthere. This list
isin no senseevidenceof exerciseof Bahrain'sauthorityover any partof the coastof the Qatar peninsula which
Bahrainattemptsto claim,but ismainly evidence ofthe useofthe Qatar coast asa refuge orto launchattackson
Bahrainin orderto be ableto returnthere. It is significantthat theHawar islandsarenot mentioned asa location
even forsuchuse.
''See,Lorimer,op. citQM,Annex11.5,Vol.3, pp. 197-198.
24See,paras.2.5-2.6,above.Sheikhsmainly from Qatarwhere "tothe present daythe westernand northerncoasts of Qatar
are dottedwith the remains offortsattributedto Rahrnal~"~~.
3.12 When the Bahrain Sheikhs signod the General Treaty of Peace of 1820, the British
appearedto think that the provisionsof the Treatyalso applied to Qae6. This in fact was
found not to be so. The provisions ofthe Treatyrequiredships belonging to thefriendlyArab
signatoriesto fly a prescribed flagand carry a register signedby the Chief(Articles 3 and 51,
which had to be produced ifa British vesse1met them. However, upon a visit to Al Bida in
1823, the British Political Residentfound that "thepeople seemed toknow very little of the
conditionsof the Treaty,andhad neitherflag norregister"fortheir boats2'.In fact,Bahrain, at
that period, farfrom beingcapableof exercising authorityover extensiveterritories,was itself
describedas a very weakand strife-tomentity2'.
3.13 Accordingly, Bahrain was itself constantly threatened fiom within, or under the
controlor influenceof, orthreatenedby, other powersinthe area.
3.14 It is instructive to note the view expressed by the First Assistant Resident in the
PersianGulf in 1873,referringobviously to theperiodpriorto 1868,whenhe stated:
25See,BM,Annex 83,Vol.3, p.445.
26Based presumably on a report compiled between 1821 and 1829by Captain Bmcks of the lndian Navy.
Bahrain makes the remarkable clairn that "By 1829, Britain had determined and accepred that the Rulers of
Bahrain held authority in the Qatarpeninsula"(BM, para. 116).Subsequentand more accurate sources referred
to hereafter clearlytradictthisclaim.
27QM,Annex II.15,Vol. 5,p. 17.
2SBy Captain Hennel in 1839as noted in Lt. Kemball's Memorandaof 1845(BM, Annex 6, Vol. 2, p. 78 at
page 88) where he States:
"The power of the Bahrein Chief has of late years been much weakened,by the contumacious conduct of his
sons, andthe divisions whichhave arisen amonghis other relations". Kemball himselfadds: "Sincethat period,
owing to the increased dissensions,and subsequent hostilitiesbetweenthe membersrelatives of the ruling
farnily,the population,prosperity,and commerceofthe islandhave gradually declined".
KernballdescribesBahrainas "lyingbetween "Ras Reccan andRas Timoora"(ibid.,atp.86) and that the "only
townsof any size in Bahrainare MunamaandMuharag" (ibid at,. 87)andnotes-
"...The bulk of the population of Bahrein, which is entirely distinct fiom the Uttoobees, who are Soonees,
consists of the aboriginal inhabitants, professing forthe most part the Sheea tenets of the Mahomedan faith.
These are greatly oppressed,andheld in a most degraded stateof vassalageby their Uttoobeemasters, of which
sorne conception may be fonned from a remark by the same authority [a former Political Resident, Major
Wilson]in 1829that 'theenomities practised by the Uttoobees towardsthe original inhabitantsof Bahrein far
exceed what1have everheardoftyrannyinany part of the world"(ibid a.,. 89). "FromwhatIhave heardwhilst livingin Bahrein,1should Saythat some years ago the
Naim, together with many other of the Guttur tribes, were in certain ways
dependencies of Bahrein; but the amount of authority exercised by the rulers of
Bahrein over Gutturseemsto have varied in proportionto the power of coercionthose
rulers possessed; if the Chief of Bahrein was strong the tribes acknowledged his
suprernacy;ifhe wasweakthcydenied it"29.
Lorimer also statesthat the Sheikh ofBahrain's"suzerainty"over Qatar by the middle
of the 19thcenturywasmoreapparentthanrealJO.
3.15 Moreover, it is clear that aroundthis time, such activities in Qatar as the Al-Khalifah
were able to engage in were of an oppressive nature and were leading to protests and
agitation. Mohamed bin Thani, in his capacity as Chief of the people of Qatar, in a
communication of7November 1854to Imam SayedSaeed,stated interalia:
"We inform you, mayyour honour besustained,that Al-Bida isal1right,through your
prayers; andthat the Al-Khalifahhavebeenoppressingpeo uplot. You maynot care
about the people of a country if it does not belong to you. We are awaiting release
from grief throughAllah's assistanceandy~urs"~'.
3.16 As already describedin Qatar'sMemoria13'and also hereafter, Bahrain's activities in
the area led a few years later to the Bitish efforts to disciplinethe Bahraini Sheikhs through
the signing of "the Friendly Convention" betweenthern and the British Political Resident on
31 May 1861. As has also been shown, friction between Bahrain and Qatarhad become
endemic in the first half of the 19th centuryand culminated in Bahraini attacks on Qatar in
1867which were regardedby the British as a violation of the 1861Conventi~n~~I.t is to the
backgroundto the eventsof 1867and 1868,andthe eventsthemselves,that this narrative will
''QCM,Annex 111.1 1,Vol.3,p. 73.
Lorimer,op.cit.QM, Annex 11.4Vol. 3, p141.Bahrain citesandrelies uponthe PersianGulfPilot of 1864
to suggestthat the Qatar peninsulawas at thattime some kind of vague dependencyof Bahrain. However.this
source is inaccurate toignificantextent and thereforeunreliablein this respect.Thus it will be seen that the
PersianGulfPilot of 1883 (afterthe OttomanshadoccupiedAl Bida in 1872)stillrefers to it as being "under
Bahrain" (QCM, Annex 111.1Vol. 3, p. 85).It is not untilthe edition of 1a9referenceis madeto "Bar
al Katr, which name applies to the whole of the peninsula. It is now claimed by the Turkish Governrnent"
(QCM, Annex 111.15 ,ol. 3, p. 89). In fact, the next editionoagain8erroneouslystates that "theKatar
Peninsula has recentlybeen declared a Protectorateby the British Residentat Bushire" (QCM, A111.17,
Vol..3, p. 99). It willthus beseenthat these descriptionsareofienwrongand inconsistentwith thoseof Lorimer
(1908) orthe BritishAdrniraltySurvey(1915).
" QM, AnnexII.17,Vol. 5,p. 33.
32QM, paras.5.2,et seq.now turn to show their particularsignificancefor the territorial integrity of Qatarand its title
to the entirepeninsulaas wellas the adjoiningislands.
A. Events leading up to the Agreementsof 1868andBritish recognition of theseparate
identities ofQatar and Bahrain
3-17 It wasfollowingthe conclusionofthe 1820Treatythat the British, goingbcyondtl~eir
avowed intent of simply protecting maritimetrade, began to take a particular interest in
Bahrain and to defend it against claims by foreign powers, notably Egypt in 1839, Persia in
1843,the Ottomansin 1847andthe Wahhabis in 185334.
3.18 In its Memorial Bahrain has referred only in passing to the Friendly Conventionof
1861betweenBritain andthe then Rulerof Bahrain,SheikhMohamedbin Kha1ifah3'Y . etthis
Convention is a significantpart of the background. It was concluded as a result of Bahrain's
blockade of Wahhabiports in that year,whichBritain viewed as a violationby Bahrain of its
treatyobligationsto keep the maritimepeace.Bythis Convention, the Ruler ofBahrain bound
himself, his heirs and successors to abstain from al1 maritime aggressions of every
description.In exchange,he was promised Britishsupportin the maintenance of the security
of his own possessions againstsimilar aggressions by the Chiefs and tribes of the Gulf. In
particular, the Ruler undertook, in the event of aggression against himself,his territories ur
subjects,that no act of aggressionor retaliation wouldbe cornrnittedat sea on othcr tribesby
Bahrainis or in the name of Bahrain, without the consentof the Resident or the British
Government.He alsoundertookto affordfullredress for al1maritime offenceswhich couldbe
charged againsthis subjectsor himself.
" QM, para.5.5.
34Lorimero, p. cit., QM,Ann11.5Vol.3,pp.269-273,288-89 and294.
35See,BM,para.20 and BM,Annex8,Vol.2, p.1IO.3.19 The 1861 Convention is thus further evidence of Britain's growing interest and
intervention in the activitiesof Bahrain.In the presentcase it is particularly significant,since
its violation by Bahrain was to lead ta the conclusion of the various 1868 Agreements,
whereby the British first farmally recognised the separate identity of Qatar under the rule of
Mohamedbin Thani.
B. Events of 1867 and1868
3.20 Bahrain's account in its Mernorial of the events of 1867 and 1868, while
acknowledging that the Al-Thani family had attained predominant influence in Qatar by
186836a ,ttemptsto showthat the entire episode ended in the Britishtaking steps to discipline
theAl-Thaniand Qatarrather than Bahrain and in fact confirmedthe Rder of Bahrain as the
sovereign authority on the penin~ula~~.It will now be shown, by reference to
contemporaneousdocumentation,thatthe oppositewas in factthe case.
3.21 It is particularly revealingto begin by referringto the letter of 7 December 1867from
Lt. Col. Lewis Pelly, British Political Resident in the Gulf, in which he reports the 1867
Bahrainiattackson Qatar to the Governent of Bombay:
"Itappears that the Chief of the Bahrain Islands, claimingsovereignfy over the ïegion
of Ganar on the neiglibouring Main Land of Arabia, plotted an attack on the
inhabitants of that region;and secured the aid of the Abuthaby Chief in making the
attack... The combined Chiefs then plundered the towns of al-Wakrah and Al
Biddah ..."38.
36BM, para.131.Infacttheyalsoleviedandcollectedtaxesonpeul fishingasshowntheOttomandocumenl
of 8 June1871(BM, Annexl6(a), Vol.2, p. 16-a documentwhichBahrainmisconstruesby referringto the
Al-Thaniasmere"taxcollectors".Suchtaxeswereclearlynotcollectedfor Bahra.ee,also thereportof the
OttomanOffice of theAssistantttheGovemrnentof Katarof 7 November1891 referringt"..the revenue
from pearlingfortheKazaof Qatarinthepearlfishingseasonis2,540,000.00Kiransandal1thetaxes received
includingthosefrom thediversarecoliectedonbehalf of ...BM,Annex48(a), Vol.2, p.243.
" BM, paras. 126-129.
''QCM A,nnex111.1, ol.3, p. 1;emphasisadded. 3.22 The British regarded this outrage as a violation of the 1862 Convention and a
challengeto their effectivenessin maintainingmaritime peacein the Gulf area3'.In addition,
there was regional condernnationof Bahrain'saction. Pelly, writing again on 4 ApriI 1868 to
the Government ofBombay,stated:
"3.The recent proceedingsof the Chief of Bahrainin regard to Kuttur have already
been reported and since that date both the Sultan of Muscat and the Wahabce
Lieutenanthavecomplained tome againstthis flagrantbreachof the peaceat sea.
4. Governrnentwill observethat the writing of theBahrain Chiefis remarkablypolite,
but his actions,as enumeratedin a long seriesof reportsfiom my predecessors and self
show that he is one of the most troublesome and least reliable subscribers to the
Maritime m ru ce"^'.
3.23 Another communicationof 23 April 1868 fiom Capt. A. Cotton Way, First Assistant
Residentin the PersianGulf, to the Resident,Lt. Col. LewisPelly,made a fuller report ofthe
1867outrageand recorded,inte rlia:
"4.OneAli bin Shamiral Naimiofthe Bedouinsof Guttar having beenseizedand sent
to Bahrein by Sheikh Ahmed bin Mahomed bin Sulman, the representative of the
Chief of Bahrein on the Guttarcoast for going to his tribes, the naims of Wakra,the
naims and the people of Biddah, Doha and Daugha [Doughaih?] combined and
demanded his release. This demand was refused, and they then determined to turn
Sheikh Ahrnedout of WaI~ra"~'.
3.24 Sheikh Ahmed, hearing of their determination, fled Qatar and reported what had
occurredto the Chief of Bahrain,who then invited Sheikh Jassimbin Mohamed of Qatar to
Bahrain for a meeting but onhis arriva1irnprisonedhim. There then followed the attacks by
Bahrainacrossthe sea (withhelp fromAbu Dhabi)duringwhich thetowns of Wakra,Biddah,
Dohaand Doughawere givenup to plunderand the inhabitantsof five tribes were ~cattered~~.
''See,Lorimer,op.cit.QM,Annex 11.5Vol. 3,p.301 wherehestates:
.
,,.the affair havingquicklycorneto be regardedthroughoutthe Gulf as a test of Britishpreparedntos
maintainpeaceatsea,it wasresolvedto inflictanexemplarypunishment upo the offending chiefsand notto
accepttheexcuse,which wouldprobablybe tenderedby ShaikhMuhammadt,hathe was entitledto punishby
any andeverymeanshisrefractory subjectsinQatar".
QCM,Annex 111.2Vol.3, p. 9;emphasisadded.
4'QCM, Annex 111.3, ol3,p. 13.
42See,ibid.However in the following year (1868),the Qatar tribes organised a retaliatory attack, and
nearly succeededin surprisingthe islandof Bahrain.
3.25 Subsequently, peace was restored when the Bahrain Sheikh's son who had been
captured by the Qataris was released after the Bahrain Sheikh undertook "to refrain for the
future from injuring Guttur".Reporting to the Governmentof Bombay on 22 June 1868,the
Political Resident observed:
"The root andpromoter of thwe disturbancesis ShaikhMohammedbin Khalffah, the
Head Shaikh or Chief of Bahrain, whose proceedings haveformed the subject of
reiterated cornplaintJi.omsuccessive BritishResidents during the past quarter qf a
century. On this subject, 1 would referto my letters now noted, and armost endless
previous correspondence scattered throughthe recordsofthis office ..."43.
3.26 Since these incidents were viewed as a serious challenge to the British ability to
maintain the maritime peace, C. M. Aitchison, then Offîciating Secretaryto the Govement
of India, stated in a teIegrarnto the Government of Bombay on behalf of the Viceroy and
Governor-General in Councilthat:
"Itis not a matterof surprisethat...the Guttartribes shouldhaverisen andretaliated on
Bahrain. Our interference to prevent aggressions,such asthose perpetratedby Bahrain
and Aboothabee,is not a matter of policymerelybut of expressobligation.The British
Governmentis bound,on informationof an act of aggressionby sea, to forthwithtake
the necessarysteps forobtainingreparation for theinjuryinflicted ..."44.
3.27 After being duly instructedto take strong action, on 2 September 1868Pelly served a
notice on Moharnedbin Khalifah, Sheikh of Bahrain, and while demandingcompensation of
300,000 dollars for Qatari losses and cornpliance withother terms of the notice, stated inter
alia:
"It is with great regretthat the ViceroyofIndia finds you increasingly deterrnined and
on a large scaleto disturb the Maritime peace of the Gulf in violation of the written
engagements intowhichyouhave entered.
43QCM, Annex 111., ol.3,p25; emphasisadded.
44QCM, Annex111.5 , ol3,p. 35. ..Youproceeded withan armedforceandplunderedand devastated theGutturtowns,
carrying off with you the principal Chiefof Guttur. A retaliatory attack being made
you fought at seaand thenagaindespatchedyourbrotherto attack the Gutturcoast.
It is my painful dutyto add thatif you refuseor hesitate tocomplywith these demands
they willbe enforced.. "45.
3.28 It was against this backgroundthat Pelly thereafter proceeded to Bahrainand Qatar
and secured acceptance ofthe Agreements of September 1868 by Chief Ali bin Khalifah
(recognisedas the new Chiefof Bahrainin place of Mohamed binKhalifah who was thereby
deposed) and Mohamed bin Thani, "themost infiuential man in the whole pr~rnontory"~~,
requiring Bahrain to pay compensationand both Chiefs to maintainthe maritime peace,thus
effectively prohibiting thern from interfering with each other's territoriesacross the sea that
separatesthese territories. Pelly also reported that by way offurther action against the Chief
of Bahrain, they had "destroyedboth fort and cannon and burnt [his] three war crafts, lying
immediatelyunderthe wallsof the ~01-t"~'.
3.29 As for the agreementsthernselves,while there were four ofthem intotal, Bahrain has
chosento concentrateon one ofthe least significant- the undertakingof 13September 186848
- while hardly mentioning the main Agreements signedon 6 September49 and 12 September
1 86S5 "espectiveiyby SheikhAli bin Khalifah of Bahrain and SheikhMoharnedbin Thani of
Qatar and failing even to exhibit the Agreement of 6 September signed by the Sheikh of
~ahrain". Bahrainappears to hope that in doing so, it will convincethe Courtthat the whole
purpose of the British in 1868 was, to use Bahrain's words, to compel the rebellious tribal
chiefs "to return to the Bahraini fold" and to "formally express their recognitionof the
authority of the Ruler of Bal-~rain"~B ~u.t it will be seen from the account given above that it
was Bahrain that was disciplinedby the Britishaction. Furthermore,the British perceptionof
45QCM,Annex 111.4, ol.3, p45.
46Lorimer,op.cit.QM,Annex11.5,Vol. 3,p. 208.
47QCM,Annex111.7V , ol,3, p.53.
BM,Annex 13,Vol.2,p. 159.
49QM,Annex 111.1,Vol.6,p.57.
BM,Annex12,Vol.2, p. 156.
''Thefourthagreement,signedbetween theBritishandthe Sheikhof AbuDhabion 16 September1868, is of
less significanceforthepresentcase(BM,Annex14,Vol. 2,p.161).
52See, BM,para.127.these events was obvious; as a result of the Agreementsof 1868, the territoriesof Qatar and
Bahrain were to remain separated without interference fromone or the other and their
integrity respected. The Political Resident's letter of 11 September 1868 to Moharned bin
Thani requests him to "continue towards Sheikh Ali bin KhaIifeh the peaceful relations
formerly subsisting between Bahrain and G~ttar"~~.Not only are Bahrain and Qatar
distinguishedhere as separateentities,but there is no hint of any subordinationof the latter to
the former or vice versa. Similarly, the Agreement itself neither states nor implies any
acknowledgmentby Mohamedbin Thani of anyBahrainiauthorityeitherover himselfor over
anypart of the territoryof Qatar.On the contrary,the provisions of the Agreement which, for
obviousreasons,are not mentionedby Bahrainshowthat Mohamedbin Thaniwas recognised
as being on an equal footing with the Chief of Bahrain, and not as a subordinate in a
hierarchicalrelationship.
3.30 Some fiftyyears later, Lorimer, writing his well-known account of these events also
confirrnedthis position andstated:
"In 1868direct negotiationstook place betweenthe British Governmentand the tribal
Shaikhsof Qatar; and,in the result, the interestof the Shaikhof Bahrain in Qatarwas
limited ta the receiptof tributes probably on behalf of the WahhabiGovernment of
Najd. In 1872,the Turks establisheda garrison in Dohah;and with the cessationof the
Wahhabi Zakat the political conneetion, such as it was, between Bahrain and Qatar
cameto an end".54
In fact, inthe samework,Larimerdescribesthe boundariesof Qatar as follows:
"Boundaries .Onthe east,northand west Qataris surroundedby the sea. The southern
boundaryis somewhat indeterminate..." 55.
Similarly,in a reportof 1905,CaptainPrideauxnoted:
"...we recognize that our interests in the Katr Peninsula are purely confined to the
maintenanceof orderalong itscoastsand on the adjacentseas..."56.
5'QM,Annex 11-27, ol.5,p.79.
'4Lorimer,op. citQM,Annex11.4,Vol.3, p. 141.
55Ibid.,p. 113.
56BM,Annex71,Vol.3, p.355, atp. 358.3.31 It is accordinglyQatar'ssubmissionthat one ofthe major objectsof the Agreementsof
1868 was to protect the territorial integrity ofQatar and its coasts, including its adjoining
islands, against attacks from across the sea. The British actionin enforcing separationof the
two entities, together with the written engagements in 1868 by the Chiefs of Qatar and
Bahrain not tocommita breach of the maritimepeace also amounted toBritish recognition of
the separate identities andthe integrity of the territories of Qatar and t al ira inA^s.this
recognition was in the context of the maintenance of maritime peace, it clearly covered the
coasts and the islands adjoining mainland Qatar and therefore the Hawar islands, most oî
which lie within Qatar's territorial waters. A contrary view would deprive the 1868
Agreements ofanymeaningorpurpose.
3.32 This British recognition was reiteratedon numerous occasions over the next seventy
years or so, in the context of the repeated British denials of Bahrain's allegedclaims to
Zubarah on the mainland of Qatar. The British therefore reiüsed to allow any Bahraini
interferenceacrossthe seaon the mainlandand infactmade suchnon-interferencea condition
forBritish protectionofBahrainwhichthe Ruler expresslyaccepteds8.
3.33 A finalword mustbe said about Bahrain'sinsistencethat the 1868Agreementsdid not
constitute treaties betweenBritain and sovereignpolitical entitiessg.Whatever Bahrain might
argue with respect tothe lackof formalities,itis clearthat theseAgreements -at leastthose of
6 and 12 Septemberwith Ali bin Khalifahand Moharned bin Thani, respectively, and that of
16 Septernber with the Ruler of Abu Dhabi -were considered by al1concerned as binding
treaties.Thus, not only were they included by Aitchison in his Collection ofTreaties,
EngagementsandSanads",publishedunderthe authority ofthe British Governmentof India,
Bahrain'sattempt(BM,para.134)to showthat in 1870MoharnedbinThani wasstilldeclaringhimselfbe a
"subject" of the Rulerof Bahrain relies only on thelatedpurport of a letter" which is obviouslyquotcd
without showing the contextor producing the Arabic original.After the events of two years earlier involving
devastation ohishomeland, irnprisonmentof his son and the savage cruelties inflicted on his followers, the
statenientisnot credible.
See, paras.5.1etseq., below.
59See, BM, para.129.
Treatiesand Engagementsrelatingto Arabiaand the Persian Gulf; compiled by C.U. Aitchison,Vol. XI,
Archive Editions, 1987.but the Agreement of 12 September 1868 was confirmed by the Treaty signed in 1916
between the British Governmentandthe Rulerof Qatar6'.
C.Payment of "tribute"
3.34 Before leaving the events of 1868and British recognitionof the separate identities of
Qatar and Bahrain, it would be appropriate to deal here with Bahrain'scontention that the
formalisationin September 1868ofthe tribute payable by the tribes of the Qatar peninsulato
the Chief of Bahrain confirmed him as the sovereign authority on the peninsula. This
contention is clearly wroiig,having regardto the content of the two main Agreements signed
almost simultaneously between the British and Ali bin Khalifah and Mohamed bin Thani,
respectively.In fact the 13Septemberundertakingis ancilla torthoseAgreementsand, while
it contempiated the paymentof certain sums of money to the Chief of Bahrain by Mohamed
bin Thani on behalf of Qatari tribes, it had no effect on the independence of Qatar vis-à-vis
Bahrain. Thesignificanceof this so-calledformalisationof the tribute payable to the Chief of
Bahrain came up for consideration upon the arriva1of the Ottomans in Qatar in 1871, i.e.
3years after the 1868Agreements,when IbnSaudappearsto have demandedthese payments
fiom the Ottomans who in turn addressed an inquiry in this regard to the British. In dealing
with theTurkish inquiry, the Political Resident, ColonelPelly,referringto the events of 1867
and1868,informed the Governmentof Bombaythat at the time:
"Government,as Arbitratorsof the Maritime Peace, intervened; andin settling affairs,
arrangedthat, in view topreventingcollisionbetween Gutturand Bahrain,and in view
to further precluding the possibility of future uncertaintyas to whether the Annual
Tribute falling on Guttur had orhad not been dulypaid - such Tribute shouldbe paid
through the Residency.
7. In the present year, however,andhaving regardto the distractedconditionof Guttur
consequent on the Turkish Invasionof the Arab Coast,1refiained from demanding the
Tribute.
8. Had 1demandedandreceived it -It would have beenhanded over by this Residency
to the Chief of Bahrainwho would have transmitted it as a portion of the Tribute
whichhepays to whomeverhe rnayacknowledgeas Imamof the Wahabee~.,."~~.
61BM,Annex 84,Vol.3,p.512.See,paras.3.44, et seq.,below.
62QCM,Annex 111.V,ol.3, p.57.3.35 Based on the above, in a report of 28 October 1871 from thePolitical Department to
C.M.Aitchison, Secretaryto the Governmentof India,ForeignDepartment,it was statedinter
ah:
"...it is shownthat the arrangementas to the tributepayableby Gutturto Bahrain isto
be considered not toaiffct theindependenceofGutturin relation toBahrainbut is to
be considered a fixed contribution by Guttur and Bahrain combined in view to
securing their fiontiers fiom molestation by the Naim and Wahabee Tribes more
particularlyduring the Pearldivingseason" 63.
3.36 Thesedocumentsshowthe tnie nature of the "tribute"payable. It will be apparentthat
the arrangement for the payment ofthe tribute by the tribes of Qatar in 1868to the Chief of
Bahrain for onward transmission tothe Wahhabi Amir could not and did not involve any
question of recognitionof Bahrainisovereignty over Qataror, for that matter, of the Wahhabi
Arnir'ssovereignty overeitherBahrainor Qatar.
3.37 Despitethe position describedabove, the issueof tribute was saught to be revived by
the Ruler of Bahrain at the time of the British negotiations with the Ottomans in 1913.
Bahrainclaims that whenthe 1913Anglo-OttomanConvention (referredto below)was being
negotiated:
"the Ruler of Bahrain reopened with Britain the question of his right to levy tribute
fTom'Qatar'in accordancewiththe termsof the 1868document...",
but goes on tostate:
"..Thereis no recordof Britain'sultimateview of the matter ...64.
''QCM, Annex 111.9,Vol. 3, p. 63; ernphasisadded. 71iisletteris also evidenceof the fact that Bahrain itself
paid a portionon its ownbehalfto the WahhabandtheNaim to secureprotectionagainstmolestation.Bahrain
wasonlya channelfor the consolidatedpaymentand was inno sensepayingfor the protectionof the Ruler's
"subjects"in the Qatarpeninsula(as claimed in the BM, para.125). Furthemore, interestingly,this letteralso
makesit clear thata part of "tribute" wpayableto the Naimfor protectionof both BahrainaQatar from
molestationby that tribe during the pearl-diving seasonwhen other tribes wereaway. See, al5.19(1),.
below.
64BM,para. 192.3.38 In fact Bahrain should have been aware that the Government of India gave the
followinginstructionsto tliePolitical Resident on31July 1913:
"1am directed to invite a reference to yourtelegram ...in which you report that the
Shaikhof Bahrainis contemplatingthe possibilityof revivinghis claim to levy tribute
onthe Shaikhsof El Katar,
2. This claim which was previously only exercised for two years and has not been
enforcedsince 1870,in view of article 10 of the draftAnglo-TurkishConvention and
inparticularof the following sentence:- 'LeGouvernementde sa Majesté Britannique
déclarequ'il ne permettra pas au cheikh de Bahreine de s'immiscer dans les affaires
intérieuresd'ElKatr',is onewhichis clearlyinadmissible.
3.1 am to request thereforethat you will firmly resist any such interferenceshould it
be attempted"".
3.39 The documents quoted above thus clearly dernonstrate that the payment of tribute
carriedno implicationthat Bahrainhad sovereignty overany partof Qatar.
D. Anglo-Ottoman Conventionof1913
3.40 Bahrain's treatrnent of the Anglo-Ottoman Convention of 191366is similar to its
treatment of the 1868Agreements. Here again, Bahrain practically ignores the main text of
the Convention,which it dismissesas an unratified treaty, only to concentrateon an ancillary
document,the secret declarationwhereby the Ottomans undertook topay £1000 to the Ruler
of Bahrainin compensationforhis renunciationof all claim toZakh~uniya~~O . f the substance
of the Convention itself, a11Bahtain can Sayis that "what was at issue in the relevant part of
the Anglo-Ottoman negotiations was the future of the Ottoman province of 'Qatr',in other
words Doha and itsenviron~"~'.
3.41 The historical facts show that the "Ottoman province of 'Qatr"'encompassed 111uch
more thanjust "Dohaand its environs"69T . hatthe Anglo-Ottomannegotiationsconcernedthe
65QCM, Annex 111.20, ol. 3,p.11.
" BM,Annex 81, Vol.3, p.425.
67Foran accountof the difference between Bahrainand Saudi Arabia overZakhnun,ee,paras. 2.67et seq.,
above andQCM, Appendix 2, Vol. 5,p. 145.
68BM, para.194.
See,paras.2.8etseq. and 2.28etseq.above.whole peninsula is also evident from the text of the Convention itself which, even though
unratified, is nevertheless of considerable evidentiary value. In fact the artificiaiity of
Bahrain's continued insistenceon the alleged limited extent (if Al-Thani authority becomes
ever more evidentas one reads the Convention. Article Il was also mentioned in the Anglo-
Turkish Treaty of 1914 which was ratiFied7',and contains no fewer than three referencesto
thepeninsulaof aI-Qatar.It is thereforequite clear that what was at stakehere was the whole
pcninsula, without excludingthe adjoining Hawar islands. It may be notcd that Article 11
expressly recognises the continuityof Al-Thani mle over the whole peninsula when it
provides that "the peninsula will be govemed as in the past by the shaykh Jasim-bin-Sami
[sic and his successors". Finally,it may also be noted that the Ruler of Bahrainwas to be
prevented fiom interferingin the "interna1affairs of al-Qatar",which in the context can only
be understood to mean that he was to be excluded from the affairs of the entire peninsula
including itscoasts.
3.42 The Court will recollect that the British PoliticalAgent in Bahrain, Major Prideaux,
had visited Zakhnuniya md the Hawar islands in March 1909 when there was some
apprehensionasto Ottomandesigns with respect tothese islands. Major Prideaux wasanxious
that the Ruler of Bahrain should lay claim to both Zakhnuniya and the Hawar islands to
enabie the British to counter the Ottoman designs. However, the Ruler of Bahrain
immediately thereaftermade a claim in writing to the island of Zakhnuniya but not to the
Hawar islands7'.Itwas for this reasonthat four years later, Article 12of the Anglo-Ottoman
Convention of 1913 made a special provision to the effect that the inhabitants of Bahrain
would be allowed to visit Zakhnuniya forfishing purposes during the winter, and Bahrain
renounced any other claimsto that island against a payment made to it by theottoman^ ^t .
the sarnetime, in ternis of Article 13,the British securedrenunciation ofal1Ottomandaims
to the islands of Bahrain including the two islets of Lubainah al-Saghirah and Lubainah al-
Kabirah as well as Ottoman recognition of the independence of Bahrain. The British
Government for its partalso declared that it had "no intention of annexing the islands of
Bahrayn to its territ~ries"~~. owever, while such specific provisions were made regarding
70See, QM,para.3.58.
7'See, QM,paras.5.39-5.40.
72See, BM,para.430.
73See, QM,para.3.56.Bahrain and the islands it claimed, no reference or provision was made in respect of any
Bahraini claim or potential claim to the Hawar i~lands~~T .his was obviously because the
Hawar islands were recognised andtreated as being part of the territories of Qatar in which
the British undertook underArticle 11of the Convention not toallow any "interferenceof the
shaykhof Bahrayn".
3.43 There is other clear evidence demonstrating that the British regarded the 1913
Convention as reinforcing the independenceand integrity of the territories of Qatar. This is
apparent from the British attitude and action following the death of Sheikh Jassim in 1913.
When the Viceroy cornrnunicatedto the India Office news of the death of Sheikh Jassim on
17 J~ly'~,the India Office proposed to the Foreign Office that the Political Resident (Cox)
shouldbe giventhe followinginstructions:
"the new Sheikh &, if necessaty, Bin Saud,sd. be inforrnedthat H.M.G.will allow no
autside interferencein the affbirs of Katr. It sd. be made clear to the latta that any
attemptto interferewill be forciblyresisted,while the former mightbe told that he has
nothiilgto fearfromthe TurksuT6.
This proposa1was clearly based upon the policy recorded in a Minute of the India
Office of 12 August referring to the death of Sheikh Jassirn and the "possibility that the
Peninsulawill be occupiedby Bin Saud"stating,interalia:
"This must be nipped in the bud. We are bound by our agreement not to allow the
Sheikh of Bahrein to annex El Katr - and afortiori not Bin Saud, a Turkish rebel.
Moreover we have not succeeded in getting the Turks outof El Katr (on paper, at al1
events)forthe solepurposeof lettingsomeone elsein, withoutour
Again, aftcr Bin Saudhad occupied Hasa and sought assurances from the Britishof
continuing good relatioi~s'~,the Viceroy advised London in his communication of
5 September 1913,that he had authorisedCox to replyto Bin Saud,interdia, as follows:
74Or to Zubarah, espitethereferenceinaBritisdi@ memorandum of July1911, as pointedoutby Bahrain
(BM, para.192),to "ElKatr,wheretheSheilchofBahrein hasimportantrights". ny suchrightswereclearly
consideredwithoutsubstanceandignored.
75QCM,Annex111.21 ,ol. 3p.115.
76QCM,Annex111.22V , ol.3, 119.
77QCM,Annex111.23V , ol.3,p. 123.
See, QCM,Annex111.19V , ol.3, p. 107. "'Meanwhile 1have my Govemment's authority to assure you that, provided you
undertakeon your part toabstainfromal1actioncalculatedto disturbthe srutusquo, or
to create unrest arnongst Arab principalities whose mlers are in relations with His
Majesty's Government, including principalityof Qatr, independenceof which under
the governmentof the late SheikhJasim and his successorsof the Bin Thani has been
recently recognisedby British and Turkish Governments,the British Governmentwill
continueto maintainfriendlyrelationswhichhave been sustainedinthe pa~t""~.
E. British-QatarTreatyof 3 November1916
3.44 Bahrain contends that there is nothing to indicate that for the purposes of the 1916
British-Qatar Treaty the entire peninsula was regarded as part of Al-Thani territoriesaO; it
further contends that the Ruler of Bahraincontinued to exercise authority overthe Zubarah
region8'.Bahrain thus takes the position that partof the peninsula (and the adjoining Hawar
islands) continued to remain under its authority. That this contention is wholly without
substancewill be apparentfrom thefollowing:
(1) A particularly striking example of Bahrain's effortsto distort the presentation
of historicalfactsby using selectivequotationsanddeliberately ignoringothermaterialsis the
reference to certain events of 1903-04whenthe British were considering whether itwould be
appropriateto offerprotectionto the Al-ThaniSheikhsin return for makingthem responsible
for maintaining peace arnongst theinhabitants of Qatar and preventing any piracies off the
Qatari coast. Bahrain reproduces a passage recording the opinion of one British official
(Mr. Gaskin) to the effect that he "thought the influence of the Thani family was likelyto
decreasein ~atar...""but neglects to point out the opinionof his superior, Colonel Kemball,
on the ncxt page to the effectthat he was "inclinedto doubt if it is the case that the influence
of the Thani familyin Katar is rapidly ani in^... " ^hr.in also fails to cite the fonnal view
expressed tothe Foreign Officein March 1904by the Governmentof Indiathat the Al-Thani
''QCM,Annex 111.24,ol.3, p. 127.
'OBM,para.217.
" BM,paras.220,et .seq.
BM,para. 154,andBM,Annex 70,Vol.2,p.285,atp.343.
''BM,Annex70, Vol.2, p.285,atp.344.Ruler's"authority is sufficientlyestablished arnong the tribes to justifj the conclusion of an
Agreement withhirn,shouldit be thoughtadvisableon groundsof policyMS4.
It is also of interestto notethat in his historicalaccountof Qatar,Lorimerobserves:
"ln Novernber 1905,through a visit by Captain Prideaux, Political Agent in Bahrain,
much light was cast upon theadministrativeposition in Qatar. It appeared that Shaikh
Jasim,though for five or six years he had been living in retirernent atLusail and had
nominally abdicated boththe Qaim-Maqamshipand the chiefship, was still in reality
ruler of Dohah and al1its dependencies,and that nothing of importance was done in
Qatar withouthis being con~ulted"~~.
Article 11 of the Anglo-OttomanConvention of 1913 which provided that the
(2)
"peninsula"of Qatar would "be governedas in the past by shaykh Jasim-bin-Sami [sic] and
his successor~"~c ~learlyrecords andis evidenceof the British understandingthat the Al-Thani
ruledthe entirepeninsula andits adjoiningislands(asno exceptionsweremade).
(3) Before entenng into the 1916 Treaty, the British undertook a careful
examination to assure themselves that they would be entering into an arrangement with an
authority with whom an effective Treaty could be entered into. Thus, in a communicationof
22 August 1914from Major Knox (the officiating Political Resident) to the Goverment of
India, it was stated:
"With referenceto your telegramNo. 436-S., dated 18thJuly 1914,regardingQatar, 1
have the honour to state that reports from the Political Agent, Bahrain, confirm my
first impression that there are no Shaikhs except the Al Thani farnily with whom it
would be worthwhileconciudinga treaty"".
(4) By then, the British had repeatedly refused to recognise any Bahraini rights
over any part of the Qatar peninsulaand had in fact made it a condition of providing British
protection for Bahrain that the Ruler of Bahtain must refrain fi-om any interference in
mainlandQatar,a conditionthatthe Rulerhad accepted.
84Ibid .tp.345.
" Lorimer,op.ccitQM,Annex 11.5Vol.3, p.232.
QM, Annex 11.44Vol.5,p.151.
B7QCM, Annex111.25 ,ol.3,p. 131. (5) The provisions of the Treaty itself (as did those of the Agreements of 1868)
obviously covered the whole peninsula and the adjoining islands. Article 3 placed an
obligation upon the Rulerof Qatar to forbid the import and sale of arms "into rnyterritories
and port of Qatariisx. rticIe4 prohibitedthe Ruler withoutBritish consentfrom ceding to any
other power or its subjects "land either on lease, sale, transfer, gift, or in any other way
whatsoever".Article5 containinga prohibition againstthe grant of pearl fishery concessions
or other monopolies, concessionsor cable landing rightsas well as the requirementin Article
6 not to charge custom duty on British goods at a rate higher than on ~atari'subjects, al1
clearly applied to the entire peninsula of Qatar, its coasts, and its adjoining islands. Most
significantly,the obligation of the British Governmentunder Article 10to protect the Ruler
and his subjects and territory "from al1aggression by sea" must necessarily cover the whole
peninsula and the adjoining islands includingthe Hawar islands just as much as did the
Agreementsof 1868.
3.45 In this contextit is also instructive toreferto a report whichgives a clear indication of
the British understandingof both the Anglo-Ottoman Conventionof 1913 and the British-
Qatar Treatyof 1916andstates interalia:
"1. ..The status of the Peninsula fonned the subject of lengthy discussion in the
period priorto 1908 ...
2. The vexed question of the status of El Katr was finally disposed of in the Anglo-
Turkish negotiations of 1912-14.Under the unratified Anglo-Turkish Convention of
29th July 1913,the Ottoman Governmentrenouncedal1rights tothe Peninsula,which
was, as in thepasl, to continue to be governedby the Sheikhs of the Thani family,
while His Majesty's Government engagednot to permit the Sheikh of Bahrein to
interfere in thenterna1affairsof El Katr, ta theaten its autonomy or to annex it. A
supplementary article reserved the rights of the inhabitants of Bahrein to visit the
islandof Zakhnuniyahfor fishing purposes,as in the pastg9.
3. A new situation arosewith the conquestof Hasa by Ibn Saud in the courseof 1913.
El Katr, like the Oman coast, formed, in his view, partof his ancestral domains, to
which he could therefore prefer a claim as of right. But the Arnirwas warned at the
end of the year that non-interference withEl Katrwas a condition of the maintenance
" QM,Annex 11.47Vol.5,p. 181.
'%s alreadynotedno suchreservatioinfavourofBahrainwas madein respectoftheHawarislands. of friendly relations withHis Majesty'sGovernment, andno difficulty in consequence
arose. The conclusion of a forma1 treaty between El Katr and 1-IisMajesty's
Government, which, other considerationsapart,was in the irnmediatelypre-war period
of much importancein connectionwith the armstrafic, was postponed until thefinal
ratification of the Anglo-TurkishConvention, and so had not been disposedof on the
outbreakofthe EuropeanWar.
6. ..Lengthy negotiation proved necessary beforea satisfactory agreement could be
reached, and it was not until 3rd November 1916 that a treaty was finallyconcluded
betweenthe Sheikh and His Majesty'sGovernment.Thetreaty ..secured to theSheikh
the advantages conferredunder the Trucial treaties on the Sheikhs of Trucial Oman,
while imposingon him the obligations in regard to piracy, the slavetraffic, the arms
traffic, the grant of concessions,the cession, sale, gif't,Iease ortransfer of territory to
other Powers, and the maintenance of relations with foreign Powers already accepted
bythose Chiefs ...
7. The one respectof importancein which the treaty went beyond the normal type of
Trucial treaty was that it contained an undertaking that the good offices of His
Majesty's Government shouldbe granted to the Sheikh in the event of unprovoked
aggressionagainst him by landwithinthe territoriesof Katr (ArticlXI)" 'O.
This report therefore clearly recorded the British and Turkish position recognising
Qatar as constituting the whole peninsula and its adjoining islands including the Nawar
islandsandnotjust "the areaaroundDohaTown"as claimedby Bahraingl.
F. Otherevidenceof Britishrecognition
3.46 As alreadyshown in Qatar'sMernorial,the geographicaldictionary of the Gulf Region
compiled by Lorirner in 1908had listed the Hawar islands under Qatar92.Furthemore, his
description at that time of the Sheikhdomof Bahrainis shownas consistingof islandsthat do
not include the Hawar islands. Prideaux (who participated actively in the preparation of
Lorimer'scompilation)had failed in an attempt in 1909to instigate the Ruler of Bahrain to
claim Hawar so as to protectthe islandfi-omTurkishdesigns.A surveyby the AdmiraltyWar
Staff (Intelligence Division) of 1915 had also included Hawar in the description of the
" QCM,Annex 111.57,ol. 3, p.33emphasisadded.
" BM,paras.193-194.
92QM, para.5.38.territory of ~atd~. The conclusion must therefore follow that the British at the time of
signature of the 1913 Anglo-Ottoman Convention and the British-Qatar Treaty of 1916
recognised the Hawar islands as included in the territories of Qatar. This position was more
expressly consideredandreiteratedin subsequentyears on a nurnber ofoccasions:
-
a BritishIndiaOfice report of 1928,
an IndiaOfficeletterof 3 May 1933,
- a map requested by the Secretary of State for India and suppliedby the
Political Resident on 4 August 1933 showing that Bahrain'sterritories did not include the
Hawar islands,
-
the acting Political Resident loch)'^telegrarn to the Secretary of State for
India of 31 July 1933that "HawarIsland is clearly not oneof the Bahrain group"with which
the India Officeagreed,
the R.A.F.reportof 1934,
- and the APOC-QatarConcessionAgreementof 1935,
al1of which have been describedin some detail in Qatar'sMern~rial~~ and to some of which
furtherreferenceis made in Section4 ofthis Chapterbelow9*.
G. Regional recognition
3.47 Qatar has cited numerousdocumentsin its Memorial showing that a number of rulers
in the Gulfregion, includinginparticularthe Ruler of AbuDhabi, SheikhZayedbin Khalifah,
repeatedlyacknowIedgedQatar'ssovereignty overthe Hawar islandsand, upon inquiries from
93QM,para. 5.44.
9sQM,paras. 5.4a8nd6.18,et seq.
Paras.3.60etseq.,below.OttomanValis,infomed them a~cordingly~~ E.venthe Ruler of Bahrain openly acknowledged
Qatar'sauthority and controlover Hawarin the earlyyears ofthe 20" century".
3-48 It is rnost significantthat Bahraindoes not even suggest in its Memorialthat there was
anyrecognitionof its claimedownershipof Hawarby anyotherruler in the Gulfregion.
Section 3. Bahrain'sillegaloccupation of the main Hawar island
3.49 Qatar has alreadyshown in its Memorial that onceoil became a significantfeature in
the Gulf area, the Ruler of Bahrain began to implement well-laid plans to maximise the
territory over whichhe could claim sovereign rightsandthereby grant valuable concession^^^.
To this end, Belgrave and others had already been engagedin activities from 1930 onwards
with a view to eventually advancing a Bahraini claim to the Hawar islands. These activities
involved,intea rlia, the tenderingof evidenceof doubtfulvaluedesignedto supportthe claim.
Bahrain first formally made itsclaim to the Hawarislands by a letter from Belgrave to the
British Political Agent on28 April 1936,expressly making referenceto the negotiations for
anoil concession9~A major and glaring omission in Bahrain's Memorialis anyreferei~ceto
this express and sudden claim and the "provisional"British decision of July 1936that these
islands belonged to Bahrain, a decision in total contradiction of the position taken by the
British on numerous occasions priorto 1936. This deliberate omission is the subject of a
detailedexaminationinthe next Sectionlao.
3.50 Qatar hasalreadysubmitted in its Memorialthat when Bahraincame seriouslyto press
its claimto the Hawarislands,it did sothrough a clandestineoccupationby moving agarrison
ta the main island; and that this occupation took place some time after Bahrain had made a
96QM, ChapterV.
q7QM,paras. 5.49,et seq.
" QM,paras.6.3 1,etseq.
9PQM,AnnexIII. 103,Vol. 7,p.15.
Paras.360,etseq.below.written claim to the Hawar islands on 28 April 19361°'.Bahrain's aggression and hostile
occupation of the main Hawar island,being illegal, cannot therefore sustain its clairn to
sovereignty over the islands.
3.51 As alreadyshownin Qatar'sMemorial,the negotiationsin respect of anew concession
covering Bahrain's unallottedor additionalarea were undertaken between 1928 and1933Io2.
The negotiations for the unallotted area were suspended in the second half of 1933 at the
request of BAPCO which had sought an extension of its 1925 exploration concession.The
negotiationswere then resurnedin 1936.It was at this stage thatBelgrave addressedhis letter
on 28April 1936containingthe Rulerof Bahrain'sfirstformal claim to theHawarislands.
3.52 It would seem likely that Bahrain'sillegal and clandestine occupation of the main
Hawar island took place shortlyafler the Zubarah incidentof 1937which soupset the Ruler
of Bahrain, and which also resulted in the suspension of the oil negotiations over the
"additional area" of Bahrain not coveredby BAPCO'sexisting concession. At this stage, the
Ruler of Bahrain and Belgrave were already aware that Britain had provisionally decided in
favour of the Bahrain claim to the Hawar islands, and obviously decided to occupy the
islands.Thus,Bahrain itselfnowadmitsthat afierthe Zubarah incidentin 1937:
"Bahrainincreasedits militarypresence onthe HawarIslands andconstructeda police
fortthere"Io3.
3.53 In factthe evidenceshowsthat Bahrain didnot merely "increaseits military presence"
but illegally occupied the main Hawar island. Bahrain took a number of other steps to
establish controI over the islands that the Ruler of Qatar later characterisedas aggression in
his letter of protest of 27May 19381°4T .he evidence of the occupation of the main Hawar
islandby Bahrainin 1937includesthe following:
'O'QM,paras.5.58-5.59.
'O2QM,paras.6.16,etseq.
Io'BM,para.349.
'" QM,AnnexIII.157,Vol. 7,p.285. As Bahrainadrnits,it moveda policegarrisonto Hawar.
(1)
(2) When the Ruler of Qatar complainedof assistance by Bahrain to insurgent
subjectsof Qatar,Belgraverepliedon 19August 1937to the Political Agentthat Bahrain had
only been givingfood etc. to theNaim and also stated:
"Armsand ammunitionwere issuedby the Bahrain Governmentto al1the villages on
the south coast of Bahrainand to the guardswho grnison the Hawar islands whenthe
disturbancesin Qatarbegan"lo5.
(3) A letterfromBelgraveof 10November 1937to the "HeadNatur at Hawar":
"Onno accountare anypeople, Europeanor Arab, from Qattar coastto be allowed on
anyof the Hawarisland~"'~~.
(4) A Police Order issued by Belgrave on behalf of the Bahrain Government on
1February 1938that anyonecuttingwood or pulling grass on Hawar and taking it to Bahrain
wouldbe arrestedI0'.
(5) A letter from Packer of PCL of 19 February 1938 to Belgrave reporting an
incidentin which:
"a hireddhow ...returning from Zekrit and tacking close to Hawar reports that two
sbotswere firedat her by Bahrain Policeon Hawar~sland'''~~.
The letterwentonto state:
"...1 thought you would like early information as these incidents when highly
exaggeratedmay leadto troubleespecialy nowthereare 300 Bahrainisin Iia~ar""'~.
'O'BM,Annex 158,Vol. 4, pp.729.
'O6BM,Annex249, Vol. 5,p.1077.
'O7BM,Annex251,Vol.5,p. 1079.
losBM,Annex252,Vol. 5,p. 1080.
'OVIbid.;mphasisadded. (6) The Government of Bahrain's Annual Report for the year 1937-3S11w 0hich
draws particular attention to the fact that "theZubara affair" during the year was one of thc
events of outstanding importance and that there wasan increase in the Police force(partlyfor
Hawar); it alsonotedthat:
"The fort and pier at Hawar werecompleted atthe end of the year with theexceptioii
of someworkon the courtyardwaH ...
Expenditureon the Hawar Fortwas not allocatedin the 1356 Budgetbut during the
year it was decided that the Police post at Hawar should be strengthened andthat the
garrison shouldbe housed in morecornfortablequarters in a building whichwould be
of militaryusein caseof anyemergency ...".
(7) Police Orders fromBelgrave of 24 May 1938 regarding the posting of and
issue ofarms andarnrnunition tothe Hawargarrison,etc. and stating:
"...When available oneVery Light Pistol will be issuedto the N.C.O., in Chargeand
one large mirror,these to be used by dayand by night forsignallingto Bahrain should
any emergencyoccur.
The inhabitantsof Askar, Jaw and Door must be informed that if at any time they see
signals by Very Pistol or by glass fromHawar they must instantly notiQ the Foa in
Manama,by teleplionefromnearesttelephoneavailable"'".
It is important to recollect that the Ruler of Qatar complained of Bahrain's
(8)
occupation ofIlawar to the Political Agent (Weightman) orallyin February 1938and in his
letterof 27 May 1938to Weightmanstated:
"theBahrainGovernmenthave onlyrecentlyoccupiedthem [theHawar islands]which
factmade memove inthematterand submitprotestsagainstit'"12.
3.54 Even more significant is Weightman'sobservationin his letter of 3 June 1938 to the
Political Resident whenhe statesthathehad advisedtheRuierof Qatarthat:
"O BM,Annex253, Vol. 5,p. 1081.
"' BM, Annex259, Vol.5,p. 1101.
""M, Annex 111.157,Vol7,p.285 "the Bahrain Government are now, and have been, to my personal knowledge, fir
munymnnthspast,in actualoccupationof the Island~""~.
Forthis reason,he did not thinkthe British Governmentwoulddisturbthe sfalus quo.
3.55 The fact that the Bahrainioccupationoccurredin 1937is also clearlybrought out by a
reported incident. After Sheikh Abdullah of Qatar had fomally protested to the British in
May 1938 about Bahrain's unauthorised occupation of Hawar, the Political Agent
(Weightman) in his reply of 20 May 1938 had warned Sheikh Abdullah that the British
Government understood that Bahrain was in occupation of and claimed the Hawar islands;
andthat whileanyclaimfrom Qatarwas beingconsidered,it wasabsolutelynecessay that:
"your subjectsdo nothing whichmight lead to hostilities with the subjectsof Bahrain
nowinthe HawarI~lands""~.
3.56 It was the prohibition mentioned in paragraph 3.53(3) above which became the
subject-matterof a letterofthe Rulerof Qatarof 8July 1938to Weightmanstating:
"1 write to Saythat one of my subjectsnamed 'Isabin Atiq al Arbidi had a boat which,
forrnerlybeforetheprohibitionwasimposed,used to ply between Bahrain and Qatar.
He left this boat which was his sourceof income at Hawar some time ago.When the
time for sea work started,he wentto Hawar with the intention of removingand using
his boat as usual without knowing of the interferencesof ~heBahruinGovernment
there, but ~heresidents of Huwar"'arrested and assaulted him and took him to
Bahrain where he was kept in prison for one day. He was thenretumed to Hawar and
left on the beach but was not allowedto take his boat away. It appears that the Rulers
of Bahrain have been cornmitting acts which are against the elernents of justice. 1
should be grateful if you wouIdkindly look intosuch rnatters,and cause the return of
'Isa'sboat beforethey darnageit""6.
In factWeightmanrepliedtothe cornplainton 19July 1938and stated:
"...3. In regard to Isa bin AtiqIfind that he was sent to Bahrain for interrogationby
the Adviser sincehe claimeda boat whichwas lying at Hawar but couldnot give any
"'BM, Annex 262,Vol.5,p. 1112;emphasis added.
IlQM, Annex 111.15V,ol.7, p.279;emphasis added.
""ith respect tothe expression"tresidentof Hawar",see, para.3.127, below, showingthat thisa
mistranslatio.he correct translaisn"they",i.e.theGovernmetfBahrain.
Il6BM, Annex 265,Vol.5,p. 1118;emphasisadded. proof of ownership. He was then allowed to return to Qatar. In view of your letter
stating that the man'sboat is at Hawar it is now agreed that Isa bin Atiq should be
allowed to land there for the purpose of removing the boat, provided that he is in
possession of some paper proving his identity and that he gives a receipt forthe boat.
If therefore you give him such a certificate of identity no further dificulty will be
madein regard tohistakinghisboat away.
4. 1 do not think you needfear that any persons will be arrested from nowon unless
they refuseto leaveHawarwhentoldto go andmake troublethere""'.
3.57 This incident demonstratesthat Qatari fishermenhad unrestricted accessto the Hawar
islandswhichwas suddenlyinterruptedby Bahrain'sillegaloccupationin 1937.
3.58 There was a sirnilar incident when two persons employedby PCL and engaged in
fishing "lost their way or becamethirsty", landed on Hawarand were arrested by people on
the island. In another letter of 12July 1938 (four days Iater), the Ruler of Qatar protested
againto Weightmaninrespectof this freshincident"'.
3.59 The above documentation thereforeclearly shows thai Bahrain simply occupied the
mainHawar islandby forcein 1937,theprimary motive being toincreaseitsterritoriesfor the
oil concessionunderconsideration.Thisoccupationwasentirelyiilegal.
Section 4. Bahrain'sfailureto mentionthe crucial eventsof 1936when Bahrain first
formallyasserted a claimto theHawarislands and theBritish Government made a
"provisionaldecision" in Bahrain's favour
A. Thefirst formal Bahrain claimto the Hawar islandsof 28April 1936
3.60 One of the most striking featuresof the BahrainMernorial,insofaras it deals with the
dispute asto title over the Hawarislands,is its total failure tomake any mention of the crucial
events of 1936 - no doubt because these events are not only inconsistent withthe Bahrain
thesis but flatly contradict it. Thus, no mention wilt be found in the narrative of events in
Il7BM,Annex 268,Vol.5,p. 1122.
'laBM, Annex 266, Vol. 5, 1119Hereagain,see,para. 3.128, below,demonstratingthe mistranslationof the
Rulerof Qatar'sletterand Bahrain'sattemptto misuseit.Volume 1 of the Bahrain Memorialof Belgrave'sletter to the then Political Agent in Bahraiii
(Lt.-Col. Loch) of 28 April 1936, in which Bahrain first formally put forward in writing its
claim to the Hawar islands. That letter is of course included arnongthe many annexes to the
Bahrain ~emorial"', but one looks in vain for any reference to its substantive content in
Chapter3 of Volume 1ofthe Bahrain Memorial. Thatis no doubt a quite deliberateomission,
sincethe inconvenientfact that it wasBahmin which first advanceda clairn inwriting to the
Hawar islands in April 1936 is totally inconsistent with the argument put forward in the
BahsainMemorialthat Qatarwas the claimant State (demandeur) by virtue dits claim to thc
Hawar islands advanced onlyas lateas May 1938'~".
3.61 It is of course true that the British authorities, both in the Gulf and in London, were
aware in the early 1930sthat the Ruler of Bahrain was maintaining a vague claim to islands
other than the main island, Muharraq,Sitrahand one or two neighbouring islets,and also to
areason the Qatar coast,andpossibly even theHasa ~oast'~'T . he Ietterfrom Laithwaite(India
Office)to Starling(PetroleurnDepartment)of 3May 1 93312 r2cords the India Office viewof
the extent of the Sheikh of Bahrain'sdominions. Afier stating that the Sheikh maintains "a
rathernebulous claim"to certainareason the Arab coast,LaithwaiteStatesthat his dominions
may be regarded as consisting of the Bahrainarchipelago whichhe defines as consisting of
"...the Island of Bahrain, and of the adjoining islandsof Muharraq,UmmNa'assan,Sitrah and
Nabi Salih". Nevertheless, it is clear that Laithwaitedid not in 1933accept that the Hawar
islands were part of the Bahrainarchipelago (using that word as a convenient geographical
descriptionof a groupof islandsor islets). Norof coursedid seniorofiicials in the Gulf at this
time. Thus, the actingPolitical Resident (Loch),in reporting on 31July 1933that the Sheikh
of Bahrainwished the "unallottedarea"to be referred toin the draffconcessionas the Bahrain
Islands without specificallynaming any,so that the question of Hawar Island andQatar (sic)
wouldnot be madeprominent by theiromission,recommended that:
"' BM,Annex246, Vol. 5, p. 1071.Theonly referento thisletterin thenarrativeof eventsinVol. 1 of the
BM is in footnote399 to para.338, wherethe letteris citedsolely for its referenceto "Maha"sanaha
alternativespelling"Umm Haswarah"o,ne of the Hawarislandsto whichthe Rulerof Bahrainwas laying
claimatthetime;butnomentionismadeofthefactthatthisletterconstitutthefirstforma1claiinwriting to
theHawarislands advancedon behalff the Rulof Bahrain.
12Sm, BM, paras,356-357,373and382.
'" Of SaudiArabia.
'12QM,Annex 111.84,ol.6, p.41. "1think that we rnay accept this as Hawar Island is clearly not one of the Bahrain
group'1123.
3.62 The Court willof coursehavenotedthat, withinlessthan three yearsof expressing this
view in a telegram to the Secretary of State for India in his capacity as acting Political
Resident, Loch, in his normal capacity of Political Agentin Bahrain, concluded,in his letter
to the Political Residento6 May 1936,that:
"...subject to any past correspondence whichis not available to me. ..there is red
substance in [the Ruler of Bahrain's] claim [to Hawar] and.. i.might in certain
circumstances suit us politically to have as large an area as possible included under
Bahrain" '".
If one reads this letter as a whole, it is evident that this conclusion was based on
whollyinsuEcient evidence,andthat therespectiveclaims ofQatarand Bahrainto the Hawar
islandswere given only themost superficialexaminationby Loch and Fowle in the spring of
1936. Quite why Loch executed such a volteface between the end of July 1933 and the
beginning of May 1936 must remain somewhatof a mystery in the absence of any clear
explanationinthe British archives.
3.63 Two other observationscan be made on this letter of 6 May 1936 from Loch to the
Political Resident. The firstis Loch'sinabilityto lay his handson certain relevant documents
andrecords. Notonly is "past correspondence" unavailable tohim; but he refers elsewherein
the letter (paragraph 3) to having "..not as yet been able to trace certain records...about
Zubarahand ZaknuniyahIsland...". Presumablyarnongthe "past correspondence" unavailable
to Loch in Bahrainwasthe letter whichhe wrote on 31July 1933to the Secretaryof State for
India, expressing the view that Hawarwas clearly not one ofthe Bahrain group ofisiancls.It
might be thoughtthat these frank admissionsby Loch might have inducedsome cautionin the
PoliticalResident; butthis wasnot the case,for Fowle himself,inhis letterto the Secretaryof
Statefor India of 25 May 1936,seems blithelyto have accepted withoutquestionthe grossly
QM,Annex 111.8V,ol.6,p.449.
12QM, Annex111.106V,ol.7,p. 27.exaggerated(wherenot false)claimsabout Bahrain's connections withHawar whichliadbeen
advanced by Belgrave. The second observationrelates to Loch'scomment that "it might in
certain circumstances suit us [the British] politically to have as large an area as possible
included under Bahrain". FowIe appears to have interpretedthis phrase as referring to the
possibility that BAPCOmight now compete withPCLfor the "unallottedarea" if it included
1-Iawar12B'.ut it is also possible that Loch rnight haveused this cryptic phrase to referto the
broader advantages whichmight accrue to Britain in this run-up period to the Second World
Warfrom supportingBahrain'sclaimto Hawar.
B.Attitudeof theoil companiesin the 1930s
3.64 Whatever theexplanationforthe British volte face between 1934and 1936,there is no
doubtthat the oil companies interestedin the potentialminera1resowces of the Hawarislands
in the mid-1930s displayedconsiderablearrogance andinsensitivity in ignoring the Ruler of
Qatar'ssovereign rights overHawar.PCL initially supportedthe principle that its concession
with the Ruler of Qatar coveredthe Hawar islands as part of theRuler'sterritories. However,
it retreated from this position afterit had becomeaware in 1936that the British Government
had made aprovisionaldecisionin favourofBahrainonthe conflictingclaimsto title overthe
Hawar islands by Bahrain and Qatar. Evidence for this is afforded by the record of an
informalmeetingheld at the India Officeon 12April 1938to discuss the activitiesof PCL on
the Arab coast of the Persian This meeting was attended by Fowle (Political
Resident),andtwo IndiaOfficeofficials(Gibsonand Symon),on the one side,and by Messrs.
Lewisohl and Longrigg,representingPCL,on the other side. It wifl be recalled thatPCL had
in effecttakenthe place of APOCby the mid-1930sandthat the concessionwhich APOChad
secured from the Ruler of Qatar on 17May 1935had, with the consent of the Ruler, been
transfemed to Petroleurn Development (Qatar) Ltd. (PDQ), a subsidiary of PCL. Thus, in
April 1938,PCL was, in effect, Qatar's exclusiveoil concessionaire. Itmay not occasion al1
that much surprisethat the PCL representatives,at this meeting withIndia Officeofficials on
12April 1938, should haveargued against a postponement of the negotiationswith the Ruler
Iz5QM,AnnexIII.107,Vol.7,p. 3 1see,especially,para.8 ofthat letter.
Iz6ThisrecordisatQM,AnnexIII.148,Vol.7, p.24 1.of Bahrain for the new concession covering the "unallotted area": see paragraph 3 of the
record. After all, APOC (PCL1spredecessor)had already expressed an interest in bidding for
this new concessionas long ago as June 193312'W , hat is somewhat strange, however,is one
of the reasons givenby Mr. Longriggforopposingpostponementof thenegotiations:
"Mr. Longrigg said, however, that the Company were opposed to any postponement
and hepersonally thoughtit wouldbe apity to put ideas of ownership into themind of
the Sheikhof Qatar1"*'.
3.65 Of course, one has to remember that, by April1938, PCL was very well infonned
about the British position on the conflictingclaims to Hawar of Bahrain and Qatar as that
position had developed sincethe beginning of 1936.As early as 29 April 1936,PCL (Skliros)
had written to the India Office in London (Walton) mentioning that, in PCL1snegotiations
with the Ruler of Bahrain overthe "unallottedarea", the latter had laid claim to Hawar aspart
of his dominions. Skliros drew attention to the Qatar Concession of 1935 and ihe map
annexedto it and saidthat al1this pointedto the fact that Hawarbelonged to Qatarand not to
Bahrain. He concluded his letter by enquiring to which of the two sheikhdoms, in the opinion
of the Government ofIndia, Hawarbel~ngedl~~I.t will be noted that Skliros had written to the
India Office in this sense only one day after Bahrain had lodgedits formal daim to Hawar by
virtue of Belgrave'sletter to Loch of 28 April 1936.No substantive reply wasvouchsafed to
Skliros'lclter of 29 April 1936,until24 July 1936,whenWalton (India Office) wrote to him
informingPCL of HMG's"provisionaldecision" that Hawarbelongedto the Ruler of Bahrain
"and that the burden of disproving his claimwould lie on any other potential ~lairnant"'~~ S.o
by mid-July 1936,PCL (but not the Ruler of Qatar) was informed that the British authorities
had provisionally decided in favour of the Bahrain daim ta Hawar. Obviously, PCL came
swifily thereafter to the conclusion that its only prospect of securing an oil concession
covering Hawarwas to obtain it fromthe Ruler of Bahrain. This may explain (even if it does
'" See, QCM,Annex111.36V , ol.3, p. 187.
lZ8QM, Annex 111.148V,ol.7, p.241, atp.245; emphasisadded.
""M, AnnexIII.104,Vol.7, p.19.
13'QM,Annex 11.110,Vol. 7, p. 47. A remporisingreplyhad been sent by Waltonto Sklir14oMay 1936,
which soughtinteraliuto claimthatthe solepurposeof the lineonthemapannexedto the QatarOit Concession
of 1935was to defie the southernboundaryofthe Concession.See, BM,Annex248, Vol. 5, p. 1076;butsee,
also, item 7 in the Chronology of SignificantEvents relating to Hawar, 1933-36, at paritgraph3.72, below,
togetherwith paragraphs3.75,eseq.below, foraradically differentexplanation.not entirely excuse) the tone of Longrigg's interventionat the meeting with India Office
officials on 12April 1938; PCL'sinterestwas of coursea purely commercialinterest and the
company had no particular reason to uphold the Qatari claimto title over Hawar beyondthe
considerationthat a decision in favour of Qatar would mean that Hawarwas already covered
by the Qatar Oil Concessionof 1935.The British Goverment, however, had opted, even if
only provisionally, in favour of the Bahrain claim of title to Hawar, and PCL pragrnatically
adjusteditselfto this new situation.
3.66 Whatever excusescan be made for PCL,what this episodedoes demonstrate (andit is
notthe only episodeof its kind) is that, throughoutthis whole period between1933and 1939,
British officials in the Gulf and oil company executives seemedto be at one in ignoring the
interests of the Ruler of Qatar, and even, as this example shows, in deliberately seeking to
conceal from him vital informationas to the course of negotiationsaffectingislandsto which
hehad long-standing title.
C.British knowledge of Qatar'stitle to theHawar islands
3.67 It cannot moreover be objected thatthe British authoritiesin the Gulf and the relevant
oil companyexecutiveshad no knowledgeofQatar'stitleto the Hawarislands until 1938.The
British authorities were certainly aware of the Ruler of Qatar'sinterein the Hawar islands,
althoughthis is expressedby the PoliticalAgent (Loch), in his letter to the Political Resident
of 6 May 1936,inan indirect, almostnegative,marner:
"1 do not know what Shaikh 'Abdullahbin Jasim of Qatar'sviews about the Island
[Hawar] are, but 1have never heard of my protest from him against the activities of
Bahrainsubjects there"131.
3.68 This extract inevitably provokes three cornments. In the first place, if the Political
Agent in Bahrain (who also had responsibility for Qatar in the absence of any British
representationin Doha) genuinelydid not knowthe viewof the Ruler of Qatar on a matter of
vital importance to him, namely the question of title to islands lying immediately off the
j3'QM, Annex111,106V, ol.p.27. western coast of the mainland of Qatar, was it nol his dufy to find out? And yet, we how
fromLoch'sletterto Fowleof 6 May 1936,that he had never landed on Hawar,but had flown
over it, presumably when accompanyingthe RAFreconnaissanceof Qatar in 1934.We also
know that no effort was made by Loch or by Fowle to notifi the Ruler of Qatarthat Bahrain
had advanceda formalclaimto the Hawarislands on 28 April 1936,priorto the making ofthe
"provisional decision"in favour of Bahrain in July 1936,itself not notifîed to the Ruler of
Qatar. We equally know that the Political Resident (Fowle),in recornmending 011 25 May
1936that Hawarshould be regardedas belongingto the Sheikhof Bahrain,put the burdcn of
disproving his claim on the Sheikh of Qatar, thereby acknowledging,although in a context
whichwas demonstrablyunfairto Qatar,the latter'svital interestin the matter13'.
3.69 In the second place, Loch's argumentthat he had never heard of any protest from the
Ruler of Qataragainstthe activitiesof Bahrainsubjectsin Hawar (andFowle makesthe same
point) fails to take into accountthree significantpoints. Firstly, the Ruler of Qatar had never
had occasion to protest against the occasionaland short-livedpresence of itinerantfishermen
on Hawar during the winter months, includingsome fishermennormally resident in Bahrain,
since this was normalpractice in the Gulf anddid not betoken any claim of title. Secondly,
suchother activitiesin relation toHawar as Bahrainciaimedto have engagedinprior to 1936,
as outlined in Belgrave'sletter to Loch of 28 April 1936,were either factually inaccurate or
did not have any specific legal consequenceson sovereignty. Thirdly,and most irnportantly,
the Ruler of Qatar was deliberatelykept in ignorance ofthe forma1claimto title to the Hawar
isIandsadvancedon behalfof the Ruter of Bahrain on 28 April 1936. Silencein the face of a
claim to sovereignty over a parce1of territory can be regarded as having legal effects only
whenthe other party is madeawarethat sucha claim to sovereigntyis being asserted.
3.70 Finally, although there is clear evidence that Qatar's concessionaita (PCL) was
inforrned,as earlyas 14 July 1936,thatthe British Governmenthadprovisionally decided ihat
Hawar belonged to the Ruler of bah rai^^'^ i^, ertainly cannot be assumed that PCL would
, have passed on this unpalatablenews tothe Ruler of Qatar. Indeed, itis more than likely that
PCL did not do so. PCL was already in negotiation with the Ruler of Bahrain forthe new
'"QM,AimexIII. 107,Vol.7,p. 31.
'3QM, AnnexIII.110,Vol. 7,p.47.concession over the "unallottcd area", and these negotiations were based on that Ruler's
assumption (confidently sharedby Fowle) that he had title to the Hawar islands, and could
therefore gant a new concession covering an area which would incIude the Hawar islands.
Furthermore, it should be remembered that, less than two years after the "provisioilal
decision" in favour of Bahrain, Longrigg,on behalf of PCL, was expressing the view thatit
wouldbe apity to put ideasof ownership(of Hawar)intothe mind of the Sheikhof ~atar'".
3.71 Al1in all, il is difficultto escape the conclusionthat, in the mid-1930s,everythingwas
being done by British officiaisin the Gulf and in London, and by the interestedoil compaiiy
executives, to create the illusion that Bahrain had an incontrovertible title to the Hawar
islands, despitethe fact thatthe evidencewhich might be thought to sustain this view had not
been tested and despitethe factthat the Ruler of Qatar had been kept in total ignoranceof the
daim to the Hawar islandsadvancedbyBahrainon 28 April 1936.
D. Chronologyof significantevents relatingto Hawar: 1933-1936
3.72 To surnup on this part of the argumentand to understandcorrectlythe reactions of al1
the parties concerned,it is necessaryto bear in mind the chronologicalorder in which various
eventsoccurred:
(1) Mav 1933:commencement of detailed negotiationsbetween APOCand Ruler
of Qatar for oil concession coveringterritory of Qatar following geologicalsurvey of Qatar
peninsula which covered Hawar island: see, map entitled "APOC Sketch Map of Qatar
Peniiisula" enclosed with latter of 3 February 1934 fiom Elkington (APOC) to Fowle
(PRPG)'~'.
(2) 25 June 1933: PAB (Loch) reports in letter to PRPG that he has advised Mr.
Sarnpson (APOC)to "keep clear of the Western coast of Qatar" because of Bahrain claims
"consideredlocally to be live".This letter clearly refers to Zubarah rather than Hawar, since
Loch acknowledgesthat APOC "mayfind it necessaryto raisethe question later on to prevent
134See,para.3.64,above.
'" QCM,Annex111.39V , ol. 3209.another Company from interfering with their operations by drilling drainin wgellson 6he
c~ust"'~~.
(3) 31Julv 1933:PAB (Loch), in his capacity as Acting PRPG, Statesthat "Hawar
Island is clearlynot one othe Bahrain group [ofislands~"'~~.
(4) 1934 Secret negotiationsbetween Ruler of Qatar and Ibn Saudabout grmt of
Qatar oil concession to SOCAL,United States Companyholding concession from Ibn Saud
covering Hasa coast. British authorities in Gulget to hear of this and are veryangry. They
wam Ruler of Qatar of his obligation under Article 5 of the Treaty of 1916 not to grant any
concessionto anyone without the permission of the BritishGovemment.
(5) 5 March 1934:A new version of a memorandumby Laithwaite (India Office),
revised up to 5 March 1934, on "The Southern Boundary of Qatar and the Coimected
Problems" (MemoB.430)is issued.This concludesinter aliuthat:
"...the pre-war boundary ran roughly south-east across the base of the [Qatar]
Peninsula, from Dohat-as-Salwa,or a point slightly north oitto a point north of the
~hor-al-'~deid"'~~.
This revised memorandumby Laithwaite shouldbe read in conjunction with the letter
from Rende1(Foreign Office) to Laithwaiteof 16 March 1934'~~T .his letter puts important
glosses on the revised memorandurn, which were accepted by the lndia Office and other
interested Government Departrnents and were duly integrated into the British negotiating
position vis-à-v SaisdiArabia.
(6) 9 May 1934:In consequence of the events describedunder point 4 above, the
British authoritiesin the Gulfand in Londonbeganto giveconsiderationto offering the Ruler
'36QCM,Annex111.37 V,ol. 3, p. 191;emphasis ad. he referenceto "drilling drainingwells on thecoast"
wouldmakelittlesenseunlessZubarah(onthemainland)werebeingreferredto;andwithregardto Zubarah,
see,para.5.38 below,recording Bahrasnunciatioof anysuchclairns.
'"QM,Annex111.88,Vol.6,p.449.
QCM,Annex111.40V , o3,p.213.
'39QCM,Annex111.41V , ol.p.225.of Qatar a guarantee of protectionagainst serious and unprovoked armed attack on his land
territories (semble, from Saudi Arabia)in retum for his granting the Qatar oil concession to
APOC. Air Ileadquarters in Iraq and the Air Ministry in London wished to carry out a
reconnaissance of Qatar by flying-boat in order to examine suitable landing sites in the
context of the proposed guarantee. Approval was given to this proposa1in London. The
consent of the Ruler of Qatar (but not of the Ruler of Bahrain) was sought for this
reconnaissance 'loverhis territory",and was dulygiven. The Ruler of Qatar undertookto give
instructions to his tribesmen to give every help in the event of a forced landing; the only
request which he made in return was that the aircraft keep far away fimmcamels and other
animals so as not to frighten themiW.Loch (PAB) accompanied the aerial reconnaissanceon
9 May 1934, and subsequently reported toFowle on 12May 1934that GroupCaptain Saul in
his flyingboat had:
"..lefiBahrain at 0630 hours and proceeded over Hawar Islandand thence across to
just east of ZakhnuniyahIsland. Studiouscare was taken not to cross the Sa'udiArab
frontier and the Flying Boat didnot fly over either the island or over the Gulf tothe
southof it"14'.
This is eloquent testimony to the fact that, as late as May 1934, Loch was clearly of
the view that Hawar wasan integralpart of the territoriesof the Ruler of Qatar since only his
permission (and nof that ofthe Ruler of Bahrain)had been sought for overflight of the island.
The Court will also note the "studiouscare" which was taken not to overfly SaudiArabian
territory.
(7) 17 Mav 1935:This was the date of signature of the Qatar Oii Concessionby
the Ruler of Qatarand Mr.Mylles on behalf ofAPOC.Thetravauxpr@aratoires ofthe Qatar
Oil Concession addlittle to our knowledge. Article2 of the ConcessionAgreement as signed
of coursedefinesthe Stateof Qataras:
"...the whole areaover whichthe Shaikhrules and whichis marked on the northof the
line drawnonthe rnapattachedto this~~reernent"'~~.
14'QCM, Annex llI.43,Vol.3, p.237.
la'IbidSee,also,QM,para.6.27 andQM,Annex 111.9V,ol.6,p.479.
'42QM,Annex 111.99, ol.6,p. 50atp. 511. There had been some discussion of the rnap to be annexed to the Concession
Agreement at a meeting held between APOC representatives and India Office officiais on
10January 1935143 .aragraph7 of the record of this meeting shows that APOC was anxious
to know whetherthe southern boundary ofQatar which had been indicatedto the IPCIAPOC
geologistson the ground by the Ruler of Qatar personally(and which had subsequently been
shown on the mapprepared by the IPC/APOCgeologistsand circulatedin February 1934)144
was satisfactoryto HMG for thepurposes of the map to be attachedto the Concession.The
APOC representatives explained at the meeting that they understood there had been
considerable recent discussion between the Ruler of Qatar and Ibn Saud over the southern
boundary of Qatar, with Ibn Saud anxious to includein his territory the wholeof the Jebel
Dukhan and the Ruler of Qatar opposing this by claiming the boundary as shown on the
IPC/APOC map or a line south of itrunning to Salwa.Following this meeting, Laithwnite
(India Office), after consultationwith Rende1(Foreign Office), infomed Lefioy (APOC) on
22January 1935,that no objectionwas seento the Company'sacceptingas the southern limit
of its concession the line marked on the IPCIAPOC map of Qatar (which wasin the eveni
marginally modified to conceal its pr~venance)'~'I .n conjunctionwith the grant of the Qatar
Oil Concession to APOC, there entered into force the British Governrnent assurance of
protection to theRuler of Qatar against serious and unprovokedattacks on his land territory
(~ndefined)'~~.
(8) 28 April 1936: Belgrave'sletter to Loch (PAB) laying forma1claim to the
Hawarislandson behalf ofthe Rulerof Bahrain.
(9) 29 Aoril 1936:Skliros(PCL)writesto India Office (Walton) drawingattention
to the Qatar Oil Concession of 1935, stating that, in PCL'snegotiations with the Ruler of
Bahrain overthe "unallottedarea", the latterhad laid clairn to Hawaras part of his dominions,
'43QCM,Annex111.44V , ol.3,p.247 (inparticurara7).
QCM,Annex 111.39,ol.3,p.209.
'" QCM,Annex111.45V , ol.3, p.257.
'46QM, Annex 111.9V,ol.6,p.501.and enquiring to which of the two sheikhdoins (Bahrain or Qatar), in the opinion of the
Govemmentof India, HawarbelongedI4'.
(10) 6Mav 1936:Loch (PAB)writes to Fowle(PRPG)cautiouslysupportingRuler
of Bahrain's clairn to Hawar, despite his letter of 31 July 1933 (item 3 above) and his
participationin theRAF1saerial reconnaissanceof Qatar (item6 ab~ve)'~'.
(11) 25 Mav 1936:Fowle (PRPG) recornrnendsto Secretary of State for India in
London that "Hawar should be regarded asbelonging to the Shaikh of Bahrain and that the
burden of disproving his claim lies on the Shaikhof Qatar". Fowle appears to have relied
heavily on the (untested) assertionsby Belgrave that Hawar had long been occupied"by the
Dowasirtribe of Bahrain" and that the present Ruler of Bahrain and his predecessor as Ruler
hadexercisedactivejurisdiction in Hawar"downto the present da^"'^^.
(12) 10 JUIY 1936:Waltonand Clauson(both India Office)inform Beigrave(at this
time in London) of HMG's"provisional decision"supportingthe Ruler of Bahrain'sclaim to
Hawarandputtingburdenof disprovingthis claim onthe Ruler ofQatarlso.
(13) 14 Julv 1936:Walton (India Office) writes to Skliros (PCL), in response to
item 9 above, informing him that, on the basis of the evidence at present before HMG, it
appears to them that Hawar belongs to the Sheikh of Bahrain, and that the burden of
disprovinghis claimwouldlie on anyotherpotentialclaimant15'.
3.73 Against this background, PCLobviouslytook the hard commercialdecisionto pursue
directly with the Ruler of Bahrain its negotiations for an oil concession coverîng Hawar, on
the assurnptionthat, in due course,a forma1decisionwouldbe forthcomingwhich definitively
awarded Hawar to Bahrain. In these circumstances,it would have been unwise (and indeed
contraryto their interestsas Qatar's exclusiveoil concessionaire) forPCLto inform the Ruler
147QM, AnnexIII.104,Vol.7p. 19.
'" QM,AnnexIII.106,Vol.7,p. 27.
149QM,AnnexIII.107,Vol.7,p. 31.
IsUQM, AnnexIII.111,Vol.7,p. 51.
15'QM,Annex111.1 10,Vol.7,p. 47.of Qatar that the Ruler of Bahrain had laid formal claim to the Hawar islands and that the
British Govemmenthad provisionally decidedin favourof the Bahrainclaim. There is indeed
no evidencethat the Ruler of Qatarwas made aware of these significantevents in 1936. He
was deliberately kept in ignorance of them by the British authorities in the Gulf and in
London,andalso by the oil companiesconcemed.
3.74 In discussingthe events of 1936,Qatarwould wish to take the opportunityto respond
to the argument advancedin paragraphs375and 376of the BahrainMemorial.The Courtwill
of course understand thatPCL, through MajorHolmes, was alreadyin direct negotiation with
the Ruler of Bahrainin the springof 1936with a view to offeringterrnsfor a new concession
covering the "unallottedarea". The Ruler of Bahrain had clearly indicated to MajorHolmes
that he claimed Hawar as part of his dominions and Major Holmes had so reported to his
principals in London. This provoked Skliros (PCL in London) to write to Walton (India
Office) on 29 April 193615*e ,nquiring whether Hawar island belongedto Qatar or Bahraiil.
There is annexedto the Bahrain~emorial"~ a copy of Walton'sreply to this letter, but not of
Skliros'letter itself. This is no doubt because Skliros'letter puts fonvara number of facts
which are wholly at variance with the Bahrain thesis. Thus, apart fi-omreferring to the map
annexed to the Qatar concession, Skliros states in his letter of 29 April 1936, which is
fortunatelyannexedto the QatarMemorial:
"The island [Hawar]is about 10 miles long, about 2 miles wide at its widest and is
believedto be uninhabited t issaidtu be sometimesvisitedin the winterand to have
had in the past some degreeof connectionwith Bahrainsubjects,if not, (as the Shaikh
of Bahrain nowclaims)withthe Khalifafamilyit~elf"'~~.
E. Themap attachedto the Qataroil concessionof 1935
3.75 It is tnie that the Foreign Office had been concerned that the definition in the
Concession of the southernboundary of Qatar with Saudi Arabia might lead to conflict with
Ibn Saud,but there is no suggestionin anyofthe travuuxpréparatoiresof the Concession that
neither the Hawar islands nor Zubarahwould be includedwithinthe Concessionarea. Item 7
I5'Seeitem9inparagraph3.72, above.
15BM, Annex248, Vol.5,p. 1076.
'5QM,Annex 111.104,ol.7, p. 19;emphasisadded.in paragraph 3.72 above embodies a brief surnrnary of the travaux préparatoires of the
ConcessionAgreementso far as theyrelate tothis point and indeed tothe map attachedto the
Concession Agreement. This mapclearly depicts the Hawar islands as lying on the north of
the line representingthe southernboundaryof the Concessionarea.North of that line was the
area ovcr which the Sheikh of Qatar ruled. The area indubitably included the main Hawar
islands,the main islandbeing indeedspecificallynamed("JeziratHowar").It is inconceivable
that the Governmentdepartments in Londonwould have acceptedthis definition of the State
of Qatar for the pürposes of the 1935 Concessionhad they (or indeed any of them) seriously
thought that either the Hawar islands or Zubarah, or indeed both, appertainedto theRuler of
Bahrain. At the very least, one would expect to find some reference in the records to the
exceptionalposition of those featureshadthatbeen thecase.
3.76 The nearest onecanfind to any reservationof this kind is a letter fromtPAE (Loch)
to the PRPG (Fowle) of 25 June 1933,in which he reports on a conversation which he had
had withMr. SarnpsonofAPOC.Lochreportsthat he had advised:
"...Mr. Sampson to keep clear of the Western coast of Qatar, so far as might be. He
asked me about the Bahrain claims, but Isaid that 1could tell him little except that
they were consideredlocaliy to be live claims, and 1thought that, unless they found
that they definitely requiredto operatethere, it wouid be best, at anyrate at this stage,
to let sleepingdogs lie.1appreciate, however,that they may find it necessaryto raise
the question later on to prevent another Company fiom interfering with their
operationsby drilling drainingwellson the ~oast"'~*.
This is hardly thevoice of an officia1who is convincedthat the authorityof the Ruler
of Qatar in June 1933did not extend to either theHawar islands or Zubarah. Loch clearly
regardedthesetwo parcels ofterritory asbeing withinthe area over whichthe Sheikhof Qatar
ruled. What he was conveying to Sarnpsonwas a delicate diplomatic hint that it might be
advisable for APOCnot immediatelyto exercise the plenitude of their rights on the western
coastof Qatarbecauseof thepotentialclaimsof Bahrainin relationto that part of Qatar.In no
way was he expressing any reservation to the effect that the Hawar islands (or indeed
Zubarah) appertainedto the Ruler of Bahrain. Indeed, the clear implication of his warning to
Sampson is that APOC would be fully entitled under the Concession, if it were awarded to
lSQCM,Annex 111.37,ol.3,p.191.See,also,item2 inparagra3.72,above.them, to operateon the westerncoastof Qatar (includingHawar),but that it mightbe prudent
for the Companynot to do so for the time being inview of the Bahrain claims. It will in any
eventbe recalledthat somefive weekslater,Loch statedthat Hawarwas clearlynot one of the
Bahraingroupof i~lands"~.
3.77 It was onlyat a much later stage(in mid-1936),whenthe Ruler of Bahrain had already
advanced a forma1claim in writing to the Hawar islandswhich both Loch and Fowle, for no
objectively convincing reason,thought to have substance, that the India Office sought to
explain away the Qatar concession and the map attached to it by asserting that the object of
the rnap was simply to define the southern boundaryof the Concession. Even assumingthat
there might be some tmth in this comment, it does not sufficientlyexplain away the shift of
position of the British Government frorn acceptance (in 1935) that the Qatar Concession
extended to the whole of the western coast of Qatar, including the Hawar islands, to a
provisionaldecision(in mid-1936)that the Hawarislandsbelongedto the Rulerof Bahrain.
3.78 It is accordinglyquite wrong, and indeed contrary tothe evidence,to seek to interpret
Walton'sreply of 14 May 1936 in the sense suggested in paragraph 376 of the Bahrain
Memorial, narnely,that the sole purpose of the line drawn on the map attached to the Qatar
concessionwasto definethe southernboundaryof the conces~ion"~.Even if it were, Walton's
view is totally cantradicted by the view expressedby another lndia Office official (Symons)
on 19April 1938,in a marginal noteto the record of the informal meeting held on 12April
1938, between India Office officiais and PCL representatives'58.In this marginal noie,
Symons is in fact agreeingwith a point madeby Longrigg for PCL that if enquiries showed
that the Hawar islands belonged to the Ruler of Qatar, they would be included in the
concessionwhich PCLalready held from the Rulerby virtue ofArticle2 of that concession.
3.79 Against this background, it is perhaps not altogether surprising that the Bahrain
Mernorialmaintains such a discreet (indeed pregnant) silence overthe crucial events of 1936
I59ee, item3 inpara.3.72, above.
15'Thatmayhavebeenone of itspurposes,butit was certainlynot the solepurpose.Themapattachtoihe
Qatar concessionwas,as hasbeenshown,basedon theresultsof a geologicalsurveycarried ouin 1933by
IPCIAPOCgeologists.
15'QM,Annex111.148V , ol7,p.241.resulting in the making of a "provisionaldecision" on the Hawar islandsinfavour of Balirain
in July 1936,followingupon the presentationof Bahrain'sformal claim of title to the islands
on 28 April 1936.
Section 5.Activitiesof Bahrainin orin relation to the Hawarislands cannot be invoked
toestablishtitle if theywere motivatedby an intentto deceiveor occurredafterthe
disputebetween Bahrain andQataron this issue hadbecomeapparent
3.80 Under this heading Qatar proposes to analyse three procedural (more specifically,
evidentiary)issues,which are closely linkedand yet requireseparateanalysis.
A. Bahrain's"evidence"in relation toHawar
3.81 The first issue concernsthe alleged "evidence" of Bahrainactivities in orin relationto
Hawar producedby Bahrainin 1938, andnow repeated in theBahrain Memorial, whichQatar
contends was manufactured by Belgrave and others in his employ in the 1930s in order to
sustainan otherwisevery flimsyclaimbythe Ruler of Bahrainto title over the Hawarislands.
Qatar has, in paragraphs 6.51 to 6.70, 6.100 to 6.109, 6.155 to 6.162, 6.165 to 6.177, and
6.191 of the Qatar Memorial,read inconjunctionwith the many annexesreferredto in those
paragraphs, produced ovenvhelming evidence of the steps taken by Belgrave, sometimesin
collusion with others, to fabricate documentsdeliberately designed to deceive any impartiai
authority calledupon to decidewhich of the two sheikhdoms- Qatar or Bahrain - had title to
the Hawar islands.
B. Statusand allegianceof the Dowasir
3.82 It will be recalled that, prior to the forced deposition of Sheikh Isa of Bahrain by the
British in 1923,the Dowasir, as Sunnis,enjoyed a largely independent position inBahrain.
The tension and potential conflict between Sunnis and Shiahs in Bahrain in the early 1920's
gave rise to social unrest. Sheikh Isaand most othermembers ofthe ruling farnily,as Sunnis,
tended to favour the statusquo. But Daly, who succeeded as Political Agent in early 1921,
was persuaded that some refoms must be initiated in Bahrain to reduce the plight of thedown-troddenShiahs.He succeededin persuading SheikhIsa, who was now in his dotage,to
appoint SheikhHarnad as his assistantin the administrationin June 1921,effectively ousting
his youngerbrother andrival, SheikhAbdullah.Dalysubsequently reportedon the positionas
it waswhen he took overasPoliticalAgent:
"Itis evidentfromthe filesinthis Agency,that no improvementas regardsthe interna1
administrationof Bahrain has been effected, andseveral Political Agents have lcft on
record notes concerningthe unsatisfactory state of affairs. There is evidence on a11
sidesthat oppression hasmuchincreasedof quite recentyears, whereasthe population
is more enlightenedandlessinclined to submitto suchtreatrr~ent"'~~.
There were many grievancesamongthe Bahrainis against discriminatorytaxes which
were imposedupon, or collected from, ShiahsonIy.The Political Agentwas eventually asked
to propose a package of tax reforms, which he duly did. In June 1922, a reconciliation was
effected between Sheikhs Abullah and Hamad ta the dismay of disaffected tribal elements
suchas the Dowasirwho opposed~heib' Harnad'sadministration.This led to the firstattempt
by the Dowasir toobtain support fiom Ibn Saud:
"DuringJuly [1922],Abdullah ad-Dosari, Chief oftheNajdi Dowasir,and Ahmed ben
Lahej,head of a smallergroupofNajdis, visited Ibn Saud,hopingto enlist his support
in their stand against Shaikh Hamad's plan for tax reforms - a plan which was
envisagedas placingShiahsandSunnison an equalfooting.After the visitnews of Ibn
Saudpledgingthem support circulatedin Bahraintt1@'.
3.83 There then followedthe enforcedretirementof SheikhIsa as Ruler of Bahrainin May
1923,to be succeededby SheikhHamad who enjoyed British support.It was in consequeilce
of this development, andthe many reformswhich SheikhHamadbegan immediatelyto set in
train that the greater part of the Dowasir - about two thousand - fearing a threat to thcir
position in Bahrain, departed to Dammam in July 1923, where they hoped to enlist the
sympathy and active support ofIbn Sa~d'~'.The rest of the tribe - about one thousand -
remained in Budayya. The division of the Dowasir into two factions, one living in Bahrain
lS9See, Reportby MajorDaly:Note on the politicalsituatinBahrain,November1921,cited in Al-Tajir,
Bahrain 1920-1945: BritaintheShaikh and theAdministration, 1987,QCM,Annex111.54,Vol. 3, 313, at
p.315.
'" Ibid t,p.316.
See, QM,paras6.52, seq.See, also,paras.3.115seq.,below.and the other in Dammam, was rightly regarded as a threat to the safety of Bahrain. The
Dowasir could raid Bahrain and retreat to the mainland overnight. The threat was more
serious in view of the Wahhabi ambitionto subdue Bahrain. The Ruler of Bahrain therefore
issued an ultimatum warning the Dowasir either to return to their base or leave Bahrain
altogetheras a body. A little beforethe deadline set for 18 July 1923 had expired, the rest of
the Dowasir lefl ~udayya'~~.Far from being loyal subjects of the Ruler of Bahrain, the
Dowasir were a threat to the security of Bahrain. In fact, a Levy Corps of one hundred
Baluchis commandedby a British Officerwas recruited fiom Muscat essentially to reinforce
Bahraini defenceagainstpossible aggressionfrommainlandArabiawagedby the D~wasir'~~.
3.84 In a significantcommunicationof 4 January 1924fiom the PoIiticalResident (Trevor),
the Secretaryof Statefor ColoniesinLondonwas advised:
"..Now that the whole Dawasir tribe has left, 1 may remark that Shaikh is greatly
relieved anddoes not want them back at anyprice. Inthis 1think he is right and that
he is well rid of thern"Ib4.
3.85 A few additional pieces of evidence relate to the treatrnent of the Dowasir between
1923 and 1929.It was explainedinparagraph6.55 ofthe Qatar Memorial,read inconjunction
with the letter from the Political Resident (Haworth) to the Foreign Secretary of the
Govcmmentof Indiaof 27 March l927l6',that by 1927the Rder of Bahrainwas anxiousthat
the property confiscated fromthe Dowasirat the time of their departurefrom Bahrainin 1923
should be returned to them'66.The Ruler wasunder pressure from Ibn Saud to permit this to
be done, and he was anxious to appease Ibn Saud who exercised at that time a powerful
influence over theRulersof al1the Gulfsheikhdoms.Itwill be noted fromAnnex111.73 to the
Qatar Memorial that, when the Dowasirwere forcedto leave Bahrainin 1923and the town of
Budayyahad been forfeited, an attempthad been made to populate it withBahrainis(notethe
Ktiuri, ocitQCM,Annex111.55V , ol.3,p. 31atpp.327-328.
'"Ibid .,p. 330.
16QCM, Annex 111.2V,ol.3, p. 147.
IbQM, Annex 111.73,ol.6,p.383.
'6Ibid .tp. 386;emphasis added; see, also,QCM, Annexes111.29,111,11.1 and 111.3V,ol.3,pp. 151,
157,163and 169.contrast expressedin this letterbetweenthe Dowasirad Bahrainis)and to sel1the houses and
landatvery cheapprices'67.
3.86 This additional evidence lendsverisimilitude ta the implied suggestion in paragraph
6.57 of the Qalar Mernorialthat the Dowasirwho werebeginning to drift back to Bahrain, in
straitened circumstances, in 1928/29 were still highly reluctant to accept the Ruler of
Bahrain'sauthority over themlb8.The extent to which Ibn Saud was giving supportto the
Dowasir in their attemptsto extract concessions fiom the Ruler of Bahrain and the British
authorities in the Gulf is attested to by a Ietter of 22 April 1928,from the Political Agent in
Bahrainto the Secretaryto thePoliticalResident, withits encfosedtranslationof a letterdated
6 April 1928,fmrn the King of Hijaz,Nejd and Dependencies (Ibn Saud),to the Political
~~entl'~.What is of particular interest in the letter of 6 April 1928 is that the King's
representationsare made on behalf of "our Duwasir subjects who are residing in Damman".
This claim by Ibn Saud is of coursewholly inconsistent withthe assertions in paragraphs 36,
38, 346 and 351 of the Bahrain Mernorial that the Dowasir had owed unintempted and
unswervingallegianceto successive Rulersof Bahrainsinceabout 1800.In this contextit will
of course be recalled that al1the leadingauthorities(includingLorimer) place the date of the
arriva1of the Dowasirin Bahrain as 1845.Qatar had already,in its Mernorial,drawnattention
to the uncertain and fluctuating relationsof the Dowasir with theAl-Khalifah, and indeed to
tlie claim recorded in paragraph 7 of the letter hm the Political Agent (Prideaux)to the
Political Residentof 4 ApriI 1909:
"...that the DowasirregardedHawaras their ownindependentterritory.. ."17'.
3.87 The evidence alsoprovides strong support for the view expressed by Alban (Political
Agent,Bahrain),in his noteon the "Ownershipof Hawar"preparedin October 1941:
16'QM, Annex 111.73,ol. 6, p.383.
See,QCM, Annex 111.33, ol. 3, p. 173.
'""CM, Annex 111.3, ol.3, p179.
QM,Annex 111.53,ol.6,p.245. "4. The Dowasir are rather independentas can be seen from the way they descrted
their town of Budaya in Bahrain for the mainland.They are not true inhabitants of
Bahrainandare able to changetheirallegianceat will if displeased.Their settlementin
any spot does not thereforemean much more than the settlement of a migratory tribe
in a neighbouring tat te"'^'.
3.88 Indeed, the author of the "AdministrationReport forthe Bahrain Political Ager-icyfor
the year 1911 "canbe credited withunusualpresciencein stating:
"The only generally hostile feeling in the island [Bahrain] is, 1think, to be sought
among the Dosiris, with whomthere is fiequent trouble over the questionsof peasling
accounts and slaves. They are not readily amenable to Shaikh Isa's authority.,. There
will probablybe serioustroublewiththem some day"I7*.
3.89 The sornewhatschizophrenicattitudeof Fowle (PoliticalResident in the Gulf between
1932and 1939)towardsthe Dowasiris also worth noting. It will be recalled that,on 29 April
1939, Fowle fonvarded to the Secretary of Statefor India a copy of Weightman's reportof
22April 1939 (with supporting documentation)on the relative merits of the claims to title
over Hawar advancedby the RuIers of Qatar and Bahrain. In doing so, Fowlecomrnended
Weightman's report as "a very clear statement of the case"173.It will be recalled that
Weightman'sreport states interalia:
"On the Bahrain side there is evidence that the original occupation of Hawar by the
Dawasir [sic] waseffectedunderthe authorityof the Al Khalifah, [and]that the Zellaq
Dawasir have frequented these islands for a great number of years ...1am not able to
state definitely that these Dawasir have for thepast 150years occupied Hawarat al1
seasonsof the year, thoughtliosenow in residence thereclaimthat this is ~0""~.
3.90 The clear implication of statements such as these (on which the British Governmcnt
relied in making their decision on Hawar of Il July 1939)is that the Dowasir had occupied
Hawar regularly overa period of 150years for much of the year. But Fowle for one seems to
have forgottenin 1939the view whichhe had expressed lessthan two yearspreviouslyin the
'" QM,AnnexIII.228,Vol.8,p. 123.
BM,Annex 240,Vol. 5,p.1052,atpp.1056-1057.
173QM,Annex111.199V , ol. p. 519.
QM,Annex 111.195, ol. 7,p. 49atpp.505-506.context of the Bahrain claimto Zubarahbasedon the continuing allegianceof the Naim tribe.
Indenying the Bahrain claimto Zubarah,Fowle arguesas followsin his letterto the Secreiary
of State forIndiaof 5May 1937:
"The Bahrain Dowasir tribe, for instance, someyears ago being onbad ternis with the
Ruler of Bahrain, ernigratedto Hasa. While there they doubtless received messages
[rom the Ruler of Bahrain and evidently considered themselves as owing some
allegiancetohim, since finallythey askedhispermissionto return to Bahrain.But this
sort of allegiunceon thepart of the Dowasir naturallygives no clair tnthe Shaik hj
Bahrain tu thepar#of Hasa occupiedbyth~rn"'~~.
And yet it seems (and thisappearsto be the logic of Fowle'sview, difficult as it may
be to foIIow) to have given a valid claim to the Sheikh of Bahrain to the Hawar islands
intermittently and irregularly "occupied" by the same Dowasir. It will, in any event, be
recafledthat Ibn Saud claimed the Dowasiras his own subjects when theywere living on the
Dammam peninsula inthe late 1920s.
3.91 There is the further consideration that Bahrain produced no evidence in1938139,aiid
has produced no evidence in the Bahrain Mernorial,to establish that the Dowasir regularly
paid taxes in respect of the income generatedby the economic activitieswhich theyclaim to
have performed on Hawar prior to the unlawful occupation of the islands by Bahrain in
1936/37.There is clear evidence that, in the 1920s and 1930s,successive Rulersof Bahrain
did not seek to tax the Dowasir in respect of their economic activitiesin Bahrain, far lessin
respect of such economic activities as theymay have engaged in on their winter visits tothe
Hawar islands. Forexample,in a report of 13 July 1922,from the Political Agentin Bahrain
(Daly) to thethen Political Resident, on a visit by the chief of the Dowasir to Ibn Saud, it is
stated:
"It would appear that Bin Saud offered to assist theln to resist any efforts of the
BahrainRulersto taxthem or to bring thernundertheir effective~ontrol""~.
QM, Annex111.126,Vol. 7p. 125,atpp.131-132;emphasisadded.
IT6QCM,Annex111.26 ,ol. 3,p. 135. The sarnereport continues:
"Though nominally acknowledgingthe overlordship of Sheik Easa [Isaj, they have
always in the past declinedto acknowledge ShaikHarnad ashis definite successor. It
is believed that they entertained some hopes of getting control of the islands [the
Bahrain islands]into their own hands in the future. Bin Saud may be not unaware of
these designs. Some years ago they used to pay a small diving tax in a commuted
form. Even then they resisted direct taxation. Forseveralyears they have ceased even
these paymentsand the Rulerisafiaid to insist onpayment"'77.
3.92 If, as these reports establish, the Dowasix had not, prior to their departure to the
Dammampeninsula in 1923,been accustomedto pay any taxes in respect oftheir economic
activities in Bahrain itself, they would self-evidently not havebeen paying any taxes to the
Ruler of Bahrain in respect of such economicactivities (if any) as they rnay have engagedin
duringtheir winter visits to Hawar. The Courtwill, of course,recallthat one ofthe conditions
laid down in 1927forthe return of the Dowasirto Bahrain was that "they mustpay the same
taxes as other agriculturistsandtraders"17!There is no evidencethat they did pay such taxes
in respect of such economic activities as they may have engaged in on Hawar in the early
1930s.
3.93 By way of contrast, Qatar has already produced documentary evidence dating frorn
1887 and 1891of tax-collecting expeditionsto Hawar engaged in by agents of the Ruler of
Qatar and designed to secure the payment of taxes from fishermen using Hawar as a
temporarybase in winter for theirfishingactivitiesin the surroundingwaters'I9.
3.94 The Court will also wish to note that, on 5 April 1923,the Political Resident wrote
directly to the Rulers of Qatar and Kuwait drawing attention to "the recent contumacious
behaviour of Dawasirtribe in leaving Bahrainwithout reason".ThePolitical Resident'sletter
continues:
17'Ibid.
I7'See,QM,para.6.54,andAnnex 111.72Vol.6,p.379.
179See, QM,Annexes llI.36,111.39an11140,Vol.6, pp169, 181and 185. "1 write to request you,inthe event of tribes wishing to come to your territory not to
eiicouragethem or to harbour them shouldthey come without previous instruction. 1
have been instructed by the High Govt. to inform you that they would view witli
disfavour theharbouringby you of malcontents from Bahrainwho would abuse your
hospitalityby makingyour dominionsabase for intriguesagainstthe Rulerof Bahrain
whohas the full support of HMG""'.
The interestofthis letteris thatthe only territory in Qatar whichthe Dowasir regularly
frequented,at least during the winter months, was the Hawar islands, andthe Ruler of Qatar
was in facl being asked to exclude them from there. There is no evidence in the entire
documentationin the British archives regardingthe behaviour of the Dowasir between 1923
and 1928 of any member of the bibe being permanently resident in the Hawar islands as an
integral part of Bahrain territory; nor is there any evidence in that documentation of any
mernbers of the Dowasir tribe leavingor being expelled from the Hawar islands. Similarly
there is not a word in that documentationof any members of the tribe returningor seeking to
return directly to theawar islands in 1928/29(notwithstandingthe Bahrainiclaim that they
were "permanent residents" of Hawar). Qatar submits that this entire episode and the
circumstancessurroundingthe departure of the Dowasir from Bahrainin 1923demonstrates
the falsity of the Bahrain assertions: (a)that the Dowasir were permanent residents of thc
Hawar islands and (b)that they owedunwaveringallegiance to the Rulerof Bahrain so as to
make them subjects of the Ruler of Bahrain.At most, the evidenceshows only that members
of the Dowasirtribe rnayhavebeen accustomed to pay winter visits to the Hawar islands as
itinerantfishermen(but notbetween 1923and 1928).
3.95 The crudedistortionin the BahrainMemorialof the status and supposedallegiance of
the opportunisticDowasir is outweighedonly by the manifest and repeated instances cited in
the Qatar Memorialof the "manufacture"of "evidence" onHawar by Belgrave in the 1930s.
As a matter of law, Qatar naturally submits that no credence can be given by the Court ta
documentsprovedto have been "manufactured or "fabricated" for thepurpose of influencing
the British Governrnent inmaking its decisionas to which of the two sheikhdoms- Qatar or
Bahrain - had titleto Hawar.
''QCM,Annex 111.2V,ol.3,p.141. C. The relevanceof thedate of thefirst forma1claimbyBahrain to the Hawarislands
3.96 The thirdissue which Qatar wishesto analyseunder this heading is the significancein
law of the date in 1936,when Belgrave,on behalf of the Ruler ofBahrain, submitted to the
PoliticalAgent a formal claim in writingto the Hawar islands. Sofar as Bahrainis concerned,
this can be said to be the date on which the dispute over title to the Hawar islands
"crystallised".Bahrain already seeksimpliedly to deny this by placing stress on the date of
27May 1938,when, in response to an invitation from the then Political Agent (Weightman),
Qatar submittedits formal claimto the Hawarislandsl*'.Butthis cannot conceivablybe right.
It ignores entirely the crucial events of 1936 discussed in Section 4 of this Chapter'82.The
British authorities failed to notify theuIer of Qatar that Bahrain had already submitted a
formal claim to the Hawar islands in April 1936; they also failed to noti@ him of the
"provisionaldecision" which they had taken in July 1936that the Hawar islands should be
regarded as belonging to the Ruler of Bahrain and that the burden of disproving his claim
should lie on theRuferof Qatar.And yet they well knewthat the Ruler of Qatarassertedtitle
to the Hawar islands. They may havehoped that, by keeping the Ruler of Qatar in ignorance
of these highly significantdevelopments,they would indirectlybe providingquiet support for
the Bahrain claim since, as the Political Agent (Loch) was toadmit on 6 May 1936, with
commendable,if somewhatdangerous,fiankness, "...it mightin certain circurnstancessuit us
politicallyto have aslarge an area aspossible includedunder bah rai^^"'^^.
3.97 The primary reason why this would suit the British politically is of course that the
Ruler of Bahrain was relyingon increasingrevenuesfrom oil. These were notyet forthcoming
despite confident forecasts fromBAPCO.The inclusion of the Hawar islands (thought at this
time to be oil rich) within the "unallottedarea" to be covered by a new concessionfrom the
Ruler of Bahrain would inevitably provide a new source.of incornefor Bahrain.A secondary
reason mayhave beenthat Bahrain seemedto be a morereliable stopping-offpoint than Qatar
onthe airroute fi-omthe UK to Indiain the nin-up to the Second WorldWar.
18'Sec, BM, paras.349,356 a357 (i).
IB2See, paras.3.60,seq.above.
Ig3QM,Annex 111.16,Vol. 7p.27.the main Hawar island by members of the Dowasir tribel'" the despatch by Bahrain of a
garrison to ~awar'", and the building of a fort and mosque on the main Hawar i~land.'~~
Activities of this kind clearly cmot be accepted as evidence confirming Bahrain'sclaim of
title to the Hawarislands, even if their evidential value might haveto be excluded for other
unrclated reasons, for example, because the beaconing of islets and fashts would not in any
event constitute evidence of title, or because the alIeged "settlement" of the Dowasir on
Hawarwas artificiallycontrivedby Belgravein the mid-1930s.
3.100 Qatar is indeed inclined tothe view that, in this particular case, the Court should iiot
seek to pick out any specificdate as the date when the dispute between Bahrainand Qatar as
regards sovereigntyaver Hawar crystallised.The whole period between1930 and 1939could
be said to have been a critical period when Bahrain was in the process of reviving or seeking
to assertclaimsconcerningZubarahand Hawar at the expenseof Qatar. The Court will indeed
recall that the Court of Arbitration in the Taba arbitration between Egypt and Israel was
content to decide the location of the fourteen boundarypillars in dispute betweenthe Parties
on the basis ofthe boundary between Egyptandthe former mandated territory of Palestineas
it was demarcated,consolidatedand cornmonlyunderstood during the period of the Mandatc
(which it termed the "critical period"). But, indeterminingthat the period of the Mandatewas
the critical period, the Court of Arbitration in the Taba case did not exclude evidence
(particularlydocumentaryevidence)relatingto events that had occurredboth before andafter
the criticalperiod. As regards eventsthat had occurred priorto the criticalperiod, theCourtof
Arbitrationsaid in its award:
"In so ftiras there are doubtsas to where the boundary pillars stood during the period
of the Mandateor for confirmationof its findings,the Tribunal, for its part, will aiso
considerthe 1906Agreement, butmerely as an indice among others, as to what was
thc situation on the ground during the critical period. In the sarne way, the Tribunal
will cansider any relevant evolution with regard to the delimited and demarcatcd
boundaryprior to the criticalpe~iiod"'~~.
lB6See,QM, paras6.57,et seq.andAnnexesreferredto therein.
I8'See,QM,para.5.58andAnnexesreferredtotherein.
IsaSee,paras.3.52,etseq.above;see, also,QM,para.6.160 andAnnexesreferred tutherein.
lB9QCM,Annex111.53V , ol.3,p.309, para.173. TheCourt of Arbitrationalso stated:
"Events subsequentto the criticalperiod cm in principlealso be relevant, notin terms
of a changeof the situation, butonly to the extentthat they mayreveal or illustratethe
understandingof the situationas it wasduringthe criticalperiod ..."lm.
3.101 The present case is of course complicated by the consideration that Qatar has felt
bound to drawto the attentionof the Courtthe evidencein its possession demonstrating that,
during the critical period between 1930and 1939,Belgrave deliberately "manufactured"and
falsified evidence in order to buttress the Bahraini claim to Hawar. Accordingly, Qatar's
primary contention, on this evidential issue, isthat the Court rnust reject as being totally
inadmissible any evidence tenderedby Bahrain which it is satisfied was "manufactured"or
fabricated by or on behalf of Bahrain during the critical period from 1930 to 1939.
Additionally,or alternatively,Qatar contendsthat the Court rnust, inany event, refrain from
taking into consideration any evidence of activities undertaken by or on behalf of Bahrain
during the criticalperiod or later with a viewto improving Bahrain'slegal position in relation
to Hawar.
Section6. Inadequacyof Bahrain's evidenceto sustainaclaim of titleto the Hawar
islandsprior to 1936
3.102 As indicated above, Bahrain claims sovereignty over the Hawar islands by virtue of
the British decision of i 1 July 1939 which, it contends, is resjudicata. This contention is
dealt with elsewhere in this Counter-~ernoriail~'.Bahrain's alternative contentionis that its
title to the Hawarislandsis also supportedby a series of other considerations.This alternative
contention willnow be examined.
3.103 Bahrain claims that "the historical genesis of Bahrain'stitle to the Hawar Islands is
Bahrain's original dominanceand authority overal1the territories in the Gulf of Bahrain and
the Qatar peninsula"'92.It has already been demonstratedabove that Bahrain had no such
IgIbid.,para175.
19Seq paras.3.163,etseq.below.
'92BM,para.345.dominance and authority over the Qatar peninsula. Even assuming that Bahrain had some
apparent (and not real) rights in any part of the Qatar peninsulaor its adjoining islands, these
were permanently ended by virtue of the Agreements of 1868 whereby Qatar and Bahrain
were obliged to maintain maritime peace and therefore necessarily had no rights that either
could assert acrossthe watersthat separatedthem. Theterritorial integrityof the peninsula of
Qatarand its adjoiningislands wasconfirmedby numerouseventslg3.
3.104 The other aspects of Bahrain'salternative contention are: (i) that there is evidence of
the exercise of sovereign authority in the Hawar islands by or on behaif of the Ruler of
Bahrain; and(ii)that Bahrain'stitlewas recognisedby the "inhabitants" of the islands. Before
dealing with these aspects of Bahrain's alternative contention, Qatar considers it most
important to recall a vital fact. Bahrain makes no claim that its so-called sovereignty or
"authorityand control" over the Hawar islands was at any time recognised or acknowledged
by any of the other rulers or powers in theregion -a fact in sharp contrast to the recognition
of Qatar'sownership of Hawar by the British (untit 1936), the Ottomans and a number of
regionalauthoritiesas show in Qatar'sMemorial.
A. Bahrain's contentionsas to the Dowasirtribe are without any substance
3.105 Bahrain fiuther claimsthat its sovereigntyoverthe Hawarislands is supportedby "the
co~ltinuouspeacefd presence of a populationsubjectto Bahrain"'94A . s is apparent from what
is stated later in the Bahrain Memorial,this is a reference to theDowasirtribe which, Bahrain
seems to claim, have pennanentiy occupied the Hawar islands for some 200 years, during
whichtime a branchof the tribehas continuedto be Bahrainisubjects.
3.106 As has alreadybeen seen, this is a wholly inadequate basisto sustain Bahrain'sclaim
to title to the Hawarislandsboth becauseit islegally untenableand also becauseit is factually
inc~rrect'~'Bahrain cites no evidence at a11of any exerciseof its political authority over, or
even its acceptanceby, the Dowasirtemporarilypresent in the Hawarislands on winter visits.
At best it cites instances of individualactivities or ownership of huts and fish traps of those
193
See,paras.3.7,etseq., above.
"4 BM, para.345.who happened to belong to the Dowasir tribe. It is relevant to mention that the Court of
Arbitration in the Dubai/Sharjahcase dealt with a similar contention and rejected the
evidence of the activities of private individualsand of their property rights as demonstrating
effective contr~l"~.It stated that effectivecontrol of a territory dependedonly on the actions
of publicauthoritiesor individualsacting on theirbehalf.
3.107 There is no evidence in Bahrain's Memorial or elsewhere to show that the Dowasir
was the only tribe that had a presence in the Hawar islands nar that such presencc was
continuous or permanent. Although Bahrain allegesthat the "Occupation of the Islands by
Bahraini subjectshas ever since [1800 been open and continu ou^..."' ^^f,ct Bahrain itself
adrnitsthat:
"Many of the Dowasir who lived onthe main island of Bahrain spentfive months of
the year there during the pearling season and the remainderof the year on the Hawar
~slands"'~~.
A more accuratedescriptionis given by Prideauxwho stated in his letterof 20 March
1909after a visitto Hawarthat:
"The facts are that Dowasir of Budaiya & Zallaqan the north-west coast of Bahrain
are in the habit of every winterpartiallymigratingto Zakhnuniya & HawarIslands for
fishing (sharksas wellas edible fish)& ha~king"'~~.
3.108 There are otherclearindications thatsuchof the Dowasiraswentto Hawar only did so
in the short period of winter months for fishingand that othenvise they were engaged in the
principal Dowasiractivity of pearl fishing fromthe north-west coast of Bahrain where they
had their permanentestablishment. Thusthe Ruler of Qatar,in his letter to the PoliticalAgent
Bahrain of 30 March 1939, rightly pointed out that those of the Dowasir who signed the
I9'See,paras.3.82,etseq., above;see, also,QM,paras.5.38-5.39and6.seq.t
19691InfernationalLawReports,p.606.
'" BM, para.36. To similareffect are statemeinBelgrave's"Counterclaim"of 22 December1938 that
"..theinhabitantofHawarresidetherepemanently...(BM,Annex274, p. 1129,atp. 1134).
19'BM,para.419.Thisrepeatsandconfms anearlierstatementinBM,para. 52 thattheDowasir"wouldspend
thesummeratZellaqandBudaiyaonthemainislandof Bahrain and thewinteranthe Hawar Islands...".
'9BM,Annex235, Vol. 5,pp.1034-1035;emphasisadded.See, also,para.3.42,above.petition in support of Bahrain'scase were only fishermenwho fkequentlycame to Hawar in
the fishing seasonandstated:
"As to their real dwellings and places and their pearl-fishing boats, these al1 are at
Bahrainand its districtsas you will find confirmationof this statementin the enclosed
It may further be notedthat the translationinto Englishfrom the originalArabic of the
comments enclosed with the Ruler of Qatar's letter was incomplete, the following two
sentences having been omitted from the translation at the end of the penultimate sub-
paragraphofparagraph5and in continuationthereoQO':
"It is possible that they have lately sought refugethere fiom the cold weather in the
fishing season;this isa commonpractice on al1islands,Hawarincluded.This does not
constitutea permanent settlementaspresentedbythe BahrainGovernment".
3.109 The petitionerswho supportedthe Ruler of Qatar'ssubmissionof 30 March 1939also
focussed on this pointand cornrnentedwith regard to the statements of those submitted by
Bahrain:
O..The allegations made by the signatories of the document respecting Hawar are
untrue. If they arereally of those who frequent Hawar then they cannot be any other
thanthose fishemen who settle in Hawar and other islands during the winter for
Jishingwhentheyurefreefiorn fhepeurlfishingseason. They are perrnanentlysettled
in Bahrain,their boats, theirhousesandirnmovablesareal1in Bahraintt2".
3.110 In his separate statement, Muhammad bin Abdulla el-Ghurari testified that he
personally knew some of the individuals who had signed the petition in support of Bahrain
and stated:
"Thesepersons areinhabitantsof al-Zulaq a districtof the island of AwaI;their boats,
houses and properties are there. Theyhave no any connectionwith Hawar other than
their being fishermenwho cornetoit duringthe fishing seasonand then they leave for
2W BM,Annex279, Vol.5,p.1146, atp.1156.
'O'Ibid.at p. 1149.The omissionhasbeen pointedout to Qatarby a qualifiecitranslaterfkomArabic into
English.
Ibid .p. 1161;emphasisadded. their ownplaces at Zdaq, theyhave nothingat Hawar except shelterswhichthey have
set up becauseofnecessity for shelteringthem duringthe fishing~eason""~.
3.111 It may be noted that the translation into English from the original Arabic of the
comments enclosed with the Ruler of Qatar'sletter to Weightmanof 30 March 19392"was
incomplete,and that the followingtwo sentenceswere omitted fromthe translationat the end
of the penultimate sub-paragraph of paragraph5and in continuationthereofZo5:
"It is possible that they have lately sought refuge therefrom the cold weather in the
fishingseason;this is a comrnonpracticeon al1islands,Hawarincluded. Thisdoesnot
constitutea permanent settlementas presentedby the BahrainG~vemtnent"~~~.
3.112 These statementsand those by Bahrain mentioned above to the same effect207 clearly
corroborate each other. Furtherrnore, Qatar has already shown that apart fi-om Qatari
fishermen, Hawar was frequented by fishermen fiom a number of countries of the Gulf
including Bahrain.AnOttomanmap ofthe Hawarislandsof 1876and 1883indicatesnot only
the various tribes that visited Hawarbut also the locations where they had their seasonal
dwellings208.
3.113 In his letter of 4 April 1909, Major Prideaux reported his conversation with an
individualrepresenting "thetribalprincipalShaikh" whostatedto himthat:
"theDowasir regardedHawaras their own independentterritory,the ownershipof this
island havingbeen awardedto thetribe by the Kaziof Zubara morethan 100years ago
ina writtendecisionwhich theystillpreser~e"~"'.
Bahrain appears to base its whole claim of ownership of the Hawar islands for
200 years on this one sentencein Prideaux'sletter. Qatar submitsthat this basis of claim (for
whichthere has never been anyreal evidencesincethe "writtendecision"was neverproduced
203Ibid.atp.1162.
'O4QM,Annex 111.192V,ol.7,p.453.
'O5Ibid .tp.460.See,inconnectionwithwintervisitsof fishermetoHawarp , aras.3.91,seq.,above.
'OhThis has beenpointedoutoQatarby aqualifiedaanslatorfromArabicintoEnglish.
'O7See,BM,paras.52and419.
208QCM,Annex111.12V , ol.3,p.77.
209QM,Annex111.53V , ol.6, 245.to any British or otherauthority)is as fancifulas Bahrain'sclaim in its Mernorialthat because
the Dowasirsought and obtainedthe award of Hawar or permission to livethere from a Ka~i
of Zubarah "in about 1SOO"t,hey became"Bahrainis~bjects"~'~.
3.114 One obvious question isthe following:howcan there be any questionof Bahrain today
assertinga claim to sovereigntyover the Hawarislandsbasedupon occupationby its so-called
t'~~bje~t~(the Dowasir),who claimed the island to be their own and thus acknowledgedno
political authorityof Bahrain?
3.115 There is, in any event, no basis for Bahrain'sclairnthat the Dowasirwere its subjects
and that their occupationtherefore converted the Hawar islands into Bahraini territory. This
claim ignores the well-knownfact thatthe Dowasir, one of the most independent and strong-
willed tribes in the Gulf,livein or visited many coastalpartsinthe Gulf area forpearling or
fishing activities. Dowasir fishermenspent shortspells in winter on various islands including
Hawar and Zakhnuniya together with fishermenfrom a number of other Gulf countries to
engage in Fishing.The make-upand history of the Dowasir tribe make it clear that its
members were not subjects of the RuIer of Bahrain in the sense claimed by Bahrain in its
Memorial but that they forrned an autonomous tribal unit. Writing about the Dowasir in
Bahrain, Fuad1.Khuripoints out:
"Coordination between... autonomous tribal domains and Al-Khalifa ruler of the
country was achieved by mutual consultations carried out in the latter's council,
attended regularly by tribal chiefs. Failing to attend these meetings consistently was
construed as refusing to submit to Al-Khalifaauthority. Such was the case with al-
Dawasirchiefs,who attended only whenoficialIy invitedN2".
Similarly, Lorimer, writing in 1908, points out that the Dowasir are "Animportant
Arab iribe of SouthernNajd, having settlernentsalso on the coasts of the Persian Gulf' and
that:
"The Dawasir of Bahrain are said to have immigrated fiom Najd, whence they
gradually moved eastwards, and afier spending several years by the way oii
BM, para.36.
'"Khuri,op.cif.QCM,Annex 111.55,ol.3,p.319,ap.323. Zakhnuniyahisland, finally arrived in Bahrain about 1845under the leadershipof the
grandfatherof their present Shaikh.They have now about 800 houses at Budaiya'and
200 at Zallaq, both places on the Westside of BahrainIsland. About 30 householdsof
the tribe are settled at Dohah in Qatar and perhaps the same number in the town of
Kuwait. Offshootsfrom the Bahrain communityof Dawasir exist in the Persian coast
district of Dashtistan at Chah Kutahand its dependent villages and at the village of
Jazirehin Bushehrharb~ur"~'~.
This accounttells us a number of things. The Dowasir did not even arrivein Bahrain
until 1845.Some of them settled at Doha in Qatar as well as in Kuwait and others on the
Persian Coast. There has never been any claim, for the simple reason that it could never be
sustained,that anyof thesesettlernentsof the Dowasir conferredany rights of sovereigntyon
Bahrain in Qatar, Kuwait or Persia. Finally, there is not a word in Lorimer about any
permanent Dowasirsettlementon Hawar.
3.116 Khuri further notes:
"Al-Dawasir of Budayya and Zallaq ...were the most powerful, influential, and
autonomousof al1tribal groupsbecausethey were relativelynumerous, wealthy,and,
above alI, able to mobilize a wide varietyof tribal alliances on the mainland. Other
tribes exercised autonomyas grmted them by the Al-Khalifar~ler"~'~.
And Lorimernotes that :
"The Dawasir of Bahrain are a practically independwt community; they pay no
revenue to the Shaikh of Bahrainon account either of their pearl boats or their date
gardens..."2r4.
The Ruler of Bahrain did not have much faith in the Dowasir either. When Colonel
Ross, the Political Resident,met the Ruler of Bahrainin March 1879,the Ruler:
"...referred to an intention on his own part of chastising the Dawasir of Bahrain,
whomhe suspectedof treason andof collusionwiththeBaniHajirn215.
'12BM,Annex74, Vol.3, p. 371,at pp.378-379.
213Ktiuri,opcil., QCM,AnnexIII.55,Vol.3, p.319,atp. 324.
'14BM,Annex74, Vol. 3, p.371, app.382-383.
'''Lorimer,op.cil.QM,Aimex 11.5Vol. 3,p. 143,atp. 316.3.117 A particularly significant incident which demonstrated the independence of thc
Dowasir in Bahrain and the fact that its members were in no sense subjects of the Ruler of
Bahrain, was the departure of the Dowasir from Bahrain in 1923,as discussed abovc, when
certainreformswere soughtto be introduced which includedtaxation.Again,Khurinotes:
"... Tribal chiefs and pilots considered the reforms an encroachment on their
sovereignty and a limitation of their 'freedomin pearl production'. To them the
sovereignty of tribal groups was synonymous with that of independent States.They
abhorred the idea of being treated like other subjects in the country, as the reforms
proposed totreat them with referenceto taxes andcourts ofjustice.
Being the strongest tribal group in Bahrain, the Dawasir never recognized Shaikh
Hamadas successor, nor didthey pay taxes to the Al-Khalifa regime, on the grounds
that suchpayment implied a submissivestatusin tribalpolitics"2'6.
3.118 The description of events leading to the departureof the Dowasir from Bahrain in
1923,the glaring absenceof any referenceto any so-calledDowasir "subjects"continuing to
be "permanentresidents"of Hawar for five years from 1923to 1928,Bahrain'sadmissionthat
the Dowasir only spent the winter months in the Hawar islands, and the absence of any
evidenceof exercise of Bahrain authority overthe Dowasir in the islands, establish that there
never was such a permanent populationbut at most only itinerantfishermen never subjectto
any Bahraini authority. Bahrain's contentionof ownership of Hawar based on the Dowasir
occupyingit asBahrainisubjectsmustthereforefail forthis reasonalone.
B. Bahrain'sother groundsin supportof its claimto theHawar islands are equalIy
withoutsubstance
3.119 Bahrainsetsout a numberof othergroundsin supportof its claim of title to the Hawar
i~lands"~.Qatar proposes to examine irnmediately some of these other grounds (the 1878
Ottoman map, the Zakhnuniya parallel, the Bmcks survey, the incident of the Ottoman
''Wuri, op.cii.,QCM, Annex 111.55Vol. 3, p. 319, at pp. 325-326. For a detailed account of the
circumstancesin which the Dowasir departed from Bahrain fiom 1923 to settle in Da(SaudiArabia),
returningonly in i928/9, see,paras. 3.82, above,elaboratingon what saidinparas.6.51etseq.of the
QM.
'" BM,paras.412,etseq.soIdiers supposedly shipwreckedin 1873 and the alleged service of summonses on Hawar
"inhabitants"),while dealing with the remainder,under the heading "MiscellaneousBahraini
arguments",in Section7.Cof this Chapterbelo$18.
1.The 1878Ottomanmap
3.120 It has already been shown that Bahrain'saccount of the historical evolution of the
States of Qatar and Bahrain and some of the other facts regarding the nature of Bahrain's
influencein territoriesother than the Bahrainislands doesnot in anyway support its daim to
the Hawarislands. Qatar has also shownin its Memorialthat Ottomansurveysconfimed that
Hawar appertainedto Qatar;indeedthe Ottomanssurveyedthe Hawar islandsthemselves,and
raised their flag there in November 1873.The Ottoman map of Hawar previouslyreferredto
provides fiuther evidencethat fisherrnenfrom a number of countries including Bahrain were
continuing to visit the Hawar i~lands"~.In the face of al1this clear evidence, Bahrain's
contention that "there is cornpelling evidence that the Ottoman Empire recognised that the
Hawar Islands belonged to BahrainW2*i's , obviously shown to be false. In fact the only
evidence that Bahrain invoke~~~ is the so-calledOttomanAmy Survey of 1878, ie. thc map
opposite page 6 of the BahrainiMemorial. Qatarsubmitsthat this general map on the face of
it docs not in any way dernonstrate Bahrain'sownership of the Hawar islands; that the map
shows the Hawarislandsto be closely (indeedalmost indissolubly)linked with the mainland
of the peninsula of Qatar;and that the Ottoman surveys and maps submitted by Qatar and
referred to abovc are, by cornparison,clear and express evidence of Qatar'sownershipof the
Hawarislands.
2. TheZakhnuniyaparallel
3.121 It is then contendedby Bahrainthat merely because Zakhnuniyawas also frequented
by the Dowasir, in the same way as the Hawar islands, Bahrain had sovereignty overboth
Zakhnuniyaand Hawar;andthat merely because it was paidcompensationfor renouncingits
218
Paras. .143etseq.,below.
'19QCM, Annex III12,Vol. 3, p. 77.
22"BM ,ara.410.
22'BM,para. 425.claims to Zakhnuniya, this also amounts to acknowledgernentof Bahrain'srights ovcr the
Hawar islands. This is an extraordinary argument without any factual basis, and Qatar has
dealt with it fully elsewhere in this Counter-Mem~rial~~~ F.or the present, it is sufficient to
remind the Court, as stated in Qatar's Memorial, that when,after Major Prideaux visited
Zakhnuniyaand the Hawarislandsin 1909,hehad hoped thatthe Ruler of Bahrain wouldlay
claim to both Zakhnuniyaand the Hawar islands so that the British couldresist any Ottoman
claim to them,the Rulerin factwroteto the British to press hisclaims only to Zakhnuniya but
significantly refrained from doing so in respect of Ha~at.2~~F .urthemore, his claim to
Zakhnuniya was evenhially not accepted; and while the proximity principle was given full
effect in favour of Saudi Arabia in the case of Zakhnuniya, Qatar was deniedthe benefit of
similarreasoningin the case of theHawarislandsin 1939.
3.The Brucks survey
3.122 Bahrain also relies on a description of the Hawarislands (in this case referred to as
"Warden'sIslands") by a British Indian Navy Officer (Capt. George Brucks)on the basis of
his survey between 1821and 1829,to the effect that the principal island "is about four miles
long. It has two fishing villages on it, andbelongs to ~ahrain"~~~ A. part from the fact that
manyof the British surveys (includingthose in the "GulfPilot") carriedout at that time have
been shownto be impreciseif not inacc~rate~~' ,apt. Brucks'descriptiontakes no account of
the fact that the Ruler of Bahrain'sso-called "suzerainty" outside the main Bahrain islands
was more apparent than reai226h ;is description was, in any event, compiled longbefore the
Agreements of1868;and finally,it is contradictednot only by the independentdescriptionsof
the Hawar islands by Lorimer and other British authorities set out in Qatar'sMernoriai and
this Counter-Memorial,butalsobythe numerousOttomansurveys.
2" Seeparas.2.67etseq.,aboveand QCM,Appendix2, Vol. 5,p. 145.
2u QM,para.5.40.
'" BM,para.415.
'" See,para.3.14, h. 30, above.
226See,para.3.14, above. 4.The shipwrecked Ottomansoldiersof 1873
3.123 Bahrai11 refers to an occasionwhen it claims that in 1873, while the Ruler of Bahrain
"was staying on the Hawar Islands" and some passing Ottoman soldiers were ship-wrccked
there, he caused the soldiers to be helped by being transferred to the main island of Bahrain
and on~ards~~~ T.here is no evidencetendered to support this statementexcept a letter dated
22 Decernber1938writtenabout 65 years laterby Belgraveto the British PoliticalAgent.The
quality of this particular piece of evidence and other evidence tenderedin the course of the
British examination leading to the decision of 11 July 1939has already been dealt with in
Qatar'sMern~rial~~ and elsewherein this Counter-Memorialto show its total unreliability.
5.TheRuler of Bahrain's jurisdictionto servesummonson inhabitantsofHawar
islands
3.124 Qatar has similarly demonstratedthe wholly unreliable nature of the other evidence
tendered by Bahrain to the British in 1938 and 1939 including the so-calledjudgments in
cases allegedly decidedin Bahrainin 1909and 1910showingthe involvementof individuals
portrayed as "residents" of the Hawar i~lands~~~ Q.atar further submits that the letter of
15January 1911 from the Ruler of Bahrain to the British Political Agent230 provides no
support for Bahrain'sclaim that its Ruler had sufficient authority overthe Hawar islands to
compel the "residents"of those islandsto appear before its civil courts. It merely refersto the
Political Agent requiring an individual to corne from Hawar. It is in no sense proof of any
service of sumrnons on sorneone in Hawar.The letter also indicates that the individual in
question may only have been in Hawar temporarily for fishing as he was also carrying on
pearl diving activitieswhichhe could onlyhave donefrom Bahrain.
12'BM, para.432.
22RQM, ChapterVI.
229The unreliabilityof1909/10''judgments"of a Bahrain ctowhich referenceis made in paras.434-435
ofthe BM isdemonstratedinpara.6.17oftheQM.
CitedinBM, para.436. 6. Bahrain'spost-1936evidence
3.125 Bahrain has presentedan elaborateSectionciting evidenceof Bahrain'sauthority over
the Hawar islands since 1916 which it characterises as "o~erwhelmin~"~~'Q . atar will
demonstrate in Section 7.C below, under the heading "MiscellaneousBahraini arguments",
how most of this supposed "ovenvhelming"Bahraini "evidence"relating to fishing, pearling,
animal husbandry, gypsum quanying, permanent settlement and acts of administration or
authority is thoroughly unreliable, or relates to Bahraini activities engaged in subsequentto
the assertion of the Bahraini claim to the Hawar islands in April 1936 and designed to
improveBahrain'slegalposition232.
3.126 However, before concluding the submissions regarding the inadequacy of Bahrain's
evidence to sustain its claim of title to the Hawar islands, Qatarwishes to draw attention to
two instances where Bahrain's arguments appear to be based on inaccurate translations of
documents233.
3.127 In patagtaph 468 of the Bahrain Mernorial, Bahrainseeks to argue that Qatar had
recognisedthe jurisdiction of Bahrainover the Hawar islands by reference to a passage from
the English translation of a letter from the Ruler of Qatar to Weightman of 8 July 1938.
Again,there appearsto have been a mistranslationof this crucial passage,which occurs in the
second sentence of the EngIish translation of Annex 265 to the Bahrain Mern~rid~'~.The
Englishtext ofthis second sentence shouldread:
"Whenthe time for sea work started,he went to Hawar withthe intention of removing
and using his boat as usual without knowing of the interferences of the Bahrain
Government there, butthey [ie. theBahrain Government]arrested and assaulted him
and tookhim to Bahrain wherehe waskept in prison forone dayU2".
231BM,paras.438, etseq.
232See,paras.3.143, wq.,below.
233ThesehavebeenpointedouttoQatarbyaqualified translatehm ArabicintoEnglish.
234BM, Vol.5,p. 1118.
235Emphasisadded. This letter accordingly contains no admission that any such category of persons as
"residents of I-Iawar" existed at the time. Furthermore, the reference to the Bahrain
Govemment having arrestedand assaulted the Qatari victimon Hawar island constitutesno
admissionwhatsoever that they were entitled to do so, given that the purpose of the Rulcr's
letterwas precisely toprotest againstthis actionby the BahrainGovernment.
3.128 Again, the argument advanced in paragraph 469 of the Bahrain Mernorialappears to
be based, at least in part, on a less than fully accuratetranslation into English of the Ruler of
Qatar'sletter to Weightmanof 12 July 1938,that English translation constitutingAnnex 266
to the Bahrain ~ernorial~~~T.he translaterutilised by Qatar suggeststhat the last sentence of
the firstparagraph, andfromthenceto theend of theletter,shouldbetranslatedas follows:
"Some people on Hawar suddenly arrested them in an inhuman manner, without
hearingtheir statementsor enquiringintotheir business,andtook themto Bahrain.
Theyhad also arrestedIsa Bin Atiqreferredto in my letter dated 10thJamadi1, 1357.
In reality,1am extremely aggrievedby this happening. The continuanceof the high-
handed action of the people who areon Hawar to the poorwho pass that side without
any bad intentionis a matterwhichcannot betoleratedas it will injurethe feelingsand
give rise to disturbances.The boatsof Bahraini people frequently visitmanyplaces of
Qatarwhen they are forcedby circurnstancesowing to rough sea or shortageof water.
If we treat themin the samemanner as those who are on Hawar do, a field fortrouble
will be opened,and the pnnciples governing hurnanity,whose observanceis essential,
will bevioIated.
1trustthat you will pay your full attentionto this matterand put a stop to it. The high-
handed actionof those who are on Hawar to people who are compelled to go to the
island and who consider it to be one of their own, is disgusting and is contrary to the
principles of peaceand dignity.Moreover,these menwere sent by the Company todo
their work and therewas no reason fornot questioningthem andenquiring into their
business. 1would be grateful if you would kindly give yourfi111 considerationto this
matter".
23BM,Vol. 5,p. 119. How Babrain cm interpret this dignified protest against the inhurnanity displayed
towardstwo Qatarifishermen,landingin distressed circumstanceson Hawarto take on water
or to make enquiries, as a recognition of Bahrain'sright to exercise jurisdiction overHawar
entirely escapesthe understandingof Qatar. Thefactthat the Rulerof Qatar expressed himself
in polite terms is in no way to be taken an admissionthat those who were on Hawar at the
time (presumably those Dowasir suddenly and clandestinely introduced into Hawar by
Belgrave in 1936)were entitled to be there. The reference to the consideration that Qdaris
visiting Hawar considerit "tobe one of their own [islands]"is a quite sufficientdenial of the
Bahrain pretension to exercise jurisdiction in and over Hawar. There is accordingly no
substancein thisBahrainargument.
3.129 In its Memorial, Qatar, apart fiom asserting its original title to the Hawar islands and
citing evidenceof the consolidationof this titlehrough recognition by other States, has also
cited evidenceof its ownexercise of authorityoverthe Hawarislands.It is Qatar'ssubmission
that it has accordingly demonstrated theexistence of a prior Qatari title to the Hawar islands
andthat the evidence adducedby Bahrainin anattempt to sustainits own claimto the Hawar
islands is either inaccurateorunreliable and in any event is wholly inadequate to displace
Qatar'spriortitle.
Section 7.TheBritish decisionof 11July 1939
3.130 Under this heading, Qatar proposesto analyse the account given in Chapter 3 of the
Bahrain Memorialof the events leadingup to the British decision of 1939and various items
of evidence adduced by Bahrain in support of its claim of title to the Hawar islands, both in
1939 and again in 1996.Thereafter, Qatarwill considerthe Bahrainsubmissionthat Bahrain's
sovereigntyover the Hawarislandshas been resjudicata sincethe British decisionof Il July
1939,and cannotnowbe challenged. A. Bahrain's accountof events omitsmanysignificantfacts and embodiesa number of
misleadingstaternents
3.131 One of the most seriousmisleading statementsin the Bahrain Memorialis the constant
repetition ofthe statementthat the British Government"adjudicated"the respectiveclaims of
Bahrain and Qatar to the Hawar islands in 1939.The word "adjudication" is used at least
26 times in the Bahrain Memorialto refer to the processes leadingup to the British decision
of II Juiy 1939"; and the verb "adjudicated" or the adjectives "adjudicative" or
"adjudicatory"areused 5times in the Bahrain Memorial to referto these proce~ses~'~ T.he use
of inflated language of this kind is clearly designedto mislead the Court by conveying the
impressionthat the British decisionof 11July 1939was the result of a careful and impartial
legal process embodying al1 necessary guarantees against bias, prejudgment and ather
proceduraldefects and irregularitieson the part of the decision-maker.The Courtwill now be
in a position, having studiedthe respective Mernorialsof the Parties, to fom a view as to
whether the British Government'sdecision of 11 July 1939can properly be described as an
"adjudication"embodying al1the necessary procedural guarantees whichthe use of that term
embraces.Qatar,for its part, entertainsno doubtthatthe Britishdecisionof 11July 1939was
flawedfromthe outset for al1the reasons developedin Chapter VI of the QatarMemorialand
conveniently summarised in paragraphs 6.249 to 6.255 thereof. In no way can a process
sufferingfromthe defects already identifiedby Qatarbe termedan "adjudi~ation"~~~.
3.132 It bears repeating herethat among the nurnerous glaring omissions in the account in
the Bahrain Memorial of events leadingup to the Britishdecisionof 11July 1939 is the total
failure even to mention the claimto the Hawar islands on behalfof the Ruler of Bahrain first
fonnally put forward by Belgrave on 28 April 1936m, and the "provisional decision" in
- 237In paragraphs11,40,41,341,344,345, 352(twice),between 353 and354 (title354, 356, 357 (ninetimes),
between 358 and 359 (title),359,between380and381 (titl384, between403 and 404 (title),499 and534.
'''Inparagraphs39,352, 354 ("adjudicated"),355("adjudicative")and385 ("adjudicatory").
'"'The omissionsand misleadingstatementsin Bahrain'saccountof eventsrelating to nutureof the British
decision of 11 July, 1939are further developed in sub-sectionE of this Section (paraetseq.,below),
which dealswiththe rejudicuta argumentadvancedby Bahrain.
240See, paras. 3.6etseq., above.favour of the Bahrain claim to Hawarmade by the British Governmentas early as July 1936.
The effect ofthis slanted presentationisto convey thewholly false impressionthat Qatarwas
advancinga daim to the Hawarislandsfor thefirst timein May 1938241B . ut there is strong
evidence, set out in detail in Chapter V of the Qatar Memorial, that,during the period from
approximately 1867to 1915 when the Ottoman Turks werepresent in the area, the Ottoman
authoritiesrecognisedthat the Hawarislands constituted an integral part of Qata842.Itinerant
fishermenfrom Bahrain,Qatarand theHasa coast did no doubt make occasionalvisits to the
islands during the winter months, as Prideaux (Political Agent) reported to the Political
Residentin 1909,but these intermittentvisitswere notregardedby the Ruler of Bahrain at the
time asjustifying a claim by him to sovereigntyover the islands.He would in any event have
found it somewhat embarrassing toput forward sucha claim, since he had already requested,
in a letter of 7 July 1907to Sheikh SaeedAl-Mutawwa Al-Binhajer (Sheikh of the Western
Ports of Qatar), permission for Bahrainis to anchor at Hawa, acknowledging his
responsibility forany misbehaviour by Bahrainis "on your island and in your country"243.
Similar requests to anchor at Hawarwere made to the Sheikh of the Western Ports of Qatar
(acting on behalf of the Ruler of Qatar) by other prominent mernbersof the ruling îamily in
Bahrain or by members of the Dowasir tribe during the years 1907 and 1908244S .Ohere is
more evidenceof recognitionin 1907by the then Rulerof Bahrainof Qatarititle to the Hawar
islands,thisnecessarilyimplyinga disclaimerof Bahrainititle.
B. Thetruesignificanceof Annex 292ta the BahrainMemorial
3.133 Qatar is now obliged to draw to the attention of the Court a strange but highly
revealing featureof the Bahrain Memorial. Instudying the annexes to that Memorial, Qatar
has uncovered materiais which,far fiom buttressing Bahrain'scase, in fact provide striking
confirmationofthe evidencein the QatarMernorialshowingthelengthsto whichthe Ruler of
241See,BM, paras.355etseq.
242See,QM, Map 4, Vol. 17See,alsoQM, paras.3.13-3.14 a5.15, eseq.,andthesurveymapsreferred to
therein.
243QM,Annex111.49V , ol.6, p.225;see, also,QM,para.5.49.
2M QM, Annexes111.48and111.50, ol.6,pp221 and229;see, also,QM,paras.6.180etseq.Bahrain and the other sheikhs of Bahrain wereprepared to go in the 1930sto destabilise and
undermine the authorityof the Ruler of Qatar in his own country. Annex 292 to the Bahrain
Mern~rial'~~,which is given the heading "Report entitled 'Qatar' by H. Weightman,
5 December 1939"is a remarkably indiscreet accountof the continuous effortsof the leading
Bahraini families to sow disaffection and discord arnong those tribes in Qatar professing
loyaltyto theRuler of Qatar. Qatarcan reveal (andthe interna1evidenceof what is said in tlie
Report confirmsthis) that this Reportwasnotin factpreparedby Weightman,but was rathera
confidential Report submitted by Packer (PCL) to Weightman in the latter's capacity as
Political~~ent~~~ In. paragraph372 of the Bahrain Memorial,the Packer Report of 1939 on
Qataris cited as authority for the propositionthat, in the 1930s,Qatar experienced widespread
poverty, hungeranddisease.Qatar doesnot disputethis; nor is it seriouslydisputedthat Qatar
was concernedto stop the flow of emigrationfrom Qatarto Bahrain which, during the latter
half of the 1930s,was much wealthierthan Qatar. In paragraphs 378 and 379 of the Bahrain
Mernorial, the causes of dissatisfaction in Qatar are stated to be (citing from the Packer
Report) "poverty dueto the pearl slumpandlackof employment"and "the Ruler'sand his son
Hamed'sgreed which makesthem notonly ...retain al1the oil money but also control fortheir
own benefit employrnentin the oil Co." There is certainly much truthin the first of these
asserted causes of dissatisfaction. Qatar would submit that the second is somewhat
exaggerated, this mour being spread abroad by Weightmanand by the Bahraini sheikhs
anxious to underminethe authority of the Rulerof Qatar; indeed, footnote 444 to paragraph
379 of the Bahrain Mernorial veryfairly concedes that "oil revenues in Qatar in this period
were limitedto exploration fees".
3.134 Accordingly, it is not so much the content of those passages in the Packer Report
relied upon in paragraphs 372, 378 and 379 of the Bahrain Memorial which Qatar wishes to
challenge.It israther thevery selectiveusewhich Bahrainmakesof Annex 292to the Bahrain
245BM,Vol.5, p.1190.
*" Indeed,Qatarhasnowdiscovered,andattachesasQCM,Annex111.48,Vol.3,p.275, acopyof Weightman's
letterto Priorof 5 Decernber1939,coveringthePacker Rtf thesamedatewhichconstitutesAnnex292 to
theBM. TheCourtwiUnotethat thevariousmarginalcommentsonPacker'snoteare,accordintoWeightman,
"largelydesignedto tone downthe impressionthatthe BahrainShaikhsareorganisinga secret campingn
Qatarto knockdownthe AlThanifamily".Memorial. What Qatar wishes to draw tothe attention of the Court are those passages in that
Annex which testify to the unremitting efforts of the Ruler of Bahrain and other leading
Bahrainisheikhsin the late 1930sto spreaddiscordanddissensionin Qatar, therebyhopingto
securethe overthrowof the Rulerof ~ata?~~.
3.135 Thus, the Bahrain Memorial,having cited in paragraph 378two of the three causes of
dissatisfaction in Qatar mentioned in the 1939 Report, singularly fails to mention the third
cause of dissatisfaction,namely "intriguesfrom Bahrain".It also fails to draw attentionto the
examples of such intrigues given in the 1939 Report. Thus, on the very first page of
Annex292 appearsthe followingpassage:
"(The Bahrain Shaikhswho were responsible for the departure, last year, of the Ruler
of Qatar'sstrongest adherent in western Qatar Mansur bin KhaliI of the Bani-Hajir,
who was very activeon the Qatarside in the Naimclash, never lose an opportunityof
spreadingdiscordinthe Westandnorth)".
3.136 More details of these "intrigues from Bahrain" are given later in Annex 292 to the
Bahrain Mern~rial~~' A.fter referringto the defeat of the Naim tribesmen at Zubarah in 1937,
the 1939Reportcontinues:
"Theloss of prestige wasfelt very deeply by the Bahrainruling family. Sincethen the
majority of the Naimhave been subsidizedby Bahrain and live in Bahrain or Arabia.
A section of the Bani-Hajirunder Mansur bin Khalil formerly a staunch adherent of
Shaikh Abdullaof Qatar were next alienated by money andpresents. Shaikh Mansur
draws Rs 60p.m. [permonth]and 25 of his followersRs.11eachnz4'.
247The device of selective quotationutilised so frequently by Bahrain in the BM is of course one that is
frequentlytilisedby theatricalmanagementinthe Westernworld.A recentexampleisaffordedby a reviewof
Shakespeare's "Hamlet" which, asreported in the Londonnewspaper TheIndependentof 20 November 1996,
read as follows:
"Thisproduction ofHamletis one to see at your peril. In thirty years watchingSha1have experienced
nothingto equalit for crassness,banalityandsubversionof the text".
The management of the theatre indulgedin some creative misinformation by summarizing this review as
follows:
"ThisproductionofHamlet isone to see.1haveexperiencednothingto equali...".
248BM V,ol. 5,p. 119atpp. 1191-1192.
249Laterin the 1939Report (ibidatp. 11921itis however stated: "Mansur[bin Khatil]who heid a lucrative
job in the ail Co. in Qatar is consideringa return to the oil Co. and his old grazinggrounds".The reliabilityof
this statements obviously enbancedif, as Qatar has nowbeen able to establish,the 1939Reportwas prepared
by Packerof PCL.3.137 Further details of efforts by the Bahraini ruling farnily to suborn leadingQataris are
also given inthePackerReport250:
"Dis-gruntIed members of Shaikh Abdulla'sfarnily were also encouraged to leavc
Qatar andreside in Bahrain where they were givenpresents & salaries (includinga
motor car orits use). Twoof themweretaken to Indiawith H.H. ShaikhBarnad.
Dohah'smost reputedmerchantwas recently invitedto sever his connectionsin Qatar
& settle in Bahrain2*The inability ofthe Ruler of Qatar to move with the times is
exploitedto the full byBahrain".
Tribal sections stated to have been "slightly affected"by Bahraini attempts to suborn
them from their allegianceto the Ruler of Qatarare the El-Sulta, some of whose leadingmen
"wererecently in Bahrain and received cash presents from the Ruler"; theBeni Hajir whose
move fiom Qatar to Arabia was "brought about by the Bahrain Shaikhst';the Naim who,
following the Zubarah clash, are reported to have been "boughtover by Bahrain" practically
to aman, though some werenimoured to be drifting back 10Qatar; and the Mehanda, said tu
becloselyalliedto the Beni Hajir.
3.138 Perhapsthe most telling omissionfiom the summary,in paragraphs 372, 378 and 379
of the BahrainMernorial,of the contentsof the Packer Reportof 1939on Qatar is the failure
to mention what is said in that Reportaboutthe Hawar islands.The key passagein the 1939
Reportis the following:
"Bahrain have been 'inpossession' ofthe main Hawar Island for some time & in a
positionto annex & mark anythingthey pleased within reachoftheir fort.
If isnot knownon what authoris or documentsthe annexationshave hem made,
certainlythe documentheldby one Mohd.binAhmadbin ShahinDausari given him
by ShaikhIsa of Bahrainhas been in all probability considerabdyexceeded,as only
ninenameswerequored b-y
1bid.
This maywell be a referenceto Abdullahbin Darwish,who wasthe leadingmerchantin Dohain the late
1930s. Referenceis madeto hirn in QM,para.6.and QM, Annexes 111.175, ol. p.385, and111.286,
Vol.8,p.421.
252BM,Annex292, Vol. 5,p.1190,atp. 1194;emphasisadded.lncidentally,MohamedbinAhmadbinShahin
was, accordingto evidenceçubmitbyBelgraveoutof timeon 20 April1939,alsopartoacaseconcerning
propertyin Bahrainwhichhadbegunin 1932,atwhich time thjudges in the case beforethe Bahraincourts3.139 The underlined passage is prima fucie puzzling, even if illuminating. The puzzling
featureis that, if the 1939Report hadbeen preparedby Weightman(as Bahrain professes),he
above al1 would have been aware on 5 December 1939 (the date of the Report) of thc
"authority" and the "documents" relied on for the "annexation" of the Hawar islands by
Bahrsiin.It will be recalled that it was the analysis made by Weightmanhimself, in his letter
of 22 April 1939to the Political ~esident'~~o ,f the documentation submitted tohim by or on
behalf of the Rulers of Bahrain and Qatar with referenceto their claims of title to Hawar
which was reliedupon so heavilyby the British Governmentin reaching a decisionon Hawar
favourable to Bahrain. Read in this light, and even if Qatar had not discovered a copy of
Weightman'scovering letter to Prior of 5 December 1939,the underlined passage confirms
thatthe Report was not in factwrittenby Weightmanpersonally.
3.140 The illuminatingfeature of the underlinedpassage is the reference made in it to "the
documentheld by one Mohd.bin Ahmadbin ShahinDausari".This is probablya reference to
the petition enclosed with Belgrave'sletter of 22 December 193813 January 1939 to
Weightman constituting the so-called counter-claim of Bal~rain~'~ It. will be seen that this
petition is subscribed to inter alios by "Mohamad b. Ahmad b. Shahin", presurnably the
person to whom reference is made in the underlined passage fiom Annex 292. If ihis is
correct,the consequences are seriousfiom Bahrain'spoint of view, for the underlinedpassage
Statesnot only (a) that the document was givento him by Shaikh Isa (the Ruler of Bahrain),
thus destroyingits credibilityas a spontaneouspetition, but (b)that onlynine narneshad been
quoted by him, whereas fourteenthumb impressions,threesignaturesandtwo seals appear on
the faceof the petition.In the lightofthe evidencewhich Qatarhadproduced in its Memorial,
including the evidence of the written confessionsof Yousuf binAhmed, Ahrned bin Ali Al-
Ghatam and IrhamabinAhmed Al-Dosariss, Qatar had alreadyconfidentlysubmittedthat the
reliabilityofthe statementsmade in thepetitionhad beenwholIy~nderrnined~~~.
(Case No. 264) had been the Rulerof Bahrainand Belgrave;so he had every reasonto cany out their
instructions.See,QM,Annex 111.19V,ol.7, p.489atpara.6;see,also,QM,para.6.191.
253QM,Annex111.195V , ol.7,p.497.
254BM,Annex274,Vol. 5,p. 1129.
255QM,Annexes111.77 and111.79V, ol. 6,401 andp.409.
256QM, paras.6.59,et seq., and6.165.3.141 The new evidence contained in the underlined passage of Packer's 1939 Report
providesindependentconfirmation,j?oma documentput inevidencebyBahrainitseEft ,hat no
crcdencewhatsoevercanbe attachedto the petition annexedto the Bahrain "counter-claim"of
23 December 193813January 1939. A document givento one ofits signatorieby the Ruler of
Bahrain himself can hardly be accounted an objective statement of the facts, even if there
wereno independent evidenceto provethatthe documenthad beendraftedby Belgrave.
3.142 The Court willbe awarethat Qatarhas consistentlycharged Weightman with having a
deep-seated anti-Qatar biasin the contextof the dispute over the Hawar islands. How deep-
seated this bias wascanbejudged by a study of Weightman'scovering letter of 5 December
1939 to Prior, whereWeightman almost welcomesaneventual attempt on the life of Sheikh
Harnadas and whenhe becomesRulerof
C. MiscellaneousBahrainiarguments
3.143 Qatar would now like to respond to some miscellaneous arguments advanced by
Bahrain in its Memorial.Not al1ofthese argumentsarestrictlyrelatedto the British decision
of 11July 1939,or to the evidence adducedby Bahrainin support of its claim of title to the
Hawar islands, both in 1939and againin 1996;but it isconvenient todealwiththem here.
3.144 Qatar rejects as utterly false the statements made in the last three sentences of
paragraph 39 of the Bahrain Memonal about the lack of Al-Thani, Ottoman or Qatari
authority in or over the Hawar islands. Both in the Qatar Memorial and in this Counter-
Memorial, Qatar has produced a mass of cogent evidence totally contradictingthe charges
made inthese sentences.
3.145 The ridiculous assertions made in paragraphs 360 and 361 of the Bahrain Mernorial
that the Ruler of Qatar, in his letter ta Weightmano30 March 1939258w , as ignorant of the
location of the Hawar islands, or was claiming a dzflerenfgroup of islands, hardly merita
25QCM,Annex111.48V , ol.3,p275.
Mich Bahrainwronglyrefersto asthe"Qatar ejohder"reply. It is possible thatthe Ruler was misinformed of the surface area of the main Hawar
island, but itis clear that he was referring to the Hawar islands locatedimmediately off the
west Coastof the mainlandof Qatar.Tlie citationfiom paragraph 9 of the comments enclosed
with that letter in paragraph 361 of the Bahrain Mernorial is explicable if one looks at
paragraph 8of those comments wherethe rhetorical questionisposed:
"... we ask the Bahrain Governmentwhether the Hawar Islands, from a geographical
point of view, compriseof a part of Bahrain completingit fiom the south or a part of
Qatarcompletingit fiom the n~rth?"'~~
The first sub-paragraphof paragraph9 of the cornmentsthen convincingly refutes the
assertion that the Ruler of Bahrain knowsmore about Hawar than the Ruler of Qatar by
pointing to the undisputed fact that, ai least at low tide, it is possible to wade from the
mainlandof Qatarto Hawarisland.
3.146 It is instructive to compare the versionof the Ruler of Qatar'sletter to Weightmanof
30 March 1939with attached comments, whichis reproduced as Annex 279 to the Bahrain
Mem~rial'~~w , ith the version of the sarne letter reproduced as Annex 111.192to the Qatar
Mern~rial~~'I.t will be seen that the version reproduced as Annex 279 to the Bahrain
Memorial incorporates typed-up versions of the marginaI notes made by Weightman which
are illegible in the version reproducedas Annex 111.192 tothe Qatar Memorial.A close study
of these marginal notes reveals again the anti-Qatar prejudice of Weightman and his
pronounced pro-Bahrain bias.Thus,opposite paragraph3 of the cornments where the Rulerof
Qatar has queriedwhy the Hawar islands have remained so long unoccupied by a Bahraini
military detachment when itis claimed that they have been owned by Bahrain and occupied
by Bahraininationalsfor overa century,Weightman puts the marginal comment:
"But Shaikh Abdullah [of Qatar] does not claim that Qatar detachments or
representativeswerein Ha~ar"~~~.
259BM,Annex279,Vol.5,p. 1146,atp. 1152.
260BM,Vol. 5,p. 1146.
26'QM,Vol.7,p. 453.
262BM, Vol. 5p. 1146. By way of contrast,when theRuler of Qatar askswhy, if Bahrain has had sovereignty
over the Hawar islands for more than a century, no security detachment or representativc of
the Ruler of Bahrain was sent to Hawar, Weightman's marginal note, opposite paragraph 6 of
the ~omments*~'i,s simply "Why?".Weightman stigmatises as "Untrue"the statemcnt made
by the Ruler of Qatarin paragraph 12of the commentsthai some of the Dowasirwho signed
the petition enclosed with the Bahrain"counter-claim"had no real connections with Hawar,
although it is now clear that this statementwas fullyjustified. Al1of Weightman'smarginal
comments reflect his pro-Bahrainand anti-Qatar bias,in relationto the conflicting claimsof
title to Hawar.
1.Fishing
3.147 If we turn to the positive evidence whichBahrain invokes of Bahrain's continuous
authority over the Hawar islands since 1916,we find a number of curious paradoxes. With
respect to fishing,it is said in paragraph439 of the BahrainMernorial,citing as authority the
(uninvited) "preliminarystatement"forwarded byBelgraveto Weightmanon 29 May t93 8,2h4
that fishing rights off the shoresof Hawar wereoriginally grantedto the people ofHawar by
the Rulerof Bahrain. Belgrave's"preliminarystatement"goes onirnmediatelyto say:
"Ifthesedocuments are availabletheywill be f~rwarded"~~~.
Needlessto Say,they werenot fonvarded. Qatarwauld suggest that as much credence
can be attachedto this claimas could havebeen attachedto the other claim madein the same
paragraph of Belgrave's "preliminary statement" that theHawar fish traps were registeredin
the Land Departmentof the Bahrain Government (this latter claim having tobe withdrawn
unreservedly by Belgrave at a later stage). Qatar does not dispute that other itinerant
fishermenfrom Oman and theHasa Coast,as well as from Bahrain,may have been presentoii
2b3Ihidat,p.1150.
*" BM,Annex261, Vol. 5,p.1106.
265Ibidatp.1109.Hawar dnring the winter fishing seasons in the early 1930s.But their presenccwas no more
evidence of Bahraini title than it was evidence of Omani or Saudi title; and the supposed
"settlement"of the Dowasir on Hawar in the mid-1930s was, as we have seen, contrived by
Belgravesothat its value as evidencecanbe totallydi~counted~~.
2.Pearling
3.148 The next item of "evidence" of title invoked by Bahrain relates to pearling. In
paragraphs444 to 447 of the Bahrain Memorial,much attentionis devotedto the strong links
of the Dowasir tribe with the pearling industry. Qatar does not dispute that many of the
Dowasir did engage in pearling in the 1920s and early 1930s. But Qatar does dispute the
accuracy ofmany other assertionsin these paragraphs of the Bahrain Memorial which,taken
together, convey a whollyfalsepictureof the position.No doubt, as is stated in paragraph444
of the Bahrain Memorial, the pearling industryat this time did occupy many Bahrainis;but it
also occupied many Qataris, Kuwaitis and indeed other Arabs living along the southern
littoralof the Gulf,As theLawOfficers'Opinionof 19October 1904rightly says:
"Apparently al1the tribes fish for pearls wherever they are to be found, and no tribe
hasexercised a right excludingthe othertribesfromanypart of the fi~her~"'~~.
What Qatar does however strongly challexige is the assertion that "a permanent
pearling fleet" was moored atHawar. There is no real or indeed plausible evidence for this
assertion.The Bahrain Memorialcites Weightrnan'sletter of 22 April 1939for this assertion,
but al1that Weightmansaysis that he sawfour DowasirpearIingboats drawnup on the beach
at Hawarduringhis visit on 18April 1939,and that:
"Were the Dawasir purely temporary visitors to the island, with their permanent
habitationsin Zellaq, their pearling boats would notbe beachedin Hawar""'.
266See,QM, Annex III. 14Vol.7,p. 199andAnnex111.223, Vol. 8p. 103.
'*'BM, Annex32 1,Vol.6, p1431.
lb8BM,para.445 andBM,Annex281, Vol. 5,p. 1165atpp. 1169-1170.3.149 Qataris in any eventhighlyscepticalof the accuracyof Weightman's evidenceon this
point. The main pearling season in this part of the Gulf runs fromJune to September.Why
would pearling boats be at Hawar in April? Moreover,pearIingboats are normally about 60
feet long and would find it difficult,if not impossibletonavigate in the very sliallowwaters
surroundingthe main Hawar i~land~~A ~.pearling boat of this length would be incapable of
beachingin the Hawarislands.In any event, thereis no evidenceof pearl fishingfrom FIawar
or in any part of the waters between Bahrainand Qatar, so that it would have been pointless
(an dazardous)for anyone to bring his pearlingboatto Hawar.
3.150 The Bahrain Memorial also cites the statement madeby Hamoud bin Muhanna al
Dosari as authority for the assertion that pearl diving on a significant scale took place from
Hawd7". Even if this statementmayseemto lend some support to the implied suggestionthat
the Dowasir went on pearling expeditionsfiom Hawar, that implied suggestionis in fact
wholly denied by the other three statemexitsmade by Nasr bin Makki bin Ali al osar ri"',
Salman bin Isa bin Ahmad bin Saadal osar ri'^and Ibrahim bin Saiman bin Ahmed Al
Ghattan~~'~ al1of whom without exception speakof leaving Hawar to return to Zellaq to go
pearl diving in the surnrner. This in itself indicates that pearling activities were in faci
undertaken from the mainBahrain island and not from Hawar. Qatar would in fact suggest
that the recollectionsof Hamoud binMuhanna bin Hamad al Dosari on this and many other
points are faulty. His evidenceabout pearling expeditionsfiom Hawar and the mooring of
pearling dhows at Hawar (paragraph 20 of his statement) is suspect and is in any event
inconsistentwithwhat he says (inparagraph5 of his statement) about the Dowasir comingto
Hawar everyyear "afterthesurnmerpearling season". As alreadyindicated,the main pearling
season in this part of the Gulf runs from 3uneto September.The pearling banks were in the
'" A photographof atypical pearlingboatutilisedaroundthesbythetribesinhabitingthe southernlittoral
ofthe GulftakenfromA.M.Abu-Hakima, EasternArabia -Qafar -Historicphotogruphs 1921-1950, Vol. III,
London,1995, p. 16,is reproducedoppositethis page. Thisshowshow suspisWeighîman's"evidence"on
this point.
2'0BM,Annex313(a),Vol. 6,p. 1363,atp.1367.
27'BM,Annex3 14(a)Vol.6, p. 1379,atp. 1384.
BM,Annex3 15(a)Vol.6,p. 1392,atp. 1394.
'" BM, Annex316(a),Vol.6,p. 1400,atp. 1405.Photograph taken fro~iA. M. Ab~i-Hakima, EaslertiAriiliiiQatar - Wisturii phutugrap/~s 1921-1950,Vol. III, London, 1995opensea to thenorth of Bahrain,and not in the shallowconfinedwaters between Bahrain and
Hawar. The Dowasir pearling boats would accordingly have operated from Bahrain itsclf
when setting out on pearling expeditions; and the implied suggestion that some of the
Dowasir perrnanentlymoored "three or four large dhows with 150 to 250 men" on Hawar
island is utterly fanciful.All in all, the recollections ofHarnoudbin Muhanna bin Hamad al
Dosari about the pearling activitiesof the Dowasir suggesta very rich cornmunityon Hawar
in stark contrast to the picture he paints of their fishing activities where he claims (in
paragraph 18 of his statement) that,if fish traders did nat corne from Muharraq to buy the
freshfish, he andhiscornpanionshad to tatkethe fish "and sel1it in Muharraq for one or two
rupees", remarkingthat "evenin those days, that was not much money". Theinconsistencyis
striking.
3.151 Accordingly, what is said in paragraphs444 to 447 of the Bahrain Mernorialprovides
no realevidencethat the Dowasir were permanently resident onHawar(even if their activities
could be regardedas activities ofBahrainisubjects- which Qatar strongly denies in view of
their shifiing allegiances). The false and misleading nature of the Bahraini evidence on the
significance of pearling to the Dowasir in Hawar is further evidenced by two additional
points. The first isthat there is no independent evidenceof pearlingactivitieson Hawanyn
of the books writtenon pearling in the Gulf in the 1920sand 1930s,someby Bahrainiwriters.
The second is thetotallack of mentionin the narrative in Volume 1of the BahrainMernorial
of the punishmentsimposedon the Dowasir tribe by the Ruler ofBahraitias a consequenccof
their voluntary settlement in Dammam from 1924 to 1928/29. The Political Agent's
memorandum to the Political Resident of 24 May 1924 recalls the Ruler of Bahrain's
statement thatthe action whichwouldbe taken to punish the Dowasir for their contumacious
behaviourwouldbe:
"1. Their divers who are domiciled in Bahrain would be fieed from indebtednessto
them & allowedto contractwith new nakhudas. This has been done & al1such divers
were given 'Banvahs'and have foundjobs elsewhere.
2. Theirproperty in Bahrainwouldbe confiscatedby the Bahrain Government & sold.
Ithas beenconfiscated.Its disposalwas sanctionedby the Colonial Office& Govt. of
India, actual sale of their proper&y particularly of the sites at Budaiyeh has been delayed until the arriva1 of the levy corps in order that steps rnay be taken to
adequately protect thenew owners from possible petty raids, although the danger of
suchraids is now consideredto be very remote, the Dowasir being now convincedthat
they canexpectno active supportfrom Bin Saud,who waswamed by 1-I.M.G.
3. They would be forbiddento diveonthe Bahrain pearlbar~ks''~~~.
The remainder of this memorandumis devoted largely to the practical arrangements
for ensuringthe implementationof point 3, althoughthere is an interestingexplanationof the
reasonsfor points 1and2.
3.152 The memorandumstatesthat most ofthe acute feelingbetween Sunnisand Shiahshad
been due to oppression of Shiahdiversand cultivatorsby the Dowasir. It was felt that if they
continued to own property in Bahrain and to have Shiah divers,oppression wouId continue
and the perpetrators would be able to run off to Dammam and escape justice and in al1
probability daim the protection of Ibn Saud, resultingin constant friction and providing the
Sultanwith a convenientpretext for interferenceinthe interna1affairsof Bahrain.This part of
the memorandumtellingly concludes:
"TheShaik had never been able to control them [the Dowasir] & they would oppose
al1effortsat reform,sothat onthe wholeBahrain was well rid ofthem"z75.
3.153 This is the tribe which Bahrainprofesses to consist of loyal adherentsto the Ruler of
Bahrain, permanently resident in the Hawar islands. It is hardly surprising that Qatar is
obliged to express astonishmentatthese effortsto misleadthe Court.
3. Animai husbandry
3.154 To the extent that the Dowasir may have engaged in animal husbandry by grazing
cattle, sheep and goats on the main Hawar islmd during the early 1930~~'~ t,is could only
have been inthe winter monthsdueto the semi-nomadicnature of their sporadic presenceon
274BM,Annex325,Vol.6, p. 1439.
275Ibid .,p. 1440.See,also,paras.3.82, etseq., above.
'''BM, paras.448, seq.the island, and the number ofanimals involved must have been very limited in view of the
perennial shortageof water. They would only havebeen for the personal use of those present
onHawarduringtheir wintervisits.
4. Gypsum quarrying
3.155 Qatar does not dispute that some gypsum quarrying may have been carried out by
those temporarily residenton Hawar duringthe winter monthsin the early 1930~~~a ',lthough
there is no realproof ofthis. TheCostaReport,introducedinto evidenceby Bahrain,suggests
that the gypsum extractedfrom the two smallerquarries was rnainlyfor local use but that the
gypsurn from the third quarrywas not for localuse, but presumably foruse elsewhere, for
which no evidence has been presented. The other main source of evidence for gypsum
quarrying, the statement of Ibrahim bin Salman bin Ahmed Al Ghatta~n'~~ i, unreliable. He
says:
"Men from the main island of Bahrain would also corne to cut the gypsum from the
centre of the main Hawar Island. They came in many dhows with permits from the
BahrainGovern~nent"~~~.
This statement is repeated in very similar language by Hamoud bin Muhanna bin
Harnadal ~asari~~~ B.utthislast goesonto say:
"Thepermits [for gypsumcutting]were issued by the Bahrain Chiefof Police, Sheikh
Khalifa bin Mohammed.He used to stay on the main Hawar Island in the police fort
and meetthe Do~asir"~~'.
If true, this would inevitablyimplythat the permits forgypsum exttaction were being
issued afterthe springof 1938,sincethe new fort was not completeduntil March 1938.If so,
27BM,paras.454,et seq.
278BM,Annex316(a), Vol. 6p. 1400.
279ïhid., atp. 1403.
BM,Annex313(a),Vol.6, p. 1363,atpp. 1347-1368.
Ibid., atp. 1368.He alsoStates(atp. 1367)thathe andhis cornpwouldcook fishin "anoven on the
beach by diggingalargeholand liningitwithgypsum".Suchanelaboratemethodof cookingwas not known
intheGulfatthetime.this evidencerelatingto eventsin 1938shouldbe disregardedas supportingBahrain'sclaim of
title.
3.156 Ttisin any event strangethat if, as Bahrainnow asserts, "Hawargypsumwas quaried
throughout the 19fhand20' Centuriesand used as building material for construction on both
the Hawar Islands themselvesand on the main islandof Bahrain and Muharraq~sland"~~n ~,
reference was made to this activity in the Bahrain"counter-claim"of 22 December 1938/3
January 1939.In fact, the only mention of gypsum extractionin the materiah submitted by
Bahrain in support of its claim to Hawar in 1938/39 is in the (uninvited) "preliminary
statement" preparedby Belgrave and submitted to Weightman on29 May 1938.There it is
simply said that "the island[Hawar]is rich in gypsum".This "preliminary statement"was, of
course, nevercopied tothe Rulerof Qatar. The fact thatno reliancewas placedby Bahrainon
the activity of gypsum extractionin 1938/39is revealing; it suggests that Bahrainwell knew
that no evidential value could be attached to this activity (to the extent that it was being
carried out),as it was not in any eventbeingcarriedout by the "HawarIslanders"(a supposed
reference to theDowasirwhich Qatartotally rejectsbecauseof their semi-nomadiclifestyle),
but apparently byBahrainis fiornthe main Bahrain island. It also suggests thatsuch gypsum
as mayhave beenextracted before 1936was only for local use. Whetherany gypsum quarried
in Hawar was ever exportedto Bahrain is highly problematic. It seemsprima facie unlikely,
given the presence of good quality gypsum at places on the Hasa coast much nearer to
BudaiyaandZellaqthanHawar.
5.Permanent settlement
3.157 Most of the other additional "evidence" of permanent settlement adduced in
paragraphs 458 to 465 of the Bahrain Memorialcan also be wholIy discounted because it
relates to activities which occurredaiter tlie Bahraini "occupation" ofHawar in 1936/37and
which were designedto supportBahrain'sclaimoftitle. TheFebruary 1938letterfromPCLto
which referenceis made at paragraph458 of the Bahrain Memorialcan be ignored for this
BM,para.454.reason. In paragraph 464 of its Memorial, Bahrain adrnits that it built a "new" mosque on
Hawar in 1939. There is no credible evidence that there existed an earlier mosquc,
notwithstanding the siatement of Hamoud bin Muhanna bin Hamad Al-Dosari. Nor is the
existence of some cemeteries on the island proof of permanent settlement by the Dowasir,
given the presence of fishermen (and no doubt their families) on Hawar during the winter
months. It is perhaps revealing that Bahraincan give no details of the origins of those buried
in the earlier graves. Qatar is confident that not al1of these were fiom the Dowasir tribe or
originatedin Bahrainbut is unfortunatelyin no position toprovide directproof. Finally,Qatar
seesno particularreasonto quarrel withthe passage from Dr. Costa'sReport which is cited at
paragraph 465 of the Bahrain Memorial; whatDr. Costa saw on Hawar may be the picture of
people "settled"on the islandsinceitsunlawfuloccupationby Bahrainin 1936/37.
6.Actsofadministrationorauthority
3.158 Little, if any, evidential value can be given to the acts of Bahrain administration or
authority referred to in paragraphs 466 to 485 of the Bahrain Memorial. Qatar hasalready
made the point that any acts by Bahrain in or in relation to the Hawar islands occurring in
connection with or subsequent to the unlawful Bahraini occupation of Hawar in 1936137
cannot be taken as evidence establishing or confirming Bahraini title. This is sufficient to
disposeof the "evidence" adducedin paragraphs467to 470,472,473,481, and 483 to 485 of
the Bahrain Memorial. Indeed, what is said in paragraph 472 of the Bahrain Memorial is
highly reveaiing. It is self-evident that Belgrave was doing his utmost in 1937 and 1938,
immediatelyfollowingthe unlawfuloccupationof HawarbyBahrain,to strengthenthe flimsy
Bahrain claim by constructing a fort on Hawar, by building a new mosque, by sinking an
artesiaiiwell and by beaconinga nurnberof islets in the vicini~~~~ A.s regards what is said in
paragraph 466 of the Bahrain Memorial, Prior, thesuccessorto Fowle as PoliticalResident in
the Gulf, provided the answer to the point that Sheikh Isa used to make annual visits to the
Hawar isIands by maintainingthat he equally made annual visits to places in Saudi Arabia
Ifiagain revealinghowBahrainno longerseekto relin 1996,asitdidin 1939,ontheevidentiavalueof
beaconirigofisleandfashts.(such as Hasa and Zakhnuniya) without advancing claims of title to those pai-tsof Saudi
Arabian territory. As regards the "evidence" adduced in paragraph 471 of the Bahrain
Memorial, the statementmade by Nasrbin Makkial Dosariis lackingin specificityas it givcs
no precise indication ofthe yearor years when the eventsas to whichhe deposes took place;
he simply says "when 1wasyoung."Wasthis beforeor afterhe and his family IeftBahrainfor
the Dammam promontory in Saudi Arabia (an event to which he makes no reference
whatsoever)?
7.Stadus quo
3.159 Qatar has dealt elsewhere in this Counter-Mernorial with Bahrain's continuing
breaches of the cornrnitmentsto preservethestutus quo embodied in the second pointof the
1987Agreement whichthe Courthas itself, in itsjudgment of 1July 1994, characterisedas an
international agreement creating rightsand obligations for the Partieszu. Qatar seriously
questions the "entirely defensive mandateand capability" of the Bahraini military garnison
currently stationed onHawar, and notes theblatant Bahraini admission (in paragraph489 of
the Bahrain Memorial)that there has been "a significantreinforcementof the Hawar Islands'
defences" in recent years, in clear breach of the secondpoint of the 1987 Agreement. The
olher matters to which referenceis made inparagraphs 486 to 498 of the BahrainMemorial
provide no confirmationof Bahrainititle to the Hawarislands, being activitiesengaged inby
Bahrain subsequent to the crystallisation of the dispute between Qatar and Bahrain and
designedto strengthen Bahrain'slegal position.
8.General traverse
3.160 Qatar has already,in Section 2 of ChapterVI of the Qatar~ernorial~'~,set out in very
considerable detail the defects in the procedure followed by the British Government in
reaching the "decision" of 11 July 1939, giving the Hawar islands to Bahrain. There are so
"'Sm, para.1.37above,andQCM,Appendix1, Vof. 5p. 1.
QM, paras.6.46,et seq.maiiy omissions and mis-statements in the corresponding account given in the Balirain
Memorial baragraphs 354 to 403) that Qatar is obliged to contest everything stated in the
Bahrain Memorialon this aspectof the dispute where it is inconsistent with the account given
in the Qatar Memorial,even if particular assertions made in these paragraphs of the Bahrain
Memorial have not bcen specifically denied or comrnented on in this Counter-Memorial.
Qatar would simply ask the Court to compare the two accounts, togetherwith the evidence
adduced to supportthem by each of the Parties. Qatar would particularly wish the Courtto
pay atlentionto the omissionsin the Bahrainiaccountof events,not only in thedescriptionof
the procedure followed by the British authorities in the Gulf in 1938/39, but also in the
deliberate failure to mention the crucialevents of 1936and (possiblyeven more striking) the
deliberate failure to mention the reactions of Prior and Alban (the successors to Fowleand
Weightman respectively)inthe immediateaftermathof the 1939decision.
D. Furtherevidencc of pre-judgmentbythe British authoritiesin the Gulf
3.161 Qatar would wish to take this opportunityto submit to the Court further evidence of
pre-judgmentby the British authoritiesin the Gulf of the questionof title to the Hawarislands
in the period immediately prior to the rendering ofthe Britishdecision of 11 July 1939.This
should be considered as supplementaryto the evidence of pre-judgment already analysedin
paragraphs 6.138 to 6.140 of the Qatar Memorial. The Court will recall that, in the early
months of 1939 (beforethe British Governent reached its decisionin favour of the Bahrain
claim to sovereigntyover Hawar),the oil concession negotiations were coming toa head286.
As part of the process of assessrnent by the British Governmentof the financial and other
advantagesanddisadvantagesof the respectivebids put inby BAPCO andPCL (thetworival
oil companies),Weighiman(PAB) set out his views in somedetail in a letterwhichhe sent to
Fowle (PRPG) on 12 February 1939. That letter concentrates in the main on the financial
advantages of the BAPCO bid forthe whole of the unallotted area (including Hawar)when
compared with the PCL bid for a concession covering only the Hawar islands and their
territorial waters. Although Qatar considers that the financial arguments deployed by
28See,QM, para.6.87.Weightmanin favourof the BAPCOoffer are exaggerated,it wouldparticularly wish todraw
the attention of the Court to two passages in this letter which provide startling evidence of
Weightman's biasin favour of Bahrain in the rnatter of the dispute over title to Hawar.
Paragraph 8 of the letter rehearses the reasons why the British Government had in principle
favoured the grant to PCL of an oil concession forthe Hawar islands. Arnongthese reasons
is (b):
"Thereare obvious disadvantagesin an AmericanOil Company [BAPCO]operating a
concession granted by the Shaikhof Bahrain in an area so c1oselyadjacent to Qatar,
and particularlyinasmuchas that area is under forma1dispute at the moment between
Bahrainand Qatar (eventhough there con be littlegenuinedoubt thatsovereignryrests
withB~hrain)"~~'.
Paragraph 9 of the letter purports to provide a "rejoinder" to these considerations.
Attention isagaindirectedto sub-paragraph(b):
"WhenonceHis Majesty'sGovernmentaward Hawar toBahrain,the Shaikhof Qatar
is no longer concerned.If by any chancehe were ta atternptto contest the award by
forcehe couldpresumablybe dissuaded withoutunduediffic~lty"~~~.
3.162 The Courtwill of course recallthat, not much morethan two months afterdespatching
this letter to his superior, Weightman was called upon to undertake the onerous and
responsibletask of assessingthe merits ofthe conflicting claimsof the Rulersof Bahrain and
Qatarto title to the Hawarislands. In the circumstances, therecouldhardly be a more glaring
instance of pre-judgmentthan is affordedby this calm assumptionon the part of Weightman,
the central figure in the decision-makingprocesson the part of the British Governrnent, that
sovereignty overHawarrested with Bahrain,that assumptionbeing expressedtwo months or
more before Weightman was supposedto be assessing objecfivebythe opposed claimsof the
two Rulers.
2R7QCM,Annex 111.47,ol. 3,p.265aip.271;empbasisadded.
Ibid. E. The decision of 11July 1939is not resjudicata
3.163 Thisproposition requireslittle furtherelaboration. Qatar hasalreadydrawnattentionto
the wholly erroneousdescription ofthe processes leadingup to the British "decision"of 1939
and their false characterisation asan "adjudication".Bahrain'ssuggestion that, in 1939, the
British Governmentwasjudicially exarniningand determiningissues of fact and law relating
to the Hawarislands is absurd2".Anynotion that the process was oneof "adjudication"rnust
be discardedas soon as it is understood:
(a) that the forma1claim to the Hawar islands made on behalf of the Ruler of
Bahrainon 20 April 1936was nevernotifiedto the Ruler of Qatar;
(b) that the "provisionaldecision"by the British Governmentin earlyJuly 1936in
favour of the Bahrainclairn wasequallynevernotifiedto the Rulerof Qatar;
(c) that neither Ruler accepted in advance that the "decision" to be taken by the
British Governrnentwould be bindingonhim;and
thatthe Ruler of Qatarwas never showna copy of the (uninvited)"preliminary
(d)
statement" of Bahrain'scase put in by Belgrave on 29 May 1938,and subsequentlytreated
and relied upon by Weightman as one of the documents in the case; and was likewise never
shown otherevidencerelied upon byWeightmanin his reportto Fowle of22 April 1939290.
3.164 The British Government'sdecision of 11 July 1939 on Hawar must be regarded as
arnountingat most to a non-binding administrativedecisionin view of the lack ofreal consent
by both Rulers to the rnakingof a binding award by the British Govermeni on the respective
claims of Bahrain and Qatar to title over the Hawar islands. And this is quite apart from the
cvidcnce presentedto the Court by Qatarto show that, in 1939,the British authorities in the
Gulfwere presented withfalse evidenceby Belgrave.
'"Sec,BM,para.532.
29See,QM,para.6.93.3.165 Qatar submits in addition that the "decision"of 11 July 1939must be regarded as a
nullity onthe following grounds:
(a) evident bias on the part of certain British officiais cIosely involved in the
decision-makingprocess;
the failure of the British authorities in the Gulf to give full effect to the
(b)
principle audi alferampartem in thatprocess;and
the failureto give reasons forthedecisionreached.
(c)
In this context,theCourt will recall that,in the Dubai/Sharjahcase, the validity ofthe
Tripp decisions of 1956 and 1957 purporting to establish a land boundary between the
sheikhdoms of Sharjahand Dubai, was a central feature of the award of the Court of
Arbitrationzg'.
3.166 Indeed, it is another astonishing feature of the Bahrain Mernorial that, although it
seeksto arguethat theBritish decisiononthe Hawarislandsof 11July 1939is res,judicata,it
singularlyomitsto mention that the Courtof Arbitrationinthe Dubai/SharjLlh case refusedto
accept an argument advancedby Sharjah that the Tripp decisionsof 1956 and 1957(madeby
the then Political Agentin the Trucial States)were arbitral awards. TheCourt of Arbitration
in the Dubai/Sharjahcase reached this conciusion for reasons correspondingclosely to those
sumrnarized at (b) and(c) above:
"For these two reasons, the lack of opportunity for the Parties to present their
arguments and the absence of reasoning for the decisions,the Court has corneto thc
conclusion that the Tripp decisions cannot be said to have constituted arbitral
award~"~~*.
291Extractsfromtheawardof the Courtof Arbitratiointhis caseareatQM,Annex 111.295,ol. 8,p.475and
at QCM, Annex 111.51Vol. 3, p. 297. The full text of the awarat91 InternationaLaw Repouls,1993,
p. 543.
'" QM,Annex 111.295,ol.8,p.475, atp.480. In the Dubai/Shatjah case, the two Rulers had of course specifically undertaken in
advanceto respect the boundary decisionsthat wouldbe made by the Political Agent.No such
undertaking from the Rulers of Qatar and Bahrain was given nor indeed requested in the
present case prior to the makingof the decision of 11 July 1939 on Hawar by the British
Governrnent.There is here a vital distinction between the presentcase and the Dubai/Sharjah
case.
3.167 In the Dubai/Sharjahcase, the Court of Arbitration made a general pronouncement
(needless to say,again not mentioned in the Bahrain Mernorial)which is directIyrelevant to
the present case:
"Inthe view of the Court one cannotattributethe same value to a boundary which has
been settled under a treaty, or as the result of anarbitral or judicial proceeding, in
which independent interested Parties have had a full opportunity to present their
arguments, as to aboundary which has been establishedby way of an administrative
decision emanating from an authority which could havefailed to take account of the
Partiestviews and arisingin a... situationof inherentinequality.In the first hypothesis,
except in a case of nullity, the principles of pacta sunfservanda or of resjudicatn
could be invokedto prevent the boundaryso settled being called again into question.
la thesecondhypothesis,theboundarywouldhave beenestablishedinthe mujority of
cases, in the interesfsof the administeringauthoriq, on the basis of other thanlegai
criferia,andaccordingto theneedsofaparticular political or economicconte~t~'~~~.
Although this dictumrelates specifically toboundaries, Qatar is of the view that the
reasoning ofthe Court of Arbitrationisjust as much applicable to an administrativedecision
onthe attribution ofterritory as it is to anadministrativedecisionon a boundary.
3.168 Qatar submits that this citation from the award in the Duhai/Sharjah arbitration
provides a remarkablyexact descriptionof the circ~unstancessurroundingand underlyingthe
British decision of 11 July 1939 on Hawar. In the present case, the decision purporting to
2" QCM,Annex 111.51,Vol. p.297,atp. 299emphasisadded.attribute the Hawar islands to Bahrain was not "...the result of an arbitral or judicial
proceeding ...nor indeedof a proceeding "...in which independent interested Parties havehad
a full opportunity to present their arguments...". It was rather "...an administrative decision
emanating from anauthority whichcould have failed294 to take account of the Parties'vicws
and arising in a situation of inherentinequality".Thus, we are in the present case confronted
with the secondhypothesis; and, having regard to thematerials which Qatar has invoked in
the Qatar Memorial and also in this Counter-Memotial about the defective nature of the
British decisionof 1939,the Courtshouldhave no hesitationin concluding:
(i) that that ddecisionattributing the Hawar islands to Bahrain was "...in the
interestsof the administering authority"(as Loch, Gibson and Hemingway wereal1happy to
arguez9');
(ii) that it wasreached "...onthe basis ofotherthanlegal riter ria"^an^;
(iii) that it was responsive "...to the needs of a particular politicai or economic
context"(inthe caseof the Hawarislands,the strategicimportanceof Bahrainto Britainat the
time, and the pernicious influence of the false expectationthat the islands would provide the
Ruler ofBahrain witha new sourceof oil revenues).
3.169 In the circumstances,it is perhapsnot altogether surprisingthat no referenceis made in
the Bahrain Memorial to this highly significant aspect of the award in the Dubai/Sharjah
arbitration.What is surprising, however,is the audacious Bahraini contention, in the face of
al1the evidence, that theBritishdecisionof I1July 1939isrssjudicata forthe Parties.
3.170 Bahrain mustof coursebe fullyawareof the glaringweaknessof the argument that the
1939 "decision"on 1-Iawaris res judicata, given the refusa1of the Court of Arbitrationin the
294InQatar'ssubmission,Britainhadfailed.
'" See,QM,paras.6.35,6.81 and6.97.
"6 TheCourtwillalsorecalltheviewsexpressedby Loch(PAB)in 1936that "it might in certaincircumstances
suit[Britain]politicallyto haveas largean areaas possibleincludedunderBahraandby Hemingway(India
Office)in 1939thatadecisiononHawarinfavourof Bahrainmight "..mollifyanyresentment" whichBahrain
mayfeelatthetreatmentbytheBritishauthoritiesoftheZubarah questionin 1937.Dubai/Sharjühcase to accept the Sharjah submission that the Tripp decisions of 1956 and
1957had to be treatedas arbitral awards.TheattemptbyBahrain,in paragraphs354 to 357 of
the BahrainMemorial,to characterisewhatwas doneby the British authoritiesinthe Gulfand
in London as a process of "adjudication" resultingin a binding award by Britain falls down
lamentably on the facts and the law, as Qatar has demonstrated in the Qatar Memorial and
again in the present Counter-Memorial. Evenif the 1939 "decision" on Hawm had to be
regarded as an award binding on Bahrain and Qatar (which Qatar vigorouslydenies), the
procedure followed by the British authorities in assessing the respective claims of tit1e of
Bahrain and Qatar was so demonstrably flawed,and so clearlyunfair to Qatar, that the award
wouldhaveto be regardedas invalidby anycourt of law. Qatarhas produced evidence:
(a) of the crucialevents of 1936,including the forma1Bahrain claim to Hawar on
20 April 1936and the British Governrnent's"provisionaldecision" of July 1936in favour of
the Bahrainclaim,neitherof whichdevelopmentswere notifiedto the Rulerof Qatar;
(b) of the disparityin the lengthof time accordedto the two Rulersto preparetheir
writtenmaterials;
(c) of the fact that none of the so-called evidence tendered by Belgrave to
Weightmanon behalf of Bahrainwassubjectedat the timeto criticalscrutiny;
(d) of the evident bias of Weightrnanagainst Qatar and in favour of Bahrain on
this issueduringthis period;and
(e) of the failure of the British Government toprovide reasons for "awarding"the
1-Iawarislands to Bahrain.
Al1these items of evidencein combinationare wholly destructiveof the argumentthat
the "decision"of the British Governmenton the Hawarislandsof 11 July 1939is res judicutu
forthe Partiesto the present proceedings,QatarandBahrain.3.171 That Bahrain itself seems to have little confidence in its res judicata argument is
confirmedby the fact that Bahrain advances,in the alternative,the argumentthat, even if the
merits were reopened and a de novoexaminationwere undertaken,Bahrain would stiilhave a
valid title to the Hawar islandsZ9'I.n the present Counter-Mernorial,Qatar has demonstrated
that there is little or no substanceto any of the three considerations invokedby Bahrainin this
context; it has equally demonstratedthe existenceof aprior title to the Hawar islandinhering
in Qatar,thattitle havingbeen widely recognisedinteraliciby otherRulers in the Gulf, by the
Ottoman authorities,by the British at least until 1936, and even by the Ruler of Bahrain
himselfin 1907.Qatar'stitle has neverbeen displaced.
Section8. Qatarhas never acquiescedin Bahrain'sdefacto controlof theHawarislands
3.172 Strictlyspeaking, Bahrain does not seek to argue in the Bahrain Memorialthat Qatar
has acquiesced in Bahrain'sunlawful occupation of the Hawar isIands since 1936137. The
nearest approachto an argumentfoundedon acquiescenceis to be found in paragraphs499 to
504 of the Bahrain Memorial. However, the argument putfonvard in these paragraphs breaks
downbecause it is basedonpalpably false premises.
3.173 Thus,it is statedinparagraph499ofthe BahrainMemorialthat:
"Afierits initial protests about the substance (not the procedure) of the British
adjudicationin 1939-1941,Qatar did notraise the issue of Bahrain's sovereignty over
the HawarIslandsagainuntil 1960".
This is on at least two counts, and leaving aside the provocative use of the word
"adjudication", a falsification of the facts. In the first place, the Ruler of Qatar constantly
protestedto the Political Agent (Weightman)throughoutthe courseof the formalprocedurein
1938139againstthe shorttime limits within whichhe was required to submithis evidelicc or
observations, when compared with the much longer time limits enjoyed by Bahrain. Thus,
297BM,para.344.when the Ruler of Qatar was requestedby Weightmanon 20 May 1938to submit his forinal
claim to the Hawar islands, accompanied by supporting evidence, "at the earliest possible
moment"298,he took this injunction very seriously and responded on 27 May 1938299.
However, no corresponding time-limit wasput on the request to the Bahtain authorities of
14August 1938,to:
"..submit a full and detailed statementof their counter-claimto Hawar, covering the
Shaikh of Qatar's claimas wellas anyotherpointtheywish to make"3w.
In the event, it took Belgrave and his subordinates somefour to five monthsbefore
they submitted the Bahraini "counter-claim"which is dated 22 December 1938/3 January
1939301; and this despite the fact that Belgrave had submitted to Weightman an (uninvited)
"preliminary statement" ofBahrain'scase on 29 May 193g3". It hardly needs repeating that
this "preliminarystatement" (in the form of a memorandurn)was not copied to the Rder of
Qatar,who thereforehadno opportunityto challengeor commentonthe assertions madein it;
and that it was nevertheless, in gross violation of the audi alterampartem rule, taken into
accountas a relevant documentin the decision-makingprocess.
3.174 On5January 1939,a copy of theBahrain "counter-claim"was transmittedtothe Ruler
of Qatarwho was againrequested toprovideany Mer argumentsor evidence "as soonas it
may be pos~ible''~~ In.reply to a reminderfrom Weightmanof 17March 1939,demanding a
response to his earlier letter of 5 January within a period of 14 day~~~t ,he Ruler of Qatar
protested, in hisletterto Weightmanof 19 March 1939that:
"As yet 1 did not get even half of the time taken by the Bahrain Governmcnt in
preparing their replyto you about whatwe have maintained... "305.
29sQM,Annex 111.15 6ol.7, p. 279.
299QM,AnnexIII.157,Vol.7, p.285.
-'OQM,AnnexIiI.168,Vol.7, p.343.
'O'QM, Annex 111.174,ol.7, p. 371.
'O2QM,Annex 111.15 8ol. 7,p. 291.
'O3QM,Annex 111.17 7ol.7,p. 393.
'" QM,Annex 111.188,ol.7, p. 437.
305QM, AnnexIII.189,Vol.7,p. 441. Again, in his further letter to Weightman of 24 March 1939, the Ruler of Qatar
protests at the treatment meted out tohim in the wake of the unlawful occupation of the
Hawar islandsby Bahrain.Heprotestsagainstthe rehsal of the British authoritiesin the Gulf
to let him have a sight of the argumentsadvanced by Bahrain in support of its claim to the
Hawar islands; he protests against being treated as a claimant; and he protests against the
refusalof the BritishGovernmentto ensurethat the Bahrainiswithdrawfiom Hawar306.
3.175 So it is a gross distortion of the truth to imply that Qatar did not protest about the
procedure followed by the British authorities in the Gulf in 1938139in conducting their
assessment of the conflicting clairns of Qatar and Bahrain to the Hawar islands. It goes
without saying that the Ruler of Qatar'sprotests against these procedures wodd have becn
magnifieda hundredfoldhad he beenawareat the time of whatwascarefùllybeingconcealed
fromhim:
(a) that a "provisional decision" in favour of the Bahrain clah to Hawar had
already been taken by the British Governmentin July 1936, and not disclosed to him, in
responseto the forma1clairn to Hawar advancedon behalfof the Rulerof Bahrainon 20 April
1936,itself not disclosedto him;and
(b) that Belgrave was feeding to Weightman additional information on Hawar,
which was Iikewisebeingwithheldfromhirn307.
Indeed, it is more than likelythat the Ruler of Qatar, had he been aware of these facts
at the time, would have insistedat thevery least tliat any assessmentof the conflictingclaims
of Qatarand Bahrain tothe Hawarislandsshouldbe conductedby a British officia1otherthan
the incumbent of the post of Political Agent in Bahrain (Weightman) or, indeed, his
immediatepredecessor (Loch).
'" QM,Annex 111.191,ol7, p.449.
'O7See,QM,paras.6.92-6.93.3.176 ln the secondplace, it is quite wrongof Bahrainto suggestthat Qatar did not, after its
initial protests, raise again the issue of Bahrain'swrongful occupation of Hawar by Bahrain
until1960.In paragraphs6.239 to 6.243of the Qatar Memorial, a full account is given of the
protests lodged by the Ruler of Qatar against the wrongfùl occupation of Hawar by Bahrain.
Specificprotestsweremade by the Ruler of Qataragainstthe British decisionof 11 July 1939
on the Hawar islands on 4 August 1939~",on 18 November 1939309a ,nd again on 7 June
19403"'B. ut, contraryto what is falsely statedin paragraph499 of the Bahrain Memorial, the
Ruler of Qatar did not thereafter remain silent on Bahrain'sunlahl seime of the Hawar
islands until 1960.On the contrary,the Ruler of Qatar repeatedhis protest against the British
decisionof 1939on Hawarin a letterof 13July 1946to the PAB3".In that letter,the Ruler of
Qatarstates inter alia:
"You see that Qatar has been treated unjustly in her clear right in the question of
Hawarislandswhich 1am stilItenaciousto claimtheirownership ..."
3.177 Nor didmattersstop there. TheRuler of Qatarrenewedhis protestagainstthe injustice
of the British decision of 1939 on Hawar in a letter to the Political Agent of 21 February
194S312 I.n that letter, the Ruler was responding to the British decision, notifietohirn on
23 December 1947, on the course of the Iine which, the British Government considered,
divided in accordance with equitable principles the seabed lying between Qatar and
Bahrain3".Yet,in his resbonse of 21 February 1948,the Ruler of Qatarrenewedhis dignified
protest against theBritish decisionof1939onHawar:
"However, 1 like to invite Your Excellency's attention to the correspondence
exchanged some ten years ago on the subject of Hawar (Island) and the clear
representation 1made regarding its position in my letter submitted to His Excellency
the Political Agent, Bahrain,at the tirne, in which1 expounded my points of view in
'ORQM, Annex 111.21,Vol.8,p.49.
'O9QM,Annex111.2 13,Vol.8,p. 59.
"O QM, Annex111.219V, ol.8,p. 85.
'" QM, Annex111.245V, ol. 8,p. 203.
'" QM, Annex 111.259,ol. 8,p. 277.
3'3QM,Annex111.256V , ol. 8,p. 265. regard to this Island which is apart of Qatar and inwhich 1 expressed my protest
against the behavioursof Bahrain Government.But H.M.'sGovernment actedas they
wished, and 1had nothing but to submit, reservingin the meantirneto myself my own
right~"~'~.
In the sameletter,the Ruler of Qatar gava renewedexposition ofthe Qatar case:
"Huwar [sic]is directly attached to the coast of Qatar with a piece of shdlow water
disconnecting,which recedesat ebb tide, thus establishing access for pedestrians. If
this is its natural position and geographical aspect, howcm it be separated fromils
motherlandQatarandmadethe domainof otherthanits r~ler?"~'~
3.178 In paragraph 501 of the Bahrain Memorial, there is cited a very short extract from a
letter written by Mr. M.C.G. Man (PAB) to Mr. R.A. Beaumont, Head of the Arabian
Departmentinthe Foreign Office,on 21 February 1961.This extract is pure hearsay evidence
and has to be read in context.In addition, it must be understothat,for the sakeof his own
peace andquiet, h4r M.an did notwishto see acombinationof the disputes over Zubarahand
Hawar:
"(It would be wiser not to mention Shaikh Ahmad'sthreat to take both Hawar and
Zubara to international arbitrationShaikh Salman [of Bahrain] might be tempted to
take up this challenge and wû should then have not only Zubara but Hawar on Our
hands andthe latteris at least one problem wemanagedto get settled...)""6.
The final phrase of this citation is pure wishful thinking on the part of Mr. Man. The
Rulers of Qatarmaynothave made sucha continuousfuss abouttheir genuinegrievance over
Hawar as the Rulers of Bahrain did abouttheir flimsy claims concerningZubarah. This does
not however rneanthat the Rulersof Qatar were contentwithwhat they considered eventhen
wasthe disgracefültreatment accordedto Qatarin 1938/39inthe contextofthe assessrnentby
the British authorities of the strength of the respective claimof the two sheikhdoms to
sovereignty overthe Hawarislands.
314QM, Annex 111.25Vol. 8, p. 277atp. 279. The significanceof the final sentence of thiiscitation
explained inQM,para6.242.
'1Ibid.
BM, Annex 299, Vol. 5, p. 1212.The half-sentence citedin para. 501 of the BM is a continuation ofthis
bracketedsentence.3.179 Successive Rulers ofQatarmaynot have been aware in 1960 of the full details of the
manoeuvres engaged in by Bahrain in the 1930s to secure recognition from the British
authorities of the Bahraini claim to the HawarisIands.But the sense of grievance whichthcy
felt about thetreatrnentaccordedto themover Hawarbythe British authoritiesin 1938/39had
certainlynot diminishedby the early 1960s. CHAPTERIV
JANAN ISLAND
Section1. The geography
4.1 The geographical description of the island of Janan in Bahrain's Memorial could
hardly be more cursory. It will be recalled that, at Bahrain'sinsistence, the subject of "the
island of Janan" was included among the issues submitted to the Court, Bahrain, however,
now contendsthat the name Janan "refersto two islands", and that there is a second "island",
which Bahrain refers to as "Hadd Janan", located 2.2 kilometres or 1.2nautical miles to the
south of Janan. Bahrain alsocontends that that "island" is part and parcel of Janan'.Itmay
however be noted that the narne "Hadd Janan" is not used on the marine charts of the area,
includingBahrain'sownmarinecharts.
4.2 The word "hadd"as used in the Gulfregion means a sand spit or low sandypoint. On
the other hand, asmall island would notbe referred to as a "hadd". It is true that the feature2
now identified as "Hadd Janan" in the Bahrain Memorial does appear on Bahrain'smarine
charts as a small island at high tide, merging into Janan island at low tide. A recent
hydrographical inspection performed in the area around Janan island has however
demonstrated thatthis attributioniswrong.It emerges fmm that inspectionthat at the location
of "Hadd Janan" as indicated on the Bahraini charts, there is a small area of sandy bottom
which is below waterat low tide! Therefore, leavingaside the question of whether Bahrain's
claim to two islands would be admissible,given that the issue submittedto the Court in this
respect was entitled"theislandof Janan", the geographicalfactssimply do not provide a basis
for Bahrainto claima secondisland.
4.3 As for Janan itself, Bahrain has made no attempt to show why, geographically
speaking,this island shouldbe consideredas part of Bahrain.Qatar,however, has shownin its
Memorial that Janan is separated by 17 nautical miles (or more than 30kilometres) of
'BM,para. 404.
This featurealsoappearson Qatar'sMaps5 and9, QM,Vol. 17.However,thosemapswere, acan beseen,
preparedonthebasisoftheerroneousBahrainicharts.
'See,QCM,Annex 111.5V,ol. 3, p.289.relatively deep water from the nearest point of Bahrain and has no geomorphologicai
connectionswith it at all, but that it is close to the Qatar mainland coast4ancomponent
of the offshore topography and the nearshore dynamic system associated with the Qatar
coast5.
Section2. Bahrain'sclaim is unfounded
4.4 No crdible evidence is produced in the Bahrain Memorial to sustainBahrain'sclaim
to Janan island or the feature it identifies as Hadd Janan6.The only argument advanced by
Bahrain isthat "there is no reason to exclude Janan from the Hawar Islands", the more
particularlyas it "wasused by Hawar residentsandother Bahrainifishermenn7.
4.5 The Bahrain Memorialis totally siIentas to thehistoryof thematter, which is set out
in somedetail in paragraphs7.5 to 7.11 of theQatar Mernorial.Itwill be recalledthat, in the
1930s, Bahrain was notably uncertain about the composition of the Hawar islands and
advanced threedifferent lists. The first list was contained in Belgrave's letter to the PAB
(Loch) of 28 April [email protected] the seven nmed islands claimed to be included in the
"Hawargroup" was "Ginan"B . utthislistonly servesto demonstratethe ignoranceof Bahrain
at the the as to the composition of the Hawar islands. It includes the islands of Noon,
Meshtaanand Al-Materrad, whose appurtenanceto Bahrain has never been cantested. But it
omits the islands of Suwad al Janubiyah andSuwad ash Shamaliyah, the second andthird
largest islandin the Hawar "group" of islands; and thisdespite the fact that, in his letter to
the PAB of 28 April 1936, Belgravehad asserted that "atleast four of the larger islands are
permanently occupiedby [theRuler of Bahrain's]subjects". Qatarhas of course always denied
thatany of the Hawar islandswere "permanentlyoccupied"by anybodybefore 1936, and the
failure of Belgraveeven to mention in his 1936 list two ofthe three largest islands in the
Hawar "group" provides eloquent testimony of the extent of Bahrain's howledge of the
Hawar islands at thetirne. Nor dnes there appear to be any improvement in the extent of
'See ,M,Maps 5and 9,Vol.17.
Sec ,M, paras7.1 ,seq.
See,paras.4.1-4.2,above.
See,BM, para.405.
QM, AnnexIII.103,Vol. 7,p15.Bahrain's knowledge by 14 August 1937 when, in a rnemorandum to the Political Agent,
Belgraveclairnsthat theHawar "archipelago" consistsof 9 (unnamed) islands near the Qatar
coast9.
4.6 AlthoughJananappearedon the 1936listpresentedby Bahrain, it didnot appear in the
more considered "preliminary statement" of Bahrain's case on the Hawar islands submitted
irregularly by Belgrave to Weightman on 29 May 1938". The memorandurn and
accompanying documentation constituting this "preliminary statement" list 16 islands and
islets as being comprised intheHawar "group", but pointedlyexclude Janan from the narned
features'.
4.7 By July 1946,Belgravewas asserting on behalfof the Ruler of Bahrainthat theHawar
"group" of islands consistedof 18 islands and islets. Al-Materradand Meshtaan (which had
rightly,together with Noon, been omittedfrom the 1938Iist) are re-introducedinto the 1946
list but themain Hawarislandis somehowdropped, presumablybecausethe list consists only
of those islands, islets, reefs and other features on which cairns were erectedby Bahrain in
1937/3812.
4.8 It is hardly surprising, therefore, that the Secretary of State for India, in a letter of
3 August 1946,to the PoliticaiResident, shouldhave remarkedsomewhatcausticallythat "the
exact extent of the Hawar Islands(i.e. the off-lyingislets and their territorial.waters) never
seemsto havebeenaccuratelydefined"13.
4.9 The then Political Agent in Bahrain (Galloway)was thus confmnted with a very
difficultproblem when instructed in August 1946 "to suggesta simple and equitable division
of the sea-bed to be based on the configuration of the main Bahrain Island(s), the Hawar
BM,Annex335, Vol.6, p. 1456. Itis worthnoting,incidentaliyt,hat,inthis memoran, elgravemakesa
clear distinctionbetween the "Bahrain archipeland"the "Howar[sic] archipelago",thereby implicitly
acceptingthattheHawarisIandsdonotformpartofwhatisstyledthe"Bahraianrchipelago".
IDBM,Annex261, Vol. 5,p. 1106.
" Zbid.atp. 1110.
''QM,Annex111.243V , ol.8,p. 195.
l3QM,Annex111.246V , ol.8, p.207.Islands, and the Qatar peninsuIawith theirrespective territorial waters"14.That problem had
its originin the careless and misguided marner in which the British authorities in the Gulf
(and indeedin London)had made theirassessrnentin 1939of the confiictingclaimsof title to
the Hawar islandsby the Rulers of Bahrainand Qatar. That Gallowaytook his mandatevery
seriously is evidenced by the content of his 33-paragraph letter to the Political Resident of
31 December 1946, which embodieshis recomrnendations as to the divisionof the sea-bed.
Naturally, he had no authority to disregard the Britishdecision of 11 July 1939, which had
"awarded" the Hawar islands to Bahrain, having to base his recommendations "on the
hypothesis thatHawar and 'its islands' havebeen awarded to Bahrain"". Qatar does not of
course accept al1the views expressed by Calloway, particularly on the attribution of Fasht
Dibal and Qit'at Jaradah, but it is interesthg to note his clear conclusion that Janan island
mustbe consideredto appertainto Qatar forthefoflowingreasons:
there was no justificationfor the Bahrainclairntoownershipbeyondthe
(a)
erectionof a cairn, whichshouldhoweverbe disregarded;
(b) Jananwasnot includedin Bahrain's1938list; and
(c) the eastern half of Janan lies within the territorial waters of Qatar and
south of the deep water channel between Hawar and Janan, that channel mnning close to
Janan16.
4.10 Galloway'srecommendationthatJanan isiandmus% be considered to appertainto Qatar
was accepted by his superiors, both in the Gulf and in London. Consequently, it was
specifically statedinthe lettersof 23 December1947:
"Itshouldbe notedthat JananIslandis not regardedas beingincludedin the islands of
the Hawargroup"'7.
4.11 The Ruler ofBahrainimmediatelydisputedthis conclusion. Inparagraph 5of his letter
to Pelly (PAB)of 31 December 1947,the Rulerasserts:
l4QM,Annex111.249 V,ol. 8,2p19atp.221.
l5Ibid.
l6See, citatiatQM, para7.9.
''QM,Annexes 111.25and 111.25V,ol. 8,p.265 andp.269. "Weareunable to understandwhy our island ofJinan, which, owingto therich fishing
groundsaroundit, is an islandof value, hasbeenexcludedfromthe Hawargroup.
Sinanis used asa base by Ourfishermenwho are accustomed, withOurpermission,to
erecthuts on the islandin the fishingeason"".
On the basis of instructions from London, the PAB returned a negative reply tothis
complainton 30 April 1949,relyingin part on the argumentsput forward by Galloway,as set
out in the passage from his letter of 31 December 1946,cited at paragraph 7.9 of the Qatar
Mem~rial'~.
4.12 Qatarof course deniestotallythe claim in paragraph 405 of the BahrainMernorial that
Janan was used by "Hawar residents", since it denies that there were any "permanent
residents" of Hawar before somemembers of the Dowasir tribewere "settled" in Hawar as a
result of the secret machinationsof Belgrave.Jananmay of course have been used from time
to tirneby Bahrain fishermenbut, as is well-known, at thattime therewas freedom of fishing
for al1Arab tribes inthe region, includingQataris,who also used Janan. Galloway's reasons
for concludingthat Janan island was not one of the "Hawar group" and must in any event be
regarded as appertainingto Qatarrather thanBahrainare erninentlysound.
4.13 Accordingly, there is no substance in the Bahraini contention that Janan must be
regardedas one of the Hawarislandsfallingwithinthe scopeofthe British "decision"of 1939
andthereforeappertainingto Bahrain.
IsQM, Annex IV.118, Vol. p.83, at p.86.
l9QM, Annex111.249V,ol. p.2 19. CHAPTERV
ZUBARAH
Section 1. Introduction
5.1 Having regard to thefailure of Bahrain to inform Qatar completely of its claims and
submissions, Qatar presentedits case in its Memorial "withoutprejudice..to the position that
itmay take once it has been informed of the claims and submissions of ~ahrain"'. This
precautionhas provedto be wisein the lightof Bahrain'sclaimto sovereigntyover "Zubarah"
as presented in the Bahrain Memorial. The examination in this Counter-Memorial of that
claim shows that it is without any substance. It is even doubtful whether the claim now
presented in Bahrain's Memorial is the subject of an existing dispute within the Court's
Judgmentson JurisdictionandAdmissibility.Qatar,however,does not considerit appropriate
to pursue this question atthe present stageof the proceedings,but it may arise when al1the
evidenceand argumentsof both Partiesarebefore theCourt.
5.2 In an extensive "review" and recitation of historical events in Chapter 2 of its
Memorial, Bahrain has provided the Court with an indigestible mass of selective quotations
and distortedfacts inorderto try to establish,by its misrepresentationof circumstances, thatit
has a full and internationally recognisedtitle to what it calls "theZubarahregion". Qatarmust
point out thatthete has never been anyquestion of a Bahrainiclaim to any"Zubarah region"
or "areaof Zubarah".In fact,the Court wilI recallthat what has beenreferred to the Court for
its decision is simply the question of "Zubarah".It is in any event Qatar's submission that
Bahrain is fully awarethat its so-called claim to sovereignty overZubarah (howeverthattenn
is interpreted)is historicallyand legallyunsustainable.In the words of one Britishofficial, it
might at onetime havebeen consideredthat Bahrainhad a "historicalinterest" inZubarah,but
QM,para.1.15.no more2.Qatar submits that Bahrain has only raked up this so-called claim to Zubarah by
way of a counterblast to the Iegitimate claims raised by Qatar in its Application and its
Mcmorial.
5.3 Qatar intends in this Chapter to correctthe historical account of events relating to
Zubarah as well as demonstrateits historietitle to Zubarah.
5.4 As inthe case ofthe HawarisIands,so alsoin relationto Zubarah, Bahrainattemptsto
show that atone time it exercised "control and authority" over the entire Qatar peninsulaas
well as "al1the waters" between Bahrain and the peninsula of Qatar; and that its authority
receded from only a part of the peninsula after the arriva1of the Ottomans in Qatar in 1871,
but that it continuedalwaysto exercise controland authority overthe Zubarahregionuntil the
AI-Khalifahwere forcibly expelledfiom Zubarahby the Rulerof Qatarin 193~~.
5.5 A detailed account has been given earlier in this Counter-Memoria14demonstrating
that after the particularly violent and destructiveattack by the Al-Khalifahon Qatar tribes in
1867, the British took action to secure compensation from Bahrain forthe Qatari losses as
well as undertakings through the Agreementsof 1868 frornthe Chiefs of both Bahrain and
Qatar to maintainthe maritimepeace.It has been shown in detail,in dealing withQatar's title
to the Hawar islands, how Bahrain and Qatar were effectively separatedby virtue of these
Agreements of 1868 and that Qatar's territorial integrity, by which is meant the territorial
integrity of the peninsula as a whole together with its coast and its immediately adjoining
islands, has been recognised and respected ever since not only by the British, the Ottomans
and other rulers in the xegion, but even by the rulers of Bahrain from time to time. The
evidenceand submissionsin this connection advancedin ChapterIII apply with equal forcein
the case of Qatar's titleto the entirepeninsula andits coasts,including Zubarah.
BM,Annex 191,Vol.4,p.825.
BM,para. 19.
See, paras.3.27,seq.above. Section2. The history corrected: Qatar's title to Zubarah
A.Earlyhistory
5.6 In dealing withthe early history of Zubarah, Qatarhas shown in its Memorial5thatat
leastby the beginningof the 17thcentury, Zubarahwas already a fortifiedtown, with its own
Sheikh and administration. Evidence has been tendered of the inhabitants, the houses, the
boats and livestockin Zubarahin 1638,and of thepreventionof a first attemptby membersof
the Al-Utubtribe earlyin the 17thcenturyto enterZubarah6.
5.7 Qatar hasfurthershown that even when in1766, two sectionsof the Al-Utubtribe (the
Bin Khalifahand the Al-Jalahma)madetheir way to Zubarahand the local Sheikhs laiddawn
conditions fortheir settlement,they refused to acceptthese conditionsbut instead built a fort
at Murair outside the walls of Zubarcth;and that afterthe Al-Utub attacked and occupied
Bahrainin 1783,they movedtheir headquartersfrom Murairto Bahrain7.There is no evidence
thereafterof any "control or authority" exercisedby the Al-Khalifahin Zubarah.
B. The periodfrom 1868-1937
1. British rejection of Bahrainis claim to Zubarahat its inception
5.8 Qatar has shownin its Memorial and in this Counter-Memorialthat at least from the
time of the British action of 1868and the Agreements of that year with the Chiefs of Qatar
and Bahrain,the British recognised theintegrity of the entire territory of Qatar comprisedof
the peninsula of Qatar (including Zubarah)and the adjoining islandss; and that whatever
hesitation some British officiaismight have had in this regardwas finally dissipated by the
Anglo-OttomanConventionof 1913 and the British-QatarTreatyof 191 69.
QM,Chap. VIII.
fSec,QM, paras. 8.7-8.8.
'QM, paras.8.9-8.10.
See,QM,paras.3.30, aiseq.and 8.12; andparas. 3.20, et seq.,above.
See,para.3.45,aboveand QCM, Annex 111.57, ol3, p.335.5.9 Bahrain'saileged claim to Zubarahwas presented to the British for the first time in
1873 and in effect amounted to anattempt to alter the position achieved by the 1868
Agreements, whereby Bahrain and Qatar were effectively separated.As Qatar has already
shown in its Mernorial, the British never accepted this claim. However, in the light of
Bahrain's presentclaim to Zubarah, it is instructive to examine the basis of the claim at its
inceptionandto correct the "historical"account givenby ~ahrain".
5.10 Duringa conversationbetweenMajor Grant(FirstAssistantResident)and the Chiefof
Bahrain on 16 August 1873, Major Grant was inforrned that a Turkish oficer from a ship
visiting Zubarah had asked the Chief of the Naimwhy he did not declare himself a Turkish
subject and that the latter had come to Bahrainfor help". The Chief of Bahrain claimedthat
the Naim were his subjectsand that this was acknowledgedin ColonelPelly'spresenceat the
time of the signingof the 1868Agreement.He desired to knowwhether he should give the
Chief of the Naim the Bahrain flag. Upon Major Grant's advice, the Chief of Bahrain
addressed a communication to the Political Resident on 2 September 1873 claiming that
"Zobarehis a property under the mle of Bahrein ..."and that "on referring to the Treaty you
will perceive that Zobareh is a dependency of this Island...". He fùrther requested that the
recordsof Colonel Pellyof 1868be examinedand went onto seekadvice as to whether,in the
event nothingwerefoundout, "...Iam iorelinquishtheNaimor allowthem toremairias (bey
~re"'~ .t will beseenthereforethat the Chiefof Bahrain wasuncertainas to the strengthof his
clairnto Zubarahat itsvery inception.
5.11 After his conversation with the Ruler of Bahrain, Major Grant immediately had the
position investigatedand obtained a report whichshowsthat, apart fromthe Naim, there were
a number of othertribesliving in Zubarah.This report states:
'OBM, paras.76,etseq.
" BM,Annex 17,Vol.2,p. 171.
l2BM, Annex 19, Vol. 2, p. 173;emphasis addedI.t is mostimportantto notethatafterthe 1868Agreements,
the allegiancof theNaim, if any, was the only basisof claim in relationto Qatarinvokedby the Ruhr of
BahrainuntiIthedaimto theHawarislands65yearslaterin 1936! "Thetribes living inZobareh areas follows:
1. The Chibisa, who were lately living in Khorassan; they possess about
25 fishingboats.
2. The Manamanehtribe, whowere lately livingin Aboo Zuroofithey have about
eight boats.
3. The Sadeh tribe, who were lately settled in Rowais; they possess about
fiveboats.
4. TheHamada1who were latelyliving inJurnail;they possess aboutsevenboats.
5. The Naim, who are Bedoos and possess flocks which they graze in the
neighbourhoodof the townof Zobareh.
The Chief of the Chibisa is Esaw bin Khulefah, the Chief of Nairn is Nassir bin
Jubbar.
The Chibisawerelivingin Khorassanuntil abouttwo monthsago, whenthey migrated
to Zobareh; their reason forso doing was that they were fiiends with the Naim, and
their cattle used to graze with thettle of the Naim, sowhen it was known that Rui
Sani the head of theBeddah people, and the tribe of Beni Hajir intended to attack the
Naim the two above mentioned Chiefs Nassirbin Jubbur, and Esaw bin Khulefàh,
agreed to livetogether in Zobareh for the purpose of aiding one another against the
enemy. They also invited the tribeof the Manamanehto come from Aboo Zuroof to
join them in Zobareh, as also the tribe of Sadeh, living in Rowais, and the Harnadd
living in Jurnail.The tribe of Naim live in Zobareh and graze their cattle in the
surroundingPasturelands.TheChibisamanyyears ago lived in Biddeh; somequarrels
arose between them andthe tribe of Urair; for this reasonthey left Biddeh and settled
in ~horassan"'~.
Major Grant himselfaddedthe followingcomment on the report:
"This sketchof thetribcsatpresent inhabitingZoburehwasshownbymeto the Chief
ofBahrein,whopronouncedit tobe correct"14.
5.12 It willbe noticedthat there is no referencein this report toany conneetionbetweenthe
Naim and the Al-Khalifah or their alleged allegiance to the Chief of Bahrain. What is of
particular importanceof course is that as numeroustribes lived in Zubarah, there couldnot be
any legal basis for Bahrain to claim sovereignty over Zubarah on the ground of the alleged
l3QCM, AnnexIII.10,Vol.3,p.69.
l4Ibid.;emphasisadded.allegiance of only one of those tribes (or a section of it) even if such allegiance did in fact
cxist".
5.13 Major Grant fonvarded the abovereport to the Political Resident with his letter of 16
August 1873in whichhe nnted thatwitliregard to Sheikh Isa'sclaim in respect of the Naim,
any power exercised by the Chiefs of Bahrain of late years over that tribe had been merely
nominal, if it existed at a11I6. e wrote to the Political Resident again on 11 September 1873
that fier consultingvarious treaties he had arrivedat the conclusion"thatthere is no specid
mentionmade in the treatieseitherofthe elNaim or of Zobareh ..."17.
5.14 In the intervening period, the Political Resident, Colonel Ross, in his reply of
28 August 1873to Major Grant,askedhim to advisethe BahrainChief "tokeepaloof fromal1
complicationsonthe mainlandwith theTurks,Wahabis,etc.'"'.
5.15 Furthermore, in view of the Bahrain Chiefs contention that his claim had been
acknowledgedin Colonel Pelly'spresence in 1868,inquiries were made from Colonel Pelly.
He advised in his letterof 27 October 1873that the Chief of Bahrain should adhere to the
arrangements already made, and while he was acknowledged to possess certain rightsin
regard to pasturage, etc.,on the Qatar Coasthe should not be held to be empoweredto put to
sea for the purpose of coercing anyport in ~atar'~.The Governrnentof India concurred with
the views expressedby Colonel Ross in his Ietter of 28 August and of ColonelPelly in his
letterof 27 October 187320.
5.16 This officia1British position never changed for more than a centuty thereafter cxcept
ta the extent that in later years, aswillbe shown below, the British decided that theRuler of
Bahrainhad no rights at a11inZubarah,andinfonned him accordinglyfrom timeto time.
l5Fora descriptioofthecontemporart yribalsystem,see, paras.2.1etseq.above.
'"CM, Annex 111.10V,ol.3,p.69.
l7QCM,Annex111.1 1,Vol. 3,p. 73.
l8Saldanhao, pcit.QM,Annex11.7,Vol.4, p.9,atp. 53.
l9This is afurtherillustratof theobjectof the 1868agreements whicwas, intealia, to secureaneffective
separationbetweenQatar andBahraintoensuremaritimepeace.
Saldanha,up.cit.Q,M,Annex11.7,Vol. 4, p.9, atp.54. 2. Bahrain claimof resistance to Ottoman/Al-Thani control of Zubarah
5.17 Bahrain attempts to sustain its present claim to Zubarah by trying to show in
somewhat dramaticlanguage that from 1874to 1903, the Ottomans and the Al-Thani were
"rebuffed in six attempts to exercise authority over the Zubarahregion" and that these
attempts failed "in the face of Britain'sand Bahrain'soppo~ition"~'.Qatar will show how
Bahrain, by a selective use of historical facts and references, has presented a grossly
inaccurateand distorted accountofthese six incidents:
(1) In 1874,Nasir bin Mubarak (a dissident member of the Al-Khalifah farnily),
and the Beni Hajir threatened to attack the Naim in Zubarah. Bahrain characterises this
incident as demonstratinga first attempt by the Ottoman Empire and the Al-Thani to expand
northward into Zubarah. The facts, however, show a very differentsituation. Colonel Ross,
the British Resident, referred to this incident in a telegram of 5 September 1874 to the
Governmentof India, stating:
"A Bedouin tribeof Nejd havebeenmaking seriousattemptto cross from mainlandon
apiraticalraid againstBahrein ...22.
In a subsequentletterof 19December1874,he describedthe incidentas follows:
"Itwas a notorious,undisguisedfact, that the primary object of the Beni Hajir was, as
on former occasions,the attack and plunder of Bahrein. Else why should they have
seizedboats andputto sea andplundered Bahrein raft?..."^^
As the British interest was only the protection of Bahrain, the Governrnentof India
therefore askedthe Resident ta "take effective steps to defend Bahrein against aggressionby
any Chiefs or tribes ofthe Gulf. .."24This was not therefore an "attemptto exercise authority
over the Zubarahregion" whichwas rebuffedZ5T . he Sheikhof Bahrainsoughtnevertheless to
''BM,paras.167,et seq.
22BM,Annex 70,Vol.2, p.285,atp.292.
*Vbid.,atp. 295.
24Ibid.atp.292.
25Al-Thaniauthorityalreadyexistedoverthewholepeninsula,atleastafter2868.take advantage of the situation by seeking leave from the British Resident toreinforçe the
Naim at Zubarah, whom he considered to be in great danger. Although he was initially
allowed by the Kesident to despatch reinforcements"as a purely defensive rnesi~ure"~~ t,e
Government ofIndia disapprovedthe Resident'saction. The Governrnentof India in a letter
laterconfirmed,inter alia,that:
"...The Chief of Bahrainhad no possessions onthemainlandof Katar, and ...his rights
therewereof a very uncertain character ..."27
and that:
"...His Excellencyin Council ..considers that the Chief of Bahrein should not have
been encouragedto despatch troops tothe mainlandfor the reinforcementof his allies,
the NaimtribeM2'.
Contrary to what Bahrain now contends, Colonel Ross also reported to the
Governmentin his communicationof 19December 1874that the Chief of Bahrain had stated
that:
"The object of his sending help to Zobarah wasto dejèndhisown islund, not to
encroachon his neighbours, and intimated his readinessto be guided by the policy of
~overntnent~'~~.
When there were again remonstrancesfrom the British in 1877,the Ruler of Bahrain
did not, as might have been expected, state that he was fully entitled to defend Zubarah in
view ofhis sovereigntyoverthe area.Instead,he simply providedthe excusethat:
"...the only people, wholeft Bahreinfor Zobarah,were those of the Naim tribe who
habitually visit Bahrein forgifis, and who returned of their own accord upan hearing
that a hostile force had corne to attackZobmah, but that he hished them with no
-st~30
BM, Annex 70,Vol.2, p.285,atp.293.
27Ibid.atp.294.
28Ibid.
"Ibid .tp. 295;emphasis added.
30Saldanhao, pcit.QM,Annex11.8,Vol.4, p. 181,atp. 195. (2) In September1878,a very seriousact of piracy, accompaniedby the murder of
fourpersons, was committed by the inhabitantsof Zubarah upon a passing boat;and Colonel
Ross was directedby the Governrnentof India to demand of the Turkish authoritiesthat the
place should be punished, and to offer British naval assistance for the purpose. Before he
could fully cany out his instructions, he received a report that Zubarah, of which the
inhabitantshad made themselves obnoxiousto dl their neighbours by raids and piracies, had
been attacked by a large force under Sheikh Jassim bin Thani and Nasir bin Mubarak. The
Naim besieged in Murairswendered and Zubarahas a populated place ceasedto exist. Thus,
the British authorities,fafrom seeking to rebuff the Turksand the Al-Thani from exercising
authority in Zubarah, in fact heldthe Turksresponsiblefor restraining piracies from Zubarah,
and were actually in the process of inviting the Turks to punish its inhabitantsfor their
crimes. This event is also a clear instance of Al-Thani exercise of authorityin Zubarah and
this action of Sheikh Jassim was accepted by the British without question. In fact it was
considered at this time, both by the British Residenand by the Sheikh of Bahrain, that, for
the future, the best solutionto the Zubarahdifficulty,in so far asthe security of Bahrainwas
concerned,would bethe permanent occupationof the placeby the Turks3'.
Bahrain attempts to show that the British opposition in 1888-89to Ottoman
(3)
plans for the rebuildingof Zubarahamountedto recognitionof "theRuler of Bahrain'stitle to
sovereignty over the region". But on Bahrain's own showing, by that time, it was British
policy generallyto oppose any extensionof Turkish jurisdiction in Qataî2. The only other
considerationwasthe securityof Bahrainandnot its sovereigntyover Zubarah.This is clearly
demonstratedby the terms of the telegramhm Colonel Rosswhichis quoted by Bahrainand
which it is appropriatetorepeathere:
"In view to opposing further extension Turkish jurisdiction, safety of Bahrain, and
security of seas, 1 consider important that any settlement at Zabarah should be
forbiddenand preventedby us"33.
''DM,Annex83, Vol.3, p.439, atpp.470-71.
32BM, para.174.
33BM, Annex 40, Vol.2, p. 227. Bahrainhowever failsto citethe followingextract from a letter of Colonel Ross dated
fivedays later,wherehe states, inter ulia,thatthe Chiefof Bahrain:
"apprehends that Nasir-bin-Mubarik,the refugee from Bahrain, wiIl be instigated to
settIeat Zobarahwith his followersof the Beni Hajir tribe, and supportedin doing so
by the Turks, either directlyor indirectly.
2. There can be no doubt that if this measure were carried out it would constitute a
menaceand standing danger to Bahrain, and the objection raised by the chier of
Bahrainis, assuminghisinformationcorrect, rea~onable"~~.
It will thus be clear that the episodein 1888 had nothing whatsoeverto do with any
Bahraini daim to sovereignty over Zubarah.To the British, it was purely a question of
ensuringthe securityof Bahrainislandby protectingit from thethreatof attackfrom Zubarah.
The reference by Lorimer above to the rurnours of the Ottoman plans in
(4)
189011 891relates tothe fourthincidentcitedby Bahrain whereOttornan/Al-Thaniattemptsto
exercise authority in Zubarahwere allegedly "rebuffed". AsLorimer points out, these plans
were abandoned. It is also apparent fkom the India Office letter of 2 October 1890 and
Saldanha's accour~t~~ that the British intervened with the Porte and prevented the
implcmentation of Ottoman plans to rebuild Zubarah in 1891 because they had declined io
admit the claimof Turkey over theQatarcoastwhere Zubarah waslocated.Their intervention
was not dictated by anyrecognition ofBahraini rights in Zubarahor any denial of Al-Thmi
authorityin thatregion.
(5) It may be noted that Lorimer's observationson the above events involve no
suggestionthat therewas anyrecognition ofBahtain'ssovereigntyover Zubarah.He states:
"In 1888 it was reported that the Turks intended to rebuild Zubarah and,as it was
feared that the agent selected would be the Bahrain outlaw Nasir-bin-Mubarak,the
British Residentwas instructedby the Governmentof India to inform that individual
" BM,Annex41, Vol.2, p. 228;emphasisadded.
35BM,Annex70, Vol.2, p.285,at p.325. and ShaikhJasim of Dohah, who was his father-in-law,that a settlemeiitat Zubarah
would not be permitted. No actual attempt to re-occupy the place was observed. III
1890and 1891there were rumoursof the appointmentof a Turkish Mudir toZubarali,
and the post was at first offered to Muhammad-bin-'AbdulWahhab of Darin, who
declined it; but the project, after a Mudir designate had arrived in Bahrain, was
apparentlyaband~ned"~~.
(6) Again, Bahrain'saccount of the events of 1895 is severely distorted. In that
year, the threat which Bahrain "rebuffed" was notto Zubarah butfiom Zubarah to Bahrain3'.
The British intervention whereby Turkish and Qatarivessels were destroyed in Zubarah
harbourwas,as shownbeIow,to preventanattackon Bd~ain~~.
(7) Once again in 1903, the British opposed and prevented an Ottoman plan to
appoint Mudirs in Zubarah and Wakrah because of the British position expressed by the
Political Resident, Colonel Kemball,that it was "absolutely essential for the security of the
Bahrain islandsthat Zobarashould notbe occupiedby the In additionto his concern
for the securityof Bahrain, in this letter, the Political Residentwas clearly concerned about
the increasedprestigewhichthe Turks would gain fom a Turkish"occupation"of Zubarah. It
is also important to note that at about the same time, Le.,in 1903, the British were in fact
contemplatinga closerrelationshipwiththe Sheikhsof Qatar.Lorimernotesthat:
"It was generally admitted at this time that an Agreement with the Shaikhs of Qatar
would be advantageous,inasrnuch as it would invest the BritishGovernment with a
special position in regard to the maintenance of maritime peaceoff the coasts of the
promontory, and would increase the weight of British opinion in any international
question that might arise concerning the use of the adjacent pearl banks; but it was
held expedientto defer a final decision until the British position in the Persian Gulf
should have been examined by the Comrnitteeof Imperia1Defence, and until tension
at the moment prevailing between Great Britain and Turkey in Arabia should have
s~bsided"~'.
36BM,Annex83, Vol.3, p.439, atp.471.
37See,QM,AnnexIII.126,Vol.7, p. 125atp. 131.
38See,para.5.19(7),below.See,also,QM,para.8.24.
39BM,Annex67, Vol.2, p.281 -inthesameletterwhichiscitedinBM,para. 183.
40BM,Annex83,Vol.3,p.439,atp.483. Lorimeralsonotes:
"It was decidedby His Majesty'sGovernmentthat the stcdtusquo in Qatar, which the
Porte on itsside had recognisedby the withdrawalof Mudirs appointed toWakrahand
Zubarah ..- ought not to be disturbed by the conclusion of any fiesh Agreemcnt
betweenthe Shaikhs of Qatar and the British Government; butthat the Shaikh might
be assuredof the friendshipof the British Governmentbeing continued, so long as he
shouldabstainfromenteringinto engagementswithanotherpowerM4'.
5.18 It will therefore be seen that while some of the six incidents analysed above show
British opposition to an Ottoman presence in Zubarah or British concarn for Bahrain's
security, none of them indicates that the British ever questioned the territorial integrity of
Qatar; equally, none can be interpreted as atternpts that were "rebuffed" by Bahrain and
Britainbecausethe Britishin anywayrecognisedanyBahrainirights in Zubarah.
3. Bahrain's "claim"relating to Zubarahand concernforthe securityof Bahrain
5.19 It is Qatar'ssubmission that in fact thereal reason why Bahrain came to advance a
"claim"relatingtoZubarahin 1873wasthe concernof the Rulerof Bahrainfor the securityof
Bahrain. The so-called "allegiance"of the Naim was "purchased"and nourished with gifts
over a long period, having regardto the same concern for the security of Bahrain. The Ruler
of Bahrain was anxiousthat the Naim shouldnot aid anyone in attacking Bûhrain.Consistent
withthis, the Britishauthoritiesalso from time to time expressedthe viewthat forthe security
of Bahrainit was necesswythat Zubarahwaseitherkeptuninhabitedor peopledonly by those
friendly to the Ruler of Bahrain, a view amply exploited by Bahrain. This submission is
supportedbythe following:
(1) The British had rejected Bahrain'sclaims on the Qatarmainland based on the
supposedNaim "allegiance"to the Chief of Bahrain after Major Grant's investigationin 1873
and the Governrnentof India's firm decision of 1875 referred to above4'.The British were
41Ibid.
42See,paras5.11,et seq., and5.17(1),above.clearly aware of thehistory and true nature of the relationship of the Naim witli others in tlie
Gulfarea, describedby Lorimerinthe followingtenns:
... The Bedouins of the norbhernNa'im are retained as mer ce na rie.bvth by the
Shaikhof Bahrainand by theAl ThaniShaikhsofDohah,and the protection of tl-iose
Shaikhdams is considered to devolve principally upon them during the absence from
home of the pearl fleets. Their efficiency andtrustworthinessare not howeverbeyond
doubt, and their presence in Bahrain in summer is a source of annoyance to the
peaceable agriculturists of other tribes. In Bahrainand Qatar the Na'im are Maliki
S~nnis''~~.
(2) Whenthe British Governmentordered the Chiefof Bahrain to desist from any
interferenceor interventionin Zubarahon the mainlandin 1875,ina Memorandum of22 June
1875tothe PoliticalResidentonbehalf of theChiefof Bahrain, it waspointed out:
"...in respect toour agreeingto abstainfrorninterferencein the affairsof Zobarahand
the consequenceswhichwill ensue,that we have frequently represented toyou that our
connection with Zobarahand the Naeem tribe, whom we have ordered to dwell there,
was, for various reasons, an imperative obligation and necessity, as you are aware.
Whenwe waive this obligationin respect to that quarter,it behoves us to devise other
plans for the protectionof ahr rein..."^^.
In a letter of 7 October 187645,Captain Prideaux, the officiating Political
(3)
Resident,reported that he had communicatedto SheikhIsa of Bahrain the instructionsof the
Governmentof India thathe should keepaloof fromal1intertribaldisputes upon the mainland
and discontinuethe custom of providing anyof the tribes with provisions when they moved
from one quarter to another. When it was later found that the Chief of Bahrain was not
complying with these instructions and when he was asked for an explanation, the then
officiating Political Resident,Major Grant,reported in his letter of 3 November 1877to the
Govemmentof Indiathat the Chiefof Bahrain:
"... admits having had dealings with the Naim tribe, thoughhe Statesthat in making
them presentsandreceiving them in Bahreinhe has no choicebut to act as he does, for
fear of the tribe leaguingwith his enemy,Nasir bin Mobarek, and others, and making
Zobaraha stand-point fromwhichto harassand attackhis islands ...".
4'BM,Annex74, Vol.3,p.371,atp.397; emphasisadded.
44BM,Annex33A,Vol. 2,p. 202a.
45BM, Annex 34,Vol.2, p.203. Be wenton to state:
"Thepropinquity of Zobarahto Bahreinrnakesita constantsource of dangerto Sheikh
Eesau, and were he to offend the Naim tribe, who live there, by closing his islands
against them, and by withholdingthe presents he has hithertogiven them, they would
certainly coalesce with the Beni-Hajer, in which case it would probably not be long
beforean invasionof Bahrein would beattern~ted"~~.
This was based on the Chief of Bahrain'sown letter of 12 October 1877 ta Major
Grant wherehe stated:
"..the Naim corne here on their own account, and when 1 give them presents it is
necessary forme to do so to preventthem doingmischief, as othenvise 1fear that they
would stir up strife and ally themselves with my enernies, Nasir bin Mobarek and
others; and having unitedin Zobarahmake rnatters very difficult for me, becausethe
distancefromthere is but shortlq4'.
(4) In a letterto the Secretaryof State for India of 22 May 1879from the Foreign
Department, Governmentof India, itwas stated:
"It may, also, be necessary to protect the islands of Bahreinby special arrangements
which shouldprovide -
i.- For the maintenance of the territories of the Chief of Bahrein under the
protectionof Great Britain.
ii. - For the fulfilrnentby the Chief of his treaty obligations including abstention
fromal1interferencewiththemainland. .."48.
(5) Lorimer,reviewing theeventsof 1886,observes:
"..the Na'imof Qatarcontinuedfriendly,but their friendship wasdearly purchasedby
the sacrificeof a large portion of the public revenuesof Bahrain, for which it did not
appearthat anyadequatequidpro quo was obtainedfiom the tribelt4'.
46BM,Annex35, Vol.2,p.204 (textcrossedoutbyBahrain).
" Ibid atp. 205(textcrossedoutby Bahrain).
48BM,Annex36, Vol. 2,p.206, atp.211.
49Lorimer,op.cit.QM,Annex 11.5Vol.3,p. 143,atp. 318. (6) As already shownabove,ihere was apprehensionin 1888about the securityof
Bahrainso.This apprehension stemmed from the possibility that the Turks might instigatc
Nasir bin Mubarak to settle in Zubarah. TheBritish therefore opposedand prevented this. Iti
his letter of 17March 1888to the Governmentof India, the PoliticalResident, Colonel Ross,
stated,inter dia:
"IfZobarahis to be rebuilt and peopled,this shouldbe, 1 think, injustice, done only in
a manneracceptableto the Chief of Bahrain. Thesettlers should be people friendly to
him andnot his enemies.
5. In view, firstly,to opposingthe Mer extensionof Turkish authority; secondly, for
the due safetyof the Islandsof Bahrain; and thirdly, for the preservation of tranquillity
and securityin the seas, and prevention ofpiracy, it appears to me highly important
that the settlement of Nasir-bin-Mubarakand his dependents at Zobarah should be
forbiddenandprevented. ,."''.
(7) As already shown by Qatar, the Britishintervention off Zubarah in 1895 was
clearly intended to prevent an invasion of Bahrain from Zubarahs2 T.his is confinned in the
reportmade by Colonel Wilson,PRPG,on 13 September 1895 to the Governrnentof India in
whichhe stated, interdia:
"1have the honour to report, for the information of His Excellency the Viceroyand
Governor-Generalin Council,that on the 6th instant CommanderPelly, SeniorNaval
Officer,PersianGulf Station, havingin hisjudgment, after carefulconsiderationof the
facts immediately beforehim, determined that prompt action was the only means of
averting the plunder of Bahrein with its attendant excesses, attacked and destroyed
some 44 out of a fleet of native craft assenibled off Zobara, med and ready for an
instant descentonthat place..."s3.
(8) Another instanceof the concern for Bahrain's security and therefore theneed
to prevent any potential invaders having a base in Zubarah is a Memorandum of Lt. Col.
Kemballof 23 March 1903to the Governent of India stating:
'OSee, para.5.17(3), above.
See,BM, Annex4 1,Vol.2,p. 228.
''QM,para. 8.24and footnote27.
53BM, Annex 62, Vol. 2p.268. "It is, in my opinion, absolutelyessential for the security of the Bahreinislands that
Zobarashould notbe occupiedby the Turks ..."54.
In a reportof July 1905,Prideaux expressedthe view:
(9)
"Under no circitmstanceswould 1 permit any now uninhabited portions of the west
coast, including Zubara, tobe re-colonized,as its soi1is unfertile and the pearl-banks
being difficult of access fromthis tract, there can be no inducements exceptunlawful
ones for people to settletherett5'.
(10) Even during the events of 1937,referredto hereafter, whenthe Ruler of Qatar
took action to stop smuggling activities in Zubarah, the Naim were sirnply concerned with
their own interest and not withtheir relationship with the Ruler of Bahrain. In a telegram of
23 April 1937to the PoliticalResident,thePoliticalAgent stated:
"Serious point if true is that Naim arereported to have said that if they do not get
supportfromBahrain theywill adhereto Bin Sa'ud"56.
5.20 It will be seen fiom the foregoing that theonly concem of Bahrain and the British as
regards Zubarah was the security of Bahrain; and that Bahrain'srelations with someof the
Naim consistedessentidly of the Ruler of Bahrain periodicaIlymakinggifts to them to keep
them in good humour in the interests of the security of Babrain. There was nothing in this
relationship to supportanyBahrainiterritorialclaim to Zubarah.
4.Recognitionof Zubarah as part of Qatar
5.21 Qatar has already referred to evidence which clearly showsthat the British and the
Ottomans consideredZubarahas part of the peninsuia of ~atar~~T . his recognition was later
incorporatedin the Anglo-OttomanConventionof 1913which providedinArticle 1 1:
54BM, Annex67, Vol.2,p.281.
" BM, Annex71, Vol.3, p. 355, atp. 358. Ifthepearlbanksweredifficultofaccessfrom Zubaraht,heywere
surelyevenmoredifficultof accessfromHawar (seethediscussionofpearlinginparas.3.148,etseq., above).
56BM,Annex 119,Vol. 3, p.642.
57See,paras.2.9,2.28et seq.and5.8, etseq.,above. "it is understoodby the two Governrnentsthat thepeninsulawill be govemedas in the
pastby shaykhJasim-bin-Sarni [sic]andhis succe~sors"~~.
Bainain brushes this Conventionaside on the ground that it was never ratified; but
Bahrain fails to acknowledge that the reason for non-ratification wasthe outbreak of war
betweenBritainand Turkey,andnot dissatisfactionwith thetermsof the Convention.Bahrain
also does not take into account the factthat Qatar,as did theBritish, relies on the provisions
of this Convention for their undeniable evidentiary value. Furthermore, as already shown,
Article 11ofthe Conventionwasreferredto inthe 1914Treatywhichwasratifiedsg.
5.22 Bahrainrnakesan unconvincingattemptto showthat duringthe periodofthe Ottoman
presence in Qatar,Zubarahwas separate from the Doha area and was somehow under
Bahrain'sinfluence.It allegesin its Mernorialthat even theOttomansconsideredDohato be a
"Kaza"(district)distinctfromthe sub-districtsof ZubarahandOdaid(said to be referred to by
the Ottomans as "~ahi~e")~T ~.his contentionof Bahrain is based on an Ottoman document,
the last paragraphof whichis translatedby Bahrainitself asfollows:
"... There arec.150 sweetwater wellsin the kaza of Katar:if wells are dug ...between
Zubara nahiyesi,which is the borderofthe kaza of Katar,and Odeidnahiyesi..." 61.
Bahrain completelymisreads the above document whichin fact refers to Zubarah as
"the border of the kam of Katar".Any ambiguitythat there may beis dispelledby the Ietter
fiom the Ottoman Ministerof the Interior to the Grand Vezir of 6 April 1902 referring to
"...the Zubarah andUdaidcoastsof the Kazaof Qatar..."62T . hisis thereforefurtherevidence,
ifany wereneeded, ofthe Ottoman recognitionof Zubarahaspart of Qatar.
QM,Annex111.58V , ol.6,p.273, atp.281;emphasisadded.
59See, QM,para.3.58,andpara.3.41,above.
BM,para. 65,
" LM, Annex 49(a),Vol. 2p.245.
62BM,Annex66a,Vol.2, p.279.5.23 Qatarhas already cited numerous documents to demonstratethe recognitionof Qatar's
ownership of Zubarah by the rulers of the Gulf region, in particular Sheikh Zayed bin
Khalifahof Abu IIhabib'.
5.24 It is Qatar's submission that in signing the Agreement of 1868 Bahrain expressly
undertooknot to interfere onthe Qatar peninsulaby any action from the sea, particularlyby
way of enforcernentof any rights itclaimed on the Qatar peninsula.This was reinforcedby
Bahrain's continued acceptance of the condition laid down by Britain for providing its
protection to Bahrain, namely that Bahrain should not interfere on theQatar mainlandh4.
Indeed, Bahrain has admitted onseveraloccasionsthat it neitherhadnor seriously desired any
rights in ~ubarah~~B. ahrain statesthat it sentits Crown Princeto Londonafierthe First World
War "to informthe British Governmentof the Ruler'sintentionto build a port in Zubarahand
re-develop the regionVb6B . ut a report dated 17 January 1920 of a conversation of the then
Political Agent (Dickson)with Crown Prince Sheikh Abdullah of Bahrain in fact shows
Bahrain's continuing doubtsas to its claim concerningZubarah.Thereport states:
"(e) Regarding proposal 111 - 'Zubarah.' 1 pointed out the unlikelihood of His
Majesty'sGovemment's ever even considering such a question. 1 showed AbdulIah
how sucha coursewouldat onceresult in troublewiththe ruler of QatarandNejd, and
wauld not only be looked upon as a piece of great injustice by those two rulers, but
would be most vigorously opposedon the score of justice, treaty and trade.To my
surprise Abdullah adrnitted the entire force of my remarks, andthen calmly turned
round andsaid'wedo not really want'Zubarah'sover- much,but we do wantto stake
our claim on the mainland, and get a port there in order that should Bin Saud open a
port at Al Jubail (north of Qatifl we may not be entirely ruined'.He further explained
that ShaikhIsa was verynervousonthis point and fearedthat Bin Saudhad something
of this sortin mind for Al Jubail was an ideal place for a port, there beinggood deep
water at al1tides close in to the shore. That shouldsuch portbe opened,then Bahrein
was doomed,for al1its presenttrade with themainlandwould go direct by steamerto
the newport and leave Bahrainout.If, on the other hand, Zubarahwere in ShaikhIsa's
hands this couldnothappen. ShaikhIsa would gladlynevermention Zubarahagain, if
Bis Majesty'sGovernmentpromised notto allow Bin Saudto open a port at Al Jubail.
This statement of the case came as a surprise to me. Abdullah clearly showed that
Zubarahwasnot after al1so very much sought afterby ShaikhIsa, but was only asked
for as a means of bargaining with Bin Saud, should the latter attempt to develop Al
See, QM, paras.5.20,et seq.
@ See,paras.5.13elseq., above.
See,also,paras.5.38,et seq.,belowandQM,paras8.47etseq.
66BM, para.224. Jubail. The point is very interesting and gives us a reasonably powerful weapon,
shouldweeverwantto bringpressure onto the Rulerof Bahrain"".
5.Zubarahandthe discovery of oil
5.25 As Qatar has shown in its Mernorial,discussions relating to the granting and then to
the extension ofBahrain'spetroleurnconcessionin the 1920sand 1930sshowed that Bahrain
did not considerZubarahas part of its territoryto be coveredby the concession. Furtherrnore,
the 1916Treaty provided that the Ruler of Qatar would not grant anoil concession overhis
territory without British consent. In 1935 a concession was finally signed by the Ruler of
Qatar and representatives ofAPOC (with British approval), whichclearly includedthe whole
of the peninsuia including Zubarah, as was aiso confirmed by the map attached to the
conce~sion~~.
5.26 Despitethis, Bahrain seeksto suggestthat it wasthe Rulerof Qatar who, after granting
an oil concession over his territories in 1935, saw the great attraction of expanding the
territory under his authority in order to maximise his potential revenue from hydrocarbon
de~osits~~T. his assertion is madein a feeble attempt to show that the Ruler of Qatar, after
1935,began tocovet Bahrainterritory,namely, Zubarah.
5.27 Bahain allegesthat, since an Americancompany (BAPCO)had the oil concessionin
Bahrain and a British company (PCL) came to be granted the oil concession in Qatar, the
British authoritiesbegan to favour Qatar inthe controversy relating toBahrain's claim over
Zubarah.Bahrainarguesthat:
"Britain stmggled to give its own oil companies a competitive advantage over the
United States oil companiesby exploitingBritain'shistorical political influencein the
region. The struggle influenced events in the Zubarah region and underlay Qatar's
invasion ofZubarahin 1937"70.
67BM, Annex 87, Vol.3, p.522,atpp.523-524.
68Sec, QM,paras.8.29-8.30.
" BM, para.233.
BM,para.234. This statement appearsto contradictBahrain'searlierassertionthat:
"Britain continued publiclyto support the Ruler of Bahrain's claim to the Zubarah
regionIi7'.
Or perhaps it is intended to imply that privately (as against publicly), Britain started
supportingQatar. Thereis no foundation whatsoever forBahrain's suggestionthat the British
clianged their attitude with respect to Zubarah because of their oil interests. As Qatar has
already show, the British had consistently rejected Bahrain's claims concerning Zubarah
from 1873~nwards'~ and in fact,on 10August 1957,the PoliticalResidentwroteto the Ruler
of Bahrainand remindedhimthat:
"Her Majesty'sGovernmenthaveneversupportedany claimby Bahrainto sovereignty
in Z~barah"~~.
5.28 Bahrain next falsely asserts that when Bahrain's "unallotted area" was left to be
negotiatedbetweenthe Rulerof Bahrainandtheprospectiveconcessionaires:
"It was understood by these prospective concessionairesthat the Zubarahregion could
be includedin Bahrain'soil concession^"^^.
Theonly evidencewhich Bahraincites in supportof this assertionis onepassagefrom
a letterof 5 December1936fromthe local representativeof BAPCO(Skinner) stating that:
"The Khalifafmily at onetimelived in Zubara andstillhave some claimto that town
and itsenvirons"75.
However, in what appears to be a deliberate omission, Bahrain fails to reproduce
another passage in the sarne letter which makes it clear that the writer had serious doubts
" BM, para. 187.
''QM,Chap. VIII.
73QM, Annex111,284 V,ol8,p.409.
7BM, para.239.
'BM, Annex 108,Vol.3,p.627., whether the Ruler of Bahrain had any sustainable rights in Zubarah. The penultimate
paragraphofthe letterstates:
"...It appears advisable to start negotiations forthe whole of the Sheikh'sterritories,
but ifsuchnegotiationsbecomeprolongedand we find:-
That the Sheikh has no chance of making good his claim to Zobara or its
(1)
environs,or
(2) That the Sheikh can only claim Hawar Islands which are definitely
uninteresting geologically,
then would it not be well to use these Islands as a trading point? We would then ask
the Sheikh onlyfor the additional area in Bahrain Islands proper,including,of course,
the territorial waters. It is admitted thatthis acquisition is being made entirely for its
nuisance valueand1shouldthinkourpurposewouldbe accomplishedif we keep other
companies from securing concessionsin Bahrain Islands proper. Itmight be well to
point outthat the Hawar Islands are geographicallya part of the Katar Peninsula and
any conipany operating in Katar would certainly operate Hawar from Katar and not
fromBah~-ain"~~.
The only other possible prospective concessionaire was PCL which was also
negotiating with the Ruler of Bahrain for a concession over the "unallotted area".Bahrain
itself statesthat:
"PCL took the view that its Qatar concessionincluded theZubarah region, but it was
concernedabouthow Bahrain'sview of its sovereignty overthe Zubarahregion mighi
affectboth PCL'schances of obtainingthe unallottedareaand PCL'sability to develop
the Zubarah regionunderthe Qatarconce~sion"'~.
5.29 Bahrainthen contendsthat Britainentered into an agreement(in 1935)with the Ruler
of Qatar offering protectionfor his land territories for the sole purpose of ensuring that the
Qatar oil concessionwas granted to APOC".While it is correct to saythat Britain agreed to
accept the Ruler of Qatar'spersistent requests for protection for his land territories, it saw
nothing improper (nor was there anythingimproper) or unfair in securing,at the same time,
the Qatar concessionfor APOC. This was particularly so, since it was in no way inconsistent
'"bid.
77BM,para.249.
78BM,para.242.withthe firm British position,taken since 1873,that Bahrainin any eventhad no rights on the
Qatarpeninsula,and sincethe conc.essionwas thereforein no way prejudicialto Bahmin. It is
obviouslywrongforBahrainto contendthat:
"Inorder to extend furtherthe British economicinterest in Qatar, Britainliad reached
an understandingwiththe Rulerof Qatar abouthis territoriesthat purportedto transfer
thereby Bahrain territoryto Qatarandconsequentlyto Britishoil c~mpanies"~~.
It is important in this context to note that APOC and later PCL, though British
registered companies, had an equal ownership by four shareholders, namely, British,
American, French and Dutch companies. Therefore,any notion that Britain was seeking to
protect "the British economic interest" as opposed to a shared economic interest is
exaggerated.
5.30 The BahrainMernorialthen goeson to assertthat in 1937"Britainwantedto assurethe
integrity of the Qatar Peninsula was not threatenedNs0B . ahrain quotes as evidence of this
assertion a statement of a Foreign Office official in London to a PCL representative on
25 June 1937to the effectthat the BritishGovernmentwouldnot be at dl likelyto recognise
any claims bythe Shaikhof Bahrainoverthe Zubaraharea.Bahrain, however, ignoresthe fact
that this statement was made after completion of a careful examination, in the preceding
months, of the Zubarah situation (before and afterthe incident involvingthe intransigenceof
theAl Jabr factionof theNaimtribe).
5.31 This examinationbeganwithwhat Bahrain refers toasan official note dated 13March
1937" andwhich stated interaliathat:
79BM,para. 246.
" "id.
''BM,para. 254. Bahrainwrongly ascribesthis commentto the Political Agent andornitstoanykmention
of sorneother significanthand-writtenremarksonthe face ofthis document.It willbe noticed that the document
is in fact an interna1minute addressedto Loch, the British Political Agent, by one of his subordinates upon
which a number of remarks are madeby Loch,two of which are as foIlows: "Please finletteto Sh. 'Isa
informinghim that Zubara cd. betregardedas Bahrainterritory. Issueteleg-InitiaV19.3.37."and "Please
seeif a letterwasnot writtenin 1919or 1920afterSh.Abdullahbin 'Isawent to Englandandraisedthe question
(among others) of Zubarah.InitiaV20.3.37". Loch wasclearly referringto the Memorandumof 6 December
1919 from the Political Agent, Major Dickson,to the Deputy Political Residentwhich, akr an extensivestudy,
suggested that anyattemptby the Rulerof Bahrainto revive the controversyover Zubarah "shouldbe nipped in
the bud"BM, Annex 86, Vol.3p. 518. "[Zubarah] is going to be the subject matter of a tensible feeling ...owing to the
developmentof petr~leum"~~.
It resulted in the report and recommendationsof 5 May 1937of the Political Kesident
(Fowle)to the Secretaryof State forIndiag3.These documentsdo not in any way support the
contention that, for reasons connected with oil, the Rulerof Qatar was suddenlytrying to
expand his territories or, moreimportantly,that for thesarnereasons, the British Government
was somehowunfairly supportingthe Ruler of Qatar and not Bahrain'sclaim to Zubarah. In
fact Bahrain itself notes the British position as being that, if Bahrain had any credible
evidence to support its claim toZubarah,then Zubarahwould not be coveredby the QatarOil
Conce~sion~~.
5.32 In any event Bahrainhad itself made it known that it did not seekto interfere in any
way with the rights of Qatar'sconcessionaire (PCL). This was made clear in the Political
Resident's letterof 5 May 1937,which stated:
"Mr. Belgrave informed me, unofficially of course, that the Shaikh would be quite
willing to give us an assurance that his claim to Zubarah would 'not inany way
interferewith the rights of the Qatar Oil Company nor their operations. This isof
coursea point ofsomepracticalirnportan~e"'~.
In the sameletter,it was also stated:
"From another and practical point of view His Majesty's Government, by their
endorsement of the Qatar Oil Concession, would seem to be committed both to the
Shaikhof Qatar and to PetroleumDevelopment (Qatar) Limited,to the recognitionof
the ownership of Zubarahby the Shaikhof Qatar. It may be possible to surmount this
difficultyin view of the Shaikhof Bahrain's readiness to givethe assurance referredto
inparagraph4 aboveMS6.
''BM, Annex 109,Vol. 3,p. 629.
83BM,Annex 127,Vol.3, p.666 and QM,Annex III.126,Vol.7, p. 125.Sealso,paras5.32-5.33,below.
84BM,para.252.
QM, Annex111.126 , ol7,p. 125,atp. 128.Seealso,BM, paras.312, 314, 319 (whereBahrainalso records
the BritisconclusionhattheRulerdisclaimedsovereigntoyverZubarah)and322.
B6QM, Annex111.126, Vol.7,p. 125,atp. 132.5.33 The PoIitical Resident also noted in the same letter Loch's view that "theAl fialifah
are our best friends on the ArabCoast" and his own view that "from the political point of
view, Bahrain is of considerably more importance tous than Qatar". In spite of these feelings
and after reviewing the entire history of the Zubarah question fiom as far back as 1871,the
Political Residentnoted, inter alia, that "sinceabout (1871)...the Al-Thani...have held Qatar,
includingZubarah".He wenton to state that in 1895:
"the Bahrain Goverment, far from having any control over Zubarah, were actually
threatenedby invasionfiom that place".
For this and the other reasons given in his report, and inspiteof his friendly feelings
for Bahrain, he took the viewthat "juridically,the Bahrain claimto Zubarah must fail". In the
lightof this clear expressionof view by the Political Resident, Qatarfails to understand how
Bahrain can have the temerity to argue, on the basis of the very same report, that "once the
negotiations between the representatives of the two Rulers had started it became rapidly
evident to Britainthatthe better IegaIclaimlaywith bah rai^^"^'.
5.34 Accordingly, the Britishtook the view that Zubarahwas part of peninsular Qatar,and
there can be no basis for the false charge that British "support" for Qatarin this matter was
motivated by any needto protect the interests ofa Britishoil Company.
6.The events of 1937
5.35 Qatar has already show in its Mernorialthat despite Bahrain'srecognition during the
discussions relating to the grantingof its oil concessionin the 2920sand 1930sthat 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 aclaimgS.Furthermore, by early 1937,the Ruler of
Qatar was awarethat a partof the Naim tribe under Rashid bin Jabr - who was in the official
pay of the Ruler of Bahrain - appearedto be engaged in smugglingfrom Bahrain intoQaiars9.
87Sec,BM,para. 272.
QM,paras.8.3 1elseq.
"Sec, QM, Annex 111.120V,ol. 7,p.89.The Ruler of Qatar took various steps to impose his authority overthe dissentingNairn by
force andput an endto the smuggIingand otherunlawfulactivities.As a result, the dissenting
Naim not onlysurrendered,as they had done in 1878", but aIsoenteredinto an agreementto
obeythe lawsof Qatarwhile residingin Qat&'.
5.36 Bahrain describesthese events of 1937 by stating that "...Qatar mounted an armed
expeditionagainst theZubarah region and expelled the Bahrainisubjectswho ihen inhabited
it"". It also describesthis as an "act of aggression" which resultedin a large numberof Naim
and adherentsreported killed and in fact states "it is impossible toknow exactly how many
casualties were suffered throughoutthe Zubarah regionNg3 I.t is interesting to note however
that one of Bahrain'sown documents, a report dated5 December 1939wronglyattributed to
Weightman but in fact written by Packer of FCL94d , escribes the 1937 incident by stating
"Nairntribesmen financed and armed largely fiom Bahrainwere defeatedby the Shaikh of
Qatarin a bloodlessbattle inwhich thecasualtieswere twoon eachsideM9'.
5.37 It is Qatar'ssubmissionthat theaction of the Ruler of Qatarin 1937wasno more than
an assertion of his authority overZubarahsirnilarto the actions taken in 1878and onother
occasions.
C.Theperiod after 1937
5.38 It is Qatar'siùrther submissionthat in the years following 1937, Bahrainon several
occasions acknowledgedQatar'ssovereigntyover Zubarah either directly or by disclaiming
any sovereigntyof its own.Thisisevidencedbythe followingincidentsand documents.
(1) As a consequenceof Qatar'sactions in Zubarahin 1937, theRuler of Bahrain
imposed restrictionson the circulationof persons and goodsbetweenQatarand Balirain,with
Qatar taking similar action. The strain in the relationshipbetween the two sheikhdomswas
'OSee,para.5.17(2)above.
9'QM,para.8.43.
92BM,para.31.
93BM, paras.31,287,288.
94Ses, para.3.133,above.
95BM,Annex292,Vol. 5,p. 1190,atp. 1191.soughtio beremediedby variousBritisheffortsin 1944, 1950and 1954but with onlylimited
success. However,in the course of such efforts, the Ruler of Bahrain, while continuing to
insist ihathe had certainprivate rights in Zubarah, on severaloccasions expressly disclaimed
sovereignty overthe area:
(i) The Political Resident recordedin a Memorandumthe details of an interview
on 9December 1943withthe Ruler of Bahrain who spoketo him abouthis clairnsinZubarah.
The PoliticalResidentnoted:
"1couldnot follow al1His Highness'arguments,as 1 had not the detailsof this case at
my fingers'ends,but he made it clear thatthey were much more disturbedby the loss
of facethan the Ioss of propertyand said that he was certain snme arrangement could
be made andthat he relied onus to make itVg6.
(ii) Whenthe British succeeded in their effortsto bring about a limited agreement
betweenthe Riilersof QatarandBahraininJune 1944,the agreement only providedthat:
"The Ruler of Bahrain and the Ruler of Qatar agree to the restoration of friendly
relations between them as they were in the past. The Ruler of Qatar undertakesthat
Zubarah will remain without anythingbeing done in it whichdid not existin the past.
This is fiom considerationand reverenceto Al Khalifh. The Ruler of Bahrain, also,
on his part undertakes notto do anything that might harrnthe interest of the Ruler of
Qatar. This agreementdoes not affect the agreementwith the Oil Company operating
in Qatarwhase rights areprotectePg7.
By this agreement,al1that the Rulerof Qatar agreed to was"thatZubarah will remain
without anything being done in it which did not exist in the past". In other words, he was
content to leave Zubarahas the archaeologicalsite that it continues to be until today. On the
other hand, the agreementwas furtherevidenceof Bahrain'srecognition ofQatari sovereignty
in Zubarahin that the rights of Qatar'sconcessionairewereto be fully protected andrespected
by bothparties.
96QM, Annex 111.232,Vol. p. 143,atp.147.
97QM,Annex 111.240, ol.8,p.183. This agreement mher illustrates that the issue between the Parties concerned only
some interests in the town of Zubarah and not in any "region of Zubarah" or "area of
~ubarah"~'.This was clearly the understanding of both the Ruler of Qatar and the then
Political Resident,as is apparent from the followingextract from the letter from the Political
Resident of 14July 1948to h4r .rnest Bevin,the British Foreign Secretary:
"The Shaikhof Qatar claims that the agreement[of 19441only provides that nothing
new should be done in Zubarah subsequent to its date and that 'Zubarah'means
Zubarah town only. On a strict interpretation of the letter of the agreement it is
difficultto read into it morethan the Shaikh of Qatar does, and therewas little doubt
whenhe signed ithe didnot intendto concedeanythingel~e"~~.
(iii) The considerationthat Bahrain'sclaim to Zubarah was primarily a matter of
prestige and not of sovereignty was again expressed by the RuIer in 1946. In a note of
4 September 1946 to the Political Agent Bahrain, the Political Resident referred to a
conversationwith the Rulerof Bahrainand recorded:
"If 1understoodhim rightly hesfatedthathe didnot clainasovereigntyover Zubnruh
but only wantedhis grassand water. When 1remarkedthat there was noprofit for him
in Zubarah he replied that it was not a matter of profit as he knew that there was
nothing of value inZubarahbut one ofprestige. He said that Zubarah was of more
importance to hirn than anything else in the world and that so long as the present
position existedhe would continueto remain in a state of anguish. He finally said that
he could not bear the present uncertaintyand wanted a decision one way or the other
eventhough it wasunfa~ourable"'~~.
(iv) Again, in another note dated 1 October 1946,the Political Resident recorded
that the Ruler ofBahrainhad indicatedto him that hedid not daim sovereigntyover Zubarah
but onlythe restorationof the situationprior to 1936"'.
(v) In a note dated 18 Febniary 1948 the Political Resident recorded that the
Sheikh of Bahrain hadcorneto see himon that day andnotedthat:
''Sec, para.5.2,above.
" QM,Annex 111.261Vol.8,p.295,atp.297.
'O0QM,Annex 111.247, ol.p.21 1,ap.214;emphasis added.
'O'QM,Annex 111.24V,ol.8,p215. "The Shaikh did howeverdefinitely state that the rights he claimed were of a private
nature and he emphasised the point that he was only claiming for himself and his
subjects in Qatar private property such as might be owned by any foreigner in
~ahrain"'~~.
(vi) In his letter of 24 June 1948 addressed to the British Foreign Secretary,
Mr. Ernest Bevin, the Ruier of Bahrain defined his clairn as being oniy to certain lands in
Zubarah and "to hold the land so defined as in private ownership for ever". He further
co~ifirmedthat he neither claimed nor had any claim in oil rights in Zubarah and that ail
benefitstherefromentirely belongedto the Sheikhof QatarIo3.
(vii) On 25 January 1950,the Political Agent Bahrain confirmed in a Ietter to the
RuIerof Qatarthat:
"His Highness the Shaikhof Bahraindoes not claimsovereigniyoverZubarahor any
other part of Qatar territory, nor does he claim rights to oil or any other material
therein. He merely wishesto send his dependentswith their flocks for grazing to the
Zubarahareawithout supervisionfkomanyone and withoutthe imposition ofCustoms
or othercontrolson suchpeople,as was the custominthe past"lo4.
(2) When the British in Decernber1947notified the Rulers of Qatar and Bahrain
of the division of the sea-bed boundary between the two sheikhdoms, the British clearly
proceededon the basis that Zubarahwas part of Qatarin detemining the line of delimitation.
Mile Bahrainrejected thedecisionon various grounds,it made noreservationor protestwith
regard to any alleged rights in Zubarahor in the sea-bed appertainingto Z~barah'~'W . hen it
proposed a variation of the 1947 line in 1961, Bahrain itself proceeded on the basis that
Zubarahwas part of the coastof Qatarioh.
Ia2QM,Annex 111.258Vol.8,p.273.
'O3QM, Amex 111.260, ol.8p.283.
'" QM, Annex 111.266,ol. 8,p. 317,atpp.320-321;emphasisadded.
IflQM, AnnexIV.118,Vol. 10,p.83.
'O6QCM,Amex 111.49, ol.3, 279.5.39 As already shown in Qatar'sMemorial, the British, particularlyafter the events of
1937 leading to tension between the two Rulers, tried from time to time to see if an
arrangementacceptableto them couldbe putin place regardingZubarah(withoutprejudiceto
Qatar's sovereignty).These efforts led to the Agreement of 1944 and other certain revised
arrangementsin 1950 and againin 1954.None of these worked and on4 June 1957,the Ruler
of Bahrain unilaterally asked the British Political Residentthat if the British Govemmentdid
not regard the above Agreementsas having any validity,he should be so informedin writing
whereuponhe would dropthe whole matter'07T . he British therefore informedhim by a letter
of 10 August 1957that:
"Her Majesty'sGovernmenthaveneversupportedanyclaim by Bahrainto sovereignty
in Zubarah. They have in the past been able to bring about by negotiation
arrangements for certain special facilities for Bahrainis in the area, and certain
limitations on the exercise of sovereignty by the Ruler of Qatar. In present
circumstances however it does not seem possible for these arrangements and
limitationsto be continuedasthey werebef~re"'~~.
This position was reiterated in another letter of 29 July 1961 from the Political Agent
to the Rulerof Bahrainlo9.
5.40 It is Qatar'ssubmissionthat in the light of al1these numerous instances of Bahrain's
express or implied recognitionof Qatar'ssovereigntyover Zubarah andal1the other facts set
out above, there is no basis whatsoever forBhain's claimthat fiom 1783until 1937, "it had
full and internationally recognisedtitle" to the "Zubarah region"'l0.On the contrary, the
wealth of materialreferred toabovein this Chapter and alsoin the Qatar Memorialestablishes
that since at least 1868Qatar has had title to Zubarah. Qatar'stitle has been internationally
acknowledgedas well asrecognisedbyBahrainitselffromtime to time.
'O7See, lettfromthePoliticalResidentto theBritishForeignSecretaryof 13June1957(QM,Annex 111.283,
Vol. 8,p.401, at p.4071,wherethe PoliticalResidentalsoreportedthatthe presentRulerof Bahrainhad
admittedthathe"hadno...right[toexercise sovereignty]orubarah"(ibid.,atp.4051,
'OBBM,Annex213,Vol.4, p.896.
'O9BM,Annex223, Vol.4, p.931.
''OBM, para.10. Section 3.Bahrain hasno legal basis for its claimto sovereigntyover Zubarah
A. Absence of acts of sovereigntyperformed by Bahrainin or in relationto Zubirrah
5.41 If the BahrainMernorialis examined closelyin thelightof Section2 of this Chapter,it
becomes apparentthat Bahrain has not produced any evidence that it performed anyofficial
acts in or in relation to Zubarahat any time duringthe period of 120yearsfrom 1868to 1988
(when Bahrain again raised a claim concerning Zubarahas an artificial counter-weight to
Qatar'swell-founded claim to Hawar). Qatar will therefore now move to consideration of
what is essentiallythe anly remainingargument presentedby Bahrain in support of its claim
to sovereignty overZubarah, namely,the argument based on the supposed allegiance of the
Naim.
B. There is nofactual or Iegalbasisfor Bahrain's argumentbased on the supposcd
allegiance oftheNaim
5.42 It is usefùl to begiby consideringthe thoughtfulview expressedby Dr. Al-Baharna,
the former Minister of Legal Affairsand Agent of Bahrain in the present case.Writing in his
persona1capacity,Dr. Al-Baham states:
"... the question of Zubarah, as it stands today, cannot be fitted in any legal
classification.It isot, in reality, a clairn to the territory; it is a claim to jurisdiction
overthe subjectsof a Statein anotherterritory""'.
If Dr.Al-Bahama isright,the Bahrainiclaim tojurisdiction overits "subjects"located
"in anotherterritory" falls far short of a claim to sovereignty.Even as a claimto jurisdiction
based uponthe nationalityprinciple,it must prima facie yield to a claimtojurisdiction based
uponthe territorialprinciple,ie.,inthe present case, Qatarijurisdiction.
"' QM, Annex 111.29V,ol.8, 487,atp. 491.. 5.43 Ofcourse,Bahrain does not put fonvard its claim to sovereignty overZubarah on this
basis. Its argument is rather more sophisticated.Significantly,Section 1of Chapter IIof the
Bahrain Memorialdevotedto Zubarahis entitled;
"The geographical extent of the Zubarah region claimed by Bahrain is based on the
tribal territory inhabitedby the Naimtribe, who recognised the authority of the Ruler
of ~ahrain""~.
The essence ofBahraintsargumentis that the question oftitle to Zubarah:
"... is closely linked to the character of tribal allegiances in the regi...Sovereignty
over such landis a reflectionof the relationshipbetweenthe Ruler and the tribe living
as exclusiveusers withina givenarea,calledthetribal dir~h""~.
In the present case, itwill be seenfiom what follows that the allegiance argumenthas
no foundationin fact orin law.
1.The lack offoundationof the allegiance argumentin fact and in law
5.44 The aIleged allegiance of the Naim towards the Ruler of Bahrain cannot provide a
foundation forBahrain'sclaim to Zubarah since these links of allegianceare not proved; and
even if suchlinksexisted,they could not found a claim to a territorywhich is not occupiedon
apermanentor regularbasisorwhich is frequentedby othertribes.
a) The linksof allegiance of theNaimtowards the RulerofBahrainarenot proved
5.45 Bahrain asserts that the Naim are long-standingfollowers of the Ruler of Bahrain. In
this regard, Bahrainaffirmsthatthe Naim:
"...were first invited to theQatarpeninsula by the Al-Khalifa farnilyand assisted the
Al-Khalifa in the conquestof the islandsof Bahrainin 1783"'14.
'12BM,p.27.
Il3BM,para.74.
Il4BM,para.75. The implied suggestionhere is that the conquestof Bahrain was achieved onlyby the
Al-Khalifah and the Naim. In orderto substantiateit, Bahrain refersto various extracts frorn
L~rimer"~.However,whatLorimeractuallystates isthat Bahrain was conqueredby the Utubs
of Zubarahwith the help of
"..contingents from vurious tribes of Qatar, among them Al Musallam from
Huwailah,Al Binl-Alifrom Fuwairat,SudanfromDohah,Al Bu Ainain frornWakrah,
Kibisahfrom Khor Hassan,Sulutahfrom Dohah,Manana'ahfrom Abu Dhaluf, Sadah
from Ruwais,Al Bu Kuwarahfrom Sumaismah,andNai'm Bedouins from theinterior
of thepromontory""6.
5.46 Bahrainthen states:
"TheRulers of Bahrain exercised their sovereignty over Zubarah, and fora time over
much ofthe Qatarpeninsula,throughthe tribe knownas the Naim"'".
Significantly, no evidence is provided for the wholly false assertion that the Naim
exercised authority overZubarah,still less "fora time over much of the Qatar peninsula".
5.47 Quite apart from the lack of evidence io supportthese extravagant assertions, thereis
no real evidenceof the allegianceof the Naimtowards the Rulerof Bahrain. Onthe contrary,
as has been seen above, the evidence shows that the Ruler of Bahrain sought fromlime to
time to purchase their support inorder to dissuade them fromentering into hostile alliances
againsthimllg.This evidence showsthat the links betweenthe Rulerof Bahrain and the Naim
were niore akinto the relationshipbetweena mercenaryand his clientthan to the relationship
between a vassaland his suzerain.The Court will recallLorimer'sviewthat:
''TheBedouins ofthe northernNa'imare retainedas mercenariesboth by the Shaikhof
Bahrain and by the Al Thani Shaikhsof Dohah, and the protection of those
Shaikhdomsis consideredto devolve principally upon them during the absencefiom
home of the pearl fleets. Their efficiencyand trustworthinessare not howeverbeyond
Il5BM,Annexes74 and83, Vol. 3,p.371,atp.397 and p. 439, pp.492-493.
lLbLorimer,op.cjt., QM,Annex11.5V, ol3,p. 143,ap.247; emphasisadded.
'17BM,para.75.
118See, para3.14and 5.19,above. doubt, and their presencein Bahrain in summer is a source of annoyance to the
peaceableagriculturistsof othertribes"' ".
b) The territory claimedby Bahrainwas not occupied permanently or regularly by the
Naim
5.48 Bahrain statesthat:
"Nairn settlementsremainedin the region afierthe decline of the town of Zubarahin
the firstpart ofthe 19IhCentury;theNaiminhabitedthe Zubarahregionuntil 1937"12'.
This is a bare assertionwithout any supportingevidence,and for a very goodreason.
In fact, Zubarah was destroyedin 181 Il2',and Bahrainadmits that "the townof Zubarah was
largely abandoned"afterthat~ear'~~.
5.49 Even if there is some evidenceof the Naim being present in Zubarah in the early
1870s,it has been shownabovethat in 1873there were numerousother tribes alsopresent in
the area'23.thas also beenshownabovethatZubarah wasagaindesertedafter 1878'24.
5.50 Early in the twentieth century, Lorimer observedthat the site of Zubarah was "still
frequentedbytheNa'imof Bahrain and Qatar" and that"10or 12forts"which"stoodwithin a
radiusof 7miles round" Zubarahwere "MOW ruinousanddeserbed,exceptThaghab, whichthe
peopleof KhorHassanvisitto drawwater"12'.
5.51 According to Lorimer, the bedouin Naim lived "[iln winter. .. çhiefly in the
neighbourhood of Zubarah",but "inthe hot weathermost of them removeto Bahrain" while
"' BM,Annex74, Vol. 3,p. 371atp.397.
'*OBM,para.75.
'*'Lorimer,op,citQM, Annex11.5V, ol.3,p143,atpp.198 and250.
lZ2BM, para.113.
'2Ses,para.5.11,above.
'14Ses,para.5.17(2),above.
'25BM, Annex74,Vol.3,p.371,at p.398;emphasisadded."sometake up their summer quartersnear ~ohali"'~~A . Sto the settled Naim, Lorimer wroie
"Therearenow no settled Na'imin Qatar''127.
5.52 In 1937,the incidentbetweenthe dissentingNaim andthe Ruler ofQatar shows that at
thaf time, there may have been Naimin the vicinity of zubarahI2'.However, as has been
shown, it is completely uritrue that the Naim "inhabited the Zubarah region" from the
beginning of the 19thcentury to 1937.In fact, there is evidenceof some Naim presence in
Zubarahfrom 1873to 1878,thereafieraround 1908andagainin 1937;that is all.
c) Theterritoryclaimedby Bahrain was frequentedby sections of the Naimtribe other
than the Al-labr
5.53 According to Bahrain, the Naim tribe consists of several branches, the two main
branches being the Al-Jabr and the Al-Ramzan. Bahrain asserts that "[bly 1937, the Al-
Rarnzan branchhad switchedits allegiancetothe Al-ThaniRulersof Qatar"whilethe Al-Jabr
branch "maintainedits allegianceto theRulerof Bal~rain"'*~.
5.54 Bahrainhas thus confinedits claim tothe territory(dirah)saidto be occupied onlyby
the Al-Jabr branch ofthe Naim tribe.Bahrain argues thatthe tribaldirah of the Al-Jabr was
situated "in and around the niined town of Zubarah" whereas the tribal dirah of the Al-
Ramzanbranch wasIocated"fato the southof Zubarah".
5.55 However, according toLorimer,there weretwelve sectionsof the ~aim'~'.Moreover,
he states:
"Thesesections ...areheremuch intermingled;but al1the paim] tribesmenin Bahrain
and Qatar are followers of one of two Shaikhs who belong to the Al Haiyi and Al
Rarnadhansections respectively "13'.
'2Ibid t,p.396.
12'Ihid t,p.395;ernphasisadded.
Iz8Sec,paras5.35-5.36,above.
12'Balirainthus implicitlyacknowledgesthatit ispretogive up anyclaimto a territoryoccupiedby atribe
whichswitchesits allegiantatheRulerofQatar.
13'BM,Annex74,Vol. 3, p. 371,at p. 396.
13'Ibid. This citation demonstrates the following:(i) that the Al-Ramzan (Lorimer writes "Al
Rarnadhan")but notthe Al-Jabr, as Bahrain contends,were one of the main sections; and(ii)
that the interminglingof the tribal sections establishesthat there was no cxclusive dzruh for
anyone section.
5.56 In any event, a branch or fraction of a tribe cannot have a tribal dirah of its own.
Furthermore, Bahraindoes not provide any convincingevidence of the geographical location
of the Al-Jabr section andhow it couldbe distinguishedfrom the locationof the othersections
of the tribe, including the Al-Ramzan.In fact, according to the only purported evidence that
Bahrain does provide, the Al-Jabr were present in three undefined areas, the Al-Rarnzan in
fou, the Al-Jafali in three, the Al-Hiyyehin two, and the Al-Mjedem and the Al-Jama'anin
one ea~h'~~ F.urthermore, the sketchmapreliedupon by Bahrain in this respect showsthat the
branches ofthe Naim tribe locatednearest to Zubarah town were the Al-Hiyyehand the Al-
Mujedem and not the A1-Jabr'33I .t also shows that some of the places mentioned in the
statementsproduced byBal~rain"~ as beingpart of the dirahofthe Al-Jabr werefrequentedby
branches other than the Al-Jabr, such as the Al-Ram~an'~~ T.hus, the evidence produced by
Bahrain shows the intermingling of the various branches of the Naim and the consequent
impossibilityof definingthe areafrequentedby any one branch.
5.57 On this ground alone, there can be no justification for Bahrain's claim of title to
territory basedon linksof allegianceof one sectionof a tribe.
2. The absenceof anylegal basis for theBahraini claimto sovereignîyover Zubarah
5.58 Even if there were any substance in Bahrain'sclaim that the Al-Jabr section of the
Naim were its subjects or owed undivided and constant allegiance to its Ruler, that would
only sustaina possibledaim of persona1authority over that sectionand cannot,in the absence
]" BM, Annex 229,Vol.4, p981,atp.983a.
133Ibid.
'34BM, paras.91etseq.
'35See,alsopara5..11,above,whichprovidesevidencthattribesotherthantheNaimwerealsopresentinthe
regionofZubarah.of evidence of exercise of political and public authority by the Ruler of Bahrain in and over
the territory in which the section might be living, sustain a claim in international law to
sovereigntyoverthat territory.
5.59 As explained in Oppenbzeim's InternationalLaw, independence, and territorial and
persona1authority, arethe three main aspectsof the sovereigntyof a State:
"Inasmuch as it excludes subjection to any other authority, and in particular the
authority of another state, sovereignty is independence.It is external independence
with regardto the libertyof action outside its borders.It is interna1independencewith
regardto the libertyof actionof a state inside its borders. As comprisingthe power of
a state to exercise supreme authority overal1persons and things within its territory,
sovereignty involves territorial authority (dominium, territorial sovereignty). As
comprisingthe power ofa stateto exercise supreme authorityover its citizensat home
and abroad, itinvolvespersonal authority(imperium,political sovereign~)" 13'.
5.60 The Court itself, while describing the characteristics of the territory in the Western
Saharacase, observedthat:
"Not infrequentlyone tribe had ties with another, eitherof dependenceor of alliance,
which wereessentiallytribalratherthan territorial,ties of allegianceor ~assalage"'~'.
The Court alsonoted:
"Political ties of allegiance to a ruler, on the other hand, have frequently formed a
ma-jorelement in the compositionof a State. Such an allegiance, however, if it is to
affordindicationsof tlieder's sovereignty,rnustclearlybe realand manifestedin acts
evidencing acceptanceof his political authority. Othenvise, there will be no genuine
displayor exerciseof Statea~thority"'~~.
5.61 In considering the Moroccan claim in the Western Saharacase, the Court obsewed
that Moroccohad neverexercisedany real act of authorityoverthe people ofWestern Sahara,
and that it had providedno clear evidence ofthe suzeraintyof the Sultan of Morocco over the
'36SirR. Jenningsand SirA.Watts,(eds.),9' ed.,Harlow,1992,QCM,Annex 111.56,ol.3,p.331.
13'1.C.. Reports 1975,p.42,para.88.
13'Ibid.,p.44, par95.Reghebat tribenor of the levyingof Moroccantaxes with respect tothe territoryI3'.The Court
concluded,in the finalparagraphof itsAdvisoryOpinion,that:
"Thematerials and information presentedto the Court show the existence,at the time
of Spanishcolonization,of legalties of allegiance betweenthe Sultan ofMoroccoand
some of the tribes living in the territory of WesternSahara. They equally show the
existence of rights, induding some rights relating tothe land, which constituted lrgd
tie setween the Mauritanian entity, as understood by the Court, and the territory of
Western Sahara.On the other hand, the Court'sconclusion is that the materials and
information presentedto it do not establish any tie of territorisovereigntybetween
the territory of Western Sahara and theKingdom of Morocco or the Mauritanian
entity"14'.
In the present case, the evidenceshows that there are no relevant legal ties of
allegiance betweenthe Ruler of Bahrainandthe Naim tribeor any section thereof,let alone of
any suchties as wouldestablishterritorialsovereignty.
5.62 Paragraph530of the BahrainMernorialembodiesa lengthycitation fromthe award in
the Dubai/Sharjuharbitration, upon which it relies in arguing its case that title to territory
may be acquired through the exercise of effective personal jurisdiction in areas of Iow
habitability. The Court will of course appreciate that what is said in the Dubûi/Sharjah
arbitrationaboutthe allegianceof the Bani Qitab to the Ruler ofSharjahis wholly dependent
upon the facts of that particular case. The region in which the Bani Qitab lived was largcly
desertand sparselypopulated,as the Court ofArbitrationin that case itself acknowledged. By
way of contrast, the tribal elements from time to time present in the areain and around
Zubarah wereclosely intenningled as Qatar has alreadyshown.Bahrain cannotrely uponthe
claimed allegiance of a single section of a particular tribe to found title to a territory
frequentedbymany other sections of thesametribe andalsoby othertribes.
5.63 For al1these reasons of fact and of law, there is no substancein the Bahrain claiin to
sovereigntyover "Zubarah".
'" Ibidpp,47-48,paras.103-104.
I4OI.C.J.Reports 1975,p.68,pa162;emphasisadded. PARTIV
MARITIMEDELIMITATION
CHAPTERVI
GENEKALASSESSMENTOF BAHRAIN'SPOSITION
Section1.Mainpointsof agreement and disagreementbetween theParties
A. Pointsof agreement behiveen the Parties
6.1 A reading of the Bahrain Mernorial shows that there is a measure of agreement
betweenthe Partiesat leastoncertainpoints.
6.2 Thus, it is agreed that the Court is requested to draw a single maritime boundary. It
also doesnot appearto be in disputethat in the southern sectorof the area to be delimited the
Court is asked to define the respectiveterritorial sofsthe Parties and that these territorial
seasoverlapl, and that in the northem sectorthe delimitationinvolvesessentiallya divisionof
continentalshelvesandfishingzone$.
6.3 The Parties ais0 seem to agree on the law to be applied to the maritime delimitation:
they both cal1for a decision of the Court "in accordancewith international law"3.Nor does
there seemto be a differenceof opinion as to the relevanceof the 1958Geneva Conventions
or the 1982 Convention on the Law of the Sea. Since Qatar is not a party to those
Conventions, they are relevant only to the extent that some of their provisions may be
declaratory of customary international law or have been generally accepted as customary
internationallad. TheParties also agreethat a fundamentalprinciple of that law is the search
foran equitableresult.They bothconsiderthat in orderto achievesuch an equitableresult,the
principle of equidistance combined with special or relevant circumstances is to be applied.
Furthermore, the Parties agree that their delimitation agreements with Iran constitute a
relevant circumstance for the maritime delimitation. The Parties also share the view that no
third Statehas sovereigntyor sovereignrights overthe maritimeareasto be delimiteds.
1 QM,paras.11.11,etseq.BM, para.589.In thisregardQatar is pleasedto noteBahscknowledgement
thatQatarisentitledto aterritoriaslea!
BM,paras.559-560.
BM,para.561;QM, inteah, para.10.59.
BM,para.563 andQM,para.12.13.
BM,para.562.6.4 The agreement between the Parties appears to stop there. As will be seen, thc
agreement onthe applicablelaw hides deep divergences on its implernentationin the present
case.
B. Points of disagreement betweenthe Parties
6.5 There are indeed many points upan which the Parties are in disagreement. At this
juncture Qatar can only list a few of the more signifiant of these points, leaving more
detailed treatment to later sectionsorchapters.
6.6 There is disagreement as to the determination and selection of basepoints for the
drawing of the delimitationline. Bahrain has drawn baselineswhich take into account al1the
maritime featureswhich it claims are abovewater at low tide6.On the contrary, Qatar's view
is that in the particularcircumstancesofthe present case, thedelimitationlinehas to be drawn
by taking exclusivelyinto considerationthe two main opposite coasts, without regard to the
numerousparticularfeaturesexisting in the area7.
6.7 Further, while Bahrain has put fonvard an alternative claim to archipelagic statu$,
Qatarhas shownthat anarchipelagic claimby Bahrainis irrelevantg.
6.8 The Parties also disagree on the special circumstances to be taken into account as
regards the delimitation in the southern sector. Qatar considers that one such special
circumstance is the line resulting from the British decision of 19471°.On the other hand,
Bahrain asserts that there are no special circurnstancesl~;to al1 intents and purposes, it
remains silent overthe 1947decisionas ifit didnot exist.
6.9 The status of Dibal and QittatJaradah is a further point of disagreementbetween the
Parties. Bahrain,while vacillating somewhatas to whetherthese features are islands or low-
tide elevations, asserts that it has acquired title over them by the performance of acts of
sovereigntyl*.For Qatar, on the contrary, they are low-tideelevations and their status is
thcrcfore govemedby the lawofthe sea'3.
DM,paras.619, elseq.
7 See,QM,para. 11.37andparas.7.24,etseq.below.
BM,paras.660,etseq.
See,QM,paras. 11.43,etseq., andparas.6.65etseq.below.
QM,paras. 11.19,etseq.
l BM,para. 631.
l2BM,paras.568, etseq.
13QM, paras.10.53,etseq.See, also,paras.6.82,et seq.,below.6.10 The Parties also disagree aboutBahrain'sclaimsconcerningthe existence or relevançe
of allegedhistoricrights overpearlbanks.
6.11 In the following sub-sectionsQatar will examinein greater detail some of the issues
uponwhich thePartieshave disagreed.
Section2. Bahrain's sovereignty argument
A. The falsity of Bahrain's argumentationconcerning acquisition of rights over
maritimefeatures
6.12 As a startinghypothesisfor the maritimedelimitation,the Bahrain Memorialtakes the
alleged sovereigntyof Bahrain overthe Hawar islands, Janan island and Zubarah. Rowever,
as has already been demonstrated, sovereigntyover the Hawarislands, Janan and Zubarah lies
with Qatar and not with Bahrain. Accordingly, no claim to maritime areas can accrue to
Bahrainfiom land territoryto which it doesnot havetitle.
6.13 The basic structureof the Bahraini claim to maritime areas relies on two conflicting
prerniseswhich appear to createa circula reasoning. Onthe onehand Bahrainappearsto live
in a fantasy world, claiming fiom time to time that it has sovereignty over al1the sea areas
betweenBahrain and Qatar(and indeedal1the sea areas between Bahrain and Saudi Arabia);
the sea areas between Bahrainand Qatar are, from this point of view, a mareclausumover
which Bahrain exexcisesexclusive sovereigntyl4.The Courtwill no doubt readily acceptthat
any ideathat the open sea, let done the territorial sea of a neighbourState, couldbe under the
sovereigntyof a Statehas beenconsideredto be outmoded for nearly three hundred years.
6.14 On the other hand the daim of Bahrain at times takes another form, according to
which Bahraini sovereignty extends over al1 the islands and low-tide elevations in the
maritime area lying between the two States. Consequently,in Bahrain'sview, ownership of
these features confers rights over the surrounding seas. This claim is just one example of
Bahrain's expansionist policies,which have never been accepted by any of Bahrain's
neighbowsl5.
14SesQM,paras.10.27 t seq.andQCM, Appendix2,Vol. 5,p.145.
IsSeeparas.2.64,eseq.,above,and QCM, Appendix2, Vol5,p.145.6.15 The argumentspresentedby Bahrainin supportof this second contentionstem fiom a
false analogy between acquisition ofland territory and acquisition of sovereign rights over
maritimeareasl6.Therules assertedby Bahrain aretaken from the law on acquisitionof Iand
territories.Theserules do not inprincipleapplyto maritimefeaturesotherthanislands (and in
particulardo not apply to low-tide elevations).Thus Bahraintries to showthat it has acquired
sovereignty over maritime features such as shoalsby evidenceof actssuch asmarkingsor the
erection of beacons or "monuments"~7; granting of oil concessions and surveys made in the
areal" fishing; use of pearling banks'g; and acts of administration over Dibal and Qit'at
Jaradah20suchas lightingor buoying21.
6.16 As Qatarhas alreadyshownin its Mernorial,sovereignrights over low-tideelevations
entirely depend on the law of the sea and not on the law governing acquisition of land
territory22.In itsjudgment of 1I September 1992,in the case concemingthe Land,Islandand
MaritimeFrontjerDispure(El Salvador/Honduras:Nicaragua intervening),the Chamber of
the Court drew a sharp distinction between an island anda low-tide elevation, remarking
aboutthe island of Meanguerita:
"ThatMeangueritais 'capableof appropriation',to use the wording of the dispositifof
the Minquiers et Ecrehoscase is undoubted; it isnot a low-tide elevaHon,and is
coveredby vegetation, althoughit lacksfiesh water"23.
Furthermore,the mles governingthe status and legal effect of low-tideelevationsVary
according to the location of such features. The law of the sea does not permit a State to
acquiresovereignty over low-tide elevationsbeyondthe outer limitsof its territorial sea.
6.17 Even beforethe adoptionof the Geneva Convention of 1958on the ContinentalShelf,
the BritishGovemmenthad recognizedthat position, for instancein 1937withregardto Fasht
Jarim and other shoals of the regionZ4or in 1951during the Londontalks with Saudi Arabia
concerningthe maritime boundarybetweenBahrainandSaudiArabia25.
l6BM,paras.600 and 603andBahrain'sformalsubmissionsatBM, p. 301.
l7BM,paras.575 and582-583.
laBM,para.576.
l9BM, paras5. 88and639, eIseq.
20BM,paras.577, et seq.and590, etseq.
21BM,para. 579.
22QM,paras.10.59,et seq.
23I.C.J.Reports 1992, p.570,para.356;emphasisadded.
24 Seal(Admiralty,MilitaryBranch),in aletterto Clauson(IndiaOffice),of 29April1937, impliedly suggested
thatsovereignty oveFashtalJarim ,ibalandotherfashtsof theregion(also calledrocksorislands) shoind
generalbeattributeaccordingtoproximitySee,QM,AnnexIV.35,Vol.9, p. 161.
25 Fry,(ForeignOffice), dealiwith the caseof Fashal Jarimwroteto SirRupertHay on 3 April 1951 as
follows:"We do not traceanyclairntoFasht-al-Jrim... ever having been madby ibnSaudand presume6.18 As has been seen elsewhere in the present Counter-Memorial26,the BahraidSaudi
Arabia agreement of 1958is a good example of the practice followed in the Gulf. In that
agreement, a11 the islands and shoals that had been discussed during the negotiations were
allocated on the basis that shoalsor submerged banks should belong to the State on whose
sideof the medianlinedividingthe BahraidSaudi Arabia sea-bedareathey lay27.
6.19 In this context the decision of the British Govemmentin 1947to allocate sovereign
rights over the Dibai and Qit'atJaradahshoals to Bahrain appearsto have been mistaken. At
the time of the 1947decision, Dibal and Qit'atJaradah, being low-tide elevations, located in
an area then beyond the outer limits of the Parties'territorial seas, should have beenallocated
to Qatarbecausetheywere ontheQatariside ofthe media. line.
B. The so-calledevidenceof Bahraini "actsof sovereignty"
6.20 Bahrain claims that various acts are to be considered as evidence of Bahraini
sovereignty:
- erectionof beaconsor cairns
- activitiesin the areaby oil companiesoperatingin Bahrain
- aidsto fishermenprovidedby the BahrainiGovernmenton somefashts
-
exclusive useofthe fàshtsby Bahrainifishing boats
- navigational safety and police
1.Erection of beaconsor cairns
6.2 1 According to the BahrainMernorial:
"Bahrain'sacts of sovereigntyin relationto these maritime featureshave taken several
forms. In the first place, Bahrainimonuments or markers have been erected on al1of
thesemaritimefeaturessincethe 1930s"28.
thereforethat it is acknowledgedto belong toBahrain;as it will fa11on the Bahrainsideof the sea-bed boundary
which we intendto propose,we have omitteditfiom our list".See, QM, AnnexIV.191,Vol. 10,p. 465.
26See,paras.2.64, etseq.,above,anQCM, Appendix2,Vol. 5,p. 145.
27See, QM, AnnexIV.216,Vol. 11, p.235. See, also, QM,Annex IV.162,Vol. 1p. 311:"Weare glad to see
from yourleiterEA 1276/1ofthe 27 January,to SirR. Hay that you contemplate that,wherethere is no clear
Vol. 10,p. 469"..the Rennieand Bu Sa'afahshoal..are nottothe bestofmy belief, strictlyspeakingshoals
at ail,in that theyarenever exposed atany state ofthe tide though theyboth have lights orsome sort of marker
on them. Their ownership should,in my opinion, bebased on any decisionwhich maybe reached regarding the
position of the sea-bedoundw. On the other hand,if these two shoals are taken into account in the
forthcoming negotiations,we shall alsoprobably have to take into consideration othersimilar shoals such as
Ashira andBuAthama".
28BM,para. 575. Bahrain has however providedno basis for thisproposition, either in fact or in law.
Qatar has alreadyin its Memorial dealtin some detail with the significanceof the erection of
markersandbeacons by Bai~rain~~ I. anyevent, the erectionof markers or beaconshas never
been recognised as a means of acquisition of tenrilory; and this was recognised by British
officiaisat thetime30.
2.Activitiesof oil companies operating inBahrain
6.22 In this regard Bahrain seeksto rely on activitiescarriedout on someshods by private
oil companiesoperatingin Bahrain3'.In this respect, documentsin the British archives show
that structure holes were drilled between June and August 1940 by or on the orders of
BAPCO. Thus, in a letter of 20 July 1940 to the Political Resident, the Political .Agent
Bahrainstated:
"1 understand that a local contractor is drilling a structure hole for the Bahrain
PetroleumCompany on the Fisht[sic]al Jibal[sic]as part of their generalexploration
programme"32.
Bahrain fails to Say,however,that these activities met with strong protests from the
British authorities. ThePolitical Resident consideredthat Belgrave had acted improperlyin
givingBAPCOpermission to drill without consulting thePoliticalAgent.In a Ietterto Peel of
the India Office,dated 18 October 1941,Priorwrote:
"1cannot explain why Belgrave took it upon himself to sanction drilling which he
must have realisedwasbeyond his powers and trenchingon internationalpoiitics, and
1have senthiman officia1reprimandthrough AlbanW33.
6.23 After the war, BAPCOapplied on 13May 1946for permission to carry out structural
drilling at locationsEt' (lying southeastof Dibai) and"Fu (southeast of Qit'atJaradah134b, ut
permissionwasrefused35.
6.24 Contrary to what might be inferred fiorn Bahrain'scontentions, Qatarhas also been
active in the area. On 5 August 1949 Qatar awarded its first off-shore concession to
29 SeeQM,paras.6.41,et seq.
30See,QM,paras.6.1 O1,etseq.
31BM, paras576 and587.
confidentialBAPCOmeniorandum9,dated10September1950a(ses,QM,AnnexIV.176,Vol. 10,p.379).vealedby a
33QM,AnnexIV.69,Vol. 9,p.335.
34 See,QM,Annex1V.77,Vol.9,p.373.
35Sm, QM,AnnexesIV.58,IV.71andIV.85,Vol.9,pp.283,345 andp.405.CMIC/SuperiorOil Co. At the same time, in order to avoid interstateproblems, theBritish
authoritiesdecided toinitiatapolicy of safe areas. Thus in 1950,while acknowledging that
the CMICISuperiorOil concessionendedon the Bahrainiside with the 1947line, the British
Government imposed restrictionsin a triangular area in the north of the concession area
(BLV -27"N 51°20 E -territorial watersof Qatar Northof Ras Rakan). To the south of that
areaa rectangularzone was described where exploration. TheQatari concessionaire surveyed
the areaaroundDibaland Qit'atJaradahshoalsbetween 1950-1952.
6.25 As there was a gap betweenthe northemend of the 1947line (BLV) and the median
line with Iran in the Gulf, the Britishauthorities in July 1950 authorized CMICISuperiorto
surveyin thetriangularareaBLV- 27"N 51' E - territorialwatersnorth ofRasRakan.
6.26 In 1952the sarneconcessionlimitswere recognizedand the same safe areas i.mposed
on Shell Overseas ExplorationCompanyLimited,
6.27 The samepositionwas takenwith Bahrain. BAPCO wasnotifiedin 1952that it hadto
respect the 1947line. Thesamewas confirmedin 1965with BAPCO'ssuccessor,Continental
OilCo.ofBahrain.
6.28 Since 1970(for SuperiorOil (Bahrain) Inc.)and since 1973(for Wintershallin Qatar)
the concession agreementson both sides have adopted as operating limits the 1947 line
prolongedto the north,up to the medianlineinthe Gulf.The sameline hasbeen respectedon
both sides sincethen. Qatariconcessionaires surveyedthe whole zone of their concession(in
1973-1974). The concessionaires on both sides have respected that line in their drilling
operations.
6.29 It is therefore submittedthat survey work by private oil companies operating out of
Bahrain, and even the drilling of structure holes on a low-tide elevation, particularly when
carried out in the circurnstances just described, constitutes no evidence of "acts of
sovereignty"by Bahrain over DibalandQit'atJaradah.
3.Aids to fishermenprovided by the BahrainGovernment
6.30 Bahrainalso relieson aileged aidsto fishermenon some fashts.ThusBahrain invokes
as an "act of sovereignty" the buildingby the Bahraini Government of artesian wells on
DibaP6andon Qit'atJaradah37.
36BM, para.577.
37BM,para. 584.6.31 This presentation ofthe facts is highly misleading.First, Dibal has traditionally been
known asa low-tide elevation where fishermen couldfindfreshundenvater springs.This gift
of nature was therefore certainly not a creation of Bahrain. Second, it appears from a
confidentialBAPCOmemorandumdated 10 September1950that the so-called"artesianwell"
on Dibal was in fact a structure-hole bored by or on behalf of the Company for its own
purposes, which happened to strike water. It was thereforenot built as an artesian well on
behalfof the BahrainGovemment:
"This structure-holewas drilled..and the final depthof 490' was reached on August
27th,1940.
The hole was plugged back ...with a bu11plug for conversion to a water weli, if
required,at the request of the Bahrain Government.1understandthat the bu11plug has
been removed from this well by some unauthorizedperson and that it is flowing a
smali Streamof waterwhichis usedbythe localfishingdhows etc."38.
As to the alleged artesian well on Qit'atJaradah, there is no evidence either ofan
authorisation givenby the Government todrill it, or of any sign of waterhaving either been
sought or found.The so-calledBahraini aids to fishermen were therefore provided by nature
or BAPCO, andnotby the Governmentof Bahrain.
4.Exclusiveuse of fashtsbyBahrainiboats
6.32 This allegationis without substance.WhenBelgrave,by a letter to the PoliticalAgent
Bahrain of 18August 1941mentionedarnongthe diving anchorages FashtAbu Sa'afa, Fasht
AI Jarirn andFasht al Dibal39,Pnor in a letter of 18 October1941to Peel, ofthe India Office,
remarked :
"Fashtal Dibal is not in anysensepeculiarlya Bahrainanchorageand is freely utilised
by al1pearlersinthisneighbourhood.When1wasPolitical Agentat Bahrain [ie.April
1929 -November19321neitherthe shaikhsnor Belgravehadanyideaof claimingit, or
pretended that itwas theirs, and if their present claim were to beknown it would
certainlybe challenged"40.
3"~, AnnexIV.176, Vol.10,p.379.
39QM,AnnexIV.68,Vol.9,p.33 1.
40QM,Annex IV.69,Vol.9,p.335. 5.Navigationalsafetyand police
6.33 A last argument concerns navigationalsafety41and police in the sea between thetwo
countries. Here again, Bahrain alleges that it has exercisedexclusivejurisdiction as regards
these matters.This againis a falseclaim.
6.34 As to buoying, lighting, and marking for safetypurposes, etc. this was never a special
responsibility of Bahrain. The rnatterwas until 1949 in the hands of a special service of the
Government of India based in Basrah. After that date the British Governent relinquished
responsibility for the service and passedthe task ta a newly formed international Company
known as the Persian Gulf Lighting Service(PGLS), with a base in Bahrain. Its name was
changedin 1966to the MiddleEastNavigationAids Service(MENAS).
6.35 There is no substance whatsoeverto the Bahraini allegationsthat the sea is under the
unchallenged authority of the Bahraini coast guards42.Qatar would like to emphasise,first,
that such patrols arenot necessarilyby themselves evidenceof sovereigntyand, second, that
Qataricoastguardboatsare also patrollinginthat area.
6.36 It follows from the foregoing thatthe various arguments used to support a claim by
Bahrain to sovereignty over shoals based on concepts relating to the acquisition of land
territory aretotally unconvincingandunsound both as a matter of law and as a matter of fact.
They have no more force herethan they had in relation to Saudi Arabia or elsewhere in the
Gulf.
Section3. The Bahrainclaim relating to pearlingand fishing
6.37 As usual Bahrainproceeds by way of unsupported assertions which bear little or no
relationto either thefacts orthe law.Let us examineinturnthesetwo sectorsof activity.
A.Pearlfishing
6.38 According to the Bahrain Mernorialthe pearling banks "have appertained to Bahrain
since time imrnern~rial"~~ and Bahrain has consistently exercised "jurisdiction and control
4'BM, para.587.
42BM,paras. 598-599.
43BM, para.638.over tl-iem"44H. owever, pearl fishing - like fishing for swimmingfish - was traditionally a
right exercisedin commonby al1tribesthroughoutthe Gulf45.
6.39 The sea-bed proclamations issuedby Gulf Statesdid not affect traditional pearlingaiid
fishingrights. TheBahrainisea-bed proclamationof 5June 1949stated that:
"Nothingin this Proclamation shallbe considered to affect the characteras high seas
of the waters of the Persian Gulf above the seabed and outside the limits of thc
territorialwaters..or the fishing and traditional pearling rightsin suchwatersH46.
Similarly,the Qatariproclamation of8June 1949statedthat:
"Nothingin this Proclamationshall be considered to affect the characteras high seas
of the waters of the Persian Gulf above the seabed and outside the limits of the
territorialwaters...or the fishingand traditional pearlingrights in suchwaters"47.
6.40 Conversely,when continental shelf rights for the riparian State emerged, it was dear
that alleged historic rightsof third States to sedentary species would not alter the sovereign
rights of theriparian State.Thisis whythe attemptby Bahrainto obtaina modificationof the
delimitation line between itselfand Saudi Arabia on account of its alleged historic pearling
rights over Fasht Bu Saafa was unsuccessful.Faslit Bu Saafa was eventually recognisedas
being a part of the continentalshelf appertainingto Saudi Arabiaby virtue of paragraph 16of
Article 1 of the offshore boundary agreement concluded betweenBabain and Saudi Arabia
on 22 February195848.
6.41 Similarly, it will be recalled that in 1962 the British Government did not accept
Bahrain's attemptto obtain a revisionof the 1947line basedon such alleged historicrights to
pearlingbanks49.
6.42 It is importantto recall that there wereno pearling banksin the southern sectorwhere
Bahrainand Qatar are opposite.Thepearling banks weremaidy locatedin the northernsector
and itis mainly in that sector that Bahrain'spresentclaim seeksfurtherto modifi, radically in
Bahrain'sfavour, a notional equidistanceline betweenthe two States. Bahrain'saccountof its
owndaim ishowevermarkedby factualinaccuracies50.
44BM,paras.643,et seq.
45Sec,QM,paras.10.38,et seq., andQM,Appendix4, Vol.15,p. 111.
46Ses,QM, Annex IV .38,Vol. 10,p.203.
47SesQ,M,Annex IV.139,Vol. 10,p.207.
48SeeQ,M,Annex IV.216,Vol. 11,p.235See,also,QCM,Appendix2, Vol.5,p. 145.
49See,QM,paras.10.34, etseq., andpar8.85,below.
50 Foreaseof comprehensionof thefollowingdiscussion,QatarhaspreparedamapshowingBahrain'slocation
oftheprincipalpearlingbanks(MapNo.3, facingthispage).Speciallyprepardpreseniiiiun iu ihe Inirrii;iiiuiial Court olluiticc. MAP No 36.43 The first inaccuracy concerns the location of the twelve "principal pearling banks"
claimed by Bahrain, which are Iisted at paragraph 647 of Bahrain'sMemorial and illustrated
on Maps 9 and IO", Bahrain has indicated no source for its maps, and Qatar has therefore
attempted to verie the information they contain by referring to the Persian Gulf Pilot and
various marine charts52.However, while some banks are mentioned by the Persian Gulf Pilot
and indicated on the charts, such as Shutayah53,Hayr Abu Ath Thamahs4,Shiquitah55or Bu
Sa'afas"these are shown on Bahrain's Maps9 and 10 as not appertainingto Bahrain. On the
other hand, only one of the banks claimed by Bahrain - Fasht Naywah (Al Amari) - is
mentioned in the Persian Gulf Pilot57and appears on two of the marine charts58.In other
words, 11 out of the 12 pearling bds which are relied upon by Bahrain, for purposes of
drawinga part of the line of delirnitationin the northern sector,appear to have no significance
as fa as navigation and fishing are concerned, and cannot be verified on the basis of the
available documentation.
6.44 Furthermore, Bahrain'sMaps 9 and 10are puzzling in that, while "Bahrain pearling
banks" are indicated in red and "Other pearling banks" in blue, several banks indicated in
blue, such as Shutayah and Hayr Abu Ath Thama, lie to the north of Bahrain in an area
bounded by Bahrainfsmaritime boundaries with SaudiArabia and Iran and bythe line from N
to NSLB, BLV and 2(2B) claimed by Qatar in the northern sector. In other words, Bahrain
appears to be saying that it has no jurisdiction over suchbanks, despite the fact that they lie
within itsownundisputedmaritime area.
6.45 Qatar does not propose to enter into a detailed legal discussion here conceniing the
location of the various pearling banks which are claimed by Bahrain. However, it feels
obliged to point out a glaring inconsistencyin relation to the banknamed Fasht Naywah (Al
Amari), which is indicated in red on Bahrain's Maps9 and 10 and thus as appertaining to
Bahrain. This bank can clearly be of no relevance to the maritime delimitation between Qatar
and Bahrain, sinceit is situatedwellto the west ofthe delimitation area in the northern sector.
Indeed, it lies to the south of the continental shelf boundary established in 1968 between
5'BM,Vol.7.
2886r(scale 1:35000);Frenchmarinechart6635D(scale 1:415000).A copyof Britishcharts3790and3788 is
beingdeposited with the RegistroyftheCourtin accordawithArticle 50,paragrap2 of theRulesof Court.
A copyof Britishchart2886andFrenchchart6635Dwas depositedwiththeRegistryof theCourt atthe tirof
thefilingof QatarMemorial.
53QM,Annex 11.1Vol.3,p. 1,atp.44, para.8.50;Britishcharts2847 and3790.
54 QCM,AnnexIV.52,Vol.4, p.401, atp.404, para.4.52; Britichart2847.
55Ibid.,atp.405,para.8.78;Britishcharts2847 and3790.
56Ibid.,atp.406,para.8.96;Britishchart2847 andFrenchchart6635D.
57Ibid.,at para.8.94andatp.407.
58 Britishchart3788andFrenchchart6635D.Saudi Arabia and Ira@, to the west of the maritime boundary laid down in the agreement of
22February 1958between Saudi Arabia and Bahrain, and to the north-east of the noriliein
limit of the joint petroleum development zone established under Article 2 of the same
agreement". In other words, the bank clearly falls within the exclusive jurisdiction of Saudi
Arabia, as is admitted by Bahrain itself in its agreement with Saudi Arabia. Such
iilconsistency must surely also cast severe doubts upon the reliability of Bahrain's purported
claims to otherpearling banks.
6.46 A second inaccuracy concerns the narnes given by Bahrain to the various pearling
banks it claims. Tlius,while it may be surmisedthat the bank referred to by Bahrain as "Fasht
Naywah (Al Amari)" is the sarnebank as is shown on various charts as "Fasht anNajwah""',
the documentation available to Qatar does not identiSi by narne any of the other pearling
banks claimed by Bahrain, and verification is impossible because of the Iack of indication of
any source for Bahrain'smaps.
6.47 Finally, a third inaccuracy concems the shape of the pearling banks depicted on
Bahrain'sMaps 9 and 10. Here again, the absence of any indication of a source for Bahrain's
maps means that proper verification is impossible. However, an inconsistency is apparent in
Balirain'sownposition with respect to the bank indicated as Khrais Al Thayr, the eastern edge
of which Bahrain uses in order to detemine the location of turning point S on its proposed
maritime boundary62.Thus, if one compares Bahrain'spresent depiction of this bank with its
map attached to its letters dated 2 and 10March 196463, it becomes apparent that neither the
location nor the shapeof thebankis the same on the two maps.
6.48 In view of these various inaccuracies relating to certain purely factual aspects of
Bahrain's presentation of the pearling banks, it is clear that al1 of Bahrain's evidence and
assertions in this respect must be treated with the utmost caution.
6.49 In any event, pearI fishing has progressively disappearedthroughout the whole region.
A few figures are self-explanatory. In 1930, 500 Bahraini boats with 20 000 men were
engaged in the pearling industry. These figures had fallen toI1boats and 500 men iil 195464.
59 QM,Annex IV.258,Vol. 12,p. 71.
Vol. 12, p. 95) tzone,known as the "Fasht bu SaafaHexagon" or as the "Joint Oil Revenue Arrangement
Saudi ArabidBahrain" (SeMap No.3, facing p. 196), falls under the "sovereigntyand administrationof the
Saudi Arabian Govemment",while itsoil resourcesare sharedequallybetweenthe parties.
61Sec,Frenchchart 6635DandBritishchart2886.
62RM,Map 10,Vol.7.
" Ses, QM,Map 13,Vol. 17.
64 See,M.G. Rumaihi,Bahrain: Social and Political Chsincethe First World War,London, 1976, QM,
Amex IV.317, Vol. 13, p231, atp. 237. Sir Humphrey Waldock acknowledged thisdecline in his February
1954opinion,QM,AnnexIV.206,Vol. 11,p.67, ap. 113.The activity was considered as moribund in 194865, was "rapidly decliningl'in Bahrain and
Qatarin 194966andwas defunctby 1972:
"... in recent years the cornpetitionof cultured pearls and the lure of betler and esisier
jobs in the oil industry havereducedthis once major activityto negligibleproportions.
For practical commercial purposes pearling in the Gulf must now be regarded as
defunct"67.
Bahrainitselfacknowledgesthat
"In the 1930s, however, cultured pearls were developed in Japan and threw the
Bahraini pearling industry into a depression from which it has yet to recover.
FIowever,as late as the 1960sthe industrystill continued. Feasibilitystudies are under
wayin orderto determine how to reviveit"68.
This is an understated way of recognizing that pearl fishing is now defunct. It is
difficultto understandhow an activitywhich hasceased couldnow have any consequences on
the delimitationofthe singlemaritime boundarybetweenQatarand Bahrain.
B. Swimming fish
6.50 Accordingto the BahrainMernorial:
"The entire area between Bahrain's main island and the Qatar Coast is an area of
traditionalBahrain fishing"69.
However, what has been said above about pearl fisheries applies in general to
swimmingfish. Until very recent times,fishinghas traditionallybeen common to al1tribes in
the Gulf.
6.51 The British decision of 23 December 1947provided that the seabed delimitation did
not affectthe waters abovethe sea-bed.This was confirrnedby letters of 17February 1948to
the two Rulersstatingthat the saiddecision:
"... is not intendedto and does not affect any fishing or other rights in the waters on
eithersideof the line, nor isit intendedto deprive Qatar/Bahrainnationalsof rights in
private property such as fish-trapswhich may lie in the waters on the BahraidQatar
65See, QM,Annex IV.128,Vol. 10,p. 155.
66See,QMAnnexIV.150,Vol. 10, p.255.
67 R.Young,"ThePersianGulf', ii~ew Directions in theLaof theSea,London, 1973,QM,Annex 1V.327,
Vol. 13,p.291,atp.297.
BM,para.48.
69BM,para. 595. side of the line nor Qatarrnahrain nationals of similar rights in the waters on the
BahraidQatar sideof theline"70.
6.52 Freedomof fishingcontinuedto bethe cornmonpracticelocallyuntilthe 1970ts,when
various Gulf States adopted unilateral legislation concerning fishing zones In particular,
Qatar enacted a Proclamationon 2 June 1974,concerning the rightsof the Staieof Qatar to
the natural and marine resources ofthe areas adjacentto its territorial waters71.On 3 March
1983 a further law was enacted in Qatar on exploitation and conservation of the maritime
livingresourcesin Qatar72.Theseenactmentsmet with noprotestfromBahrain.
6.53 As to the importance of actual fishing activities in the waters of the northern and
southernsectors,informationis fiagmentaryon both sides.Bahrainputs fonvardfiguresin its
Memorialdesignedto showthat its economydependsheavily onfishing73.Quite apart from
the considerationthat economic factors ofthis nature areirrelevantto a maritime delimitation,
Bahrain has not providedanyevidenceto demonstratethat thesefishing activitiesconstitutea
significantpart of its overalleconomy.Similargeneralstatisticscould be providedby Qatar,
but wouldbe equally irrelevantand couldnot prove more thanthe Bahrainifiguresprove74.
6.54 In this regard, it is worth recalling that the waters between the two States in the
southern sector are shallowand full of shoals,rocks andreefs. They are not easily accessible
to large boats. In any event, the Bahraini fishing ports are located in the north (Muharraq,
Sitrah, etc.). The Fasht al-Am shoal constitutes a natural obstacle of teefs75(most of them
under water atlow tide) posing a real danger for navigation towards the south. Only small
fishing boatsare ableto operatethere.
70See, QCM,Annexes IV.2 and IV.3,Vol.4, p. 9 andp. 13.
71QM, Annex IV.269, Vol. 12,p. 159.
72QM, Annex IV. 276,Vol. 12,p. 223. This text was amendedbyDecree-LawNo. 17(1993)amendingcertain
provisionsof LawNo. 4 of 1983,concerningthe exploitation and protectionlivinmarine resourcesinQatar,
QCM, AnnexIV.3 1,Vol.4, p. 253.
73 BM,paras. 595,etseq.
74 In this contextit maybe noted that theBahrainiassertionin para.44 of its Memorial that "the eastemreaches
of theGulf of Bahrain havformany centuries effectively beena Bahrainilake" is quitewithoutsubstance.lt is
noteworthy that Bahrain's eastern coast to thesouth of Ar-Rifaa al-Sharqi, opposite Sitrahisland is very thinly
populated. Thus,a list of towns on the eastern coast of Bahrain compiled in 1908 reveals that even at the
beginning of the present century this coastal.area was sparsely settled. Southwards of Ar-Rifaa atheharqi,
only villages describedwere Askar, Jau and Salbah (Lorimer,op. cit., QM, Annex 11.3,Vol. 3, p. 61, at pp. 69,
73 and 79). Further, a descriptive tour of Bahrain's coastal villagesin 1915 mentioned along that partof the
coast onlythe townsof Jau, Askarand Dour(see,map of BahraininKhuri, op.cit.QCM,Annex IV.48, Vol.4,
p. 383, at p. 385). The tribal Settlementson the eastern coast of Bahrainwhich weredrained of their population
when pearlfishinglost its economic supremacyinfavour of oil werethe samethreJau,Askar andDour (ibid,
at p. 387), the land beyond Dour being described as "barren and absolutely uninhabited" (T.A. Anthony,
"Documentationof the ModemHistoryof Bahrain fromAmericansources(1900-1938)" inBahrain lhroughthe
ages, the History, Shaikh Abdullah bin Khalid Al-Khalifa anM. Rice (eds.),QCM, Annex IV.76, Vol.4,
p.303). The absence of any significant population on this easterntf Bahrain is quite simplyexplainedby
the extreme barrennessofthe area, thefertile landfringingonly the northem andwesternpartsof the island(see,
para.2.62, above).
75 Thereisof coursea verynarrowfishemen's channel.See,para. 8.48, below.6.55 Since 1986,a number of arrests of fishing boats havetaken place in the maritimearca
lying between Qatar and Bahrain, leading to protests on both sides. There have also been
many incidents since 1991betweenBahraini and Qatari coastguard boats, theBahraini boats
trying to prevent Qatari boats fiom patrolling in Qatari waters. Someof these incidents have
alreadybeennotifiedby Qatarto the Registrar of the Court76.
6.56 The incidents mentionedin the previousparagraphdemonstratethat the allegationsof
Bahrain that the maritime area between the two States has always been an exclusive fishiiig
ground for Bahrain are without foundation.The disputed maritime area was used by the
fishermen of both countries without incident up to 1986.It is only since that date that Qatar
has taken a firmer stand against Bahraini infringements of its territorial waters or its fishing
zoneoutsideterritorial waters.
Section4. TheBahrainiclaim to archipelagicstatus
6.57 At this stage of the written proceedings, Qatar must drawattention to the strange way
in which Bahrain has presented its archipelagic claim in its Memorial. Not only is the
Bahraini claim based on certain disputable assumptions, which will be dealt with in this
sectionof the Counter-Memorial,but the claim itself is quite irrelevantfor the purpose of the
delimitation of the single maritime boundary thatthe Court hm been asked to draw in Ihe
present case77.
A. Theextraordinarypresentationof theBahrainiclaim
6.58 In its Mernorial, Bahrainhas chosen to develop complex and obscure reasoning in
order to sustain its iIl-founded proposition that in drawing the maritime boundary, al1the
insular and other maritime features in the relevant area would have to be taken into account,
whatever mightbe the "status"of Bahrain, either "asa continentaland multiple island State",
or "as a multiple islandState",or "asan archipelago",in the international legal denotation of
thisterm78.As a matterof fact, according tothe geographicaldescriptiongivenin the Bahrain
Memorial, nearly al1of the sea area which separates Bahrainand Qatar has for a long time
76See,QM, Appendix1,Vol. 14,p.1,and QCM,Appendix 1,Vol. 5, p1
77See,QM, paras. 9.and 11.43,etseq.
78 BM,para.657.been "a Bahraini lake"79 and even "a protected maritime enclave"80,a situation lhen
summarized by asserting "Bahrain'scontrolover the entire maritime area between its main
island and Qatar"81.In the view of Bahrain, it is obvious that such control over thesea area
necessarily includesBahrain'scontrol and rights over al1the maritime features lyingin that
areaR2.And it is also self-evident from Bahrain'spoint of view that its rights over those
features generate by themselves rights over the whole of the maritime area. Carrying this
pervertedlogicto its conclusion,Bahraindoes not hesitateto statethat "[tlheareaof sea to the
west ofthe Hawar islands, between theseislandsand themain Bahrain island, is comprisedof
interna1waters of BahrainU83.
6.59 It is in such a context that the Bahraini archipelagic claim is presented as part of an
"alternativeclaim",togetherwith a claimto normalbaselines,on the hypothesisthatthe Court
were to decide that Bahrain has no sovereignty overZubarahg4.However, curiously enough,
that so-calledalternativeclairnrelatingto archipelagic baselinesappearsalso to bepart of the
Bahraini "principal claim". While the Bahraini Mernorial leads up to this in a roundabout
marner, there is a first hint of it when Bahrain characterises itself as being "an insular and
archipelagicensemble,together withthe continentalterritory of Zubarahf18sB . ut a few pages
furtheron, it is clearIystated:
"Even in theevent thatthe Zubarahregion was deemed to appertainto Bahrain ...the
concept of an archipelagic State might still be applied to characterise the Stateof
Bahrain1'S6.
Such a proposition is wholly incompatible with the relevant provisions of the 1982
Convention onthe Law of the Sea,on which Bahrain bases its archipelagicclaim. Moreover,
it contradictswhat Bahrain callsthe "contingency"on which its alternativedaim is based and
the assumption made in that connection, namely "that Bahrain is composed wholly of
islands1'87.
7yBM,para.44.
80 BM, para.47.
BM,para.588.
82 Accordingto Bahrain,the "largenumberof insuandotherlegallyrelevantmaritimefeatures,fromJanan in
para. 567). Fasht ad Dibalinthe n...areallwithoutexception,subjectto the sovereigntyof Bahrain"(BM,
83 BM,para.621.
84 BM,paras.657, etseq.
85 BM, para.606.
86 BM,para.657131,fn.731.
" BM,para.666. B.The conceptofa geographicalarchipelago
6 Thetraditionalconcept ofanarchipelago,in geographicaltems, is that it is a groupof
islands.In that respect,Qatar agreeswiththe idea thatBahrainhas beenregardedas a de facto
archipelago8gand that "[tlhe description of Bahrain as an archipelago - using that term in a
geographical sense - is long-established andwell-documented"89.However, in its Memorial,
Bahrain confines itself to drawing attention to different publications where the word
"archipelago" has been used in relation to the Bahrain islands. But, in doing so, Bahrain
refrains from mentioning the extent assigned to the "Bahrain archipelago" in those
publications. Thus,in his Gazetteerof the Persia nuZf,Lorimer not only used theterm but
indicated preciselythe geographicalextentof the Bahrain archipelago:
"Thepresent Shaikhdomof Bahrainconsists of thearchipelagofonned by the Bahrain,
Muharraq, Umm Na'asan, SitrahandNabi SaIih islands and by a number of lesser
isIetsand rocks which ..form a compactgroup almostin the middle of the gulf which
dividesthepromontory ofQatarhm the coastof Qatif...Iqg0.
The same list has been reproduced in more recent descriptions of the "Bahrain
archipelago", such as that given, forexample,in a 1933 letter fiom the India Office91or in a
Military Report on the Arabian Shores of the Persian Gulf92.The latter again noted, as did
Lorimer at the beginning of this century,that the Bahrain islands as a wholefom a compact
group93.
6.61 It is noteworthy that none of those descriptions listed the Hawar islands as a
component ofthe "Bahrain archipelago".Onthe contrary,there is considerabledocumentation
showingthat "HawarIsland is clearlynot one ofthe Bahraingroup"94.Thus,in a letter sent on
9 August 1933by the IndiaOfficeto the Boardof Trade,it was expresslystatedthat:
"Hawar ...belongs in any case geographically to Qatar, and is the westernrnost and
largestof a group of islandsjust off the Qatar coast on the west sideof the eiltranceof
Duhat-al-Adhwan"95.
BM, para. 680.
89BM,para.661.
90Lorimer,op.CS.Q,M,Annex11.3,Vol. 3, p.61atp.88.
91QM, Annex 111.8, ol. p.43 1.
92BM, Annex 330,Vol .,p.1446.
g3See,also,QMJA,Annex 1.18Vol.II,p. 101.
94See, QM, Annex111.88Vol.6, p449.
95QM,Annex111.91V , ol6,p.461. The reason is that the Hawar islands, previouslydefined by Qatar as "a flanking
offshore island group"96characterised by its "compact nature"97,appear as an archipelago
entirelydistinctfromthe Bahrain island group,in fact a Qataricoastalarchipelago. Therefore,
from a geographical pointof view, contraryto what is said in Bahrain'sMernorial98,it is not
possibleto include the Hawarislandsin the "Bahrainarchipelago".
62 Moreover, Bahrainhas not provided the Court witha detailed and precise list of the
different islands comprising the "Bahrainarchipelago".When characterisingthat archipelago
as "an intrinsicgeographical entity",the Bahrain Memorialis content to enumerate "themain
Bahrain island, theimmediately adjacent islands of Sitrahand Al Muharraq, approximately
50 other islands(includingthe Hawar Islands) and 22 low-tideelevations"99.As hasjust been
demonstrated,the Hawar islandsdo not constitute,geographically, part ofthe entityknown as
the Bahrain islands. And perhaps that is why Bahrain has tried to advance sclmemuddled
arguments,mixing the geographical conceptand the legal notionof an archipelago.Thus, the
Bahrain Memorial argues unconvincinglythat "there does not need to be historical evidence
that theentiregroup was considered to be an ar~hipelago"~00 a,nd "(i)tcould notbe expected ...
that in 1939the British Governrnentwouldrecognisethat the Hawargroup of islands formed
partof the Bahrain archipelago"lo1;for "in 1939such a concept hadnot been established"l02
and, prior to the 1982 Convention, "the geographical extent of a legal archipelago was not
defined"l03.Qatar would in anyevent submitthat the inclusion of low-tideelevationscannot
bejustified insofaras, geographically speaking,they arenotper se to be regardedaspart of an
archipelagodefinedas an islandgroup104.
6.63 Fromthe mere factthat the Bahrainislands weregenerallydescribed in the past as an
archipelago, now Bahrain seeks, by means of some incidental remarks,to give the false
impression that as early as 1947,and even 1937,it was claiming,some kind of archipelagic
Y6QM, para.4.7.
97 QM,para. 4.5.
9g BM,paras.606,6 19,and669.
99 BM,para.669.
'O0BM, para.680.
loiIbid.
'02Ibid.
10Ibid.
'04See, H.W. JayewardeneT, he&gime of Islands in InternationalLaw, DordrechtlBostonlLondon,1990,
QCM,Annex IV.47,Vol.4, p.379. statu^^^^w, hile recognising however that: "the translation of this claim ... into actual
archipelagic baselines ...had to await the stage at which a cIear international consensus
emerged over the whole conceptof the archipelagicStateWl*6 A.nd then, relying on a gencral
statementmade by the BahrainiRepresentativeduringthe second sessionof the Third Lawof
the Sea Conference in Caracaslo7,it does not hesitate to state explicitly that its daim "was
clearly expressedas early as 1974,withoutobjection from Qatar"lO%But if one looksclosely
at the Bahrain statement to which reference is being made, it will be seen that it docs not
amount to the expression of a clairn to archipelagic status on the part of Bahrain. In fact,
according to the summary records of the 40th plenary meeting, as printed in the Of'jcial
Recordsof the Conference,the relevant passageofthat statementreads as follows:
"Consisting as it did of an archipelago, Bahrain supported theright of archipelagic
Statesto draw straight baselineswhichsafeguardedtheir territorial,political,economic
and national unity and within which they might exercise their sovereignty, subject to
the right of innocentpassage"l09.
That wording differed noticeably from the clear and ndnambiguousposition taken up
during the same session of the Conferenceby other delegationsclaiming recognition of their
archipelagic statusllQ. It would be wrong ta construe the words used by Bahrain's
representative as if the general "support" given to the notion of archipelagic status were
equivalent to a claim of such status by Bahrain itself. Furtherrnore, when the item
"Archipelagoes"was later discussedin the Second Cornittee of the Conference, on 12 and
13 August 1974, Bahrain did not make any further official statement. It is atso noteworthy
that there was not a single word about anyarchipelagic claim by Bahrain in the statement
made by Dr. Al-Baharnaon 8 December 1982at the final session of the Conferenceheld at
MontegoBay,Jamaical l l.
6.64 Whatevermight be Bahrain's possible legalentitlementto claim archipelagicstatus or
to draw archipelagic baselines afterit ratifiedthe 1982Conventionin May 1985 and sincethe
entry into forceof the Convention in November 1994,the fact remains that no forma1claim
'05BM,para.661.
IO6BM, para.662.
'O7 The statementof Mr.AI-Nimerwas madeat the 40th plenarymeeting,on 12 July 1974, and not at the
37Ihmeeting,on 11July1974, aswronglystatedinBM, para.662, fn.737.
BM,para. 662. This assertis inconsistentwithwhatBahrainhaswrittenin anotherparagraph, hereit is
saidthat"thelegal claimto archipelagicst..inBahrain'casecouldnot have beenreasonablyexpectcdprior
tothe 1982Convention" (BM,para.680).
BM,Annex352,Vol.6, p. 1529.
See, for example,the statementsmade on8 July 1974 by the representativof the Philippin(QCM,
AnnexIV.18,Vol.4, p. 123)andtheBahamas(QCM,AnnexIV.19,Vol.4,p. 127.
11'Set, theverbatimrecordsofthe 190'plenarymeeting,Utcial Records, VolXVII, pp.87-88,paras.61-74.
Convention ontheLawofoftheSea, UnitedNations,NewsYork,1990(E.90.V.2).Part IV of the United Notionswas presented by Bahrain prior to the filing of its Memorial in the present case on 30
September 1996.In its Memorial,Bahrain acknowledges that itsclaim to archipelagicstatus
has been delaycduntil the filingof the first writtenpleadings, allegedly "becauseof Bahsain's
comrnitmentunderthe principlesof mediationof 1982-83'notto changethe current situation
in respect of the disputedssue"'112B.ut as will now be seen,Qatar submitsthat such a claiin
is irrelevantand that the Courtshouldtakeno accountof it inthe present case.
C.Irrclevanceof anyBahrainiarchipelagic claimforthe present maritimedelimitation
6.65 First of all, it must be underlinedthat QatarandBahrainagreeon the law applicableto
the maritime delimitation in the present case, which is to be effected in accordance with
customary international lawll3.They also agree that, notwithstandingthe fact that the 1958
and 1982Conventionsare not in forcebetweenthem, the delimitationrules embodiedin those
Conventions generally reflect the state of customary international law and are therefore
applicableto the present case.In addition, Bahrainassumes that the provisions contained in
Part IV of the 1982 Convention, dealing with archipelagicStates, "can properly be said to
reflect the current, generally acceptedrules of international law on the rnatteru1I4.Insofar as
"generally accepted des of international law" may be regardedas amounting to "des of
customary international law", Qatar disagrees. The rules enunciated in the provisions of
PartIVof the Conventioncannot be consideredto be an expression of present-day customary
international law. Accordingly, Bahrain cannot invoke them in the present case. The
consequence is that any Bahraini archipelagic claim based on those rules is irrelevant in
relationto the presentcase between Qatar andBahrain.
D. Irrelevance of archipelagic baselinesin State practice
6.66 In maritime delimitationagreementsinvolving archipelagicStates, it seemsthat it has
only been on a very few occasions that the agreed boundary has been affected by straight
archipelagic baselines. From this pointof view, a distinction has to be made, depending on
whether the delimitation has taken place between two archipelagic States or between an
archipelagicStateand anothercoastal State.
6.67 In the first situation, the boundary line has been drawn with sorne effect given to
archipelagic baselines. But there are only two agreements of this type: one concluded on
13December 1980between Indonesia andPapua New Guinea,where sornebasepoints on the
Il2BM, para.680.
113QM,paras.11.36and 12.13;BM,para.563.
114BM, para.664.respective archipelagicbaselines affectedthe lateral delimitation linell5; the other onc signed
on 25 January 1989 between Papua New Guinea and the Solomon Islands, where the
boundary line was drawn by taking into account most of the segments of the archipelagic
baselineslk6.Although it does not involve two archipelagic States, the agreement signed on
19January 1983between Fiji and Francemay becomparedwiththe two previous agreements,
insofar as it affects two French overseas territories (New Caledonia, Wallis and Futuna)
formed by geographical archipelagoes. One segment of the boundary line dividing the
respective exclusive economic zonesof Fiji and the FrenchWallis and Futuna islands seems
to have beenslightly affectedby one ofFiji's archipelagicbaselinesll7.
6.68 The situation appears to be quite different when the delimitation involves an
archipelagic Stateand another coastal State (or States). The archipelagic baselines drawn by
the former have, as a matter of consistent State practice, played no part in deterrnining the
location of the maritime boundary witR the latter. This was the case in the following
delimitationagreements:
-
Australia-Indonesia, 18May 1971''8, 9 October 19721'9,and 12February 1973120;
- Australia-PapuaNew Guinea, 18 December 1978121;
- India-Indonesia,8August1974122;
- India-Indonesia-T h2aiune nd78123;
- Indonesia-Malaysia-Thailand2 , 1December 1971124;
- Indonesia-Thailand, 17December1971 '25.
The agreementstipulatingthe territorid sea boundary lines between Indonesia and the
Republic of Singapore in the Straitof Singapore, signed on 25 May 1973, is of particular
reievancehere,for the archipelagic baselinesof Indonesia were not given Ml considerationin
J.I. Charney & L.M. Alexander, internationaMaritime Boundaries, Martinus Nijhoff,
DordrechtiBostonlZondon,1993,Vo1,pp. 1039-1048.
Il6Ibid., pp. 1155-1165.Referring to State practice,Bahrain has mentioned the national practiceof Indonesia
and the Philippines concerning archipelagic baselines;but its presentation is somewhat partialand inaccurate
(BM,para. 673). It must thereforebe empha(a>that there is no delimitation agreement bet!NOnthese
nearest principal indonesianisland, andin island of Celebes is 245 miles to the south; and (c) that thethe
Philippines have never acceorerecognised Miangas Island as a basepoint in the 1960Indonesian straight
baselinsystern.
Il7J.1.Charne& L.M.Alexander,op.citVol. 1,pp995-1001.
'l8lbid., VoIIpp.1195-1205.
119lbd, pp. 1207-121S.
120Ibid .p. 1219-122s.
I2lZbid .ol.1pp. 929-975.
122Ibid .ol.TI,pp. 1363-1370.
123lbid .p. 1379-138s.
124Ibid .p.1443-1454.
125Ibid., pp. 1455-1463.drawingthe boundary. They werc evendisregardedin determining a portion of the maritime
boundary, withone turningpoint beinglocated within the Indonesian archipelagic baseline,so
that a small area of Singapore's territorial waters cutsinto Indonesia'sstraight archipelagic
base lin es^^^.
6.69 These elements of State practice demonstratethe existence of a trend according to
which,in a maritimedelimitationinvolvingan archipelagicStateand anothercoastal State,no
effect is given to archipelagic baselinesin the drawing of the boundary line. Such a trend is
apparently broadly accepted by the different archipelagic States which have entered into
delimitatian agreements. This is a factor that would have to be taken into account in the
present case, if it were admitted, contrary to Qatar's submission,that Bahrain would be
entitled to claim archipelagic baselines.For this reason also, Qatar submits that archipelagic
baselines areirrelevantfor the purposeof drawingthe Qatar-Bahrain maritimeboundaryl27.
6.70 In any event, in Qatar'sview Bahrain does not meet the requirements set out in the
1982 Convention on the Law of the Sea, and is thus precluded from validly claiming
archipelagic baselines. However, the irrelevance of the Bahraini archipelagic claim, as
demonstrated above,rendersit unnecessaryto examinethatclaim.
Section 5.The divisionof therelevant maritimeareainto hvosectors
A. The artificialcharacterof theBahrainidividingline between theho sectors
6.71 Both Parties agree on the necessary division of the maritime area relevant to the
delimitation into two sectors, and they both identify a southern sector and a northern sector.
But their agreement does not go beyond the recognition of such a necessary division, since
they have proposed different dividinglines.Thefine betweenthe two sectors as suggestedby
126 Ibid., Vol. 1, pp. 1049-1056. When the boundary line establisheby the 1973 Indonesia-Singapore
agreement is cornparedto the medianline claimedby Bahrainas depictedon Map 13appendeto itMeinorial
(BM,Vol. 7), it willbe seenthat Bahrainhas showna greatsenseof black humourwhenit statesthat its claimed
archipelagic baselinesdo not cut off the Qatariterritorial watersfrom the high seas: "In relation to the area of
Qatariterritorial seato the south-westof the Qatarpeninsula, access from this territorial seato Qatar's exclusive
economic zoneand the high seas is possibvia the band of Qatari territorialsea situated betweenthe Hawx
accesswould surelynot be possibl(seeQM,Map5,Vol. 17).ain has refiained fromindicating thatnavigational
be deduced from the Agreementbetween the Government theofrBahrain and the Kingdom of Saudi Arabiaay also
concerning the Delimitation of the Continental Shelf. As a matter of fact, Saudi Arabia'sDecr33 of.
16February 1958 among other things provided for the drawingof possible straight baselinesby using in
particular low-tide elevations situated not more than 12nautical miles from the mainland or from a Saudi
Arabian island(Supplement toLaws and Regülafiunson the Regïme of the HighSeas (volumesI and 14 und
Laws concerning the Nationaliof Ships,ST/LEG/SER.B/8,U.N.Publication, SalesNo 59.V.2,p. 29). Butthe
baselines claimedby Saudi Arabiaery shortlybefore the signature of the delimitation agreementwith Bahrain,
on 22 Febmary 1958,did not affect the locationof the maritimeboundary between thetwo count(see,J.1.
Charney & L.M.Alexander,op. citVol.II,pp.1489-1497).Bahrain is highly artificial insofar as it does not reflect the actual coastal geograpliy of the
area,whilethat considerationis fullyreflectedin the dividing line suggestedby Qatar.
6.72 Quitesurprisingly,the BahrainMemosialsestricts itself tostatingthat the line dividing
the area into a southern sectorand a nortliern sector is "a line fiom Fasht ad Dibal to Ra's
Rakan (on the northem point of Qatar)"l2RN . Oexplanationis given forthe choiceoflhat line.
Furthermore, as wili be seen below, the line suggested by Bahrain does not reflect the
geographical realitiesin the relevant maritimeareal29.
1.The distortionbyBahrainofthe geographical relationshipbetween the two States
6.73 Bahrain's distinction between the two sectors does not really start with the
geographical configurationof the area, but is based on the different legal natureof the zones
to be delimited'30.Qatar'ssubmission is that the difference between the legal nature of the
maritime zones to be delimited cannot really be the sole (or even primary) criterion for a
division of the maritime area into two sectors.Firstly, as admitted by Bahrainitself, in a part
of the northem sector, the boundaryto be defined is also a territorial sea boundary as in the
entire southern sector13l.Secondly, the task of the Court in the present case is to draw "a
single maritime boundary between the maritime areas of seabed, subsoil and superjacent
waters appertainingrespectivelyto the State of Qatar and the State of Bahrai11"1~w ~,hatever
may be the legalnatureof the respectivemaritime areasthus delimited.
6.74 In previous maritime delimitation cases whenthe Court, or an international tribunal,
has had to divide the relevant area into different sectors, this has always been done on the
basis of purely geographical considerations. Suffice it to mention herethe cases conceming
the Continental Shelf (TunisidLibyun Arab Jamahiriya)'33and the Delimiratian of the
MaritimeBoundaryin the Gulfof Maine Area134, or the United Kingdom-Francearbitration
on the Delimitation of the Continental Shep35. This is why Qatar has insisted, in its
Mernorial,on the geographicalcircumstancesuponwhich it hasbased the divisionof the area
into twosectorsl36.
'28BM,para. 559.
129See,paras.6.76,et seq., below.
I3O Such a position is takenin the frameworof Bahrain'sprincipal claim but is not modified withiti its
alternativeclaim.See,BM,paras.559and690.
BM, para.636.
n2 Para.41,11,ofQatar'sApplication.
i33I.C.1 Reporis1982,p. 18.
1341.C.J Reports1984,p. 246.
135International LegaiMaterzals,Vol.XVIINo. 2,March 1979,p.397.
I3"ee, QM, paras.9.2,et seq., a12.23etseq.6.75 It is only when examining the characteristicsof the southern sector that Bahrain's
Memorial enters, quite incidentally, into a brief and partly inaccurate description of the
geographicalrelationshipbetweenthe respective coastsof the two countries. It states, except
with regard to the maritime area lying off the so-called "Zubarah coast" (resulting from
Bahrain's extravagantdaim over thatregion)that:
"the Court's taskis to carry out a delimitation between opposite coasls which are
practicallyparallel,whetherone considersthe coast of Qatarvis-à-visthat ofthe main
Bahrain island, or ..vis-à-vis that of the insular and other legally relevantmaritime
features whichappertainto Bahrain"l37.
6.76 However,Bahrain does not relyon the coast of any of its islands inorderto establish
the closing lineof the southern sector. Instead, it usesa non-coastalfeature, namely the low-
tide elevation of Dibal, which moreover is one of the subject-mattersin dispute betweenthe
two States that has been submitted tothe Court in this case. It seems therefore quite illogical
to use it, atthe very firststageof the identificationof the relevantmaritimearea, to dividethat
area into two distinct sectors. Furthermore,Dibal, being a low-tide elevation separated from
Bahrain'smain coast, cannotproperlybe consideredas representing theBahrainicoast facing
Qatar'scoast13g.
6.77 Those remarks also apply, to some extent, to the other terminal point of Bahrain's
closing line, whichis presentedby Bahrainas "thenorthernpoint" or "the northernextremity"
of Qatarl39.That point is not situatedon the actual coast of the Qatar peninsula but, fromthe
different maps attached to the Bahrain Memorial, it appears to be located offshore, about
5kilometres beyond the coastline,and presurnablyat the northernmostpoint on the low-water
line ofRas RakanisletI40.
6.78 The Bahraini presentation of the closing line accordingly distorts the geographical
situation, insofar as it does not really reflect the geographical relationship of opposition
between the relevant coasts of the two States. And the line suggested by Bahrain for that
purpose appears al1the more artificial in that it has been drawn on the false presupposition
that Dibalformsan integralpart of therelevantcoast of Bahrain141.
137BM, para. 566.
See,paras.6.82,el seq.below.
139BM,paras.559,564 and633.
I4OSee,BM, Maps 8, 10and14,Vol. 7.
141Infact Dibalcannot"besaid tobecomprisedwithinthecoastlineof themainland itselftausethewordsof
theAnglo-French Courtof Arbitratiodecisiondated30 June1977whenit describedthesitualionof thelsle of
Wightattheentranceof thePortof Southampton[QCM,Annex IV.34,Vol. 4, p.273atp.275). 2. The treatrnent ofwhat Bahrain terms "insularandotherlegally relevant maritime
features"
6.79 In its Mernorial, Bahrainhas constantlymade use of the expression"insularand othcr
legailyrelevantmaritimefeat~res"'~~w , iththe exception oftwo slightvariantswhich areused
twice overl43.But it has never given a precise definition of the so-called "legally relevant
maritime features". It merely provides an indication of whatmight be meant by that phrase
when, on one occasion,it refersto "islandsand othermaritime featuresto whichinternational
law assigns relevance in maritime boundarydelirnitati~n"~~~ U.ndoubtedly, forBahrain, this
was a convenient means to anend, i.e. it was designedtu substitute different remote islets,
rocks, reefs or shoalsforthe actualcoast of Bahrain itself.The basic reasonforthis lies in the
Bahraini view accordingto which the whole of the sea area between Bahrain and the Qatar
peninsula is simply a "Bahraini lake"l45.Two distinct lines of argument are followed to
supportthe Bahrainiposition.
6.80 The first one consists in reducing to an absolute minimum the significance of the
Qatari.coast oppositethat of Bahrain in the maritime delimitation. While Bahrainclairnsthat
it "doesnot contestQatar's rightto a territorialsea anddoes not claimthe entire area of seaas
far as the coast of Qatar"l46,the Bahraini demonstration in reality arnounts to just such a
claim. As a matter of fact, arguing that "Only a negligible proportion of the population of
Qatarlives onthe west~oast"'~~B , ahraingoesonto state:
"Qatar as a whole is left with open access to the highseas by virtue of its extensive
east-facingcoastline,afongwhichvirtuallyits entirepopulationlives"l48.
It must be emphasisedthat Bahrainseernssimply to forgetthat what mattersin the law
of maritime delimitation is the coast itseif, whatever the size of the population on theland
behind that coast might be. The question of whether the land is sparseiyor densely populated
is of no relevance for the purposes of a maritime delimitation, particularly as betweeii
142BM, paras.566,567,568,606 and 688.
143 The frst variant is: "other legally relevantformations"(BM, para. 568); the s"other legally
relevant features"(BM,para.608).
144BM, para.603.
'45BM,para.44. See,para.6.58,above.
14%~, para. 589.
14'BM,para.68.
14~BM,para 686.opposite coasts, as most recently illustrated forexample in the case concerning Maritime
Delimitation in the Area between Greenland and Jan Mayen'49.In fact what Bahrain is
suggesting would have the consequenceof ignoring more or less the western coastof Qatar
because of its sparse population, while faiiing to mention that Bahrain's eastern coast is
similarly sparselypopulated.
6.8 1 Ifthe western coastof Qatarwereignoredin this way, this would of courseleave open
the way to Bahraintssecond line of argument, according to whichthe relevant coastline of
Bahrain wouldin el'fectconsist of an imaginaryline drawn though several "insularand other
legallyrelevant maritimefeaturest'.
a) Featuresrecognised as beinglow-tideelevationsarenotthe relevant Bahraini coast
6.82 As clearly shown on Map 14 annexed to Bahrain's Memorial, apartfromthe Hawar
islandsover which Bahrainis claiming sovereignty,five featuresare deemed to represent part
of the coastof BahrainIso.Fourof these features are expressly recognisedby Bahrainas being
low-tide elevations. This in itself would nonnally preclude Bahrain from arguing that these
features constitute part of the Bahraini coast oppositeQatar's coast.The fifth feature, Qit'at
Jaradah, is presented by Bahrain as being an island, whife in fact it is also just a low-tide
elevation.
6.83 Qatartakes note of Bahrain'sadmissionthat Dibal, together with Qit'at ashShajarah,
Qila'ael Ergeand FashtBu Thur, aremaritimefeaturesfalling intothe legal categoryof low-
tide elevatio~is,as defined by Article 11 of the 1958 Convention on the Territorial Sea and
Article 13of the 1982Conventionon the Law of the Seal51.Furthemore Qatar notes that, at
the same time, Bahrain rightly recognises Qit'atash Shajarah as distinct from Fasht al Am
'" ln its Judgment of 14June 1993,after having said: "JanMayen has no settled population"(I.C../. Reports
1993,p. 46,para.151,the Courtstatedthat "the attributionof maritimeareasto the territoy of a State,which,by
its nature, is destinto be permanent, is a legal procebased solely on the possession by the territory
concernedof a coastline";and ittherefore concluded "that,inthe delimtobe effectedin this case, thereis
no reason to consider either ihe limitednature of the population of Jan Mayen or socio-economic factors as
circumstancestobe taken intoaccount(ibid,p. 74,para80).
150BM,Map 14,Vol. 7: "Medianline(southernsector)usingnormal baselines".
151 BM, paras. 45 and 626.See,also, QM,para. 10.54,and QM, Appendi5,Vol. 15,p. 125.Concerning more
particularly Dibal, it is noteworthy that there has been a significant evolution since the Bahraini claim of
16August 1961where it isstatedthat: "TheRulercontendsthat both Jaradahand FashtAldeebleare islai.e.
that Jaradahanda partof Fasht Aldeeble are permanentlyabove water at high t(see,QM, Annex IV.254,
Vol. 12, p. 17, at p. 26) sent undarcovering letter from the Ruler of Bahraito the PRPG (see,QM,
Annex IV.233,Vol. 11,p. 353).which forms a quite differentfeaturel52,whilemaps appended toBahrain'sMemorialshowno
discontinuitybetweenthose two features'53,contrary tooflicialBahraininautical chartsi".
6.84
Al1those features are distinctly detachedfrom the eastern coast of Bahrain, as the
maps presentedto the Courtby both States showl55.Of course, they are not located at a great
distancefrom the Bahrainicoast, nor are theyat a greatdistancefromthe Qataricoast. In fact,
one has to take into account the narrowness of the sea area between Bahrain and the Qatar
peninsula, becauseit is rathera questionof proportion, andnot of absolutedistance.From that
point of view, theyare surelynot featuresclosely integratedwith the main Bahrainicoastls6.
6.85 Concerning more particularly the low-tide elevation of Dibal, as already stated
ab0ve15~t ,hat feature cannot be considered as the northernmost point of Bahrain's coast,of
which it is not a partl58.Moreover, it is closer to the shore of Qatar than to the shore of
Bahrainl59.Consequently, by taking account of Dibal to draw a line for dividing into two
sectorsthe relevant maritime area,as if that shoal were the northern tip of Bahrain'sterritory
opposite the coast of Qatar, Bahrain has falsely presented the geographical, hydrographical
and legal realityinthat area.
b) Qit'atJaradahis a low-tideelevation
6.86 Whilenot directly related tothe question of the division of the relevant maritime area
into two sectors, it is convenient at this stage to rnake some observations on Bahrain's
treatment of Qit'atJaradah.According tothe Bahrain Memorial,"[tlhe status of Qit'atJaradah
merits specialattentionUl60Q . atar endorsesthis view,the more so as Bahrain's presentationis
inaccurateand rendersit necessaryto rectiSrcertaindistortions.
152They are separately enumeratedinthe list laid down inBM,para. 626.On Fasht alAm, see, paras. 7.6, et
seq.and8.45, etseq.,below.
153See,BM,Maps6,7,8,9, 11,12,13,14and15,Vol.7.
154Sec, in particularChartNo. 5001"Sitrato Tighaylib",scale 1:50,000,and ChartNo. 5005 "Qit'atJaratoh
Gulf of Bahrain, scale 1:100,000,published December1987 by the Ministty of Housing, Survey Directorate,
HydrographicDepariment,Bahrain.A copy of each of these charts is being deposited with the Registryof the
Court,pursuantto Article 50, paragraph2 ofthe Rulesof Court.
l 5See,QM, Maps2 and I 1, VoI. 17,andBM,Map 6, Vol. 7.
156A striking example is that of Qit'at ashShajarah which lies closer to Qatar than to Bahrain. Sec, also,
para. 7.10, below;D. Bowett, "Xslands,Rocks, Reefs and Low-tide Elevations in Maritime Boundary
Delimitations",(QCM, AnnexIV.37,Vol. 4,p. 307);andCharneyand Alexander (eds.),op. cit.Vol. 1,pp. 131-
151(in particular pp. 14750).
Is7See, para.6.76,above.
158See, also, para.8.56,below.
Is9QM,para. 9.11.
I6OBM,para. 622.6.87 Contrary to the true facts, Bahrain contends that Qit'atJaradah is a maritime featurc
which is "abovewater at high tide"l61.Bahrain Statesthat this feature is to "be treated as an
island for the purposes of dcterminingthe single maritime boundary"lfi2,because: (i) it had
becomc an island someyearsago as aresult ofnatural accretion;(ii) it wouldstillbe an island
today if Qatar hadnot intervenedin 1986;and (iii) it is in the process of becomingan island
againby means of an inexorablenatural accretion.Bafiraineven goes so far as to assertthat in
1986 "Qatari bulldozers removed that part of Qit'atJaradah which was exposed at high
tide"Ih?It is necessaryfor Qatarto settherecord straight.
6.88 It must firstbe recalled that an agreement was reachedin 1978to preserve the status
quo iil the area pending the Saudi Arabianmediation. That agreement was recorded again,
when Qatar and Bahrain undertookto freezethe situation and to avoid anyaction that xnight
escalate the dispute, in a Gulf CooperationCouncil ("GCC")resolution of 8Mach 1982164.
The 1983 agreed principles of the framework for a settlement reiterated the sfutus quo
cornmitment, and the two States undertook to refrain from acting in any way that would
strengthenor weakenthe legalpositionof eitherof theml65.
6.89 However, on 24 October 1985,the BahrainDefenceForce entered into a contractwith
the Dutchfirm BallastNedam Groep N.V.in orderto reclaimtwo "islands"and provide them
with a seawail and facilities'66.On 16 February 1986,the Amir of Qatar complained tothe
King of Saudi Arabia about encroachmentsperformed by Bahrain on the stlztusquo: "In
Jaradah, Bahrainput a lighthouse, anda pontoon near it to be used ..for the purpose of coast
guarding"l67.On29April 1986,a furtherQatari communicationcomplainedthat:
"... Bahrain has built a lighthouse on Jarada, and alongside it has placed a pontoon
usedby thepeoplewho arethere for thepurpose of guardingthe coast.
With regard to Dibal Shoal,Bahrain has contractedwith a foreign Companyto turn it
into anartificialislandto makeit into a Bahraincoastguardstation"l6S.
Those acts provoked a military intervention by Qatar on 26 April 1986,in order to
restorcthe sialus quo.
I6lBM,para.619.
'62BM, para624.
'63BM, para.623.
164QCM, AnnexIV.25, Vol. 4:p.203.
IhSee, QMJA, Annex II.10,Vol.III,p51.
16QCM, AnnexIV.27,Vol.4,p. 213.
lhQMJA,Annex 11.11,Vol.111, 53,atp.58.
I6"c~, AnnexIV.28, Vol. 4, p.217.6.90 In the courseof the negotiationsfor a pacific settlementwhich ensued, in a letter datcd
14May to theAmir of Qatar, the Kingof SaudiArabia madethe followingproposals:
"..One: Removal of the floatingmooring in Jaradah shoalto its previous locationand
removal of al1installationsset up in the areaafterthe landingof Qataritroopsin Dibal
shoai.
Three: The company executing the filling-in works in Dibal shoal, or any other
selected Company,shalI completelyremove al1works executed thereso that the shoai
returns to its previous state. This shouldbe carried out under the supervision of the
commissioncomprising Saudi Arabia and the Secretariatof the CooperationCauncil
and with the participation of observers from council countries, i.e.the Sultanatc of
Oman,UnitedArabEmiratesandthe Stateof Kuwaitl69".
6.91 The conditionsof the removaloperationswere carefully consideredand agreedwithin
the framework of GCC procedures. The programme of work provided inter alia that the
contracting company had to take over the sites in Dibal and Qit'at Jaradah and ensure
demolitionandremoval of the worksconstructedl70.Thetaskassignedto the company was to
restore the statu qsuo. Thus, the effect of the Qatari action wasto forestall the attempts by
Bahrain artificiallyto transform those two low-tide elevations into islands. Accordingly, the
charge in the Bahrain Memorial that, in 1986,Qatari bulldozers removedthat part of Qit'at
Jaradah which was exposed at high tide is a complete fabricationand gross distortion of the
truth.In point of fact, no Qatari bulldozerscame on to the shoal. As Qatar has demonstrated,
the reversion tothe statu qsuo waseffectedas aninternationaloperationunderthe supervision
ofthe Gulf CooperationCouncil.
6.92 As Qatar has amplydemonstratedin its Memoriall71,Qit'atJaradahwas inthe past and
stillis a low-tide elevation. It may be added that descriptionsof Qit'atJaradah whether in a
geographical contextor as a navigationalaid have never depictedthis feature as above water
at high tide. For exarnple, the list of features in the Persian Gulf prepared for Ara~ncoby
Hudson and Youngon 5 January 1950(when, accordingto Bahrain,the accretionprocess had
already sufficiently begun) is revealing. Hudson and Young described Qit'at Jaradah as a
"reef, .,a sandbaron the southeasteniside of the reef rises seven feet above the water at low
tide"'72.Indeed, even Bahrain admitsthat "for someperiodsprior to 1947"Qit'atJaradahwas
a low-tideelevation'73.
169QMJA,Annex 11.12, ol. III,p. atpp.77-78.
I7QCM,AnnexIV.30,Vol. 4,p.243.
171QM, paras10.44,etseq.andQM,Appendix5, Vol.15,p. 125,atpp.135,eiseq.
172QCM,AnnexIV.6,Vol.4,p.47.
173BM, para. 622. B. The reasons for the choiceofthenotional linejoining pointsMQ and RK as defined
by Qatar
6.93 Having demonstrated theartificialcharacter ofthe Bahraini line dividing the northern
sector fiom the southan sector, Qatarwill now explainthe reasons for preferringthe dividing
line which itproposesl74.In order to divide the relevant maritime area,one has to start with
the geographicalsituation. As recalled by the Charnberof the Court formed to deal with the
caseconcerningDelimitafion of theMaritimeBoundaryinthe GuIfof Maine Area,"the facts
of geographyare not the product ofhurnanactionarnenableto positive or negativejudgment,
but the result of natural phenomena, so that they cm only be taken as they are"I75.And it
cannot be contested that, in the field of maritime delimitation, the primacy of geographicd
considerations relates to coastal geography, i.e.the physical characteristics of the coastal
front, involvedin the delimitationprocess.Due to the situationprevailing in the present case,
where the relevant maritime areais at leastnthe southcomprisedbetween theoppositecoasts
of the two States, it is important to rely strictly on the actual coastof each of them; and to
identify the point on each coast beyond which the maritime area no longer lies between
oppositecoasts,
1.The actual coastof the two States
6.94 As the previous cases decidedby the Courtclearly demonstrate, coastal geographyis
regarded as "the leading factor in maritime delimitation"'76,and coastal fronts and the
physical configuration of coasts are the dominant parameters in this respectl77.In particular
the word "coast" has been definedby a Working Group of the IiiternationalHydrographic
Organisation dealing withthe technicalaspectsofthe lawof the sea as follows:
"The sea-shore.The narrow strip of land in immediatecontact with any body of water
including the area between highandlowwaterlines"178.
6.95 Froma technical pointof view,the coastis thusthe shoreor the littoral, and it includes
that part of the shore (foreshore,or middle shore,or strand)which is submerged aihigh-tidc
and exposed at low-tide. Consequently, thereis properly speaking no shore on a maritime
feature whichqualifiesas a low-tideelevation,and a low-tideelevationthereforeis not part of
174See,also,QM,para.12.63.
175I.C.J.Reports 1984,p.271, para.37.
P. Weil,"GeographicaClonsiderationisnMaritiDelimitation"i,nCharneyandAlexander(eds.),ocil.,
Vol.1,QCM,AnnexIV.57,Vol.4, p.449.
177See, P. Weil, TheLawofMaritimeDelimitati-Reyections?Cambridge,1989,QCM,AnnexIV.58,Vol.4,
p.453, atp.457.
178QCM,AnnexIV.46,Vol.4, p.375.the coast.Thatis why,in Qatar's submission, only themainlandcoastsare of anyrelevance,in
otherwords: Qatar's western coast and Bahrain's eastern coast.
2. The northernmost points of the two opposite coasts
6.96 The map of the general area of the dispute179clearly shows that only one pari of the
relevant maritime area lies between the opposite coasts of the Parties. That part of the
maritime area, which has been called the southern sector, may be identified by drawing a
notional line between two pointswhich are located on the respectivecoasts of the two States,
and which constitute the ultimate reach of their respective mainland territories into the
Arabian Gulf, i.ethe northernrnostpointon each coast.
a)The northernmostpoint of thecoast of Qatar
6.97 The northernmost pointof the coast of Qatar has been designatedin Qatar'sMemorial
as point RK, and is definedby its geographical coordinates: 51° 1102"E,and 26"09'25"N180 I.t
constitutes the final point on the Qatari coastthat faces both the opposite Bahraini coast and
the maritime area to be delimited. From that point there is a change in the direction of the
coast ofthe Qatar peninsula,sincebeyondpoint RK that coastbegins to run ina southeasterly
direction and thereforeno longer has any relationship either with the Bahraini coast or with
the maritimearearelevantto the delimitation in this case.
6.98 Point RK, chosen by Qatar as one of the two relevant points for the drawing of the
dividing line betweenthe southernand the northern sectors,is situated on the high-waterline
of the coast of Qatar's mainland, of whichit really represents the northern extrernity. That
choice has been made having regard tothe necessity of relying strictly on the actual coastl81
and, as already explainedin Qatar'sMemorial, out of a desire to be consistent with Qatar's
position in the present case, that no account should be taken of islets, rocks and low-tide
elevationsl82.Thus, in Qatar's view, and contrary to what has seerningly been Bahrain's
choice, the low-waterline on Ras Rakan islet cannot be regardedas representing the northern
tip of the Qatar peninsulaand as arelevant point for thatputposel83.
179See,QM, Map2, Vol. 17.
'80 QM, para. 9.4fn. IO.By a clerical error, point RK was Iater mistakenly indicated asbeing located at
longitude51°12'02"E (QM,para. 12.63).
181See,paras.6.93et seq.above.
See,QM,paras. 12.32and 12.63.
'83See, para.6.77, above. b) Thenorthernmost point of the coast of Bahrain
6.99 The northernmostpoint of the coast of Bahrain, designatedby Qatar as point MQ, is
likewise defined by its geographical coordinates5Oo37'54 "nd,26°17'15"N'84I.t is located
at the northern edge of Muharraq island, where there is a change in the direction of the
Bahrainicoast.Fromthat point,the coastbegins to run in a south-southwesterlydirection,and
thus no longer has any geographical relationship with the Qatari coast fordelimitation
purposes. It must also be recalIedthat the coast of Muharraqis to be regarded as part of the
main Bahrainicoast insofaras Muharraqitself maybe consideredas part of the main Bahrain
island and as forming with it one and the same territory, being connected to it by a
causewaylfis,It must also be added that, likepoint RK on Qatar's coast,point MQ is situated
on the high-waterline'86.
6.100 The locationof point MQ, situatedalmost 8 minutes of latitude further north than the
rnostnortherly point of Qatar'smainland,involves a slightly further extension northwardsof
the Bahraini coast. Whilethis could legitimately appearas insignificant in absoluteternis, in
the present case it is not totally unimportant, due to the relatively short distance between
points MQ andRK and the relativenarrownessof themaritimearea in that region.As a result
of this dissimilarity between the two coasts, the projection of the Bahraini coastal Eront
towards the rniddle of the Gulf tends, in fact, to encroach upon themaritime area situatedto
seaward of the Qatari facing coast in that region, a situation which is reminiscent, to some
extent, of what the Anglo-French Courtof Arbitration was faced with in 1977 as regards the
Atlanticregionof the arbitrationareal87.
3.The resulting linedividingtherelevantmaritimearea intû two sectors
6.101 The notionalline (MQ-RK)joining the northernpoints of the two facingcoastsrnaybe
regarded as the closing line of the area where Qatar and Bahrain have opposite coasts, as
shown on Map 17 facing page 266 of Qatar's Mem~rial'~~.Up to that line, the relevant
maritime area in the southern sectoris confined to arelatively narrow channel between the
two opposite coasts. Beyond that line, in the northern sector, the relevantmaritime area
184See,QM,para. 12.63.
lg5See,ibid.
I86See,QM, para.12.7fn.6.
lg7QCM, AnnexIV.34,Vol.4,p. 273, atp. 294.
lS8See,also QM,Vol. 17.extends seawards from the coasts of the two countries into the open spaces of the Arabian
Gulfand lies off,ratherthanbetween,thosecoastsl89.
C. The southernand the northern limitsofthe relevant maritimearea and existing
delimitationswith third States
1.The agreed northernlimitresultingfromdelimitation agreements withlran
6.102 Both Parties agree on the relevance of the agreements signedby Qatar and Balirain
with Iranin 1969and 1971,respectively, concerning thedelimitationof the continental shelf,
and they both consider it necessary to take those delimitation agreements into
considerationlgo.Although, as will be seen in the last Chapter of the present Counter-
Memorial,there may be some differencein the consequencesdrawn by the Parties fromthese
existing agreementslgl, this does not undermine their shared perception that the lines
delimitedin these agreementsdefinethe northern limit of the maritimeareato be delimitedin
the present case.
2. Inconsistencyin the Bahrainitreatmentof delimitation withSaudiArabiain the south
6.103 The Bahrain Memorial however shows some inconsistency in its treatment of
delimitationwith third States.Whifeit recognisesthat, in the northern sector,the delimitation
between Qatar and Bahrain isto be effected "in the context of the existing agreements"
concluded with Iran by each of the Parties'9*,and that the existence of those agreements
constitutes a "special circumstance"~93i ,t considers that the 1958 delimitation agreement
beiween Saudi Arabia and Bahrain is "irrelevant" for the drawing of the Qatar-Bahrain
maritime boundary in the southem sectorl94.This is al1the more surprising given that the
same reason is put fonvard in order to support the relevance ofthe former delimitations and
the irrelevanceof the latter. On both occasions,Bahrain relies on one and the sarneargument
to reach entirely different conclusions.Thus, as regards the QatarIIran and IradBahrain
agreements, aiter having said that "[nleither of those agreements purports to determine a
single Bahrain4radQatar tripoint", the Bahrain Memorialgoes on to state: "Nevertheless,the
provisions of these agreements are obviously relevantto the delimitation of the maritime
boundary in the northern sector"l95.On the contrary, concerning theBahraidSaudi Arabia
189See, QM, paras. 12.10,et seq.
IY0QM,paras.9.7and 12.37,efseq.; BM,paras.637,651 and655.
I9See, paras.8.1etseq., below.
19BM,para.637.
19BM,para.651.
19BM, para.628.
19BM,para.651.agreement, itis saidthat point 1definedby that agreementis irrelevant,because"itwas never
intendcd to be a BahraidQatarISaudi Arabia tripoint"l96.Therefore, according to Bahrain,
"the southemost point of the maritimeboundary cannot be defined preciselyat this time",
andthe last segmentofthe suggestedboundaryline, in the case ofBahrain'salternative claim,
as inthat of its principal claim,is depictedby "anarrowitidicatinga directionbcaring"'97.
6.104 If, as Bahrain acknowledges,the delimitationsarrived atwith Iran are to be taken into
consideration in the north, there appears to be no reason for regarding the delimitation
between Bahrain and Saudi Arabia in the south as irrelevant. As a rnatter of fact, in any
maritime delimitation between two States,existingdelimitation agreements concludedby one
or both of them with third States have generally been considered as relevant factors or
circumstances. This is so especially when the pre-existing dividing lines abut on the area
wherethe delimitationis to be effectedbetweenthe two States.
6.105 As was stated in Qatar's Mernorial,at the entrance of the Dawhat Salwah,taking
account of the delimitationagreement between Saudi Arabiaand Bahrain, the Saudi Arabian
maritime zonedoesnot extendto thenorth of point 1defined in that agreementandreferred to
as pointSI by Qata~-19 8n the otherhand,on the assumption that Qatarhassovereigntyover
the island of Janânand the Hawar islands, the maritime zone pertaining to Bahrain cannot
extendto the east of point S1.As a result,that point S1may beregarded as representing both
the southern limit of the relevant maritimeareaand the startingor the terminal point of the
maritimeboundw to be drawnby the Courtinthe present case199.
196BM,para.628.
19'lbid.
'9RQM, para.11.32.
'99QM,para.1 1.47. CHAPTER VI1
THESINGLEMARITIMEBOUNDARY IN THE SOUTHERNSECTOR
Section1.Geographicalcharacteristics
7.1 As noted above, although both Parties divide the maritime delimitation area into a
northern anda southem sector, they disagreeon the dividing line betweenthese two sectors'.
For purposes of the present geographicaldiscussion, Qatar will rely on its own definition of
the soutliern sector, having dealteviously in this Counter-Memorial with the unfounded
natureof Bahrain'sdividingline2.
7.2 In the southern sector,the westerncoast of Qatar andthe eastern coast of Bahrain are
opposite and run roughly parallel to each other, with no notable irregularities of form. The
western coastof Qataris low and consistsof sand, grave1and sabkhas. Alongthis coast there
are numerous small bays, lagoons,and inlets. The eastern coast of Bahrain is also Iow and
level,the northem region of Bahrainandthe linked islandsof Muharraqand Sitrahforming a
low plateauseldom more than three metres above sea level. There are few bays or inlets, and
the adjoiningsea is shallow.
7.3 Between the western coast of Qatar and the eastern coast of Bahrain in the soutliern
sector lie the Hawar islandsanJanan island.Inaddition, there arecountlessislets, rocks and
reefs lying between the two coasts, including Qit'atJaradah. Dibal, on the other hand, lies
almosttotally inthe northem sector.
7.4 Bahrain itself refers in its Memorialto "the presence,betweenthe eastern coast of the
main Bahrain island and the westerncoast of Qatar, of a large number of insular and other
legally relevant maritime features, from Janan in the south to Fasht ad Dibal in the north"
which, it sweepingly asserts, "are all, without exception, subject to the sovereignty of
~ahrain"~.It thus describes itselfas "anensemble consistingof the main Bahrain island, the
See,paras.6.7etseq.above.
See,ibid.
'BM,para.567.islands immediately adjacent to it (Sitrah and Al Muharraq), the Hawar Islands and al! the
other insular and other legally relevant maritime features, together with the continental
Zubarahregion"*.
7.5 While of course not disputing the existence of very numerous insular and other
maritime features in the southem sector, Qatardoes dispute both their alleged legal relevance
and Bahrain'ssovereignty over them, questions which havebeen dealt with elsewherein this
Counter-MernorialS.
7.6 As faras the geagraphicalfacts are concerned,andperhaps consciousof the weakness
of its legal position in regard to its alleged appropriationof al1maritime features - whether
islandsor not - by the performanceof so-calledactsof sovereignty6,Bahrainhas sought as far
as possible to describe maritime featuresin the southern sector as islands, Thus, it relies on
Belgrave'sletter of 14August 1937, where it is stated, somewhat self-contradictorily,that
arnong the "islands" belongingto Bahrain are several reefs, including Dibal, and "Qattah
Jarada(an island) ..."'. imilarIy,whileassertingthat Fasht al-Am is a low-tideelevationand
isnot in itselfan islands,it neverthelessarguesthat itis anintegralpart of Sitrahislandg.
7.7 In fact, Fashtal-Azm is a further illustration of the complexityof the southernsector:
it is a large shoal, some25 kilometreslong, whichdries in patches. Lyingperpendicularto the
generaldirectionof Bahrain'seasterncoast, itrepresentsa considerableobstacleto navigation
in the area,betweenthe open sea to the north and the coast of Bahrain to the south of Sitrah
island.
7.8 Bahrainasserts in its Mernorialthat this shoalis separatedEromSitrahisland onlyby a
"narrow artificial channel, 3metres deep, which was dredged in 1982"'O.It may be iloted
however that Bahrain has not providedanyevidence to showthat prior to the dredgingtliere
BM,para.606.
'See,paras.6.12,etseq.above.
See, BM, paras.589,t seq.
BM,para.581.
BM,para.626.
BM,para.620.
'OIbid.existed no natural channel betweenSitrah and Fasht al-Azm.In fact, as will be seen below,
prior to that date there did exist a natural fishermen'schannel which was filled in during
reclamation work by Bahrainl'. Consequently,Bahrain cannot argue that in its natural state
Fasht al-Am formedan integralpart of Sitrahisiand.
7.9 Paragraph606 of Bahrain'sMernorialis quite frankly puzzling. Correctlyanticipating
Qatar'sposition, which is based on the law and State practice in the region, Bahrain asserts
that:
"To describe the present delimitation as a delimitation between the coasts of two
mainlands between which insular and other legally relevant maritime features are
scattered would be seriously to distort the political and geographical relationship
betweenthetwo ~ountries"'~.
For Bahrain,"thereality is quite different"I3,yet it failsto explainwhy -leaving aside
the question of the legal relevanceof the features - such a delimitation would be a distortion
of the "geographical relationship". Indeed,as has been seen, there are so many scattered
islands, islets and other maritime featuresin the southern sector that any delimitation other
than a mainland-to-mainland delimitation wouldbe extremely difficult if not practically
impossible. Furthemore, it is in many instances extremely difficult to determine at any
particular point of time whether the hydrographical characteristicsof the featuresmay or may
not legally qualiSlthem as low-tideelevations.
7.10 Finally, Qatar must point out a glaring omission in Bahrain's presentation of the
southern sector.In attemptingta push its baselines as close as possible to the coast of Qatar,
Bahrain lists several low-tide elevations which,it claims, liewithin 12milesof the Bahraini
mainland or of another featue claimed by Bahrain, the low-water lines of which "are
therefore availableto Bahrain for use as ba~elines"'~.What Bahrain omits to Sayis that in
eachcasethe featurealso lieswithin 12milesof Qatar'smainlandand that in severalcases -a
strikingexarnpleis that of Qit'atash Shajarah - the featureis closerto Qatarthanto Bahrain.
" See,paras.8.48,etseq.,below.
''BM,para.606.
l3Ibid.
j4BM,para.626. Section 2. Historicalcircumstances
7.11 Qatar has exarninedat length in its Memorial whatappears as an important historical
aspect of the questionof maritime delimitation in the present case,namely thedecisionmade
by the British Governmentin 1947conceniingthe delimitationand the resultingdividing line
of the sca-bed betweenthe two co~ntries'~I .n contrastto this, the Bahrain Memorialcontains
hardly a single word about it. ln Qatar'ssubmission, that pre-existing sea-bed dividing Iine
constitutesa highly relevant factor for the delimitationinthe southernsector.
A.The silence of Bahrain concerning the 1947line
7.12 Bahrain refers directly only once in its Memorial to the British decision of
23December 1947 when it refers to that decision as being merely a statement of Britain's
"views as to the maritime delimitation between the Parties"I6.Later on, there are only two
other indirect references tothe British decisionI7.Bahrain is verydiscreeton the subject and
unwiiiing to mention the decision as such. Indeed, it carriesits discretion so far as to refrain
from even producing the text of theBritishPoliticalAgent'sletterdated23December 1947by
whichthe Rulerof Bahrainwasinformedof the decisionarrivedat by the BritishGovernment
concerningthe divisionofthe sea-bedbetweenQatarand~ahrain'~.
7.13 The silence of Bahrain in its Memorial concerning the 1947 line is still more
surprisinggiventhat in 1961the RuIerof Bahraintried to obtainfrom the BritishGovernent
a revision of the 1947 decision and suggested a new dividing line in a Memorandum dated
8August 1961 19,a suggestionthat the BritishGovernmentwasnotpreparedto accept20.
IrQM,Chaps.X andXI.
l6BM, para.40.
l7BM,paras.569 and 574.
''QM,AnnexIV.116,Vol. 10,p.75.
l9See, QM,paras.10.34,etseq., andQM,AnnexIV.254,Vol. 12p. 17.
See,QM,AnnexIV.245,Vol. 11,p.411. B. The relevanceof the pre-existingsea-beddividing line
7.14 As already indicatedin Qatar's Mernorial, thereis evidenceof a trend in Statepractice
whereby pre-existing continentalshelfboundariesare used to delimita subsequent all-purpose
single maritime bounddl. It wiIl now be demonstrated that such a trend supports Qatar's
subrnission according towhich part of the 1947 sea-bed dividing line could be transformed
into ail all-purpose boundary, and more particularly into a territorial sea boundary in the
southern sector ofthe delimitationarea.
1.The taking intoaccountof a pre-existing delimitationin thedrawingof anall-purpose
maritimeboundary
7.15 Among several examplesof delimitationagreements tobe found in Statepractice,the
Exchange of Notes between Turkey and the USSR on the Delimitation of the Exclusive
Economic Zone in the Black Sea, dated 23December 1986 and 6 February 1987, was a
typical example of the trend referred to above. Through that exchange of notes, the two
countries agreed that the boundaryline of their continentalshelf, determinedby an agreement
signed on 23 June 1978, should be valid for the delimitation of their respective exclusive
economiczones, thus becominga singledelimitationline22.Another illustrationmay be found
in a series of agreements concluded betweenFinland and the USSR:after having signed two
agreementsconcerningthe boundariesof their continentalshelves in the Gulf of Finland and
the North Eastern part of the Baltic Sea, dated respectively20May 1965and 5 May 196723,
the two parties used those continental shelf boundaries as delimitation lines for their
respective iishing zones by an agreement signed on 25February 198024; and finally, on 5
February 1985,they agreed to convertthose previouslyestablished boundarylines into an all-
purpose singlemaritimeb~undary*~.
2'QM, para. 11.17see, also, BOxman, "Political, Strategicand HistoricalConsiderations",in Ch&rney
Alexander(eds.),op. crr.,Vol.1,p.4, (inpartipp.34-36).
22Charney& Alexander(eds.),op.cit.Vol.II,pp. 1701-1707.
23Ibid.,pp 1959-1969and 1971-1978.
24Ibid.,pp 1979-1987.
2silbid.,pp. 1989-1996.7.16 The sarnetrend exists in the practice of the Gulf Statesand is regardedby both Qatar
and Bahrain as applicable tothe present case with respect to the prcvious continentalsheIf
delimitation agreementsthey haveeachconcluded withIran26.
7.17 The trend towards single maritime boundaries coinciding with prior continentas lhelf
delimitationlines indicateshow, in general, Statesdecide,eitherfor practical orlegalreasons,
to transfonn what may initially have been a sea-bed dividing line into a multipurpose
maritime boundary. The same reasons that induce States to transform a continental shelf
boundary intoa single maritimeboundaryapply alsowhen it is a questionof convertiiig a pre-
existing continental shelfdelimitationintoa territorialsea boundary.Thisis clearlyillustrated
by the United Kingdom-Franceagreementof 2November 1988modieing the statusof their
boundary in the Straitsof Dover: followingthe extension of the United Kingdom's territorial
sea to 12nauticalmiles on 1October 1987,they decidedto transformthe reIevantpart of the
continental shelf boundary, determined by an agreement signed on 24June 1982, into a
territorial seab0unda1-y~~.
7.18 It must however be recognised that a pre-existing delimitationline is not always
automatically converted into a boundary for other jurisdictional purposes, but is sometimes
simply given special consideration. This was done for example in the Convention between
France and Italy signed on 28November 1986 for the Delimitation of the Maritime
Boundariesinthe Areaofthe Strait of Bonifacio2'.
7.19 That is an example which Qatar submits shouldbe followed in the present casewith
respect to the role to be played by the sea-bed dividing line describedin the 1947 British
decision2?In the southem sector of the delimitationarea,where the single maritime boundary
will be a territorial sea boundary,Qatar submits that the delimitation hasto be made with due
regard to the 1947line.
26QM, paras.12.8-12.912.37,etseq., and 12.41-12.42;Bparas.637,651 and655.
27Charney& Alexander(eds.),op. cil., Vopp. 1752-1753.
Ibid.,pp1571-1580.
29QM, para.1 1.19.Cnribbean Sea - Continental shelf boundary(1942)
Continental shelf boundary extensions
Equidistant line
TRINIDAD
ATLANTIC OCEAN
ReproducedfrCharne1.anAlexander L.,InlïMaritime BoundaVol1, 19pg.669. 2. Theprecedent of the maritime delimitation between Venezuela andTrinidad and
Tobago, an archipelagic State
7.20 If, contrary to Qatar's subrnis~ion~~t,he Court were to take account of Bahrain's
archipelagic claim, this would not preclude the Court from drawing the single maritime
boundary with due regard being paid to the 1947 sea-bed dividing line. This conclusion is
supportedby the agreements signedon 4 August 1989 and 18 April 1990betweeiiVenezuela
and Trinidadand Tobagothat have determined a singlemaritimeboundary which,in Sic Gulf
of Paria, is partly based, with some technical changes, on thedelimitation line drawn for the
sea-bed by the well-known Treaty of 26 February 1942 between the United Kingdom and
Venezuela relating to the submarineareas of the Gulf of Paria3'. Itis noteworthy that by an
Act of 11 November 1986,Trinidad and Tobago declared itself an archipelagic State, with
baselines drawn around the componentislands, including the Dragon'sMouth isiands at the
northern entrance of the Gulf of paria3',and that that archipelagicclaim did not preventthe
pre-existing sea-beddelimitationfrombeingtaken intoconsideration.
Section 3. Themaritime boundary in the southernsector
7.21 Qatar and Bahrain agree on the law applicable to the maritime delimitation in the
southern sector. Both of them consider that the rule enunciated in Article 15 of the 1982
Conventionon the Law of the Seais at present "part of customary internationallaw"" or "is
generally a~ce~tcd"~!Accordingly, they both admit that the equidistance me.tliodor the
median line is the "first stepIt3'or the "starting point"36for the drawing of tlie boundary
dividingtheirrespective territorialseasin that sector.
30See,paras. 6.57etseq., above.
" QM, Annex IV.72, Vol. 9,p.349. See,also,Charney& Alexander(eds.),op.cii.Vol.1,pp.639-689.
32Charney & Alexander(eds.),op. citp.668. See,MapNo. 4 facingthis page.
31QM,para. 11.36.
34BM, para. 609.
'5QM, para.11.37.
36BM,paras. 614and 691 (concerning"the alternative maritimeboundary"claimedby Bahrain).7.22 However, the Parties disagreeon the practical method of applying the rule. Balirain
asserts that it is first necessary to define the baselines of the two countries'coasts for
determiningthe pointsthat generatethe medianline3',and that accounthas to be taken forthat
purpose of al1 the maritime feahires which in Bahrain's view are al1 under Bahrain's
s~vereignt~~~ T.hen, accordingto Bahrain, the determinationof the median line would be a
purelytechnical matte?', and "noexceptional circurnstances"wouldjustifi anyadjustment or
modificationof the medianline4'.In orderto sustainsuchan assertion,Bahraingoesso far as
to statethat there is no disparityor disproportionbetweenthe coastal lengths and that "[tlhe
two States'coastlines havesimilar char acte ris tic^"^'.
7.23 Bahrain's presentationcompletely distorts the geographical factswhich characterise
the southern sector,as well as the legalsignificanceof factors likebaselinesin relationto an
inter-State maritime delirnitationprocess .n reality, having regardto the naturalgeographical
situation in the southern sector, only a mainland-to-mainland delimitation is practically
possible.
A. Mainland-to-mainlanddelirnitation:general considerations
1.The rationaleof usingthemainlandcoastsin a territorialsea delimitationbetween
States having opposite coasts
7.24 There are probably twosituationswhere the delirnitationline between two opposite
caasts shouldprimafacie be a medianline calculatedfrommainlandto mainland: either when
the maritime area to be delimiteddoes not includeanyisland or any other similarfeature,or
on the contrary whenthat area is dottedwith a great nurnberof small islands, islets, rocks,
reefs and shoals.The first situationspeaks foritself and is self-explanatory.The secondone
rendersit impossibleto relyon countlessmaritimefeaturesforthe drawingof a boundaryline
37BM,para. 615.
38BM,para. 619.
39BM, para. 615.
4DBM, paras.631and 694.
41BM,para.631.which wouldsatisfyboth the requirement ofsimplicityand the aim of arriving at an equitable
result. That requirement and that aim form the basis of the security and stability of any
maritime boundary. This is particularly important in a relatively restricted maritimearea
where there is no room to compensate, and even more so when the status of nurnerous
maritime features is uncertain both in terms of legal characterisation as islands or low-tide
elevationsand in terms of their appurtenance.In such a situation,the boundary linecan only
be drawn frornthe mainlandcoastsof thetwo Statesinvolved.
7.25 The basic reason fora mainiand-to-mainlanddelimitationlies in the security interests
of the two States concerned. That reason is reinforced in the case of a territorial sea
delimitation,forthe territorialsea ismainlya maritime securitybelt for coastal States. Infact,
"security interests are most prominent in deaiing with maritime boundaries close to the
~oast"~~S .uch a preoccupation generallyinduces Statepracticeand thejurisprudence to avoid
the drawingof the boundary linetoo closeto the coast ofone of the parties. Thus, while using
a negative form, the Court stated in the case concerningthe ContinentalShelf(LibyanArab
JamahiriydMalta):
"the delimitation which will result fiom the application of the present Judgrnentis...
not so near to the coast of either Party as to make questions of security a particular
considerationin the present case''43.
It may be recalled that the Court had here noted that even though "security
considerations are of course not unrelated to the concept of the continental shelf', the case
submitted to it did not raise "the question whetherthe law at present attributesto the coastal
Stateparticular competencesinthe military fieIdover its continentalshelf '44Men, as here in
the southern sector, the delimitationinvolves the territorial sea, those considerationsbecome
al1the more important.
42Oxman,op. cit.QCM,AnnexIV.51,Vol.4,p.397, atp.400.
431.C.J.Reports1985,p.42, para.51.
" Ibid. 2.The consequences
7.26 It follows that, in the delimitation process, no account is to be taken of tiny islets,
rocks and shoals scatteredin a relatively restrictedarea of shallow sea, becausethey may be
regarded as insignificant or unusual, if not distorting, features. These characteristics
undeniablyapplyto nurneroussmallfeatureslyinginthe southem sectorin this case. Theyare
insignificantfeaturesas comparedto islandsof a larger sizepresenting somesocial,economic
or political importance.They areunusual featuresinsofa. as they are not cfoselylinked to the
coast of either Party, and particularly to the main Bahrain island. They may be distorting
featuresbecauseof their potentialeffect onthe course ofthe eventualmaritimeboundary.But
their unusual or even extraordinary characteris also obviousin the light of the short distance
betweenthe two opposite mainlandcoasts.
7.27 When claiming that full effect shouldbe given to al1the maritime features lyingin the
delimitationarea45B, ahrain's attitudeis basedupon an approachwhich is inconsistentwith the
law of maritime delimitationas revealed inState practice and the jurisprudence. In no case
has a small isiet been given the same effect as the mainland coast in drawing a median line
vis-à-vis an opposite mainland coast.And the taking into account of an island andthe effect
given to it closelydepend on its location,size and importance. Evenan island State such as
Malta did not receive full effect vis-à-vis Libya in the Court'sJudgment of 3 June 1985.
Therefore, when theso-calledrelevant maritimefeaturesqualifj ody as low-tideele~ations~~,
they areto be ignored in the delimitationprocess. This is al1the more evident in the present
case where the maritime boundv proposed by Bahrain in the southern sector, either in its
principalclsim or in its alternativedaim, is anillustrationof what surelycannotbe done, as is
quite clear from maps 8 and 14appendedto Bahrain'sMemorial.In either circumstance,the
Bahraini line is located in the immediatevicinityof Qatar's coast.It is even drawi so closeto
thai coast that it would certainly create - if it were to be adopted - serious problems
concerningthe security interests of the State of Qatar.As was said by the arbitral tribunalin
45BM, paras.619,et seqand 689.
46See,paras.6.79etseq.,above.the GuinedGuinea-Bissauarbitration,it is essential "à assurer à chaque Elat le contrôle des
territoires maritimes situésen face de ses côtes et dans leur voisinage"and in order to avoid
that "pour uneraison ou pour une autre, une des Parties voie s'exerceren face de ses côtes et
dans leur voisinage immédiatdes droits qui pourraient... compromettre sa
Therefore, Qatar must firmly stress its grave concern about the implications of Bahrain's
claimedline inthe southernsectorforitsnational security.
B.Application of the mainland-to-mainland method in the present case
7.28 The agreement betweenthe Parties as to the drawing of a provisional median line4B is
more apparent than real, for they hold differing views with respect to the means of
establishingthat line. WhileBahrainclaimsthat such a lineis to be drawn fromthe respective
territorial sea baselinesd9,Qatar submits that onlythe two main coasts are to be taken into
consideration for this purpose and that the provisional median line is to be calculaled from
those coasts. In addition, Qatarsubmitsthat the provisional median line thus caiculatedthen
has to be adjustedin orderto take intoaccountand to reflectthe relevantcircumstancesof the
particularcase, including geographicalandhistoricalcircumstances.
1. The provisional medianline
7.29 Bahrain relies on the rule expressed in Article 15 of the 1982 Law of the Sea
Convention, which it regards as being expressive of customary internationallawS0.It states
that there exists an identity between that mle, on the one hand, and the equidistance-special
circumstancesrule set out in Article6 of the 1958ContinentalShelfConvention. Italso finds
a similar identity between that rule and the customary rule applicable to maritime
delimitations not governed by thase conventions5'.Qatar does not wish to challenge tl~at
statement,but it finds it necessaryto makethe following observation.
48QCM, Annex IV.33,Vol.4, p. 265,at p. 267and271.
See,para. 6.3, above.
49See,para. 7.22,above.
50BM, para. 609.
5'BM,paras. 610-611.7.30 Under the Geneva Convention onthe Continental Shelf, "the obligation to apply the
equidistanceprinciple is always one qualified by the condition 'unlessanother boundary line
isjustified by special circumstances"',as was statedbythe Anglo-FrenchCourtof Arbitration
in 1977 when it referred to the existence of a combined equidistance/speciaicircumstances
mleS2.And the Court has recently underlined that the concept of special circumstances"was
and remains linked to the equidistance method", and that it includes "those circumstaiices
which might modify the result produced by anunqualified application of the equidistance
principle"". However, the rule in Article 15of the 1982Convention makes it clear that the
special circumstancesclause may be linked not only to the equidistance principleitself, but
also to the manner of calculatingthe median line. As a matter of fact, the second sentenceof
that Article specifies that special circurnstancesmay justify the drawing of a line 3n.a way
which is at variance" with the first sentenceas a whole, whichprovides for the equidistance
line to be drawn "fromthe nearest point[s] on the baselines". Moreover, on severaloccasions,
in applying the equidistance method the jurisprudence in the field of maritime delimitation
has not usedthe baselinesused for measuringthe breadthoftheterritorial ~ea~~.
7.31 Inthe present case,Qatarsubmitsthatthe provisionalmedian line must be drawn from
relevant points on the two mainland coasts and not, as Bahrain asserts, from the baselines
claimedby 3ahrainss.
a) The provisionalmedian Iinecannot be drawa.fromthebaselines claimed byBahr~in
7.32 The basic reason which should lead the Court to draw a provisional median line
independently of the baselinesfor measuringthe breadth of theterritorial sea is derived fiom
the fact that basepoints used for delimiting a maritime boundary betweentwo States with
opposite coasts rnay well differ from the baselines for measuring the breadth of their
respectiveterritorialseas.In addition,for the delimitationof a maritime boundaryeffectedby
52Para.70 of the decisionof 30 June19(QCM, AnnexIV.34, Vol.4, p.273, atpp.281-282),quotedby the
Couit in itsJudgmentf 14June1993,1.C.JReports 1993,pp.60-61, paraSI.
57I.C.J. Repor1993, p.62, par55.
54See,paras.7.33et seq.,below.
55See, QM, para11.37.an international tribunal, thetask of the tribunal is not to split the difference between thetwo
extremeclairns,but to arriveat anequitablesolution.
(i)Basepointsusedfor delimitation purposes
7.33 According to a general trend in the jurispmdence concerning maritime delimitation
since the NorthSea Co~ltinenfaS l helfcases, basepoints used for delimiting maritime areas
betweentwo Statesdo not necessarilycoincidewith the baselinesand basepoints fromwhich
the breadth of the territorial seas measured, and theyhave in fact been regularly ireated as
distinctfromthe latters6.
7.34 In the TunisidLib Conatinental Sheifcase, the Court did not take account of the
straight baselines claimedby Tunisia and said that it was "not making any ruling as to the
validity or opposability to Libya of the straight ba~elines"~~F .urthermore, conceming the
element of a reasonable degree of proportionality between theextent of the continental shelf
appertaining tothe coastal States involved and the length of the relevant part of their coasts,
the Court stated that "the elementof proportionalityis related to lengths of the coasts of the
Statesconcerned,not to straightbaselines drawn roundthosecoa~ts"~~.
7.35 In the Gulfof Mainecase,the Chamberof the Court, when objectingto the possibility
of makinguse ofthe method definedin Article6of the ContinentalShelfConvention,pointed
out that:
"a line drawnin accordance withthe indications given by that provision ...might well
epitomize the inherent defects of a certain manner of interpreting and applying the
method here considered ...;inasmuchas the likely end-resultwould be the adoption of
a lineal1of whose basepointswould be locatedon a handful of isolated rocks, some
very distant fiom the coast, or on a few low-tideelevations:these are the very typeof
minor geographicalfeatures which, as the Court and the Charnberhave emphasized,
shouldbe discounted ..."59.
56See,P.Weil,''Aproposde la doublefonctiondes ligneset pointsdebasedans le droi1amer",.&sqvsin
HonourofJztdgeTaslirnOla~~aleElias,Dordrecht/Bosto~ondon,1992,Vol. 1,QCM, Annex IV.56,Vol.4,
p.429, inparticulpp.434-442.
57I.C.J.Reports 1982,76,para.104.
Ibid.
59I.C.J.Reports1984p.332,para.210. As has been madeclearby oneof the commentatorsof that decision,the position thus
adoptedbythe Chamberwas perfectlyexplicit:
"des accidents géographiquesqui ont pu [ou pourraient) être prislégitimement, au
regarddu droitinternational,comme points debase pourla merterritoriale,peuventne
pas être appropriécsommepointsde basepour unedélimitation"".
7.36 In the LibydMaIta ContinentalSheZfcase,whenthe Court decidedto proceedwitlithe
drawing of a median line as a provisional step,it consideredthat it could not construct that
line fiom straight baseIineson the Maltese coast, in particularthoçe connectingthe island of
Malta to the uninhabited islet of Filfla, for the reason that "in any event the baselines as
detennined by coastal States arenotper se identicalwiththe points chosen on a coastto makc
it possible to calculate the area of continental shelf appertainingto that StateM6'T .herefore,
although Filfla islet was used as a basepoint for the drawing of the Maltese baselines, the
Court found it equitable "not to take account of Filfla in the calculation of the pravisional
median linebetweenMaltaandLibya"62.
7.37 The position thus taken by the Court, according to which basepoints used for
delimitationpurposesare selectedindependentlyof the baselinesof the territorial sea,has also
been followedin the international arbitraljurisprudence.Thusthe 1977decisionof the Anglo-
French Courtof Arbitration madea clear-cutdistinction between the two categorieswhen it
stated:
"The Court does not possess any cornpetenceto determine base-pointsas such, but
only for the purpose, and in the course, of discharging its task ..of delimiting the
boundaryof the continentalshelfas betweenthe Partieswithinthe arbitrationarea"".
Weil, "Aproposde la double fonction delsigneset pointsde basedansle droitde la mer",op. cit., QCM,
AnnexIV.56,Vol.4, p.429, atp.441.
I.C.J.Reports1985,p.48, para.64.
62Ibid.
63Para. 19ofthedecision,QCM,AnnexIV.34,Vol.4, p.273, atp.279. In the GuineaIGuinea-BissauArbitration, no reference was made to the baselines of
the territorialsea. The awardof 14February 1985statedthat:
"Le problème des lignes debase nécessaires pourétablirla limite de 200 milles
reconnue par les Parties comme régissant leurzone économiqueexclusiven'intéresse
pas directementle Tribunal,car ces lignesrelèventde la décisionunilatérale des Etats
intéressé^"^^.
Nevertheless, the arbitral tribunal observedthat any line of equidistance would have
given, "[alu voisinage des côtes ... une importance exagérée à certains accidents non
significatifsdu littoral..[et]produir[ait]un effetd'arnp~tation"~~.
7.38 In reviewingthatjurisprudence,one authorhas recently considered that,fromthe mere
fact that a straight line joining two or more points is - or might be - used legitimately as a
baselinefor rneasuringthe breadthofthe territorialseaandothermaritimejurisdictional zones
of a State, it cannot be inferred that that line must necessarily be taken by a judge or an
arbitrator asa basis for drawing a maritimeboundary betweenthat State and a neighbouring
State whose coasts areadjacentor opposite. Similarly,fiom the factthat an island, an islet, a
rock, or a low-tideelevationmay be regardedas generatingits own territorial sea or as legally
entitled to be incorporatedin the baselines of the territorial seaof a State, it does not follow
that, for that reason only,such an island, islet, rock, or low-tide elevation is to be considered
as an appropriate basepointfor the construction ofa delimitation line between the interested
Stateand anotherStatewhosecoastsareoppositeor adjacent6'.
64QCM,AnnexIV.33,Vol.4,p. 265,atp. 268.
65Ibid .tp. 279.
66Weil, "A propos de la double fonctiondes lignes et points de base dans le droit de la mcit.QCM,
AnnexIV.56, Vol.4, p. 429, atp. 442:
"IIne suffit donc pas qu'unelignedroitereliant deux ou plusieurs poi(ou puisse servir) légitimemendte
lignede baseA un calcul de la largeurde la mer territorialeet des autres juridictions maritimes d'un Etat pour
que cette ligne doivenkcessairementêtreretenuepar le juge ou i'arbitrecomme base pour le tracé d'une
délimitation maritime entre cet Etutn Etatvoisindont les côtes sontadjacentesaux siennesou leur font face.
II ne suffit pas non plus qu'un point saillant dela côte, une île, un îlot, un rocher, un haut-fond découvrant,
puisse être considéré comme engendru annte mer territoriale propreou comme susceptible juridiquementde
faire partie des lignes de basede la merterritorialed'unEratdonné pour que, peeuleraison,ce saillant,
île, îlot, rocher,haut-fond découvrantsoitgarder comme un point de base approprie pour la construction (ii) The Court's task is not "to splitthe difference"betweenthe two extremcclaims
7.39 In its most recent judgment on the subject of maritime delimitation, the Courthas
recognized that "[tlhe 'area of overlapping claims'...between the two lines representing the
Parties' claims,is of obvious relevance to any case involving opposed boundary ~lairns"~~.
However,the Courtimmediatelyadded:
"But maritime boundary claims have the particular feature that there is an area of
overlappingentitlements,in the sense of overlap betweenthe areas which each State
wouldhave beenableto claimhad itnot beenforthe presence ofthe otherStateH6'.
7.40 The southernsector ofthe delimitationarea in the present casehas someparallelswith
whatwas called "theareaof overlappingpotential entitlement"in the above-mentionedcase69.
In the southern sector,the Qatari western coast,no less thanBahrain'seasterncoast, generates
a potentialtitle to a 12-mileterritorialsea.To recognize thatthe oppositeBahrainicoast could
there be representedby a series of points locatedon various features separate from Bahrain's
mainland coast and close to Qatar's coastwould run wholly counter to the rights of Qatar in
that sector. As amatter of fact, it would amountto negating Qatar'sentitlementto a territorial
sea.
7.41 In the southern sector, wherethe sea areais restrictedandthe water shallowand where
shoals and reefs arenumerous,to take these featuresinto accountand particularlyto use low-
tide elevationsscattered throughout thezone as basepointsfor delimitationwouldgivethem a
disproportionateanddistortingeffectinan areawherethe respective territorialwatersoverlap.
It would deprive the concept of territorial sea belt of any effect and would achieve an
unreasonableresult. It would moreoverbe contrary tathe generalpractice in the Gulf which
d'unelignededélimitationntreI'EtatintéresetunautreEtatdontles cbtesfontfaceauxsiennesoului sont
adjacente"s.
67CaseconcerningMaritime DdirnidatiointheArea behoeenGreenlandand Jan Moyen,I.C.J.Reports 1993,
p.64, para.59.
Ibid.
69Ibid ..47,para.19andp.64, para.59.has been to give preferenceto drawingmedian lines asbetween mainland coasts, onlytaking
into account,where necessary, largeislandsformingan integralpart of the coastal front7u.
b)The drawing of theprovisional medianline fromrelevant points on thetwo mainlanù
coasts
7.42 If it is accepted,as Qatar submits,that the provisionalmedian line is to be drawnfiom
appropriate points located on the mainland coasts of the two States, the only question to be
solved is a technical one. It consists in selecting the relevant points on the eastem const of
Bahrain and on the western coast of Qatar (including the Hawar islands - on the assumption
thatthe Court will recognizeQatar'ssovereigntyover those islands).
7.43 As indicated on Map. No. 5 facing this page, the provisional median line in the
southern sector, up to the closing line of the two sectors, is constructed by reference to
12basepoints located on the high water Iineof the Bahraini coast and 14basepoints located
on the high water iine of the Qatari coast.The resultingmedian line comprises a series of 18
turning points in that sector. However, the line is a provisional one, insofar as the
geographicalandhistorical circumstancesof the area makecertainadjustmentsto it necessary.
2.The adjustment of the median line
7.44 In support of the view that its ownhighly questionable provisionalmedian line7'does
not require anyadjustmentor shifting,Bahrain considersthat "no exceptionalcircumstanccs -
historical or of any other nature - justi@ modifjing the median line in the southern sect~r"'~.
This statement,made inthe contextof Bahrain'sprincipal claim,is repeated in the frarnework
of its alternative claim: "in the circumstances of the present case no adjustment ...is called
for"'" However, Bahrainhas producedno explanationorjustification forthis position beyond
70See, QM,para.11.37.
71Qatarconsidersthat the medianlinesuggestedby Bahrainis unacceptableforeasonsgiveninparas7.31,
et seq.above.
72BM,para. 631.
73BM, para.694.statingthat "thereis no 'disparityor disproportionbetweenthe coastal lengths"'andthat "[tlhe
two States'coastlineshave similar char acte ris tic^"^^.
7.45 Contrav to Bahrain'sassertion, thereis in the present case some disparitybelweenthe
lengths of the two opposite mainlandcoasts. As shown in the Qatar Memorial,the 1engt.hof
the relevant coastof Bahrain, measured inits general directionfrom Rasal Barrin the south
to the northern tip of Muharraq, is around 29.9nautical miles or 55.5kilomettes, while the
relevant coast of Qatar,measured in its general direction fkomRas Uwaynat inthe south to
Ras Rakan in the north, is about 47.6nautical miles or 88.2kilometres. Thus, the ratio
betweenthe two coastalfronts, measuredfollowingtheir generaldirection, is 1 :1.59in favour
of qat^'^.
7.46 According to thejurisprudenceof the Court,sucha disproportionmightbe reflectedin
the location of the boundary line, as was done in the Gulf of Maine case, where the ratio
between the coastal fronts was 1:1.38.The Chamber of the Court consideredthat such a
disparityjustified in itself the shifting of the median lineT6A. nd it made a general reinark in
thatrespect:
"a maritime delimitation can certainly not be established by a direct division of the
areain dispute proportionalto the respective lengths of the coasts belonging to the
parties in the relevantarea, but it is equally certainthat a substantial disproportion to
the lengths of those coasts that resulted from a delimitation effected on a different
basis would constitute a circurnstance calling for an appropriate correction. In the
Chamber'sopinion, the need to takethis aspect into accountconstitutes a valid ground
forcorrection, more pressing even than others ..."".
The Court has recently reaffinned that "the disparity betweenthe lengths of coasts ...
constitutesa specialcirc~mstance"~~.
" BM,para.631.
75QM, para.12.32.See, aiso, par8.101,below.Due toatechnicalerror,slightlydifferentlengthswegiven
inpara. 9.5of Qatar'sMemorial.
761C.J. Reports1984,p.336,para.222.
''Ibid p.323, para.185.
Case concerningMaritimeDelimitationin theArea betweenGreenland andJan Mayen .C.J.Reports 1993,
pp.68-69, para.68.7.47 If a significant difference between the lengths of the relevant coasts is a special
circumstance which may justiq the adjustment of the provisional median line, the
consequencein the presentcasewould be a shifting of that line closerto the Coastof Bahrain,
i.e.its transposition iawestward direction.And one canparaphrase herewhat the Courtsaid
in the LibydMaltaContinentalShelfcase: "Onceit is contemplatedthat the boundaryrequires
to be shifted [westward]ofthe medianline between [QatarandBahrain], it seems appropriate
first to establishwhat mightbethe extremelimit of sucha ~hift"'~.
7.48 The limit of the transposition of the provisional median line in the present case is,
subject to what is said in paragraph 7.49 below, provided by the pre-existing dividingline
decided in 7947 by the British Government. That line is in Qatar'sview another speciaf or
relevant circumstance". It constitutesa historical circumstancewhich is to be combinedwith
the geographical circumstanceofthe disparity betweencoastallengthss1.
C. The taking intoaccountof the 1947 line
7.49 As underlinedin Qatar'sMemorial, "the1947line is now certainly an important factor
to be taken into account for the purpose of drawing the single maritime boundaryUs2T . he
Court wilI rememberthat, in the view of Qatar,onlythe part of that line extending northward
from point L up to BLV is to be regarded as relevants3.Qatardoes not need to repeat in the
present Counter-Mernorial what has been explained and demonstrated in its Memorial
concerning the necessity of disregardingthe portion of the 1947 line enclaving the Hawar
islands, on the assurnptionthatthose islands are recognized by the Court as appertaining to
Qatarg4N. or isit necessaryto revertto what has been saidabout the southemmostsegment of
the 1947line,whichmust equallybe disregardedss.
79I.CJ. Report1985,p. 51,para.72.
See,QM, paras.11.35et,sq.
''SeeQM, para.10.21.
" QM, para.1I.3S.ee,also,QM, para11.19.
83QM, para.11.34.
" QM, paras.11.21etseq.
QM,paras. 11.27,etseq.7.50 The adjustmentof the provisionalmedian line between Qatar and Babrainby shifting
ituntil it maets the 1947line, in order to drawthe single maritime boundary alongthat line,
north of point L, will generate a reasonable and equitable boundary line. The fundamental
nom of any maritime delimitation is recognized today as being the norm of an equitable
result, whatevermay be thepractical methodor methodsused to reach such a result, whether
under customary international law orunder conventionalrules. This wasthe idea that appears
to have becn atthe basis of the 1947British decision. Thus,referring to the linelaid down at
that time, in a letter dated 14May 1951 to the Ruler of Bahrain, the Political Agent staled
that:
"[tlhis line was determined in accordance with equitable principlesaftercareful
examination of Your Highness'claims and of those of the Ruler of Qatar and is the
only line recognised by HisMajesty'sGovernment"".
As demonstratedin Qatar'sMernorial,the method applied at thattime was pursuant to
the general aim of arriving at an equitable solution. Inorder to achieve that aim, the British
authorities gave exclusive consideration to the twomainland coasts of Qatar and Bahrain,
selected certainfixedtuming points,and drew asimplifiedline8'.
7.51 It is noteworthy that the 1947 line was drawn in such a way as to satisfy the
requirement of simplicity,thus avoiding the constructionof "a line which, onaccount of the
refinements in the technical methodused to determine its course, follows a complicatedor
even a zigzag path, madeup of a succession of segments on different bearingsWRIg n. these
circumstances, the adjustment of the provisional median line and the alignment of the
maritimeboundaryon the 1947linenorthof point L would have the effectof simplifyingthe
course of the boundary line, since betweenpoint L and NSLBthe 1947 lineis a straight line.
And in a maritime area like the southern sector, characterizedby short distances and the
presence of numerous shoalsand rocks, it is important to have a boundary line that is as
simple as possible. The boundaryline now claimed by Bahrainasa median line, using either
archipelagicor normalbaselines,doesnot fulfilthe requirementof simplicity.
86QM,AnnexIV.193,Vol. 10,p.473, atp.476.
" See, QM,paras.10.16,etseq.
88Judgmentof 12October1984,GuvofMaine case,1C.J.Reports 1984,p.330, para.202. PROVISIONAL EQUl DISTANCE
LlNE IN THE SOUTHERN SECTOR
Mercator Projection
Scale1:1,054,OW
srcurale alstilllcle
O 5 ?O 15 20 25
Nautiral Miles
-- 27WO'N
Speciallyprylfur prernilatiun Io lhe InlerndlionalCourtof]ustice.
MAP No 67.52 As shown on Map No.6 facing the previous page,the taking into account of thc 1947
line would involve a shiftwestward of the provisional median line to the north of poinX,
which is the point of intersection of the 1947 line and the provisional median line. South of
point X,and as far aspoint L of the 1947line, the provisional median line would have tbe
shifted eastward. The adjusted line wouldthus be the 1947 line north of point L, while south
of that point it would be the segment L-SI". The resulting single maritime boundary
requested by Qatar in the southern sector was depictedon Map 16 of the Mernorial and is
reproduced onMap No. 7facingthis page.
See, QM,para11.33andQM,Map 16,Vol. 17. CHAPTER VI11
THE SINGLEMARITIMEBOUNDARYINTHENORTHERNSECTOR
Section 1.General remarks
8.1 Accordingto Bahrain, the maritimedelimitationin the northern sectoris to be made in
the area lying "to the north of the line from Fasht ad Dibal to Ra's Rakan"' up to the
continental shelf boundary determined by the agreement concludedon 20 September 1969
between Qatarand 1ran2.Bahrainclaimsa dividingline linking points O, Q, R, S, T,U and Z
(see,MapNo. 8, facing this pagel3.However,the superficialdiscussion that Bahraindevotes
toan attempttojustify this line in its Memoria1suffersfrom two main defects:first, therc are
surprisingomissions;and second,the result is a clearlyinequitabledelimitation.
A. Theomissionsin theBahrainMemorial
8.2 As already noted5,one of the most significant omissions is that Bahrain'sMemorial
containsonly a few discreet allusions tothe British decisionof 23 December 1947" However,
it is difficult to ignore this decision as a relevant circumstance, since it is an important
element in the delimitationnot only inthe southern sector, butalso in the northern sector.As
Qatar has already shown7,a largepart of the maritime area lying to the north of a line drawn
between the northernmost points of Al Muharraq and the Qatar peninsula has already been
delimitcd,bythat sameBritish decision,betweenpointsN, NSLB and BLV'. This is therefore
a very strange omissionon the part of Bahrain, whichcan hardlybe explained otherthan by a
desireto disregardor forget circumstanceswhichit finds embarrassing.
I
BM,paras.559and633-634.
BM,paras.65 1and 655.
See,also,BM,paras.652,et seq.,andBM,Map 10,Vol7.
BM,paras.633, e6seq.
See,paras.7.12-7.13and7.49et seqabove.
BM, paras.40,569 and574.
7QM, paras12.1-12.2, 12.5a12.62.
8
QM,Map20, Vol. 17.8.3 The Court will also note Bahrain's secondomission concerning the Memorandum sent
0x1 16August 1961by the Ruler of Bahrain to the British Government, seeking a revision of
the 1947British decisionY.
8.4 Finally, although Bahrain'sMernorialdeals, albeit incompletely, with oil development
in the southem sector where Qatar and Bahrain are opposite each other", it rernains silcnt as
to the history of the petroleum permits granted by Qatarand Bahrain in the ilorthern sector.
This omission is no doubt largely due to the fact that Bahrain'soil activities in the nortliem
sector have always been located to the west of the dividing line N, NSLB, BLV, 2 (SB)
claimed by Qatar", with the exception of the Athari 1weil, which lies just to the east of the
BLV-2 (2B) segment of that linel*.It may also be explained by the fact that the western limit
of the concession granted by Qatar to Wintershalf in 1973 also undermines Bahrain'sclaim
based on alleged "historierights to the pearling banks"in the northern sector13,and highlights
the unreasonable nature of that claim.
B. The clearlyinequitablenature of the maritimeboundaryclaimedby Batirainin the
northernsector
8.5 The dividing line claimedby Bahrainin the northern sectorlinks points O, Q, R, S, T,
II and zi4 . up No. 8, facing page 24315showsthat Bahrain'sclaim is a maximalist clairn and
that its proposed delimitation would produce a wholly unreasonable and inequitable resuli.
The method adopted by Bahrain, and the results thereof, take no account of the actual
geographical situation nor, in particular, of the geographical relationship existing between the
9See, QM, paras. 10.34etseq.; QM,AnnexIV.254,Vol. 12,p. 17.
'O BM, paras.570, etseq.,576 and 587; ses, also, BMAnnexes 90, 104 and 105, Vol. 3, p. 529, p. 615 and
p. 621;231, Vol. 4, p. 986;295, 298, 302 and3031304,Vo5,pp. 1204, 1211, 1222and 1225;and 3081309and
339, Vol.6, p. 1286andp. 1467.
" QM,paras. 12.62, etseq.;and QM,Map21,Vol. 17.See, also,MupNo.8, facingpage243.
l2 The geographical coordinatesof the Athari 1 well, which was drilled by Kuwait Foreign Petroleum
ExplorationCo. in 1986,are22"55'00" 5N1,05'00"E.
l3BM,para. 653.
15BM,paras.652, etseq.
Ses, alsoBM, Maps 10and, inparticular, 11,Vol. 7.Parties to the present case. Bahrain's line makes no allowance for the normal seaward
projection of Qatar'scoasts, and encroaches upon the natural prolongation of Qatar in the
geographical sense of the term. In this context, it is necessary to bear in mind the principle
mentionedby the Arbitral Tribunalin its awardof 14February 1985inthe maritimeboundary
delimitationcasebetweenGuineaand Guinea-Bissau:
"Pour faire reposer une délimitationsur une base équitableet objective, il faut autant
que possible chercher à assurera chaque Etat le contrôle des territoires maritimes
situés en face deses côteset dans leur~oisinage"'~.
8.6 Moreover, the first section of the maritime boundary claimed by Bahrain, linking
points O, Qand RI7,is untenable.The constructionofthe so-called"equidistanceline", which
rests upon a closing line betweenDibalandRas Rakan,is certainlynot in conformity with the
law of maritime delimitation.As has alreadybeen shown above, Dibal is not an appropriate
basepoint for sucha con~tniction'~A. s the Parties agree19,Dibalis a Iow-tideefevationwhich,
given its geographical location, cannotbe considered as an integral part of the coastline or
Bahrain2'.
8.7 The second section of the maritime boundary clairnedby Bahrain in the northern
sector, linking points R, S, T, U and Z2',is equalIy ~ntenabIe~~B . ahrain characterisesthis
section as an adjustment made to the equidistance line on the basis of "Bahrain'shistoric
rights to the pearling banks" lying to the north and north-east of Qatar. In fact, it is a
significant modification made by Bahrain to the already unacceptableequidistance line2"to
its own great advantage. This modification which, accordingto Bahrain, results from an
allegedly relevant circurnstance relating tosedentary fisheriesthat have not existed for more
than half a century, a circumstance which has been consistantly disregarded by the
16QCM,AnnexIV.33,Vol.4, p.265, atp. 267;sealso,ibidp. 69.See paras.8.34erseq.,below.
17BM,Map10,Vol. 7.
IgParas.6.76and 6.82,et seq.,above,paras.8.42etseg.below.
'"M, paras.10.54, 10.58 a10.73;QM,Appendix5, Vol. 15,p. 125;BM,para.626.
20Sec ,ara.8.43,below.
21
BM,paras.653, etseq.
22See ,aras.8.63etseq.below.
23See ,ara.8.6,above.jurisprudence, is highly abusive. In its judgment of 12 October 1984, the Chamber strongly
criticisedCanadafor advancinga si~nilarlyextreme modificationin the Gulfof Maine case:
O..instead of taking into account other specialcircumstanceswhich mightbe present
in thearea to be delirnitedand which might -with perhaps greaterjustification -have
suggested the desirability, or even the necessity, of correcting the original line by
displacingit towards the Nova Scotiacoast, [Canada]only took into accounta special
circumstancewhich might operate in its favour and enable it to displace the line still
moretowardsthe opposite coastofMassa~husetts"~~.
Exactlythe sameis tme of Bahraininthe present case.
8.8 Qatarwill demonstrate that the maritimeboundaryclaimedby Bahrainin the northern
sectorcannotbejustified. Not only does it take no account ofthe geographicd realities of the
area, as will be seen in Section 3, but it has no legal basis whatsoever,as wilI be seen in
Section4. In Section5it willbe shownthatthe delimitationproposedby Qataristhe only one
to ensure an equitableresult, in conformitywith the applicable customary internationallaw.
However, it willfirstbe shown,in Section2, that there are somepoints of agreementbetween
the Partieson this aspect ofthe case before theCourt.
Section 2. Points of agreementbetweenthe Parties in the northern sector
A. The Parties' agreementasto thenature of the dividinglineto be determinedbythe
Court
8.9 It is hardly necessaryto mention the first point upon whichQatar and Bahrain are in
agreementwithrespect to maritime delimitation, whichisthat the Courtis requestedtodraw a
singlemaritime boundary2'.
8.10 This agreementas to the necessity for a single dividing line naturallydoes not mean
that there is agreement between the Parties as to its course nor as to the definition of the
24I.C.J. Reports 1984,p. 322,para.182.
25QM, Chap.XII,inparticulararas.12.6etseq.BM, paras.636,649, 652and 695.delimitationarea in the northern sector. For Qatar,as alreadyn~ted~~ the relevantdelimitation
area in this sectoris situated to the north of a closing linelinking points RK and MQ, i.e.the
northernmost points of the Qatar peninsula and of the island of Al ~uharraq~', and the
boundary has already been determinedup to point BLVZ8c ;onsequently, to the nol-thof that
point, the delimitation is entirely new. For Bahrain, as has also already been noted2',the
deIiinitationarea in the northern sectoris quite different. FromBahrain'spoint of view, "[tlhe
northern sector...liesto the north of the linefrom Fashtad Dibalto Ra's~akan"~'I.t should be
added that the Parties'disagreement as to the determination of the delimitation area in the
northern sectorrelates not only to its southernlimit, corresponding to the closing lineof the
areawhere Qatarand Bahrain face each otherdirectly,but also to the easternand western,and
even the northern limits, despite the Parties' agreement in principle that the existing
delimitationsbetween themselves andIran3'have to be taken into consideration,insofaras the
deternination of the points of intersectionof the eastern and western limits with the northern
limit isconcerned3*T . he Court will in additionnote that a large part of Bahrain'sline in the
northern sector is, in its most extreme segments33,to the east of the delimitation area as
definedby Qatar.
B. TheParties'agreement to take intoconsiderationthe delimitation agreements with
Iran
8.11 The second point upon which Qatar and Bahrain are in agreement is that the
continental shelf delimitation agreements concluded by them with Iran on 20 September
1969'4 and 17June 1 97135 ,espectively, must be taken into consideration. For Qatar, these
agreementsmust be taken into accountin order to achievean equitable result in the maritime
26Sec,para.8.2,above.
27QM,para.12.67;see, QM,Maps17and22,Vol. 17.
28
QM, Chap.XI andparas.12.4-12.5see,QM, Map22, Vol. 17.
29Sec,para.8.6,above.
30BM, paras.559 and633;BM,Map10,Vol.7.
3'Sec,paras.8.11et seg.below.
32QM, paras.12.66,elseg.andQM,Map22, Vol. 17;for thewesternlirnit,see, para.8.13,below.
34See,Map No.8, facingpage243.
QM, AnnexIV.260,Vol. 12,p.81 andQM,Map11,Vol.17.
35QM, AnnexIV.264,Vol. 12,p. 111and QM,Map11,Vol. 17.delimitationto be effectedin the northern secte?' . imilarIy,for Bahrain,this delimitationkas
to be made "in the context of the existing agreements" concluded between the Parties and
Iran37.Thus, for both Parties, the dividing line established by treaty with Iran in the central
part of the Arabian-Persian Gulf cannot be disregarded in the present case, even though that
dividing Iine concerns only the continental shelPs. Xt has an inevitable impact on the
determination in the present case of the Qatar/Iran/Bahrain tripoint. Both Qatar'' and
~ahrain~'claim, as the end-point of the maritime boundary in the northern sector, a point on
the boundary establishedby the agreements that they concludedin 1969and 1971with Iran.
But, naturally, this point is not the same: for Qatar, it is point 2 (2B) of the 1971 agreement
between Bahrain and 1ran4';for Bahrain, it is point 2 (2Q) of the 1969agreement between
Qatar and
S.12 The Parties are also in agreement in acknowledging that these two continental slielf
delimitation agreements raise a difficulty of interpretation for the determination of the
segment of the dividing Iine where the Qatarflran and the BahrainIIranboundaries meet. In
Qatar's view,these agreements of 1969 and 1971 defined neither point 1 of the QatadIran
boundary nor point 1 of the BahraidIran bo~ndar~~~A . s for Bahrain, it considers that the
"pointofterminationof themaritime boundaryin each of theseagreements is determined only
by referenceto an a~imuth"~~.
36QM, paras. 12.20,etseq. and12.38-12.39.
37
38BM,paras.637 and65 1.
As the Court will recall, by its Proclamationof 30 October 1973, Iran expressly acknowledgedthat the
conve~itionallimits of the continentalshelfwereto be appliedto itsexclusivefishingzone(QM, para. 12.8,note
1 la;see,also,the correspondingProclalnationby Qatarof 2 June 197ibid.)Moreovcr,underArticle 19of its
"Act onthe MarineAreas ..inthe PersianGulfandthe Oman Sea" of 1993,Iransimilarlyappliedthose limits to
itsexclusive economic zone(QM,para. 12,s).
39QM, paras. 12.41-12.42and12.62.
40BM,paras.65 t and655.
41
QM, Map24, Vol. 17.
42Correspondingto point Z on Bahrain'sline(BM,para. 655 andBM, Map 10,Vol.7).See, Map No. 8,facing
page243.
43QM,para. 12.39.
44BM, para.651.8.13 However, as already notedq5,arnong the previous conventional delimitations tobe
taken into consideration, the Bahrain Memorial, unlike the Qatar Memoria14',does not
mention the agreementon delimitation 01 the continental shelf concluded on 22 February
1958 between SaildiArabia and ~ahrain~'.The dividing line laid down by that agreement is
not, of course,as a whole a relevant circurnstancefor the maritime delimitationin the present
case. Nevertheless, a part of it cannot be disregarded, i.e.the northernrnost segment lying
betweenpoint WB to the north of point S.14 of that boundary andpoint 4 of the BahraidIran
agreement of 1971, which coincides with the terminal point of the Saudi ArabidBahrain
agreementof 1958,thus fonning the SaudiArabiaBahraidIran tripoint4'.This segment from
WB to 4 (4B) is in fact the northern part of the western boundary ofthe area to be delimited
between Qatarand Bahrainin the northern ~ector~~ T.herefore,from Qatar'spoint of view, it is
necessary to take into consideration as a relevant circumstance the 1958 delimitation
agreement between SaudiArabia and Bahrain for the above-mentionedpart of the dividing
line, and inparticular,as will beseen below,in orderto make the proportionalitycalculations
which are necessary to test the equity of the maritime boundary claimedby Qatar iiithe
northernsector50.
C. The partial agreement of thePartiesas to the law applicableto the present dispute
8.14 The third point upon which Qatar and Bahrain are in agreement, at least partially,
concernsthe law applicableto the maritime delimitationin the northern sector. For Qatar,it is
quite clear that "the principles of customary international law relating to maritime
delimitation, as identified inter alia by the jurisprudence, will... be applicable to the
delimitation of the continental shelf and fishing zones in the northern sector"". More
precisely, Qatar hasshownin its Memorialthat three guidelines werenaturallyto be followed
" See,paras.6.103-6.104,above.
46QM, para. 12.40.
47QM, Annex IV.262,Vol. 12,p. 95 and QM,Map11,Vol, 17.
48QM, Map 22, Vol. 17.See, MapNo.8, facingpage243.
49QM, para. 12.68.
50See,paras. 8.03,el segbelow;see, also, QM,paras. 12.70-12.71.
51QM, para. 12.13seeQatar'sApplicationinstitutingproceedings,dated 5 July1991,para.25.in delimiting the maritime areas situated to the north of point BLV. First, the delimitation
must be made in accordance with the "fundamentalncirm"that equitable principles must be
applied in drawing the dividing line and that al1relevant circurnstancesmust be taken into
account in order to reach an equitable results2.Second, the principles applicable to the
delimitation of maritime areas iying outside the Parties' territorial waters are the sstme,
whethertheyare appliedto the continentalshelf,fishingzones or exclusiveeconomiczones53.
Finally, for the delimitation in the northern sector,particular attention should be paid to a
principle that is constantly referred to in the jurisprudence, namely "equity does not
necessarilyimplyeq~ality"~~.
8.15 Bahrain'sposition concerning the law applicable to the maritime delimitation in the
northern sector is identicalto Qatar'son certainessentialpoints.First, Bahrainis in agreement
with Qatar when Qatar "requeststhat the Courtdecide 'inaccordance with internationallaw"'
and Statesthat "[tlhe Courtis thus askedby the two parties to decide in Iaw,and not ex aequo
et bonoNs5B . ahrain is also in agreement withQatar when it argues, like Qatars6,that neither
the 1958 Geneva Conventionsnor the 1982Convention on the Law of the Sea are in force
betweenthe Parties, and whenit infersfromthis factthat:
"The maritime delimitation in the present case therefore falls to be effected in
accordance with the principles and mles of customary international law. The
appIicable legal principles and rules are contemporary legal principles and rules, as
they are expressedin State practice, in the decisions of the Court and of international
arbitraltribunals,and in provisions of international conventions which reflecttlîe state
of customary internationalia~"~~.
Finally, like Qatd8, and referring in particular to the Court'sJudgment of 14June
1993in the Denmark/hrorway cases9,Bahrainarguesthat "thefundamentalprinciple is that of
52QM, paras.12.14,et seq.
53QM,para.12.16.
54QM,paras. 12.17,elseq.
55
BM,para.561.
$6QM,para. 12.13.
57BM,para. 563.
QM,paras. 12.13,et seg.
59I.C.3:Reports1993,p.59,para. 48;p. 62, para.54; 69,Para.70.the search for an equitable re~ult"~'and that it is necessary to take into consideration "the
'relevant circumstances'which customary internationallaw requires to be taken into account
in al1maritime del imitation^"^'.
8-16 The concurrence of the Parties'positions as to the.law applicable to the maritime
delimitation in the northern sector is, however,not as complete as, primafacie, one might
think. Indeed, in its discussion of this point, the Bahrain Mernorial displays certain
deficiencies to which Qatar mustdraw attention. Thus, whereas Qatar lays considerable
emphasis upon thethree universally acknowledgedcomponents of the "fundamentalnom"
concerning maritime delimitation - equitable principles, relevant circumstances and an
equitablere~ult~ ~and attributesequd valueto them, Bahrainmore or less disregards thefirst
component, ive.equitableprinciples, to which it refers only once, and then indirectly". This
reserve, which is quite unusual in cases of this kind, betraysa certain uneaseor hesitancy as
regards the basis of Bahrain's position. In fact, Bahrain is effectively ignoring certain
significantconsiderationsof equity. For exarnple,Bahrain ignores even the most undisputed
equitable principle with respect to which, as Professor Weil has stressed, "the courts are
unanirno~s"~~n , arnely the principle that "equity does not necessarily imply equality"".
Bahrain also ignores the equally well-established principle of non-encroachment which
requiresthat thechosen method of delimitationmust not leave one State withmaritime areas
extending across the coasts of the other State~oncerned~~B.ahrain cannot, on the one hand,
claimto be applyingcustomaryinternationallaw to the maritimedelimitationoperationin the
northern sectorand, on the otherhand andat the sametime, rejectat ieast implicitly,or in any
event disregard, certainof the most importantrules of that law by its extreme claim in that
same sector. Bahrain is in reality attempting, in its proposa1for delimitation in the northern
" BM,para. 650.
61Ibid.
62See,para8.14 above.
63BM, para.638.
64Weil,TheLm ofMaritirnDelimitatio-Reflectionop.cit., QCM,AnnexIV.58Vol.4,p.453,atp.458.
65See,paras.8.22,seq.,belowsee,also,QM, paras.12.17,etseq.
66See,paras8.34 ,tseq.,elow.~ector'~,based upon its distorted statementof the applicable law, to "completely refashion
nature" or to "totallyrefashion geography",contraryto the principles constantlyreiterated in
thejurisprudence ofthe Courtb8.
Section 3.The maritime boundaryclnimedby Bahrain in the northernsectorfails to
take 'fgeographicalrealities" into account
8.17 In its Mernorial Bahrain gives only a superficial and incomplete picture of the
geographical realities that are to be taken into consideration in making the maritime
delimitationin the northern sector.This is so when it statesthat "thenorthem sectordoes not,
unlikethe southern sector, contain nurnerous insular and other legally relevant maritime
featuresW6I ?t would have been moreaccurateto state that there are no islands, rocks or low-
tide elevations to interrupt the uniformity of the sea-bed in the maritime areas Iying off the
north of Qatarandto the northof point BLV.Bahrainhas omittedto mentionthat:
"..the sea-bed in that area is characterised by its geoiogical and geomorphological
unity. There is no fundamental discontinuity forming a sort of natüral boundary to
interruptthe extensionof Qatar's continentalshelftowardsthe north and north-west,or
that of Bahrain's continentalshelftowards the east and north-eastH70.
8.18 Moreover, Bahrain's Mernorial gives a one-sided and distorted picture of the
geographicalfacts7',which are decisive for the maritime delimitation in the northern sector,
and althoughtheir legairelevancehas consistentlybeenreiteratedin thejurisprudence.As the
Chamber recalled in its Sudgrnent of 12October 1984 in the case conceming maritime
delimitation in the area of the Gulf of Maine, the identification of the relevant equitable
principles andthe choiceof the practicalmethods of delimitation"arebasically founded upon
Sce,para. 8.33,below.
68See, forexample,NorthSeaContinenlalSheKI.C.J.Reporfs1969,pp.49-50,para.91.
69BM,para. 638.
QM,para. 12.24See, also, QM,para.12.25.
71See,paras.6.75,etseq.aboue.geography", andthese methods must be "use[d] against a background of geographyU7'T . his
should naturallybe understoodto mean, as the Court notedin its Judgment of 3 June 1985in
the case concerning the Continental Shelf (Libyu Anrab JamahiriydMu/ta), "the general
geographical contextin which the delimitationwill have to be effe~ted"~~B .ut above all, to
use Professor Weil's words, one shouldbe aware that "it is, of course, the physical aspect
which has held the attention of the courts, to the point of becoming the most important
relevant circ~rnstance"~~ A.nd the same author expressesthe same fundamentalidea when he
asserts that "There is ..one circumstancewhich the courts areagreed isrelevant:the coastai
geogr:raphy"75.
A. Bahrainhaswrongly characterisedthedelimitation to be performedin thenorthern
sector
8.19 In Bahrain's view, the delimitation to be performed in the northern sector "is a
delimitation between adjacent, rather than opposite, c~asts"~~T . his characterisation of the
geographical situation in this area is a mere assertion made without anyjustification. In any
event, it is not a proper analysisof the situation77I.ndeed, thenorthem sector is quite clearly a
prolongation ofthe southern sector, which is an obviouscase of delimitation between States
with npposite coasts. Nevertheless, "thedelimitation in this area cannot be categorized as a
delimitation relating to a situation of 'adjacent States"', yet the delimitation area in the
72
1.C.J.Reports 1984, p. 329, para. 199;see, p. 278, para. 59. Arbitraltribunals have made similar findings.
Thus, in the case concerning delimitation of the continentalshelfbetween France andthe United Kingdom
(award of 30 June 19771,the Court of Arbitrationdedared that "it is the geographical circumstances which
primarily determine the appropriatenof the equidistanceor anythermethodof delimitation"(QCM,Annex
IV.34, Vol.4, p. 273, at p. 284). Similarlthencase concerning thedelimitationof maritirneareas between
Canada and France (award of IOJanuary 1992), the Court of Arbitration considered that"[gleographical
featuresare at theheartof the delimitation pro(QCM, AnnexIV.35,Vol. 4, p. 299, atp. 301) andtha"the
criteriagoverningdelimitation aretobe foundprimarilyinthe geographical fa(ibid.ai p. 302).
73I.C..I. Reports1985p.50,para. 69; see, also, 1.C.J.Reports 198234, para. 17.In the samedecision, the
Court also noted, amongthe relevant circumstances that mighttiS.a certain adjustment of the median line
towardsthe north in orderto achievean equitable result,"thegeneral geographical contextin which theislands
of Maltaappearasa relativelysmallfeaturein a semi-enclosedseau(I.C.' Reports1985,p. 52, para. 73).
74Weil, TheLawofMarifimeDelimitation - Reyections,op.cit.QCM,AnnexIV.58,Vol.4,p. 453,at p. 457.
75Ibid .,p. 456(emphasisin theoriginalsee,aiso,ibid., atp. 455,and para.8.22,below.
76BM,para. 635.
" See,QM,paras. 12.10,et seq.northernsectorliesoff,ratherthanbetween, thearea wherethe respectivecoasts ofthe Parties
are oppositceach ~ther~~T .his is why Qatar,with a viewto achievingas objectiveas possible
an analysis, was determined not tobe locked into the alternative between "oppositeStates"
and "adjacent States", andmaintainedthat it was unnecessaryto make this categorisationin
the northern sector,because in the final analysis,the rules expressed in both 1958and 1982
are essentially the sarne in both situations, and the jurisprudence attaches 110 decisive
importanceto this distinctionT9.
8.20 Qatar would nevertheless observe that if, as Bahrain alleges, the delimitation in the
northern sectorwercto betreated as a lateraldelimitation between adjacent States,it would be
necessaryto draw al1the consequencesfiom this situationgo.But this is exactly what Bahrain
has failedto do inthe present case.
8.21 In order to be consistent withits acknowledgmentof the distinctionbetweenopposite
and adjacent coasts and with its own categorisation of the northern sector, Bahrain should
have applied in the present case al1the legal consequences thatthe jurisprudence has drawri
fromthe distinction.It should not be forgottenthat the Courtconfinned this distinction in its
Judgment of3June 1985inthe LibydMalta ContinentalShelfcase, andthat in that Judgment
it recalled "the precise reason"why the Court, in its Judgrnent of 1969,made a distinction
between the effects of an equidistance line,depending on whetherthe coasts are opposite or
adjacent :
"In thelatter situation,any distorting effect of a salientfeature might well extend and
increase through the entire course ofthe boundary; whilstin the former situation, the
influenceof one featureis normally quicklysucceededand conected by the influence
of another,as the courseofthe line proceeds betweenmoreor less parallelcoast~"~'.
78QM,para.12.11.
79
Ibid.See,para.8.21,below.
See, QCM,AnnexIV.60,Vol. 4,p.465 andpara.8.21,below; see,also,QCM,AnnexIV.34,Vol.4, p.273,
atp. 283;I.C.J.Reports 1969,pp.36-37,paras.57-58;I.C.JReports 1982,p.63,para.78 andp. 88, para.126;
1.C.J.Reports1984,p. 331,para.206andpp.333-334,paras.216-217;1.C.J.Reports1985, p. 47,para.62.
''I.C.J.Reports1985,p.51,para.70. In thus endorsing the dichotomy between oppositeand adjacent coasts, and inputting
the maritime delimitationin the northern sector directly into thecategory of lateraladjacency,
Bahrain should have taken into account the warning contained in the Court's dictum cited
above, in order to achieve an equitableresult. Yet by relying on the feature of Dibal, this is
precisely what Bahrain has failed to do when constmcting the OQR equidistance line in the
northern sectorx2.It has not taken into account the "distorting effect of a salient feature"
constitutedby that low-tide elevation,an effect which not only, as the Court foresaw,"might
well extend and increase through the entire course of the bo~ndar-y"~~ b,ut which increases
even fher when Bahrainreliesupon theallegedrelevantcircumstanceof "Bahrain'shistoric
rights to the pearling tiank~"'~ to make, from point R to point Z (SQy5 , considerable
adjustmentto the equidistance lineg6.
*'BM,Map 10,Vol.7.
831.C.J:Reports 1985,p. 51,para.70.
84
BM,para. 653.
85BM, Map 10, Vol.7.
86
See, para. 8.7,above, and paras. 8.63, et seq., below. Bahrain has also failed to mention that, whereas the
jurisprudence favoursuse of the equidistancemethod in cases of delimitation between States with opposite
coasts,and acknowledges thatit maybe presumedto be equitable,the same is not me in cases of delimitation
behveenStateswithadjacent coasts.
As eady as 1969,the Court noted that "thecontinentalsheIfarea of..opposite State..meet[s]and overlap[s],
and can therefore onlybe delimitedby meansof a median Iine;and, ignoring the presenceof islets, rocks and
ininor coastal projections, the disproportiona[sic]distorting effect of which can be eliminated by other
rneans,such a line must effectan equaldivisionofthe particulararea involve..This typeof case is therefore
differentfrom that of laterally adjacent Stateson the same coastwith no immediately oppositecoast in front of
it.." (I.C.J.Reports 1969,pp. 36-37,para. 57). And the Court added: "whereas amedian line divides equally
betweenthe two oppositecountriesareasthat can be regarded as being the natural prolongationof the territory
of each oftliem, a lateral equidistanceline oftenleavesto one of the Statesconcemed areas that are a natural
prolongationof the territoryofthe other"(ibid.,p. 37, p58).
Similarly,in 1977,the Anglo-FrenchCourtof Arbitrationstressed that: "Whereasinthe case of 'opposite' States
, a median line willnormally effect a broadly equitable delimitation,a lateral equidistance Iine extending
outwards from the coastsof adjacent Statesfor long distances maynot infrequentlyresult in an inequitable
delimitationby reason of the distorting effectof individual geographicalfeatures.In short, it is the combined
effect of the side-by-siderelationshipof the two States and the prolongationof the lateral boundary for great
distancesto seawardswhich may be productiveof inequity..." (QCM, Annex IV.34, Vol.4, p. 273, at p. 284;
see,also, ibid., p. 295).
Finally,mention maybe made not onlyof the Court's Judgmentof 3 June1985in the Libya/Maltacontinental
shelf case(1,C.' Reports1985, p. 51,para. 70) referredto above,but also ofthe Judgmentof 14Junc 1993 in
the case conceming MuritirneDelimitaiionin theArea between Greenlandand Jan Mayen,where the Court
declared that:"Primafacie, a medianlinedelimitationbetween opposite coasts resultsin generalin an equitable
solution,particularlyifthe coasts in questionarenearly parallel"(1C.J Reports 1993,66,para. 64;see,also,
p.62, para. 56and p.67, para.65). B. The course of Bahrain's linein thencirthernsectortakesno account of thedisparity
ordisproportionbehveenthe lengthsofthe relevantcoasts of the Parties
8.22 In determining the law that is applicable to this maritime dispute, Bahrain has
completely ignored the equitable principle that is most frequently referred to by the
jurisprudence, namely that "equity does not imply eq~ality"'~.In this context, Qatar would
drawattentionto the followingtwo facts. First, Bahrainomits anyreferenceto a geographical
fact whichis of decisive importancein the present dispute,namelythe disparityin the lengths
of the Parties' relevantcoasts:thus, Bahrainhas ignored the primacyin maritimedelimitations
of coastal geography,whichhas alwaysbeen relied upon by thejurisprudenceg! On the other
hand, Bahrain has made numerous referencesto the kind of general economic considerations
thathave alwaysbeen disregardedby the Courtand arbitraltnbunals.
1.Bahrain'ssilencewith respectto coastal geography
8.23 In its general geographical description of the areag9 and in the characteristics it
identifies for purposes of maritime delimitation, Bahrain makes no mention of the most
significantcharacteristicof what it calls "the geographicalrelationshipbetween the respective
coasts of Bahrain and ~atar"", namely the disparityor disproportion between therespective
lengths ofthe Parties' relevant coasts.Yet Bahraintakes no account of this factor in the line
that it proposes to the Court, either in the southernglor the northern9*sector, despite the
proportionalityratio of 1.59to 1in favour of~atar~~.
8.24 Bahrain'sfailureto mention thisdisproportionin the lengths of the coasts of Qatar and
Bahrain is al1the more surprising in view of the fact that the jurispsudence has consistently
acknowledgedthat coastal geography,of which the lengths ofthe coastal fronts are a major
87
QM,paras. 12.17,elsey.
88See,para. 8.18,above.
89
BM,paras. 6,elseq.
90BM,para. 566.
91BM,Map 14,Vol.7.
Y2BM,Map1O,Vol. 7.element, plays a fwidarnentalrole in the law of maritime delimitation.In its Mernorial, Qatar
has already mentionedsome of the most significant dictato be found in the jurispmdenceY4.
Mention will be made here only of the most recent illustration given by the .Court in its
Judgmentof 14 June 1993inthe DenmarWNorwaycase,whenit heldthat:
"...the frequent references in the case-law to the idea of proportiondity - or
disproportion - confirm the importance of the proposition that an equitable
delimitationmust, in such circumstances,take into account the disparity betweenthe
respective coastallengthsof the relevantarea"95.
2. Bahrain'suse of generaleconomicconsiderations that have consistentlybeen rejected
by thejurisprudence
a) Disparity of natural resources
8.25 First, Bahrain emphasizes the disparity in the natural resources of the Parties, in
particular their respectiveoil and natural gas resourcesand reservesg6,with the consequences
that this disparity entails for the peu capifa incorne of their populationsg7.Thus, Bahrain is
93
Sec,QM,paras. 12.30,etseq.
94QM,paras. 12.33, etseq.
95I.C..I.Report1993, p. 67, para.65.
96BM,paras.55-56.
97BM,paras.69, et seqBahrainalsomentionsthe disparity inlandmass(BM,paras. 43 and58)and population
(BM, paras. 54 and 60) and the "drarnatic"differenceresulting therefrom with respect to population density:
"521 Bahrainisperkm2,14Qataris perkm2" (BM,para. 61).
Yet, as iswell known,the Courthasrefüsedto take into consideration the pararneterof landmass, rejectinign its
Judgment of 3 June 1985in the LibyalMaltacase Libya'stheory tha"therelevant ge~graphicalconsiderations
includethe landmass behindthe coast [whic...provide..thefactualbasisand legaljustificationfor the State's
entitlement to continental shelf righta, State with a greater landmass having a more intense natural
prolongation"(1.C. RJeports1985, p.40,para.49). For the Court, "[tlhe capacityto engender continental shelf
rightsderivesno1F~om the landmass,but fromsovereignty overthe landmass; anditis by meanofthe maritime
fiont ofthis landmass,inother wordsby its coastafopening,that this territorial sovereignty bringsitscontinental
shelf rightsnto effect. Whatdistinguishesa coastal State with continentalshelf rights froma landlockedState
which has none, is cerîainlynot the landrnass, wboth possess,but the existenceof a maritime frontin one
Stateand itsabsence in the other. Thejuridical link between the State'sterritorial sovereigntyand its rights to
certain adjacent maritimeexpansesisestablishedbymeansof itscoast"(ibid.,p. 41, para.49).
Sirnilarly,in its most recent Judgmenton the subject,rendered on 14June 1993 in the Denmark/Norwqcase,
the Court dismissed thepoint of view of Denmark,who considered as relevantto the delimitation "the major
differences between GreenlandandJan Mayenas regards population..."(1.C.RJeports1993p,. 73,para. 79). It
had noted that "JanMayenhas no settled population,as only 25persons temporarjlyinhabitthe island for the
purposesof theiremployment ...whereas "thetotal populationof Greenlandis55,00..."(ibid.,p. 73, para.79).adopting, at least implicitly, the strategy outlinedby Professor Weil, according towhom "ln
certaincases,the Stateendowed with fewer natural resourceç...has arguedthat equityrequires
that the delimitation should not aggravate, indeed should correct, this imbalan~e"~~ Y.et the
responseof the Courtand of internationaltribunalsto this has been consistentandunanimous;
as the sameauthorhas remarked:
"Here, the courts have shownthemselves particularly firm. The greater wealth of the
one, the more conspicuous poverty of the other, especially in energy or fishery
resources, arenot factorswhichcan haveany influence onthe assessment of theequity
of the provisional line ofequidistance,or of any otherline"".
8.26 Thus, in the Tunisiakibya ContinentalShelf case, Tunisia had insisted upon "its
relative poverty vis-à-vis Libya in terms of absence of natural resources like agriculture and
minerals, comparedwith the relative abundancein Libya, especiallyof oil and gas weatth as
well as agriculturalresource~"'~~ B.ut in its Judgrnent of24Febmary 1982,the Court rejected
this point of view, holdingthat:
"...these economic considerationscannotbe taken into accountfor the delimitationof
the continental shelf areas appertaining to each Party.They are virtually extraneous
factorssincethey are variableswhichunpredictablenationalfortuneor calarnity,as the
case may be, might at my time causeto tilt the scaleone way or the other. A country
might be poor today and become rich tomorrow as a result of anevent such as the
discoveryof a valuableeconomicreso~rce"'~'.
8.27 The Court confirmed this view in its Judgment of 3 June 1985 in the LibyaIMalta
ContinentaIShe2fcase. It rejected Malta'stheory, according towhich "the relevant equitable
considerations ... include the absence of energy resources on the island of Malta, its
requirements as an island developing country, and the range of its established fishing
acti~ity"'~~ I.ndeed,it statedthat:
Butthe Court concludedthat,inthedelimitationto be performedinthatcase, it shouldnotbe consideredthat
thelow populationof JanMayen was acircumstanc eobetakenintoconsideration(ibid.,p.74,para.80).
98Weil,TheLawofMarifimeDelimitation - Refections,opcil.QCM,AnnexIV.58,Vol.4, p.453,at p.459.
9'Ibid.
1O0
1.C.JReports 1982,p.77,para.106.
'O'Ibid.,para.107See,also,theGuinea/Güinea-Bissaucase,QCM,AnnexIV.33,Vol.4, p.265, atp.271.
'O2I.C.J.Reports 1985p.41, para.50. "The Courtdoes not ...considerthat a delimitationshould be influencedby the relative
economic position of the two States in question, in such a way that the area of
continental shelf regarded as appertainingto the less rich of the two Stateswould be
somewhatincreased in order to compensate for its inferiority in economic resources.
Such considerationsare totally unrelatedto the underlying intention of the applicable
rules of internationallaw"'03.
8.28 In other words, Bahrain'sarguments as to the relevance of the disparitybetween the
Parties as regards natural resources are clearly contrary tothe jurisprudence of the Court
when, as inthe present case,it has notbeen authorisedto decide ex aequo et bono104.
b) Traditionalfishing activities
8.29 At this stageof the Counter-Mernorial,itshouldbe sttessed fi-oma generalperspective
that thejurisprudence concerningmaritime delimitationhas consistently soughtto down-play
the legal consequences of economic factorstaken as a whole, and particularly of traditional
fishing activitiesin the areasconcerned.Thus, in its Judgmentof 12October 1984in the Gulf
cf Maine case (where the Chamber was also called upon to delimit a single maritime
boundary), the Chamber rejected the position of the United States, which relied on its
nationals' traditional fishing activities:
"...it can only confîrrnits decisionnot to ascribeanydecisiveweight, forthe purposes
of the delimitation it is charged to carry out, to the antiquity or continuity of fishing
activities carried on in the past within that part of the delimitation area which lies
outsidethe closinglineof the ~ulf"~~.
The Charnberthen added,in terms which must be repeated,sincethey apply precisely
to the presentcase:
"Until very recently ...these expanses were part of the high seas and as such freely
open to the fishermen not only of the United States and Canada but also of other
countries, and they were indeed fished by very many nationals of the latter. The
IO3Ibid.
'O4See, 1,C.J.Reports1984, p. 278, par59: "Itshouldbe emphasisedthatthesefishing aspects,and others
relatingto activitiesin thef...of oil explorat..mayrequireanexaminationof validconsiderations of a
politicalandeconomiccharacter. ThCe harnbeis howeverboundbyitsStatute,andrequired by theParties,not
totakeadecision exaequo etbono, buttoachieveareçultonthebasisoflaw".
'O5Ibid.,p341, para.235. Chamber of course readily allows that, during that period of free competition, the
United States,as the coastal State, may havebeen ableat certain placesandtimes - no
matter for how long - to achieve an actual predorninance forits fisheries.But after the
coastal States had set up exclusive 200-mile fishery zones, the situation radically
aitered. Third States and their nationals found thenlselves deprived of any right of
access tothe sea areaswithinthose zones and of any position of advantagethey might
have been able to achieve within them. As for the United States, any mere factual
predominance which it had been able to secure in the area was transfomed into a
situationof legal monopolyto the extentthat the localitiesin question became legally
part of its ownexclusivefishery zone. Conversely, to theextent that they had become
part of the exclusive fisheryzone of the neighbouring State,no reliance could any
longer be placed on that predominance. Clearly, whatever preferential situation thc
United States may previously have enjoyed, this cannot constitute in itself a valid
ground for its now claimingthe incorporation intoits own exclusive fisheryzone of
anyarea which,in law, hasbecomepart of canada'^"'^^.
And the Charnberconcluded:
"In anycase, the purpose of the delimitation carinotconceivably be held to lie in the
maintenance of such a position, or even of its restoration in the event of its having
weakened inthe course of time,.. However, thereis no reason to considerdejure that
the delimitation which the Chamber has now to carry out within the areas of
overlapping apparentas betweenthe respective exclusive fisheryzones must result in
eachParty'senjoying an accessto the regionalfishingresources which will be equal to
the accessit previously enjoyeddefictd"'07.
c) The roleof present-day or recent fishingactivities
8.30 It must be added that it is not only traditional but even present-day or recent fishing
activities, together with accessto fisheries in the disputed area, that internationaltribunals
consider as largely irrelevant forthe purposesof determination ofa single maritime boundary.
Thus, in the Gudfof Maine case,the Chamberdeclaredthat:
"Itis,therefore.,. evidentthatthe respectivescaleof activitiesconnectedwith fishing...
cannotbe taken into account as a relevant circumstanceor, if the term is preferred, as
an equitatilecriterionto be appliedin determining the delimitationline"'08,
106Ibid., pp.341-342,para.235.
108Ibid., p. 342,para.236.
Ibid., p. 342,para.237.8.31 The sarne approach may be found in the arbitral award of 10June 1992 in the Case
concerningthe Delimitation of MaritimeAreas between Canada and the FrenchRepublic.
Whileacceptingthat accessto the fisheriesinthe disputedzone lay at the centreof the case on
delimitation,the arbitraltribunal confirmed that "thecriteria governingdelimitationare to be
faund primarily in the geographicalfacts"; it acknowledged"thatit has not been requested or
authorized to apportion resources on the basis of need or other economic factors", and
concludedthat "economicdependenceandneeds werenot taken into accountin the process of
delimitation,as described abo~e"'~~.
8.32 More generallystill, in its Judgment of 14June 1993in the case concerningMuritirne
DeEirnitationin the Area between GreenlandundJan Mayen,the Court rejected Denmark's
view that significant differences in "socio-economic factors" between Greenland and Jan
Mayen were relevant for the purposes of delimitation. In particular, Denmark had asserted
"the importance forGreenlandof fishing and fisheries-relatedactivities, which constitute the
mainstay of its economy",whereas "Nonvegianfishinginterestsin the waters surrounding Jan
Mayen are...the interests of mainlandNonvay, not of Jan Mayen as such, wherethere are no
fi~herrnen"'~~ .enmark had even "relied on what it refers to as the 'cultural factor', the
attachmentofthe people of Greenlandto theirland andthe surroundingsea""'. Yet the Court
accepted none of these arguments,since the absence of loc. fishing activities on Jan Mayen
and, more generally, the socio-economic factors of the States concerned were not
circumstances to be taken into account in the delimitation operation. Thus, in the final
analysis, in the Court'sopinion, "the attribution of maritimeareas to the territory of a State,
which, by its nature, is destined to be permanent, is a legal process based solely on the
possession bythe tenitory concemedof a c~astline""~.
8.33 In conclusion, therefore, Bahrain'sposition concerningmaritime delimitation in the
northern sectorconflictswith customary internationallaw and consistentjurisprudence. First,
Bahrain cannot invoke any alleged disparity in the existing or potential natural resourcesof
109QCM,Annex1V.35,Vol.4, p.299, atp.302.
"O I.C.J.Reports1993,p.73,para.79.
111
Ibid.
Il2Ibidp..74,para.80.tlie Statesconcerned. Second,Bahrain equally cannotinvoke the fishing activitiesthat it may
have had in the past to the north of Qatar, nor the socio-economicor cultural factors that it
might still invoke today, in order to obtain a deviation in the course of the maritime
delimitationin the northern sectorin its own favourand to Qatar'sdisadvantage. Finally, and
above all, it must never be forgottenthat an operation of this kind, performed in accordance
with the internationallawof maritime delimitation,must be made in particularon the basis of
the geographical facts and in particulas the coastal geography of the States concerned. By
failing to mentionthe geographicalrelationshipbetweenthe Parties' respectivecoasts, and by
disregarding completely the disproportion between the respective lengths of their coastal
fronts, Bahrain has refashioned geography,or refashioned nature. It has contravened "the
equitableprinciple that nature mustbe re~pected""~,since it is quite true that equitydoes not
"seek to makeequalwhatnaturehas made~ne~ual"''~.
C. The linedrawn by Bahrain takesno account of themaritime projectionof Qatar in
the northernsectorand ignores the principle of non-encroachment
8.34 As has already been notedus, in its examination of the law applicableto the present
maritime deIimitation Bahrain has been curiously silent as regards one of the equitable
principles that isfrequentlyrelied upon in maritime delimitationcases, namely the principlc
of non-encroachent, according to whichthe line of delimitationmust not cut off the natural
maritimeprojectionsof the Statesconcerned.Indeed,it is beyonddispute that the jurisdiction
of coastal States over theirterritorial waters is derived fromtheir sovereigntyover their land
territory; as early as its Judgment of 18December 1951 in the Fisheries case, the Courthad
proclaimed "the close dependence of the territorial sea uponthe land domain. It is the land
which confers upon the coastal State a right to the waters off its c~asts""~.Nor can it be
disputed that the sovereign rights exercised by coastal States over the resources of the
continental shelfand superjacentwaters are derivedfromtheir savereigntyover landterritory.
'13I.C.J.Reporls1985,p.44, para.56.
Il4Ibid.,p. 40, para.46. See, also,1C.J.Reports 1969,pp.49-50,91;aAward ofthe Anglo-FrenchCourtof
Arbitration,QCM,AnnexlV.34, Vol.4, p.273,at p292; and LC.J Reports1985,p.39, para.46.
Il5See, paraS.16,above.
Il61.C.J.Reports1951,p. 133.The Court's dictum, in its Judgment of 20 February 1969, according to which "itis...
necessary to examine closely the geographical configuration of the coastlines of the
countries ...since the land is the legal source of the power whicha State may exercise over
territorial extensions 10 ~eaward""~is just as applicable to fishing zones and the exclusive
economic zone as it is to the contiguous zone and the continental shelf. But as has been
noted118a , glance at the maps where Bahrain'sIineis shown'l9is suficient to showjust how
far Bahrain infringesthese fundamental principlesand disregards, from a third point of view,
"the geographicalfacts"whichmustform the basis for thedelimitationin the northern seçtor.
8.35 The maritime boundary claimed by Bahrain in the northern sectorcuis off to a great
extentQatar's naturalmaritimeprojectiontowards the open sea.Bahrain'slineimplies that the
coastal front on the north of the Qatarpeninsula is not entitled to its natural extensionin the
direction of the centralpart of the Arabian-Persian Gulf which has alreadybeen delimitedby
the agreements concludedby Iran in 1969 and 1971 with Qatar and Bahrain, respectively.
Indeed, point U, which is the eastemmost point on Bahrain'sline, is at longitude 51°38'E,
which more or less foms a tangent with Qatar's eastern coast.In other words, Bahrain'sIine
encroaches upon and cuts off a considerable partof Qatar's natural prolongationtowards the
North.
8-36 Whereas Qatar'sline, constructedin accordance with the modified perpendicularity
methodl2',makes full allowance for Bahrain'smaritime projection in the northern sector,
without the slightest encroachment, Bahrain's lineliterally separates the coast of Qatar from
its natural maritimeprojection, becauseit has no normal or logical connectionwith Bsthrainis
landmassl*'.Bahrain's line gives an exaggerated,distorting and disproportionate effect to a
miiiorfeature,Dibal, which is noteven a point of land on the coastline,but simplya low-tide
IlI.C.I. ReportsIY69,p. 51,para.96.
II8
See,para. 8.5, above.
11BM,Maps 10and 11,Vol. 7,andMupNo. 8, facingpage243.
QM,paras. 12.62, et seg.and Map 21, Vol.17;see,also,MapNo. 8, facingpage 243.
12'It should not be forgottenthat Bahrain's relevant baseposor the delimitatiointhe central partofthe
Arabian-Persian Gulf areused only tothe West of point 2B and that, on the other hand, onlyQatar'srelevant
basepoints aretakenintoaccountto the eastofpoint2B, inparticularup ropoint2Q or Z, whichisthe endpoint
of the boundary claimcd by Bahrain (sec,Mup No. 8, facing page 243). This has the effect of further
encroaching upon the natural maritime projectinf Qatar.elevation situated "on thewrong side of the median line" which, as will be shown, can in no
event serve as a basepoint under customary internationallaw122 for the delimitation in the
northern sector. Thus, Bahrain'sline is incompatible withthe basic geographicalrelationship
betweenthe Parties'respective coasts.Ittakes no account of the natural IiilksbetweenQatar's
coastal fiont and its projection in the northern sector.In a word, it is a clear infiingement of
the principleof non-encroachrnent.
8.37 The principle of non-encroachment has fi-equentlybeen appiied by international
tribunals, as a clear reflection of reasonand equity. A trace of it may already be found in the
award of 23 October 1909 in the Grisbadarnacase, where the arbitral tribunal ensuredthat
the principle of non-encroachmentwas compliedwith by effecting thedelimitationusing the
method of perpendicularity to the general direction of the coast in order to determine the
maritime boundary between Sweden andNonvay in the area where their coasts are adjacent
"pourarriver à unedéterminationlégitime etjustifiéede la fi-~ntiére"'~~.
8.38 The principle of non-encroachmenthas been confirmed in modem jurisprudence. In
1969,in the North Sea Conlinenta1Shelfcases, the Court referred to it in order to exclude
application of the equidistance methodwhich "would frequently cause areas which are the
naturatprolongationor extensionof the territoryof one Stateto beattributedto another,when
the configurationof the latter'scoastmakesthe equidistanceline swingout laterally across the
former'scoastal front, cutting it off fromareas situated directly beforethat Further,
in the Case concerning delimitation ofthe maritime boundarybetrveenGuinea and Guinea-
Bissau, the arbitralaward of 14February 1985insisted forcefully,and on several occasions,
uponthe importanceof the principleof non-encroachment:
"Pour fairereposer une délimitationsur une base équitableet objective, il faut autant
que possible chercher a assurer à chaque Etat le contrôle des territoires maritimes
situésen face deses côtes etdansleur voisinage"125.
12*See,paras.8.55,etseq.below.
121QCM,AnnexIV.32, Vol. 4, p.261.
124
I.C.J. Report1969,pp.31-32,para.44.
lZ5QCM,AnnexIV.33,Vol.4, p. 265, atp. 267;see,also,ibid.pp.269, 270 and271. ThePresidentof the
arbitratlribunal,JudgeLachs,inhisspeech deliveredbeforteheawardwasread,even stressethatthis wasthe
"objectifpremier"ofthe decision.8.39 Moreover, Qatar would liketo place particular emphasis on the Judgment of 3 Julie
1985inthe LibydMalta case,wherethe Court identifiedthe principle of non-encroachmentas
an equitableprincipleand analysedit minutely. Indeed, theCourtfirst recalledthat "equitablc
principles are expressed in terms of general application"126t,hen gave a few of the most
significantexamples.First, the Court mentioned"the principlethat there is to be no question
of refashioning geography, or compensating for the inequalities of nature"12',a principle
which, it may be remembered, holdsa central placein the statementof Qatar'sposition'2B and
is constantly infringedby Bahrain in drawing the dividing line that it puts forward for the
northern sect~r'~~ N. ext, the Court added, as a second example of an equitable principle "of
general application", "the related principle of non-encroachmentby one partyon the natural
prolongation of the other, which is no more than the negative expression of the positive rule
that the coastalStateenjoys sovereign rightsover the continentalshelf off its coaststo the full
extentauthorisedby internationallawin the relevantcircumstan~es"'~~.
8.40 The Court will note that the line claimed by Qatar in the northern sectordoes not
encroachuponthe maritimeareaslying off and in the neighbourhoodof the coastsof Bahrain.
By way of contrast, Bahrain'sline encroachessubstantiallyupon Qatar's maritimeprojection,
becauseBahrain'smethodofdelimitationresults in the attribution toit of maritimeareaslying
directly off Qatar'snorthem coastal front. It is obvious that in the northern sector beyond
Qatar's territorialwaters and even within its territorial waters to the Westof segment OQ of
that line, Bahrain's line would prevent Qatarfrom exploiting the natural resources in the
maritime areas lying offits coasts,to which itis entitledunderinternationallaw.And it isjust
as obvious that in the same maritime areas Bahrain'sline would prevent Qatarfiom ensuring
the legitimateprotectionof its defenceandsecurityinterestsI3'.
'2".~..~Rtports1985,p.39,para.46.
127Ibid.
128
QM,para. 12.18.
129See,paras.8.16and8.33, above.
130I.C.J. Repor1985, p. 39,para.46.
131
Inthisregard, theCourtwillrecalltheawardof14 February1985 intheGuinea/Guinea-Bissau casewhere
the arbitraltribunalstatedthat"Sonobjectif premrétkd'éviterue,pour une raisonoupour uneautre, une
des Partiesvoie s'exerceren face de ses côtes etdans leurvoisinageimmétes droitsquipourraienporter
atteintà sondroitau développement oc uompromettre sa sécurité("CM,Annex 1V.33,Vol.4, p. 265, at
p.271).See, also,theCourtsudgmentin theLibydMalltacase,I.C.J.Reports1985,p.42, para.51. Section 4.There is no legalbasis for the single maritimeboundaryclairnedbyBahrain
in the northernsector
8.41 Themaritimeboundarythat Bahrainproposes tothe Courtin the northern sectoris not
only ill-founded because it fails to take any account of the geographicalfacts. It is also ili-
foundedbecause,as hasjust been seenwithrespect tothe principleof non-encroachment,it is
devoid of any legalbasis. Qatarhas alreadyillustratedthis propositionwith reference to each
of the two segments making up the line claimedby Bahrain in the northern ~ector'~~ T.he
section OQR is clearly ill-founded because of the distorting effect of using Dibal as a
basepoint for the closing line used for the construction of Bahrain'sequidistance line. The
section RSTUZis dso ill-foundedin this casebecause of the unjustifiedcorrectionsmade by
Bahrainin itsownfavourtû the courseof itsequidistanceline.
A. Unacceptabilityof the first section,OQR,because ofthe disproportionate effectof
Dibalas a basepoint forthe closing line used for the constructionof Bahrain's
equidistanceline
8.42 Qatar does not dispute that it might be possible to have recourse to the equidistance
method for the maritime delimitationin the northern ~ector'~~ H. owever, Qatar takes issue
with the selection of basepoints by Bahrain for this purpose134A. s one learned commentator
has stated:
"La véritabledifficulté del'équidistance n'estpas de savoir si cette méthode possède
ou non unevertu intrinsèque ou estaffligéede défautsinhérents,mais de déterminer à
partir de quelspointls a ligne d'équidistancesera construite.Equidistance entre quoi
et quoi:voillae véritableproblème"135.
13See,paras.8.5,etseq.,above.
133
134ee,para.8.96,foomote274, below.
See,para.8.6,above.
13Weil, "Aproposde ldoublefonctiondes ligneset des pointsde base dans ldela mer",opcif.QCM,
Annex IV.56,Vol.4,p.429,at p.432; emphasisadded. The course of sectionOQR is based entirely upon a closing line from Ras Rakan to
Dibal which, in Bahrain's view,defines the limit separating the southern sector from the
northern ~ector'~~ a,nd this closing line lacks any factual or legal basis. As has alteady been
shown in the earlier discussion deaIingwith the southem ~ector"~,the choice of Dibal as a
basepoint for the constructionof the equidistanceline in the northern sector must be rejected
for three main reasons.First, Dibal is a low-tide elevation. Second,as such, and in view of its
location, it has no maritime area of its own, and cannot be used for purposes of calculating
Bahrain's territorial waters. Finally, and even assurning that Dibal could be used as a
basepoint formeasuringthe breadthof Bahrain'sterritorial sea,it can in no eventbe used as a
basepoint for thepurposes of a maritime delimitation involving the construction of a single
maritime boundary.
1. Dibal falls within thecategoryof low-tideclevations
8.43 The Parties' analysis of the nature of Dibal is identical. According to Qatar, it is
"clearlya low-tideelevation in its natural f~rrn"'~~a,nd Bahrain reaches a similarconclusion.
Thus, despite the fact that it wrongly claims sovereignty over Diba1'39B , ahrain does not
characterisethis geographicalfeatureas"an island"but as "a low-tideele~ation"'~~.
2. Dibalhas no maritimeareasof its own,and cannot be usedfor purposesof calculating
the outer limit ofBahrain's territorialwaters
8.44 The first issue raisedby Dibal, thus defined as a low-tide elevation, is whether it may
be used as a basepoint forthe purpose of measuring the breadth of Bahrain'sterritorial sea.
According to Bahrain,there can be nodoubt, since Dibal "is closerthan 12nautical miles to
Fasht al'Am (i.e.to Sitrah)and to Qit'atjar ad al^"'^.hus,Bahrainarguesthat Qit'atJaradah
L36BM,paras.559,564 and633.
L37Set.,para6.71,6.76and 8.6 ,bove.
13QM,paras. 10.54,10.58and10.73;QM,Appendix5, Vol. 15,p.125.
139
BM,Subrnissions,p.301,para.3.
14BM,para.626.
14Ibid.is a true is~and'~and that the low-waterline of Sitrah island "is constitutedby the low-water
line around Fasht al'Azm, which foms an integral part of Sitrah ~sland"'~~ T.herefore, in
Bahrain's view, Dibal may be used as a basepoint for measuringthe breadth of its territorial
sea, from what it refers to as the "island" of Qit'atJaradah and/or the "iow-tideelevation" of
Fasht al-Am. In the second hypothesis,as Article 13,paragraph 1of the 1982 Conventionon
the Lawof the Seaprovides:
"Wherea low-tide elevationis situatedwhollyor partlyat a distance not exceedingthe
breadthof the territorialsea fromthe mainland or an island,the low-waterline on that
elevation may be used as the baseline for measuring the breadth of the territorial
Sear!144
8.45 As has alreadybeennotedI4*Q , atardisputesthe lineof argument advancedby Bahrain.
It is indeed contrary to customary international law to rely upon the low-water line of a
feature such as Fasht al-Am, whichBahraincharacterisesas a low-tide elevation,in order to
use Dibal (which bothPartiesacceptis a low-tideelevation)as a basepoint for the calculation
of the outer limit of Bahrain'sterritorialsea.Bahrain not onlyprovidesno evidencethat Fasht
al-Am is a Iow-tideelevationwhich, without the slightestinterruption,forms a single block
with Sitrah island, but it seernsto have serious doubts itself in this respect. Indeed, itrefers,
significantly, to "Fasht al'Azamwhich (should the Court decline to recognise it to be an
integralpart of Sitrah Island)is in any case closer than 12nautical miles tothe mainBahrain
island,to Sitrahandtu UmmJalid"'46A . SQatarwill demonstrate,there are two reasonswhich
turnthis doubtinto a certainty.
8.46 The first reason is that a simple examinationof the marinechartsis sufficientto show
that there are evidentcontradictions withrespect to the illustration of Fasht al-Am between
the various Bahraini charts.Indeed, on the official Bahraini marine chartsI4'and in particular
143BM, paras. 619and 622,etseg.
BM,para. 620.
144BM,para. 625.
145
See,para. 8.42,above.
14%~, para.626.
14'A copyof BahrainimarinechartsNos.5001,2501 and 1502isbeingdepositedwiththe Registryof the Court
pursuantto Article50,paragraph oftheRulesof Court.on chartNo. 5001,at 1:50000 scale, "Sitrahto Tighalib,published January 1987by Ministry
of Housing, Survey Directorate, Hydrographic Department" and on chart No. 2501, at
1:25000 scale, "Al Manamato Umm Jalid, published August 1987by Ministry of Housing,
SurveyDirectorate, HydrographicDepartment",how is Fasht al-Azmdrawn?
(1) On both charts, Fasht al-Am appears as a mass of scattered corai reefs, rocks
and sand banks, describedas "drying reefsand sand banks" (chartNo. 5001)or as "numerous
Wing reefs and sand banks" (chart No. 2501), forming a homogeneous whole, with its
outlinedrawn as a continuous line on boththe northem and southem sides, drying completely
at low tide, and beingattached,apparentlywithoutthe slightestinterruption,to Sitrahisland.
(2) However, Bahrain's official chartsare not consistent. Chart No. 1502, at
1:15000 scale, entitled "Sitrah Anchorage to Salbah, pubIishedDecember 1986by Ministry
of Housing, Survey Directorate, Hydrographic Department",describes in different terms the
part of Fashtal-Azmthat it shows. Thus, it indicates: "numerousshoals, drie npaiches"'48.
Moreover, unlike charts Nos. 5001 and 2501, this chart does not allow the inferencethat the
outer northernline ofcoralreefs on Fashtai-Am is whollyuncovered atlow tide, without the
slightestinterruption.
(3) Finally,there is a clear contradictioninthe geographicd relationshipbetween
Fasht al-Azm and Qit'atash Shajarahb ,etween the maps produced in the Bahrain Memorial
and chartNo. 5001. Al1the relevant maps in the Bahrain Memorial show Qit'atash Shajarah
and Fasht al-Am as a single featureI4'.By way of contrast, on chart No. 5001, published in
January 1987,Fasht al-Am and Qit'atash Shajarahareclearlyseparatedandthus do not form
a singlefeature.
14%rnpha~i~added.
149BM,Maps 6,7,&,9,11,12,13,14 and15,Vol.7.8.47 In addition to the uncertainties and inconsistencies in Bahrain's charts, there is a
second andeven more compelling reasonthat demands the rejection ofBahrain'stheory that
"FashtallAm... forms an integralpart of SitrahI~land"'~~ T.his is that such a statementis not
a true reflection of the reality. While Fasht al-Aun appears on recent marine charts to be
attached to Sitrah island, this is a recent phenomenon, dating from 1982, which is wholly
artificiaIand mm-made. In other words, Fasht al-Am is not naturally attachedto Sitrah, and
the artificial narrow stripwhich, on present-daycharts, seemsto link these two geographiçai
features (andon which a petrochemical planthas been constructedby Bahrain),did not exist
until 1982.
8.48 In fact, the large areaof land-appearingfor instanceon Bahraini chartNo. 1502and
British chart No. 3790'~' - on which have been constructed a petrochemical plant, storage
tanks, stocks, columns and, at its south-easternextremity, a flare ~tack"~,is wholly artificial.
It waçcreatedby the Bahrainiauthoritieswho, in orderto do so,reclaimedan areaof sea. The
topography of the feature on Bahraini chart No. 1502 shows that this had previously been a
permanent and entirely natural maritime passage along the eastern side of Sitrah island.
Before the reclamation work undertaken in 1982, there existed a navigable channel which,
while it was doubtless quite shallow, was never above water and allowed fishitig boats to
pass, evenat extreme lowwater. Whenthis natural navigable channelwas filled in as part of
thc reclamation works, theBahrainiauthoritiesdecided to dredge a new replacement channel
close by and slightly to the east, designatedby the Bahraini technicians as an"alternative
fishemen's channel". This new navigable channel is the one show on Bahraini chart
No. 1502 and British chart No. 3790, identified as "Dredged channel - least depth 3.0m.
(1986)" on the Bahrainichart, andas "Markedchanne13m. (1986)"on the Britishchart.
8.49 A Bahraini technical documentconfirms this analysis and provides evidence of the
existence of a natural navigable channel, traditiomlly used by Bahaini fishermen and
separating Fasht al-Am from Sitrahand, as a corollary,of the need to dredge analternative
150BM, para.620.
New edition26February 1993.
152
See,MapNo.9,facingthis page.Sprcially prcparcd for prcscnIliInternatioCourtoJiatire.
MAP No 9fisliermen's channel. This document is "Technical Circular No. 12. Dredging and land
reclarnation activities along Bahrain coasts", dated March 1982 and signed by a Research
Officer,Zahra Sadiq~l-~larni'~~.
8.50 That documentanalysesvariouswork, notably dredging works, performed before 1982
by firms such as Cobla, Falco, Franco Arab Dredging Co., Gulf Standard DredgingCo. or
Amerad Betong Vagforbattringer. But it indicates in particular that included among the
pending and future work to be performed by Gulf Petrochemical lndustries Co. was the
dredging of two channels, one for cooling water and one being "an alternative one to the
existing fishermen'schannelwhichis filledwith the reclamationmaterial on some partof it".
Thus, it is statedat pages 15and 18of the TechnicalCircular:
"A.GULFPETROCHEMICALINDUSTRIESCO.:
Theprojectsite (Fig. 9) is scheduledto be completedby 2nd February 1982.
Van Oord (International) have been appointed as the site reclarnation and dredging
Contractors.
The petrochemical site reclamation was approximately 600 metres wide by
1000metres long, connected to Sitra by a 1250m long access causeway and to
BAPCOcausewayby a 500111 long servicecauseway.
The material required for site reclamation was taken from an area situated between
BAPCO and ALBAjetties.
Two channelswill be dredged, onefor cooling water, the depth of the water in il will
be about 7m, and its length will be about 3.5km.The other channel is an alternative
oneto the existingfishermen's channel whichis filled with the reclamationmaterial on
some parts of it (Fig. 9), it will be dredged to 3.5m as a minimum overa distance of
1,100m.The quantity of material above that depth and within the channel section is
approximately 1 10,000m3,the marked width of the channelwill be 6Om.The dredged
materialwill be locatedeast ofthe channelformingoneor more islandsas required".
8.51 In these circumstances,Bahrain'scontention that Fasht al-Am is "an integral part of
Sitrah island" andthat the two featuresform an uninterruptednatural entity is contrary to the
'53QCM, Annex IV.24, Vol.4, p. 165.For the convenienceof the Court,Qatar has reproduced,as Map No. 9,
the sketchmap appearing as Figure9 in the BahrainiTechnical (see,thecitationin pa8.50,below).
Ithas inserted,as an inset onthat Map,BahrainchartNo. 1502with a notation showingthe closed fishermen's
channel.facts. Nor cm Bahrain properly argue that the low-water line on Sitrah island is the
easternmost limitof the low-water line on Fasht al-Azm.Accordingly,Article 13, paragraph 1
of the 1982 Convention, which reiterated the terms of Article 1I, paragraph 1 of the 1958
Convention on the territorial sea and contiguous zone, the customary value of which is
undisputed, cannotbe appliedin favourof Dibal.
8.52 It is also contrary tocustomary internationalIaw torely on the low-water lineon Qit'at
Jaradah in orderto giveDibal its ownmaritimearea and to use the low-water lineon Dibal to
measurethe breadthof Babrain'sterritorial sea. Indeed, as has been sho~n'~~a ,nd contraiy to
what Bahrain allege~'~~ Q,it'atJaradah cannot be treated as an island within the meaning of
Article 121 of the 1982 Convention on the Law of the Sea; it is simply another low-tide
elevation. It should be borne in mind that, in principle, low-tideelevationshave no maritime
areasof their own. Accordingtothe customarylawas expressedby Article 13,paragraph 1of
the 1982 Convention, it is only when low-tide elevations lie within the territorial waters of
land which is permanently uncovered that they may have an influence on the course of the
outerlimit ofthe territorialsea ofthe landin question.
8.53 Customary international law goes no further. In order to avoid the "leap-frogging"
effect, it refusesto recognise that a low-tide elevation lying within the territorial waters ofa
first low-tide elevation can in turn have its own territorial sea. As Sir Gerald Fitzmaurice
wrote shortIyafter the 1958GenevaConference:
"...as the elevationis withinwhatis already theterritorialsea of the mainland,or of an
island, the practical effectis simply to cause a bulge in the seaward direction of thar
territorial sea. On the other hand,if there is a furtherdrying rock, situated - not within
the original or basic territorialsea othe mainland or island -but within the extension
of such territorial sea (bulge) causedby the presence of the 'inner'drying rock, then
this 'outer'dryingrock will not lead toany furtherextensionsof the territorial sea; nor
does an 'outer'dryingrock, so situated,generateanyterritorialsea of its own.This rulc
is intendedto prevent the practiceknow as 'leap-frogging', which, y making use of a
series of drying rocks, banks, etc. extending seawards, might result in artificial or
unjustifiedextensionsof naturalterritorialwaters"'56.
154See,paras.6.86etseq.,above.
156BM,paras. 619 and624.
SirG.Fitmaurice,"SomeResultsof theGenevaConferenceontheLawof theSea",I.C.L.Q., 1959,Vol. 8,
QCM,AnnexIV.43, Vol. 4p.351.8.54 In fact, in relying upon a low-tide elevation,Qit'atJaradah, Iyingwithin the territorial
waters ofwhat Bahrain assertsis a first Iow-tide elevation, Fashtal-~zrn"~,in orderto claim
that Dibal should be entitled to its own territorial sea and serve as a basepoint for Ihe
delimitation, Bahrain has entered into a blatant "leap-frogging" exercisesuch as has been
expressly condemnedby internationallaw.
3. Dibalcannot be an appropriatebasepoint fortheequitable delimitation of the
maritime areas befweenQatarand Bahrain inthe northernsector
8.55 Even if - asis not the case - Dibal could serveas a basepoint for measuring theouter
limitof Bahrain'sterritorialsea,it couldin no event beused as a basepointfor determiningthe
course ofthe maritime boundary in the northernsector.A learnedcommentatorhas observed
that:
"11 ne suffit pas,.. qu'unpoint saillant de la côte, une îun,îlot, un rocher, un haut-
fond découvrant, puisse êtrc eonsidérécomme engendrant unemer territoriale propre
ou comme susceptible juridiquement de faire partie des lignes de base de la mer
territorialed'un Etat donne pour que, pour cette seule raison, ce saillant, île, îlot,
rocher,haut-fonddécouvrant soit àregarder commeun point de base appropriépour la
construction d'uneligne de délimitationentre lfEtatintéresséet un autre Etat dont les
cotes font face aux siennes ou lui sont adjacentes. Une caractéistique géographique
peut servir de point de base à un calcul de la mer territoriale sans servir de point de
base la délimitati~n"'~~.
These observations are applicable whatever may be the method of delimitation
adopted, but they are applicablein particular when the equidistance method is used, In any
event, frornthe point of view of customary international law as defined by the international
jurisprudence, Dibal cannot serve as a basepoint for constructingthe maritime boundary and,
in particular, forconstructingthe equidistancelinebetween Qatarand Bahrainin the northern
sector, for twomainreasons.
"' See,paras. 8.4et seqabove.
158Weil, "Apropos de la double fonctiondes lignes et points de base dans le droiop. cilQCM,,
AnnexIV.56,Vol. 4,p. 429atp.442. a) First reason:Dibalis not anintegralpartofBahrain'scoastlinc
8.56 It is quite clearfromthe rnap~l~t~ hat Dibal can in no waybe cansideredas an integral
part of the coastline of Bahrain. It falls partly within the territorial waters of Qatar and lies
wholly outside Bahrain'sterritorial waters. As Professor Bowett has rightly remarked, "the
case for using features closely integratedwith the mainland coast must be more compelling
thanthe casefor using more remotefeature~"'~~.
b)Second reason:Dibalis only a "minorgeographicalfeature"
8.57 There is a secondreason why, under customary internationa1law, Dibal cannot serve
as a basepoint forthe constructionof anequidistanceline in the northern sector. The reasonis
that this low-tide elevation belongs, par excellence, to the category of "non-essential"
geographical features, which are most usudly disregarded in the jurisprudence for the
deterrnination of the course of maritime bo~ndaries'~'.Such geographical features, and a
fortiori low-tideelevationssuchas Dibal,indeed cannotfail to lead to results that "appearon
the face of them to be extraordinary,unnaturalor unreasonable"'". Therefore, a delimitation
performed on the basis of the equidistance method must elirninatethe effects of features of
this kind, whichthe Courthas describedas "incidentalspecid feat~re[s]"'~~.
8.58 Subsequently,the jurisprudence developedthis theory by not giving full effectto, or
even disregarding cornpletely, certainislands and i~lets'~~In this context, referencemay be
made in particularto the Judgmentin the GuEfofMainecase, which deals expressly withthe
15Sec, for example,QM, Map 14,Vol. 17.
160
Bowett, op.cit., QCM, Annex IV.37,Vol. 4, p. 307, at p. 311.This is al1the more so, since in the regional
practice thereare, as the sameauthorhasrightly remarked,"cases in which featuresformingan integralpart of
the coast havenot been used:the IranlQataragreementof 1969is a case in point,usinga mainland-to-mainland
equidistance line andignoringislands, rocks,andelow-tide elevations"(ibid.).
16See, I.C.J. Reports1969,p. 36, para.57.
'"Ibid.,p. 23, para.24.
16Ibid.,p. 50,para. 91.
'6See,Anglo-FrenchArbitral Award,QCM,AnnexIV.34, Vol. 4,p. 273,atp. 297; Libya/TunisiaContinental
Shelfcase, I.C.J. Reports 1982, p. 63, p79;p. 85, para.120 and p. 89, paras. 128-129;and LibydMalta
ContinentalShelfcase, I.CReporrs 1985,p.48,para.64.problem of "tiny islands, uninhabited rocks or low-tide elevations"'"'. In that case,the
Chamberrefusedto make "a seriesof suchminor featuresthe very basis for the determination
of the dividing line" and to transform them "into a succession of basepoints for the
geornetrical construction of theentire line. his is why, for each segmentof the maritime
boundary that it drew, the Charnberchose basepointsin the light of considerationsof ecluity
and spoke out clearly in this regard against application of the equidistance method,"as
defined by geometryand by the terms ofparagraph2 of Article 6 of the 1958Conventionon
the ContinentalShelft'67.Indeed, forthe Charnber,a line drawn in accordance withthe letter
of that provision:
"might well epitornize the inherent defects of a certain manner of interpreting and
applyingthe methodhere considered ...;inasmuchas the IikeIyend-resultwould be the
adoption of a line al1of whose basepointswould be located ona handful of isolated
rocks, some very distant fiom the coast, or on a few low-tide elevations:these are the
very type ofminor geographicalfeatures which, as the Court and the Chamber have
emphasized,should bedisco~nted"~~~.
8.59 Consequently,by relying upon Dibal to constmct its equidistance line in the northem
sector,Bahrainhas done exactly whatthe Chamber in the Gulfof Maine casewarned against.
This is why Qatar asks the Court not to take Dibal into account as a basepoint for the
delimitationinthe northern sector.
B. The unjustifiedcorrectionsmadeby Bahrainto section RSTUZof its equidistance
line
8.60 Bahrainis not content merelyto claim, as the secondsectionof the dividingline in the
northem secior, a so-called equidistanceline, drawn in accordance with the false premises
adoptedby Bahrain, from point Rto a point intersectingthe conventionally agreedlimit in the
'" I.C.RJpurf~1984p,.329, pa201.
Ibidp.330,para201.
'" Ibidp.332,para2.10.
16%Ibid.central part of the Arabian-Persian Gulf'". Consistent with its maxirnalist strategy, Bahrain
has claimed, beyond pointR, what it claims to be an equidistance line corrected entirely to its
ownbenefit, andto the manifest detriment ofQatar. This second portion of the Bahrain line in
the northern sector is composedof four segmentswhich must now be analysed.
8.61 The three segments RS, ST and TU çonstitute the first modification in favour of
Bahrain which has been made to Bahrain'sequidistance line beyond point 2. Rahrain attempts
to justify this éywhat it claims to be a "special ~ircurnstance"'~~ .e. "the existence of
Bahrain's rights in respect of the maritime areas where the Bahraini pearling banks are
l~cated""~, If Bahrain is ta be believed, and based solely on the completely insufficient
indications that it provides'72,he turning points S,T andU are located "atthe eastern limits of
the three easternmost pearling banks appertaining to ~ahrain"'~'.When one considers this
clairn which is pushed so fartowards the east and which is both so distant from Bahrain and
so close to the landmass of Qatar, it is extraordinary that Bahrain can dare to present these
three segments, RS, ST and TU, as being "theminimum deviation to the equidistance line
necessary to ensure that Bahrain'shistoric rights to the pearIing banksarepre~erved"'~~.
8.62 According to Bahrain, segment UZ is a further adjustment to its equidistance line,
allegedly madein Qatar'sfavourthistime175 i,n orderto take into account what Bahrain terms
a "second special circumstmce"'76,namely the continental shelf delimitation agreement
concluded in 1969between Qatar and Iran. For Bahrain, this segment US, which teminatcs at
point 2 (2Q) on the boundary delimited between Qatar and Iran, represents "the minimum
westward deviation in Qatar's favour necessary to take into account the provisions of the
existing agreements with1ra1-1"'~~.
IG9Indeed,such a tine,being an extensionof the first section[OQR)is shownas a red dashed linc onMap IOof
the BM. Itis defined in tlie legend as "equidistaiiceline projectednortheastwardfrom R to agreed 1ranIQatar
boundary".
'70BM, para.651.
17'BM, para. 653.
172The BMgivesno geographical coordinates, aitsrnapsare veryapproximate.
173
BM, para. 653see,BM,Map 10,Vol.7 andMapNo. 8,facingpage 243.
174BM, para.653;emphasis added.
17'BM,para. 655.
'76BM, para.651.
177BM,para. 655.8.63 Bahrain is thus suggesting, if one reads its Memorial literally, that there is a sort of
equivalence between the two "deviations" madeto its equidistance line, one in favour of
Balirain,the otherin favour of Qatar, eachbeing basedon one ofthe special circumstancesto
be taken into consideration in the area to be delimited. Such an assimilation is obviously
fallacious.On the basis of thrnapl7',the surfacearea thus supposedlyabandonedby Bahrain
to Qatar - i.ethe maritime areas comprised between (i) the point of intersection of the last
scgmcnt (UZ) of Bahrain's line and of the extension of the first portion (OR) of the
equidistance line,(ii) the point of intersectionof the extensionof this same equidistance line
withthe limitestablishedby the 1969QatadIran Agreement,and {iii)point Z (point2 or 2Q) -
is no greaterthan 10.6km2.As regardsthe surfaceareathat Bahrainhas granted itself -i.e.the
maritime areas comprised between(i) points R, S, T and U, (ii) the point of intersection of
segment UZ of the Bahrain line and the extensionof the first portion of the equidistance line
towards the north-north-east and (iii) pointR - this is 1092.4km2.This makes clear the
manifest disproportion between the two adjustments made by Bahrain: the ratio is
approximateIy103to 1in Bahrain'sfavour.
8.64 In anyevent,the second segmentof Bahrain'sline linkingpoints R, S,T, U and Z, that
Bahrain bases essentially on its "historic rights" to the pearling banks, lacks any factual or
legal basis. Qatar has already shown in its Mernorialthat these so-calledhistoric rights arc
factor lacking any relevance for effectinga maritimedelimitation in the present dispute'79.In
this respect Qatar refers to its Mernorial, and will restrict itself hereto the four following
observationswhich relateto bothlawand fact.
1.Pearl fishing on the banks claimed by Bahrain came to an endlong ago
8.65 Bahrain stresses several times in its Memorial the idea that the pearl banks in the
northem sector "haveappertainedto Bahrainsincetime irnrnern~rial"'~a ~nd that they are "one
'78BM,Map 10, Vol.7 andMap No.8,facingpage243.
'79QM,paras.9.15and 10.7,etseg.QM, Appendix4, Vol.15p. 111.
''OBM, para.638;see, also,para.6.49,above.of the oldest, and richest, pearl fisheries in the ~orld"'~'.But Bahrain itself hardly seems
convinced by the present-day relevance of these pearl fisheries, and indeed it cannot in al1
seriousness be so convinced.While it asserts that "the peariing fleet remained active at least
untiI 1954"Ig2t,he BahrainMemorialfinally admitsthat "thenurnberof vessels declinedfrom
the mid-nineteenthCent~~y''~~~.
8.66 Qatar's Memorialthus made a reasonable assessmentof the situation when it pointed
out that "in any event, it is an acknowledged fact that, by 1960,pearIing in the Gulf was
defunctfor practicalcommercialp~r~oses"'~~ T.hisis in noway contradictedbythe testimony
of Dr. Bhandarker, upon which Bahrain lays great emphasis's5,not only because that
testimony was taken on 12October 1950, but also because the inspections carried out by
Dr. Bhandarker on "the principal pearl fishing banks used by pearling fleets from Bahrain"
took place, as he himself admits, during the period from 1925 to 1940Is6.In these
circumstances,it is difficultto see how the pearlfisheriescould betaken into considerationas
a relevantcircumstancein operatinga maritimedelimitation between Qatarand Bahrain at the
turnof the 20Ihcentury.
2. Bahrain cannotclaimto haveexercised inthe past exclusive rightsover thepearling
banksthat it claimsin the present dispute
8.67 Bahrainassertsthat it "has occupiedthe pearlingba~ks"'~~ in the sensethat beforethe
presentdoctrine of the continental shelf was adopted, "thegeneral viewwas that the adjacent
sovereign could, upon proof of long-established 'occupation'of the beds or banks, assert
ownership of the seabed and exclusive rights to the 'fru~tus""~~ I.ts whole dernonstrationin
181
BM,para.639.
ls2BM,para.640.
la3Ibid .;e, also, para. 6.49, above,and the accountgivin QM, para. 10.39and, in particular,QM,
Appendix 4,Vol. 15,p.111.
'84QM, para. 10.39.
lg5BM, para.645.
I8b~, Annex 348,Vol.6, p. 1499.
Ig7BM, para.642.
BM,para.641.fact relies upon the well-known article by Sir Cecil Hurst "Whose is the bed of the sea?
Sedentary fisheries outside the three-mile limit". This reference is however irrelevant to the
present dispute between Qatarand Bahrain. First, as Bahrain itself admits, Sir Cecil Hurst's
view was expressed before the presentdoctrine of the continental shelf had developed and is
now out-dated. Second, in any event, Sir Cecil'sarticle referred only to banks which "have
always been kept inoccupationby theSovereignof thea4acent Z~nd''~~ It.could in no event
apply, in favour of Bahrain, to the pearling banks lying within Qatar'snatural northward
extension, and it is obvious that Bahrain cannot be considered as the "adjacent land" in
relation tothe banks listed in paragraph647 of its Mernorial.
8.68 Furtherrnore,as will now be shown,Bahrain has adduced no evidence of any title or
exclusivesovereigntyover the pearling banksin question.In any event, such a claim conflicts
with the traditional customarylaw in the region.
a)Bahrain doesnot provethat itexerciscd exclusive rights overthe pearling banks that
it claimsin thenorthernsector
8.69 As evidence of its "long-established 'occupation'of the beds or banks"'", Bahrain
relies primarily on various testirnonies taken at different timeslgl. The most significant
evidence is that provided by Dr. Bhandarker,both because of its date, 12October 1950, and
because of the identity of its author, who was a Bahraini resident employed by the
Governmentas a physician, andwho duringthe periodbetween 1925and 1940made "regular
trips on the Bahrain Governmenthospital boats" to the principal pearlingbanks of the region,
where Bahraini fishing boats used to goIg2.Yet far Eromsupporting Bahrain's position, this
18Sir C. Hurst, "Whoseis the bed of the sea?Sedentaryfisheriesoutsidethe three-milelimit",B.EB.I.L., 1923-
1924,QCM, Annex IV.45,Vol. 4, p. 371; emphasisadded.
19BM, para. 61.
19Other arguments are alsoreliedupon in the BM, in particularthe opinion given on 11Februaryby9the
Law Officersofthe Crown,accordingto whom the British Government had recognised Bahrain's rightsto such
banks (BM,para. 642).Aswillbe shownbelow(para. 8.78),this is an inaccurateinterpretofthe opinionof
11 February1905.
Sec,para. 8.66, above., testimony,to whichBahrain refers at lengthl", supports Qatar'sanalysison al1salientpoints.
8.70 Whatdoes Dr. Bhandarkersay?First, like QatarIy4h ,e notes that throughoutthe inter-
war period the pearl fisheries were in a process of continuousdecline. While during the first
years of his employment Dr.Bhandarkercould reckon that therewere "700Balnain pcarling
vessel~'"~~ w,hose divers worked "overthe banks north of Bahrain 1sland"19"during the laler
yearsof his activityhenoted that "thetotal numberofpearling vesselsdirnini~hed"'~~.
8.71 The second and absolutelyessential point of Dr. Bhandarker'stestimony,which must
be stressed here, is that unlike Bahrain,Dr. Bhandarkerdoes not state or even imply that~e
variousbanks beIongedto ~ahrain'~'.For him, they were merely the "principalpearlfihing
banks used bypeurling$eetsfP.omBahrain"Ig9.
8.72 Third, Dr. Bhandarker, likeQatdo', assertsthat Bahraini fishermenwere not alone in
frequenting the pearling banks that he visited. He noted the presence on the sarne pearIing
banks not only of Bahraini boats, but also of fishing boats from Saudi Arabia, Kuwait and
Qata?''. As far as Qatari fishing wasconcerned, he specified that "most of the vessels from
Qatar operated north and east of the Qatarpeninsula and we seldom saw any west of Bu
Su~ar"~~~ .he Court will in this conlext note that the last segmentof the line claimed by
Qatar,linkingpoints BLVand 2 (2B), is situatedto the west ofBu Suwar(Bu Sawr).
8.73 A final point to be noted in Dr. Bhandarker's testimonyis that, unlike Bahrain, he
never saysthat "al1vessels, irrespective of nationalityor place of registration, were subjectto
IY3BM, para. 645;BM,Annex348, Vol.6,p. 1499;QM,AnnexlV.254,Vol. 12:p. 17atpp.41-43.
See, paras.8.65-8.66,above.
lq5BM, Annex348,Vol.6,p. 1499.
Ig6ihid.
Iq7Ibid.
19BM, para. 642.
199
BM, Annex 348,Vol.6,p. 1499;emphasisadded.
'O0QM,para. 10.39see,also,para.8.1,below.
20'BM, Annex 348,Vol.6,p. 1499.
202Ibid.the jurisdiction of Bahrain whilst on the Banks"203O . n the contrary, Dr. Bhandarker says no
morethan that:
"On these trips 1visited al1the Bahrainpearling vesselsseen at the banks and trcated
al1 patients on these vessels regardless of nationality. Although 1 made no point of
visiting vessels other than those from Bahrain, such vessels fkequentlyasked rny
assistanceand 1gave it wheneverrequestedV2O4.
8.74 Accordingly, Dr. Bhandarker's testimonyprovides no support for Bahrain'sargument
that the banks are subject to itsjurisdiction and that they should be taken into considcration
for purposesof determiningthe courseofthe dividinglinein the northern sectorand adjusting
the second section of that line (RSTUZ) eastwards. On the contrary, it largely confirms
Qatar'sposition, in particular as to the so-called historic rights of Bahrain over the pearling
banks.
8.75 In its attempt to prove its sovereignty over the pearling banks, Bahraindoes not rely
solely upon Dr. Bhandarker's testimony.It alsorefers to a series of recent declarationswhich
have obviously been collected purely for purposes of the present proceedings before the
Court. These declarations were taken in September 1996from persons who allegedly came
from the Hawar islands or Zubarah and who, it is said, participated in their youth in pearl
fishing,or knew aboutsuchfishing eitherdirectlyor indirectly2''.
8.76 Qatar is of the view that these statements are devaid of al1 evidentiary vaIue. The
locationof various pearlingbanksthat are saidto have been visitedis uncertain,and it would
seem that very few of the banks ti~atare mentioned are relevant to the present dispute.
Furthemore, some ofthese Statementsare ambiguousandcontain striking contradictions2".
'O3BM,para,643;emphasisinoriginal.
'O4BM,Annex348, Vol.6,p. 1499.
205BM,Annexes233 and 234,Vol.4, p. 1014andp. 1025;andBM, Annexes313, 314, 3 15 and316,Vol.6,
pp. 1363,1379, 1392and1400.
206Sea,forexarnple,theStaternentof Salmanbin Isabin AhmadbinSaad alDosari (BM, Annex 315,Vol. 6,
p. 1392),whereit is stated ontheonehandthatthe pearlingbanksmentionedwere "partof Bahrain"b,e.that
they weresubject toBahrain'exclusive jurisdicti,ut onthe otherhandthatthe samebanks were "opento
everyone",i.ethattheywerenotreservedexclusivelyforBahrainifishermen. b)Bahrain's claim thatit excrcised exclusiverights overthe pearling banksis contrary
to the traditionalcustomarylaw in the region
8.77 Bahrain cannot in any event claim to have been alone in exercising rightsover the
pearling banks listed in paragraph647 of its Memorial, to the exclusion of the other Arab
sheikhdomson the coast of the Gulf. As Qatarhas already demonstratedin its Memorial, the
concept of a sheikh's or a tribe's exclusive rights over pearling banks has never been
recognised by regional cu~torn~~I 't. will be sufficient here simply to recall the prinçiple and
itsconsequences,which ali mn counterto Bahrain'sclaims.
(i) The principleof cornrnonownershipof the pearling banksandpearlfisheriçsby the
tribesand sheiktison the Arabianside of the Gulf
8.78 Throughout theperiod whenpearl fisheries played an important partin the economyof
the region, the British authoritiesconstantlyproclaimedthe principle of collective ownership
of the pearling banks. Contrary to Bahrain'sassertion20st ,he Law Officers of the Crown,
Finlay and Carson,clearlystatedin a note of 11Febtuary 1905,with respect notonlyto pearl
bankssituated within the three miles of territorial waters, but to ail the banks that Bahrain
considers as subject to its j~risdiction~'~ "...we think that, as a matter of international law,
they are capable of beingthe property of the tribes to the exclusion of al1nations", adding,
with respect to the BritishGovernment'srelations "withthe tribes on the west shore of the
Persian Gulf, we think that the existence of this exclusive right may be properly maintained
on their behalf by His Majesty'sGo~ernment"~''T . he sameview was confirrnedin a letter of
207
QM,para. 10.39,and inparticular,QM, Appendix4,Vol. 15,p.111.
208BM,para. 642.
209BM,para. 647.
2LO
QM, Annex IV.20, Vol. 9, p. 96; see, also, BM, Annex 321, Vol. 6, p. 1431. The same principle had
previouslybeen statedin correspondencefiom the India Office.Thus, ina letterof 10March 1904 ffom several
membersof the Foreign Departmentto the Secretaryof Statefor India, it is statedthat "Thepearl banks appear
f?omtime immemorialto have been open, without distinction,to the Arabs of the entire ..the principal
chiefshave in the past expressedthe viewthat the fisheriesare common rty..(QM,Annex IV.19,Vol. 9,
p. 85, at p. 87). Sirnil,nl30June1904,Mr. A. Godley, alsoof the IndiaOffice,considered thatwhatever
rnayhave been the location ofthe banks, either within or outsideterritorial waters,"in al1these cases thetribes
have exercisedan exclusive right for fishing forpearls" (QM,Annex IV.20, Vol. 9, p. 91, at p. 9The
principle is stated even more preciselyin a letter sent on 19 Octobera1member of the ForeignOffice,4 May 1910fromthe Foreign Officeto the Board of Trade: "Therightsof fishingforpearls in
the Persian Gulf have beenheld in cornmonfi-amtime immemorialby the Arab Chiefs upon
its eastem shores, who are under Treaty obligations tothe British G~vernment"~".The same
doctrine was upheldduring the inter-war period,as may be seen from a note sent to the India
Office on 23 April 1938 by Fowle, the Political Residentin the Persian Gulf, according to
which "the pearI fisheries are the exclusive common propertyof al1the Shaikhs, and this
means that the subjects of any one Shaikh havethe right at any time to fish at any place on
any of the pearling banksH2I2 I.n a letterof 6 June 1940 to the Admiralty, a member of the
india Office, Mr. Gibson, strikingly summarised as follows the opinion from which the
British Government never departed:"the pearling banks are the exclusive property of al1the
Arab Sheikhsf1213.
8.79 This principle of common property of tribesand sheikhs with respect tothe pearling
banks has moreover been confirmedby the best-recognisedlegalauthoritiesof Bahrain. Thus,
Dr. Al-Baharna, in his often-cited book entitled TheArabian GulfStates, TheirLegal and
Political Stutus and Their InternaE Problems, shares the view that is universaliy
acknowledged.In his opinion:
"..concerning rights of fishing and pearling in the Gulf, there exists no national
legislation regulating them. 'The fisheries', says Auguste,'which long antedate the
growth of national states in the Gulfarea, are govemed by customs and usages of
immemorial standing. Basic arnong these is the concept that pearl banks are open
equally to al1the peoples of the Gulfon the common understandingthat rnethodsand
standardswillbe obser~ed"'~'~.
Mr.EldonGorst,to the Law Officersof the Crown:"Inal1thesecasesthe hibes haveexercisedanexclusivand
concurrent right of fishing for pearls" (BM, Annex 321, Vol.6, p. 1431). The above-mentionedopinion by
Finlayand Carsonwasin responseto thisletter.
2" QM,Annex IV.24,Vol.9, p. Il 1,at p. 113.
2'2QM,AnnexIV.41,Vol.9, p. 199.
2'3QM, Annex IV.62,Vol. 9, p. 305. It was also Gibson who, in an earlierletterof 26 October 1938, had
criticisedthe view ofamember of the Foreign Office, Lacy Baggallay, noting, with a significant sense of
understatement,"in connexionwith Baggallay'sletter",t"itwould hardlybecorrectto speak of the fisheries
long reserved to Bahreini nationals when the banks are the common property of al1 the hibes" (QM,
AnnexIV.46, Vol. 9,p.223, atp.227; emphasisinoriginal).
2'4QM,AnnexIV.289,Vol. 13,p. 43, atp.49, h. 3. It is thereforenot surprisingto find an echo of this regional custom in the work of the
International Law Commissionprecedingthe 1958Geneva Conventionon theLawof the Sea.
ProfessorJ.P.A.François,in his secondreporton the high seasof 10ApriI 195 1 statedthat:
"Onne connaîtpas de législation nationale qui revendiquele contrôleexclusifsur l'une
quelconque des pêcheries de perles du Golfe Persique. Les pêcherics,qui sont bien
antérieuresau développement d'Etatsdans la région duGolfe, sont régies par des
coutumes et des usages immémoriaux. Le principe fondamental de ces coutumes et
usages est que les bancs de perles sont ouverts égalementà tous les peuples riverains,
étant entenduqueles méthodeset les normes traditionnelles serontobser~ées"~'~.
A whole seriesof legal consequances flowsfiom this principle of commonownership
of the pearling banks by the tribes and sheikhs, the most significantof which, undemining
each pointof Bahrainuspositioninthe present dispute,willbe recalledhere.
(ii) Consequences of the principleof exclusivecomrnono~vnershipof thepearlingbanks
and pearlfisheriesby thetribesand sheikhs ontheArabianside of the Gulf
8.80 The first and most obvious consequence of the principle of exclusive common
property is that no single tribe or sheikh ownedor exercised exclusiverights over any of the
pearling banks lying off the western coasts of the Gulf. Thus, ina letter which has already
been mentianed above, sent on 30June 1904to the Under-Secretaryof State at the Foreign
Officeby a mernberof the India Office,Mr. A. Godley,it is statedthat, althoughit is true that
there is a "legal right of the tribesatmonopoly", "no tribe has exerciseda right excluding
the other tribes frorn any part of theJi~her~"S ~im~iarly, Sir Rupert Bay, the Political
Resident in Bahrain, formally statedin a letter of 21 February 1948to the Secretary of State
for Commonwealth Relations that: "Bahrain and Kuwait have no exclusive rights in any
banksM2"P . rofessor Waldockwasjust as direct when he statedin his opinion of 16February
1954, on "theSea-Bed Boundary between Bahrain and Saudi Arabia", that "the historical
evidence ..establishes beyond question that the fisheries on the great pearl banlrswere not
215See, QM,AnnexlV.323, Vol. 13,p. 269, at pp.272-273.
2'6QM, Annex IV.20,Vol.9,p. 91atp.94;emphasisadded.
217QM,AnnexIV.122,Vol. 10,p. 103.from a legal point of view appropriated toparticular tribes but were open to al1the tribes",
concludingthat "Bahraincannot,therefore,contend that as against Saudi Arabiashe formcrly
possessed an exclusive legal right to the pearl banksof the North Jarim AreaH218 A.nd in a
minute of 17Febmary 1954entitled "Fasht Bu Sa'afa",commenting on Professor Waldock's
opinion,Mr. Ewart-Biggs,amemberof the Foreign Office, reiteratedthat:
"...pearl fishing rightsinthe Persian Gulf are known to be communal and ..no one
Stateor tribe canclaim exclusive rightsin anyarea.There thus seemsno possibility of
establishinganythingof the natureof property rightsor sovereigntyon the basis ofthis
'occupation'of the Fasht bu Sa'afaby Bahrainipearl fi~hers"~".
This is in factwhat Bahrainitself admittedin its 1961Memorandumwith respect to
the "principalshoals in the areaNorth andNorth East of Qatarwhich the Ruler is claiiningto
constitute the Bahrain pearl bank~"~~' ,hen it explicitly declared that "it is not alleged that
Bahrain has exercised exclusive user or exclusive control over the pearl banks now
~laimed"~~'I.n these circumstances, Qatar finds it difficult to understand how Bahrain can
now claim that it "hasoccupiedthe pearlingbank~"~~~.
8.81 The second consequence, which is just as inherent in the principle of exclusive
common property, is that al1the sheikhs'subjects have the right to fish on al1the pearling
banks lying on the Arabian side of the GUI^^ ^atar must stress in this regard that Bahrain
has admitted that "under the traditional, customary law of the Gulf, neighbouring tribes
apparently had the rightto fish for pearl~"~~~ a,d that it has provided no evidence for the
restrictive condition that it attaches this rule, according to which it applied "if their own
Rulerwas onterms of amity withthe Rulerwhosebanksthey ~ere"~~'.
'18QM,AnnexIV.206,Vol. 11,p.67,atp.75.
""M, Annex IV.207 Vol.11,p.149.
220Sm, para8.7,above;QM, Annex IV.254,Vol. 12,p. 17,atp. 36.
"' Jhid.,at p. 37.
222BM,para.642.
223See,citationsinparas.8.78-8above.
224BM,para.643.
225Ibid.8.82 The third consequence of the principle of exclusive common property is that al1 the
sheikhsand, in their name, the British Government,had the right to protect the Arab pearling
bds against any intrusion by foreign fishermen.The letter of 10March 1904 from several
members ofthe Governmentof Indiato the Secretary of State forIndia gives a whole scries of
examples showing that between 1863 and 1903 the authorities "intervened to prevent the
intrusion of foreigners", whether such foreigners were British, Indian or French226. More
recently, on 19June 1929, Barrett, the Political Resident in the Persian Gulf, selit the
following communicationtothe Consul-Generalof theUnited Statesin Baghdad:
"1do not advise any firm of whatever nationality to send a pearl fishing ship to the
Persian Gulf. The fisheries have been conducted from time immemorial by the
inhabitants of the Gulf Coasts according to the ancient usages. Any interference by
outsiders with theirpreserveswould undoubtedlybe strenuously resisted by the Arabs,
and must be attendedby very considerableri~k"~~'.
In a letter of 6June 1940 to the Admiralty, concerning a draft regulation for thc
protection of Arab pearling banks against foreignexploitation, Gibson, a member of the India
Office, surnmarisedthe practice in this respect in terms which must be cited: "..thepearling
hankrare the exclusiveproperw of aEltheArab Sheikhsand... the joint righl of thelatter lu
excludeoutsiders is also a rightenjoyadby each of them indepe~dently..."~'~ I.n its Mernorial
Bahrain gives a false pictureof the customaryrégimeof pearl fisheries on the Arabianside of
the Gulf when it states that "al2vessels, irrespective of nationality or place of registratioil,
were subject to the jurisdiction of Bahrain whilst on the Banks"229w : hile it is true that the
Ruler of Bahrain could exclude foreign fishermen from the pearling banks off the Arabian
Coast,it is equally truc that the other Rulers in the region, including the Ruler of Qatar, had
similar powers. This was not an exclusive right of jurisdiction reserved for the Rulcr of
22"~, AnnexIV.19,Vol.9, p. 85,atp. 88.
227QM, AnnexIV.27,Vol.9, p. 125.
228QM, AnnexIV.62,Vol.9, p. 305;emphasisadded.
229BM,para. 643;ernphasiinoriginal.Bahrain alone, but a joint right of jurisdiction belonging to al1the Rulers in the area, which
could be exercised by each of them. Qatar's rights to protect the Arabpeariing banks against
anyforeignintrusionwereno lessthanthoseof Bahrain.
8.83 The fourth consequence of the principle of exclusive comman property was that no
sheikhhadthe right to grant concessions over the pearlingbanksto third parties230B. aiu-ainof
course cannotdisputethe existence ofthis practice,which was an unchangingfactorof British
policy in the Gulf, but it considers it as a consequence of what it claims to be Bahrain's
sovereignlyover the pearling banksZ3lQ . atar disputes this view since, as the correspondence
just cited demonstrates,the reasonwhythe sheikhsdid not havethe right to grantconcessions
overthe pearling bankswaspreciselythat the banksweretheir exclusivecommonproperty.
8.84 The fifi and final consequence that maybe drawn from the principle of exclusive
common property is the absenceof anydelimitationofthe pearlingbanks between thevarious
tribes. Thus, Colonel A. B. Kemball,then British Residentin Turkish Arabia, who had been
consulted "as regards the extent and ownership of the banks", noted on 15June 1863 that
"strictly speaking,no boundaries,as comprisingor defmingterritorial rights, can be assigned
to the pearl bank~"~'~ S imilarly,in the above-mentionedletter of 10March 1904fromseveral
members ofthe Governmentof Indiato the Secretaryof State for India, it is statedthat "there
are no dejnife inter-triballimits",even though "the external boundaries of the fisheries are
well kn~wn"~~T ~h. ese statementsare incompatiblewith Bahrain'sclaim to exerciseexclusive
jurisdiction and controloverthe pearlingbanks2".
270See,QM,AnnexesIV.19,IV.24andIV.44,Vol. 9,p. 85,p. 111and p.213.
231
BM,para. 642.
232QM,AnnexIV.4,Vol.9, p. 15.
233QM,Annex IV.19,Vol.9,p. 85;emphasisadded.
23%ahrain also claims that: "theRulerof Bahrain levieda tax on vesselsfishing for pearls from the early 19"
Century,justified by the need to maintain armed vessels on the pearling banksto protect the vessels fishing
there"(BM,para.643).Tojustifj this assertion,itrefersto atext fromLorimer(BM,Annex 83, Vol.3, p. 5061,
whichhas also been citeby Qatar (QM, AnnexIV.307,Vol. 13,p. 171,at p. 174),and whichruns counterto
this view. Indeed,it is stated therethai "The chiefs of the Arab littoralderive revenue fromthe pearl fisheries,
but onlyby meansof mes imposedontheir ownsubjectsoronpersonsresidentintheir respectivejurisdictions"
and Lorimercites in supportof this statementnot onlythe case ofthe Sheikhof Bahrain,but also "thechiefs of
Trucial Oman", evenspecifyingthat "the systemof taxation was maintained bothby the Shaikhof Bahrain and
by theother Arab chiefs".Jtmay beadded thainits AnnexBahrainhas not providedp. 2240of Lorimer's text,
(QM, Annex 1V.307,Vol. 13,p. 173)which statesthat: "On the Arabiansialthe banks, whether nearto or
far fromthe Coast,are free to thepearl fishersof Arabiaand Persia without distinctionof race or nationality".It8.85 In the light ofthe foregoing,and having regardto the cuslom followed in the region,
Bahrain's claimthat it is entitled to exercise rightsoverthe pearlingbanksthat it claimsinthe
northem sector, tothe exclusionof the othertribes and sheikhsin the Gulf and in particularof
the Sheikh of Qatar, must surely be regarded as manifestly unfounded. Indeed, this was
always the position taken by the British. It suffices to recall in this regard that, in a
confidential Memorandum dated 17May 1962, concerning the "BahrainIQatar Seabcd
Boundary",Mr. A.R.Walmsley,of the Foreign Office,commentedas foliowsupon Bahrain's
position as set forthin the RulerofBahrain'sMemorandumof 1961 :
"The claim embodiedin the memorandumis extremely far reaching ...The claim as it
stands is quite untenable, beingbased on the assumptionthat ancient rights overpearl
banksconferthe right to sovereigntyover the~eabed"~~~.
And, as we know, a few days later, by letter of 5 June 1962, the Foreign Office
dismissedBahrain'sclaimin finalter~ns~~~.
3. Bahrain's alleged historic rightsto pearlingbanks are not special or relevant
circumstances
8.86 Bahrain cannot claim, as it attempts to do237t,hat its so-called historic rights ta the
banks in questionallow it to drawconsequences fromthemwith respect to delimitation of the
maritime areas in question. When in 1961 Bahrain claimed sovereignty overthese pearling
banks, it asserted that in order to make the delimitation with Qatar, Article 6 of the 1958
Conventionon the continentalshelfhad to be applied,andthat it shouldbe consideredthat its
historicrights to such banks werea "special circumstance" within themeaning of that article,
justifying a significant adjustment of the equidistance line in its fav~u?'~.Bahrain now
appears to be assimilatingthe concept of "special circumstances" under Article 6 of the 1958
may be noted that a more recent author, J.B.Kelly, referring to the caseo,as stressedthat:"Pearling
in thewaters off Qatar and the TrucialCoast is toeall, but the shaikhs usually collecta petaxifrom
theirownsubjects",QM,AnnexIV.304,Vol. 13,p. 155,at p. 158.
235QM,Annex IV.242,Vol. 11,p.391, atp. 393.
236QM,AnnexIV.245,Vol. 11,p. 411.
237BM,para.651; see,also,BM,para.653.
23gQM,AnnexIV.254,Vol. 12,p. 17atpp.22-23;see,also,ibid.,pp.24-25andpp.27-40.Convention on the continental shelf to the concept of "relevant circumstances" under
customary international law, relying on the Court'sjudgment of 14June 1993 in the Jan
Mayencase239.
8.87 In any event, in both its 1961Memorandumand its 1996Memorial,Bahrain raisedthe
problem of the relationship between delimitation of the continental shelf and its supcrjacent
maritime areas, on the one hand, and, on the other hand, rights to pearl fisheries,which fa11
into the category of sedentary fisheries within the meaning of Article4, paragraph2 of the
1958Convention onthe continentalshelf andArticle77, paragraph2, of the 1982Convention
on the Law of the Sea. In its Memorial, Qatarhas already shown that Bahrain, in its 1961
Memorandum, misinterpretedthe system establishedunderthe 1958C~nvention~~'.
a) TheRuler of Bahrain's argument,in his 1961Memorandum, that "Bahrain's historic
rights to the pearlingbanks"were a "special circumstance"within the meaning of
Article 6 of the 1958Conventiononthe continentalshelf
8.88 This argument was always rejected by the British authorities from 1960 onward~~~'.
Furthemore, the theory of "Bahrain's historic rights to the pearling banks" as a "special
circumstance"is undermined by the maritime delimitationagreements that Bahrainhas itself
concluded and by State practice. The fact that in the present case Bahrain considers that its
alleged historicrights to pearling banks are a special or relevant circumstancejustieing an
adjustmentof the equidistanceline in its favour is al1the more surprising in that the practice
followedby Bahrain in maritime delimitationruns counter to this theory. Indeed, in the two
agreements that Bahrain has concluded for delimitation of its continental shelf, with Saudi
Arabia in 1958242andwith Iran in 1971,its supposedhistoric rights to pearl fisherieswere not
taken into account in order to adjust in any way in its favour the course of the equidistance
Iine.
240BM, para.650.
Sec,QM,paras.10.34, elseq.; QM,Appendix4, Vol.15,p. 111,atpp.121-123.
24'Sec,ibid sec,also,QM, Annexes IV.229,IV.231,IV.242andIV.244,Vol. 11,pp.335, 343, 391 and405.
242Sec,QM,Appendix4, Vol. 15,p. 1 11,atp. 123.8.89 During the negotiations with Saudi Arabia which led to the conclusion of the
agreementof 22 February 1958243B , ahrain sought torely heavily on its alleged historic rights
to the pearling banks lying to the west and, above all, to the north-west ofits territory. Ils
claiins were put forward in the documents annexed to the letter of 21 March 1951 from
Belgraveto Mr. C.D. Pelly,the Political Agentin Bahrain,in particular in the very extensive
list of "divingand fishingbanks claimedby Bahrain west of the median linebetweenthe low-
water limits of Bahrain and SaudiArabk~"'~~ A. transpositionof the dividing line establishcd
by the agreement of 22February 1958on to the map attached to Bahrain'sletler of 1951245
quiteclearlyshowsthat Bahrainobtainedmuch lessthan it wasclaiming,and thatthe pearling
banks were not a special circumstancerequiring an adjustmentof the equidistance linein its
favour.1% appearsthat it was not the pearlingbanksthat were at the hem of the negotiations,
but rather the Bu Saafa oilfield, situated withinthe "Fasht bu Saafa Hexagon", which was
placed wholly under thejurisdiction ofSaudi Arabia, but in which Bahrain obtainedthc right
to half of the oil res~urces~~~.
8.90 It appearsthat the pearling banks had no effect in the determinationof the course of
the continental shelf delimitation line between Bahraiil and Iran, as laid down by the
agreementof 17June 1971 247.Indeed, if reference is made to the pearlingbanks lying off the
north and north-east of Bahrain such as Shutayah,Hayr Ath Thama and Fasht Naywah (Al
Amari),the conclusionis unavoidablethat these banks were in no way taken into account for
the drawing of the dividing line, eitheras basepoints for the median line or as a special
circumstanceallowing the adjustment, to Bahrain'sadvantage, of the course of the inedian
line. Therefore, in the Bahrainhran agreement of 1971,Bahrain'salleged historic rights to
pearling baiiks were not accepted as a special circumstance justifying an adjustment of the
course of the median linein favourof Bahrain.
243
QM, AnnexIV.216,Vol. 11p. 235.
244QM, Annex 1V.190,Vol. 10,p.457,ascompletedby QCMAnnexIV.8,Vol.4, p.63, atp.69.
245Ses,MapNo. IO,facingthispage.
246QM,AnnexIV.216,Vol. 11,p.235;Charney & Alexander,op. cif., VTIp,p. 1489-1497.
247QM, AnnexIV.264,Vol. 12,p. 111;Charney& Alexander,op.cit., Vol. II,pp. 1481-1488.8.91 Claims to historic rights to pearling banksseem never to have been considered, in
themselves, as special circurnstances leading toan adjustmentof the equidistance linein the
other continentalshelf delimitationsthat have been effectedin the Gulf. This is the case, in
particular, of the agreement betweenSharjah and Umm Al Qaywayn, signed in 1964248t,he
agreement between Abu Dhabi and Dubai signed on 18February 1968249 t,e agreement
between Iran and Saudi Arabia signed on 24October 1968250t,he agreement between Qatar
and Iran signed on 20 September 1969*~' t, e agreement between Iran and the United Arab
Emirates (Dubai) signed on 3 1August 197425a 2nd the arbitral award renderedon 19October
1981in the DubaiISharjahcase2".
b)Bahrain'sargumentthat "Bahrain'shistoricrights to thepearling banks"are special
or relevant circumstances withinthe meaningof custornaryinternationallaw
8.92 Bahrainrightly argues -andthus in this respect agreesat least in principlewith Qatar's
viedS4 - that the determination of a single maritime boundary in the northern sector "is
248Charney & Alexander,op. cil.,Vol. II, pp. 1549-1554.
"' Ibid., pp. 1475-1480.
250QM, Annex IV.258,Vol. 12,p. 1;Charney & Alexander,opcil., Vol. II,pp. 1519-1532.
25'QM, AnnexIV.260,Vol. 12, p.81;Charney & Alexander,op.cit., Vol.II,pp. 1-1517.
252QCM, Annex IV.21,Vol.4, p. 135;Charney& Alexander,opcil., Vol.11,pp. 1533-1539.
253QM, Annex 111.295,Vol. 8, p. 475, at p. 477; Charney& Alexander, op.cit., Vol. II, pp. 1499-1502.
Moreover, itsccrnsthat outsidethe Gulf,historic rights to sedentary fisheries haeot beentaken into
account as special or relevant circumstancesinr to adjust the courseof the dividing line.Thus, the State
Department Geographer remarked, concerninghe agreement of 26 and 28 June 1974 betweenIndia and Sri
Lanka "onthe boundaryinhistoric watersof PalkBay", that "the delimitation refiects a selective,i,e.modified,
applicationofheprincipleof equidistance.As noted,the maritime boundarydividesthe historic watersandthe
seabed of PalkBay. TraditionalMing rights of both parties,however, arepreserved" (QCM, Annex IV.17,
Vol.4, p. 13, ap. 121;Chamey & Alexander,op.ciV tol. II, pp. 1409-1417).Similarly,a commentatoronthe
agreementof 23 March 1976betweenlndia andSri Lankain the Gulfof Manaarandthe Bay ofBengaland the
attachedexchange of letters (QCM,Annex IV.23, Vol. 4, p. 153; Charney& Alexander, op.&., Vol. II,
pp. 1419-1430) stated that:"In the case of the India-Sri Lanka boundary in the Gulf of Manaar and Bay of
Bengal,Sri Lankan claimsof historicfishingrights in WedgeBankdid not alter the location ofthe line, but did
result in agreement on respectfor Sri Lankan fishing rights for threed a Sri Lankan rightto purchase
fish thereafter"(Oxman, op. cQ,CM, Annex IV.51, Vol. 4, p. 397).But in any event,the historic rights of
fishermen from Sri Lanka did not concern sedentary fisheries. As forthe agreement of 18December 1978
between Australia and Papua-NewGuinea, in particular in the area of the Torres(H.rBurmester, "The
Torres Strait Treaty: Ocean Boundary Delimitationby Agreement",AmericaJournalof InternationalLaw,
Vol. 76, 1982, pp. 321-349; Chamey& Alexander, op.CH. ,ol. 1, pp.929-975), whilittook account of
traditional fisheriesin establishing a "Protected Zone" andmaking a plurilinear delimitation, like theabove-
mentioned agreement of23 March 1976betweenIndiaandSriLanka,it did notconcemsedentary fîsheries.
254sec ,aras. 8.14-8.15,above.governed by the rules of customary internationallaw"255I.t also argues, rightly, that such rules
have been expressed "in State practice, in the decisions of the Court and of international
arbitral tribunals, and in provisions of international conventions which reflect the state of
customary international la^"^^' .et when it contends that the course of the maritime
bomidary in the northern sector must take into account, as special or relevant circurnstances,
Bahrain's historic rights to the pearling banks lying to the north and north-west of Qatar,
"which have appertained to Bahrain since time imrnem~rial"~~'B , ahrain is going against not
only State practice, as has just been seen, but also against the jurispr~dence~~~ .his may be
seen from the LibydTunisia case and also fromthe GuifofMainecase.
8.93 In the Libya/Tuni csase, Tunisia attributed a central role to its claim of historic
rights, in particular with respect to sedentary fisheries, referring to the exploitation off its
coastiine, to depths of up to 50rnetres, of sedentary species such as ~ponges~'~ A. ccording to
Tunisia, such fisheries were evidence of a natural prolongation of its territory under the sca.
Consequently, "the delimitation of the continental shelf between itself and Libya must not
encroach at any point upon the area within which Tunisia possesses such historic rightsH2".
Libya contested this theory, rejecting the possibility of excluding certain areas of the sea-bed
and considering that "in so far as the area claimed might overlap withthe natural prolongation
of Libya's land territory, a fishing practice of one State cannot in principle prevail over the
inherent and ab initio rights of another State in respect of its natural prolongati~n"~~'Y . et in
255BM,para.649.
256
257BM,para. 563.
BM,paras. 638 and 651.
258Codification conventionsare rather silent on the proofesedentary fisheriesand more generally on the
quesiion of historic title and its role in maritime delimitation. The only pseally to be foutid iri this
respect are Article 12, paragraph 1 of the 1958 Convention on the territorial sea and contiguous zone and
Article15ofthe 1982 Conventiononthe Law of the Seawhich,withrespect to the delimitationofthc territorial
sea, rules out applicationof the equidistance methodin caseswhere, "by reasonof historic titleor other special
circumstances",it is necessary to delimit the territorial sea between two States in another manner. But these
provisionsareinapplicableto the delimitationofmaritimeareasoutsideterritorial waters.
259See, the commentariesby E. Decaux, QCM, Annex 1V.39,Vol. 4,p. 333; E. Zoller, QCM, Annex IV.61,
Vol. 4, p. 471; M.Feldman,QCM, Annex IV.42, Vol. 4, p. 347, and Chamey& Alexander, op. cit.Vol. II,
pp. 1663-1680,atpp. 1667-1668.
260I.C.JReports 1982,p.72, para.98.
261Ibid.itsjudgment of 24 February 1982the Court rejected Tunisia'sposition, in the seiisethat it did
not include historic rightsto sedentaryfisheries amongthe relevantcircumstancesthat wereto
betaken into accountin that case in orderto achieveanequitabledelimitation.
8.94 The Chamber in the Gulfof Mainecase adopted a similar solution, afterhaving been
requested by the Parties to draw a single maritime boundary for the continental shelf and
exclusivefishingzones. Inthat case,the course of the dividing line concerningthe part of the
delimitationarea lying outside the Gulf of Maine traversedareas, in particular in the Georges
Bank sector, where there was a heavy concentration of sedentary species, in particular
scallops,but also lob~ters~~T ~. e United Statestried to rely on its traditional fishing activities
in order to assert its exclusive rights in this se~tot.2~I~n. sum, as the Chamber remarked, the
United States' reasoningwas "somewhatakin to the invocation of historic rights, thoughthat
expressionhas not been ~sed''~~an~dfromthe Americanpoint of view thesetraditionalfishing
activitieswereto "beregardedas a major relevantcircumstanceforthepurpose of reachingan
equitable solution to the delimitationpr~blern"~~'T .he Chamber decided to reject the United
States'position and "not to ascribe anydecisiveweight, forthe purposesof the delimitation it
is chargedto carry out,to the antiquityor continuityof fishingactivitiescarriedon in the past
within that part of the delimitation area which lies outside the closing line of the It
also held that "the respective scaleof activities connectedwith fishing ..cannot be taken into
account as a relevant circurnstanceor, if the term is preferred, as an equitable criterionto be
appliedin detemining the delimitation lin^"*^'.
262See,QM,paras.12.54, al seg.
2h31.C-J.Reports 1984, p.340, para.233; see, also, D.M. McRae,"TheGulf of Maine Case:The Written
Proccedings" ,n TheCunadianYearbookof InternationalLaw, 1983, Vol. XXI, QCM, AnnexIV.50, Vol. 4,
p.393.
2641CC..R.eports 1984, pp.340-341,para.233.
2" Zbid.,p. 341,para.233.
'" hbid.,p.341,para.235.
267
Ibid., p. 342,para.237. Section 5.Qatar'slinein the northern sectorleads to an equitable result
8.95 Qatar has shown in its Memorial that in order to achieve an equitable delimitation of
the maritime areas in the northern sector, a single line should be drawn for the continental
shelf and fishing zones, linking points N,NSLB, BLV and 2 (2B)268M . ore precisely, point N,
wliose geographical coordinates are 50°48'31"East and 26"15'02"North is situated at the
intersection otwo lines: the closing linebetween pointRK and MQ,being the southern limit
of the delimitation area in the northern sector, and segment L-NSLB of the line defined in the
Britishdecision of 23 December 1947263P .oints NSLB (50°49'4 Ea8"tand 26"21t24"North)
and BLV (50'57'3 0ast and 26"33'35"North) are two turning points on the 1947lir~e~~'.
There remains the end point put forward by Qatar, ive.point 2(2B), whose geographical
coordinates are 51O05'54"East and 27"02'47"North andwhich is one of the points defined in
the delimitation agreementof 17June 1971between Bahrain andIran2".
8.96 The line submitted by Qatar to the Courtconsists of two sections.The first, N, NSLB,
BLV is the part of the line defined in the British decision of 23 December 1947 in the area
beyond where the Parties have opposite coasts. BLV is a hinge-point on Qatar'sline in the
northern sector: it is both the end point of the 1947 line and the starting point of the second
section of Qatar'sline, and is thus a highly relevant circumstancefor the maritime deliinitation
between the Parties272A. s for the second section, BLV-2 (2B), this is a line perpendicular to
the closing line from RK to MQ, starting at BLV and slightly adjusted in Bahrain's favour
towards the east, sa that the end point of the dividing line in the northern sector point 2
(2B) of the 1971agreement between Bahxainand Iran. That point 2 (2B) is a reference point
that is particularly significant in the maritime delimitations in the area, since it is a point
268QM,Map21, Vol. 17.
269
270QM, paras.12.6212.63.
QM, paras. 12.5and 12.62.
271QM, paras. 12.64and 12.72.The geographical coordinatesof pointsNSLB, BLVand 2 (2B)are specified in
thcSubmissions containeinQatar'sMemorial (QM, p. 307, and Map 24, Vol. 17) and in PartV, below and
QCM,Mup NO.12,facingp. 303.
272
QM,paras. 12.5and 12.62. 50' APPLICATION OF MODlFlED
PERPENDICULARITY IN THE
NORTHERN SECTOR
-27' Mercalor Projection
40'.
Scale:1 :1,054,000
accuraleal2b"N Iallludc
Kilometirs
irxryil(imiiihl4 N?(II haNo$.6242462534 6255Oandw~ iVa,tll~,~l
1%7n2886.
Pmpn-fhy.li~n9yr@mrG!ohICurpn1lo19!9t7,.
\
\
MAP No 11which is practically equidistantfiom the coastsof Qatar,Iran and Bahrain and could serve as
a t~-i~oint~~T ?. e adjusted perpendicularity method which, as Qatar has stressed in its
Memorial, is derived from the same rationale as the equidistancerneth~d~'~ h,as been applied
inthe presentcaseas follows,as illustrated onMapNo. II, facing thispage. The first stageof
its implernentation, which is the starting point of the strict perpendicuiar through BLV, is
point R (50'52'28" Eastand 26'14'12"North) on the closing line fromRKto MQ, the R-BLV
segment forminga 90" anglewith lineRK-MQ;the end pointof this strict perpendicularline
is point S (51'05'12''East and 27O03'0.4N "orth) on the lirnit defined by the 1971agreement
betweenBahrainand Iran2".Thus,the secondstage of implementationof the perpendicularity
method is to shift eastwards the end point of Qatar's line from S to point 2 (2B), both for
reasons of simplicity and because the two points are so close together. The foot of the line
from 2 (2B) to BLV on the closing line fromRKto MQ is therefore shifted slightly towards
the west, frompoint R to point T (50'51'59'' East and 26'14'18" North). As may be seen from
Map No. II facing this page, and as noted in Qatar'sMernorial, "The shifting effect - 800
metres at the startingpoint ofthe construction(R-T) and 1300metresat its end point(S-2B) -
is practically negligibleat the scaleof the construction"276.
8.97 In its Memorial Qatar concluded the discussion of the maritime delimitation in the
northern sectorby stressingthat the extensionof the 1947line from BLVto 2 (2B) wasboth a
technicaily simple and a legally appropriate line, insofar as it resulted in a reasonable and
equitable delimitation2".Qatar would likebriefly to recall,in closing the present discussion,
that the lineof maritimedelimitationbasedon the adjustedperpendicularity methodthat it has
273QM,paras. 12.41, 12.64,notes 153and 154,and 12.72.
274QM, paras. 12.44,et seqIn fact the perpendicularity methodis simplya variant ofthe equidistance method.
60th the doctrine and thejurispruden(see,in particular,the Gulfof Mainecase,I.C.J. Repor1964, p.329,
para.200) considerthat these two delimitationmethods are basedon the samephilosophy,any line equidistant
from two pointsbeing by definitioaline perpendicular tothe straight line linkingthose twopoints. Moreover,
asnotedabove(para.8.42),Qatardoesnot dispute thatit might be possibleto have recourseto the equidistance
method in orderto achievea reasonableand equitable delimitationin the northernsector,just as inthe southem
sector(see,paras.7.28,et seq.,above).Itcannot be forgotten that this method of delimitationhas playad
considerable role in the area (see, the Boggs-Kennedy reportof 16December 1948, QM, Annex IV.127,
Vol. 10,p. 123,andthe conventionalpracticeintheregion).
275QM, para.12.64and QM,Map20, Vol. 17.
276QM, para. 12.64and QM,Maps20and21, Vol. 17.
277
QM, paras.12.64and 12.72.submitted to theCourt with respectto the northern sector,Iinkingpoints N, NSLB, BLV and
2(2B),is in confonnity with the customary internationallawthat is applicableto operationsof
maritimedelimitationandthat the equitablenatureof that line may be verified aposteriori by
applyingthe test of proportionality,
A. Qatar'sline is in conforrnitywith customary internationallaw
8.98 The line presentedto the Courtby Qataris in conforrnitywith customary international
law. It results from a strict application ofthe "fundamentalnorm" of maritime delimitation
accordingto whichthe dividingline mustbe drawnon the basis of equitableprinciples,taking
intoconsiderational1the relevant circumstances,in orderto achieveanequitableresult2".
8.99 In this respect reference must be made to the Court'sJudgment of 3June 1985in the
LibydMalta case.Afterhavingnoted "thenormative characterof equitableprinciples" insofar
as, inparticular,they "gove m... delimitationby adjudication",the Court mentioned severalof
the most well-known andsignificant of such principles, which it formulated "in terms of
general appli~ation"~~' Q.atar has applied these principles to the line that it has submitted to
the Courtfor the northern sector.It has taken into account al1the relevant circumstances, i.e.
the factual elements,particularlythose of a geographicalnature which objectively characterise
the situationin the area tobe delimited,and it complieswith equitableprinciples,thus leading
to a reasonable delimitation.Qatar'sline complies strictlywith two of the most fundamental
equitable principles identifiedby the Court in the Libya/Malta case, namely the principle of
non-encroachmentandthe principle that"equitydoesnot necessarily imply equality".
1. Compliance with theprinciplcof non-encroachment
8.100 A first example of Qatar'scompliancewith equitable principles is that the N, NSLB,
BLV, 2(2B) line, unlike Bahrain'slineZa0i,s scrupulously observant of the principle of non-
encroachment. Qatar's linetakes into accountBahrain'smaritime projection,and does not in
278See, QM,paras.12.14-12.15,andpara.8.14,above.
279See,1.C.J:Report1985, pp.39-40, par46.
280See,paras.8.34etseq.,above.any way trespass upon its natural prolongation. It allows Bahrain fully to enjoy its rights, in
accordance with international law, on its continental shelf and in its fishing zones along its
coastline, in the maritime areasstretching north and north-east upto the maritime boundary
resulting fiom the 1971agreementbetweenBahrainand Iran.
2. Cornpliancewith theprinciplethat "equitydoesnot necessarilyimply equality"
8.101 As contendedby Qatarin its Memoria12",Qatar'sline complieswith the principlethat
"equity does not necessarily implyeq~ality"~'~U . nlike Bahrain'sline which, contraryto this
equitableprinciple,cornpletelydisregards the inequalitiesof naturein the maritimeareasto be
delimited, Qatar'sline is a reasonablereflectionof the configurationof the Parties' coastsand,
above all, of the disparity or disproportionin the lengths of their respective coastal fronts2s3.
First, Bahrain's eastern coast, measured in accordance with its general direction from AI
Muharraqto Ras al Barr, and disregardingislands, islets and low-tideelevations,corresponds
to a straightcoastal front whichis about 55.5kilometres(or 29.9 nauticalmiles) long. Second,
Qatar's relevantwestern coast, rneasured in accordance with the same parameters from the
northern extremityof the peninsulato Rasa1Uwaynat,forms a straight coastalfront which is
approximately 88.2kilometres (or 47.6 nautical miles) long.As a resutt, the proportionality
ratio is1.59to 1in favourof ~atar*'~.
8.102 The disparity in the respective lengthsof the Parties' relevantcoasts appearsto be one
of the most, if not the most, striking characteristicsof the geographical relationship between
Qatar and Bahrain. To disregard it in this case, as Bahrain does, is inconsistent with
customary international law as reflected in the case law. Qatar has therefore taken it into
consideration in constructing the dividing line that it proposes to the Court in the northern
sector, in order to reach anequitableresult. As the Court stressedin its Judgment of 14June
1993 in the L)enmarWNorwuc yase:
28'See,QM,paras.12.26,et seq.
2821.C.J.Reports 1969,p. 49,para.1;I.C.J.Reports1985p ,.39,para.46.
283QM,paras. 12.26, et seq.
284Sce,QM, Appendix6, Vol. 15, p. 143. "The frequent references in the case-law to the idea of proportionality - or
disproportion - confirm the importance of the proposition that an equitable
delimitationmust, in such circumstances,take into account the disparity between the
respective coastal lengths ofthe relevant~~rea"~''.
In a word, Qatar'sline,unlikeBahrain's,does notrefashion geographyornature.
B. The aposterioriverification of the equitable nature of Qatar'sline, bythe test of
proportionaliîy
8.103 Inits Mernorial,Qatarverifiedthe equitablenature ofthe line that it was submittingto
the Court in the northern sector, by means of the proportionality test. In other words, while
stressingthe disproportionbetweenthe respective lengthsofthe Parties'coa~ts~~ andrecalling
the impoi-tantrole played by proportionality in the internationaljurisprudel~ce~~Q ~,atar has
never suggested dividing the relevant delimitation area in proportion to the lengths of the
Parties'coasts. It has used the idea of proportionalityas an a posteriori test of the equitable
nature of the delimitation, once such delimitation has been made"'. For Qatar, this idea is
therefore, as the Chamberremarkedin the GuIfof Mainecase, "ameans of checking whether
a provisionaldelimitationestablished initiallyonthe basisof other criteria,andby the use of a
method whichhas nothingto dowiththat concept,can or cannotbe considered satisfactoryin
relation to certain geographical featuresof the specific case"'89.Consequently,in the present
case, where the delimitationare&linking points RK, MQ, WB, 4, 3, 2(2B), 2(2Q), WQ and
RK foms a polygon of a total surface area of about 5215.11square kil~rnetres~~',
proportionality allows a verification of the equitable nature of Qatar'sline in the northern
sector, i.ethe equitable natureof the line which,frompoint N, followsthe courseof the 1947
line up to point BLV and extends it dong the BLV-2 (SB) segment on the basis of the
adjusted perpendicularity method. This verîfication may be made by rneans of a
285I,C.J.Report#1993, p.67, pa65.
286QM,paras. 12.30,etseq.:see, also!pa8.101,above.
287QM, paras. 12.33etseq.
288QM, paras.12.65,etseq.
289Z.C.J. eporfs2984p,.323,para. 185.
290QM,paras. 12.66,etseq.QM,Map 22, Vol. 17.proportionality test. As Qatar has alreadyindicated in its Memoria12"and as will be briefly
recalled here, it may be made withregard to the relationship between the lengths of the
Parties'relevant coastal fronts andthe surface areaof themaritimeareasattributedto them.
8.104 The equitable nature of Qatar'slinc linking, in the northern sector, pointsN, NSLB,
BLV and 2(2B) has already been verified inthe light of the relationship betweenthe lengths
of the Parties' relevant coastsand the surface areaof the maritime areas attributed to eachof
them in the above-mentioned delimitation areaZg2I.ndeed, on the basis of that delimitation
area, the surface areaof the maritimeareas Iyingto the east ofthe N, NSLB,BLV, 2(2B) line
and attributed to Qatar is approximately 2,978.60 square kilometres,and the surface areaof
the maritime areas lying to the Westof that line and attributedto Bahrain is about 2,336.51
square kilometres.The ratio of the surfaceareas is thus 1.68to 1 in favour of Qatar, which
means that it is not far removedfromthe ratio of coastal lengths whichis 1.59to 1 in favour
of Qatar293.
8.105 While, as Qatarhas acknowledged in its Mern~riaI~~t ~h,e two ratios are not strictly
idcntical, the differenceis only in the order of 6 %, which is not great in view of the scale of
the constmctionsand does not permit a conclusion thatQatar'sline is inequitable.The test of
equitablenessis indeed conclusiveinsofaras it may be seen that the BLV-2 (2B) segment of
the line put forward by Qatar is, so to speak, embraced between the BLV-S segment
correspondingto a strict applicationof the perpendicularitymethod and the BLV-EQ segment
correspondingto a strict applicationof proportionalityz9'. This proportionality testis in itseif
sufficientto demonstrate the equitablenature of Qatar's line in thenorthernsector.
291QM, paras. 12.70-12.71;QM,Map 23,Vol. 17.
293Ibid.
QM, para. 12.32,and para. 8.101,above.
294QM, para. 12.71.
295See,QM, Map 21, Vol. 17.PoinEQ, the end point ofthe dividingline establishedon the basis of theratio of
1.59to 1 between the lengths of the respective coasts is situated about 3000 metres to the east of point 2 (2B),
which is approximately 1270 metres east of point S, corresponding to the end point of the dividing line
establishedonthe basis ofa strictapplicationoftheperpendicularity method. - 300 -
Section6. Conclusion
8.106 For the maritime delimitationin the northern sector, Bahrainhas put hrward a line
which, as Qatar has demonstratedin this chapter, is contrary to customary internationallaw.
First,Bahrain ignoresthe geographicalfacts in the region.Its line takes account of neitherthe
configuration of the Parties' relevantcoasts nor thedisparity betweentheir respective coastal
lengths,and it encroachesuponthe naturalmaritimeprojection of theQatarpeninsulatowards
the north. Second,Bahrain'sconstructionof its equidistance lineis devoid of any legal basis.
It relies on Dibal, which is no more than a minor feature not forming part of Bahrain's
coàstline, and which is inappropriate for use as a basepoint for a maritime delimitation.
Finally, Bahrain's assertionthat its allegedhistoric rights to the pearling banks lying off the
north and north-westofthe Qatarpeninsulamay be specialorrelevant circumstancesallowing
an adjustment to its own advantage of the course of the equidistance Iine is wrong, and
conflictswith theinternationaljurisprudence, especiallysinceBahrain's claim thatit exercised
exclusive rights overthe banks concemedis contrary to the custom and usages of the region.
Consequently,the dividingline claimedby Bahrainin the northem sectorleadsto a result that
isrnanifestlyunreasonable and leadsto aninequitableresult.
8.107 By way of conttast, the line which Qatar cornmendsto the Court as the proper lineto
be adopted for the delimitation in the northem sector has been prepared on the basis that it
takes full account of the geographicd realities, including the configuration of the relevant
coasts of the Parties and the disparity betweenthe respective lengths of their coastal fronts. It
also satisfies fully the principle of non-encroachmentin the sense that it does not adversely
affect the natural maritime projectionof the Coastof either of the two Parties. By using
basepoints al1of which are situated on the main coasts of the Parties, and none of which is
located on off-shore features such as low-tide eievations, the course of Qatar'sIine does not
suffer from any distorting effect resulting frorn the use of minor geographical features.
Finally,Qatar'sline takes no accountof the pearl banks to which Bahrain has asserted claimsof sovereigiityor claimsof exclusivejurisdiction and control, for the reasons discussedearlier
in this Chapter. For al1these reasons, the dividing line proposed by Qatar in the northcrn
sector, being in itself reasonable and in accordance with equitable principles, leads to a11
equitableresuit in conformitywiththe requirementsof customaryinternationailaw. Mercalur Prujectiun
2h01111-'---
ïT'm N
Sprciallyprqarmi iurprewiiidiionIotlicIntcriiationaCoiiltJustice.
MAP No 12
- - 303-
PART V
SUBMISSIONS
In view of the above, the Stateof Qatar respectfully requeststhe Court, rejectingal1contrary
claimsand submissions:
1. To adjudgeand declarein accordancewith internationaliaw:
A.(1) Thatthe Stateof Qatarbas sovereigntyover theWawarislands;
(2) That Dibal and Qit'atJaradah shoals are low-tideelevations which arc under
Qatar's sovereignty;
B.(l) That the StateofBahrainhasno sovereigntyoverthe islandof Janan;
(2) Thatthe StateofBahrain hasno sovereigntyoverZubarah;
(3) That any claim by Bahrain concerning archipelagic baselines and areas for
fishing for pearls and swimming fish would be irrelevant for the purpose of
maritimedelimitationinthe presentcase;
II. To draw a single maritimeboundary between the maritime areas of sea-bed, subsoil
and superjacentwaters appertainingrespectivelyto the State of Qatarand the State of
Bahrain on the basis that the Hawar islands and the island of Janan appertain to the
State of Qatar and not to the State of Bahrain, that boundary starting from point 2 of
the delimitationagreement concludedbetween Bahrain and Iran in 1971 (1"05'54"E
and 27"02'47"N),thence proceedingin a southerlydirection up to BLV (50°57'30"E
and 26"33'35"N),then followingthe lineof the Britishdecisionof 23 December1947
up to NSLB (50°49'48"E and26021124"N)and up to point L (50°43'00"E and
25'47'27"N),thence proceedingto point S1 of the delimitationagreement concluded
by Bahrainand SaudiArabia in 1958 (50°31'45"Eand 25'35'38"N).The line claimed
by Qatar is illustratedonMapNo. 12, facingthis page.
(Signe4 Dr. Abdullahbin AbdulatifAl-Muslemani
Agent ofthe Stateof Qatar LIST OFMAPS
MapNo. 1. Hawar Island of Qatar. Location and Dwellings,17June 1876and Location of
Dwellings, 18June1883(Arabicversion and Translation)
MapNo. 2. The Myth of Bahrain'sMaritime Supremacy
MapNo. 3. Bahrain'sLocationofthe Principal PearlingBanks
MapNo. 4. MaritimeBoundary.Trinidadand Tobago-Venezuela(Westernpart)
MapNo. 5. Provisional EquidistanceLinPlotted fiom the High Water Lineon each Coast
intheSouthernSector
MapNo. 6. Adjustrnentofthe ProvisionalEquidistanceLine inthe SouthernSector
MapNo. 7. The Single Maritime Boundary Requesteby Qatarin the SouthernSector
MapNo. 8. OpposingMaritimeClaimsinthe Northern Sector
MapNo. 9. ClosedFishermen'sChannel
MapNo. 10. Map Attached to Belgrave'sLetter dated 21 March1951 together with the
Transposition of theLineof the Agreementof 22 February 1958
Map No. 11. Application ofModifiedPerpendicularityin the NorthernSector
Map No. 12. The SingleMaritime Boundary Requestedby Qatar LISTOF DOCUMENTARY ANNEXES
(Volume2)
PART II
11.1 Excerpts fiom a Note by Foreign SecretaryAitchison dated 28 July
1871,lslandsandMaritime Boundaries of the Gu% 1867-1899,Vol. 3,
ArchiveEditions, 1990, p.397 ....................................................I...
..............
11.2 Letter from First Assistant PWG to PRPG dated 16 August 1873
enclosing translation oa report and précis of a coiiversationbetween
FirstAssistantPRPGand SheikhEsawbin Ali CF_o7812444) ............................
11.3 Letter fromPRPG to FirstAssistantPRPGdated28August 1873...........................
11.4 "Memorandum on the separate Claims of Turkey and Persia to
Sovereignty over the Island of Bahrein",by E. Hertslet, Foreign Office,
23 Mach 1874,p. 1 ('F.O7812444) ..............................................13...........
....
11.5 Letter No. 3 from OfficiatingSecondAssistant PRPG to PRPG dated 8
March 1875enclosing letter fiom PRPGto Secretary toGovernent of
Indiadated3 April 1875(Fo 7812445) ......................................................................
11.6 Hawar Island of Qatar, location and dwellings, 17 June 1876 and
location of dwellings, 18 June 1883, Archivesof the Diwan Arniri of
the Stateof Qatar (TranslationandArabicversion) .................................3............
11.7 Excerpts from letter from First Assistant PRPG to the Government of
lndia dated 20 January 1879, Islandsand Maritime Boundariesof the
Gu& 1867-1899,Vol. 3,ArchiveEditions, 1990,pp. 440-444........................2.......
11.8 Letter from IO to FO dated 17 September 1879,Islands andMaritime
Boundaries oflhe Gu& 1867-1899, Vol.3, Archive Editions, 1990,pp.
11.9 Report on the Administration of the Persian Gulf Political Residency
and Muskat Political Agency for the Year 1879-80, Selections Fom
Recordsof the Government cf lndia, Foreign Department, No.CLXXI,
Calcutta, 1880,pp.4-9 (I.O.R.R/15/2/26) ...................................................................
II.1O Political Agent'sReportto Resident No. 187dated 20 December 1881
(I.O.R.Rf15/1/137)(copy of originaland transcription).............................................
Political Agent'sReport to Resident No. 193 dated 28 December1881
II.11
(I.O.R.R/15/1/137)(copyof originaland transcription) ................................ Letter from SeyedMahomed Roof Effendi (Mudirof Ojair and Agent
of the Mudir of Zubara)to CommanderPelly dated26 July 1895(lo,
78/5 110)(copyof originalandtranscription) .......................................6............
Letter fiom OfficiatingPRPG to Secretary tothe Governmentof India
dated 7 March 1902,Records of Qatar, Primary Documents1820-1960,
Vol. 4, 1896-1916, Archive Editions,1991,p. 42 ..................................7............
Letter fiom PAB to PRPGNo. 455 dated 23 December 1905, Records
of Qatar, Primary Documents 1820-1960,Vol. 4, 1896-1916, Archive
Editions, 1991,pp. 155-160 ......................................................75...
................
AdministrationReport of theBahrainPoliticalAgencyfor 1905-06,The
Persian Gu~Administration Reports (1873-1947),Vol. VI, 1905-19 11,
ArchiveEditions, 1986,pp. 78-85 .................................................83......
..............
"Katar News" Report dated 8 March 1906 (I.O.R. R/15/2/26) (copy of
originalandtranscription) ........................................................93.
...................
Administration Report of the Bahrain Political Agency for the Year
1906-1907,ThePersian GuEfAdministrafionReports (1873-1947),Vol.
VI, 1905-1911,Archive Editions,1986,pp. 66-73 ................................103.................
II18 Administration Report for Bahrain forthe Year 1909, Persian Gulf
Administration Reports (1873-1947), Vol. VI, 1905-1911, Archive
Editions, 1986,pp. 69-73 ........................................................11...
................
Letter fi-om IO to FO dated 26 May 1909, Islands and Maritime
Boundaries of the Gulf,1903-1924,Vol. 5, ArchiveEditions, 1990,pp.
233-234 .........................................-..................
...........121.....-......................
Telegrarnsfrom Secretary of State to Viceroy dated 13 October 1909,
Islands and Maritime Boundaries of the Gu& 1903-1924, Vol. 5,
ArchiveEditions, 1990,p. 239 ...................................................125......
...........
Letter from PAB to First Assistant PFWGdated 20 November 1909,
Islands and Marilime Boundariss of the GulJ; 1903-1924, Vol. 5,
ArchiveEditions, 1990, p.243 ....................................................2.......
..........
Letter from Deputy Secretary to the Government of India to First
Assistant PRPG dated 25 January 1910, Islands and Marilime
Boundaries of the Gu& 1903-1924,Vol. 5, Archive Editions, 1990,p.
Letterfrom PABto PRPGdated24 March 1910(I.O.R. R/I 5/2/25)...............137......
Letter fiom Sir Edward Grey to Sir G. Lowtherdated 8 August 1910
(1.O.R R/15/2/ 2..).........................................................
.4...........................Letter from Sir G. Lowtherto Sir Edward Grey dated 22 August 1910
(F.O. 371/1004), Gooch and Temperley, British Documents on the
Originsofthe War,Vol. 10,pp. 1-6 ..............................................1..9...........
..
Letterfrom 10to FOdated4 Jmuary 1938 (-0_ 371/23184) .....................1....
Telegram from Sir R. Bullard to PRPG dated 1November 1938 (m.
371121831) ..............................................................
......1..1............................
Despatch No. 40 of 2nd March 1939 from Sir R. Bullard to Lord
ViscountHalifax enclosingcopyof Note No.411 16of 26February 1939
fi-om Saudi Acting Minister for Foreign Affairs to his Majesty's
Minister,Jedda (F.O. 371123184) ..............................................................
......
Letter from PRPG to Secretary of State for India dated 26 May 1939,
Arabian Buundaries, Saudi Arabia-Bahrain, 1938-1957, Vol. 10,
Archive Editions,1988,pp. 55-59 ....................................................
..............
Memorandum from Belgrave to PAB dated 4 June 1939 enclosing
translationof saledeed(1.0,R.R/15/2/548) .......................................1................
Memorandum fi-om PAB to Belgrave dated 2 July 1939 ('L-R.
Ri15/2/5481....................................................
.................1............
Letter fiom J.W. Wall to H.M. Minister, Jedda dated 10 November
1939,ArabianBoundaries,SaudiArabiu-Bahruin,1938-1957, Vd. 10,
ArchiveEditions, 1988,pp. 34-35...................................................1..
.............
Letter from FO to IO dated 17 November 1939,Islandsand Maritime
Boundaries of the Gu& 1937-1940,Vol. 11, Archive Editions, 1990,
pp. 431-432 ................................................................
....1................................
Express letter from PAB to PRPG dated 20 December 1939,Arabian
Boundaries, Saudi Arabia-Bahrain, 1938-1957, Vol. 10, Archive
Editions, 1988, pp. 39-40 ...................................................
....195.............
Letter from PAB to PRPG dated 30 August 1941 and sketch map,
Arabian Boundaries, Saudi Arabia-Bahrain, 1938-1957, Vol. 10,
Archive Editions,1988,pp. 67-70 ...................................................9...........
.....
Telegrm from PRPG to Secretary of State for India dated 15 October
1941 (I.O.R.R/15/2/548) .........................................................2..5.......
...................
Telegram from H.M. Minister, Jeddato Secretary of State for Foreign
Affairsdated27November 1941(I.O.R.R/15/2/548) .............................2...........11.38 Letter from PAB to Chief Local Representative. BAPCO dated 22
December 1941(I.O.R.RI15/2/548) ............................................2...........
..
11.39 Letter from PAB to Belgrave dated 7 February 1942. Arabian
Boundaries. Saudi Arabia.Bahrain. 1938.1957. Vol . 10. Archive
Editions. 1988.p.71 ..........................................................217.....................
11.40 Memorandum by the Secretary of State for Foreign Affairs dated 10
February 1949(CAB/129/32) .......................................................
...........
11.41 Letter fiom BAPCO to RB dated 25 September 7949 enclosing map
(F.O. 1016/16)........................................................
.......33.......................
11.42 Letter fromRBto BAPCO dated27 September 1949 1O16116) ......................
11.43 ForeignOffice Minute dated29 October 1949(Fo 1016/16) ......................1....
11.44 TelegramfromPABto FO dated2 November 1949 (F. 1O.16/16)...............2.5..
11.45 Translation of letter from King of Saudi Arabia to RB dated 3
November 1949 (F.O.101611 6)................................................2.9.....
........
LetterfromRBto PAB dated3November 1949 (m 101611 6)
11.46 ..................2.3...
11.47 MemorandurnfromHayto FO dated 3December 1949 (m 1016116).............5.7
11.48 Letterfrom PRPGto FO dated 10January1950 (m 371182089) .................61....
11.49 Letter from Belgraveto PABdated 11April 1950enclosing translation
of sale deed(F.O.371182036] ..................................................67...
...........
11-50 Note verbalefromH.M.Ernbassyat Jeddato Saudi ArabianMinistryof
ForeignAffairsdated 15April 1950 (F&. 371/82036) .............................5........
11.51 Telegramfrom PAB to FOdated23 August 1950 (F.O . 71182037) ..............279.......
11.52 Letter from Senior Naval Officer. Persian Gulf to PRPG dated 6
September 1950(F.O 371/82037) ..............................................83.......
....
11.53 Discussions with the Saudi Arabian Foreign Minister. Record of the
Second Session held in the Foreign Office on 9 August 1951 (POWE
3311952) .........................................................
...........8...........................
11.54 Discussioi~swith the Saudi Arabian Foreign Minister. Record of the
Third Session held in the Foreign Office on 10 August 1951 (POWE
33/1952) .........................................................
............7............................Discussions with the SaudiArabian Foreign Minister, Recordof the 2nd
Sessionof the Sub-Cornmitteeheld in the Foreign Office on 17August
1951 (POWE3311952) .....................................................
.....3.............
Discussions with the SaudiArabianForeign Minister, Recordof the 5th
Sessionon 17August 1951(POWE3311952) .....................................11.........
Discussions with the Saudi Arabian Foreign Minister, Recordof the
Sixth Session held in the Foreign Officeon 18 August 1951 (POWE
3311952) ............................................................
...........17............................
Discussionswiththe SaudiArabian Foreign Minister,Record ofthe 3rd
Sessionof the Sub-Committeeheld in the Foreign Ofice on 20 August
1951(POWE3311952) ..........................................................321.....................
Discussions with the Saudi Arabian Foreign Minister, Recordof the
Seventh Sessionheld in the Foreign Officeon 20 August 1951(POWE
3311952) .........................................................
...............7........................
Discussions with the Saudi Arabian Foreign Minister, Recordof the
Eighth Session held in the Foreign Officeon 21 August 1951 (POWE
3311952) ..........................................................
.............3.........................
Discussions with the Saudi Arabian Foreign Minister, Recordof the
Tenth Session held in the Foreign Office on 23 August 1951 (POWE
3311952) ............................................................
...........37............................
Memorandum "Saudi-ArabianDelegation and H.M.G. Discussions in
London, 8th and 24th August 1951" dated 8 October 1951 (POWE
3311952) ........................................................
...............4......................
Letter from PAB to Le Quesne, Residency, dated 13 October 1951,
Arabian Boundaries, Saudi Arabia-Bahrain, 1938-1957, Vol. 1 O,
ArchiveEditions, 1988,p. 106 ....................................................4..
..........
Minuteby C.H. Fone dated22 March 1952 (m 3711984 11) ......................53......
Map to accompany letter from Sealey to Skinner dated 25 September
1952 (m 371/104319) .........................................................359
....................
Telegramfrom PABto FOdated6 Augusi 1954 (F-. 371/109844) ...............363......
Cases
Island of Palmas Case (Netherlands/U.S.A.)A , ward of 4 April 1928,
UnitedNations ReportsofInternationalArbitralAwards,Vol. II, p. 854 ..........369...PublishedWorks
A Collectionof First WorldWarHandbooh ofdrabia 1913-1917,Vol.
IV, A Handbook of Arabia, Vol. 1,General, 1916,Archive Editions,
1988, p. 327 .............................................................
.......3..3.........................
Al Rashid, Z.M., Su'udi Relations with Eastern Arabia and 'Uman
(1800-1871),Luzac andCompany,London, 1981, pp. 36 and 153 .................3.7...
Cordesman,A.H., Bahrain,Oman,Qatarand the UA.E. Challengesof
SectrriQ,WestviewPress,Boulder, 1997,pp.35and215 ...........................381...........
Ferdinand,K., Bedouinsof Qatar,Tharnesand Hudson,London, 1993,
pp. 35-37 .............................................................
.............5..........................
Hakima, A.M.A., History of Eastern Arabia, 1750-1800, Khayats,
Beirut, 1965,p. 159 .............................................................
..1......................
Kelly, J.B.,Eastern Arubian Frontiers,FaberandFaber,London, 1964,
p. 62 ............................................................
.................9.5..................
Khuri, F.I., Tribe and Stafe in Bahrain, University of ChicagoPress,
Chicago, 1980,pp. 22,30-33,56-57,65-67and 95 .................................399...
Palgrave,W.G., Narrative of a Year'sJourney through Central and
Eastern Arabia(1862-63),Vol. II,MacMillanand Co., London, 1865,
pp. 232-233 ...............................................................
......................................
Persian GuIf Pilot, pubIished by The Hydrographerof the Navy,
TwelflhEdition, 1982,p. 195 .............................................................
...........
Rush, A. de L. (ed.), Ruling Families of Arabia, Qatar: The Ruling
Family of Al-Thani,ArchiveEditions, 1991,pp. xvi-xvii .............................1.......
Saldanha,J.A., ThePersianGuEfPrécisV , ol. V, Précisof Nejd Affairs,
1804-1904,ArchiveEditions,1986,p. 79
.........................................425......................
Thomas, R.H. (ed.), Arabian GuZfIntelligence, Selectionsfrom the
Records of the BombayGovernment,NewSeries,No. XXIV, 1856, The
OleanderPress,Cambridge,1985,p. 174 ............................................9.........
Trench,R. (ed.), Gazetfeerof Arabian tribes,Vol. 1,Archive Editions,
1996,pp.vii-viii;Appendices:1, pp. 31-37 ........................................433....................
Wilkinson, J.C., Arabia'sFrontiers: TheSfory of BritaintriBoundary
DrawingintheDesert, I.B.TaurisandCo. Ltd., London, 1991, p. 43.................5..11.82 Zahlan, R.S., TheCreation of Qatar, Croom Helm, London, 1979, pp.
16-20,25,42-55and57-58 ..........................................................9..
........... LISTOF DOCUMENTARY ANNEXES
(Volume3)
PARTIII
III.1 Letter fromPRPG to Governmen. . Bombay dated7 December 1867
(copyof onginal md transcription). ................................................1.............
...
111.2 Letter from PRF'Gto Government of Bombay dated 4 April 1868
(copy oforigrnaland transcription) .........................................................
..............
111.3 Letter from First AssistantPRPGto PRPGdated 23 April 1868(copy
of originalandpartial transcription)...............................................1............
.
111.4 Letter fiom PRPG to Government of Bombay dated 22 June 1868
(copyof originalandpartialtranscription) ..........................................5............
111.5 Letter from Officiating Secretary to Government of India to
Government of Bombay dated 23 July 1868 (copy of original and
partialtranscription)...............................................................5..........................
111.6 Letter from PRPG to FU3dated 2 September 1868 (copy of original
and partialtranscription)...............................................................
.................
111.7 Excerpt from letter EromPRPG to Governmentof Bombaydated 25
September1868(copyof originalandpartialtranscription) .................................
111.8 Letter from PRPG to Government of Bombay dated 12 September
1871(copyof originalandpartialtranscription) ...................................5..........
111.9 Report by Political Departmentto Secretary to Government of India
dated28 October 1871(copyof originaland transcription) .................................
111.10 Letter from First Assistant PRPG to PRPG dated 16 August 1873
enclosing translation ofa report and précis of a conversationbetween
FirstAssistantPRPG and SheikhEsawbin Ali (I.O.R. L/P&S/5/274) ...............9..
III.11 Letter from First AssistantPRPGto ActingPRF'Gdated 11 September
1873 (I.O.R.L/P&S/5/274) .......................................................7
.............
111.12 Hawar Island of Qatar, location and dwellings, 17 June 1876 and
location of dwellings, 18June 1883,Archives of the DiwanAmiri of
the Stateof Qatar (Translation and Arabicversion) ................................7.........
111.13 Letter from RB to Officiating PRPG dated 12 October 1877 (1.O.R.
P/1036) ............................................................
............8............................111.14 The Persiun Gulf Pilot 1870-1932, Second Edition, 1883, Archive
Editions, 1989, p. 121 .................................................................... 58
III.15 The PersicdnGuEfPilof 1870-1932, Third Edition, 1890, Archive
Editions, 1989,pp. 122-124 ...................................................................
111.61 Letter from PRPG to Governmentof India dated 4 May 1895 (I.O.R.
Wl5111314) .................................................................
....................................
III.17 The Persicrn Gulf PiIot 1870-1932, Fourth Edition, 1898, Archive
Editions, 1989, p. 117 ...................................................................
......................
III.18 Letterfrom PABto PRPGdated29 October 1910(I.O.R. W1512125) ..............1..3.
III.19 Letter from PRPGto Governmentof India dated 27 June 1913(I.O.R.
LIP&S/lO/384) ...................................................................
.....0.7......................
Letterfrom Governmentof lndiato PRPGdated 31July 1913(I.O.R.
RI15/2/30) ....................................................................
.................
Telegram from Viceroy to IO dated 1 August 1913 (I.O.R.
L/P&S/10/384) .........................................................................115
Minuteby IO dated2 August 1913(I.O.R.L/P&S/10/384)............ ...................191
Telegramfrom Viceroy dated 12August 1913enclosingMinute by IO
(1.O.R.L/P&S/10/384). ........................................ .......................123
Telegram from Viceroy dated 5 September 1913 (1.0.R.
L/P&S/l01384). .............................................................................127
Letter from Officiating PRPG to Government of India dated 22
August 1914, Recordsof Qatar, Primary Documents 1820-1960,Vol.
4, 1896-1916,Archive Editions,1991,p. 392 ..........................................131
ReportfiomPA3 to PRPG dated 13July 1922(I.O.R. W15/2/87) .................1..5
Letters from PWG to RQ and Ruler of Kuwait dated 5 April 1923
(I.O.R. l2/15/2/87) (Translation, Arabic version and partial
transcription)............................... .. . .. . .... .... .. ... . . .. . . 141
Telegram from PRPG to Secretary of State for Colonies dated 4
January 1924(I.O.R.RI15/f1346)(Copyoforiginalandtranscription). ............147
LetterfromBelgraveto PAB datedApril 1927(I.O.R.R/15/2/87) .................1.5.
Letter fiom PAB to Secretaryto PRPG dated 24 April 1927 (I.O.R.
Wl5/2/87) ..............................................................................1.....
............Letterfrom PRPG to Governmentof lndia dated 1/7May 1927(I.O.R.
R/15/1/346) .......................................................
...........1.3...............
Letter from Political Residencyto RB dated 25 May 1927 (1.m
Wl5/2/87) ..............................................................
......69............................
Letterfrom Belgraveto PAB dated4 March 1928(I.O.R.RI15/2/87) ............1.3.
Memorandum frorn PAB to Secretaryto PRPG dated 22 April 1928
enclosing translation of letter from Ibn Saud to PM dated 6 April
1928(I.O.R.R/15/2/87) ....................................................
...79..............
Geological survey sketch map of Qatar. APOC Reg. No. 36 dated
April 1933 ...............................................................
....183..............................
Letter from Sarnpson (APOC) to PAB dated 21 June 1933 (I.O.R.
R/l5/1/652) ...............................................................
....7..............................
Letter fromPABto PRPGdated 25June 1933(I.O.R.R/15/1/6261 ...............1.1...
Final record of meeting held at India Office on 14 December 1933
dated22December 1933(I.O.R.R/15/1/627) ....................................9........
Letter fiom APOC to PRPG dated 3 February 1934 enclosing
geologicalsketchmappreparedby IPC/APOC(I.O.R.RI15111627) ..............2.9.
Memorandum fiom Laithwaite (IO) revised to5 March 1934 (1.0.R.
W15/1/628) .............................................................
......3...........................
Letterfrom FO to IO dated 16March 1934(I.O.R.Rl1511/628) ....................5....
Letter fiom PAB to R.A.F. OfficersCornmandingDetachmentdated 7
May 1934(I.O.R.lU15/1/629) ....................................................3............
........
Letter fiom PAB to PRPG dated 12 May 1934(I.O.R.R/15/1/629) ...............37...
Note of discussion at IO with APOC on 10 Januay 1935 ('loi,
RI15111630) .............................................................
....2.............................
Letterfiom IO to APOC dated22January 1935(I.O.R.W15/1/631)...................2 ..57
MemorandurnfromPRPGdated28 April 1937(I.O.R.R/l5/2/202) ...............6....
Letter from PAB to PRPG dated 12 February 1939 (I.O.R.
R/15/1/691) ..............................................................
...26.............................111.48 Letter from PAB to PRPG dated 5 December 1939 (I.O.K.
R/15/1/142) ..........................................................
........2........................
111.49 LetterfromRB to PRPGdated8February1961 (-o 371/156721 j..............2...
111.50 Statement of K. Wallis, Hydrographer for the Ministry of Public
Works and Ministry of Municipal Affairs, State of Qatar dated 24
September 1997withenclosures ................................................28........
.....
Cases
111.15 Dubai/SharjahBorder Awardof 19 October 1981, 91 InlernationaZ
LawReports, 1993, pp.579,601-602,619, 622and 637 .........................29.......
111.52 Island of Clipperton, Award of 28 January 1931, United Nations
Reportsof InternationalArbitralAwards,Vol. II,p. 1108 .......................305
111.53 Egypt-lsrael Arbitration Tribunal: Award in Boundary Dispute
concerning the Tabu Area, September 29, 1988, InternationalLegal
Materials,Vol. XXVJI,1988,p. 1469,para. 173 ................................30.........
PublishedWorks
111.54 Al-Tajir, M. A., Bahrain, 1920-1945: Brifain, the Shaikh and the
Administration, Croom Helm, LondodNew York/Sydney, 1987, pp.
33,39and 49-50 .............................................................
313...........................
111.55 Khuri, F.1, Tribe and State inBlrhrain,University of ChicagoPress,
Chicago, 1980,pp. 47-48, 56,65, 93-94,96-97, 101and 114 ....................3......
111.56 Oppenheim'sInternational Law, Sir Robert Jennings and Sir Arthur
Watts[eds.)9th ed.,Vol.1,Longman,Harlow, 1992,p. 382,para. 117 ...........33.1..
111.57 The Persian Gulf Surnrncrries1907-1953, Historicai Strmmary of
Events in the Terriloriesof the Ottoman Empire,Persia and Arubia
ajècting the British Positionin the Persian Gu& 1907-1928,Vol. 1,
ArchiveEditions, 1987,pp. 95-96 ..............................................335.........
............. LISTOF DOCUMENTARY ANNEXES
(Volume4)
&
PART IV
IV.l LetterfromPCL to IO dated 11September 1936(1.û.R. Rf15/1/688).....................1
IV.2 Letter fromPABto RQ dated 17February 1948(I.O.R. R/15/21431)......................
IV.3 Letter fromPAB toRB dated 17Febmry 1948(I.O.R. R/15/2/431)..................3..1
IV.4 Concession Agreementbetween RQ, Central Miningand Investment
Corporation Ltd. and Superior Oil Company dated 5 August 1949
(F.O. 371175002).........................................................
.............................
IV.5 Letterfiom PRPGto FOdated 13September1949 (m 371/75000) .............43.......
IV.6 Hudson, M.O. and Young, R., "Off-shore Problems in the Persian
Gulf', Opinion prepared at the request of the Arabian American Oil
Company for Submission to His Majesty's Governrnent in Saudi
Arabia, Appendix No. 1, 5 January 1950, Islands and Maritime
Boundaries of the GuK 1950-1951,Vol. 15,Archive Editions, 1990,
pp. 506-513 ....................................................
....................
IV.7 Record of a meeting held at Foreign Office on 24 August 1950(Fo
371/82091) ........................................................
........7...........................
IV.8 Letter from Belgrave to PAB dated 21 March 1951, Islands and
Maritime Boundaries of the Gu& 1951-1954, Bahmin-Saudi
baundary,1951,Vol. 16,ArchiveEditions, 1990,pp. 125-129 ...................63...........
IV.9 Discussions with the Saudi Arabian Foreign Minister, Record of the
2nd Session of the Sub-Cornmitteeheld in the Foreign Office on 17
August 1951 (POWE3311952) ........................................................
.........
IV.10 Convention on the Territorial Seaand Contiguous Zone, Geneva, 29
April 1958,516 UnitedNationsTreatySeries205,Articles 10and 11 ............79......
IV.11 Convention on the Continental Shelf, Geneva,29 April 1958, 449
UnitedNationsTreatySeries311,Article 6 ....................................8..............
IV.12 Letter fiom RBto PRPGdated 16August 1961 371/156720) ...............87........
IV.13 Minuteby Walmsley dated28 September 1961 (F.O.3711156720) ...............91........ Letter from PAB to PRPG dated 5 January 1963 enclosing
Chronological Summary of Events in Bahrain in 1962 (m
371/168669) ...............................................................
..........97........................
IV.15 Letterfrom FO to PRPGdated 3 December 1965 (m 371/179872) ...............03.
IV.16 Letter frornPABto PRPG dated 20Febniary 1966(Fo 3711185335)............. .. 109
IV.17 Agreement between India and Sri Lanka, signed 26-28 June 1974,
International Boundary Study, Limils in the Seas, Na 66, U.S.
Departmentof State, Officeof the Geographer, Bureauof Intelligence
andResearch, 12December 1975(textonly)...... ........................... ,...... 113
Statement of Mr. Abad Santos, 31st meeting, 8 July 1974, United
Nations Conference on the Law of the Sea, Ofleial Records, Vol. 1,
pp. 124-125,paras. 47-53 ...............................................................3
................
Staternent of Mr. Adderley, 32nd meeting, 8 July 1974, United
Nations Conference on the Law of the Sea, Oficial Records, Vol. 1,
pp. 131-132,paras.58-63 ................................................................
................
Statement of Mr. Al-Nimer, 40th plenarymeeting, 12 July 1974,3rd
UnitedNations Confërençe on the Law of the Sea, Oflcial Records,
Vol. I,p. 174, para.30 ...............................................................
.3................
Agreement between Iran and the United Arab Emirates (Dubai),
signed 31 August 1974,Internarionul Boundary Sîudy, Limits in the
Seas, No 63, U.S. Department of State, Office of the Geographer,
Bureauof Intelligenceand Research, 30 September 1975(text only) ................35
Agreement between Iran and Oman, 28 May 1975, International
Boundary Study,Limits in the Seas, No67, U.S. Department of State,
Office of the Geographer, Bureau of Intelligence and Research, 1
January 1976(textonly) .......................... .,. .. ... . . .. .. . . ... .. ..143
Agreement between India and Sri Lanka in the Bay of Bengai and
Gulf of Manaar, 10 May 1976,International Boundary Study, Limits
in the Seas, Na 77, U.S. Department of State, OKtce of the
Geographer, Bureau of Intelligence and Research, 16 February 1978
(text only)............................................................................... 153
Technical CircularNo. 12by Zahra Sadiq Al-Alawi, Research Officer
dated March 1982 .....................................................................16....
Resolution of the Gulf Cooperation Council dated 8 March 1982
(TranslationandArabicversion) ......................................................03...........1V.26 United Nations Conventionon the Law of the Sea, Montego Bay, 10
December 1982, International Legal Materials,Vol. XXI, No. 16,
November 1982,Articles 13and 15,p. 1273 ...................................209....................
IV.27 AgreementbetweenBahrainDefenceForceand BallastNedam Groep,
N.V. dated 24 October 1985 ..................................................2...........
..........
IV.28 Communiqué, "Gulf Reef ',Reuters,26April 1986 .............................2.........
IV.29 Letter fromH.H. Khalifabin Hamadto His Majesty Sultan Qabusbin
Saidof Oman enclosingMemorandurnof the Govemmentof the State
of Qatardated 29 April1986(Translation and Arabicversion).......................1...2
IV.30 Letter fiom the SecretaryGeneral of the Gulf Cooperation Councilto
Shaikh Hamadbin Khalifa Al Thani dated 21 May 1986 enclosing
Outline of Programme of Work of the Supervision and Control
Cornmittee,24-28May 1986(TranslationandArabicversion) ..................24.....
IV.31 Decree-LawNo. (17) of 1993 Arnending Certain Provisions of Law
No. (4) of 1983Concerningthe Exploitationand Protectionof Living
Marine Resources in Qatar dated 5 August 1993 (Translation and
Arabicversion) ...............................................................5..............................
Cases
IV.32 AfSairedes Grisbadarna, 23 October 1909, Recueil des Sentences
Arbitrales,Vol. XVIII,pp. 159-160 ........................................................................
IV.33 Aflaire de la délimitation delaPontière maritime entrela Guinée et
la Guinée Bissau,Decision of 14 February 1985, United Nations
Reports of lnternationalArbitralAwards,Vol. XIX,pp. 183-185, 187
and 194 ................................................................
....26....................................
IV.34 Case Concerning theDelimitation of the ContinentalShelf between
the UnitedKingdom of GreatBritain and NorthernIreland, and the
French Republic, Decision of 30 June 1977, International Legal
Materials, Vol. XVIII,No. 2, March 1979, pp. 408, 410-411, 421,
424, 426,437, 440-441, 443,452-453and455 .................................27........
IV.35 Case ConcerningtheDelimitationofMaritimeAreasbetween Canada
and the French Republic, InternationalLegal Materials,Vol. XXXI,
No. 5, September1992,pp. 1160 and 1173 ....................................29.........Published Works
Anthony, T.A., "Documentatioii of the Modern History of Bahrain
from American Sources (1900-1938)", Bahrain fhrough the ages, the
History, Shaikh Abdullah bin Khalid Al-Khalifa and M. Rice (eds.),
KeganPaul International,LondodNew York, 1993,p. 69 .......................30.....
Bowett, D., "Islands, Rocks, Reefs and Low-Tide Elevations in
Maritime BoundaryDelimitations",Charney,J.I. and Alexander, L.M.
(eds,), International Marifime Bounduries, Martinus Nijhoff,
Dordrecht/Boston/London,1993,Vol. 1,pp. 1 47-15 1 ............................30.........
"Continental Terraces, Shoals, ShalIow Indentations and Islands off
the Western Coast of Qatar", Inderirn Report No. 2, Geological
Investigation of Hawar Islands, Geology Group, University of Qatar,
Doha, Qatar,January1989. .....................................................3.......
.............
Decaux, E., "L'arrêd te la Cour Internationale de Justice dans l'affaire
du Plateau Continental (TunisieLibye)", Annuaire fiançai se droit
international, 1982,Vol. XXVIII,pp. 384-386.. ..................................3............
Decaux, E.,"L'arrê dte la Chambrede la Cour InternationaledeJustice
sur l'affairede la délimitationde la frontière maritime dansle Golfedu
Maine (CanadaIEtats-Unis)",Annuairefrançais de droit international,
1984,Vol. XXX, p. 338.........................................................3..
..................
Evensen, J., "La délimitationdu plateau continental entre la Norvège
et l'Islandedans le secteur de JanMayen",Annuairefi.ançais de droii
international, 1981,Vol.XXVII,pp. 718 and 728 ...............................34..........
Feldman, M., "TheTunisiaLibya Continental ShelfCase: Geographic
Justice or Judicial Compromise?",ArnericanJournal of International
Law,Vol.77, 1983, p. 235 ......................,...............................347..............
Fitzmaurice, Sir Gerald, "Some Resultsof the Geneva Conference on
the Law of the Sea", International and Comparative Law Quarlerly,
Vol. 8, 1959, pp. 86-87 .........................................................35.1............
Gidel, G.,Le droit international public de lu mer, Vol. 1,Paris, 1981,
pp.488-501 ............................................................
......3..........................
1-Iurst,Sir Cecil, "Whose isthe bed of the sea? Sedentary fisheries
outside the three-mile limit",Briti s harBookof XnlernutionalLaw,
1923-1924,p.40 ............................................................
.3.........................International Hydrographic Organization, A Manual on Technical
Aspects of the UnitedNations Convention on the Law of the Sea,
1982, Special PublicationNo. 51,Appendix 1:ConsolidatedGlossary
of TechnicalTernis used in UN Conventionon the Law of the Sea,p.
11 ...........................................................
...............................................
Jayewardene, H.W., The Regime of Islands in International Law,
MartinusNijhoff, Dordrecht/Boston~London1 , 990,p. 137 ....................................
Khuri, F.I., Tribe and Stade inBahrain, University of Chicago Press,
Chicago, 1980,pp. 3, 53and 136 .................................................8...........
....
Lucchini, L., Voelckel, M., Droit de la mer, Vol. 1,Editions Pédone,
Paris, 1990,p. 334,para. 364 ......................................................9......
..........
McRae, D.M., "The Gulf of Maine Case: The Written Proceedings",
Canadian Yearbookof Ifilernalional Law, Vol. XXI, 1983, pp. 279-
Oxman, B., "Political, Strategic and Historical Considerations",
Charney, J.I. and Alexander, L. (eds.), International Maritime
Boundaries, Martinus Nijhoff, Dordrechi/Boston/London,1993, Vol.
1,pp.39and40 ........................................................
.......397......................
Persian Guy Pilot, published by The Hydrographer of the Navy,
TwelfthEdition, 1982,pp. x, 98, 192and 195and SupplementNo. 6-
1994,p. 31 ..........................................................
...................................
Proceedings of the ROPME Workshop on coastal area developrnent,
UNEP RegionalSeasReportsand StudiesNo. 90, 1988,p.20 ....................409........
Report and recommendations to the Governments of Iceland and
Nonvay of the ConciliationCommissionon the ContinentalShelf area
between Iceland and Jan Mayen,International Legal Materials, Vol.
XX,NO.4, 1981,pp. 797-805 .....................................................3..
.........
Schneider, J., "The Gulf of Maine Case: The Nature of an Equitable
Result", American Journal of International Law, Vol. 79, 1985,pp.
Weil, P., A propos de la double fonction des lignes et points de base
dans le droit de la mer, Essays in Honour of Judge Taslim Olawale
Elias, Martinus Nijhoff, Dordrecht/Boston/London,1992, Vol. 1,pp.
145-162 ..............................................................
..........9.............................IV.57 Weil, P., "Geographical Considerations in Maritime Delimitation",
Charney, J.I. and Alexander, L.M. (eds.), International Maritime
Buundaries,Martinus Nijhoff, Dordrecht/Boston/London,1993, Vol.
I,p. 115 .........................................................
...........4..........................
IV.58 Weil, P., The Law of MaritimD eelimitation - Repections, Grotius
Publications,Cambridge,1989, pp. 69,216-217,257 and262 ...................4.3....
IV.59 Yearbookof lhe InternationalLawCommission,1951,Vol. II,pp. 97-
98 ........................................................
..................6..........................
IV.60 Yearbookof theInternational Law Commissio1 n9,53,Vol. II,pp.77-
79 ........................................................
...................5........................
IV.61 Zoller, E., "Recherchessur les méthodesde délimitationdu plateau
continental àpropos de l'affairede Tunisie/LibyeVR, evueGénérald ee
droit internationalpublic, 1982,Vol.86,p. 657 .................................71......... LIST OF APPENDICES
(Volume5)
APPENDIX 1 Exchangesof Notes Verbales.. ............................................ 1
APPENDIX2 Themythof Bahrain'm s aritimesupremacyand the failure of
its expansionists policies........................ .. ... . .. . .. . ,145
(Volume6)
APPENDIX 3 Photographof mosaicof slidestakenof Hawarislands ......................
Counter-Memorial of the Government of the State of Qatar