CASE CONCERNING MARITIME DELIMITATION AND
TERRITORIAL QUESTIONS BETWEEN QATAR AND BAHRAIN
(QATAR V. BAHRAIN)
REPLY OF THE STATE OF QATAR
_____________________________________________
TABLE OF CONTENTS
PART I - INTRODUCTION
CHAPTER I - GENERAL 1
Section 1. Qatar's Case and Structure of Qatar's Reply
Section 2. Deficiencies in Bahrain's Written Pleadings
Section 3. Bahrain's Continuing Violations of the Status Quo
PART II - THE GEOGRAPHICAL AND HISTORICAL BACKGROUND
CHAPTER II - THE TERRITORIAL INTEGRITY OF QATAR
Section 1. The Overall Geographical Context
Section 2. The Emergence of the Al-Thani as a Political Force in Qatar
Section 3. Relations between the Al-Thani and Nasir bin Mubarak
Section 4. The 1913 and 1914 Conventions
Section 5. The 1916 Treaty
Section 6. Al-Thani Authority throughout the Peninsula of Qatar was consolidated long
before the 1930s
Section 7. The Map Evidence
CHAPTER III - THE EXTENT OF THE TERRITORY OF BAHRAIN
Section 1. Bahrain from 1783 to 1868
Section 2. Bahrain after 1868
PART III - THE HAWAR ISLANDS AND OTHER TERRITORIAL QUESTIONS
CHAPTER IV - THE HAWAR ISLANDS
Section 1. Introduction: The Territorial Integrity of Qatar and Qatar's Sovereignty over
the Hawar Islands
Section 2. Proximity and Qatar's Title to the Hawar Islands
Section 3. The Extensive Map Evidence supporting Qatar's Sovereignty over the Hawar
Islands
Section 4. The Lack of Evidence for Bahrain's Claim to have exercised Sovereignty over
the Hawar Islands from the 18th Century to the Present Day
Section 5. The Bahrain and Qatar Oil Concession Negotiations between 1925 and 1939
and the Events Leading to the Reversal of British Recognition of Hawar as part of Qatar
Section 6. Events leading up to and following the British Decision of 1939 on the Hawar
Islands
Section 7. The Bahraini Claim that the British Decision of 11 July 1939 resulted from a
Process of Arbitration and is therefore res judicata Section 8. The Bahraini claim that Qatar acquiesced in the 1939 decision on the Hawar
islands
CHAPTER V - JANAN ISLAND
Section 1. The Basis of Qatar's Title to Janan Island
Section 2. Bahrain's Alleged Acts of Sovereignty over Janan Island
CHAPTER VI - ZUBARAH
Section 1. The Question of Zubarah Viewed in its Proper Perspective
Section 2. The Basis of Qatar's Title to Zubarah
Section 3. The Map Evidence
Section 4. Bahrain's Claim to Sovereignty over Zubarah is Manifestly Ill-Founded
Section 5. Bahrain's Claim to Zubarah was never recognised by the British; it was not
supported in Bahrain itself; and it was repeatedly disclaimed by the Ruler of Bahrain
PART IV - MARITIME DELIMITATION
CHAPTER VII - BAHRAIN'S IMAGINARY VIEWS OF ITSELF
Section 1. The Fantasy of Bahrain as a Maritime State whose Power, Influence and
Geographical Extent stretches as far as the Shores and even the Mainland of Qatar
Section 2. Bahrain's Misrepresentation of Qatar's Position
CHAPTER VIII - THE FALSE ALLEGATIONS MADE BY BAHRAIN
Section 1. Qatar's Alleged Misrepresentation of what is meant by the Bahraini Coast
Section 2. The So-Called "Undue Weight" given to the 1947 Line
CHAPTER IX - THE SINGLE MARITIME BOUNDARY
Section 1. Bahrain's Line is a Distorted Equidistance Line
Section 2. Qatar's Provisional Equidistance Line is Based on Reasonable Constructions
Section 3. The Adjustments made by Qatar to its Provisional Equidistance Line
SUBMISSIONS
LIST OF DOCUMENTARY ANNEXES
Volume 2 - Volume 3 - Volume 4
LIST OF APPENDICES
Appendix 1 - Appendix 2
__________
CASE CONCERNING MARITIME DELIMITATION AND
TERRITORIAL QUESTIONS BETWEEN QATAR AND BAHRAIN
(QATAR V. BAHRAIN)
REPLY OF THE STATE OF QATAR
_____________________________________________
CHAPTER I - GENERAL
INTRODUCTION 1
CHAPTER I - GENERAL 1
Section 1. Qatar's Case and Structure of Qatar's Reply 1Section 2. Deficiencies in Bahrain's Written Pleadings 5
A. Bahrain's failure to join issue with Qatar 6
1. Bahrain's failure to respond to Qatar's arguments 6
2. Bahrain's arbitrary presentation of Qatar's position 7
(a) Qatar's supposed "claim that it became a sovereign State in 1868" 7
(b) Qatar's suthosed claim that the Al-Thani were "masters of a unified Qatar peninsula
by the mid-19 century" 8
(c) Qatar's alleged misuse of the name "Qatar" 9
(d) Qatar's supposed claim that "Bahrain" is a single island 10
B. Bahrain's exaggerated claims and assertions 12
C. Mis-citations and selective quotations in Bahrain's written pleadings 14
Section 3. Bahrain's Continuing Violations of the Status Quo 15
__________
PART I
INTRODUCTION
This Reply of the State of Qatar is filed pursuant to the Order of the Court dated 17 February
1999 which extended until 30 May 1999 the time-limit for the filing by each of the Parties of a
Reply.
CHAPTER I - GENERAL
Section 1. Qatar's Case and Structure of Qatar's Reply
1.1 This Reply is divided into four Parts. Following this introductory Part I, Part II addresses
"The Geographical and Historical Background", dealing in particular with the territorial integrity
of Qatar (Chapter II) and the extent of the territory of Bahrain (Chapter III). Part III then
addresses "The Hawar Islands and Other Territorial Questions". The Hawar islands are
considered in Chapter IV, and in Chapters V and VI, Qatar addresses the questions of Janan
island and Zubarah, respectively. The issue of maritime delimitation is dealt with in Part IV, and
the Reply ends with Qatar's Submissions. Included at the end of this Volume are Appendices 1
and 2. Attached to this Reply there are three further Appendices in two separate volumes,
together with a Map Atlas, and three volumes of Documentary Annexes. A list of these
Appendices, Maps and Annexes may be found at the end of this Volume. In general, the
Annexes are organised according to the Part of the Reply in which they are referred to. In other
words Annexes to Part II of the Reply are numbered Annex II.1, II.2, etc. A list of certain
documents which are being deposited separately with the Registry pursuant to Article 50,
paragraph 2, of the Rules of Court is contained in the Agent of Qatar's letter to the Registrar
dated 28 May 1999.
1.2 The Order of the Court dated 17 February 1999 placed on record the decision of Qatar to
disregard, for the purposes of the present case, the 82 documents that had been challenged by
Bahrain, and decided that the Replies would not rely on those documents. Qatar's decision had
been announced by Qatar in its Interim Report of 30 September 1998, and was confirmed in
Qatar's letter to the Court dated 1 February 1999. Qatar must once again reiterate here that its
case on none of the issues before the Court is dependent on the documents that were challenged
by Bahrain.
1.3 Consequently, there is no foundation for Bahrain's contention - which has been voiced by
several Bahraini governmental authorities and widely reported in the press - that Qatar's decisionno longer to rely on the 82 challenged documents has effectively put an end to Qatar's case on
the Hawar islands and Janan, and that the only territorial issue still facing the Court is Bahrain's
claim to Zubarah . On the contrary, there is a wealth of both documentary and cartographic
evidence from numerous sources to support Qatar's claims in respect of all the issues, including
not only the maritime issues and Zubarah but also the Hawar islands and Janan. A great deal of
that evidence has already been submitted by Qatar with its Memorial and Counter-Memorial, and
further supporting evidence is provided with this Reply.
1.4 On the basis of that evidence, Qatar will show in Chapter II of this Reply that from the date
of the 1868 Agreements, shortly followed by the Ottoman arrival in Qatar in 1871, the separate
identities of Qatar and Bahrain were continuously recognised by Britain, Turkey, Persia and
other countries. It will further demonstrate that historical, geographical and cartographical
sources have consistently shown that the waterless Hawar islands and the island of Janan (both
inhabited only seasonally, if at all), as well as Zubarah, were viewed as appertaining to Qatar not
only as a geographical entity but also as a political entity, exercising authority over the whole
peninsula and the immediately adjoining islands, under successive independent Rulers long
before Qatar's emergence as a fully-fledged State.
1.5 Conversely, Qatar will show in Chapter III that there is no evidence of any historical
dominance of Bahrain over Qatar. It will further be seen that at least after the 1868 Agreements,
the political entity of Bahrain was considered as consisting of only the main Bahrain island and
four other islands in its immediate vicinity, which did not include the Hawar islands, Janan or
any territory on the mainland of Qatar. This again is confirmed by consistent and overwhelming
documentary and cartographical evidence and was also, tellingly, the view expressed in 1928 by
Belgrave himself, the Ruler of Bahrain's Adviser, at a time when he had become "so far as
internal administration was concerned... to all intents and purposes the ruler of the State" . Qatar
will also demonstrate that since at least 1868, Bahrain has had no territorial rights in any part of
the peninsula of Qatar, its territorial waters or the islands wholly or partly situated therein.
1.6 With regard to the actual issues that have been submitted to the Court, it will be seen in Part
III that Qatar's case on each one of the territorial questions is further strengthened by additional
documentary evidence from Turkish and other sources filed with this Reply.
1.7 Qatar will show in Chapter IV that the principle of proximity as it applies to islands lying
wholly or partly within the territorial waters of a State or other territorial entity supports and
sustains Qatar's claim of sovereignty over the Hawar islands. Qatar will also demonstrate that the
very strong presumption of Qatar's sovereignty over these islands by virtue of their proximity to
Qatar's coast has not been, and cannot be, displaced by Bahrain, and that cartographic evidence
from a wide variety of sources, both official and unofficial, further confirms that the Hawar
islands were regarded as appertaining to Qatar. Moreover, it will be seen in Chapter V that there
is no basis for any claim by Bahrain to sovereignty over Janan island, where the principle of
proximity also supports Qatar's claim of sovereignty.
1.8 As far as Zubarah is concerned, it will be seen that Bahrain has raised this issue merely as a
diversionary tactic. Chapter VI will confirm Qatar's case as already set out in its Memorial and
Counter-Memorial. It will demonstrate that ever since the separation of the geographical and
th
political entities of Qatar and Bahrain in the 19 century, Zubarah has been consistently
recognised as forming part of Qatar, and that Bahrain's claim has no basis. On this issue too, this
Reply contains further evidence, both documentary and cartographic, which confirms and
strengthens the evidence already produced with Qatar's Memorial and Counter-Memorial.
1.9 Turning to maritime delimitation, Qatar will show in Part IV that Bahrain's case is
fundamentally flawed by a series of gross exaggerations and distortions. Chapter VII, which
discusses Bahrain's imaginary views of itself, will demonstrate the unfounded nature of Bahrain's
claim to be a maritime State whose power and influence extends right up to the shores of theQatar peninsula. It will also be seen in that Chapter that both Dibal and Qit'at Jaradah, by
application of the law of the sea, fall under Qatar's sovereignty.
1.10 Chapter VIII then deals with Bahrain's false allegations, in particular with regard to Qatar's
alleged misrepresentation of what is meant by the Bahraini coast, and the so-called "undue
weight" given by Qatar to the 1947 line. In this regard it will show that the most appropriate way
of making the maritime delimitation between Qatar and Bahrain is to take as a starting point the
respective main coasts of the Parties, and that the 1947 line is a highly relevant historical
circumstance which has to be taken into account in determining the course of the single maritime
boundary.
1.11 Finally, Chapter IX deals with the single maritime boundary claimed by Qatar. Qatar
maintains the line for the single maritime boundary that it has previously put forward in both its
Memorial and its Counter-Memorial and which, as is further shown in Chapter IX, leads to an
equitable result.
1.12 Qatar cannot end this Section without emphasising once again that it does not accept the
accuracy of the texts of its Memorial and Counter-Memorial as highlighted by Bahrain . If 3
Bahrain's highlighting were to be taken at its face value, included among the challenged
documents and thus eliminated from the evidence would be, for example, Lorimer's Gazetteer of
the Persian Gulf, Oman and Central Arabia, the 1913 Anglo-Ottoman Convention, and British
Government records from the period up to 1933 . It is obvious that the highlighting exercise
performed by Bahrain cannot be considered accurate, and Qatar must request the Court to
disregard it. In its letter to the Court of 1 February 1999, Qatar announced that it would provide
with this Reply a document to illustrate the consequences of its decision no longer to rely on the
challenged documents in this case. As it is Qatar's Memorial and Counter-Memorial that the
Court has to consider (and not Bahrain's version of these pleadings), Qatar submits herewith, for
the convenience of the Court, copies of its own highlighted versions of its Memorial and
Counter-Memorial. These are designed to assist the Court in determining which passages of
those pleadings are no longer being relied upon by Qatar because they depend solely upon
documentary annexes which Qatar has pledged itself to disregard. In this Reply, all references to
Qatar's Memorial and Counter-Memorial are to the versions of those written pleadings as
highlighted by Qatar, the highlighted passages being those which should be disregarded.
1.13 Finally, Qatar has sought to present its Reply in such a way as to eradicate any confusion
which may have been created by Bahrain. Notably, in the course of this pleading and in
Appendix 1, it has identified various serious mis-citations and distortions by Bahrain of the
documentary evidence and of the content of Qatar's written pleadings. However, any failure by
Qatar to answer specific allegations by Bahrain should not be construed as an implicit admission
of such allegations. Nor should any failure by Qatar to indicate errors in the translations
produced by Bahrain be construed as an acceptance by Qatar of such translations.
Section 2. Deficiencies in Bahrain's Written Pleadings
1.14 Having set forth the main points of Qatar's case which will be expounded upon in this
Reply, it is appropriate now to mention various deficiencies in Bahrain's written pleadings. As
will be seen, these deficiencies include, but are not limited to, a failure to join issue with Qatar,
the making of exaggerated claims and assertions, and the mis-citation and selective quotation of
documentary evidence.
A. Bahrain's failure to join issue with Qatar
1.15 Bahrain's failure to join issue with Qatar takes two forms in its Counter-Memorial. On
certain points, Bahrain simply fails to respond to Qatar's arguments; on others, it makes an
unfounded and arbitrary presentation of Qatar's position, apparently with the aim of then
appearing to be able easily to rebut Qatar's supposed position. 1. Bahrain's failure to respond to Qatar's arguments
1.16 As has already been noted above, Qatar's case remains unaffected by the decision to
disregard certain documents. However, rather than responding to Qatar's position on various
issues involved in the case as supported by unchallenged evidence, Bahrain has in many
instances ignored Qatar's arguments, often on the spurious basis that they depend solely upon the
challenged documents.
1.17 For example, one of the tactics that Bahrain has employed as part of its litigation strategy is
conveniently to avoid responding to Qatar's arguments on certain points related to the Hawar
islands. For instance, Bahrain contends that "in its efforts to challenge the historical record"
Qatar's sole response was the production of the challenged documents . This is patently not true,
and Qatar has produced a wealth of documentation in its previous written pleadings which
remains in evidence, supplemented by further documentary evidence furnished with this Reply,
which demonstrates the falsity of Bahrain's version of events.
1.18 The bulk of Qatar's arguments regarding Zubarah have also gone unanswered by Bahrain,
doubtless because Bahrain has no credible arguments to advance on this issue.
1.19 Bahrain's failure to respond to Qatar's arguments is not confined to the territorial questions,
but applies also with regard to the maritime questions. Qatar will take just one example here,
concerning Dibal and Qit'at Jaradah. As will be recalled, Qatar argued in its Memorial that these
two shoals are not subject to appropriation by either of the Parties under the rules applicable to
the acquisition of land territory . Yet rather than joining issue with Qatar on this point, Bahrain
purports to believe that the Pa7ties "agree that the low-tide elevations in the disputed area are
susceptible to appropriation" . Qatar's Memorial quite clearly provided no basis for this
statement, which is no more than an attempt by Bahrain to divert attention from the real
questions.
2. Bahrain's arbitrary presentation of Qatar's position
1.20 Qatar does not propose to make here an exhaustive survey of Bahrain's distortions of its
position. Rather, it will simply draw attention to a few of the most glaring examples of such
distortions.
(a) Qatar's supposed "claim that it became a sovereign State in 1868"
1.21 Qatar showed in its Memorial that the 1868 Agreements between the British and,
respectively, Mohamed bin Thani as Chief of Qatar and Ali bin Khalifah as Chief of Bahrain
treated those Chiefs on an equal footing; that Mohamed bin Thani's position as Chief of Qatar
thereby gained formal recognition by the British, as did the fact that the authority of the Chief of
Bahrain did not extend to Qatar; and that Qatar and Bahrain were treated as separate entities 8.
1.22 What Qatar does not purport to show is that it became a sovereign State at that time. It is
therefore puzzling, to say the least, that in its Counter-Memorial Bahrain refers on several
9
occasions to "Qatar's claim that it became a sovereign State in the 1860s" and that it criticises
Qatar for its presentation of "the 'State of Qatar' as possessed of full-fledged statehood
commencing in 1868" 10. In this connection Bahrain cites various sections of Qatar's Memorial . 11
Yet reference to those sections, or indeed to the other sections of Qatar's Memorial and, now, to
its Counter-Memorial, shows that Qatar has made no such claim. On the contrary, Qatar has
th
stated clearly that in the 19 century the tribal societies of neither Qatar12or, by the same token,
Bahrain, could be considered as States in the modern sense of the word . Qatar has also shown
that various powers competed for control over both Qatar and Bahrain during the first half of the
19 century . 13
1.23 Notwithstanding these facts, which are supported by contemporary documentary evidence
and are freely admitted by Qatar, and on the basis of a "claim" by Qatar to sovereign statehood as
of 1868 that has in fact been wholly invented by Bahrain, Bahrain sees fit to accuse Qatar of 14
"anachronism, revisionism and nominalism" . In Qatar's view, if either Party may be said to be
guilty of such sins it is Bahrain itself. Bahrain does not hesitate to make a claim of sovereign
statehood stretching back to the early 19 century ; nor does it hesitate to refer to "internal Al-
16 17
Khalifa dynastic [sic] struggles" and to a challenger to the Bahraini "throne" in 1848 , at a
time when such notions were clearly incompatible with the inter- and intra-tribal struggles that
were then taking place, not to mention the competition among various powers for control of the
region, and indeed the frequent submission by Bahrain to one or other of those powers . 18
(b) Qatar's supposed claim that the Al-Thani were "masters of a unified Qatar peninsula
th
by the mid-19 century"
1.24 Contrary to Bahrain's assertion, Qatar has not made any claim that the Al-Thani were
th 19
masters of athnified Qatar peninsula by the mid-19 century . However, the mere fact that by
the mid-19 century Al-Thani authority did not extend over the whole peninsula does not, as
Bahrain contends, confirm "Bahrain's sovereignty over the Qatar peninsula" . Rather, as will be
fully explained in Chapter II, and as Qatar has also shown in its Memorial and Counter-
Memorial, the Al-Thani gradually established and consolidated their authority throughout the
peninsula from around the middle of the 19 century. For example, Qatar has provided evidence
from a contemporary traveller that Mohamed bin Thani was governor of Bida and was
21
acknowledged as head of the entire province of Qatar by at least 1862-63 . It has also shown
that when, a decade later, and following the 1868 Agreements, the Ottomans arrived in Qatar, the
Al-Thani remained, in Lorimer's words, "the principal factor in politics" . Further, Qatar has
23
demonstrated that the process of consolidation continued thereafter , with continuity of Al-
Thani rule over the whole peninsula being expressly recognised by the British and the Ottomans
in the 1913 Anglo-Ottoman Convention . 24
(c) Qatar's alleged misuse of the name "Qatar"
1.25 Bahrain accuses Qatar of "nominalism" in its use of the name "Qatar", asserting that "Qatar
unceasingly treats the word 'Qatar'... as referring to the entirety of the peninsula as a political
entity without regard to the context" . This is precisely what Qatar has not done. On the
contrary, in its Counter-Memorial Qatar has made a contextual analysis26f use of the word
"Qatar" in response to Bahrain's earlier arguments on this point . As is more fully explained
below in the context of the discussion of the significance of the 1913 and 1914 Conventions,
Qatar does not deny that the Ottomans sometimes used the word "Qatar" to designate the town of
27
Doha . However, Qatar's contextual analysis as well as the cartographical evidence submitted
with this Reply shows, inter alia, that the Ottoman kaza of Qatar covered the whole peninsula,
that the Al-Thani consolidated their authority over the whole peninsula during the Ottoman
presence and that both the British and the Ottomans recognised these facts. Here again it is
Bahrain, not Qatar, who is guilty of a form of reverse "nominalism", by insisting against all the
evidence that the word "Qatar" when used in the political sense invariably referred only to the
town of Doha and its immediate environs 28.
(d) Qatar's supposed claim that "Bahrain" is a single island
1.26 Finally, a point which concerns both territorial and maritime questions needs to be
mentioned. This is Qatar's alleged treatment of Bahrain as a single island. Bahrain states in this
regard, "As if by magic, 'Bahrain' no longer refers to the multi-island State of Bah29in. Now it
refers only to its main island", describing this as a "play on words" by Qatar . Bahrain's rebuttal
of Qatar's so-called position with regard to what comprises Bahrain is so extravagant that it bears
repeating:
"By excluding the territories other than the main island of the archipelagic group of which
the State of Bahrain is comprised, Qatar misrepresents geographical and, even more
important, political and economic reality. The State of Bahrain does not consist of a
continental or quasi-continental 'mainland' - the main island - with offlying islets, rocks and low-tide elevations. The State of Bahrain consists of a system of inter-related maritime
features, which includes, in addition to the main island of Bahrain and the islands of
Muharraq and Sitrah, the Hawar archipelago and all the islands and other features scattered
throughout the sea between the main island of Bahrain and the Qatar peninsula, together
with the Zubarah Region. The islands and other maritime features are not accessories to or
dependencies of the main island; they, together with the main island, form ('all together', to
quote Lorimer) the State of Bahrain. They are the State of Bahrain; together they represent
the State of Bahrain" .0
1.27 Qatar must make a few comments in this regard. First, it has never contended that Bahrain
consists only of the main island; on the contrary, it has consistently relied upon Lorimer's and
others' recurring description of Bahrain as an archipelago limited to the five islands of Bahrain,
Muharraq, Umm Na'asan, Sitrah and Nabi Salih and a number of lesser islets and rocks. As is
explained more fully in Chapter III below, it is these islands which, taken "all together", to use
Lorimer's words as quoted out of context by Bahrain in the above-cited passage, form a compact
group almost in the middle of the gulf dividing Qatar from the Qatif coast. What Qatar does
contest, of course, is that Bahrain also comprises the Hawar islands, Janan, Zubarah and any
low-tide elevations or shoals which, by virtue of the law of the sea, do not appertain to Bahrain.
1.28 Second, it is true that Qatar contends that, for purposes of drawing a provisional
equidistance line for the maritime delimitation, the mainland-to-mainland method should be
used, on the basis of the high-water line, and thus that low-tide elevations and minor islands and
islets should be disregarded in order to arrive at an equitable result . On the other hand, it does
not contend that only the main island of Bahrain is to be taken into account in such an exercise.
This is quite clear from Map No. 14, facing page 342, where it can be seen that basepoints have
been plotted not only on the main Bahrain island but also on the islands of Sitrah and
Muharraq . Moreover, a point on Muharraq - point MQ - has been chosen by Qatar as the end
point on the Bahraini side of the closing line between the northern and southern sectors 33. There
is thus no basis for Bahrain's assertion that Qatar reduces Bahrain to a single island, either with
respect to territorial questions or in the context of the maritime delimitation. This assertion is just
one more illustration of Bahrain's inability to provide a reasoned rebuttal to Qatar's real
arguments.
1.29 Qatar will not burden this Section with any further examples of the distortions of Qatar's
position that are to be found in the Bahrain Counter-Memorial, nor of the fact that the criticisms
that Bahrain levels against Qatar would be much more appropriately directed against Bahrain
itself. In sum, Qatar would simply say that Bahrain's constant failure to join issue with Qatar,
either by ignoring Qatar's arguments or by purporting to respond to claims which Qatar in fact
has not made, means that the issues that still divide the Parties are to all intents and purposes the
same as those that divided them at the outset of this case.
B. Bahrain's exaggerated claims and assertions
1.30 Alongside Bahrain's failure to join issue with Qatar, another aspect of Bahrain's litigation
strategy is to make highly exaggerated claims and assertions on both territorial and maritime
questions. Again, just a few examples will be given here.
1.31 With regard to the general historical background, Bahrain continues to pervert the history of
the two sheikhdoms by asserting that Al-Thani authority in Qatar did not extend beyond Doha
and its immediate surroundings until the 1930s and that, conversely, the Al-Khalifah continued
to hold sway over the remainder of the peninsula, with the possible exception of some southern
border areas which were under Saudi influence. But what the evidence actualth shows, when it is
not mis-cited or distorted by Bahrain, is that from the middle of the 19 century Al-Thani
authority gradually came to be exercised throughout the peninsula. Moreover, Bahrain has
produced no evidence whatsoever that until the 1930s Bahrain was sovereign over, or exercisedany authority over, any part of the peninsula or its adjoining islands. What the evidence does in
fact show is that after 1868 any remaining Al-Khalifah influence in Qatar had disappeared 34.
1.32 With regard to its claims of territorial sovereignty, Bahrain makes exaggerated claims and
assertions both as to the acts of sovereignty that it allegedly performed and as to the territorial
scope of its alleged authority. For the Hawar islands, Bahrain refers to what it describes as "the
th
uninterrupted sovereign35 exercised by Bahrain over the Hawar Islands from the 18 Century
until the present day" . Reference to the evidence relied upon by Bahrain in this regard shows
however that there was no such exercise of sovereignty whatsoever.
1.33 As far as Zubarah is concerned, the story is much the same. Bahrain asserts that "the
Zubarah Region was Bahraini until the Al-Thani attack of 1937" . It appears that Bahrain bases
this assertion upon the alleged "presence in the Zubarah Region of the Naim tribe, loyal to the
Al-Khalifa, from the Al-Khalifa's founding of Zubarah in the 1760s until the Al-Thani attack of
37
1937" , coupled with "the consistent recogniti38 by Britain of the reality and authority of
Bahrain's rights over the Zubarah Region" . The fallacy of these statements will be dealt with in
further detail in Chapter VI below. In the present context, Qatar would simply point out that
Bahrain has produced no evidence that would allow it to make such assertions, with respect to
either the loyalty of the Naim tribe to the Al-Khalifah, the extent of the area dwelt in by that tribe
(or, rather, the small section of the tribe on which Bahrain's claim is in fact based), or the
supposedly consistent recognition by the British of any rights of Bahrain, either in Zubarah itself
or in the surrounding areas, which constitute the extravagant "Zubarah region" claimed by
Bahrain. As will be further seen in Chapter VI below, there is substantial evidence that not only
flatly contradicts Bahrain's assertions but also shows that from time to time the Rulers of Bahrain
have disclaimed sovereignty over Zubarah.
1.34 Finally, Bahrain's claims and assertions are no less exaggerated when it comes to the
maritime aspects of the case. It is hardly necessary to comment on Bahrain's assertion that it has
"sovereignty over the entirety of the insular and other maritime features situated between the east
coast of the main island of Bahrain and the west coast of Qatar" . As for Bahrain's actual
maritime claim, the Court needs only to glance at the map produced by Bahrain to illustrate its
proposed single maritime boundary in order to appreciate just how grossly exaggerated and
40
unreasonable that claim is .
1.35 Qatar will of course deal with all these points in detail in the relevant Chapters below. It
considers it proper to raise them here, however, since it has good reason to believe that Bahrain
has advanced grossly extravagant claims for purely tactical purposes. Bahrain must realise that it
has no valid claim to Zubarah, yet it inflates this claim in an attempt to make it appear to be on
an equal footing with Qatar's well-founded claim of sovereignty over the Hawar islands.
Similarly, the extravagance of the maritime boundary claimed by Bahrain is readily apparent,
when it is compared with Qatar's reasonable and justified maritime claim.
C. Mis-citations and selective quotations in Bahrain's written pleadings
1.36 Bahrain's attempt, in the pursuit of its litigation strategy, to re-invent and distort the history
of Qatar has already been exposed in sub-section B above. If that were not alarming enough, it is
equalled, if not exceeded, by Bahrain's use in its Memorial and Counter-Memorial of mis-
citations and selective quotations. Qatar has selected a few mis-citations and selective quotations
in order to give the Court a flavour of the totally false picture which Bahrain is presenting to the
Court. While some of these are dealt with in the course of this Reply, in order not to interrupt the
flow of Qatar's presentation of the relevant issues in the case, Qatar has set out in Appendix 1 the
most significant of these mis-citations and selective quotations which it has detected 4. In thus
drawing attention to the examples given, Qatar would respectfully invite the Court to check
carefully the source cited for any statement in Bahrain's written pleadings in order to satisfy itself
that:(a) a significant qualification of the statement has not been omitted from the citation; or
(b) the document which has been annexed to the Bahrain Memorial or Counter-Memorial in fact
corresponds to the description given to it; or
(c) the document from which the citation has been extracted does not subsequently include a
statement contradicting the citation itself; or
(d) an exaggerated or false title has not been given to a document from which a citation has been
extracted; or
(e) a slanted or selective presentation of a document has not been given.
1.37 Qatar has sought to present the content of the Appendix under these distinct headings; but
the Court will understand that some of the examples given could be presented as falling under
more than one heading.
1.38 Finally, Qatar finds so many false assertions and mis-statements with regard to Zubarah in
paragraphs 151 to 157 of the Bahrain Counter-Memorial that it is obliged to make a general
traverse of everything alleged in those paragraphs, simply referring the Court as necessary to the
detailed treatment of Zubarah in paragraphs 5.9 to 5.63 of the Qatar Counter-Memorial and in
Chapter VI of this Reply.
Section 3. Bahrain's Continuing Violations of the Status Quo
1.39 In both its Memorial and Counter-Memorial, Qatar has drawn to the attention of the Court
various violations by Bahrain of its status quo commitments embodied in the 1983 Principles for
the Framework for Reaching a Settlement and in the 1987 Agreement between the Parties . 42
Since the filing by the Parties of their Counter-Memorials, Bahrain has continued to violate those
commitments. Qat43 attaches to this Counter-Memorial a number of notes verbales concerning
such violations .
1.40 These notes verbales speak for themselves, and in general call for no comment. However,
Qatar44ould like to draw to the attention of the Court Qatar's note verbale dated 1 August
1998 . That note refers to the publication in Bahraini newspapers of a statement made by
Bahrain's Minister of Housing, Municipalities and Environment according to whom Bahrain was
planning, inter alia, to build a 22.5 kilometre causeway to connect Hawar to Bahrain. After
reminding Bahrain that any such action would be a breach of the Principles for the Framework
for Reaching a Settlement and of the 1987 and 1990 Agreements between the Parties, Qatar
requested Bahrain to confirm that it had no intention of implementing the reported scheme. To
date, Bahrain has not seen fit to reply to this request.
1.41 It is quite clear that under the Second Principle of the Framework agreed in 1983 (as again
set out in paragraph (a) of the second point of the 1987 Agreement), any action infringing the
status quo is null and void and can have no legal effect. In this regard Qatar believes however
that Bahrain's insistence, in both its Memorial and its Counter-Memorial, on the relative poverty
of its natural resources and the density of its population may not be entirely innocent, but may be
designed to lead the Court to believe in particular that the Hawar islands should not be returned
to the sovereignty of Qatar because they have become an essential part of Bahrain's territory and
economy 45. Qatar submits that the Court should not allow itself to be misled in this way, for both
legal and factual reasons.
1.42 Legally, as has been seen above, the Parties have bound themselves to recognise that any
action infringing the status quo is null and void and can have no legal effect. Factually, as may
be seen from the photographs of mosaics of slides taken of the Hawar islands, it is only in recent
years - and in particular since the filing of Qatar's Appl46ation in 1991 - that Bahrain has begun
to develop civilian facilities on the main Hawar island . While the mosaics made from 47
photographs taken during the period from 1958 to 1977 show only a few military constructions ,the 1991 mosaic shows not only the considerable military development that had taken place on
the island since 1977, but also the construction of a palace and associated buildings . The
mosaic prepared from photographs taken in April 1997 shows a startling amount of new
49
construction undertaken since 1991 . In addition to a new military camp, that mosaic shows
paved roadways, a harbour, a jetty, a hotel, two groups of chalets, and other new b50ldings. As
may be seen from the most recent photographic evidence, the trend has continued . For
example, the military facilities have been further extended, more chalets have been built, and a
housing project has been undertaken.
1.43 This development of the main Hawar island by Bahrain is totally artificial and self-serving.
The Hawar islands are naturally barren areas, and were certainly such at the time this dispute
crystallised. They have no natural water supply and therefore could not sustain human habitation
if water were not transported from Bahrain at great expense. In this regard, Qatar submits that it
is telling that Bahrain has gone to no such efforts to develop the southern part of the main
Bahrain island, which, like the Hawar islands, is an unpopulated desert area.
1.44 In these circumstances, the Court will appreciate that no account whatsoever should be
taken of Bahrain's efforts to create an appearance of economic importance for the Hawar islands.
Those efforts are quite artificial, are a violation of the Parties' commitment to maintain the status
quo, and can have no legal effect.
__________
FOOTNOTES
1 See, in particular, in this regard, the note verbale from the Foreign Ministry of Bahrain to the
Foreign Ministry of Qatar dated 4 April 1999 (QR, Appendix 3, Vol. 5, p. 65).
2 See, QM, Annex II.11, Vol. 4, p. 285, at p. 291.
3 Qatar received copies of these highlighted texts, which were submitted by Bahrain to the
Court, under cover of the Court's letter dated 17 March 1998.
4 See, QM as highlighted by Bahrain, para. 5.1.
5 BCM, para. 366.
6 QM, paras. 10.59, et seq.
7 BCM, para. 468.
8 See, QM, paras. 3.38 and 5.6; see, also, QCM, para. 2.26.
9 See, for example, BCM, para. 19.
10 BCM, para. 20.
11 QM, Chap. III, Sect. 3 and Chap. V, and para. 3.38, respectively.
12 QCM, para. 2.14.
13 See, QM, paras. 3.19, et seq., and 3.24, et seq.
14 BCM, paras. 18-19.
15 BM, para. 20. Bahrain even appears at one point, on the basis of the purest "nominalism", to
be claiming over four thousand years of statehood for itself: see, BCM, para. 32.
16 BCM, para. 36.
17 BCM, para. 43.
18 See, QM, paras. 3.24, et seq., and QCM, paras. 2.59, et seq.
19 See, BCM, para. 38.
20 BCM, para. 68.21 See, QCM, para. 2.25, and Annex II.75, Vol. 2, p. 413, which is an extract from a book by
W.G. Palgrave, describing his travels in 1862-1863. See, also, Appendix 1 at the end of this
Volume, para. 5.
22 QM, para. 3.44.
23 See, QCM, paras. 2.28, et seq.
24 QM, paras. 3.56-3.57; see, also, paras. 2.35, et seq., below.
25 BCM, para. 22.
26 See, QCM, para. 2.9 (which refers to one of Bahrain's own annexes, an Ottoman document
which establishes beyond doubt that the kaza of Qatar comprised not only Doha and its environs,
as Bahrain would have it, but the whole peninsula including Zubarah and Odeid), paras. 2.29, et
seq., and 3.40, et seq.
27 See, paras. 2.39, et seq., below.
28 See, for example, BM, paras. 131 and 139, and BCM, paras. 118 and 131-132.
29 BCM, para. 483.
30 BCM, para. 495; italics added; underlining in original.
31 See, QCM, paras. 7.24, et seq.
32 See, also, QM, para. 9.3, and QCM, paras. 7.42-7.43.
33 See, for example, QM, para. 12.10.
34 See, paras. 3.22, et seq., below.
35 BCM, para. 158.
36 BCM, p. 12.
37 BCM, para. 154.
38 Ibid.
39 BCM, para. 537.
40 BCM, Map 1, facing p. 196.
41 See, Appendix 1 at the end of this Volume.
42 See, QM, paras. 1.16, et seq., and QCM, para. 1.37. As the Court will recall, in its Judgment
of 1 July 1994, the Court held that the 1987 Agreement was an international agreement.
43 QR, Appendix 3, Vol. 5.
44 Ibid., p. 57.
45 See, for example, BM, paras. 54, et seq., and BCM, paras. 159, 164 and 495, et seq.
46 See, QM, Appendix 7, Vol. 16; QCM, Appendix 3, Vol. 6; and QR, Appendix 4, Vol. 6.
47 QM, Appendix 7, Vol. 16, Illustrations A, B, C, D and E.
48 Ibid., Illustration F, also reproduced in QR, Appendix 4, Vol. 6.
49 QCM, Appendix 3, Vol. 6, Illustration G, also reproduced in QR, Appendix 4, Vol. 6.
50 QR, Appendix 4, Vol. 6.
__________
CASE CONCERNING MARITIME DELIMITATION AND
TERRITORIAL QUESTIONS BETWEEN QATAR AND BAHRAIN
(QATAR V. BAHRAIN) REPLY OF THE STATE OF QATAR
_____________________________________________
PART II 19
THE GEOGRAPHICAL AND HISTORICAL BACKGROUND 19
CHAPTER II - THE TERRITORIAL INTEGRITY OF QATAR 19
Section 1. The Overall Geographical Context 19
Section 2. The Emergence of the Al-Thani as a Political Force in Qatar 20
Section 3. Relations between the Al-Thani and Nasir bin Mubarak 28
Section 4. The 1913 and 1914 Conventions 32
Section 5. The 1916 Treaty 41
Section 6. Al-Thani Authority throughout the Peninsula of Qatar was consolidated long before
the 1930s 44
Section 7. The Map Evidence 48
A. Introduction 48
th
B. 19 century maps 50
C. 20 century maps 53
D. Conclusion as to the maps 56
__________
PART II
THE GEOGRAPHICAL AND HISTORICAL BACKGROUND
CHAPTER II
THE TERRITORIAL INTEGRITY OF QATAR
2.1 The territorial integrity of the Qatar peninsula, including its territorial waters and the islands
partially or wholly within those waters, was well established long before the 1930s. The history
of the gradual establishment and consolidation of Al-Thani authority throughout the peninsula
has already been set out in Qatar's previous pleadings . It is however necessary to set the record
straight on the general geographical and historical background, given the various extravagant
assertions made by Bahrain in its Counter-Memorial. Qatar will endeavour to do this in the
following sections, where it will also be seen that Qatar's account of the geography and history in
its previous pleadings is confirmed by a wealth of further material from various sources. It is
against this background that the specific issues relating to the Hawar islands, Janan and Zubarah,
in Chapters IV, V and VI below, must be addressed.
Section 1. The Overall Geographical Context
2.2 To summarise the geographical context as already set forth in Qatar's Memorial Qatar is a
peninsula jutting northward into the Arabian/Persian Gulf from the head of the bay known as
Dawhat Salwah on the west and, on the east, from south of the inlet known as Khor al-Udaid.
Qatar has a southern land boundary with Saudi Arabia. The peninsula is about 180 kilometres
long north to south and a maximum of 85 kilometres wide. The Hawar islands and Janan island
are located close to the western side of the Qatar peninsula. The ruins of the town of Zubarah are
to be found on the north-western coast.2.3 Bahrain is situated midway along the Arabian/Persian Gulf. It consists of the island of
Bahrain itself, together with a number of small islands and islets lying close to its shores,
forming a compact group. The inhabited area of Bahrain is in the north, the south being
uninhabited desert. The main island of Bahrain is about 43 kilometres in length from north to
south, with a breadth of about 12.8 kilometres for most of its length. The other two inhabited
islands lie to the north-east and east of the main Bahrain island, the larger being Al Muharraq,
and the other Sitrah. They are each joined to the main island by a causeway.
2.4 These geographical facts are important in the context of the historical background, to which
Qatar will now turn.
Section 2. The Emergence of the Al-Thani as a Political Force in Qatar
2.5 Qatar will not repeat here the discussion already contained in its Memorial and Counter-
Memorial concerning the establishment and consolidation by the Al-Thani of authority and
control over Qatar. Suffice it to say that Qatar has already shown that before the arrival of the
Ottomans, Mohamed bin Thani was considered to be the head of the province, and that his
position as such was recognised by the British in 1868 . Qatar has also shown that Sheikh
Jassim, Moh4med bin Thani's son, used the Ottoman presence in order to consolidate his rule
over Qatar . With respect to Zubarah in particular, Qatar has provided evidence that by 1874,
Mohamed bin Thani was exercising his authority in the area, and that Sheikh Jassim continued to
exercise his authority there on several occasions thereafter . As to the foot of the peninsula, in
particular on the south-western border, Qatar has provided, inter alia, several British thports tha6
confirm exercise by the Al-Thani of their authority during the first years of the 20 century .
Similarly, Qatar has produced British reports demonstrating that Sheikh Jassim controlled tribes
in the interior of the peninsula . To quote an author who is also relied upon by Bahrain, Sheikh
Jassim (who, it will be remembered, died at an advanced age in 1913):
"... had obviously done much for Qatar besides giving it a more independent status;
he had also contributed to the beginning of its development as a state, instituting
several social and economic measures to unify Qatar. Once his position was more
secure throughout the p8ninsula, for example, he constructed roads to connect the
main towns of Qatar" .
2.6 The fact that at the time of the Ottoman presence in Qatar Sheikh Jassim's authority extended
far beyond Doha is again confirmed by a report entitled "Revised Summary of Evidence in
Support of the Claims of Qatar in the Frontier Question", dated 11 January 1952 which was
prepared by the Political Officer in Qatar. That report states as follows, under the heading
"Evidence of Acts of [sic] Events indicating the Position of the Frontier":
"Shaikh Jasim bin Mohammad al Thani, the Qaimaqam of Watar [sic] and his brother
Ahmad maintained guards on the frontier, and those guards were posted at or
patrolled al 'Oraij [al-Araiq], Qarn Abu Wail, Suda Nithil and Al Muharaf. These
guards remained there during the Summer, when the men of Qatar were for the most
part away pearl diving and foreign incursions were therefore most to be feared.
Shaikh Abdullah when he succeeded Shaikh Jasim, continued this practice. Ghanim
bin Saif served on the frontier under both Rulers..." 9.
2.7 Nevertheless, and despite the additional overwhelming evidence to the contrary, as will be
outlined in this Chapter, Bahrain has introduced into its Counter-Memorial the new and
imaginative idea that until 1937 the Qatar peninsula was shared out among three
"confederations": the "Naim-led tribal confederation in the north (whose allegiance lay with the
Al-Khalifa dynasty)"; the "Bedouin tribes of Eastern Arabia who occasionally grazed their flocks
in the south of the Qatar peninsula on a seasonal basis (whose allegiance lay with the Al-Saud
dynasty)"; and last - and also, Bahrain implies, least - "the pearl-merchant enclave in Doha (thetiny Al-Thani-led Doha confederation, dominated by the larger, more powerful and tribal-based
10
Bahraini and Saudi sphere of influence...)" .
2.8 This is not only highly misleading but is a grave distortion of what was, in the second half of
the nineteenth century, a complex pattern of human geography in the Qatar peninsula. To portray
that human geography as consisting of these three elements from the middle of the nineteenth
century until 1937 is to ignore entirely the Ottoman presence in Qatar from 1871 to 1916; is to
present the Naim during this period as a unified and politically potent force in Qatar instead of a
tribe divided in its loyalties; and, by describing the Al-Thani sheikhs as the "pearl-merchant
enclave in Doha" dominated by the larger, more powerful and tribal-based Bahraini and Saudi
spheres of influence, is deliberately to attempt to downgrade the extent of the authority which the
Al-Thani sheikhs unquestionably exercised (and which the British Government acknowledged
that they did exercise) in and over the peninsula from the mid-nineteenth century onwards. It is
unnecessary to go into great detail here, and Qatar will simply show briefly that Bahrain's
representation of the alleged limited scope of the authority of the Al-Thani sheikhs flies in the
face of the evidence, including the evidence submitted by Bahrain itself.
2.9 The most that Bahrain seems prepared to acknowledge is that11 "power vacuum" in Doha in
1848 allowed the Al-Thani to "achieve local prominence" ; but, referring to Chapter 2 of its
Memorial, it adds that it has already described "the traditional control of the Al-Khalifa over the
inhabitants and territory of the Qatar peninsula from the time they founded Zubarah" . Yet that
Chapter reveals only that Bahrain has been unable to provide any real evidence to support this
statement. This is particularly true in relation to the period following 1868. Rather, Bahrain itself
provides evidence to the contrary, such as the extract from Lorimer's Gazetteer, which refers to
the Al-Thani having "attained by 1868 to predominant influence in Qatar" 1. This hardly squares
with Bahrain's description of the Al-Thani, some 70 years later, as leading a "tiny" confederation
of pearl merchants in Doha.
2.10 Bahrain also ignores the key position of Sheikh Jassim bin Thani as kaimakam of the kaza
of Qatar (to which post he was appointed by the Ottoman authorities in 1876), and the fact that
during the Ottoman period Al-Thani authority was gradually extended and consolidated
throughout the whole of Qatar . Sheikh Jassim skilfully played off the two major Powers in the
region (Turkey and Britain) against each other, complaining to the British authorities against the
financial and other exactions of the Ottoman authorities, an15complaining to the Ottoman
authorities about the misdeeds of the British authorities . It will also be recalled that it was
Sheikh Jassim who, after the British authorities had complained to the Ottomans in September
1878 about disorders and piratical activities committed by the inhabitants of Zubarah, attacked
and indeed sacked the town as a punishment . He was now, and remained until his death in
1913, the dominant figure in Qatar.
2.11 An Ottoman report dating from 1893, upon which Bahrain relies in an attempt to show that
the Al-Thani had little authority among Qatari tr17esmen, estimates the number of tribesmen who
were subject to Sheikh Jassim as 7,000-8,000 ; to say the least, this figure is hardly indicative of
the alleged status of the Al-Thani as mere pearl merchants in Doha. To the contrary, the number
of tribesmen subject to Sheikh Jassim is most impressive when compared with the total
population of Qatar some seventy years earlier which, according to Bahrain, numbered only
18
3,500 .
2.12 In fact, it is clear from evidence submitted with this Reply that by the end of the 19 th
century Sheikh Jassim was a force to be reckoned with, and that there was even a possibility that
he might try to take possession of Bahrain. As the German Ambassador in Baghdad reported:
"Up to the present, the Kaimakam of the Qatar Peninsula opposite Bahrain, Sheikh Jassim
Ibn Thani (who is an Arab himself) has resisted probable British temptations and remained loyal to the Sultan's government; and might rather volunteer his services in taking possession
of the Island of Bahrain for Turkey..." 19.
2.13 Further specific events show that Sheikh Jassim was capable of amassing large military
forces and of posing a serious threat to other powers in the region, and that he had equal standing
with other local rulers. The first of these events occurred in 1897-98, after Sheikh Muhamed Al-
Sabah of Kuwait had been murdered by Mubarak Al-Sabah, who had taken his place as ruler.
When he was appealed to by the murdered Sheikh's sons, Sheikh Jassim assembled a force to
march on Kuwait in an attempt to oust the usurper . This caused considerable alarm in Ottoman
quarters, and it was decided that military action would have to be taken against Sheikh Jassim in
order to prevent him from attacking Kuwait. Thus, a note of 27 November 1897 stated that the
number of troops to be despa21hed against Sheikh Jassim should be 8 battalions (or 4,000 men),
with experienced officers .
2.14 Despite these military preparations, a report of a special sitting of the Council on 18
December 1897, signed by the Grand Vizier and various ministers, records the fact that by that
time Sheikh Jassim "had set out with the forces under his command for Kuwait" and that his
intention was "to occupy and protect Kuwait" . That the Ottomans were right to take this threat
seriously is demonstrated by the fact that on 17 January 1898, Sheikh Jassim was at Fao,
23
adjacent to Kuwait . The attack on Kuwait was however averted by the Ottomans, apparently at
the last moment, by an appeal to Sheikh Jassim from the Sultan, following which Sheikh Jassim
had "started immediately to dismiss the tribes who had gathered" in support of the planned
attack 2.
2.15 A few months later, after Sheikh Jassim had been dissuaded from taking Kuwait, he turned
his attention to the Turkish soldiers who were stationed in Qatar, resulting in their being
"marooned" in their fort. Again, this situation was brought to the attention of the Ottoman
authorities at the highest level, in order to determine what "rational measu25s" could be taken to
"avoid the occurrence of undesirable events against the Sultan's will" . It was felt necessary to
hold another special sitting of the Council in this regard, comprising various ministers and the
Grand Vizier, where it was determined that Sheikh Jassim's actions constituted "a continual
threat to the peace and safety of Nejd" 26.
2.16 It is moreover ironic that while Bahrain speaks scathingly, and without any supporting
evidence, of the Al-Thani being nothing more than the leaders of an alliance of pearl merchants
in Doha, an alliance was indeed formed in 1909 which included Sheikh Jassim as one of its
leaders. However, this was not a local association of pearl merchants: the other leaders of the
alliance were Ibn Saud and Mubarak Al-Sabah of Kuwait. As was reported on 13 December
1909, these three leaders were making preparations for war, and "[t]o put up a barrier against
foreign incursions they have established a tripartite agreement for defence and aggression" 27.
2.17 News of this triple alliance also reached the ears of the British. In the Political Diary of the
Persian Gulf Residency for the month of December 1909, it was reported as follows:
"It is reported that he [Abdulaziz bin Saud] intends to attack Hasa in company with members
of the Bin Thani family, and that Sheikh Abdullah bin Jasim [Al-Thani] with 3,000 men of
the Beni Hajir, Munasir and Katar tribes is ready to assist Abdulaziz and Sheikh Mobarek of
Koweit in their attack upon the Ajman. Some people think that the real object of the triple
alliance is to attack Hasa. Later reports show that Sheikh Abdullah bin Jasim bin Thani has
proclaimed in Katar that any of his subjects who is unable to take part in his proposed
expedition, should provide one man with a gun and dromedary. He has compelled each
Persian [sic; person?] to give him ¼ maund of ghi, 1 maund of flour and some money.
... It is reported that when Muhammed bin Hithlain, Headman of the Ajman, heard of the
intended invasion of the Ajman by Sheikh Mobarek, Bin Saud and Sheikh Abdullah bin
Thani, he went to Bin Saud and asked immunity on condition that his tribe will return 28
everything they have plundered, to Sheikh Mobarek and Sheikh Abdullah bin Thani" .
2.18 The Ottomans sent reinforcements to the area to prevent any belligerent action by the
29
tripartite coalition . Nevertheless, it was reported some days later that "Sheikh Abdullah Al-
Thani, son of the Qatar Kaimakam is advancing in the direction of north-east Hasa with all the
men he has been able to gather from various tribal groups, supposedly for launching a gazve
[war] on the Ajman" . By 12 January 1910, it was reported that Sheikh Jassim had sent:
"... a force of about 1000 men recruited from three sections of the Beni Hajer tribe and from
one section of the Al-Murrah tribe under the command of Abdullah Al-Thani, Jassim's son,
and caused the cattle of 3 or 4 groups of Ajman, at a distance of six days from Hofuf, to be
taken by force with a 31ew to taking revenge on the said Ajman, who had been attacking and
pestering his tribes" .
2.19 In this regard a letter dated 16 February 1910 from the Minister of War to the Office of the
Grand Vizier reported that Sheikh Jassim, "furious at the Ajman tribe, made Ibn Saud an
accomplice to his offence". The letter adds that "While the Ajman are busy recruiting warriors
against Ibn Saud, Ibn Saud is preparing a 'gazve' [war] in Riyadh. On the other hand Abdullah
bin Jassim Al-Thani's forces are joining with the Beni Hajer and Al-Manaseer" and that
"Mubarak Al-Sabah also is getting ready to join these force32, describing the situation as a
"tripartite alliance against the [Ottoman] Government" .
2.20 Two points are particularly noteworthy in the light of these events. First, Sheikh Jassim bin
Thani, along with his son Abdullah, who succeeded him as Ruler, was in a position of
considerable military power, dealing with Ibn Saud on an equal footing and enjoying the
allegiance of powerful tribes, to the extent that the Ottoman authorities were wary of him and
consulted at the highest level as to the military measures that would be necessary to quell him;
and second, there is no mention of the Ruler of Bahrain as a significant power, either in the
peninsula of Qatar or elsewhere on the Arab mainland.
2.21 Finally, it should be noted that after Sheikh Jassim's death his successor, Sheikh Abdullah,
was also far from being a mere Doha pearl merchant. In the Bahrain Political Diary for the
month of March 1920, following the observation that:
"... one may say that the actual ruler [sic] of Bahrain at the present moment are a clique of
33
three..." ,
it was stated that:
"Undoubtedly the triumvirate... are anti-foreign and so anti-British:-... Their difficulty is how
to get rid of British control of internal affairs, yet keep themselves protected from foreign
Arab rulers, such as Shaikh Abdullah bin Jassim of Qatar and Bin Saud. They know the
34
latter particularly would swallow up Bahrain, should British control be removed" .
2.22 As for the idea of a "Naim-led tribal confederation" which somehow exercised the authority
of the Ruler of Bahrain in the Qatar peninsula, it is just as fanciful as the idea of the Al-Thani
being no more than the leaders of a tiny and insignificant group of merchants in Doha. This
"Naim-led tribal confederation" is again something that has appeared for the first time in
Bahrain's Counter-Memorial. As will be seen in greater detail in Chapter VI below, there is no
evidence of the existence of such a confederation, which Bahrain has conjured out of thin air 35.
Section 3. Relations between the Al-Thani and Nasir bin Mubarak
2.23 A few words should also be said about a novel theory that Bahrain has put forward in its
Counter-Memorial, based on the presence in Doha of Nasir bin Mubarak, a dissident member ofthe Al-Khalifah family or, as Bahrain puts it, an "Al-Khalifa pretender" . It appears that Bahrain
has put forward this theory in an anxiety to demonstrate that after 1868 the Al-Thani continued
to acknowledge Al-Khalifah authority even in the part of Qatar that Bahrain chooses to call "the
Doha enclave". This new theory conflicts not only with the evidence, but also with Bahrain's
own attitude to Nasir bin Mubarak as expressed in its Memorial . 37
2.24 The Court will recollect that after his attack on Qatar in 1867, Mohamed bin Khalifah, the
then Chief of Bahrain, was forbidden by the 1868 Agreement from returning to Bahrain and was
replaced as Chief by his brother, Ali bin Khalifah. Upon plans initiated by Nasir bin Mubarak,
Nasir and Mohamed together mounted an attack on Bahrain in 1869 and killed Ali bin Khalifah
38
as well as one of his sons and various other Sheikhs . By reason of his part in these murders,
Nasir bin Mubarak was thereafter regarded by the British and by Sheikh Isa, the new Chief of
Bahrain, as an outlaw and a pirate. As will be seen below, he was never thereafter recognised as
having any rights in, or connection with, Bahrain.
2.25 In 1870, Sheikh Isa of Bahrain was concerned that Nasir might "attempt a descent on [his]
islands", and was authorised by the British "by all means [to] repel him", an action which, the
British assured Sheikh Isa, would not be regarded as a breach of his obligation to preserve the
maritime peace . In April 1872, Nasir bin Mubarak was reported to be living on a pension
granted him by the Turkish G40ernment and to have petitioned the Porte to the effect that "half
Bahrein belonged to him" .
2.26 In 1874, Nasir bin Mubarak arrived on the Qatar coast, where his presence began to cause
great anxiety as regards the security of Bahrain, in view of the possibility of his mounting an
attack on Bahrain. In December 1874, a report from the British Resident, Colonel Ross, stated,
inter alia, that:
"... the presence of Nasir bin Mobarik on the sea coast as a protégé of the Turkish authorities
is a standing menace to the existing Government of Bahrein. That individual has been
considered by the British Government as a pirate and enemy, and it would perhaps not be
thought unreasonable to demand that he should be restrained from acting against interests
41
which the British Government is concerned with" .
2.27 Having failed to secure any effective help from the Ottomans in attacking Bahrain, Nasir
turned to the British in 1881 and asked for their assistance in recovering his property in Bahrain.
On this occasion, Sheikh Jassim bin Thani supported him and asked Colonel Ross to act as
mediator between Nasir and Sheikh Isa. However, Colonel Ross replied that no rights of Nasir to
any property in Bahrain were recognised, and that any allowance given to him by the Bahrain
Government would be on condition of his abandoning his "evil designs" and selecting an
42
approved residence, other than Qatar . It is clear from this that far from regarding Nasir as
performing any role of delegated Al-Khalifah authority in Qatar, both the British and Sheikh Isa
regarded his presence there as a danger to the security of Bahrain, and sought his expulsion.
2.28 In nevertheless attempting to demonstrate that Nasir bin Mubarak somehow exercised
authority over the Al-Thani, Bahrain refers to the treatment that Sheikh Jassim allegedly
accorded to Nasir, announcing that Nasir would be Governor and that he himself would act as his
assistant43. To support this contention, Bahrain relies only on an unsigned and highly speculative
"News Agent's report" containing numerous rumours. The facts however show that, even if
Sheikh Jassim might occasionally have implied that he was acting under instructions from Nasir,
this was to serve his own political ends and to preserve his position vis-à-vis the British.
2.29 In fact, the British authorities regarded Sheikh Jassim bin Thani, and not Nasir bin
Mubarak, as being in effective control of the whole of Qatar and fully capable of preventing
Nasir bin Mubarak from launching any attack on Bahrain. While Sheikh Jassim appears to have
tried from time to time to disclaim responsibility for Nasir's actions, the British were not
deceived by such disclaimers, but informed him that he would be held responsible for Nasir'sconduct so long as he was on the Qatar coast. In a letter of 25 February 1881 to Sheikh Jassim,
Colonel Ross warned him:
"As regards Nasir bin Mobarek's threats I think that from kindness to you I should point out
that your proposal to free yourself from responsibility for his future movements on the Katar
Coast can by no means be accepted and allowed. It is well known that Nasir bin Mobarek's
arrangements are in consultation with you that he has no means of undertaking warlike
operations except with your consent & aid and that you have power to prevent such
movements on the Katar Coast - also it is certainly your duty to exercise vigilance and
prevent any warlike movements by sea.
I therefore from friendly considerations for your position and interest warn you that should
Nasir bin Mobarek find means to disturb the peace from your neighbourhood the
44
consequences would be disastrous to you" .
2.30 At the same time, in a report of 26 February 1881 to the Government of India, Colonel Ross
noted:
"The letters written by Nasir to Jasim and myself are I think dictated by the latter and the
intention is to try to force by intimidation compliance with the objectionable demands of
Nasir, and also, when read with Jasim's assertion, to save the latt45 from responsibility for
any future operations undertaken by Nasir against Bahrein..." .
In the same report, he went on to state:
"I would also recommend that instead of Jasim's disavowal of responsibility being admitted
he should be especially and strictly wa46ed that any hostile attempts headed by Nasir against
Bahrein will be attributed to him..." .
2.31 It was in response to these warnings that, in a letter dated 9 March 1881, Sheikh Jassim
denied that he had the power47o forbid anyone from landing on or embarking from Qatar's "very
large and extensive" coast . The letter containing this denial has been heavily relied upon by
Bahrain in an attempt to show the "geographic limitations" of Sheikh Jassim's influence as
Chief . When read in context, however, it becomes clear that Sheikh Jassim was making this
assertion only in an attempt to convince the British that he had no responsibility for Nasir bin
Mubarak's actions.
2.32 In any event, the British continued to refuse to believe Sheikh Jassim's protestations. In a
further report of 2 April 1881, the Political Resident reported to the Government of India as
follows:
"The information obtained by the agent tends to confirm the opinion I entertained that Jasim
bin Mahomed is insincere in his professions of inability to control his son-in-law and
continues to entertain the hope of being revenged on the Sheikhs of Bahrein through Nasir
bin Mobarek. That he is in any dread of the latter I do not believe" 49.
A summary of Nasir bin Mubarak's activities in 1880-1881 is contained in the Annual Report on
the Administration of the Persian Gulf Political Residency for that year . It is again quite
apparent from that Report that Bahrain was under constant threat of attack by Nasir, and that
Sheikh Jassim 51s believed to be "the prime mover and instigator of [his] threatening
movements " .
2.33 Against this background, the passage quoted by Bahrain from an incomplete and undated
note from the Political Resident of a conversation with Nasir bin Mubarak where Nasir alleged
that Shaikh Jassim somehow feared him offers no support for Bahrain's claim of Nasir's authority
in Qatar . The Political Resident clearly did not believe Nasir or take his claim seriously.
Indeed, the note begin53with the words "From the secret conversation with Nasir it appears that
Jassim is his inciter" .2.34 It will be seen therefore that Nasir bin Mubarak was regarded in Bahrain as an outlaw, an
enemy and a pirate from the time he participated in the murder of Bahrain's Chief Ali bin
Khalifah in 1869, and that he was considered as a constant threat to the security of Bahrain both
by the Ruler of Bahrain and the British. In these circumstances, there is plainly no support for
Bahrain's contention that his presence in Qatar ensured that Al-Khalifah authority was exercised
over "the Doha enclave" until at least 1881. There was simply no question of Nasir bin Mubarak
exercising any kind of delegated authority on behalf of the Ruler of Bahrain anywhere in Qatar.
As the above account also shows, it was always Sheikh Jassim who exercised power and
authority in Qatar and whose help Nasir sought. The British authorities considered Sheikh Jassim
as the effective power in Qatar; and by putting pressure on him or delivering warnings to him,
they were able to use his authority to ensure that Nasir was never able to mount an effective
attack on Bahrain.
Section 4. The 1913 and 1914 Conventions
2.35 Qatar has already shown that the Anglo-Ottoman Convention, signed on 29 July 1913,
recognised the autonomy of the Qatar peninsula under Al-Thani rule . In response, Bahrain has
argued in its Counter-Memorial that the Convention was never ratified and so had no legal
effect ; that in any event the reference to the peninsula "was the result of a last-minute political
56
man_uvre put forward on the spur of the moment by the Ottoman Minister to London in 1913" ;
and that "even as the ink was drying, the 1913 Convention had become largely irrelevant: the
Wahhabis, under Ibn Saud, had ejected the Ottomans from Hasa..., the Al-Thani clan was rapidly
losing its control over Doha; and the Ruler of Bahrain remained in possession of the northern
part of the Q57ar peninsula and other territories supposedly given away under the 1913
Convention" . All these arguments are either irrelevant or fallacious, as will now be seen.
2.36 As to the first point, Qatar acknowledges that the 1913 Anglo-Ottoman Convention was not
ratified. It was, however, signed by both parties, and Article 11 of the Convention must have
been regarded by both of them as declaratory of an existing state of affairs, since it was expressly
referred to in Article III of the 1914 Anglo-Turkish treaty, which was ratified . It will be
recalled that Article 11 was the provision of the 1913 Convention defining the boundary line
separating the Ottoman sanjak of Nejd from the peninsula of Qatar. The same article recognised
that the peninsula would be governed as in the past by Sheikh Jassim bin Thani and his
successors, and contained a declaration by the British Government that it would not allow the
interference of the Sheikh of Bahrain in the internal affairs of Qatar, his endangering the
autonomy of that area, or his annexing it.
2.37 The boundary line defined by Article 11 of the 1913 Convention was commonly referred to
as the "blue line". Recognition by the British of its legally binding nature, despite non-
ratification of the Convention, is further confirmed by the attitude taken by the British
Government in its boundary negotiations with Saudi Arabia in the 1930s. This attitude was
clearly expressed by the British negotiator, Sir Andrew Ryan, in a note to the Acting Saudi
Minister for Foreign Affairs dated 15 June 1934, as follows:
"... my Government have instructed me to inform the Saudi Government of their
inability to admit that events since the conclusion of the Anglo-Turkish Conventions
of 1913 and 1914 have modified the legal position defined in my note of the 28 th
April. They cannot but regard that position as binding on the Saudi Government and
as being only susceptible of alteration by agreement between that Government and
themselves. So far as the boundaries now in question are concerned, they do not
consider that any developments in Arabia since 1914 have been such as to render
inappropriate to present circumstances the blue line laid down in the Anglo-Turkish
Convention of 1913 and duly confirmed by the convention of 1914" . 592.38 The British thus regarded the provisions of Article 11 of the 1913 Convention as binding,
notwithstanding non-ratification of the Convention. But even if the Convention's binding nature
might be disputed on purely formal grounds, it is nonetheless of considerable evidentiary value 60
as to the British and Ottoman perception of the situation in Qatar and Bahrain at the time .
2.39 As Qatar has already demonstrated, an analysis of the terms of the 1913 Convention shows
that the autonomy of the whole peninsula under Bin Thani rule was recognised, and that61he
Hawar islands were by implication considered as appertaining to the peninsula . In its Memorial
Bahrain argued, flying in the face of the express terms of the Convention, that "what was at issue
in the relevant part of the Anglo-Ottoman negotiations was the future of the Ottoman province of
62
'Qatr', in other words Doha and its environs" . In support of this contention Bahrain relied upon
what it calls a "primitive but highly instructive" 1878 map prepared by a Captain Izzet of the
Ottoman army. That map, according to Bahrain, "clearly locates 'Qatar' as a place in the far
south-east corner of the peninsula" . 63
2.40 Qatar does not accept the conclusions that Bahrain draws from this "primitive" map, which
depicts the Ottoman vilayet of Basrah. As will be shown below, the map is similar to other
Ottoman maps depicting territory that the Ottomans claimed as theirs, which included both Qatar
and Bahrain . In Qatar's submission, while there are some instances in the Turkish and British
records that show that the word "Qatar" was at times used in a narrow sense to refer to Doha, it
has generally and historically been used to refer to the whole peninsula over which the Ottomans
and the Al-Thani exercised authority. It is thus not surprising, on Captain Izzet's map, to see
Doha labelled "Qatar", as the centre of the kaza of Qatar.
2.41 For a better understanding of this question, it is instructive to refer to the Ottoman Vilayet
Regulation dated 11 August 1872. Item four of Chapter Two, Section One of that Regulation
provides as follows:
"The kaza is divided into köys [villages]. Every köy has a municipal administration. Small
daires [districts] formed of a number of köys are not independent kazas but are under another
kaza. These administrative units are called nahiyes" 65.
In a recent report explaining Captain Izzet's map, Dr. Zekeriya Kursun of the University of
Marmara states:
"... the vilayet (province) of Basrah was made up of the central sanjak of Basrah, and of the
sanjaks of Muntefik, Ammara and Hasa (or Nejd). Every sanjak was subdivided into kazas,
nahiyes and köys (villages) so that the sanjak of Hasa (Nejd) consisted of the kazas of Hofuf,
Qatif and Qatar, while the kaza of Qatar was composed of the nahiyes of Zubarah, Udeid and
Wakrah in addition to 19 villages. Nominally, Bahrain also fell within the sanjak of Hasa
(Nejd), although it was not included within any kaza, including the kaza of Qatar" 66.
2.42 A wealth of material - some of it supplied by Bahrain itself in its documentary annexes -
confirms that the Ottoman kaza of Qatar encompassed the whole peninsula, which was entirely
distinct from Bahrain. It has already been noted in Qatar's Counter-Memorial that one of the
documents produced by Bahrain with its Memorial was clear evidence that the kaza of Qatar
67
included the nahiyes (sub-districts) of Zubarah and Odeid . Further evidence has now been
supplied by Bahrain with its Counter-Memorial. An example is to be found in a letter of 17
October 1891 from the Governor of the sanjak of Nejd. According to that letter:
"... there must be built in the capital of the Kaza of Katar a government residence and
a building large enough for 50 cavalry officers to reside, in each of Udeyd and
Zubara there must be buildings constructed to house a governor and 30 infantry
soldiers, and it is necessary to send additional soldiers and also a corvette to protect
68
the coast" .The author of this letter, who was the governor of the sanjak containing the kaza of Qatar,
undoubtedly considered that that kaza comprised not only Doha, the "capital of the Kaza of
Katar", but also Zubarah in the north-west of the peninsula and Odeid in the south-east.
2.43 Further, an Ottoman report concerning Bahrain, Qatar, Nejd and Basra, dated 29 May 1917,
but speaking of the situation immediately prior to signature of the 1913 Convention, noted as
follows:
"... le point de vue du Gouvt. Il. et celui de la Grande Bretagne sont en contradiction
formelle, à savoir que la S. Porte considère la presqu'île comme faisant partie
intégrante de l'Empire, tandis que l'Angleterre déniant cette manière de voir attribue
au Cheik Djassim-Ibn-Sani une indépendance complète" . 69
70
These documents and others have been submitted by Bahrain itself, with its Counter-Memorial .
2.44 That the Ottoman administrative unit of "Qatar" was clearly understood by the Ottomans as
covering the whole of the peninsula over which Sheikh Jassim bin Thani exercised authority as
the kaimakam is also demonstrated in a supplement to an undated Ottoman report presented to
the Grand Vizier in approximately 1895, which states:
"The place called Qatar, on the coast at a distance of one hundred miles from the Ojeir land
station, is a tongue projecting into the sea between Oman and Bahrain Island... Almost the
entire population is engaged in fishing and pearl-diving, they also deal in other commercial
articles and shipping. The number of their vessels varies between five to six hundred... The
administrative centre of this kaza is the kasaba Al-Bida. The kasaba of Al-Bida consists of
some 2,710 dwellings made of stone and chalk. It has eleven villages which are on the
coast" .
2.45 Ottoman maps confirm the extent of the kaza of Qatar. For example, Map No. 2, facing
page 38, depicts both the kaza o72Qatar, covering the whole peninsula, and the kasaba (town) of
Qatar, corresponding to Doha .
2.46 As will be seen below, ithwas also the general consensus among the continental European
powers at the end of the 19 century that the whole of the Qatar peninsula was under Ottoman
and/or Al-Thani control 73 - a position that even the British had been prepared to recognise in the
first years of the Ottoman presence in Qatar. Initial British recognition of this situation is to be
found in the Annual Report on the Administration of the Persian Gulf Residency for the year
1874-75. That Report states, with respect to the "Coast from Kutr (Guttur) to the Shatt-al-Arab",
that there had been "No alteration... in the status of these provinces which still remain under
Turkish control and are occupied at points by Turkish troops" 74.
2.47 While the British subsequently became less willing to recognise Ottoman control over the
Qatar peninsula, this did not prevent them from acknowledging that de facto the Al-Thani
exercised authority over the whole peninsula during the Ottoman period. As was stated in a
British Military Report on Arabia, dating from 1904:
"The Katr peninsula to the east of the island of Bahrein is ruled by Sheikh Jasimn-ib-Thani
[sic], a rich and powerful chief, who has a following of about 2,000 fighting men" . 75
Also, when the death of Sheikh Ahmed bin Thani, the brother of Sheikh Jassim, was reported by
the British in their Administration Report for 1905-1906, it was stated that his death was "a
matter for regret as he was disposed to be friendly and was formerly a candidate for active
British support in return 76r his good offices in preserving the maritime peace off the Katar
Coast and pearl banks" .
2.48 As regards British records relied upon by both Qatar and Bahrain in these proceedings, it
will be recalled that Saldanha recorded separately and extensively various historical events
relating to Qatar and Bahrain in his Précis of Katar Affairs for the period 1873-1904 and hisPrécis of Bahrein Affairs for 1854-1904 (both published in September 1904) and that he treated
the expression "Katar" as applying to the whole peninsula . There is no suggestion in his
account that the Ottoman/Al-Thani "Katar" was restricted to a town or to the south-eastern
corner of the peninsula or that the remainder of the peninsula was under any Al-Khalifah
authority.
2.49 Similarly, Lorimer's Gazetteer, published four years later in 1908, separately and
extensively records the geography and history of Qatar and Bahrain, respectively. In his
description of the "Boundaries" of Qatar, Lorimer not only treats the expression "Qatar" as
referring to the entire peninsula but, as has already been seen, includes the Hawar islands as part
78
of "Qatar" .
2.50 In these circumstances, it was therefore quite natural for the 1913 Convention to provide for
the renunciation of all Ottoman claims to the peninsula, considered at least by the Ottomans as
synonymous with the kaza of Qatar, and considered by both the British and the Ottomans as
subject to Al-Thani rule.
2.51 Bahrain has argued however that in the context of negotiation of the 1913 Convention, "it is
noteworthy that Britain, from the 79tset in 1911, expressly protected the interests of the Ruler of
Bahrain in the Qatar peninsula" . In support of this statement, Bahrain refers to a short extract
from a British memorandum of 29 July 1911, as reproduced in a work by J.C. Wilkinson . A 80
fuller extract from that memorandum - in fact only a draft memorandum - was produced with
81
Bahrain's Memorial . It may not be clear, from the context in which it is cited, that this draft
memorandum was intended as a response to the Turkish position in the negotiations, and
therefore did not necessarily reflect a considered and objective appraisal of the situation. Indeed,
the "important rights" of the Sheikh of Bahrain (one of Britain's "clients" ) may well have been
invoked by Britain as no more than a diplomatic pretext for obtaining the removal of the
Ottomans from the peninsula and thus furthering its own interests in the area. This is borne out
by the fact that the mention of the Sheikh of Bahrain's "rights" comes under the heading "The
respective Interests of Great Britain and Turkey in the Region of the Persian Gulf".
2.52 What is in fact "noteworthy" in this context is that in the subsequent negotiations with the
Ottomans Britain did not, as Bahrain rather misleadingly implies, continue to "protect the
interests of the Ruler of Bahrain in the Qatar peninsula". Bahrain has produced no further
evidence of such "protection", and the fact that the 1913 Convention provided that Britain would
not allow the Sheikh of Bahrain to interfere in the internal affairs of the peninsula, to endanger
its autonomy, or to annex it, runs directly counter to Bahrain's assertion. Moreover, while under
Article 12 of the 1913 Convention Britain obtained from the Ottomans an undertaking that the
inhabitants of Bahrain would be allowed to visit the island of Zakhnuniya for fishing purposes
and to reside there during the winter, no mention was made of any reservation of "important
rights" of the Sheikhs of Bahrain on the Qatar peninsula, nor of any supposed rights of the
Sheikhs of Bahrain or inhabitants of Bahrain on the Hawar islands.
2.53 Despite this, Bahrain contends that "Even as the ink was drying, the 1913 Convention had
become largely irrelevant" since, inter alia, "the Ruler of Bahrain remained in possession of the
northern part of the Qatar peninsula and other territories supposedly given away under the 1913
Convention" 8. In support of this contention, Bahrain refers to a British memorandum written
one month prior to signature of the Convention, on 30 June 1913 . Bahrain's reliance on this
document is quite astonishing.
2.54 The British memorandum of 30 June 1913 concerns "the evident intention of the Sheikh of
Bahrein to revive his claim to levy tribute". This event has already been mentioned in Qatar's
Counter-Memorial. There, Qatar showed, by reference to a document dated 31 July 1913, that far
from not having expressed their ultimate view on the matter, as Bahrain had implied in its
Memorial , the British firmly rejected the idea that, once the Ottomans had departed, the Sheikhof Bahrain should be allowed to revive his claim to levy tribute on the Sheikhs of Qatar . The 86
British memorandum now annexed by Bahrain to its Counter-Memorial simply fills in a gap in
the story contained in Qatar's Counter-Memorial, and is additional evidence that the British were
not prepared to countenance any interference by the Sheikh of Bahrain in the peninsula of Qatar.
Thus, after citing the last sentence of Article 10 of what was then the draft 1913 Convention
(which became Article 11 in the final version) the author states that "Sir P. Cox should receive
categorical and stringent instructions to oppose any such interference".
2.55 It is difficult to see how this could possibly be interpreted as supporting the assertion that at
that time "the Ruler of Bahrain remained in possession of the northern part of the Qatar
87
peninsula and other territories supposedly given away under the 1913 Convention" . But
Bahrain is perhaps referring to the next sentence of the memorandum, according to which "The
Treaty has been a dead letter for decades". This clearly cannot refer to the 1913 Convention -
which at that stage had not yet been signed - but is obviously a reference to the undertaking made
by the Qatari tribes in 1868, according to which they would pay certain sums of money to the
88
Chief of Bahrain . If there could be any doubt whatsoever in this regard, it is dispelled by the
indication on the second page of the British memorandum:
"The following is from Aitchison: 'The tribute which was only paid for two years was
89
discontinued when the Turks established themselves in Bidaa'" .
2.56 Finally, it may be noted that the question of the line resulting from the 1913 Convention and
of the extent of the territory of the Ruler of Qatar came up again in the 1930s, in the context of
boundary negotiations between Britain and Saudi Arabia. As was stated in a British
memorandum of 15 December 1937:
"The Anglo-Turkish Convrdtion, which came into force with the exchange of
ratifications on the 3 June, 1914, but was not published until 1933, and which His
Majesty's Government regarded as the consecration of a territorial situation which
had existed for many years previously, laid down the following lines as the southern
and eastern boundaries of Ottoman territory in Arabia:-
...
The so-called 'blue line', which runs due south from a point on the Arabian coast
south of Bahrein until it strikes latitude 20° N." 90.
The same memorandum wenton to explain that:
"The Arab States of the Persian Gulf here in question consist of Qatar, the Trucial
Sheikhs and Muscat, whose territories have since 1914 and long before that extended
continuously along the coast91f Arabia from the point on the Persian Gulf where the
blue line meets the sea..." .
Section 5. The 1916 Treaty
2.57 Qatar has already discussed the 1916 Treaty between Britain and Qatar in its earlier
pleadings, and it is therefore unnecessary to expand upon that discussion at length in this
92
Reply . It should simply be recalled here that the 1916 Treaty reaffirmed the separate status of
the territory of Qatar under Al-Thani rule. In its Counter-Memorial Qatar has analysed the text of
the Treaty to show that its provisions applied to the entire peninsula of Qatar, its coasts, and its
adjoining islands. Qatar has also shown that the obligations of the British Government under
Article 10 of the Treaty to protect the Ruler of Qatar and his subjects and territory "from all
aggression by sea" must necessarily have covered any Bahraini aggression across the sea on any
part of the Qatar peninsula or on the Hawar islands, just as much as did the Agreement of 1868.
2.58 In view of Bahrain's ins93tence that Qatar is wrong in stating that the 1916 Treaty included
the whole Qatar peninsula , it is instructive to refer once more to the Persian Gulf HistoricalSummaries, 1907-1928, of which lengthy extracts have already been cited in Qatar's Counter-
Memorial . Part of this document, which details the British understanding of the 1913
Convention and the 1916 Treaty, is entitled "El-Katr 1908-16" and opens with the following
words:
"The El Katr (or Qatar) Peninsula, which is governed by the Sheikhs of the Thani
95
family..." .
As will be recalled, the document goes on to confirm that:
"Under the unratified Anglo-Turkish Convention of 29 July 1913, the Ottoman Government
renounced all rights to the Peninsula, which was, as in the past, to continue to be governed by
the Sheikhs of the Thani family, while His Majesty's Government engaged not to permit the
Sheikh of Bahrein to interfere in the internal affairs of El Katr, to threaten its autonomy or to
annex it".
2.59 In addition, Qatar has annexed to this Reply a British military publication entitled A
Handbook of Arabia, which was published in 1916, the very same year as the British-Qatar
Treaty. While recognising that Qatar's "S., or land boundary, is not clearly defined", that
Handbook nevertheless had the following to say about that boundary:
"Beginning at the foot of the bay called Dohat es-Salwa on the SW., it runs SE. to the wells
of Sakak, continuing thence to the E. coast, either ENE., to the N. end of the Naqiyan sand-
hills, which run parallel with the sea for 30 miles from a point 10 miles S. of Wakrah, or E.
by S., to the S. end of the same hills, and the shore at the N. end of the Khor el-'Odeid" . 96
It is self-evident from this passage, which follows a description of Qatar as "a peninsula running
N. and S. with a maximum length of 80 miles and a breadth, at the base, of 40 miles", that this
southern boundary was Qatar's only land boundary and that the whole of the rest of the peninsula
to the north of the boundary was considered as being the territory of Qatar.
2.60 Against this background, there is simply no basis for Bahrain's assertion that the 1916
Treaty did not include the whole peninsula. However, in an effort nevertheless to demonstrate 97
that the 1916 Treaty covered "nothing more than the enclave of the Doha confederation"
consisting of "Doha and its environs", Bahrain relies on a report of a meeting between the Ruler
of Qatar and the British Political Resident, dated 12 March 1934, according to which the Ruler of
Qatar had announced that "The [1916] Treaty does not include the interior but only the
98
coast..." . As will be seen, this is a prime example of the mis-citation and distortion by Bahrain
of the documentary evidence.
2.61 It is first important to place the Political Resident's report in context. That report recorded
discussions relating to the grant of an oil concession by Qatar. It was during those discussions
that the Ruler of Qatar claimed that the 1916 Treaty included only the coast. His reason for
making this contention was simply that he wanted to be free to grant a concession over the bulk
of his territory - the "interior", as opposed to the coastline - to the oil company of his choice,
without having to seek British approval for such a concession.
2.62 Second, the Bahrain Counter-Memorial fails entirely to disclose that the Political Resident,
in response to what the Ruler had said about the 1916 Treaty not including the interior but only
the coast, made the following statement:
"According to Bin Saud's Treaty with the British Government he cannot interfere in your
affairs and it is because of your Treaty with the Government that he cannot do anything and
if he does, the Government will prevent 99m. And you are the Ruler of all Qatar and the
Treaty extends to the whole of Qatar" .
Section 6. Al-Thani Authority throughout the Peninsula of Qatar was consolidated long
before the 1930s2.63 It should hardly be necessary, in the light of all the above, for Qatar to provide more
evidence to show that Al-Thani authority was consolidated throughout the Qatar peninsula long
before the 1930s. However, Bahrain now implies, in its Counter-Memorial, that the Hawar
islands could not be regarded as having been attached to Qatar as a political entity in 1938/39
because at that time, so it alleges, the political entity of Qatar did not extend as far as the west
100
coast of the peninsula facing the islands .
2.64 Bahrain's attempt to prove this assertion is, to say the least, disingenuous, and it provides
yet further examples of Bahrain's distortion of documents by means of selective quotation. Qatar
has already shown above that there is no basis for Bahrain's statement that at the time of the 1916
Treaty "[t]he area controlled by Sheikh Abdullah and the Doha confederation [sic] was very
limited, being in reality nothing more than the enclave of the Doha confederation" 101. Qatar has
also shown above the falsity of Bahrain's statement that both Sheikh Abdullah Al-Than102nd the
British considered that the 1916 Treaty concerned only Doha and its environs .
2.65 Bahrain's interpretation of a Foreign Office minute dated 18 January 1934 is equally
103
disingenuous . That minute was written in the context of delimitation of the boundary between
Qatar and Nejd. On the basis of one sentence extracted from this document, Bahrain concludes
that "Clearly both parties [presumably Britain and Qatar itself] considered that the territory of
Sheikh Abdullah was quite limited" 104, the inference being that the document shows that even in
1934 the territory of Qatar extended only to Doha and its environs. But this is simply not a
plausible inference if the document is read in its entirety. Reference to the minute shows that the
"large areas which the Sheikh may not be able to protect" were those areas lying directly to the
east of the blue line laid down by the 1913 Convention, and thus to the south of Qatar's southern
105
boundary . On the other hand the resp106e to this minute, which is dated 20 January 1934,
echoes the 1916 Handbook of Arabia and shows that the British considered that Qatar's
boundary should be "a line from Dohat-as-Salwas through Sakak to the northern coast of Khor-
al-Odaid" 10. The minute added that this was "the line give [sic] by Lorimer"; in other words, this
boundary, stretching athoss the b108 of the Qatar peninsula, was a recognised fact by at least the
early years of the 20 century .
2.66 In this context it is interesting briefly to review further evidence relating to the negotiations
between Britain and Saudi Arabia in the 1930s, regarding Saudi Arabia's south-eastern boundary.
2.67 In 1935 Saudi Arabia put forward a claim to a frontier line between itself and the "Amirate
of Watar" [sic: "Qatar"], whose starting point in the west began at "a point on the coast of the sea
known as Dohat Salwa" 109. In other words, at that time Saudi Arabia recognised that the territory
of Qatar - as a political entity: an Amirate - was coterminous with its own, and that it necessarily
extended to the western coast of the peninsula. As to the southern limit of Qatar's territory - and
in this context it should be remembered that Saudi Arabia's interest was of course to push that
limit as far north as possible - Saudi Arabia was prepared to recognise that in the west the
boundary line should lie between the features known as Jebel Dukhan and Jebel Nakhsh:
"... leaving the area (literally distance) which is situated on its west and which is
located between Jebel Dukhan and Jebel An-Nakhsh to the Saudi Arab Kingdom, and
Jebel Dukhan and what is behind it on the east to Qatar" 110.
The line claimed by Saudi Arabia in 1935 is illustrated, together with other relevant lines, on a
Foreign Office map contained in the Map Atlas and reproduced as Map No. 3, facing this
111
page .
2.68 On several occasions during the negotiations in the 1930s, Saudi Arabia recognised that the
Rulers of Qatar had rights in areas which even by 1939, according to the Bahrain Counter-
Memorial, were not within "the territorial scope of the recently created political entity of
'Qatar'"112. Accordingly, as will be seen, Saudi Arabia never questioned Qatari sovereignty over
the areas to the north of the areas it claimed, and nor did the British.2.69 In 1936 Saudi Arabia stated that it had always taken care not to encroach upon territories
that it considered as appertaining to the Ruler of Qatar:
"... Sheikh Yusuf Yasin said that Ibn Saud had not in the past recognised any specific
limits to the territories of the Persian Gulf rulers, though he always treated them in a
liberal spirit. When the Ikhwan system was being organised [i.e. from 1912] he had
directed the Ikhwan not to go into the Jebel Duk113 or the Araiq... in order that they
should not incommode the Sheikh of Qatar" .
2.70 The British took a firm position vis-à-vis Saudi Arabia, and were not prepared to recognise
a claim so far north as Jebel Nakhsh. They based this position on the actual exercise of
sovereignty by the Ruler of Qatar, and also on general considerations of physical geography and
defence. In 1935 a British negotiator, Mr. G.W. Rendel, reported to the Foreign Office the
position he had taken in a conversation with a Saudi representative, who had raised the question
of the Qatar Oil Concession that had recently been granted 114. According to Rendel's report, he
had stated that:
"... it [the concession] did not, in fact extend to what we regarded as the frontier
between Qatar and Saudi Arabia... in view of our known views on the frontier
question there could be no question of the concessi115extending over territory the
sovereignty over which was in any real doubt" .
2.71 By early 1937 the Political Resident felt able to report to the India Office that:
"... the question of the frontiers of Qatar and of the Trucial Shaikhdoms has been
exhaustively gone into both on the map and on the ground, Loch paying various visits
to the Shaikhs concerned... and nothing was withheld from Bin Saud to which he
could advance any reasonable claims. I am therefore definitely of opinion that no
more territory can be given to Bin Saud in this direction without our sacrificing the
legitimate interests of the Shaikhs in question, which naturally I assume is not the
intention of His Majesty's Government" 11.
2.72 Finally, it is interesting to note the British attitude to questions of both defence and natural
frontiers when it came to defending Qatari claims against Saudi Arabia. In this regard, the British
consistently took the view that the integrity of the Qatar peninsula had to be preserved, even if
they were resigned to allowing Saudi Arabia to claim territory directly to the east of the blue line,
on the ground that the Ruler of Qatar had never claimed such territory. The British negotiator, Sir
Andrew Ryan, was therefore instructed by the Foreign Office in 1935 as follows:
"... you should point out the importance which His Majesty's Government attach to
establishing a frontier in accordance with geographical, as well as political and tribal
considerations. The Qatar peninsula forms a clearly defined and separate
geographical unit, and it is only reasonable that the frontier between the Sheikhdom
and its neighbours should follow the natural division between the peninsula and the
mainland. His Majesty's Government have already expressed readiness to depart from
their strict legal position by recognising King Abdul Aziz's sovereignty as extending
over the western shore of the gulf known as the Dohat-as-Salwa and over the Ikhwan
settlements at the head of the Gulf; but they could never consent to attribute to Saudi
Arabia features, such, for example, as the Jebel Naksh, which form an integral part of
the physical structure of the peninsula itself and have always, in fact, been an equally
117
integral part of the Sheikhdom" .
Consequently, Saudi Arabia was informed a few weeks later that the British Government "could
not agree to deprive the Sheikh of Qatar of any portion of the main block of that peninsula" 118.
Section 7. The Map Evidence
A. Introduction2.73 The cartographic evidence confirms that, after 1868, Qatar was recognised as a separate
political entity encompassing the entire peninsula and its adjacent islands. This evidence also
shows that Bahrain was consistently portrayed as being limited to a compact group of islands and
that the Hawar islands as well as Zubarah were viewed as forming an integral part of Qatar.
2.74 This evidence comes from a wide variety of sources and spans a considerable period of
time. It is both official and non-official in nature. For example, maps prepared by government
departments in Turkey, Great Britain, France and Italy demonstrate that the territorial integrity of
the entire Qatar peninsula was accepted without question. Similarly, maps produced by some of
the world's foremost cartographic institutes, as well as those appearing in well-respected atlases,
show that the political integrity of Qatar was widely recognised.
2.75 As will be discussed in Chapter IV below, it is well-established that the published works of
official government mapping agencies, experienced cartographers and other professional map
makers constitute expert opinion evidence of where the limits of a political entity's boundaries
lie. When the maps depict a state of political and geographical facts with virtual uniformity
throughout a period of long duration, they are entitled to significant weight in confirming the
existence of title over the area in question.
2.76 In this section, Qatar will review the cartographic evidence which demonstrates that, as a
matter of general repute, the administrative unit of Qatar was viewed as covering the entire Qatar
th
peninsula from the mid-19 century onwards. As such, the map eviden119fully confirms the
historical facts that have been discussed earlier in this Chapter .
2.77 In Chapter IV, Qatar will discuss the implications of the map evidence in connection with
the question of sovereignty over the Hawar islands. It will there be shown that the same evidence
which demonstrates the territorial integrity of Qatar also confirms that the Hawar islands were
consistently viewed as appertaining to Qatar.
2.78 Qatar has furnished with this Reply a Map Atlas covering the period from the 1860s
onwards. The Map Atlas contains a broad selection of maps from a wide spectrum of sources,
including from official publications and cartographic houses in Turkey, Great Britain, the United
States, France, Germany, Russia (including the former U.S.S.R.), Italy, Iran, Poland, Australia
and Austria. These maps have been arranged in chronological order so that they can be readily
compared with the contemporary historical evidence discussed in this Reply and elsewhere in
Qatar's pleadings.
2.79 While Qatar will refer to some of the more representative maps in this Section, the Court is
respectfully invited to examine the Map Atlas as a whole. It paints a compelling picture of
Qatar's territorial integrity as a political entity and its sovereignty over both the Hawar islands
and Zubarah.
2.80 In contrast, the failure of Bahrain to produce any similar map evidence supporting its claims
is striking. The absence of such evidence wholly undermines Bahrain's assertion that Al-Thani
rule during the relevant period was limited to Doha (or Bida) and that the Hawar islands and
Zubarah were deemed to be part of Bahrain. Had Bahrain's view of the situation corresponded to
the true position, this would undoubtedly have been reflected in the contemporaneous
cartography. But the evidence is to the contrary and fully confirms Qatar's submissions.
th
B. 19 century maps
2.81 The 19 century witnessed an impressive growth in map-making. This was due, in part, to
newly-developed map-making techniques which resulted in more detailed and accurate maps.
The Gulf area became the subject of a wide range of expert cartography which reflected the
views of third States and of informed map-makers as to the political status of the region.
2.82 Map No. 1 in Qatar's Map Atlas is an 1863 map produced by the German cartographic
house, Dietrich Reimer, in Berlin. It shows the situation five years before the 1868 Agreementsbetween the British and Mohamed bin Thani, the Chief of Qatar, and Ali bin Khalifah, the Chief
of Bahrain, respectively. As previously explained, these agreements effectively treated Qatar and
Bahrain as distinct entities separated by the sea as a kind of buffer zone. As one might expect for
a pre-1868 map, the Qatar peninsula is labelled "el Bahhrain". Significantly, however, even as of
1863 Bahrain proper was depicted in red while the Hawar islands and the Qatar peninsula were
portrayed in blue. Thus, even before the 1868 Agreements had been signed, there is historical
map evidence which treats Qatar and Bahrain separately and shows the Hawar islands as
appertaining to the Qatar peninsula and not to Bahrain.
2.83 Following the 1868 Agreements, Qatar began to be labelled differently. Map No. 2 in the
Map Atlas is a map prepared by J.G. Bartholomew, the British royal cartographer, in 1870. It is
entitled Arabia, Egypt, Nubia & Abyssinia. While the map continues to refer to the Arabian coast
as "El Hasa or Bahrain", Qatar and Bahrain are again treated differently. Qatar, including its
islands, is depicted in red while Bahrain is portrayed in yellow. Thus, even by 1870 the
distinction between Qatar and the com120t group of islands comprising Bahrain was reflected in
the contemporaneous cartography .
2.84 During the 1870s and 1880s German maps depicted the political situation in a similar
fashion. There are several maps from this period which were produced by Justus Perthes of
Gotha 12. During his distinguished career, Perthes founded an independent publishing company
that later became the Geographic-Cartographic Institute. Perthes and the institute he founded
th
published some of the most authoritative maps of the world during the 19 century.
2.85 Several maps during this period were prepared by Augustus Petermann, another
distinguished cartographer of the time, who produced a series of maps in conjunction with Justus
Perthes. As Henry Wilkinson observes in his treatise, Maps and Politics:
"A. Petermann was the editor of the German geographical periodical, Petermann's
Geographische Mittheilungen which, during the period of his control, acquired a worldwide
reputation. There was hardly a geographer of repute of any nationality whom Petermann did
not know personally" 122.
2.86 Map No. 5 in the Map Atlas is a particularly revealing map which reflected the situation at
the time. The map is labelled "Iran & Turan: Oder Persien, Afghanistan, Balutchistan,
Turkestan" and is dated 1875. A copy of this map with an enlargement is as reproduced as Map
No. 7, facing page 120. By colour-coding, it shows very clearly the Qatar peninsula in green as a
unified political entity labelled "Katar" with both Zubarah (labelled "Sabara" on the map) and the
Hawar islands depicted as integral parts of Qatar. In contrast, Bahrain is portrayed in a
completely different red colour. Further maps prepared by Petermann, under the auspices of the
Perthes Institute, were published in 1876 123, 1878 12, 1879 125and 1884 126. In each instance, the
entire Qatar peninsula is clearly labelled "Katar", and the Hawar islands and Zubarah are also 127
shown as part of Qatar. The Bahrain islands, on the other hand, are shown as a separate entity .
2.87 In 1890, the Ottoman authorities prepared a map of the sanjak of Nejd showing the relevant
128
area, a copy of which is reproduced as Map No. 2, facing page 38 . As noted above, the
significance of this map lies in the fact that it depicts the kaza of Qatar as a separate entity
extending over the entire peninsula and including cities such as Doha, which was labelled
"Qatar" on the map to indicate that it was the kasaba or centre of the kaza, Zubarah, and a
number of other locations throughout the peninsula. It can thus be seen that the Ottomans
themselves in no way deemed that the entity of Qatar was limited to the city of Doha and its
immediate surroundings as Bahrain contends.
2.88 In Section 2 above, Qatar referred to a report from the German Ambassador in Baghdad
dated 12 March 1896 which referred to Sheikh Jassim bin Mohamed bin Thani as the Kaimakam
of the Qatar peninsula 129. Cartographic evidence from a wide array of sources during the 1890s
illustrates the fact that the entire peninsula of Qatar was deemed to constitute a political entity atthis time, and is thus consistent with the views expressed by the Ambassador that Al-Thani rule
stretched throughout the peninsula.
2.89 Thus, a map taken from Letts's Popular Atlas in 1890 clearly shows the territorial integrity
130
of the131tire Qatar peninsula , as does another map which appeared in The Times Atlas in
1895 . Meanwhile, a large number of German and Austrian maps continued to depict the
peninsula as a political unit. Examples of such maps may be found in the Map Atlas, Nos. 16 to
19 and 21 to 23. Moreover, the Century Company in New York also 132lished a map in 1897
which is consistent with the other maps already discussed .
2.90 Throughout the last forty years of the 19 thcentury, therefore, maps taken from sources as
diverse as Turkey, Great Britain, Germany, Austria and the United States all showed the same
thing: namely, that the political entity known as Qatar covered the entire peninsula.
th
C. 20 century maps
2.91 As the Court will be aware, in 1908 Lorimer produced his Gazetteer of the Persian Gulf.
This study included a descript133 of Qatar as encompassing the entire peninsula including the
Hawar islands and Zubarah . Lorimer's description of Qatar fully accords with the maps of the
region that were produced during this period.
2.92 An official map prepared by the Intelligence Division of the British War Office in 1901 is
one such map 134. This map depicts the entire Qatar peninsula under the rubric of "El Katr", while
the Bahrain islands are limited to the principal island of Bahrain and its immediately adjacent
islands such as Moharraq. The War Office produced a similar map in 1908, corrected to 1911,
also showing Qatar as encompassing the entire peninsula 135.
th
2.93 A large number of maps produced by third States in the early years of the 20 century
reflect the same position with respect to the territorial extent of Qatar. These include the
following authoritative works:
· Two German maps published by Justus Perthes in 1902 and 1912, respectively, on
which the entire Qatar peninsula is labelled "El Katar" and coloured in purple, distinct
136
from the red colour which is used for Bahrain ;
· A Polish map reproduced in the 1904 Wielki Atlas Geograficzny 137;
138
· A 1904 American map produced by C.S. Hammond and Company in New York ;
· An official French map prepar139for the Service Géographique du Ministère des
Affaires Etrangères in 1905 which, once again, depicts Qatar, including the Hawar
islands, and Bahrain in distinct colours;
· A British map dating from the period 1906-1908 taken from The Harmsworth Universal
Atlas 140,
· Further French maps published by the Librairie Hachette in 1907 and again in 1911 and
by Armand Colin in the Atlas Général Vidal-Lablache in 1909 141; and
142
· A British map prepared by J. Bartholomew and George Philip and Son in 1910 ,
which, like previous maps prepared by Bartholomew, portrays the Qatar peninsula and
the Hawar islands in the same distinct colouring.
2.94 As discussed in Section 4 above, on 29 July 1913 the Anglo-Ottoman Convention was
signed, followed in 1914 by the Anglo-Turkish Convention 14. From the terms of these
agreements and related correspondence, it is clear that the British recognised that Al-Thani rule
encompassed the entire peninsula. Bahrain maintains that in the context of the 1913 Convention,
Britain purported to protect the interests of the Ruler of Bahrain in the Qatar peninsula 14. Apart
from the historical inaccuracy of this assertion, which has been dealt with above, the
cartographic evidence points in the opposite direction.2.95 The previous discussion has already shown that from at least 1868 up to the early 1900s the
territorial extent of Qatar was consistently represented as extending to the whole peninsula. Qatar
has not discovered any map evidence indicating that Bahrain retained any territorial or other
rights in Qatar. The same holds true for the period following the signing of the Anglo-Ottoman
Agreements.
2.96 Map No. 46 in the Map Atlas is a copy of the map that was attached as Annex V to the 1913
Anglo-Ottoman Convention. The map lends absolutely no credence to the theory that Bahrain
maintained any territorial interests in Qatar. Indeed, the peninsula is very clearly labelled "Qatar"
on the map, while the nomenclature "Bahrain" is limited to the main Bahraini islands.
2.97 In 1914, George Philip and the London Geographical Institute published a map of the area
in Philip's Imperial Atlas of the World 145. A copy of this map is reproduced opposite page 54 as
Map No. 4. As can be clearly seen from the enlargement on the reverse side of the map, facing
this page, Bahrain is coloured in red in contrast to Qatar, which is separately labelled on the map
and which is portrayed in green, as also are the Hawar (or Warden) islands and Zubarah. There is
no suggestion of any Bahraini territorial pretentions either on the peninsula or on its surrounding
islands.
2.98 The position is very clearly shown by colour coding on another map published in 1914, this
146
time in Andree's Allgemeiner Hand-atlas which was printed in Leipzig . An enlargement of
this map also appears in the Map Atlas. The sam147ituation is shown on a selection of Austrian,
Italian and British maps of the same period .
th
2.99 Other prominent reference works from the first part of the 20 century confirm the political
extent of Qatar at that time. In the 1920s, for example, several prominent British cartographic
houses produced maps showing the entire peninsula as belonging to Qatar. In 1921, the London-
based company, Cassell & Co., produced Cassell's New Atlas which contained a map clearly
148
showing Qatar and its islands in green and Bahrain in red . Philip's New149neral Atlas of the
World published in 1922 showed a similar representation of the situation , as did an atlas
produced by G.W. Bacon & Co. also in 1922 150.
2.100 Map No. 71 in the Map Atlas is of particular interest. It was prepared by Major Holmes
and reproduced in Rihani's study entitled Ibn Sa'oud of Arabia in 1928. Major Holmes had many
years' experience in the region as an adviser to various oil companies. The map shows Qatar,
which has a distinct colour hatching, as comprising the entire peninsula while the principal
Bahraini islands are depicted with a different black colouring.
2.101 In its Counter-Memorial, Bahrain contends that the Hawar islands could not have been
regarded as appertaining to Qatar in 1938/39 because the political entity of Qatar did n151extend
at that time to the west coast of the peninsula off which the islands were located . Apart from
the historical evidence discussed earlier in this Chapter which disproves this assertion, the map
evidence also directly contradicts the Bahraini thesis. As has been seen, from 1870 onwards the
maps in no way suggest that the territorial extent of Qatar excluded either the west coast of the
peninsula or its appurtenant islands.
2.102 The final category of maps to be discussed in this context are taken from works published
in the 1930s shortly before the British decision of 1939. Here, again, the contemporary
cartographic sources show a consistent recognition of Qatari authority over the entire peninsula
and its islands.
th
2.103 In 1932, for instance, the Encyclopaedia B152annica (14 Edition) published a map which
treats Qatar as covering the entire peninsula . The following year, an official map prepared by
the General Staff of India gives a similar depiction of the entity of Qatar 153.
2.104 In 1933, the British Foreign Office produced a very important annotated version of a 1924
War Office map showing the political situation in the area. A copy of this map appears facingthis page, as Map No. 5 154. The handwritten additions to this map were provided by Mr. G. W.
(later Sir George) Rendel of the Foreign Office. The map was attached to a memorandum
prepared by Rendel in January 1933 which discussed a proposal by the Colonial Office that the
155
Foreign Office should take over its residual responsibilities for the Gulf .
2.105 Until 1932, the Political Resident at Bushire had been responsible to (a) the Government
of India for internal affairs of States on the Arab littoral, (b) the Foreign Office, in his capacity as
Consul-General of Bushire, and (c) the Colonial Office for questions concerning Ibn Saud and
political aspects of the Arab littoral. With the end of the mandate in Iraq, and the transfer of
British relations with Ibn Saud to the Foreign Office, it became apparent that the real
responsibilities of the Colonial Office in the Persian Gulf had become negligible. In July 1932,
the Colonial Office wrote to the Foreign Office suggesting that the Foreign Office should take
over the Colonial Office's responsibilities in the Gulf area. The Foreign Office agreed in
principle but advised that the decision would have to be taken at Cabinet level. On 5 January
1933, Rendel prepared a draft note for the Secretary of State, Sir John Simon, which was to
become the basis for the memorandum submitted to the Cabinet. To this note was attached the
map in question (annotated in Rendel's handwriting). The memorandum was discussed by the
Foreign Office and the Colonial Office and a few minor amendments were made. At no time was
the accuracy of the map called into question.
2.106 Rendel's annotation on the map set out the limits of each of the political entities in the Gulf
region. The limits of Qatar and Bahrain are both clearly shown on the map. With respect to
Qatar, Rendel left no doubt over the fact that it covered the entire peninsula. As for the limits of
Bahrain, Rendel's annotations demonstrate that British officials recognised that its territorial
extent was limited to the compact group of islands described by Lorimer and others.
Significantly, the Hawar islands were specifically excluded from the limits of Bahrain and
included within the limits of Qatar.
2.107 In 1934, the War Office prepared156further sketch map of the Qatar peninsula which was
based on "best available authorities" . While the map contains a number of different lines
showing where the southern boundaries of Qatar might lie, it left no doubt that the entire
peninsula, including the west-facing coast and Zubarah, fell within Qatar's sovereignty. Similar
157
maps were produced by Bartholomew and George Philip 158 Son in 1934, 1935 and 1936 , as
well as by H.E.C. Robinson of Sydney, Australia .
D. Conclusion as to the maps
2.108 From the foregoing discussion, it can be seen that during the relevant period both official
government maps and maps prepared by prominent cartographic institutes consistently portrayed
the political entity of Qatar as encompassing the entire Qatar peninsula. The existence of
cartographic evidence from such a wide variety of sources and spanning such a long period of
time lays to rest the unfounded assertion advanced by Bahrain that the political entity of Qatar
was limited to areas around the town of Doha and a few surrounding villages. To the contrary,
the map evidence produced by Qatar is fully consistent with the historical evidence attesting to
Al-Thani authority over the entire peninsula discussed earlier in this Chapter.
__________
FOOTNOTES
1 See, QM, paras. 3.43, et seq., and QCM, paras. 2.28, et seq.
2 See, QM, paras. 2.1, et seq.
3 See, QCM, paras. 2.25-2.26. The fact that Mohamed bin Thani was considered to be the head
of the province - equated with the Qatar peninsula - by the time of the arrival of the Ottomans is
now acknowledged by Bahrain's former Agent in this case, Dr. Husain M. Al-Baharna. In his
book entitled British Extra-Territorial Jurisdiction in the Gulf 1913-1971 (Archive Editions,1998), Dr. Al-Baharna states that "The Al-Jahalimah remained in the Qatar peninsula for some
time until their 'almost total destruction' in tribal quarrels. The extension of Turkish influence to
Arabia in or about 1871 brought Qatar under Turkish suzerainty, but it continued to be governed
directly by indigenous Rulers of the dynasty of Al-Thani who still rule Qatar to this day". (QR,
Annex II.77, Vol. 2, p. 547; emphasis added). With regard to what is stated in para. 90 of the
BCM about the Al-Thani being told in 1871 to raise Turkish flags on their territory, the Report of
the Assistant Political Resident of 20 July 1871 upon which Bahrain appears to be relying (BCM,
Annex 9, Vol. 2, p. 18) does not say that the Al-Thani were told to raise the flags throughout the
whole of their territory. The places where they did raise flags may have been places which the
Al-Thani controlled, but most certainly did not exhaust the extent of territory controlled by the
Al-Thani at the time. Moreover, Bahrain presents absolutely no evidence of direct Bahraini
control of any part of Qatar during the period from 1871 to 1915.
4 See, QCM, paras. 2.28-2.29 and 2.34-2.35, showing British recognition of Sheikh Jassim's
authority.
5 See, QCM, paras. 2.42, et seq. and 5.17.
6 See, QCM, paras. 2.45-2.46.
7 See, QCM, paras. 2.48-2.50.
8 R.S. Zahlan, The Creation of Qatar, London, 1979 (QCM, Annex II.82, Vol. 2, p. 449, at p.
469; emphasis added).
9 QR, Annex II.74, Vol. 2, p. 519, at p. 526. See, for the location of the places mentioned, Map
No. 1, facing page 22. The same report goes on to state that "Salwah was the traditional battle
ground where Qatari tribesmen resisted raiders entering their territory. In 1908, for example
Shaikh Abdullah in person chased a party of Bani Hajir and Manasir tribesmen as far as Salwah.
A celebrated fracas between a party of Qataris from Khor and some Sa'udi (Manasir) tribesmen
took place some 50 years ago at Ghar al Buraid".
10 BCM, paras. 40-41.
11 BCM, paras. 36 and 38.
12 BCM, para. 40.
13 BM, para. 131. It may be noted that Lorimer, unlike Bahrain, does not confuse the peninsula
of Qatar with the town of Doha. Mention should also be made here of Bahrain's reference to the
understanding of 10 April 1869, signed on behalf of the Chief of Bahrain and Sheikh Mohamed
bin Thani and "all the other Chiefs of Guttur" (BCM, Annex 5, Vol. 2, p. 10). That document is
untitled, and it is therefore pure invention for Bahrain to refer to it as an "Understanding between
representative of the Ruler of Bahrain and representative of the Sheikhs of the Doha
confederation". As the enunciation of the signatories shows, the understanding was signed on
behalf of all the chiefs of Qatar - not just Doha - and their paramount chief, Mohamed bin Thani.
14 See, QCM, paras. 2.28, et seq., and paras. 2.35, et seq., below.
15 See, QR, Annexes II.11-II.14, II.18 and II.51, Vol. 2, pp. 49-73, 91 and 289.
16 See, QM, para. 8.21, QCM, para. 5.17(2), and para. 6.8(c), below.
17 BCM, Annex 25, p. 69, at p. 77; See, also, QR, Annex II.18, Vol. 2, p. 91, referring to "Jassim
Al Thani and all the tribes and people loyal to him".
18 BCM, para. 33.
19 QR, Annex II.19, Vol. 2, p. 97 (translation). The original German reads as follows: "Bis jetzt
widersteht jedoch der Kaimmakam der Halbinsel Katar gegenüber Bahrein, Scheikh Djassim Ibn
Thani (welcher selbst arabischer Nation ist), den Englischen, wahrscheinlich klingendenVerlockungen und bleibt der Regierung des Sultans treu; ja, er soll sich sogar erboten haben, die
Insel Bahrein definitiv für die Türkei in Besitz zu nehmen...".
20 QR, Annex II.20, Vol. 2, p. 105.
21 QR, Annex II.22, Vol. 2, p. 115. See, also, QR, Annexes II.21, II.23, II.24, II.25, II.83 and
II.84, Vol. 2, pp. 111, 119, 127, 133, 599 and 607. This was not the first time that the Ottomans
had been obliged to send troops against Sheikh Jassim. On 10 April 1893 the Ottoman Minister
of War, referring to "the Sultan's decree concerning an inquiry into the military measures
necessary to be taken for chastising Jassim Al-Thani", wrote that "if the forces to be sent
consisted of 5-6 battalions [2,500 - 3,000 men], it would be much better" (QR, Annex II.17, Vol.
2, p. 83).
22 QR, Annex II.27, Vol. 2, p. 143.
23 See, QR, Annex II.29, Vol. 2, p. 159; see, also, QR, Annex II.31, Vol. 2, p. 167. A British
report, dated 30 December 1897, confirms that Sheikh Jassim and his "large armed following"
had arrived at a place "two days march to the south of Kowait" and had then marched to a place a
short distance to the north-east of Kuwait (QR, Annex II.28, Vol. 2, p. 149).
24 See, QR, Annex II.29, Vol. 2, p. 159. Despite his compliance with Ottoman wishes, Sheikh
Jassim, having retired to Bushire, nevertheless suggested to the Grand Vizier that "As Kuwait is
a well developed and prosperous place which is outside the sphere of administration and policies
of the State, it might be advisable to benefit from this opportunity of capturing it" (QR, Annex
II.30, Vol. 2, p. 163).
25 QR, Annex II.32, Vol. 2, p. 171.
26 QR, Annex II.33, Vol. 2, p. 175; see, also, QR, Annex II.31, Vol. 2, p. 167.
27 QR, Annex II.42, Vol. 2, p. 241; see, also, QR, Annex II.46, Vol. 2, p. 263. This was not the
first time that Sheikh Jassim allied himself with the Saud family. In 1904 it was reported that
"Abdur Rahman-bin-Saood is believed to have received yeoman help... from Sheikh Jasim-bin-
Thani of El Katr, who supplied him liberally with the sinews of war" (QR, Annex II.36, Vol. 2,
p. 207).
28 QR, Annex II.41, Vol. 2, p. 235.
29 See, QR, Annex II.43, Vol. 2, p. 245; see, also, QR, Annex II.47, Vol. 2, p. 267.
30 See, QR, Annex II.44, Vol. 2, p. 249; see, also, QR, Annex II.50, Vol. 2, p. 285.
31 QR, Annex II.48, Vol. 2, p. 273; see, also, QR, Annex II.47, Vol. 2, p. 267.
32 QR, Annex II.49, Vol. 2, p. 279; see, also, QR, Annex II.50, Vol. 2, p. 285.
33 QR, Annex II.56, Vol. 2, p. 325. The "clique of three" did not include Sheikh Isa, the Ruler
himself.
34 Ibid., p. 549; emphasis added.
35 See, paras. 6.36, et seq., below.
36 BCM, paras. 95, et seq.
37 See, BM, para. 172, where Bahrain refers to Nasir bin Mubarak as a "renegade".
38 See, J.G. Lorimer, Gazetteer of the Persian Gulf, Oman and Central Arabia, QM, Annex II.5,
Vol. 3, p. 304.
39 See , QR, Annexes II.1 and II.2, Vol. 1, pp. 1 and 5.
40 QM, Annex II.7, Vol. 4, p. 56. Far from purporting to be representatives of the ruling Al-
Khalifah, in their petition, Nasir and a few others styling themselves "sheikhs from the Island ofBahrain" described Shaikh Isa and others as "tyrants" who had "forcefully taken over the Island
of Bahrain". See, QR, Annex II.10, Vol. 2, p. 45.
41 QM, Annex II.7, Vol. 4, p. 63; emphasis added.
42 Ibid., p. 79.
43 BCM, para. 96.
44 QR, Annex II.7, Vol. 2, p. 31; emphasis added.
45 QR, Annex II.8, Vol. 2, p. 35.
46 Ibid.
47 BM, Annex 38, Vol. 2, p. 216a.
48 See, BM, para. 133.
49 QR, Annex II.9, Vol. 2, p. 41. It may be noted that by this time Nasir bin Mubarak had further
allied himself with the Al-Thani family by becoming Sheikh Jassim's son-in-law.
50 QR, Annex II.6, Vol. 2, p. 25.
51 Ibid.
52 BCM, para. 96.
53 BCM, Annex 17, Vol. 2, p. 41. See, also, QM, Annex II.7, Vol. 4, pp. 82-83. A British Report
some years later noted that: "More intimate acquaintance with Sheikh Jasim, the elder brother
who was supposed to have resigned all active dealings with the tribal politics of Katar, proves
that he is not by any means the weary dotard that he was popularly supposed to be, but that, on
the contrary, while it suits him to preserve the fiction that he has retired from active participation
in the affairs of Government, nothing of importance is done in Katar without his being consulted,
or exercising his influence directly or indirectly" (QR, Annex II.38, Vol. 2, p. 217).
54 See, QM, paras. 3.55, et seq., and QCM, paras. 3.40, et seq.
55 BCM, para. 124.
56 BCM, para. 125.
57 BCM, para. 127, referring to BCM, Annex 41, Vol. 2, pp. 126-127.
58 QM, Annex II.45, Vol. 5, p. 161.
59 QR, Annex II.59, Vol. 2, p. 349. See, also, the Memorandum respecting the Frontiers of the
Aden Protectorate, dated 15 December 1937, which stated that Saudi Arabia and the Yemen
were "succession States of the Ottoman Empire and as such bound to accept the frontiers
constituted by [the blue, violet and 1905] lines, i.e., by the Anglo-Turkish Convention of 1914"
(QR, Annex II.71, Vol. 2, p. 477, at p. 481). The same position was also recorded in 1940, when
a British memorandum stated that: "... as the 1914 Convention, defining both the Blue and Violet
lines, had been ratified, it was legally binding on Ibn Saud in his capacity of successor to the
Ottoman Empire" (QR, Annex II.73, Vol. 2, p. 497, at p. 500). It may be noted that in disputing
the British position, Ibn Saud relied not on the non-ratification of the 1913 Convention, but
rather upon the assertion that the Ottomans had not had the authority to dispose of his territories
(See, for example, QR, Annex II.60, Vol. 2, p. 353). In this regard the British pointed out that the
Saudi argument was disposed of by the treaty which Ibn Saud himself concluded with Turkey on
15 May 1914 (see QR, Annex II.62, Vol. 2, p. 409).
60 See, in this regard, para. 172 of the Award of the Arbitral Tribunal in the First Stage of the
Proceedings between the Government of the State of Eritrea and the Government of the Republic
of Yemen dated 9 October 1998, hereinafter referred to as the "Eritrea/Yemen Award", a copy of
which is being deposited with the Registry pursuant to Article 50, paragraph 2 of the Rules ofCourt. The Arbitral Tribunal in that case held as follows: "Eritrea has argued that no legal weight
is to be given to [the record of the 1927 Rome Conversations], in the first place because this
record was not registered under Article 18 of the Covenant of the League of Nations and in the
second place because it cannot be invoked by Yemen, either for that reason or because it was res
inter alios acta. That this was not registered was undoubtedly because it was not regarded as a
treaty between states. But it was nonetheless an accurate account of what both parties had
agreed and was signed by them as such. It is simply evidence of the thinking of the time - this
time by both parties - in much the same way as the Tribunal has been presented with a myriad of
other evidence in non-treaty form. Insofar as Yemen wishes to draw it to the attention of the
Tribunal, it is not relying on a treaty that is res inter alios acta, nor indeed resting its own claim
on it. It is diplomatic evidence, like any other, but of an undoubted interest because it reflects
what was recorded by both parties as that which they had agreed to"; emphasis added.
61 See, QM, para. 3.57, and QCM, paras. 3.41, et seq.
62 BM, para. 194.
63 BM, para. 21.
64 See, para. 4.117, below.
65 QR, Annex II.3, Vol. 2, p. 9. It may also be seen from this Regulation that the Ottoman
Empire was divided into provinces known as vilayets, each governed by a vali, which in turn
were divided into sanjaks, governed by mutasarrifs. Sanjaks were then divided into kazas,
governed by kaimakams, the chief kasaba or borough in each kaza being the place of residence
of the kaimakam. Kazas were subdivided into nahiyes, which in turn grouped several villages, or
köys.
66 See, QR, Annex II.75, Vol. 2, p. 531.
67 QCM, para. 2.9, and BM, Annex 66, Vol. 2, p. 279.
68 BCM, Annex 24(b), Vol. 2, p. 52; emphasis added.
69 BCM, Annex 47(a), Vol. 2, p. 144, at pp. 149-150. It may be noted that there was no mention
here of any putative rights of the Ruler of Bahrain on the peninsula.
70 See, BCM, Annexes 27(b) and 35(b), Vol. 2, pp. 93 and 113. Additional similar evidence is
also annexed hereto by Qatar. See, QR, Annexes II.16, II.35, II.39, II.40, II.45, II.52 and II.53,
Vol. 2, pp. 79, 201, 223, 231, 253, 295 and 299.
71 QR, Annex II.45, Vol. 2, p. 253; see, also, QR, Annex II.54, Vol. 2, p. 303, which makes a
similar point.
72 This Map is also reproduced as Map No. 15 in the Map Atlas. While this map does not bear a
date, it appears from internal evidence to date from c. 1890.
73 See, para. 6.8(h), below.
74 QR, Annex II.4, Vol. 2, p. 13; see, also, for example, QCM, Annex II.3, Vol. 2, p. 11, and
BM, Annex 20, Vol. 2, p. 174.
75 QR, Annex II.37, Vol. 2, p. 211.
76 QR, Annex II.38, Vol. 2, p. 217; emphasis added.
77 QM, Vol. 4, pp. 181 and 9, respectively.
78 QM, Vol. 3, p. 120.
79 BCM, para. 124.
80 J.C. Wilkinson, Arabia's Frontiers: The Story of Britain's Boundary Drawing in the Desert
(1991), BCM, Annex 121, Vol. 2, p. 397, at p. 399.81 BM, Annex 78, Vol. 3, p. 413.
82 See, Wilkinson, op. cit., p. 72, QR, Annex II.89, Vol. 2, p. 635.
83 BCM, para. 127. Footnote 202 at para. 127 of the BCM is particularly revealing. What is
asserted in this footnote is, as Bahrain must be aware, quite contrary to the position taken by the
British Government in 1934, that position being based on the Laithwaite memorandum B.430 on
the southern boundary of Qatar revised to 5 March 1934 (QCM, Annex III.40, Vol. 3, p. 213), as
completed and modified by the letter from Rendel (F.O.) to Laithwaite (India Office) of 16
March 1934 (QCM, Annex III.41, Vol. 3, p. 225). This is the real evidence of the British position
on the southern boundary of Qatar in the 1930s, not some spurious reconstruction of history by
Bahrain (including the wholly false claim that the Ruler of Bahrain remained in possession of the
northern part of Qatar after 1913), combined with some highly dubious legal arguments.
84 BCM, Annex 41, Vol. 2, p. 126.
85 BM, para. 192.
86 QCM, paras. 3.37-3.38, and QCM, Annex III.20, Vol. 3, p. 111.
87 BCM, para. 127.
88 See, in this regard, QCM, paras. 3.34-3.36.
89 BCM, Annex 41, Vol. 2, p. 127; emphasis in original.
90 QR, Annex II.71, Vol. 2, p. 477; emphasis added. Although this memorandum is referring to
the ratified 1914 Convention, the "blue line" is the line resulting from Article 11 of the 1913
Convention, which was incorporated by reference in the 1914 Convention.
91 Ibid.
92 See, QM, para. 3.61, and QCM, paras. 3.44-3.45.
93 BCM, paras. 128, et seq.
94 QCM, Annex III.57, Vol. 3, p. 335, and QCM, para. 3.45.
95 QCM, Annex III.57, Vol. 3, p. 335.
96 QR, Annex II.55, Vol. 2, p. 313, at p. 316; see, also, Map No. 1, facing page 22.
97 With regard to the so-called "Doha confederation", see, paras. 2.7, et seq., above.
98 BCM, paras. 131-132 and BCM, Annex 122, Vol. 2, p. 410, at p. 411.
99 BCM, Annex 122, Vol. 2, p. 410, at p. 412; emphasis added. See, also, Appendix 1 at the end
of this Volume, para. 2.
100 See, BCM, para. 23.
101 BCM, para. 131; see, paras. 2.57, et seq., above. With regard to the so-called "Doha
confederation", see, paras. 2.7, et seq., above.
102 See, paras. 2.60, et seq., above.
103 BCM, Annex 66, Vol. 2, p. 217. This is not an India Office memorandum, as claimed by
Bahrain.
104 BCM, para. 132.
105 See, para. 2.72, below, with regard to the fact that the Ruler of Qatar did not claim such
areas.
106 See, para. 2.59, above.
107 BCM, Annex 66, Vol. 2, p. 217, at p. 219.108 See, also, Lorimer, op. cit., QM, Annex II.4, Vol. 3, p. 113.
109 QR, Annex II.63, Vol. 2, p. 419. Bahrain has made reference in its Counter-Memorial to a
statement made by a Saudi representative, Sheikh Yusuf Yasin, in the context of this claim
(BCM, para. 140) to the effect that the territories of the Sheikhdom of Qatar had "originally
consisted of an enclave comprising Doha itself and a limited surrounding area" (BCM, Annex
69, Vol. 2, p. 228). This is a further example of Bahrain taking a citation out of its context. If
reference is made to Bahrain's Annex 69, it may be seen that the British representative who had
discussed the matter with the Saudi representative stated in this regard, "I refrained from
following Sheykh Yusuf in an excursion into a subject on which I felt he was not expertly
informed". In any event, Sheikh Yusuf Yasin is reported as having defined the territories of the
Sheikhdom of Qatar as having "originally" consisted of an enclave comprising Doha and a
limited surrounding area, thereby implying that they had, by 1934, expanded considerably
beyond that.
110 Ibid.
111 QR, Map Atlas, Map No. 84.
112 BCM, para. 23.
113 QR, Annex II.73, Vol. 2, p. 497, at p. 507; see, also, Map No. 3, facing this page.
114 See, QM, Annex III.99, Vol. 6, p. 507 and the sketch map attached thereto at p. 529.
115 QR, Annex II.65, Vol. 2, p. 431; emphasis added. It may be noted that it was Rendel who
produced the annotated map referred to in para. 2.104, below, and attached as Map No. 77 in the
Map Atlas.
116 QR, Annex II.68, Vol. 2, p. 451, at p. 457; emphasis added.
117 QR, Annex II.64, Vol. 2, p. 423; emphasis added.
118 QR, Annex II.66, Vol. 2, p. 435. Further British documents confirming this view may be
found in QR, Annexes II.67, II.69, II.70 and II.73, Vol. 2, pp. 447, 461, 471 and 497.
119 To the extent that the cartographic evidence confirms the territorial integrity of Qatar, it also
shows that the area of Zubarah was always viewed from the mid-19 century onwards as
forming a part of Qatar's territory. This aspect of the matter will be discussed in Chapter VI
where Qatar's sovereignty over Zubarah is addressed.
120 See, also, QR, Map Atlas, Map No. 7, which is a similar map prepared by J.G. Bartholomew
in 1876.
121 See, ibid., Maps Nos. 3, 5, 6, 8, 9 and 11.
122 H.R. Wilkinson, Maps and Politics - A Review of the Ethnographic Cartography of
Macedonia, Liverpool University Press, 1951, p. 55.
123 QR, Map Atlas, Map No. 6.
124 Ibid., Map No. 8.
125 Ibid., Map No. 9.
126 Ibid., Map No. 11.
127 Other German maps from the same period are consistent with the Perthes/Petermann maps.
See, for example, the maps prepared by H. Kiepert in 1874 and 1881 (QR, Map Atlas, Maps Nos.
4 and 10, respectively).
128 See, also, QR, Map Atlas, Map No. 15.
129 See, para. 2.12, above and QR, Annex II.19, Vol. 2, p. 97.130 QR, Map Atlas, Map No. 14.
131 Ibid., Map No. 24. The Times Atlas map (as also Map No. 29) depicts the southeastern
border of Qatar as a diagonal line running from south of El-Bida towards the interior of the
Arabian peninsula. It is not known what the source of this line is. However, the entire west-
facing coast of Qatar, together with the Hawar islands, are clearly depicted as forming part of
Qatar.
132 QR, Map Atlas, Map No. 26.
133 QM, Annex II.4, Vol. 3, p. 109, at pp. 120 and 123.
134 QR, Map Atlas, Map No. 30.
135 Ibid., Map No. 42.
136 Ibid., Maps Nos. 31 and 45.
137 Ibid., Map No. 32.
138 Ibid., Map No. 33.
139 Ibid., Map No. 34.
140 Ibid., Map No. 37.
141 Ibid., Maps Nos. 38, 40 and 43.
142 Ibid., Map No. 41. This map also refers to the Hawar islands as Wardens Islands.
143 See, paras. 2.35, et seq., above.
144 BCM, para. 124.
145 QR, Map Atlas, Map No. 48.
146 Ibid., Map No. 49.
147 See, for example, the maps reproduced as Maps Nos. 50-57 and 59-65 in the Map Atlas.
148 QR, Map Atlas, Map No. 67.
149 Ibid., Map No. 68.
150 Ibid., Map No. 69.
151 BCM, para. 23.
152 QR, Map Atlas, Map No. 75.
153 Ibid., Map No. 76.
154 See, also, QR, Map Atlas, Map No. 77, where the relevant portion of the map has been
enlarged so as to enable the details concerning Qatar and Bahrain to be seen more clearly.
155 A copy of this memorandum is attached as QR, Annex II.58, Vol. 2, p. 335.
156 QR, Map Atlas, Map No. 78.
157 See, ibid., Maps Nos. 79-82.
158 Ibid., Map No. 87.
__________
CASE CONCERNING MARITIME DELIMITATION AND
TERRITORIAL QUESTIONS BETWEEN QATAR AND BAHRAIN
(QATAR V. BAHRAIN)
REPLY OF THE STATE OF QATAR _____________________________________________
CHAPTER III - THE EXTENT OF THE TERRITORY OF BAHRAIN 59
Section 1. Bahrain from 1783 to 1868 62
Section 2. Bahrain after 1868 68
__________
CHAPTER III
THE EXTENT OF THE TERRITORY OF BAHRAIN
3.1 In its Memorial and Counter-Memorial, Bahrain constructs a fanciful image of itself as a
historical entity comprising an extensive area. Thus it claims that "The Qatar peninsula, along
with the Hasa oases, was included within the major geographical and socio-economic unit known
to historians as Greater Bahrain" . Bahrain cites no source for the concept of any such socio-
economic unit called "Greater Bahrain". However, while Qatar does not deny that there is
evidence to indicate that at one time (long before the arrival of the Al-Khalifah in the region) the
islands presently comprising Bahrain and certain parts of the mainland were together referred to
as "Bahrain", this ceased to be the position long ago. Thus the present Amir of Bahrain, Sheikh
Hamad bin Isa Al Khalifa, writing on "Modern Bahrain and its Heritage" tells us:
"The Arabs gave the name 'Bahrain' to the entire coastal length of the apex of the Arab Gulf
in the north (including Kazima) to Oman in the south. It included the islands adjacent to the
Arab Gulf coastline which were then known as the Awal Islands. This regional name was
applied until the middle of the thirteenth century when the term began to be applied more
specifically to the group of islands now known as Bahrain, altho2gh the entire area continued
to be loosely referred to as `Bahrain' for centuries afterwards" .
3.2 Another official publication of the State of Bahrain, discussing the origin and scope of the
name "Bahrain", similarly indicates that aroun3 656 H. (1258 A.D.) "the island of Awal and the
islands around it came to be called Bahrain" .
3.3 Sheikh Hamad also notes that Bahrain was occupied by the Portuguese three centuries later
(in 1521) and reproduces a Portuguese map of Bahrain from 1538 which clearly indicates that
the Portuguese occupation of what was then "Bahrain" did not extend beyond the main group of
islands and did not extend to any other island or any part of the mainland 4. Similarly, as shown
hereafter, when the Persians displaced the Portuguese in 1602, their occupation of "Bahrain"
until 1783 (when the Al-Utub and Qatari tribes ousted them) als5 did not extend to any island
adjoining the peninsula of Qatar nor any part of the mainland .
3.4 Another Bahraini source, Al-Nabhani of the National Library of Bahrain, in his History of
Arabia, originally published in 1923 and republished in 1986, describes Bahrain as follows:
"Bahrain:
A name given by ancient Arabs to all of the countries located on Basra Gulf coast extending
from there to the borders of Oman, with a capital city at Hajar, Al Hassa. Later the name was
given to those countries located on the said gulf between (northern latitude 25 - 29 degrees)
with Qatar and Kuwait as its extremities. The large part of the Arabian Peninsula which
comprises Qatar and the nearby islands was also included. Hence the island of Bahrain in
addition to the said countries was called Bahrain. Then the two names were forgotten and the
name of Bahrain was devoted only to the main island of today, which in an older time was
called Awal (a name of pre-Islam idol). Bahrain is located 12 miles from Dhahran terra firma at 26 degrees, thirty minutes northern
latitude, and 10 degrees, 37 minutes eastern longitude starting from a base at the Holy
Mecca. And its entire area including Muharraq is about 80 miles. The length of Manama
island north to south is 25 miles while its width is 9 miles. The length of Muharraq island is
nearly 5 miles while its width is about two miles" . 6
Al-Nabhani also describes the other islands comprising Bahrain, but does not include the Hawar
islands among them.
3.5 Contrary to its own authoritative writings cited above, which show that from about the
middle of the 13 thcentury, the name "Bahrein" or "Bahrain" as such was confined to the main
island alone or to "the group of islands now known as Bahrain" or, at most, to the main island
"and the islands around it", Bahrain now seeks to suggest thth the Qatar peninsula was part of
"Bahrain" for a much longer period and even in the 19 century, for which it places reliance on
an 1838 French map by a Colonel Lapie which, Bahrain states, "recognised Bahraini dominance
over the peninsula by the simple word 'Bahrein' written in capital letters across the entire
8
territory of what is today Qatar" . However, numerous maps filed by Qatar, including those
being filed together with this Reply, and the historical description hereafter of the nature of
Bahrain's connections with the mainland during the 19 century clearly demonstrate that Colonel
Lapie's 1838 map, in including the Qatar peninsula under the rubric "Bahrain", may convey a
misleading impression. At most it only reflects, as do a number of other similar maps, the
observation of Sheikh Hamad quoted above that for a time the Bahrain Islands and parts of the
mainland "continued to be loosely referred to as 'Bahrain'". Other examples are Kiepert's
(German) map of 1863 9, which marks the Qatar peninsula as "el Bahhrein"; Bartholomew's map
10
of 1870 which marks the entir11mainland coast as "EL HASA OR BAHREIN"; and another
Bartholomew map of 1876 which marks the peninsula as "Katar" but the Oman coast as
"BAHREIN". However, it is important to note that even these maps mark the "Bahrain Islands"
separately and in colours clearly distinct from those used for the mainland; and furthermore, each
of these maps, as also numerous other maps, shows the Hawar islands in the same colour as that
used for the Qatar peninsula including Zubarah and not in the colour used for the Bahrain
islands. It is also noteworthy that Kiepert's map of 1874 12 and later editions abandoned the
description used in the 1863 map and correctly described the peninsula as "Katar". Bartholomew
13
maps produced in later years similarly carried correct descriptions of the Qatar peninsula .
3.6 It is Qatar's submission that even assuming Bahrain's version of the historical background
referred to above is regarded as accurate, it is wholly irrelevant to the issues before the Court in
the present proceedings. What is relevant is to consider the territorial scope of what in the words
of the Amir of Bahrain, is "now known as Bahrain" and whether the disputed territories on or
adjoining the Qatar peninsula which are at issue in these proceedings could be regarded, for any
historical or other reasons, to be part of "Bahrain". Qatar has shown and will further demonstrate
in this Reply that there is extensive and incontestable evidence of the fact that whatever
"authority" or "suzerainty" the Al-Khalifah had over any part of the Qatar peninsula was tenuous
at best, in particular after their departure from Zubarah to Bahrain in 1783, and ceased to exist
14
altogether from 1868 onwards . From that year, and in any event from 1871 when the Ottomans
arrived in Qatar, "Bahrain" has been comprised only of the main Bahrain island and its
immediately neighbouring islands. It will also be shown that this extent of Bahrain's territories is
confirmed by numerous sources, including a description of "Bahrain" by Belgrave himself in
15
1928, as well as a British Military Report of 1933 annexed by Bahrain to its Memorial .
3.7 Bahrain claims, however, that "The State of Bahrain is comprised of an archipelago which
includes more than 50 islands, low-tide elevations and shoals..., and the territory on the north-
16
west coast of the Qatar peninsula referred to as the Zubarah region" . Bahrain also contends that
apart from the immediately neighbouring islands of the main Bahrain island, "the other principalislands of the Bahrain archipelago are in the Hawar Islands group, located about 11 nautical
17
miles to the south-east of the main island of Bahrain..." .
3.8 Qatar will now show, by describing the historical evolution of the extent of Bahrain as it is
today, that this claim is wholly incorrect and misleading.
Section 1. Bahrain from 1783 to 1868
3.9 Qatar has already shown that the Al-Utub tribe, of which the Al-Khalifah were a section,
arrived at Zubarah in Qatar only in 1766, and moved to Bahrain less than 20 years later, after the
Arab conquest of Bahrain in 1783 . Thereupon, Bahrain was transformed from a Persian
dependency into an Arab principality governed by Sheikhs of the Al-Khalifah section of the Al-
Utub. Soon after the conquest, the Jalahimah section of the tribe, considering themselves unfairly
treated, departed for mainland Qatar, leaving the Al-Khalifah predominant in Bahrain. As Dr.
Al-Baharna, Bahrain's former Agent in these proceedings, has pointed out, the Jalahimah
"established their sovereignty over the whole peninsula of Qatar in spite of the19bjection of Al-
Khalifah, the Rulers of Bahrain, who regarded Qatar as their dependency". A descendant of the
Jalahimah, Rahmah bin Jabir, later regarded as "the most influential personage at the time in
Qatar" , mounted numerous attacks upon and became the scourge of the Al-Khalifah of
21
Bahrain . As Bahrain confirms, soon after22he conquest, the Al-Khalifah moved their
headquarters from Zubarah to Bahrain . Historical records show that thereafter, the Al-Khalifah
involvement in mainland Qatar had to do only with internecine family disputes, and the use of
locations on Qatar's west coast by exiled members of the family for preparing to retake Bahrain.
3.10 The Al-Khalifah occupation of Bahrain was followed by a confused period until 1820 with
struggles for control over the island by Muscat, the Wahhabis and Persia. During this period, the
Al-Khalifah acknowledged from time to time their submission to one or other of these powers.
Confirmation of the fact that Al-Khalifah authority can hardly be said to have been continuously
exercised over Bahrain itself - let alone Qatar - from 1783 is to be found in a number of
historical sources. An India Office historical Memorandum of July 1934 on Bahrain records that
in 1799, the Sheikhdom23aid tribute to Persia, following a declaration of war against Bahrain by
the Imam of Muscat . The Imam occupied Bahrain from 1800 to 1801. Thereafter it fell under
the influence of the Wahhabis from 1803 to 1809, and under their strict control from 1810 to
1811. By 1809, with the help of Rahmah bin Jabir, the Wahhabis had also taken control of the
whole of the Qatar peninsula and in 1810, they appointed an agent based in Bahrain to supervise
the administration of Bahrain, Hasa and Qatar and the "Shaikhs of Bahrain and Qatar paid
tributes through him" 24. This appears to be the last point of time when most of the Arabian shore
of the Gulf including Qatar and the islands of Bahrain were under one authority - but that of the
Wahhabis and not the Bahrainis. The India Office Memorandum also records that in 1811, "the
islands were freed from Wahabi rule by the Imam of Muscat, when the Uttabis were restored to
power" but, as claimed by the Imam, "in subordination to Muscat" . In 1816, Bahrain again
sought the protection of the Wahhabis against Muscat, but in 1820 "the Rulers of Bahrein made
26
full submission to the Imam of Muscat and agreed to pay him a tribute of 30,000 dollars..." .
3.11 In the meantime, Bahrain was shown to be assisting the piratical Qawasim, and in 1817 it
was reported that Bahrain "... could itself hardly be regarded otherwise than as a piratical
27
settlement" . The British action in 1819 against the Qawasim crippled these allies and exposed
Bahrain to a threat of occupation by the Ruler of Oman. Bahrain was thereafter admitted to the
General Treaty of Peace of 1820 by the British as part of their effort to achieve maritime peace.
Qatar has shown that although the British appeared to think that the Treaty also applied to the
Qatar peninsul28 the Political Resident found in 1823 that the people of Qatar had no knowledge
of the Treaty .
3.12 Qatar has also shown that while the 1820 Treaty could be said to have laid the initial
foundations of the State of Bahrain, Bahrain could hardly be considered to have become asovereign State in 1820 ; nor was it at that time a stable political entity. As Dr. Al-Baharna,
dealing with events in the Gulf region during 1830 to 1845, points out:
"Bahrain during this period was internally and externally unstable. Externally, the Ruler of
Bahrain, who had previously paid tribute to the Wahhabi rulers of Najd, now stopped that
payment and the relations between Bahrain and the Wahhabis underwent a great strain
30
which, in 1833, developed into war between the two countries" .
Dr. Al-Baharna goes on to state:
"The internal situation in Bahrain was disturbed from 1830 until 1843 by dynastic quarrels
between the Shaikhs, which finally resulted in Shaikh Muhammad ibn Khalifah expelling his
uncle Shaikh Abd Allah, the Ruler, and seizing power himself. Shaikh `Abd Allah spent the
rest of his life endeavouring to regain Bahrain by asking the help of the British, the Persians
31
and the Sultan of Muscat" .
A document submitted by Bahrain with its Counter-Memorial referring to events of 1833 notes:
"The inhabitants of Qatar..., being more vulnerable to attack by land, submitted to the
Wahabis and, when the Shaikh of Bahrain crossed to Qatar to remonstrate with them, stated
explicitly that they would, if called upon to do so, join the Wahabis in an attack on
Bahrain" .32
3.13 As is recorded (in another document annexed to Bahrain's Counter-Memorial) by the
historian, J.B. Kelly:
"Shaikh 'Abdullah ibn Ahmad had wielded sole authority in Bahrain since the death of his
nephew and co-ruler, Shaikh Khalifah ibn Salman, in May 1834. So bad was his government,
and so feeble his authority over his head-strong sons and kinsmen, that Bahrain rapidly fell
into a state of disorder. Towns decayed, trade declined abruptly, and emigration reached
alarming fi33res, as many of the island inhabitants fled from the extortions of the Al
Khalifah" .
3.14 Writing on the internal affairs of Bahrain during 1826-1838, Lorimer also notes that:
"...the lot of the Shaikh's subjects in Bahrain was growing, from day to day, less endurable;
and the islands were being rapidly depopulated by emigration. The towns were in a state of
ruin and decay, and house rents had fallen to one-eighth of what they had been only a few
years before. Six sons of the Shaikh pretended to exercise separate and independent power,
and their attention was chiefly devoted to extracting money from merchants and other men of
means. The ordinary subject in Bahrain had no acknowledged rights; his domestic animals,
even, were frequently seized on pretext of corvée and were not returned. The result was a
general exodus of the inhabitants to every quarter of the Persian Gulf" 34.
3.15 The Court will note two aspects of the position during 1833-1843 described in the above
historical sources: firstly, that "Bahrain" as such is taken to comprehend only insular (or island)
territories; and secondly, although the Al-Khalifah might have been involved with tribes or
events on the mainland, they were hardly in a position to administer Bahrain itself as a viable
principality, and there could be no question of their exercising any effective dominance or
control over the peninsula of Qatar or any other part of the mainland coast which Bahrain might
claim was part of "Greater Bahrain". Bahrain's assertion that the 1838 French map by Colonel
Lapie "recognised Bahraini dominance over the peninsula" 35is therefore wholly unfounded.
3.16 The India Office Memorandum of July 1934 also records that:
- In 1830-31, Bahrain formally submitted to the Wahhabi Amir, agreeing to acknowledge
his supremacy and to pay tribute to him, a state of affairs which lasted until 1833;
- In 1836, Bahrain agreed again to pay tribute to the Wahhabi Amir, a situation which
lasted until 1838; - In 1839, Bahrain submitted to the Egyptians, acknowledging their supremacy and
agreeing to pay tribute;
- In the early 1840s, "internal dissensions in the Sheikhdom between the ruler, Sheikh
Abdullah, and his grand-nephew and co-ruler, Sheikh Mohamed, became increasingly
bitter", leading to a four-month civil war in 1843, won by Mohamed, against whom
Abdullah subsequently intrigued from 1843 to 1849;
- In 1847, the ruling Sheikh of Bahrain agreed to pay tribute to the Wahhabi Amir;
- In 1849, the Sheikh asked to be taken under British protection;
36
- In 1856, "the Sheikh's internal government continued to go from bad to worse" .
3.17 Lorimer records that towards the end of the year 1859, in view of another Wahhabi threat,
Sheikh Mohammed made simultaneous applications for protection to the Persian Governor of
Fars and to the Turkish Wali of Baghdad:
"The response of the Turks was delayed by the absence of the Wali from his headquarters;
but a Persian agent in the person of one Mirza Mehdi Khan, a well-known Anglophobe,
almost immediately arrived in Bahrain, the Persian flag was hoisted, and Persian sovereignty
was proclaimed. Scarcely, however, had these ceremonies been performed, when
Muhammad Baig, the emissary of Mustafa Nuri Pasha appeared; the Persian flag was again
lowered; and the Turkish flag was raised in its place. To complete the absurdity of the
situation the Per37an agent refused to leave Bahrain or to surrender his imaginary authority in
the Shaikhdom" .
3.18 This confusion was only resolved upon the British decision in 1861 that the tranquillity of
the Persian Gulf seemed to demand that Bahrain should be regarded as subject neither to the 38
Sublime Porte nor to Persia; and that the independence of the principality should be recognised .
3.19 In other words, during the whole period when Bahrain claims that the Al-Khalifah Sheikhs
were exercising sovereign authority or dominance throughout Qatar, there were very few
intervals when the Al-Khalifah were themselves independent of other powers. Indeed, it was
only in 1861 that, for their own purposes - i.e., the maintenance of maritime peace and the
exclusion of the Ottomans and Persians from Bahrain - the British "decided... to regard the
39
Sheikh as an independent ruler" .
3.20 From the background described above, it will be seen that even before 1868, "Bahrain" was
essentially regarded as "an island" or, at most, a compact group of adjoining islands, and it is
therefore not surprising that, beyond its unsubstantiated assertions, Bahrain has not been able to
produce any credible evidence to show that it was regarded as having any authority in any
territory outside the Bahrain islands and by no means, as Bahrain argues, throughout the
peninsula for more than a century until 1871 40. The fact simply is that during the period before
1868, although a section of the Naim tribe on the Qatar peninsula might have professed
"allegiance" to the Rulers of Bahrain, and the Al-Khalifah may have had connections with other
mainland tribes, any authority of the Al-Khalifah over such tribes was no more than theoretical.
It is for this reason that even an historical reference to the Sheikh of Bahrain's "suzerainty" over
Qatar in the middle of the 19 thcentury is characterised as "more apparent than real" . 41
3.21 Furthermore, there is no evidence that because of any such uncertain "suzerainty", the
expression "Bahrain" ever came to include any territory other than the main island, or at most the
compact group consisting of the main Bahrain island and the immediately adjoining islands.
There was therefore no "Greater Bahrain" in existence in the years preceding 1868 upon which
any Bahraini claim to the Hawar islands or Zubarah could be founded.
Section 2. Bahrain after 18683.22 The misbehaviour of Sheikh Mohamed Al-Khalifah which led to the signing of the Friendly
Convention between the British and B42rain in 1861 has already been described in Qatar's
Memorial and Counter-Memorial . Qatar has also described in detail the continuing piratical
activities of Sheikh Mohamed and his treacherous and destructive sea-borne attack of 1867 on
Qatar which led to the British displacing him by Sheikh Ali as the Chief of Bahrain and to the
43
signing of the 1868 Agreements with the Chiefs of Bahrain and Qatar . Qatar has further shown
that these Agreements recognised Bahrain and Qatar as separate entities and that it was
historically acknowledged that after the Agreements of 1868 and the Ottoman arrival in Qatar
"the political connection, such as it was, between Bahrain and Qatar came to an end" . 44
3.23 From the description given above, it will have been seen that the references to the history of
the Portuguese occupation show "Bahrain" to comprise only the main island of that name and the
adjoining islands, of which a m45 is reproduced in Sheikh Hamad bin Isa Al Khalifa's
publication referred to above . The Persian presence in "Bahrain" up to 1783 as well as the
subsequently revived Persian claim of sovereignty over Bahrain did not generally extend beyond
the main island, though in some records relating to the Persian claim there is a reference to
"Bahrain" consisting of "five islands". However, at no time was there any mention of "Bahrain"
as including the Hawar islands or any part of the peninsula of Qatar. When the claim was pressed
in 1886, the message conveyed to the British Foreign Minister was in the following terms:
"(1) The Shah wished to establish his authority effectually over the island either by sending a
Governor or by instituting the Sheikh as the representative of the Persian Government.
(2) The Shah would wish that the maritime police should continue in the hands of the British
naval forces, and lastly
(3) he considered that the thndon Foreign Office letter to the Persian Minister at th46Court of
St. James dated April 29 , 1869, recognized his sovereignty over the island..." .
3.24 In December 1927 and January 1928, the London Times newspaper reported Persian
protests to the League of Nations, together with a description of Bahrain. The issue of 29
December 1927 which reproduces the letter of protest from the Persian Ministry of Foreign
Affairs to the Secretary General of the League of Nations refers to "Bahrain" as "an island State,
47
consisting of five islands" . Another report, contained in the issue of 5 January 1928, notes:
"The Shah's Government has raised a singular and unexpected claim to the Bahrain Islands, a
group of one large and four smaller islands some twenty miles from the Arabian mainland" . 48
3.25 When the claim was ultimately resolved in 1970, it was as a result of the Shah of Iran's
announcement that "the island's inhabitants were welcome to decide their own fate". 49
3.26 A number of maps published by Persian/Iranian sources from time to time show that
Persian/Iranian authorities regarded only the main Bahrain island and its immediately adjoining
islands as the territory which they claimed a50Persian. This is particularly clear from the official
Iranian Ministry of Defence Map of 1960 as well as the National Iranian Oil Company maps of
1965 and 1968 , all of which show the Bahrain group of islands as part of Persia/Iran. There is
no indication whatsoever in any of this cartographical material that the Hawar islands or Zubarah
were ever regarded as part of "Bahrain", to which Persia, by then Iran, continued to lay a claim
until 1970.
3.27 Another independent (German) source confirms the extent of Bahrain described above in
relation to the Persian claim to Bahrain. In a dissertation compiled in 1940 by Wolfgang Smend
which considered the merits of the Persian claim, "Bahrein" is described in the following terms:
"... Around 20 miles from the shores of El-Hasa lies a group of islands. Seven islands belong
to this group: Bahrein, Moharreq, Sitrah, Nebbi-Saleh, Sayah, Khasselfah and Arad. This
archipelago takes its name from the largest and most important island, Bahrein" 52.3.28 The limited extent of Bahrain is similarly apparent from Ottoman documents, particularly
those relating to the Ottoman efforts to claim sovereignty over Bahrain. A Turkish dictionary
published in 1888-89 defines Bahrain as follows:
"BAHREIN
Bahrein, in other words the island of Aval, is situated west the Gulf. It is a large island in the
Hecir Gulf. It lies in the 26 north latitude and 48 10' east longitude. The length from north to
south is about 50 km and its width is about 16 km. The land is low and flat. It has 60 small
villages and a town of 25000 to the north called Mun'ima. The people deal in pearl diving.
Good quality pearls are obtained in abundance on the coast. The small island by the name of
Ard lies in the proximity. Although it is ruled by an Imam, it had in the past always
subordinated to a state, and was for a while under the domination of the Portuguese and later
of Iran and the Muscat Imam, before coming under the sovereignty of the Ottomans" . 53
3.29 A later Turkish source, Ismail Hakki Bey Tewfik, in an official publication of the Turkish
Ministry of Foreign Affairs, dated 1931, also defines "Bahrain" as follows:
"In the past, al-Hasa and Qatar were included under the name Bahrain, but today, Bahrain
refers only to a group of five islands which are:
1- Bahrain. Its previous names are: Aval, Oval, Havila and Tulus
2- Moharrek
3- Umm Na'san, uninhabited island
4- Sitra
5- Nabi Salih.
These five islands are located to the east of Arabia and to the southwest of the Gulf of Basra,
i.e., 30.4 km. from the portion of the coast formed by the Qatar peninsula and the angle
formed by Al-hasa and Qatar" . 54
3.30 It is also of interest to note that during the period when the Ottoman Empire maintained its
claim of sovereignty over Bahrain as well as Qatar, Ottoman maps showed both Qatar (including
55
the Hawar islands) and Bahrain as part of the Ottoman Empire . Qatar would invite attention to
the fact that the so-called "primitive but highly instructive" map of 1878 by Capt. Izzet annexed
(opposite page 6) by Bahrain to its Memorial, which is stated to be a "Map of THE VELAYAT
of Basra" is clearly a map of this category and cannot therefore be relied upon to support
Bahrain's contention that it "shows the Hawar Islands as a part of Bahrain" 56.
3.31 Additionally, and contrary to what Bahrain describes as comprising the "State of Bahrain",
all other significant historical references to or descriptions of "Bahrain" after 1868 specify only
the main Bahrain island and its immediately neighbouring islands as constituting the principality
or State of Bahrain. The following are some examples:
(a) In a British memorandum of March 1874 concerning the claims of Persia and the Ottomans to
Bahrain, the extent of Bahrain territory was described as:
"... a small group of islands, three in number, on the south-west side of the Persian Gulf, in
the centre of Bahrein Bay, the principal of which is Bahrein (or Aval), lying about ten miles
57
off the Coast of Arabia" .
(b) A British Report of the Persian Gulf Political Residency for the year 1878-1879, published in
1880, records:
"... it may be interesting to note that, according to Arabian writers, the name Bahrain, now
restricted only to the islands so called, once extended to a tract of mainland including El-
58
Katif and El-Katr" .(c) In a paper presented to the Royal Geographical Society in November 1889 by J. Theodore
Bent after a trip to the Bahrain islands to pursue archaeological activities, he describes Bahrain
as:
"The group of islands known as the Bahrein (Arabic dual form of Bahr, i.e. two seas) lies in a
bay of the same name about 20 miles off the coast of El Hasa, in Arabia, in the Persian Gulf.
Bahrein, the largest, is 27 miles long by 10 wide.
... The second island in point of size is Moharek, north of Bahrein, and separated from it by a
strait one mile broad; it is of horseshoe form, seldom more than half a mile broad, and is
about five miles in length. The rest of the group are mere rocks: Sitrah, four miles long, with
a village on it of the same name; Nebbi-Saleh; Sayeh, and Khaseifah, and to the east of
Moharek, Arad, three-quarters of a mile in length, with its date-grove, and a large double fort
thereon of Portuguese construction, either an island or a peninsula at low tide. Arad is the
only island which retains its ancient name; the others, according to Strabo, Pliny, and
Ptolemy, having been called Tyros or Tylos, and Tharros" . 59
Bent also notes that while the Al-Khalifah once held other territory, "... now the Bahrein Islands
is all that is left to them...". Bent provided a map of what he considered to be the territory of
"Bahrain" which is reproduced on the opposite page for convenience of reference, as Map No. 6.
(d) Similarly, a report of the German Ambassador to Persia, in connection with a visit in 1902 to
the islands, describes Bahrain in terms almost identical to those used by Bent. He states:
"The Bahrain group of islands in the Persian Gulf includes the main island of the same name
which has a length of 51 km from north to south and a width of 16 km. The
capital and centre of trade is Menahme [Manama] in the north with 12,000 inhabitants,
mostly Arabs and followers of the Muslim Sunni sect. The little island of Noharreg
[Muharraq] is situated near the main island and only separated from it by a shallow, narrow
inlet with a capital of the same name, and winter residence of the sheikhs and rulers of the
whole group of islands, to which belong the islands of Sitra, Nebbi Saleh, Sayeh, Khaseifa
and Arad..." 60.
(e) Lorimer, in his account published in 1908, describes the main "Bahrain Island" and its
features and distinguishes it from the "Bahrain principality". Consistent with the position after
1868, he describes the principality/sheikhdom of Bahrain as follows:
"The present Shaikhdom of Bahrain consists of the archipelago formed by the Bahrain,
Muharraq, Umm Na'asan, Sitrah and Nabi Salih islands and by a number of lesser islets and
rocks which are enumerated in the articles upon the islands: taken all together these form a
compact group almost in the middle of the gulf which divides the promontory of Qatar from
61
the coast of Qatif..." .
(f) This description of "Bahrain" territory was thereafter consistently adopted by British
authorities. Thus:
(i) The Handbook of Arabia, published in 1916, states:
"The present Sheikhdom of Bahrein consists of the archipelago formed by the islands
of Bahrein, Muharraq, Umm Na'asan, Sitrah and Nebi Salih, with a number of lesser
islets and rocks. The whole forms a compact group almost in the middle of the gulf
which separates the promontory of El-Qatar and the coast of Qatif" 62.
(ii) In a report of the British India Office of 1928 entitled "Status of Certain Groups
of Islands in the Persian Gulf", contained in the Persian Gulf Historical Summaries
1907-1928, the Bahrain archipelago is described as consisting only of "the islands of
Bahrein, Muharraq, Umm Na'assan, Sitrah, and Nabi Salih, and a number of lesser
islets and rocks forming part of the same compact geographical group" . 63 (iii) On 3 May 1933, Laithwaite, of the India Office, referring to the territories of
Bahrain, also gave an almost identical description and stated that the dominions of the
Ruler of Bahrain may be regarded as consisting of "the Island of Bahrein, and of the
adjoining islands of Muharraq, Umm Na'assan, Sitrah and Nabi Salih... i64considering
any grant of a concession in respect of his 'dominions' or 'Bahrain'" .
(iv) As Qatar has pointed out, in response to a telegraphic request from London on 2
August 1933 for a marked map showing the area recognised as the Bahrain islands,
the acting Political Resident sen65a despatch on 4 August enclosing a map published
in 1906 by the Survey of India . The map enclosed with the despatch is unfortunately
missing from the British archives, but the despatch itself describes it as showing "...
the main island of Bahrain, the islands of Muharraq, Sitrah and Nabi Salih and certain
islets" . The despatch also states that the enclosed map "... does not show the island
of Umm Nassan (and some petty islets) which lies about two miles off the West coast
of Manama island...". Finally, paragraph 3 of the despatch summarizes the position as
follows:
"The whole of the islands shown on the enclosed map, and also Umm Nassan and the
petty islands mentioned in the second paragraph of this letter are included in the
general term Bahrain Islands".
(v) A year later, in Laithwaite's Memorandum of 14 July 1934 (mentioned above in
connection with the Persian claim to Bahrain), the same description of "Bahrain" was
repeated:
"The Principality of Bahrein consists of the archipelago formed by the islands of
Bahrein, Muharraq, Umm Na'asan, Sitra, and Nabi Salih, and by a number of lesser
islets and rocks".
Laithwaite added:
"Taken altogether these form a compact group almost in the middle of the V-shaped
gulf on the Arabian littoral of the Persian Gulf which divides the independent Arab
Trucial Sheikhdom of Qatar from the coast of Qatif in the Kingdom of Saudi
67
Arabia" .
(vi) The British Military Report and Route Book compiled in 1939 and published in 1940
describes Bahrain as follows:
"General Description - The Sheikhdom of Bahrein consists of the archipelago formed
by the islands of Manama, Muharraq, Umm-Na'san, Sitrah and Nebi Sala, with a
number of lesser islets and rocks. The whole forms a compact group almost in the
middle68f the bight which separates the promontory of Qatar and the mainland of
Hasa" .
In a detailed description thereafter of the physical geography of Bahrain, the report deals only
with each of the five islands mentioned above, describes the principal towns and important
places in Bahrain, the BAPCO area, and certain civil amenities. The report also sets out an
alphabetical list of the principal villages in Bahrain. No mention at all is made of the Hawar
islands or any other part of the Qatar peninsula.
3.32 It will be seen therefore that from 1908 to 1934, all five descriptions of Bahrain in British
records, as also one compiled in 1939, are virtually identical and clearly demonstrate that
"Bahrain" during that period was regarded by the British as comprised only of the five named
islands. Added to all this evidence are the numerous maps included in the Map Atlas provided by
Qatar with this Reply which similarly show "Bahrain" as consisting of a limited group of islands.
Qatar would invite particular attention to two of the maps, as they are official British maps and
therefore of high evidentiary value: (i) A portion of the Admiralty Chart No. 748-B of 1917 showing a red line within
which lies the Arabian peninsula . This map shows "Bahrain" specifically marked by
a circle enclosing the same compact group of islands.
(ii) The War Office map of 1924 with annotations by the Foreign Office made in
1933 . As discussed in Chapter 2, Section 7, above, this map was annotated by Mr.
G.W. (later Sir George) Rendel in connection with a proposal to transfer the duti71 in
regard to Persian Gulf States from the Colonial Office to the Foreign Office . This
map, from British records, again shows "Bahrein" as consisting of a group of islands
which does not include the Hawar islands or Zubarah.
This British cartographical material is therefore fully consistent with all the descriptions of
"Bahrain" in the British records from 1908 to 1939 set out above.
3.33 In addition to the above, important evidence to the effect that Bahrain consisted only of a
"group of islands now known as Bahrain" 72 and not "an archipelago which includes more than 50
islands, low-tide elevations and shoals... and the territory on the north-west coast of the Qatar
peninsula referred to as the Zubarah region..." including the Hawar Islands , is provided by
Belgrave himself and in an annex to Bahrain's own Memorial.
3.34 Belgrave, in an article published in the Journal of the Central Asian Society, in 1928 - two
years after he had taken up his official position in Bahrain - described Bahrain as follows:
"The Bahrain archipelago is a group of small islands about seventeen miles off the Arab
coast half-way down the Persian Gulf.
The town of Manama, the capital and commercial centre of the principality, is situated at the
northern point of an island of the same name. This, the largest of the islands, is about thirty
miles long and ten miles wide at the centre. It is separated from Muharrak
Island, which contains the second largest town, by a stretch of sea, a mile wide, which
becomes dry land, except for a narrow channel, at high tide. There are two smaller islands
covered with palm groves and several rocky uninhabited islets.
The names 'Manama' and 'Muharrak' mean respectively 'The place of sleeping' and 'The place
of burning'. It has been suggested that the former island was used as a place for burying and
the latter island as a place for cremations either by inhabitants or by people from the
mainland many centuries ago. On Manama Island there is an area of many miles covered
with thousands of ancient tumuli: some of these burial mounds are over fifty feet high. There
has been much controversy about their origin, which has not yet been definitely settled..." 74.
3.35 A British Military Report of 1933, reproduced as an Annex to Bahrain's own Memorial,
describes Bahrain as follows:
"BAHREIN
General Description. - The Sheikhdom of Bahrein consists of the archipelago
formed by the islands of Manama, Muharraq, Umm-Na'san, Sitrah and Nebi
Sala, with a number of lesser islets and rocks. The whole forms a compact
group almost in the middle of the bight which separates the promontory of
Qatar and the mainland of Hasa" 75.
It is important to read this description with a "map of Bahrain and Qatar to accompany the
Military Report on the Persian Gulf (drawn from WO Sheet G.39)" 7. As the Court will no doubt
notice, there is no mention of Hawar or Zubarah in the above description; furthermore, Bahrain
is represented on the map as quite distinct from Qatar and its adjoining islands including the
Hawar islands and there is no indication or mention of the Hawar islands or any territory on the
mainland as being part of Bahrain.3.36 It will be seen therefore that for a long time, the expression "Bahrain" has either meant the
main island or, at most, encompassed a compact group of islands which have been specifically
named from time to time, and that the Qatar peninsula and its adjoining Hawar islands have not
been included in any objective description of what is meant by the term "Bahrain".
__________
FOOTNOTES
1 BCM, para. 32.
2 Sheikh Hamad bin Isa Al Khalifa, First Light - Modern Bahrain and its Heritage (QR, Annex
II.79, Vol. 2, p. 555; emphasis added).
3 Sheikh Abdullah bin Khalid al-Khalifa (Bahrain's Minister of Justice and Islamic Affairs) and
Michael Rice (eds.), Bahrain through the ages - the History (QR, Annex II.78, Vol. 2, p. 551).
4 Sheikh Hamad bin Isa Al Khalifah, op. cit. (QR, Annex II.79, Vol. 2, p. 555).
5 See, para. 3.23, below.
6 Al-Nabhani, Al-Tuhfa al-Nabhaniya fi Ta'rikh al-Jazira al-'Arabiya, Cairo, 1923, republished
in 1986 (QR, Annex II.80, Vol. 2, p. 561).
7 BM, map facing p. 5.
8 BM, para. 16.
9 QR, Map Atlas, Map No. 1.
10 Ibid., Map No. 2.
11 Ibid., Map No. 7.
12 Ibid., Map No. 4.
13 Ibid., Maps Nos. 41, 59, 80 and 81.
14 See, Chap. II and Chap. III, Sect. 2 of this Reply.
15 See, paras. 3.34-3.35, below.
16 BM, para. 42.
17 Ibid., para. 43.
18 QM, paras. 3.17-3.18 and 8.9-8.10.
19 H. Al-Baharna, The Legal Status of the Arabian Gulf States, op. cit. (QR, Annex II.76, Vol. 2,
p. 537).
20 QM, Annex II.5, Vol. 3, p. 250.
21 Ibid., p. 247.
22 BM, para. 19.
23 QR, Annex II.61, Vol. 2, p. 359.
24 QM, Annex II.5, Vol. 3, p. 250; BCM, Vol. 2, p. 341.
25 QR, Annex II.61, Vol. 2, p. 537.
26 Ibid.
27 QM, Annex II.5, Vol. 3, p. 252.
28 QM, para. 3.20 and QM, Annex II.15, Vol. 5, p. 21.
29 QCM, para. 2.60.
30 QR, Annex II.76, Vol. 2, p. 537.31 Ibid.
32 BCM, Annex 110-112, Vol. 2, p. 341.
33 BCM, Annex 114, Vol. 2, p. 360.
34 QM, Annex II.5, Vol. 3, p. 265.
35 BM, para. 16.
36 QR, Annex II.61, Vol. 2, p. 359.
37 QM, Annex II.5, Vol. 3, p. 295.
38 Ibid.
39 QR, Annex II.61, Vol. 2, p. 359, at pp. 380-381; emphasis added.
40 BCM, paras. 68-69.
41 QM, Annex II.4, Vol. 3, p. 141.
42 See, for example, QM, paras. 5.3-5.4.
43 QM, paras. 3.35, 5.5 and 5.6.
44 QM, Annex II.4, Vol. 3, p. 141.
45 See, QR, Annex II.79, Vol. 2, p. 555.
46 QM, Annex II.7, Vol. 4, p. 90; emphasis added.
47 QR, Annex II.57, Vol. 2, p. 331.
48 Ibid.
49 QR, Annex II.85, Vol. 2, p. 615; emphasis added.
50 QR, Map Atlas, Map No. 91.
51 Ibid., Maps Nos. 94 and 96.
52 QR, Annex II.86, Vol. 2, p. 621. "Bahrein. Die politische und wirtschaftliche Bedeutung der
Insel und ihre völkerrechtliche Zugehörigkeit, Göttingen, 1940" ["Bahrein. The Political and
commercial importance of the island and its international appurtenance"]. The original German
text reads as follows: "... Etwa 20 Meilen von der Küste des El-Hasa Gebietes entfernt liegt eine
Inselgruppe. Zu ihr gehören sieben Inseln: Bahrein, Moharreq, Sitrah, Nebbi-Saleh, Sayah,
Khasseifah und Arad. Nach der grössten und wichtigsten Insel, Bahrein, trägt dies Archipel
seinen Namen."
53 QR, Annex II.15, Vol. 2, p. 75. The claim of Ottoman sovereignty over Bahrain in reality
remained nothing more than a paper claim. Even that was expressly abandoned in the Anglo-
Ottoman Convention of 1913.
54 QR, Annex II.87, Vol. 2, p. 625. The same author wrote to similar effect in 1932, in the
Zeitschrift für Geopolitik (QR, Annex II.88, Vol. 2, p. 631).
55 See, QR, Map Atlas, Maps Nos. 35 and 36, which thus show Bahrain as part of the Ottoman
Empire.
56 BM, para. 21.
57 QM, para. 5.31 and Annex III.28, Vol. 6, p. 137.
58 QR, Annex II.5, Vol. 2, p. 19.
59 QR, Annex II.82, Vol. 2, p. 577.
60 QR, Annex II.34, Vol. 2, p. 181. The original German reads as follows: "Die Bahrein
Inselgruppe im Persischen Golf umfasst die Hauptinsel gleichen Namens mit einer Ausdehnungvon 51 km von N. nach S. und einer Breite von 16 km. Auf derselben befindet sich im Norden
die Hauptstadt und das Handelszentrum Menahme mit einer Einwohnerzahl von 12000 Köpfen,
wovon die meisten arabischer Abkunft, und mohamedanisch-sunnitischer Religion sind. Von der
Hauptinsel nur durch eine seichte, schmale Bucht getrennt, liegt das Inselchen Noharreg, mit der
Hauptstadt gleichen Namens und der Winterresidenz des Scheichs und Beherrschers der ganzen
Inselgruppe, wozu noch Sitra, Nebbi Saleh, Sayeh, Khaseife und Arad gehören".
61 QM, Annex II.3, Vol. 3, p. 88.
62 QR, Annex IV.1, Vol. 4, p. 1.
63 QM, Annex II.10,Vol. 4, p. 276.
64 QM, Annex III.84, Vol. 6, p. 431.
65 QM, para. 6.22.
66 QM, Annex III.90, Vol. 6, p. 457.
67 QR, Annex II.61, Vol. 2, p. 359.
68 QR, Annex II.72, Vol. 2, p. 489.
69 QR, Map Atlas, Map No. 58.
70 QR, Map Atlas, Map No. 77; see, also, paras. 2.104, et seq., above, and Map No. 5, facing
page 56.
71 QR, Annex II.58, Vol. 2, p. 335.
72 See, para. 3.1, above, and QR, Annex II.79, Vol. 2, p. 555.
73 See, BM, paras. 42-43.
74 QR, Annex II.81, Vol. 2, p. 567. Belgrave's article was of course written before the
construction of the causeway linking Manama to Muharraq.
75 BM, Annex 330, Vol. 6, pp. 1446-1447.
76 QR, Map Atlas, Map No. 76.
__________
CASE CONCERNING MARITIME DELIMITATION AND
TERRITORIAL QUESTIONS BETWEEN QATAR AND BAHRAIN
(QATAR V. BAHRAIN)
REPLY OF THE STATE OF QATAR
_____________________________________________
PART III
THE HAWAR ISLANDS AND OTHER TERRITORIAL QUESTIONS 79
CHAPTER IV - THE HAWAR ISLANDS 79
Section 1. Introduction: The Territorial Integrity of Qatar and Qatar's Sovereignty over the
Hawar Islands 79
Section 2. Proximity and Qatar's Title to the Hawar Islands 83
A. Significance of the principle of proximity in the present case 86
B. Legal status of islands wholly or partly situated within the territorial sea of a State 95 C. The relevance of the Award of 9 October 1998 of the Arbitral Tribunal in the
Eritrea/Yemen case 108
D. Conclusion 113
Section 3. The Extensive Map Evidence supporting Qatar's Sovereignty over the Hawar Islands
116
A. Introduction 116
B. The legal relevance of the maps 117
C. 19 century maps 120
D. 20 century maps 121
E. The failure of Bahrain to produce map evidence supporting its claim 127
F. Conclusion as to the maps 129
Section 4. The Lack of Evidence for Bahrain's Claim to have exercised Sovereignty over the
Hawar Islands from the 18 Century to the Present Day 129
A. The so-called "evidence of Arab historians" from antiquity 129
B. The evidence of Bahrain's so-called "historical dominance" over Qatar 131
1. Qatar's independence and payment of "tribute" 132
2. Bahrain's distortion of the events of 1867/68 and of the significance of the 1861
agreement in this respect 134
C. The evidence of the Belgrave diaries and Bahrain Government Reports 136
D. Bahrain's allegations regarding activities on the Hawar islands 140
1. The alleged Dowasir occupation 140
2. The allegation concerning the Qadi's permission for the Dowasir to occupy the Hawar
islands 141
3. The Dowasir as Bahraini "subjects" 144
4. Permanent or seasonal habitation of the Hawar islands 147
5. Lack of evidence of habitation from 1937 onwards 161
Section 5. The Bahrain and Qatar Oil Concession Negotiations between 1925 and 1939 and the
Events Leading to the Reversal of British Recognition of Hawar as part of Qatar 164
Section 6. Events leading up to and following the British Decision of 1939 on the Hawar Islands
190
A. Further evidence of bias against Qatar on the part of certain British officials in the
Gulf in the matter of the conflicting claims to the Hawar islands, and of pre-judgment in
favour of the Bahraini claim 190
1. Bias 190
2. Pre-judgment 192
(a) Fowle 192
(b) Weightman 194
(c) British officials in London 194
B. Qatar has never alleged any "conspiracy" between Britain and Bahrain 198
C. Prior's and Alban's criticisms of the 1939 decision 203Section 7. The Bahraini Claim that the British Decision of 11 July 1939 resulted from a Process
of Arbitration and is therefore res judicata 206
A. The misleading nature of the chronology in Section 3.2 of Chapter III of the Bahrain
Counter-Memorial 206
B. The Ruler of Qatar's protests of February and May 1938 against Bahrain's unlawful
occupation of the Hawar islands incorporate an invocation of the British/Qatar Treaty of
1916 in order to secure Bahraini withdrawal from Hawar. They did not involve any
express or implied consent to any process of "arbitration" by the British authorities and
certainly not to any process involving a binding decision on the conflicting claims to
Hawar 210
C. The falsity and irrelevance of the Bahraini argument that criticisms of the conduct of
Weightman, Fowle and other British officials in the Gulf between 1936 and 1939 in
relation to the conflicting claims to the Hawar islands are inadmissible in the absence of
Britain as a party to the present proceedings between Qatar and Bahrain 214
1. The facts 214
2. The law 216
D. The significance in this context of the award of the arbitration tribunal in the
Dubai/Sharjah case 221
E. The significance of the British "provisional decision" of 1936 and its non-disclosure to
the Ruler of Qatar 224
F. Other irregularities breaching the principle of equality of arms 226
Conclusions 228
Section 8. The Bahraini claim that Qatar acquiesced in the 1939 decision on the Hawar islands
229
__________
PART III
THE HAWAR ISLANDS AND OTHER TERRITORIAL QUESTIONS
CHAPTER IV
THE HAWAR ISLANDS
Section 1. Introduction: The Territorial Integrity of Qatar and Qatar's Sovereignty over
the Hawar Islands
4.1 Qatar has shown that as a result of the 1868 Agreements incorporating undertakings by each
of the chiefs of Qatar and Bahrain not to commit any breach of the maritime peace, the sea was
to act as a buffer between Bahrain and Qatar, which were thus considered to be distinct and
separate entities, with Qatar's territory consisting of the mainland peninsula and its adjoining
islands.
4.2 Bahrain, however, has chosen to make a fanciful submission to the Court that the reference to
the "Qatar" peninsula was only to "a geographical feature" ; that Bahrain continued to have
2
"authority and control" over parts of the Qatar peninsula until 1937 ; and that the Briti3h only
recognised Abdullah Al-Thani as the "Shaikh of Qatar" when they signed the 1916 Treaty .
Bahrain carries this fanciful assertion to the point that it questions proximity (or the location of
most of the Hawar islands within Qatar's territorial waters) as a valid basis for Qatar's title to the
Hawar islands, stating that it is pointless to argue that the Hawar islands were attached to Qatar
when "the territorial scope of the recently created political entity of 'Qatar' simply did not reach
4
the west coast of the Qatar peninsula nearest the Hawar islands" .4.3 In this introductory Section, Qatar invites the Court's attention to the detailed evidence
furnished in Chapters II and III of this Reply, supple5enting the undisputed evidence already
presented in its Memorial and Counter-Memorial , this evidence conclusively establishing the
territorial integrity of Qatar as constituting the whole peninsula of that name (and therefore
including its west coast), its territorial waters, as well as the adjoining islands situated partly or
wholly within its territorial waters, including the Hawar islands.
4.4 With regard to the Hawar islands themselves, Qatar has also provided extensive evidence in
support of its long-standing title to these islands. Such evidence includes:
a) The 1868 Agreements, designed to ensure maritime peace by separating the territories of
Qatar and Bahrain, the necessary implication being that the Hawar islands must form part of
Qatar's territory and not Bahrain's territory, from which Bahrain could continue to threaten
Qatar;
b) Lorimer's description in 1908, in his Gazetteer of the Persian Gulf, of the Hawar islands as
part of Qatar;
c) The apparent refusal of the Ruler of Bahrain to lay claim to the Hawar islands in 1909 despite
a suggestio6 by the British Political Agent (Prideaux) who was anxious to contain Ottoman
expansion ;
d) As indicated above, the absence of any exclusion of Hawar or any other islands adjoining the
peninsula of Qatar from the territories of Qatar referred to -
- in the 1913 Anglo-Ottoman Convention which expressly preserved rights of
7
Bahrain's fishermen in Zakhnuniya ;
- in the 1916 British-Qatar Treaty;
8
- in the British Political Resident's discussion with the Ruler of Qatar in 1934 ; or
- in the Qatar Oil Concession Agreement with APOC in 1935;
e) The description of the Hawar islands as part of Qatar in the British Admiralty War Staff
(Intelligence Division) Survey of 1915 ; 9
f) The exclusion of Hawar (as part of Bahrain) in the 1923 map (signed by Holmes acting on
behalf of Bapco) attached to the draft first Bahrain Concession Agreement 1; the absence of any
reference to the Hawar islands in Bahrain's Concession Agreement of 1925; and the inclusion of
the islands in the territories of Qatar in the Iraq-Petroleum Company's map of 1933 (preceding
the Qatar Oil Concession of 1935) 11;
g) Numerous official and unofficial British, Iranian, Turkish and German maps of Qatar showing
Hawar as part of Qatar; in particular, the two official British maps of 1917 and 1924 (the latter
with Foreign Office annotations made in 1933) 1;
h) Numerous maps from renowned publishing houses in Europe and elsewhere similarly showing
the Hawar islands as part of Qatar;
i) The absence of the Hawar islands from descriptions of Bahrain after 1868 (Chapter III, above);
j) A number of other documents from the British archives which show that the Hawar islands
were regarded as part of Qatar right up until 1937, including;
- an official British Report of the India Office of 1928 (reproduced in the Persian Gulf Historical
Summaries 1907-1928) entitled "Status of certain Groups of Islands in the Persian Gulf", where
the Bahrain archipelago is defined as consisting of specific named islands which do not include
the Hawar islands 1;
- an India Office letter of 3 May 1933 (written by Laithwaite) giving an 14most identical
description of Bahrain as that in the 1928 Report referred to above ;- the acting Political Resident's telegram of 31 July 1933 to the Secretary of State for India
stating that "Hawar Island is clearly not one of the Bahrain group" with which the India Office
15
agreed ;
- a description of a marked map showing the area recognised as Bahrain islands submitted by the
Political Resident on 4 August 1933 to the Secretary of State for India clearly indicating that
16
Bahrain's territory did not include the Hawar islands ;
- a report of an aerial reconnaissance by the Royal Air Force prior to the 1935 British assurance
17
of protection of Qatar's territories, including a photograph of Hawar attached to it ;
- the Qatar - APOC Oil Concession Agreement of 1935;
- the note by G.W. Rendel of 30 December 1937 confirming that the Hawar islands were
geographically part of Qatar ; and
- The view expressed by Prior (who was the British Political Agent in Bahrain from April 1929
to November 1932 and the Political Resident from September 1939 to May 1946) that the Hawar
islands "belong to Qatar, a view supported by Lorimer" . 19
20
All of these materials have been described in detail in Qatar's Memorial , its Counter-
Memorial , and this Reply.
4.5 Qatar will now demonstrate that the Hawar islands, in addition to all the evidence referred to
above, in view of their proximity to the mainland of Qatar and their legal status by virtue of
being situated entirely within Qatar's territorial waters, must clearly be regarded as being part of
Qatar.
Section 2. Proximity and Qatar's Title to the Hawar Islands
4.6 In Section 1 of this Chapter, Qatar has set out in clear and concise terms the basis of its claim
of sovereignty over the Hawar islands and examples of the evidence upon which it relies to
sustain that claim. In this context, Qatar relies not only upon the fact that the majority of the
islands and islets constituting the Hawar islands lie wholly or partially within a three-mile
territorial sea limit from the mainland coast of Qatar (that limit being the one recognised by
Qatar and Great Britain in the 1930s), but also that all of them now lie within a twelve-mile
territorial sea limit from the mainland coast (that limit being the one currently applied by Qatar).
Moreover, documentary and map evidence from British and other sources shows that the Hawar
islands were generally acknowledged to appertain to Qatar (and not to Bahrain) at least up until
1936.
4.7 Map No. 9 facing page 145 of the Qatar Memorial demonstrates the precise location of the
islands and islets constituting the Hawar islands in relation to a territorial sea limit of three
nautical miles drawn from the coast of the Qatar mainland, measured at high tide. Reference
should also be made to Map No. 5 facing page 50 of the Qatar Memorial which gives further
details of the close proximity of the Hawar islands to the mainland of Qatar. It will be seen that
of the seventeen islands and islets constituting the Hawar islands as claimed by Bahrain in its
"preliminary statement" of 29 May 1938, eleven (including the main Hawar island) are located
wholly or substantially within that three mile limit. These are:
1. South Sawad (Suwad al Janubiyah);
2-4. Al Wakara (Juzur al Wakur);
5-9. Bu Sedad or Bu Saada (Juzur Bu Sadad);
11 North Sawad (Suwad ash Shamaliyah);
17. Hawar island (Jazirat Hawar).In addition, the three mile limit drawn on Maps Nos. 5 and 9 virtually bisects Janan island. Of
the six remaining islands or islets, one - Al Mahzoura (Umm Kharurah or Umm Haswarah) -
may lie just outside the three mile limit so measured; alternatively, the three mile limit may just
cut across the southernmost tip of the island. It will also be noted that the northern half of the
main Hawar island lies to the westward of three of the islands which may lie just outside the
three mile limit so measured on Map No. 9:
10. Al Mahzoura (Umm Kharurah);
12-13. Al Hajiat (unnamed islets).
4.8 The nearest of the Hawar islands identified on Map No. 9 to the coast of Bahrain island is Al
Maotoradh (Rabad al Gharbiyah) which lies 18.75 kilometres distant from the nearest point on
Bahrain island and only 13.38 kilometres distant from the nearest point on the mainland of Qatar
22
at high tide . It thus still lies nearer to the mainland of Qatar than to the coast of Bahrain island.
4.9 It will also be seen from Map No. 5 that, at low tide, a distance of only 250 metres separates
the extreme south-easterly tip of Hawar island (at Hadd ad Dib) from the mainland of Qatar; and
that a distance of only 150 metres separates Suwad al Janubiyah from the mainland of Qatar.
This of course explains Weightman's observation23hat it was possible to wade from the mainland
to Hawar island (Jazirat Hawar) at low tide . It will also be seen that, even at high tide, only 1.2
kilometres separates the south-easterly tip of Hawar island from the mainland of Qatar 24.
4.10 It is also worth noting that if the measurement of three nautical miles from Qatar's mainland
were taken from the low water mark rather than the high water mark, three-quarters of Umm
Kharurah (Map No. 9) or Umm Haswarah (Map No. 5) would lie within the line so drawn, as
would the whole of Janan island and a significantly greater part of Hawar island itself.
4.11 It remains only to add that a twelve-mile limit drawn from the coast of the Qatar mainland,
even measured at high tide rather than at low tide, would wholly encompass all seventeen of the
Hawar islands identified on Map No. 9 to the Qatar Memorial 25.
4.12 Qatar has already demonstrated that the authority of successive Al-Thani Rulers of Qatar
gradually extended from Doha and its immediate surroundings throughout the whole of the
peninsula of Qatar during the second half of the nineteenth century . This is attested to by many
authorities, Turkish and German as well as British. As regards British sources, the Court will
recall Lorimer's description (written in the early 1900s) of political conditions in Qatar from
1850 onwards:
"By the middle of the nineteenth century, however, the Shaikh of Bahrain had
established a suzerainty - more apparent than real - over Qatar, and was represented at
Bida (Dohah) by a political agent who was a member of his own family. In 1868
direct negotiations took place between the British Government and the tribal Shaikhs
of Qatar; and, in the result, the interest of the Shaikh of Bahrain in Qatar was limited
to the receipt of tributes probably on behalf of the Wahhabi Government of Najd. In
1872 the Turks established a garrison in Dohah; and with the cessation of the
Wahhabi Zakat the political connection, such as it was, between Bahrain and Qatar
came to an end" 27.
4.13 That Lorimer is a reliable authority on the geography and history of Qatar at the beginning
of the twentieth century is beyond dispute. His findings are certainly based on the knowledge
available to British officials in the Gulf at the time 28.
4.14 Lorimer does of course refer to and describe the main Hawar island in the geographical part
of his Gazetteer entries covering the "West side of Qatar"; but it is interesting and, Qatar would
submit, illuminating that no reference whatsoever is made to the "Hawar Islands" in his article on
the Bahrain Principality which describes the present Sheikhdom of Bahrain as consisting of: "... the archipelago formed by the Bahrain, Muharraq, Umm Na'asan, Sitrah and Nabi
Salih islands and by a number of lesser islets and rocks which are enumerated in the
articles upon the islands: taken all together these form a compact group almost in the
29
middle of the Gulf..." .
4.15 In such a detailed and massive compilation as the volume of Lorimer's Gazetteer published
in 1908 which is devoted to geographical and statistical data, the attentive reader would expect to
find in the article on the "Bahrain Principality" (as distinct from the article on "Bahrain Island")
at least some minimal reference to the Hawar islands if, as Bahrain claims, they were at the time
an integral part of the territory of Bahrain.
A. Significance of the principle of proximity in the present case
4.16 It is this misperception of the facts by the British authorities in 1939 which, in Qatar's view,
led them essentially to ignore the significance of the principle of proximity as far as title to the
Hawar islands is concerned. A meticulous search of the British archives for 1938-1939 reveals
that no consideration at all was given in London at this time to the legal status of islands located
wholly or partially within the seaward limit of the territorial sea of Qatar (at that time, three
miles).
4.17 Let us now consider Weightman's official reports on the Hawar islands in the present case.
The most important is his letter of 22 April 1939 to the Political Resident embodying his 30
assessment of the merits of the respective claims of Bahrain and Qatar to the Hawar islands .
The Court will note how consistently this assessment is weighted in favour of Bahrain as against
Qatar. Weightman reports the existence of "two villages" in the main Hawar island, some of the
houses being "occupied throughout the year". Water is admittedly in short supply and has to be
brought across from Bahrain. Pearling boats were beached in Hawar on a visit which Weightman
had paid to Hawar the previous week. The letter is replete with references to Dowasir
"ownership" of Hawar, deriving "directly from the authority of the Al Khalifah" (this being a
reference to a supposed grant of 1800 to the Dowasir from the Qadi of Zubarah, evidence of
which has never been produced). Qatar has consistently disputed the relevance and indeed
accuracy of the so-called "evidence" adduced by Bahrain in 1938/39 and again in the Bahrain
Memorial and Counter-Memorial to justify attribution of the Hawar islands to Bahrain. Qatar is
indeed of opinion that Weightman's more honest opinion of the strength of the Bahrain claim to
the Hawar islands is expressed in the Intelligence Summary of the Political Agent, Bahrain, for
the period 16-31 March 1940, when, after describing the banishment of one of the nephews of
the Ruler of Bahrain to Hawar for a "particularly revolting drunken bout", he comments:
"The pleasures of Hawar are confined to watching a few fishermen gut their catch,
and the result of this action should be admirable" 31.
By this time, of course, the British decision of 11 July 1939 had already been given, and there
was no longer any need for dissimulation by Weightman.
4.18 Bahrain also seeks to invoke evidence of the display of State functions and governmental
authority on the Hawar islands over the past 60 years or so. Qatar would submit that most of this
evidence can and should be ignored by the Court insofar as it involves Bahrain activities on or in
relation to the islands since April 1936, when Bahrain for the first time put forward its claim of
title. For the rest, Qatar contests the relevance and indeed truth of the "evidence" presented by
32
Bahrain in this context . Qatar has never of course denied that fishermen from various places
frequented the Hawar islands during the winter months. But these were activities of private
individuals and clearly did not constitute evidence of the exercise of governmental authority by
Bahrain.
4.19 In all the circumstances, the Court may well conclude, as did the Arbitral Tribunal in the
Eritrea/Yemen Award of 9 October 1998: "In these circumstances where for all the reasons just described the activities relied
upon by the parties, though many, sometimes speak with an uncertain voice, it is
surely right for the Tribunal to consider whether there are in the instant case other
factors which might help to resolve some of these uncertainties. There is no virtue in
relying upon 'very l33tle' when looking at other possible factors might strengthen the
basis of decision" .
4.20 This was part of the reasoning which led the Arbitral Tribunal to pay close attention to the
principle of proximity (or contiguity) as a key element in its consideration of the conflicting
claims of title to the Red Sea islands in dispute in that case. Proximity (or contiguity) may not in
and of itself be determinative of sovereignty over islands lying off the mainland territory of a
State and not so closely linked to the mainland as in effect to form an integral part thereof. But it
is clearly a highly relevant criterion in circumstances where there is little or no evidence of
official activity on the islands in dispute, whether because they are uninhabited or uninhabitable
by reason of the absence of water, or only seasonally inhabited for the same reason. In such
circumstances, proximity may indeed prove to be the decisive criterion; but this is likely to
depend on the precise location of the islands, since a distinction has to be drawn between islands
situated outside the territorial sea of a State and islands within the territorial sea.
4.21 Let us consider first the case of islands situated outside the seaward limit of the territorial
sea of a State, that seaward limit being determined as of the time when a dispute as to
sovereignty over these islands first arises. In the 1930s, both Qatar and Bahrain claimed a three-
mile belt of territorial sea, following British practice in this respect. Now, let us consider the
locus classicus where the principle of proximity is discussed in relation to title to terri34ry. This
is the award of the sole arbitrator (Judge Huber) in the Island of Palmas arbitration . In that
award, Judge Huber stated:
"In the last place there remains to be considered title arising out of contiguity.
Although States have in certain circumstances maintained that islands relatively close
to their shores belonged to them in virtue of their geographical situation, it is
impossible to show the existence of a rule of positive international law to the effect
that islands situated outside territorial waters should belong to a State from the mere
fact that its territory forms the terra firma (nearest continent or island of considerable
size). Not only would it seem that there are no precedents sufficiently frequent and
sufficiently precise in their bearing to establish such a rule of international law, but
the alleged principle itself is by its very nature so uncertain and contested that even
Governments of the same State have on different occasions maintained contradictory
opinions as to its soundness. The principle of contiguity, in regard to islands, may not
be out of place when it is a question of allotting them to one State rather than another,
either by agreement between the Parties, or by a decision not necessarily based on
law; but as a rule establishing ipso jure the presumption of sovereignty in favour of a
particular State, this principle would be in conflict with what has been said as to
territorial sovereignty and as to the necessary relation between the right to exclude
other States from a region and the duty to display therein the activities of a State" 3.
It should be noted that this lengthy citation from Judge Huber's award applies only to islands
situated outside territorial waters. In the Bahrain Memorial, reference is made to a comment by
Sir Gerald Fitzmaurice on the principle of proximity 3. For once, Sir Gerald may have been in
37
error; for in the original article in which the comment occurs , Sir Gerald truncates this citation
from Judge Huber's award by omitting, inter alia, the crucial phrase "situated outside territorial
waters".
4.22 On the other hand, Sir Gerald, in the self-same article, concedes that proximity may have
indirect effects: "Thus, in the absence of anything to the contrary, it may lend colour to a contention
that the disputed territory is in fact under the same sovereignty as the neighbouring or
contiguous territory, or that State authority known to be exercised in the latter
territory has been exercised in the former too. In short, contiguity or proximity is not
a ground of title but may in certain circumstances afford some evidence of its
existence" .38
4.23 Sir Gerald likewise refers with approval in this important contribution to the principle of
natural or geophysical unity which he discusses under the heading "The question of entity or
natural unity". Here is what the learned author says:
"This question can have far-reaching consequences. Not only may it powerfully affect
the play of probabilities and presumptions, but also, if it can be shown that the
disputed areas (whether by reason of actual contiguity or of proximity) are part of an
entity or unity over which as a whole the claimant State has sovereignty, this may
(under certain conditions and within certain limits) render it unnecessary - or modify
the extent to which it will be necessary - to adduce specific evidence of State activity
in relation to the disputed areas as such - provided that such activity, amounting to
effective occupation and possession, can be shown in respect of the entity as a whole.
Such a position would seem to result from the principle established by the Island of
Palmas case that 'sovereignty cannot be exercised in fact at every moment on every
39
point of a territory'" .
4.24 But it is not only Fitzmaurice who takes this view of the matter. So also does Sir Humphrey
Waldock. In an early article, Waldock advances the proposition that, within the principle of
effective occupation:
"... proximity may, in certain circumstances, operate to raise a presumption of fact
that a particular state is exercising or displaying sovereignt40over outlying territory in
which there is no noticeable impact of its state activity" .
Indeed, Judge Levi Carneiro, in his separate opinion in the Minquiers and Ecrehos case, upholds
a similar viewpoint:
"... the Minquiers and the Ecrehos are closer to Jersey than the mainland. They must
be regarded as attached to Jersey rather than to the mainland. They must be included
in the archipelago. These islets were, and continue to be, a part of its 'natural41nity'. It
is for this reason that they remained English as did the archipelago itself" .
4.25 Other noted authorities in fact go even further. Thus, Gidel entertains no doubt that an
island or islet located within the territorial sea of a State or other territorial entity falls within the
sovereignty of that State or entity even in the absence of an effective taking of possession of the
island or islet. In analysing the principle of geographical contiguity or proximity, Gidel states:
"Ce principe a pour conséquence que les îles situées dans les eaux territoriales d'un
Etat relèvent de plein droit de sa souveraineté, en l'absence même d'une prise de
possession effective par cet Etat. Le principe de contiguïté sainement entendu ne va
pas au-delà; mais dans cette mesure il doit être considéré comme faisant partie du
droit international commun" . 42
4.26 Waldock also went beyond the view which he expressed in 1948 in the British Yearbook of
International Law 43in the context of an opinion which he gave to the British Government in
1952, where he states:
"The only exception to the principle that the contiguity of an island does not by itself
constitute a valid title is where an unoccupied island lies so close to the coast as
actually to be within territorial waters. Then, a presumption arises that the island has
44
been appropriated by the coastal State" .4.27 That a distinction can and should be drawn in this context between islands situated outside
the territorial sea and islands situated within the territorial sea seems self-evident, since the
reasons of security which create a presumption that an island situated within the territorial sea of
the mainland territory of a State appertains to that State obviously do not apply (or do not apply
to the same extent) to an island situated outside that territorial sea. Qatar does of course accept
that the principle of proximity by itself will not be determinative of title to any island or group of
islands situated outside the territorial sea of a State. Bowett, writing in 1979 of islands lying in
the high seas, that is to say, outside the territorial sea of a State, has this to say:
"Here there is no rational reason for any presumption of sovereignty based on
contiguity. Indeed, the instances of islands belonging to one State but lying nearer to
the mainland of another are so numerous as to defeat any idea that sovereignty could,
or should, be based on contiguity per se" . 45
Among the examples given by Bahrain of States exercising sovereignty over islands that are
closer to another State's territory than to their own are the Channel Islands (closer to France than
to Britain), St. Pierre and Miquelon (closer to Canada than to mainland France), many of the
Aegean Islands (closer to mainland Turkey than to mainland Greece), the Netherlands Antilles
(closer to Venezuela than to the Netherlands) and the Nicobar Islands (closer to Sumatra,
Indonesia, than to India). These are some of the examples given by Bahrain . Qatar does not
contest that they are valid examples; but it is certainly of interest to note that nearly all of the
examples given by Bahrain are of permanently inhabited islan47 which lie outside a three-mile
belt of territorial sea appertaining to the mainland State . In other words, they are irrelevant to
the case of the Hawar islands, where, as will be seen from Maps Nos. 5 and 9 submitted to the
Court as part of the Qatar Memorial , more than half of the islands in the Hawar group lie either
wholly or partially within three nautical miles of Qatar's mainland coast . 49
4.28 In considering the application of the principle of proximity in the particular case of the
Hawar islands, one must also bear in mind the particular historical circumstances and the
relevance of local custom and practice.
4.29 Qatar submits that the principal historical circumstances which must be borne in mind are
the events of 1867/68 50. As a result of these events, the British in effect recognised the existence
of the separate entity of Qatar, distinct from Bahrain and separated from it by the sea. The Chiefs
of Qatar and Bahrain were required to enter into written engagements not to commit a breach of
the maritime peace. British "recognition" of the separate identity of Qatar as an entity distinct
from Bahrain was accorded within the context of the maintenance of the maritime peace; it
accordingly covered the coasts of mainland Qatar and the immediate off-shore islands adjoining
the mainland, in particular the Hawar islands.
4.30 Local custom and practice also suggest that the principle of proximity was frequently
applied in the Gulf to determine the appurtenance of uninhabited or only seasonally inhabited
islands. In this context, Qatar would recall the dispute between Britain (acting for Bahrain) and
the Ottoman Empire over the ownership of Zakhnuniya, a small island close to the coast of what
is now Saudi Arabia. As Qatar has already pointed out:
"There are indeed striking similarities between the island of Zakhnuniya and the
Hawar islands. Zakhnuniya, like the Hawar islands, lies close to the mainland of an
adjacent State and distan51from Bahrain. In both cases the islands are unsuitable for
permanent occupation" .
The Ottoman authorities, when the dispute first manifested itself in 1910, based their claim to
52
Zakhnuniya exclusively on proximity to the mainland ; and eventually, Britain accepted that
Zakhnuniya was part and parcel of the mainland coast which at the time appertained to the
Ottomans .534.31 In this context, it is noteworthy that the Ottoman military authorities at this time adhered
firmly to the proximity principle in the determination of title to coastal islands. Thus, in a letter
from the Ottoman Ministry of War to the Office of the Grand Vizier dated 25 July 1909, it is
stated:
"Intelligence has been received to the effect that British agents pay occasional visits
to the islands in the Persian Gulf and plant there flagpoles and then claim rights of
possession in the region. Unless transferred by agreement to another State, such
islands close by the coast should naturally belong to the State in possession of the
contiguous land. Britain should be advised of the fact that by planting flagpoles on
the islands near the coast of Hasa and Qatar, she cannot be allowed to claim any right
over the said portion of land. It is my duty to stress this need" .4
Given the date of this letter, the incident referred to seems likely to have resulted from Prideaux's
visit in April 1909 to Zakhnuniya and Hawar. It can therefore be assumed that the Ottoman
authorities at this time most assuredly did not recognize that Bahrain had any claim of title to the
Hawar islands.
4.32 The dispute between Britain (acting for Bahrain) and Saudi Arabia over title to the
Lubainah islands was also eventually resolved in 1958 by application of the proximity principle,
the islet closer to the coast of Bahrain being given to it and the islet closer to the mainland of
Saudi Arabia being attributed to the latter. All other arguments advanced by Bahrain from time
to time, based on ancient occupation, turtle catching, a private sale deed, the beaconing of the
disputed islets, and the Anglo-Ottoman Convention of 1913, were set aside, the eventual solution
being founded exclusively on the principle of proximity . 55
4.33 The British authorities in the Gulf were also prepared in the 1930s to apply the principle of
proximity to the determination of title to islands lying close to the mainland territory of other
sheikhdoms with which Britain had special treaty relations. In 1936/37, the British authorities in
the Gulf and in London mounted an enquiry into the appurtenance of certain small and
uninhabited (or only seasonally inhabited) islands in the Gulf. Among these islands was the
small (uninhabited) island of Al Junaina lying just over four miles off the mainland coast of Abu
Dhabi at high tide. It accordingly lies further offshore than the nearest point on the main Hawar
island lies to the mainland coast of Qatar. The Acting Political Resident in the Gulf (Caroe, in
the temporary absence of Fowle) was nonetheless clearly of the view that this island should be
considered as appertaining to Abu Dhabi:
"Al Junaina The Acting Political Resident recommends that in view of the close
proximity of this Island to the mainland of Abu Dhabi, it should be taken as
belonging to that Sheikh" .56
57
Both the India Office and the Foreign Office accepted this recommendation without comment .
4.34 It would thus appear that the failure of the British authorities in the Gulf and in London to
appreciate, in the period between 1936 and 1939, the significance of the application of the
principle of proximity to the Hawar islands may have been attributable, at least in some measure,
to their reliance on the misleading statement in Lorimer that the Hawar islands lie about five
miles off the mainland coast of Qatar, rather than to any rooted objection to the relevance of the
principle as such.
B. Legal status of islands wholly or partly situated within the territorial sea of a State
4.35 We have already noted that Bowett draws a clear distinction between islands situated
seaward of the outer limit of the territorial sea of a State and islands lying within the territorial
sea of a State. As regards islands lying within the territorial sea of a State, Bowett states:
"Here the presumption is that the island is under the same sovereignty as the
mainland nearby, and this presumption would apply to islands long-established and those which might suddenly appear as a result of volcanic action or even gradually
appear as a result of alluvial deposits from a river estuary" 58.
However, the author, after citing Lindley in support of his position, goes on to qualify his own
view in the following terms:
"This can be no more than a presumption, for not infrequently islands under the
sovereignty of one State lie within a distance from the shore of another State which is
less than the limit of territorial waters. Hence, the presumption is displaced where
60
proof of sovereignty in another State is adduced" .
4.36 Obviously, even assuming that Bowett is right on this point (and his view is certainly
disputable), a presumption such as the one to which he refers is highly unlikely to be displaced
where the island or group of islands lying wholly or partially within the territorial sea of another
State is either uninhabited (as was the case with most of the Hawar islands, at least in the mid-
1930s) or is only inhabited on a seasonal basis. Qatar submits that this is the case with the Hawar
islands which, at least as regards the period prior to 1936, were never permanently inhabited, but
at most only inhabited during the winter by fishermen from other parts of the Gulf. As Qatar has
shown, it is only in recent years, and more particularly since 1991, that Bahrain has, in flagrant
violation of its obligation to respect the status quo, engaged in substantial construction activities,
both military and civilian, on Hawar . 61
4.37 The Court will also be aware that there is authority for the proposition that the occasional
use of an island in the high seas by fishermen from a particular State is insufficient to confer title
to the island on that State. This was certainly the view of the sole arbitrator (the Queen of Spain)
in the Aves Island arbitration between the Netherlands and Venezuela in 1866; she was clearly
unimpressed by the occasional use of the island by62utch fishermen, and awarded the island to
Venezuela on the basis of succession to Spain . A highly significant passage in the Aves Island
award states:
"While it appears to be an established fact that the inhabitants of St. Eustache, a
Netherlands possession, go turtle fishing and egg collecting on the island of Aves,
that fact cannot support the claim to sovereignty as this amounts merely to a
temporary and precarious occupation of the island, the fishing in this instance not
being an exclusive right but the consequence of its having been aban63ned by the
inhabitants of the immediate vicinity, or by the lawful owner" .
The Court will of course recall that, in this part of the Gulf in the 1930s, fishing was not regarded
as an exclusive right but was common to all the tribes on the southern littoral. A similar view
was taken by Judge Hsu Mo in his separate opinion to the Court's judgment of 18 December
1951, in the Norwegian Fisheries case, where he stated:
"[A]s far as the fishing activities of the coastal inhabitants are concerned, I need only
point out that individuals, by undertaking enterprises on their own initiative, for their
own benefit and without any delegation of authority by their Government, cannot
confer sovereignty on the State" . 64
If this is the position with respect to islands located beyond the outer limit of the territorial sea,
the same position must a fortiori hold good for islands located within the territorial sea of
another State .5
4.38 The presumption that islands lying within a three mile territorial sea limit from a mainland
coast appertain to that mainland coast is of ancient origin. Right back to the time of Grotius in
the seventeenth century, it has been accepted by all international lawyers that a small belt of
territorial sea is essential to safeguard the security of the coastal State and to protect its financial
and commercial interests. There have been diverging views among States (at least until very
recently) as to what the breadth of that belt of territorial sea should be, but the concept that a beltof territorial sea should be regarded as attaching to and forming an extension of the mainland
coast developed in parallel with the emergence of the principle of the freedom of the high seas.
As the perceptive United States Secretary of State, Elihu Root, pointed out at the beginning of
the twentieth century:
"... the new principle of freedom, when it approached the shore, met with another
principle, the principle of protection, not a residuum of the old claim, but a new
independent basis and reason for modification, near the shore, of the principle of
freedom. The sovereign of the land washed by the sea asserted a new right to protect
his subjects and citizens against attack, against invasion, against interference and
injury, to protect them against attack threatening their peace, to protect their revenues,
to protect their health, to protect their industries. This is the basis and the sole basis
on which i66established the territorial zone that is recognized in the international law
of today" .
We need not trace the history of the breadth of the territorial sea from early acceptance of the so-
called "cannon shot" rule of three nautical miles which, for many years, was accepted by major
maritime powers such as Great Britain, the United States of America, France, Germany and the
Netherlands, to the eventual acceptance in the United Nations Convention on the Law of the Sea
of 1982 of a twelve-mile limit for the territorial sea. During the second half of the twentieth
century, many States pressed for an extension of the breadth of the territorial sea in the interests
of the security of the coastal State, and this pressure finally led to the endorsement of the twelve-
mile limit in the 1982 Convention.
4.39 But if we consider the position as it was in the mid-1930s, both Qatar and Bahrain,
following British practice in this respect, claimed at that time a three nautical mile belt of
territorial sea surrounding their coasts. One noted authority observes that even during all these
years of contention and dispute about the limits of the territorial sea, no one ever questioned the
sovereign jurisdiction of the coastal State to a minimum of three nautical miles as absolutely
67
essential for its security and protection .
4.40 Attention was directed in the Qatar Memorial to the case of the Anna of 1805 where, in the
context of the arrest by a British privateer of the United States vessel Anna at the mouth of the
River Mississippi - more specifically, at a point more than three nautical miles from the mainland
but less than two miles from alluvial islands formed at the mouth of the river - Sir William Scott
(later Lord Stowell) drew attention to the dangers to the security of the United States which
would inevitably arise if these islands were not acknowledged to appertain to the United States
as the coastal State68. It may be worth adding that, in his judgment in the Anna, Sir William Scott
also stressed:
"I think that the protection of territory is to be reckoned from these islands [the
alluvial islands]; and that they are the natural appendages of the coast on which they
69
border, and from which indeed they are formed" .
The ship was accordingly restored with costs and damages because it was held to have been
captured within the "territory" of the United States.
4.41 Attention was also directed in the Qatar Memorial to the decision of the Judicial Committee
of the Privy Council in the 1916 case of Secretary of State for India in Council v. Chelikani
Rama Rao and others 70, where Lord Shaw, delivering the opinion of the Privy Council, stressed
the confusion which might be produced if islands emerging within the three mile limit could be
seized by the first comer. The Privy Council cited with approval the judgment of Sir William
Scott in the Anna case and went on to say that the general law, as stated, was "supported by the
preponderant considerations of practical convenience" and therefore declared that the ownership
of islands formed within the territorial seas was in the British Crown.4.42 The judgment of Lord Stowell in The Anna marked the origin of what came to be known
subsequently as the "portico doctrine". This has been described in the following terms:
"Eventually the rule emerged that every island, wherever located, generated a
territorial sea, so that the 'portico doctrine' came to possess independent integrity as a
means of attributing sovereignty over offshore features which fell within the
attraction of the mainland, and in some cases as a means of including sh72ls and reefs
in the baselines from which the territorial sea was to be measured" .
4.43 British State practice in the mid-nineteenth century was, broadly, consistent with this
approach, and indeed brought about a development of the "portico doctrine". Islands lying within
a three nautical mile belt of territorial sea were accepted as belonging to the coastal State. Thus,
a dispute arose between Britain and Spain in the nineteenth century regarding the right of British
fishermen to land on the uninhabited "keys" (islets) surrounding much of the mainland of Cuba
and fish in adjoining waters. A formal Spanish note of 3 May 1852 protested this practice, stating
that the keys "are only a continuation of the Island of Cuba and a defence to the same",73nd
adding that the islands "have always been considered as an appendage of [Cuba]" . Britain did
not dispute Spain's title to all the Cuban keys although for some time it argued that only the
inhabited keys were entitled to a territorial sea. However, in 1869, the Law Officers of the
Crown advised that:
"The Cays on the north coast of Cuba... appear to us to come within the principle laid
down by Lord Stowell in the case of the Anna... and that the Spanish right of
jurisdiction extends to a distance of a marine league seawards from those Cays, and
over al74the Banks which may be enclosed within those Cays and the Mainland of
Cuba" .
The then United States Secretary of State (Seward), in a letter of 10 May 1863 to the Spanish
Minister, while protesting the six-mile territorial sea claim in respect of Cuba, took a broadly
similar position:
"The... line of keys is properly to be regarded as the exterior coast line, and... the
inland jurisdiction ceases there, while75he maritime jurisdiction of Spain begins from
the exterior sea front of those keys" .
4.44 The British Government adopted an even more forward position as regards islands lying off
the coasts of Bermuda and Jamaica between 1862 and 1864. On 3 November 1864, the British
Law Officers, in an opinion relating particularly to Jamaica, stated what they conceived to be the
general law regarding the outer limit of the territorial sea in the following terms:
"... in places where the possession of particular rocks, reefs or banks naturally
connected with the mainland of any part of Her Majesty's territories, is necessary for
the safe occupation and defence of such mainland, Her Majesty's Government also
claim the waters enclosed between the mainland and those rocks, reefs or banks
whatever may be the distance between them and the nearest headland" . 76
All this was of course subject to the right of innocent passage of foreign ships through the
territorial sea, so that the sovereignty of the coastal State over its territorial sea was never
absolute but was restricted as a result of the operation of the right of innocent passage. Subject to
this, however, a three-mile belt of territorial sea came to be accepted unequivocally during the
nineteenth century as an extension of the territory of the coastal State - "fully under the dominion
or sovereignty of the adjoining State" 77.
4.45 The sovereignty of the coastal State over its territorial sea and seabed does not of course
depend upon its occupation of these features; it exists because the territorial sea is the necessary
appurtenance of the land territory of the State. As Hershey stated in 1912: "The Land Domain of a State also includes all islands formed within its territorial
waters, and the territorial subsoil beneath its land and water surface" 78.
The latest edition of Oppenheim endorses the position that the sovereignty of the coastal State
extends to the belt of territorial sea adjoining its mainland coast:
"It was formerly contested whether the territorial sea was subject to the sovereignty of
the coastal State, but it is now generally accepted that 'the rights of the coastal State
over the territorial sea do not differ in nature from the rights of sovereignty which the
State exercises over other parts of its territory'" .9
The only qualification added by Oppenheim is that the sovereignty over the territorial sea is,
unlike that over internal waters, subject to the enjoyment of certain rights of innocent passage
and of transit by vessels of all nations.
4.46 This position is now formalised in Article 2 of the 1982 Convention on the Law of the Sea
which states:
"1. The sovereignty of a coastal State extends beyond its land territory and internal
waters... to an adjacent belt of sea, described as the territorial sea.
2. This sovereignty extends to the airspace over the territorial sea as well as to its bed
and subsoil.
3. The sovereignty over the territorial sea is exercised subject to this Convention and
to other rules of international law".
4.47 Thus a State which has sovereignty over the coastal landmass has also, ipso jure,
sovereignty over the adjacent territorial sea, which is accepted as a simple prolongation of the
State's land territory. The notions of "contiguity" or "proximity" accordingly apply a fortiori in
relation to features wholly or partially located within the territorial sea of a State, since the
sovereignty of the coastal State extends by operation of law to the territorial sea. It is no doubt
this consideration which prompted Judge Huber, in his award in the Island of Palmas case, to
limit his rejection of any claim of title over an island based upon notions of contiguity or
proximity to "islands situated outside territorial waters" 80. As regards islands situated within
territorial waters, it may be inferred that Judge Huber was, to put it at its lowest, most assuredly
not excluding title to islands arising solely or principally by virtue of the notion that the
sovereignty of the coastal State extends to all features located wholly or partially within its
territorial sea.
4.48 Sir Robert Jennings adopts a rather similar position. In principle, he takes the position that
contiguity "cannot be a root of title independent of possession". But he then goes on to make a
most significant qualification to this general principle:
"Thus, assuming that a certain parcel of territory is 'contiguous' in a geographical
sense to a certain sovereignty, this can never mean that the same sovereign has title
over that parcel of territory without more ado. It does not constitute, like the
territorial sea, an inalienable appurtenance, in the sense that it could not in law
belong to any other State than that which is sovereign over the principal territory" 81.
A claim to title to an island located outside the territorial sea of the claimant State based upon the
contiguity principle "cannot be a root of title independent of possession" although it may,
according to the learned author, provide "evidence raising some sort of presumption of effective
occupation; a presumption that may be rebutted by better evidence of sovereign possession by a
rival claimant" 8.
4.49 An interesting parallel can be drawn between the acceptance of the territorial sea as an
extension or continuation of the land territory into the sea, on the one hand, and the much later
recognition in the 1950s of the continental shelf as the extension of the seabed and subsoil of theterritorial sea into the adjoining seabed and subsoil of the continental shelf. The parallel is not an
exact one, but it is close enough. The Court will certainly recall its own pronouncement in its
1969 judgment in the North Sea Continental Shelf cases, where it stated that:
"... the rights of the coastal State in respect of the area of continental shelf that
constitutes a natural prolongation of its land territory into and under the sea exist ipso
facto and ab initio, by virtue of its sovereignty over the land, and as an extension of it
in an exercise of sovereign rights for the purpose of exploring the seabed and 83
exploiting its natural resources. In short, there is here an inherent right" .
Even more tellingly, the Court, in that case, emphasised "the principle - constantly relied upon
by all the Parties - of the natural prolongation or continuation of the land territory or domain, or
land sovereignty of the coastal State, into and under the high seas, via the bed of its territorial sea
which is under the full sovereignty of that State" . 84
4.50 If, as the Court has thus emphasised, the bed of its territorial sea is under the full
sovereignty of the coastal State, then surely everything that is naturally located, wholly or
partially, within the seaward limit of that territorial sea is also under the full sovereignty of the
coastal State . Indeed, it would seem to be a necessary presumption from the legal status of the
territorial sea and seabed that any natural feature capable of occupation, whether inhabited or
uninhabited, which lies wholly or partially within the seaward limit of the territorial sea of the
coastal State at the relevant time must be recognized as appertaining to that State. This by itself
would clearly exclude the possibility that a natural feature (such as an island) lying wholly or
partly within the accepted belt of territorial sea of a coastal State could be res nullius and
therefore open to occupation by another State.
4.51 There remains the possibility of acquisition of territory by long, continuous and undisturbed
possession. This involves either acquisition of title to territory by possession which has been so
long established that its origins are not only beyond question but also unknown (the so-called
"immemorial possession" of private law) or where the claimed right of sovereignty rests upon a
manifestly defective title or is even of wrongful origin, but where the "adverse possession" has
continued over a long and undisturbed period of time. Where title is claimed on the basis of
adverse possession, the claimant must not only display acts of sovereignty but there must also be
acquiescence on the part of the original owner. Sir Robert Jennings maintains that prescription:
"... is a portmanteau concept that comprehends both a possession of which the origin
is unclear or disputed, and an adverse possession which is in origin demonstrably
unlawful. For prescription, therefore, the possession must be long-continued,
undisturbed, and it must be unambiguously attributable to a claim to act as sovereign.
It depends as much on the acquiescence of the former sovereignty as on the
consolidation through time of the new" 86.
Sir Gerald Fitzmaurice has also provided some illuminating insights into the notion of
prescription. For Sir Gerald, one of the key elements in prescription as a means of acquiring title
is passivity on the part of the other claimant or claimants:
"The essence of a prescriptive claim (using that term in the acquisitive sense, and not
in the sense of immemorial possession...) is that encroachments, or an adverse taking
of possession, or jurisdictional acts that were in their inception illegal or invalid, have
gradually operated to create title by a process of tacit acquiescence on the part of the
original sover87gn, amounting in the end to a tacit abandonment or surrender of its
sovereignty" .
Now, it is amply clear from the history of the dispute between Qatar and Bahrain over title to the
Hawar islands, that Qatar never acquiesced in the unlawful activities of Bahrain in taking over
the Hawar islands in the mid-1930s but constantly and repeatedly protested to the British 88
authorities about these activities . Accordingly, there is no room for the operation of the notion
of acquisitive prescription as a means whereby Bahrain could have acquired title to the Hawar
islands since 1936.
4.52 It is significant in the context of the current dispute between Qatar and Bahrain as regards
title to the Hawar islands that, even where steps may have been taken after a war to transfer title
to islands lying off the mainland coast of a defeated Power to one or more of the victorious
Powers, title to all islands and islets within the three mile belt of territorial sea appertaining to the
mainland coast of the defeated Power has been stipulated to remain with that Power. The classic
example is the treatment of the Aegean islands under the Treaty of Lausanne, 1923. Qatar does
not take a position on the continuing dispute between Greece and Turkey as to title to certain
islets and rocks off the Anatolian coast of Turkey. It simply wants to draw attention to certain
relevant provisions of the Treaty of Lausanne of 1923. Following the Balkan wars of 1912, the
Ottoman Emperor, by virtue of Article 5 of the Treaty of London of 30 May 1913, left it to the
six major European Powers of the time (Germany, Austria-Hungary, France, Great Britain, Italy
and Russia) to decide upon the fate of the Ottoman islands in the Aegean Sea with the exception
of Crete and Mount Athos. A decision of the Six Powers of 13 February 1914 required Greece to
restore to Turkey the islands of Imbros and Tenedos, but also determined that Greece should
retain final possession of the other islands in the Aegean Sea which it was then occupying.
4.53 Article 12 of the Treaty of Lausanne in terms confirmed the Six-Power decision of 13
December 1914 "regarding the sovereignty of Greece over the islands of the Eastern
Mediterranean, other than the islands of Imbros, Tenedos and Rabbit Islands, particularly the
islands of Lemnos, Samothrace, Mytilene, Chios, Samos and Nikaria, .... subject to the
provisions of the present Treaty respecting the islands placed under the sovereignty of Italy
89
which form the subject of Article 15" . Before considering the terms of Article 15, it is as well
to remind ourselves that paragraph 2 of Article 12 provides that:
"Except where a provision to the contrary is contained in the present Treaty, the
islands situated at less than three miles from the Asiatic coast remain under Turkish
sovereignty".
In addition, it should be noted that paragraph 2 of Article 6 of the Treaty of Lausanne provides
more generally that:
"In the absence of provisions to the contrary, in the present Treaty, islands and islets
lying within three miles of the coast are included within the frontier of the coastal
State".
4.54 Article 15 of the Treaty of Lausanne deals with the Dodecanese Islands and provides that
Turkey renounces in favour of Italy all rights and title over 13 named islands which are now [in
1923] occupied by Italy, "and the islets dependent thereon", and also over the island of
Castellorizzo 90. As a general sweep-up clause, Article 16 of the Treaty required Turkey to
renounce all rights and title whatsoever over or respecting the territories situated outside the
frontiers laid down in the present Treaty-
"... and the islands other than those over which her sovereignty is recognised by the
said Treaty, the future of these territories and islands being settled or to be settled by
the parties concerned".
4.55 Qatar has drawn attention to these provisions of the Treaty of Lausanne only to demonstrate
that even the territorial clauses of a relatively recent peace treaty acknowledge that islands lying
within a three mile limit of the mainland coast of a Power defeated in war should continue to be
acknowledged as appertaining to that Power.
4.56 In the context of an analysis of the principle of proximity in its application to the Hawar
islands, Qatar notes that Bahrain has invoked the precedent of the Award of 14 February 1985 ofthe Arbitral Tribunal for the Delimitation of the Maritime Boundary between Guinea and
Guinea-Bissau to argue that it would have been:
"... illegitimate to ignore, under the guise of 'simplification' ... the 'bouclier' (shield)
constituted by the Bijagos Islands in the Guinea/Guinea-Bissau case..." 91
Bahrain puts forward this argument in order to counter Qatar's demonstration that, as a matter of
the law of the sea, Bahrain is not entitled to invoke what it asserts to be "legally relevant" insular
and other maritime features to be taken into account in the delimitation of the single maritime
boundary between Qatar and Bahrain. As will be seen in paragraph 9.74, below, Bahrain's
invocation of the Guinea/Guinea-Bissau Award in that particular context is mis-conceived. On
the other hand, the Court will wish to consider the Guinea/Guinea-Bissau Award in the context
of the principle of proximity in its application to the Hawar islands. What is highly relevant to
the treatment of the Hawar islands in the present case is the treatment of the Bijagos Islands in
the Guinea/Guinea-Bissau Award . 92
4.57 The geographical situation of the Bijagos Islands immediately off the coast of Guinea-
Bissau may be compared with that of the Hawar islands off the coast of Qatar, as is illustrated by
Map No. 16, facing page 352 in this Reply. As was stated by the Arbitral Tribunal in the
Guinea/Guinea-Bissau case:
"These islands [the Bijagos islands], which trading vessels must circumnavigate to
the north, west or south, are 2 to 37 nautical miles away from the nearest coast, and
are separated from each other by never more than 5 miles of shallow waters
interspersed with reefs" .3
The Court will note that the Bijagos islands lie much further off the coast of Guinea-Bissau than
the Hawar islands lie off the coast of Qatar.
4.58 A Convention of 1886 between France and Portugal had inter alia determined that all
offshore islands located between the Cape Roxo meridian, the coast and a southern limit
represented by a line following the thalweg of the Cajet River, should belong to Portugal. The
Aribtral Tribunal eventually found that the 1886 Convention did not determine the maritime
boundary between the respective possessions of France and Portugal in West Africa. It therefore
had to determine itself the course of the maritime boundary between Guinea and Guinea-Bissau.
4.59 In approaching this task, the Arbitral Tribunal found it necessary to distinguish three types
of islands, of which only the first two are relevant to the case of the Hawar islands:
"(a) The coastal islands, which are separated from the continent by narrow sea
channels or narrow water-courses and are often joined to it at low-tide, must be
considered as forming an integral part of the continent.
(b) The Bijagos Islands, the nearest of which is two nautical miles from the continent
and the furthest 37 miles, and no two of which are further apart than 5 miles, can be
considered, if the 12-mile rule accepted by the Parties is applied, as being in the same
territorial waters as each other and as being linked to those of the continent.
(c) There are also the more southerly islands scattered over shallow areas..., some of
which may be taken into account for the establishment of baselines and be included in
the territorial waters"94.
4.60 In the event, both the coastal islands as defined and the Bijagos Islands were taken fully into
account as appertaining to Guinea-Bissau, but the course of the maritime boundary between the
two adjacent States was drawn so as to reflect the general configuration of the West African
coastline as a whole. The interesting feature of the Award in the context of the present case
between Qatar and Bahrain is what is said in paragraph 95. The considerations stated at (a) and
(b) in the above citation from this paragraph of the award can be applied mutatis mutandis to theHawar islands and give significant support to the application of the principle of proximity in
determining title to islands located wholly or partly within the territorial sea appertaining to a
mainland coast.
C. The relevance of the Award of 9 October 1998 of the Arbitral Tribunal in the
Eritrea/Yemen case
4.61 Qatar might in principle have been prepared to confine its arguments based on the close
proximity of the Hawar islands to the mainland of the State of Qatar to the highly significant
factual and legal considerations which it has so far developed in this Section of its Reply. But
there has of course been a most important development in recent months which, in Qatar's
submission, provides strong support for Qatar's claim of sovereignty over the Hawar islands.
This is of course the Award of the Arbitral Tribunal of 9 October 1998, in the first stage of the
proceedings between Eritrea and Yemen covering territorial sovereignty and scope of the
dispute.
4.62 The dispute between Eritrea and Yemen on territorial sovereignty relates to overlapping and
conflicting claims of title to islands in the Red Sea. The Arbitral Tribunal, having been entrusted
with the task of defining the scope of the dispute between Eritrea and Yemen "on the basis of the
respective positions of the two Parties" eventually ruled that it was required to make an Award
on sovereignty "in respect of all the islands and islets with respect to which the Parties have put
forward conflicting claims, which include Jabal al-Tayr and the Zubayr group, as well as the
Haycocks and the Mohabbakahs" . 95
4.63 The Award describes the islands and islets in the Red Sea in dispute between Eritrea and
Yemen in the following terms:
"The disputed islands and islets range from small to t96y, are uniformly unattractive,
waterless, and habitable only with great difficulty" .
The Court will hardly need reminding that this description of the disputed islands in the Red Sea
is not all that different from the picture which Qatar 97s painted of the Hawar islands in the mid-
1930s before their unlawful occupation by Bahrain . Hawar island is of course larger in area
than any of the disputed Red Sea islands or islets; but it was certainly (in the mid-1930s)
waterless and, as Qatar has consistently maintained, uninhabitable on any permanent or sustained
basis. Indeed, another sentence in the description in the Eritrea/Yemen Award of the disputed
islands and islets in the Red Sea is, in Qatar's submission, equally applicable to the Hawar
islands:
"During the earlier periods the islands seem often hardly to have been noticed by
coastal countries other than by lo98l traditional fishermen who used them for shelter
and their waters for anchorage" .
Finally, the Court will wish to note another sentence in the Award descriptive of the disputed
islands in the Red Sea, but, in Qatar's submission, equally descriptive of the Hawar islands as
they were in the mid-1930s before Bahrain unlawfully occupied them. The Arbitral Tribunal,
after recalling that neither Eritrea nor Yemen had formulated any claim that the disputed islands
were located within historic waters, states (again evoking the parallel with the Hawar islands):
"Moreover, none of the Islands is inhabited on other than a seasonal or temporary
basis, or even has the natural and physical conditions that would permit sustaining
continual human presence" . 99
4.64 Further reference will be made to the Award in the Eritrea/Yemen case in Section 4.D of
this Chapter in the context of the discussion of the traditional freedom of fishing in the waters of
the Gulf of tribesmen owing allegiance to differing Rulers 100. It will be seen that the parallels, in
terms of geography, between the Hawar islands and the disputed Red Sea islands and islets are
matched by a similar concordance between the nature of the socio-economic activities carriedout by fishermen in the Red Sea and by fishermen along the southern shore of the Gulf, at least
up until relatively recent times.
4.65 But even more relevant to the present dispute between Qatar and Bahrain over the Hawar
islands than the similarities between them and the disputed Red Sea islands and islets in the
Eritrea/Yemen arbitration are the observations which the Arbitral Tribunal makes in its Award
about the principle of proximity. Before coming to the specific geographical situation of the
Mohabbakah and Haycock Islands in relation to the mainland coast of Eritrea, it may be useful to
recall exactly what is said in the Award about proximity as evidence of title:
"So there is some presumption that any islands off one of the coasts may be thought
to belong by appurtenance to that coast unless the state on the opposite coast has been
101
able to demonstrate a clearly better title" .
The Award then proceeds to analyse the principle of natural or geographical unity invoked by
Yemen as encompassing the entire chain of islands (including the Haycocks and the
Mohabbakahs), with the exception of the northern islands. The Award quotes with approval the
passage from Sir Gerald Fitzmaurice's 1955-6 article in the British Yearbook which has been
cited at paragraph 4.23, above, and then makes a very important point:
"These ideas, however, have a twofold possible application in the present case. They
may indeed, as Yemen would have it, be applied to cause governmental display on
one island of a group to extend in its juridical effect to another island or islands in the
same group. But by the same rationale a complementary question also arises of how
far the sway established on one of the mainland coasts should be considered to
continue to some islands or islets off that coast which are naturally 'proximate' to the
coast or 'appurtenant' to it. This idea was so well established during the last century
that it was given the name of the 'portico doctrine' and recognised 'as a means of
attributing sovereignty over off-shore features which fall within the attraction of the
mainland'" 102.
4.66 The Arbitral Tribunal then proceeds to apply these considerations to some of the disputed
islands and islets in the Red Sea. It considers first the case of the Mohabbakahs:
"The Mohabbakah Islands are four rocky islets which amount to little more than
navigational hazards. They are Sayal Islet, which is no more than 6 nautical miles
from the nearest point on the Eritrean mainland coast, Harbi Islet and Flat Islet; all
three of these are within twelve nautical miles of the mainland coast. Finally, there is
High Islet, which is less than one nautical mile outside the twelve-mile limit from the
mainland coast, and about five na103cal miles from the nearest Haycock island,
namely South West Haycock" .
4.67 This geographical situation of the Mohabbakah Islands led the Arbitral Tribunal to conclude
that it did not need to decide whether Italian title to these islands survived the Treaty of
Lausanne and passed thereafter to Ethiopia and then to Eritrea:
"It is sufficient for the Tribunal to note that all the Mohabbakahs, other than High
Islet, lie within twelve miles of the Eritrean coast. Whatever the history, in the
absence of any clear title to them being shown by Yemen, the Mohabbakahs must for
that reason today be regarded as Eritrean. No such convincing alternative title has
been shown by Yemen" 104.
The Tribunal justified including High Islet within the scope of this determination by admitting
that it lay just over twelve nautical miles from the territorial sea baseline, but nonetheless
concluding that: "... here the unity theory might find a modest and suitable place, for the Mohabbakahs
have always been considered as one group, sharing the same legal destiny. High Islet
is certainly also appurtenant to the African coast" 105.
4.68 In rejecting what it refers to as "the ingenious theory" enunciated by Eritrea whereby the
"leap-frogging" method of determining the baseline of the territorial sea could be applied so as to
include an entire chain, or group, of islands, where there is no gap between the islands of more
than twelve miles, the Arbitral Tribunal expresses the basic principle in the following terms:
"There is a strong presumption that islands within the twelve-mile coastal belt will
belong to the coastal State, unless there is a fully-established case to the contrary (as,
for example, in the case of the Channel Islands). But there is no like presumption
outside the coastal belt, where the ownership of the islands is plainly at issue" 106.
The Court will note that there has to be a "fully-established case to the contrary" to rebut the
"strong presumption" in favour of the coastal State.
4.69 The Haycocks lie outside a twelve-mile limit drawn from the mainland coast of Africa.
Despite this, and primarily because of general historical considerations leading to the
development of the "portico doctrine", the Tribunal also applied the proximity principle to
determine the fate of the Haycocks. After referring to the fact that, by virtue of various firmans
of the Ottoman Sultan, the African coast of the Red Sea and the islands off it were placed under
the administration of Egypt, the Tribunal continues:
"There seems little doubt that this African-coast administration would have extended
to the Mohabbakahs and the Haycocks. At this time the territorial sea was limited to
three miles, and there were still grave doubts about the nature and extent of the
territorial waters regime. Nevertheless there was a feeling, based upon considerations
of security as well as of convenience, that islands off a particular coast would, failing
a clearly established title to [the] contrary, be under the jurisdiction of the nearest
coastal authority. As mentioned above, this was sometimes called the 'portico
doctrine'" 107.
4.70 It was on the basis of these considerations that the Arbitral Tribunal determined that the
three small islands comprising the Haycocks, although lying outside a twelve mile limit from the
mainland coast of Eritrea, should be attributed to Eritrea.
4.71 The foregoing analysis of the Award of 9 October 1998, in the first stage of the case
between Eritrea and Yemen, sufficiently demonstrates its relevance to the present dispute
between Qatar and Bahrain, insofar as that dispute embraces the question of conflicting claims of
sovereignty over the Hawar islands. The dicta about proximity in the Award, although directed
to the particular cases of the Mohabbakahs and the Haycocks in the Red Sea, clearly apply
mutatis mutandis to the Hawar islands; indeed, they apply a fortiori, given that, according to the
testimony of Weightman in 1938, it was possible at low tide, to wade, in three feet of water at
most, from the mainland of Qatar out to the nearest point on the main Hawar island, which is
only 250 metres distant. The Hawar islands are therefore not simply "proximate" to the mainland
of Qatar; the main island is virtually part and parcel of the mainland.
D. Conclusion
4.72 Qatar is confident that the Court will wish to take all these considerations into account in
deciding upon the conflicting claims to the Hawar islands of the two States. In Section 4 of this
Chapter of its Reply, Qatar will show that there is no reliable or plausible evidence that Bahrain
has a "historic title" to the Hawar islands; that the claim as to the arrival of the Dowasir on the
Hawar islands about 1800 is unsupported by any real evidence, as is the claim that the Dowasir
maintained a regular and continuous residence on the islands thereafter; and that the claim that
the Dowasir "occupied" the Hawar islands on behalf of the Ruler of Bahrain is in any eventdisproved by the evidence, which demonstrates that this tribe frequently changed its allegiance.
On the contrary, Qatar has demonstrated that Bahrain effected a secretive and clandestine
"occupation" of the Hawar islands in 1937 and thereafter sought to build up the pretence that the
seasonal visits of Dowasir fishermen provided the basis for Bahrain's claim of title. In the
absence of any reliable or plausible evidence of Bahrain's title prior to Bahrain's unlawful
occupation of the Hawar islands in 1937, Qatar relies on the strong presumption that it has
always had title to the Hawar islands by virtue of the principle of proximity and the geographical
position of the islands vis-à-vis the mainland of Qatar.
4.73 Qatar would wish at this stage to remind the Court of three highly significant circumstances
which, in Qatar's submission, also have to be taken into account by the Court when considering
the respective claims of Qatar and Bahrain to sovereignty over the Hawar islands. The first is the
mistaken view held by the British authorities in London as to the location of the Hawar islands.
Relying on the descriptions of the Hawar islands given by Lorimer and in the Admiralty
publication A Handbook of Arabia prepared in 1916, the responsible authorities in London were
clearly of the view in 1938/39 that the main Hawar island lay well outside the (then) three mile
belt of territorial sea appertaining to the mainland coast of Qatar; both of these official
publications describe the main Hawar island as lying 5 miles west of Ras Aburuk (which, though
not inaccurate, is highly misleading since, as already indicated, the nearest point on the main
Hawar island to the mainland coast is, at low tide, only some 250 metres from the mainland at
the tip of the spit of that island (Hadd ad Dib on Map No. 5 facing page 50 of the Qatar
Memorial)). The British authorities in London clearly did not appreciate the true geographical
position of the Hawar islands. Weightman had in fact alerted them to the facts, though in a rather
throwaway manner. After stating, in far too unqualified a manner, that geographical propinquity
cannot be held by itself to raise any special presumption favourable to Qatar, he reveals:
"This I believe to be correct even though at low springs it is possible (as I am
informed though I have not verified this by experiment) to wade from the Qatar
108
mainland to a certain point on the main Hawar Island in about three feet of water" .
4.74 But this does not appear to have made any impact upon officials in London. We still find
Hemingway (India Office) boldly asserting on 12 May 1939 (after receipt of Weightman's
important letter of 22 April 1939) that "... the 109ands are separated by... five miles (more than
three) of shallow water from the mainland..." ; and neither Gibson nor Peel contradicts him on
this point. Hemingway's reference to "(more than three)" makes it apparent that he was fully
aware of the significance of a three-mile belt of territorial sea 110. The failure of the Political
Agent in Bahrain and of the relevant British authorities in London to attach any significance to
the fact that the majority of the Hawar islands, including the three largest islands, were located
wholly or partially within a three-mile belt of territorial sea measured from Qatar's mainland
coast is striking.
4.75 The second highly significant circumstance is linked to the first. Reference has been made
above to Weightman's important letter of 22 April 1939, analysing the respective claims of Qatar
and Bahrain to the Hawar islands. It is worth noting that Weightman nearly got it right, even if,
in the end, his bias in favour of Bahrain led him astray. The Court is invited to look again
carefully at paragraph 4 of the letter from Weightman to Fowle of 22 April 1939 11. The first
sentence of this paragraph, although it seems to be dismissive of the principle of contiguity (or
proximity), in fact leaves room for its application in certain cases:
"A claim for sovereignty based merely on geographical contiguity is, as I understand
it, of little practical value save possibly in respect of an unoccupied area of land or an
island lying contiguous to or in the territorial waters of the State raising the
112
claim" .Weightman then gets diverted into the difficult task of seeking to establish that there is sufficient
evidence to show that the Hawar islands have been occupied, whether temporarily or
permanently, for the past 150 odd years. Even if he had been right in stating that there was
sufficient evidence to this effect (which he was not), this would dispose of only the first of the
two exceptions (that relating to an occupied area of land) and not of the second, that is to say, the
case of an island lying contiguous to or in the territorial waters of the State concerned - in this
instance, Qatar. In order to escape from the need to analyse the applicability of the second of the
two exceptions in the case of the Hawar islands, Weightman then disavows the second of his two
exceptions and reverts to an absolutist position by stating baldly that geographical propinquity
cannot be held by itself to raise any special presumption favourable to Qatar. This precedes
immediately the revelation that it is possible at low tide to wade from the mainland to a point on
Hawar island in about three feet of water; so Weightman was well aware that Hawar island itself
lay at least partly within the then three-mile belt of territorial sea appertaining to the mainland of
Qatar and that a number of other islands in the Hawar group lay wholly within that three-mile
belt.
4.76 The third highly significant circumstance to which Qatar would wish to draw attention is
also linked to the first. It might be thought that the Foreign Office Legal Advisers would have
been asked for their views on the recommendation made by the Political Resident (Fowle) on the
basis of the analysis made by Weightman in his letter of 22 April 1939, given that the Second
Legal Adviser to the Foreign Office (Mr. W.E. - later Sir Eric - Beckett) had already advised on
the procedure to be followed in the written exchanges which preceded the decision. But this does
not appear to have happened; at any rate, there was no specific request within the Foreign Office
for legal advice on this aspect. The Foreign Office was not of course the lead department on
matters relating to the Gulf at this time; and in May/June 1939 there would have been many
other important issues requiring an input from the three Foreign Office lawyers whose services
could be called upon. It is just possible (although this is inevitably speculation) that, had one of
the Foreign Office Legal Advisers been asked to consider the merits of the conflicting claims to
the Hawar islands in May/June 1939 in the light of Weightman's letter of 22 April 1939, he
would have picked up the point that the great majority of the islands were located within a three-
mile belt of territorial sea measured from Qatar's mainland coast and would have concluded that
this was at the very least a highly material factor.
Section 3. The Extensive Map Evidence supporting Qatar's Sovereignty over the Hawar
Islands
A. Introduction
4.77 In this section, Qatar will discuss the impressive collection of map evidence from a wide
array of independent sources which supports Qatar's position that from the mid-1800s up to the
"provisional" British decision of 1936 the Hawar islands were consistently recognised as
appertaining to Qatar. This evidence not only reinforces the description of Lorimer and many
others that the islands were deemed to be part of Qatar, but also confirms Qatar's title to the
islands by virtue of their close proximity to the Qatar mainland discussed in the previous section.
4.78 A number of the relevant maps depicting the Hawar islands as an integral part of Qatar have
already been referred to in Chapter II, above. Given the fact that the islands constitute a virtual
extension of the Qatari mainland, it is not surprising that the extensive cartographical evidence
which depicts the territorial integrity of Qatar throughout the peninsula also shows the islands as
belonging to Qatar. Once again, it should be emphasised that these maps are derived from highly
reputable cartographic institutes and official government departments located in numerous
countries. Thus, Qatar has presented maps from sources in Great Britain, France, Germany, the
United States, Russia (including the former U.S.S.R.), Italy, Austria, Iran, Australia and Poland,
all of which portray the Hawar islands as part of Qatar.4.79 It should be pointed out that the maps appearing in the Map Atlas are but a sample of the
relevant cartography. Qatar has only reproduced a representative selection of maps so as not to
overburden the Map Atlas. Nonetheless, to supplement this collection, Qatar has deposited
separately with the Registry a number of additional maps pursuant to Article 50 of the Rules of
Court.
4.80 With respect to official maps produced by government departments, the maps in question
represent the considered views of government agencies as to the political and territorial situation
in the region. With respect to non-official maps produced by expert cartographers or appearing in
atlases issued by reputable publishers, they constitute important expert opinion evidence of
general repute of the kind that has been recognised as relevant by the Court and arbitral tribunals
in the past.
B. The legal relevance of the maps
4.81 Qatar does not rely on the map evidence as creative of its title to the Hawar islands. That
title results from the operation of law and from the historical facts analysed earlier in this Reply.
For their part, the maps represent confirmatory evidence of an historical nature evidencing the
fact that Qatar's title to the Hawar islands was never seriously questioned prior to the
"provisional" British decision of 1936.
4.82 In considering the probative value of cartographic evidence from non-official sources,
courts and tribunals have accorded considerable weight to maps which show a consistent pattern
over a long period of time. Sir Gerald Fitzmaurice addressed the issue in the following way in an
article he wrote for the British Year Book of International Law:
"Both sides in the Minquiers case adduced evidence tending to show what was the
view taken on the question of sovereignty by what might be called non-official but
professional opinion - geographers, scientists, publishers of standard atlases, well-
known authors, the evidence of maps, &c. Such considerations can never be
conclusive. But they may furnish important evidence of general opinion or repute as
to the existence of a certain state of fact, and pro tanto, therefore, may support the
conclusion that that state of fact does actually exist" 113.
4.83 The Chamber of the Court in the Burkina Faso/Mali case made a similar observation. With
respect to maps that are not annexed to the text of a boundary agreement, the Chamber stated:
"... maps are only extrinsic evidence of varying reliability or unreliability which may
be used, along with other evi114ce of a circumstantial kind, to establish or
reconstitute the real facts" .
The Chamber went on to note that technically reliable maps have the value of "corroborative
evidence en115sing a conclusion at which a court has arrived by other means unconnected with
the maps" .
4.84 There are three characteristics of the maps produced by Qatar which underline their legal
relevance in this case. First, all of the maps were prepared by independent sources or, in the case
of the official British maps, by a country which had special interests in the region. None of the
maps were prepared for litigation purposes, thus confirming their status as representing an
objective view of the situation. Second, the maps depict the political alignments of the area in a
virtually uniform style. Third, a number of the maps are from official sources, and thus have an
even greater evidentiary value. Although each map must be assessed on its own merits, the value
of a series of maps which consistently depicts the same territorial situation "cannot but be
considerable, either as indications of general or at least widespread repute116 belief, or else as
confirmatory of the conclusions reached... independently of the maps" .
4.85 The legal relevance of such maps has been reaffirmed as recently as last year by the
Tribunal in the Eritrea/Yemen case. As noted in the previous Section, the first stage of that caseinvolved a dispute over islands in the southern Red Sea which possess a number of
characteristics similar to the Hawar islands in this case. Both parties to the Eritrea/Yemen case
adduced maps to show the political affinity of the islands in question. While there was some
inconsistency in the map evidence, the Tribunal noted that it provided "important evidence of
general opinion or repute" 11, and that the general trend was that "Yemeni map evidence is
118
superior in scope and volume to that of Eritrea" . The Tribunal thus concluded that "looked at
in their totality the maps do suggest a certain widespread repute that these islands appertain to
Yemen" 119.
4.86 In the present case, with the exception of a very "primitive" map prepared from Ottoman
sources which is totally inconclusive on the territorial situation and which will be discussed
below, Bahrain has presented no map evidence which supports its contention. The voluminous
map evidence introduced by Qatar, on the other hand, confirms the view that the Hawar islands
formed part of Qatar, consistently depicting them in the same colour as the peninsula throughout
the relevant period. It follows that the map evidence is entitled to even greater probative value in
this case given the consistent picture it paints as to the status of the islands and the limited extent
of Bahrain.
C. 19 century maps
4.87 As noted in Chapter II, even before the 1868 Agreements between Great Britain and the
Rulers of Qatar and Bahrain, there is map evidence which indicates that the Hawar islands were
deemed to be part of the Qatar peninsula 120. Map No. 1 in the Map Atlas is an 1863 map
produced in Kiepert's Neuer Handatlas. This map clearly portrays Bahrain in red while the
Hawar islands are depicted in a different colour matching that of the Qatar mainland. As the map
suggests, the islands were seen as naturally appertaining to the mainland coast off which they
lay.
4.88 Starting in the 1870s, reputable cartographic sources from a variety of publishing houses
showed Qatar as a political entity distinct from Bahrain. In virtually every instance, the Hawar
islands can be seen by colour coding to form part of Qatar.
4.89 During this period, Germany in particular had well-developed cartographic expertise. A
large number of maps of the region were produced under the auspices of Justus Perthesth
Augustus Petermann and Dietrich Reimer during the last thirty years of the 19 century which
portrayed the territorial situation in a consistent manner.
4.90 The maps numbered 3, 4, 5, 6, 8 and 9 in the Map Atlas are samples of such maps produced
in the 1870s. On each one of these maps, the Hawar islands are very clearly depicted in the same
colour as the Qatar mainland while Bahrain is distinguished by different colouring. Qatar has
reproduced as Map No. 7, facing this page, one of these maps - a map prepared by Justus Perthes
121
in 1875 - which is representative of the kind of map produced at the time. As can be seen from
the enlargement of the map on the reverse side, the Hawar islands are separately labelled and are
shown to form part of Qatar. Zubarah also features prominently on the map as part of Qatar.
4.91 Subsequent maps prepared by Justus Perthes in 1884, 1894 and 1895 present a similar
picture 12, as do maps published by Dietrich Reimer in 1881, 1893 and 1895 123, and by Verlag
von Velhagen & Klasing in 1893 and 1896 124.
4.92 Significantly, British maps of the same period are consistent with their German
counterparts. In 1870 and again in 1876, for example, J.G. Bartholomew of Edinburgh published
125
maps of the Arabian Peninsula which showed the islands as appertaining to Qatar . By 1876,
Qatar was being labelled on the maps as a separate entity. The 1895 and 1900 editions of the
Times Atlas also contained maps evidencing the appurtenance of the Hawar islands to Qatar 126,
as did a map appearing in Lett's Popular Atlas in 1890 127.4.93 In addition, reference may also be made to an official Russian map prepared by the General
Staff in 1894 (Map No. 20 in the Map Atlas) which depicts Qatar as a distinct entity - coloured in
a greyish brown tint - encompassing the peninsula including the Hawar islands. In contrast,
Bahrain is depicted in a red colouring.
D. 20 century maps
4.94 The map evidence supporting Qatar's title to the Hawar islands is equally compelling during
the first forty years of the 20 century. It comes from an even wider variety of sources than the
maps from the previous century. Highly reputable cartographic establishments such as the Justus
Perthes Institute, George Philip and Son, J.G. Bartholomew and the Librairie Hachette continued
to treat the Hawar islands as part of Qatar. In addition, there is cartographic evidence from
official sources in Great Britain, Russia and Iran, as well as from publishing houses in the United
States, Austria, Italy, Australia and Poland, which confirms the fact that the islands were
perceived as being part and parcel of the political entity of Qatar.
4.95 It is not necessary to review each of the maps from this period which confirm the status of
the Hawar islands. The Court is respectfully referred to the Map Atlas, starting with Map No. 29,
where some fifty maps have been reproduced showing a consistent pattern with respect to the
islands after 1900. Qatar will limit its comments here to a discussion of a few of the key maps
which are illustrative of the collection as a whole.
4.96 Reference has already been made to the significance of the 1913 Anglo-Ottoman
Convention, the 1914 Anglo-Turkish Convention and the British128tar Treaty of 1916, in which
the separate status of the Qatar peninsula was reaffirmed . Suffice it to note that a whole series
of maps produced contemporaneously with these events confirm that the Hawar islands were
viewed as appertaining to Qatar.
4.97 Map No. 48 in the Map Atlas is a map produced in the 1914 edition of Philip's Imperial
Atlas of the World. The map is devoted to the Arabian Peninsula, and the Hawar islands (labelled
Warden Islands on the map) stand out as being part of Qatar. Similarly, maps from the 1914-
1915 period published in Leipzig, Vienna and Rome are fully in accord. They all portray the
129
islands in the same colour as the Qatar mainland .
4.98 During the negotiation of the Treaty of Peace with Turkey, British officials carefully
reviewed the territorial situation on the Arabian Peninsula including along the Red Sea coast and
in the Gulf. In 1920, the Foreign Of130e prepared a memorandum setting out Britain's position
with respect to its Arabian policy . Attached to this memorandum were the formal proposals of
the British delegation to the peace talks dealing with the settlement of the Arabian Peninsula.
The Peninsula was defined in the memorandum as comprising all territories, other than those of
the Kingdom of the Hedjaz and the British Protectorate over Aden, situated within a line the
131
course of which was defined in the memorandum . The line itself was depicted in red on a map
attached to the proposal.
4.99 The map in question was originally prepared by the British Admiralty in 1917. A copy of
this map has been reproduced as Map No. 8, facing page 122, with an enlargement of the
relevant area facing this page, and may be found as Map No. 58 in the Map Atlas. The relevant
provisions of the British proposal contained in Article 2 describing the course of the red line that
appears on the map were as follows:
"Article 2
For the purpose of this treaty the Arabian Peninsula includes (1) all territories
other than those of the Kingdom of the Hedjaz and the British Protectorate over
Aden and its surrounding territorial zone; and (2) the islands, whether previously
Turkish or not, which lie within the line which is defined hereafter.
This line extends from- (a) The boundary line between Arabia and Egypt at the head of the Gulf of Akaba,
approximate latitude 29° 27' north, longitude 34° 56' east (British Admiralty Chart
No. 8 A), to
(b) The western extremity of the reef extending westwards from the island of
Tiran; then to
(c) The south-west rocks off Great Hanish Islands, approximate latitude 13° 39'
north, longitude 42° 35' east (British Admiralty Chart No. 2523), thence through
the extreme south-west point of Sheikh Malo off Cape Bab-el-Mandeb, to
(d) The 100-fathom contour line in the Gulf of Aden in approximate latitude 12°
29' north, longitude 43° 36' east (British Admiralty Chart No. 2523); thence along
the 100-fathom contour line, as indicated on the British Admiralty Chart No.
1012, round the south-east coast of Arabia, to
(e) Latitude 22° 30' north, longitude 59° 55' east (British Admiralty Chart No.
1012), off Ras-el-Had; thence to
(f) Latitude 26° 31' north, longitude 56° 33' east, in the entrance to the Persian
Gulf (British Admiralty Chart No. 2873 A); then through the northernmost points
of the islands of Tanb, Nabiyu Tanb, Sirri and Halul, to
(g) The point where the eastern extremity of the southern border of Iraq meets the
Persian border as fixed by the Treaty of Erzeroum".
4.100 It can be seen from this language that the Arabian Peninsula was deemed by Great Britain
to include the islands which fell within the line so described. For present purposes, it is the
portion of the map showing the Gulf which is of particular interest. As can be seen from the
enlarged portion of this map, the Hawar islands were located inside this line and were thus
considered by the British as being part of the Arabian Peninsula. Bahrain, in contrast, was
explicitly excluded from this description by virtue of the fact that a red enclave was drawn
around the Bahrain islands, thus carving them out for separate treatment, and the word "Bahrain"
itself was underlined in red to emphasise the fact that it was being treated separately.
4.101 As discussed in Chapter III above, it is striking that the territorial limits of Bahrain as
recognized by the Foreign Office in 1917 excluded the Hawar islands which clearly fell to the
southeast of the enclave. The obvious conclusion was that Britain considered the islands to
appertain to the mainland coast of Qatar, and thus to the Arabian Peninsula as a whole, off which
they lay. Thus, there is compelling evidence from official British sources that as of 1917 the
islands were deemed to form part of Qatar - a position which was fully consistent with the other
cartographic evidence of the time discussed in this Section and with the description given by
Lorimer and many others.
4.102 There is a further important point bearing upon this map which deserves mention at this
stage. For this same map, together with the accompanying Foreign Office memorandum, was
introduced in the Eritrea/Yemen Arbitration to illustrate the British position with respect to
islands located in the southern Red Sea. It is apparent that the Tribunal in that case attached
importance to this map and the territorial situation evidenced by the red line. This can be seen
from paragraph 151 of the Eritrea-Yemen Award where the Tribunal made the following
observation:
"The initial position of Great Britain at the peace talks at Sèvres was that the islands
lying east of the South West Rocks off Greater Hanish island should be placed under
the sovereignty of the independent chiefs of the Arabian mainland" 132.
4.103 Significantly, the decision of the Tribunal on the question of sovereignty over the Red Sea
islands matched precisely the line adopted in the 1917 map and in the 1920 memorandum.Specifically, the islands lying east of the line depicted on the map were adjudged to belong to the
Arabian side of the Sea - i.e., to Yemen - while the small rocks lying to the west of the line were
confirmed as being Eritrean. As for the situation in the Gulf, the map made it clear that the
Foreign Office regarded the Hawar islands in the same way - i.e., as appertaining to the Qatar
mainland - while Bahrain was perceived as being an entirely separate entity.
4.104 In 1918, the Director General of the Political Affairs Department of133e Italian Ministry of
Colonies published an official map which reflected a similar position . Once again, the Hawar
islands can be seen to form part of Qatar while the islands of Bahrain, Muharraq and Umm an-
Na'san are portrayed as appertaining to Bahrain.
4.105 Throughout the 1920s, British, French and Italian maps continued to show the Hawar
islands as appertaining to Qatar. The Court will find a selection of these maps in the Map
Atlas 13. Included in this selection is the very important map produced by Major Holmes and
135
published in Rihani's book in 1928 showing the islands as part of Qatar's territory . This map is
virtually identical to the signed map of 1923 attached to the draft Bahrain concession of that
year 13. Holmes was intimately familiar with the area as a result of his work in the oil sector, and
his views therefore have considerable weight.
4.106 As noted in Chapter II, in 1924 the British War Office produced a map of the Gulf on
which Mr. G. Rendel of the Foreign Office subsequently made several annotations outlining the
limits of the various political entities along the Gulf littoral . The map with Rendel's
annotations was widely circulated in 1933 amongst official British circles and was attached to a
memorandum wh138 was sent to the Foreign Office, India Office and Colonial Office describing
the situation . The political extent of Qatar, including the fact that the Hawar islands were
treated as part of Qatar, can be readily seen on the map on which the islands are clearly labelled.
By the same token, Rendel circumscribed the limits of Bahrain by drawing a blue line around the
islands in much the same way as Bahrain had been enclaved in the 1917 British map referred to
above. The Hawar islands fell well to the east of that line and formed part of Qatar.
4.107 The fact that the map failed to attract any comment or objection from the India Office,
Foreign Office or Colonial Office in 1933 is evidence of the fact that the territorial limits of
Qatar and Bahrain were not considered to be in question by the British at that time. In short,
there was absolutely no suggestion at the official level that the Hawar islands were perceived as
being anything other than Qatari.
4.108 Two official maps produced in the Soviet Union in 1937 and 1939/40, respectively,
provide further evidence of the view of third States at the time that the Hawar islands appertained
to Qatar 13. The 1937 map, published by the Cartographic Department of the People's
Commissariat for Internal Affairs, shows Qatar, including the Hawar islands, in green while
Bahrain, which has a line drawn around it on the map, is depicted in a grey colour. The 1939/40
map also shows Qatar, including the Hawar islands, as a separate entity.
4.109 As for non-official maps of the period, they too continued to show the islands as part of
Qatar. Map No. 82 in the Map Atlas - a map published by George Philip and Son Ltd. in 1936 -
is a particularly clear example of the kind of expert cartography that was being produced at the
time and is similar to maps produced in 1931 and 1934 by George Philip 140. The map shows
Qatar as extending over the entire peninsula. The Hawar islands are depicted in the same distinct
orange colouring as the mainland of Qatar in contrast to the islands of Bahrain which are
coloured in pink. It will be noted in passing that Zubarah is also shown as being part of Qatar.
4.110 For a period of at least 70 years prior to the British decisions of 1936 and 1939, both
official and non-official maps portrayed a consistent treatment of the Hawar islands. The map
evidence is very extensive. It overwhelmingly confirms Qatar's position that the Hawar islands
were widely recognised as appertaining to Qatar and that the territorial extent of Bahrain as a
compact group of five islands was also recognised. In these circumstances, Bahrain's extravagantassertion that the Hawar islands "have always and in all ways been foreign territory in relation to
the State of Qatar" is completely unfounded 141.
E. The failure of Bahrain to produce map evidence supporting its claim
4.111 The Court will recall that, in its Memorial, Bahrain advanced the contention that the
evidence of its authority over the Hawar islands142ior to 1916 was "well documented" and that
after 1916 that evidence was "overwhelming" . One would have expected such bold assertions
to be supported by the contemporary map evidence. Remarkably, however, Bahrain has failed to
introduce any cartographic evidence from either official sources or from non-official
cartographic institutes supporting its contention.
4.112 The lack of independent cartographic evidence supporting Bahrain's claim during the
relevant period undermines the credibility of the case presented by Bahrain as a whole. With
respect to issues of territorial sovereignty, the existence of expert opinion evidence in the form of
maps and official cartography is an important element in confirming a claim to title. Where such
evidence is lacking, or where it directly contradicts the thesis being advanced, the conclusion
must be that the claimant party has failed to establish an important element of its claim.
Recognition is a key factor in demonstrating a claim to title, and independent map evidence,
particularly from official sources, constitutes an important element of such recognition.
4.113 Bahrain's failure to produce any relevant maps supporting its position is all the more
striking given the fact that Qatar, with its Memorial, presented a sample of such maps
demonstrating that the Hawar islands were recognised in the contemporary cartography as
belonging to Qatar 14. These materials go unanswered by Bahrain in its Counter-Memorial, thus
leaving the impression that Bahrain is uncomfortable with the map evidence. But the map
evidence, as explained above, is an important component of recognition which is in principle of
significant value in assessing territorial questions.
4.114 In point of fact, the collection of maps presented by Qatar with its Memorial and in this
Reply demonstrates not simply the appurtenance of the Hawar islands to Qatar, but also the
limited extent of Bahrain. In the light of the weight of the map evidence, it is perhaps not
surprising that Bahrain has chosen to ignore the maps altogether. At the end of the day, the
relevant cartography undermines Bahrain's contention both as to Bahrain's claim over the Hawar
islands and with respect to its claim to Zubarah.
4.115 The only "map" introduced by Bahrain from the seventy-year period between 1868 and
1939 is a very rough sketch map said to have been prepared by Captain Izzet of the Ottoman
army in 1878 144. That map, which even Bahrain is forced to concede is "primitive", lends no
support to Bahrain's claims. Moreover, Bahrain fails to disclose the fact that it only produced the
southern half of the map in question. Qatar is furnishing the Court with a copy of the entire map
which shows that Bahrain's contentions have no merit.
4.116 The "map" in question is in reality no more than a rough outline of the Vilayet of Basrah.
Bahrain purports to find significance in the fact that in the very rough hand colouring of the map
the Hawar islands appear to be coloured in blue in the same way as Bahrain. From a glance at the
map, the Court will be able to see that this colouring proves nothing supporting Bahrain's claim.
The Qatar peninsula is also outlined in blue, as is the entire coast stretching to the north and
other areas on the map. Other blue shaded areas appear on the map on the Arabian mainland to
the west of Bahrain, in the region of al-Hufuf and to the north in areas that now form part of Iran
and Iraq. Nowhere does Captain Izzet explain what the significance of this colouring is. Nor can
any conclusions be drawn from the existence of shading in a number of different areas on the
map. What is apparent is that Captain Izzet was doing no more than to outline the limits of the
Vilayet of Basra, as in fact the map itself expressly confirms - limits which included both Qatar
and Bahrain.4.117 The practice of Ottoman cartographers of portraying the limits of Ottoman territorial
possessions or vilayets in one colour, without distinguishing by colour coding different entities
within a particular vilayet, is confirmed by two further Ottoman maps that Qatar has reproduced
as Maps Nos. 35 and 36 in the Map Atlas. Both maps are taken from the Ottoman State Pocket
Atlas published in 1906/07. The first map - No. 35 in the Map Atlas - shows the limits of the
Ottoman vilayet of Basrah shaded in pink. It will be observed that this map depicts Qatar and
Bahrain in the same colour as part of the vilayet of Basrah in much the same way as the map
prepared by Captain Izzet. The second map - No. 36 in the Map Atlas - shows Ottoman territorial
possessions on the Arabian peninsula. It uses the same technique of colouring, once again
drawing no distinction between Qatar and Bahrain. It can therefore be seen that the map prepared
by Captain Izzet, on which Bahrain relies, in no way evidences that the Hawar islands were
considere145o form part of Bahrain or that Zubarah, for that matter, was deemed to be
Bahraini .
F. Conclusion as to the maps
4.118 In summary, Qatar has shown that there are literally scores of reliable, independent maps
from both official and non-official sources which confirm the fact that the territorial extent of
Qatar stretched over the entire Qatar peninsula and that the Hawar islands were deemed to be
part of that entity. In contrast, Bahrain was consistently portrayed as being confined to a limited
group of islands excluding the Hawar islands and, of course, Zubarah.
4.119 The map evidence is thus entirely consistent with the historical picture that Qatar has
drawn attention to regarding the respective territorial extent of the two Parties during the relevant
period. It also demonstrates that the doctrine of proximity, discussed in the previous Section of
this Chapter, was seen to apply to the Hawar islands as a natural part or extension of Qatar's
territory.
Section 4. The Lack of Evidence for Bahrain's Claim to have exercised Sovereignty over
the Hawar Islands from the 18 Century to the Present Day
A. The so-called "evidence of Arab historians" from antiquity
4.120 Bahrain contends in its Memorial that its title to the Hawar islands is based upon
"Bahrain's original dominance and authority over all the territories in the Gulf of Bahrain and the
Qatar peninsula..." 146. Bahrain reiterates this contention in its Counter-Memorial and goes on to
state:
"The historical genesis of Bahrain's title to the Hawar Islands lies in the original
dominions of Greater Bahrain (the territories in the Gulf of Bahrain and its littoral,
including the Qatar peninsula; see Section 2.2.A). The Hawar Islands' connection
with Bahrain was recogni147 in antiquity and pre-dates the presence of the Al-Khalifa
dynasty in the region" .
4.121 Qatar has already pointed out above that Bahrain has tendered no evidence of a "major
148
geographical and socio-economic unit known to historians as Greater Bahrain" .
4.122 However, Bahrain cites three documents in an attempt to show that Arab historians from
antiquity have included the Hawar islands within the territories of Bahrain.
4.123 The first document of 1082 A.D. 149and the second document of 1166 A.D. 150refer in
somewhat cryptic terms to "Hawar", name individuals who "resided in" or "occupied" it and
mention that this "town" of Hawar "belonged to Bahrain...". These documents do not identify the
location of this "Hawar", nor do they describe the "Bahrain" to which this "town" might have
belonged. Furthermore, translations obtained by Qatar from its own experts show gross errors in
Bahrain's translations of the Arabic documents 151. The Court will see that it is impossible to
conclude that this "town" of "Hawar" is the same as the waterless Hawar islands in dispute in the
present proceedings, particularly as there is no evidence whatsoever even to suggest that theHawar islands were inhabited at that time. Such evidence as is available even in respect of the
much more recent period from 1524 to 1932 suggests that the islands were only seasonally
"frequented by fishermen" .
153
4.124 The third document has no date and does not mention Hawar at all . It is therefore
wholly irrelevant to Bahrain's claim of title to Hawar.
th th
4.125 The important fact is that the first two documents are from the 11 and 12 centuries, i.e.
well before 1258 A.D., at least up to which date the peninsula of Qatar is shown by Bahraini
writings to have been included in the territory described as "Bahrein" 154. Accordingly, even if the
"Hawar" mentioned in the first two documents were the Hawar island of the present dispute, it
would be logical to conclude that it appertained to what was referred to at that time as
"peninsular Bahrain" (now called Qatar), rather than to the island of Bahrain, which at that time
was actually called "Awal".
4.126 Clearly therefore this so-called connection of Hawar with "Bahrain" is of no avail to
Bahrain but can in fact be construed as demonstrating Hawar's association in antiquity with the
peninsula of Qatar.
B. The evidence of Bahrain's so-called "historical dominance" over Qatar
4.127 Bahrain makes the remarkable assertion in its Counter-Memorial that "the territory of
Bahrain consisted of the islands of Bahrain and the entire Qatar peninsula" and that "nothing
during the 19 Century dislodged Bahrain's authority from the Doha region of the peninsula until
the Ottoman invasion of Arabia in 1871", the inference being that Bahrain retained authority
155
over all other parts of the peninsula and its adjoining islands even after that date .
4.128 Qatar has already shown that after the British Agreements with the Chiefs of Qatar and
Bahrain in 1868, entered into in the context of maintaining the maritime peace, the two
156
principalities came to be regarded as separate entities . Their separate status was 157ffirmed
upon the Ottoman arrival in Qatar in 1871 and on numerous occasions thereafter . In fact, for
the next 65 years (until 1936), there is no evidence of any claim by Bahrain of any interest or
exercise of authority in mainland Qatar (or its adjoining islands) except a so-called "claim" in
relation to Zubarah which itself was never accepted. This is confirmed, if need be, by the British
Handbook of Arabia of 1916, which states as follows:
"Prior to 1868, the Sheikh of Bahrein claimed suzerainty over El-Qatar, and was
represented at Dohah by a member of his family. But in that year, as a result of
negotiations conducted by the British Government, the interest of this Sheikh was
limited to the receipt of tribute, and this ceased on the occupation of Dohah by the
158
Turks in 1872" .
4.129 Similarly, Dr. Al-Baharna of Bahrain, writing as an objective scholar in 1968, has noted
that the 1868 British Agreement with Qatar marked a deviation from the former British position
whereby Qatar was regarded as a dependency of Bahrain. It acknowledged, for the first time in
the history of the peninsula, the independence of Qatar and the title of Sheikh Mohamed bin
Thani as its Ruler owing no allegiance to Bahrain 159. Dr. Al-Baharna has also recorded that "the
extension of Turkish influence to Arabia in or about 1871, brought Qatar under Turkish
suzerainty, but she continued to be governed, directly, by indigenous rulers of the dynasty of the
Al Thani" 160.
1. Qatar's independence and payment of "tribute"
4.130 Bahrain goes on to claim however that in 1868, the submission of the Sheikhs of Qatar to
Bahrain wa161ormalised by their promise to pay the annual tax and to obey Al-Khalifah
authority .4.131 Qatar has already dealt with this contention in some detail in its Counter-Memorial, where
it has been shown that the agreement by the tribes of Qatar to pay a sum of money totalling 9,000
krans per annum to the Chief of Bahrain was expressly stated by the British not to affect the
independence of Qatar in relation to Bahrain, and indeed that the money was paid on by the
Chief of Bahrain to the Wahhabi Amir 162. This is now also confirmed by an Annex submitted by
Bahrain with its Counter-Memorial, which shows that the Ruler of Bahrain received not one
penny of the money to be paid by the Qatar tribes, since 4,000 krans were to be paid to the Naim
tribe in exchange for their protection of the peninsula, and the balance of 5,000 krans was
expressly stated to be "on account of the zekat payable to Bin Seoud" 16. Further confirmation of
this position, if any were needed, is also available from a communication addressed by the
Political Resident, Lt. Col. Pelly, to the Chief of Bahrain on 13 August 1870, reminding the
latter:
"As regards the krans 5,000 received from Guttur, you are aware that, under the
th th
agreement made on 27 Zilhaj, 1285/10 April 1869, this annual sum was to be
transferred by the Chief of Bahrein to the Wahabee Ameer, and I would beg you to
carry this stipulation into effect" 16.
In a further letter of the same date, Pelly also informed the Wahhabi Amir that:
"Five thousand krans were received from Guttur in conformity with the previous
agreement on account of the Bahrein Chief, and were by him to be transferred to your
Highness. I have requested the Bahrein Chief, in the event of this transference not
having been already made, to carry it into effect" . 165
4.132 The Court will also recall that when the question of payment of the "tribute" to the Chief
of Bahrain again arose only three years after the 1868 Agreements, in a report of 28 October
1871, C.M. Aitchison stated:
"... it is shown that the arrangement as to the tribute payable by Guttur to Bahrain is
to be considered not to affect the independence of Guttur in relation to Bahrain but is
to be considered a fixed contribution by Guttur and Bahrain combined in view to
securing their frontiers from molestation by the166im and Wahabee Tribes more
particularly during the Pearl diving season" .
4.133 It is therefore Qatar's submission that upon the recognition of Qatar and Bahrain as
separate entities in 1868 and later on as separate States, Bahrain's so-called "historical
dominance" as a basis for any claim to the territory of Qatar including the Hawar islands is not
supported on the facts or in law.
2. Bahrain's distortion of the events of 1867/68 and of the significance of the 1861
agreement in this respect
4.134 In yet another attempt to play down the historical significance of the 1868 Agreements,
Bahrain gives a particularly imaginative account of the events of 1867/68. Its interpretation of
the 1861 Friendly Convention and of the actions taken by the British in accordance with the
Convention in 1867/68 is so distorted that Qatar cannot let it pass without comment. Bahrain's
version of these events is that it was "by virtue of the 1861 Anglo-Bahrain Treaty that Britain
intervened in the 1867-1868 rebellion of the Doha confederation" 167. This is quite clearly a
fallacious interpretation. Qatar has already shown that firstly, the 1861 Convention followed
breaches of the maritime peace originating in Bahrain and that under Article 2, the Ruler of
168
Bahrain undertook "to abstain from all maritime aggressions..." 169 ; that secondly, it was Bahrain
(together with the Ruler of Abu Dhabi) that attacked Qatar ; and that thirdly, it was Bahrain
that was punished by the British for a breach of Article 2 of the 1861 Convention when Sheikh
Mohamed was displaced and Captain Pelly not only obtained the Agreement of 1868 from the
new Chief, Sheikh Ali, providing for payment of compensation amounting to 100,000 dollars,but also "destroyed both fort and cannon and burnt [his] three war crafts, lying immediately
170
under the walls of the fort" in Bahrain .
4.135 In contrast, Mohamed bin Thani, described as the "Chief of El-Kutr", was required to pay
no such penalties, but simply to refrain from breaching the maritime peace. In other words, it
was quite clear that in the eyes 171the British it was the Bahrain sheikhs who had violated the
terms of the 1861 Convention .
4.136 As Qatar has already shown, the 1868 Agreements following these developments were
clearly intended to restrain Bahrain from committing any further breach of the maritime peace
across the sea upon mainland Qatar and obviously also its adjoining Hawar islands, with Qatar
undertaking a corresponding obligation in respect of the Bahrain islands.
4.137 A few words need also to be said about the examples that Bahrain has picked out from the
description in Qatar's Memorial of the 1867/68 events, which allegedly demonstrate the exercise
of Bahrain's authority in the peninsula at that time 172.
4.138 First, Bahrain cites Qatar's Memorial for evidence of "Bahrain arresting individuals in the
Qatar peninsula", the inference being that Bahrain exercised routine and unchallenged police
activities in Qatar. The paragraphs referred to do not however support any such inference.
Rather, Qatar has shown that when a Qatari tribesman was seized and deported (rather than
arrested), the headmen of Al-Bida and Wakrah took measures to expel the Sheikh of Bahrain's
representative from Wakrah, and obtained the release of the tribesman from Bahrain 173. This then
led to Bahrain's treacherous imprisonment of Sheikh Jassim bin Thani when he was invited to
Bahrain to resolve the dispute, and in turn to hostile encounters betwee174he Sheikhs of Bahrain
and Abu Dhabi and the people of Qatar, including the Naim tribe . This is hardly evidence of
the exercise of authority by Bahrain in Qatar.
4.139 Second, Bahrain claims that Qatar's Memorial provides evidence of "Bahraini subjects in
the Qatar peninsula apologising to the Ruler of Bahrain for their behaviour" and of "the son of
the leader of the Doha merchants supplicating the Ruler of Bahrain in relation to taxes" 175. While
it is true that, according to the evidence relied upon by Qatar, "the headmen of Qatar
176
apologis[ed] to the Shaikh [of Bahrain] for their behaviour" , there is no intimation that this
was because they recognised that they were "Bahraini subjects"; rather, it is clear that they did so
in an attempt to restore the peace, not realising that "on the part of the ruler of Bahrain the
proceedings were merely a blind to cover preparations for revenge" 17. As for the second
statement, it is quite frankly puzzling, since nowhere in Qatar's Memorial or in the supporting
evidence is it stated that Sheikh Jassim bin Thani was "supplicating the Ruler of Bahrain in
relation to taxes".
4.140 Bahrain cites as a third instance of the exercise of its authority over Qatar, as allegedly 178
recognised in Qatar's Memorial, Bahrain's "imposing taxes throughout the Qatar peninsula" .
However, reference to the cited passage in Qatar's Memorial shows, quite to the contrary, that
Sheikh Ahmed of Bahrain had the "apparent intention to impose a tax upon the inhabitants of
Qatar, which had led to a general movement of hostility throughout the population" and which
indeed provoked a battle between Sheikh Ahmed and the Naim tribe of Qatar in which Sheikh
Ahmed was killed 179. Again, this is hardly evidence of the peaceful exercise of authority.
4.141 Fourth, Bahrain contends that a further instance of the exercise of its authority in Qatar is
to be found in its "defeating and punishing the Doha rebels" 180. This is in fact a reference to the
attack in 1867-68 by the Sheikhs of Bahrain and Abu Dhabi on Doha and Wakrah, described by
Lorimer as a "treacherous outrage" 18, and a breach of the 1861 Convention for which, as shown
182
above, they were punished by the British .
C. The evidence of the Belgrave diaries and Bahrain Government Reports4.142 It is Qatar's contention that Bahrain did not exercise any authority or otherwise deal with
events or situations on the Hawar islands before its illegal occupation of the main island in 1937.
Qatar wishes to draw the Court's attention to fresh evidence now available to it in support of this
contention.
4.143 Qatar has now examined some of the extremely detailed day-to-day diaries kept by
Charles Belgrave 183who assumed the post of Financial Adviser to the Ruler of Bahrain in 1926
and who, by 1928, had become the Ruler's Adviser and was described as having become "so far 184
as internal administration was concerned... to all intents and purposes the ruler of the State" .
Belgrave's accounts in his diaries are indicative of the extensive areas in which he rendered
services or gave advice to the Ruler of Bahrain and other Bahrain Sheikhs regarding
administrative affairs in relation to the Bahrain islands. These accounts also indicate that from
time to time Belgrave undertook numerous trips to various parts of the islands either in
connection with his work or for recreation. An examination of the Belgrave diaries shows that at
no time during the ten years of his presence in Bahrain prior to 1936 is there any mention of
Belgrave having anything to do with any activities on or affairs of the Hawar islands that might
indicate that the Hawar islands were regarded as part of "Bahrain"; nor is there any indication
that he ever visited the islands prior to 1937. His only references to any part of the territories of
Qatar are to Zubarah, in respect of which he makes entries, generally with clear disapproval,
regarding the Ruler of Bahrain'185o-called claim to Zubarah which is the subject-matter of fuller
discussion later in this Reply . As Qatar has already shown in its Memorial and Counter-
Memorial and further explained in this Reply, the first occasion on which there was even a
suggestion of a possible claim to the Hawar islands by the Ruler of Bahrain came up in 1933,
when consideration was being given to the question of an oil concession over Bahrain's
unallotted area. In considering the extent of what constituted the territories of "Bahrain", the
British authorities firmly concluded that the Hawar islands were clearly not part of "Bahrain".
Although Bahrain now claims that the British authorities were aware of Bahrain's claim to the
Hawar islands in 1933, there is no reference in Belgrave's diaries of 1933 to any such claim. The
Hawar islands are mentioned for the very first time in Belgrave's diaries on 23 April 1936, i.e. a
few days before Bahrain decided to send a formal written claim for the first time in respect of the
Hawar islands by Belgrave's letter of 28 April 1936. This first entry and a significant entry on the
next day are in the following terms:
"23 April 1936: Didn't go to Biladya meeting but went round to see Sh. Abdulla there
after the meeting. Discussed oil and the new agreement and especially the question of
our right to the Hawar Group of islands which the Shaikhs fear the Agency will not
allow. I think myself it is quite incontestable".
"24 April 1936: ... then went to the Shaikh's where I talked oil with the Shaikh,
Abdulla and Sulman for two solid hours. However we came to some decisions".
Then followed the formal Bahrain claim to the Hawar islands in Belgrave's letter to the Political
Agent on 28 April 1936. It is intriguing, to say the least, as to why the Sheikhs had serious
doubts as to whether the British would allow this claim whereas Belgrave found it "quite
incontestable", notwithstanding his own description of the islands that comprised Bahrain in
1928 186.
4.144 It was only after the reversal of the British opinion of 1933 by the "provisional" decision
of July 1936 to the effect that the Hawar islands belonged to Bahrain that Belgrave wrote about a
number of visits to Hawar and of various Bahraini activities on the Hawar islands. As Qatar has
already shown in its Counter-Memorial, all such activities stemmed from or were associated with
Bahrain's illegal occupation of the Hawar islands 187.
4.145 Qatar has now also had a further opportunity of examining the official Government of
Bahrain Annual Reports and Budgets for a number of years which have been published from1343 H. (1924-25) as well as a comprehensive Administrative Report covering the eleven years
from 1926 to 1937, which was prepared by Belgrave in 1937 and published in that year. As in
the case of his personal diaries, this latter Report, going back to 1926 (and in some subjects
going further back than 1926), makes no mention of Hawar whatsoever either in relation to
security, public works, agriculture or any other activities, in contrast with the islands forming
Bahrain.
4.146 Similarly, there is no mention of Hawar in any of188e Annual Reports or Budgets until the
Report for 1349 H. (March 1937 to February 1938) . These facts must necessarily support
Qatar's assertion that there was no Bahraini official presence or activity on the Hawar islands
before 1936 or 1937. The Reports for subsequent years, which do record Bahraini activities on
Hawar, support the conclusion that Bahrain only occupied the Hawar islands (clandestinely) in
1936-37. Thus the Report for 1937-1938 refers, under the heading "Special Projects", to
additional new works undertaken during the year, in which it includes "the Hawar Fort" (p. 8); it
also refers to the increase in the police force partly to replace the naturs in Hawar fort (p. 10); as
already shown, it further notes "the fort and pier at Hawar were completed at the end of the
year...." (p. 11) and that "Expenditure on the Hawar Fort was not allocated in the 1356 [1937-38]
189
Budget" ; and it refers in a list of "Estimates" of expenditure for 1357 H. to "New Works -
Major", in which it includes provision for "Completion of Hawar Police Station" (p. 46). Finally,
and significantly, the Report records:
"The need for a Government motor launch has become more urgent since the
increased development in the Hawar Islands. During the year considerable expense
was incurred in hiring launches for police patrols. A serviceable launch fitted with a
powerful 60 h.p. Kelvin engine is being built for the Government in the Bahrain
boatyards". (p. 49).
4.147 The Annual Report for the next year (1938-39) makes a further reference to the budget and
expenditure for "Completion of Hawar Fort", including "the cost of erecting about twenty stone
beacons on various islands in the Bahrain waters" (p. 10); it also refers to "Drilling an artesian
well at Hawar, which reached over 400 feet without producing water" (p. 11); to the fact that "A
police launch equipped with a 75 h.p. 'Kelvin' Recardo Engine was built during the year... [and]
is used for coastal patrol work and for plying between Bahrain and Hawar"; and it states that "A
barbed wire fence was built around the Fort at Hawar and several of the water cisterns were
repaired" (p. 17) 190. Another important event recorded is that "the main Island of the Hawar
191
Group was surveyed and a map of the island has been made" (p. 18) . This makes a highly
revealing contrast with the fact that the above-mentioned Administrative Report of 1937 (for
1926-1937) refers to the fact that the survey of villages and cultivated areas in Bahrain was
commenced some twelve years earlier and completed in around 1930 (p. 26) 192.
4.148 Subsequent Annual Reports similarly record activities in Hawar, such as expenditure on
"Mosque at Hawar and Water Tanks" 193and note that there is no water supply in Hawar and the
old cisterns needed to be repaired 19.
4.149 Qatar therefore submits that the conspicuous absence of references to any Bahraini
exercise of authority in the Hawar islands, either in the Belgrave diaries, the official
Administrative Report of 1937 or the Bahrain Government official Annual Reports until 1937-
1938, is telling proof of lack of any Bahraini activity or exercise of authority in Hawar not only
before 1936 but even in 1937; and that the sudden appearance as well as the nature of items
related to the Hawar islands after 1937-38 in Belgrave's diaries and Bahrain's official Reports is
convincing proof of Bahrain's illegal occupation of Hawar in 1937.
D. Bahrain's allegations regarding activities on the Hawar islands
4.150 Bahrain's claim to sovereignty over the Hawar islands by virtue of the British decision of
11 July 1939 has already been shown to be flawed on various grounds set out in Qatar'sMemorial, its Counter-Memorial and elsewhere in this Reply. Qatar has also shown that there is
no basis for Bahraini claim of title to the Hawar islands arising, after 1868, out of any "original"
or "historical" dominance of extensive areas in the Gulf region. Bahrain's alternative contention
that its title to the Hawar islands is also supported on other grounds will now be examined.
1. The alleged Dowasir occupation
4.151 The main basis of Bahrain's claim to the Hawar islands continues to be its contention that
the Dowasir tribe, whom it chooses to designate as "Bahrain subjects", settled in Hawar at the
beginning of the 19 century. Qatar has shown that apart from this contention, all other evidence
with which Bahrain seeks to support its claim to Hawar consists in effect of actions or activities
by Bahrain after its illegal occupation of the Hawar islands subsequent to the British "provisional
decision" of 1936 reached in the context of negotiations for a concession after the discovery of
oil195. It cannot therefore be invoked in support of Bahrain's claim to the Hawar islands.
4.152 Qatar will now show that there istho proof of the alleged Dowasir occupation of the Hawar
islands since the beginning of the 19 century as Bahrain "subjects" or otherwise. Qatar will
further show that at least until the discovery of oil in the Gulf region in the 1930s, the Hawar
islands, being without any water supply and relatively barren, were in effect uninhabited territory
frequented only by fishermen from various places in the Gulf during the winter season; that
Bahrain has not established that the Dowasir were the only fishermen who frequented the Hawar
islands or that they were its subjects; and that even assuming they were, their seasonal visits to
the Hawar islands and their private activities cannot and do not sustain a claim of Bahraini
sovereignty over the Hawar islands.
2. The allegation concerning the Qadi's permission for the Dowasir to occupy the Hawar
islands
4.153 Bahrain states in its Memorial and Counter-Memorial that in about 1800, members of the
Dowasir tribe sought and obtained permission from the Qadi of Zubarah, "an official of the Al-
Khalifa family" to settle on the Hawar islands 19. Bahrain has in addition claimed that its
sovereignty over the Hawar islands was supported by "the continuous peaceful presence of a
197
population subject to Bahrain" .
4.154 Bahrain cites no evidence to establish that any Qadi of Zubarah granted the permission as
alleged or otherwise. The only evidence upon which it appears to base this contention is the
official report of 4 April 1909 of Major Prideaux in respect of his visit to Hawar. That report
merely recounted a conversation with a Dowasir individual, who happened to be in Hawar at the
time, in the course of which, Prideaux states:
"this individual... told me that he had at first thought that the Launch was a Turkish
gunboat, a visit from which they quite expected to receive. He also told me that
Zakhnuniya was undoubtedly a possession of the Chief of Bahrain, but that the
Dowasir regarded Hawar as their own independent territory, the ownership of this
island having been awarded to the tribe by the Kazi of Zubara more than 100 years
ago, in a written decision which they still preserve.
The contesting tribe named Al bu Tobais now is apparently extinct, but as the Kazi of
Zubara was in those days an official of the Al Khalifah, the island would seem to be a
dependency of the mainl198 State, which the Chief of Bahrain still claims as morally
and theoretically his" .
4.155 The Court will no doubt see that this hearsay evidence can hardly form the basis of a title
to territory. Furthermore, the so-called "written decision" has never been shown to have been
preserved by anyone or produced at any time at all. However, Weightman, when making his
recommendations in his letter of 22 April 1939 to the Political Resident, simply accepted this as
evidence, although he noted: "The Political Agent mentioned a written decision, which however now seems to
199
have disappeared" .
And certainly no such "written decision" was provided to Major Prideaux.
4.156 Qatar would draw particular attention to the fact that even in Major Prideaux's view as
expressed in the passage reproduced above, he considered "the island would seem to be a
dependency of the mainland State". In this context, the mainland State could only be Qatar,
which, according to Prideaux, "the Chief of Bahrain still claims as morally and theoretically
his". Prideaux was clearly conscious of the fact that after 1868 the British no longer regarded the
Ruler of Bahrain as having any rights on the mainland (as declared by the Governor-General in
Council in 1874) 200and was therefore careful (and correct) not to use any language indicating the
Ruler of Bahrain as having any legal interest on the Qatar peninsula or the adjoining islands. It
must necessarily follow that the Hawar island referred to above as "a dependency of the
mainland State", i.e., Qatar, must also therefore be regarded as having ceased to have any
connection with the Chief of Bahrain. In no way could Bahrain at this time, i.e., in 1909, have
been plausibly referred to as "the mainland State".
4.157 As regards Bahrain's contention that a Qadi sitting in Zubarah could have granted
permission to the Dowasir to reside in the Hawar islands so as to provide a basis of title to
territory, Qatar must point out that there is no evidence whatsoever of any such official
functioning in Zubarah in 1800. The Court will recollect that the Al-Khalifah had alre201
departed from Zubarah and moved their headquarters to Bahrain soon after 1783 . Furthermore,
Qatar has also shown that there is hardly any evidence of the involvement of the Al-Khalifah
chiefs in the territories of Qatar after 1783 except for occasions when some members of the Al-
Khalifah family took refuge in the vicinity of Zubarah following internecine conflicts. Bahrain
itself has provided a list of the occasions when various members of the Al-Khalifah family took
refuge on the Qatar coast or planned attacks on Bahrain to be able to return there 202. None of this
is evidence of exercise of Bahrain's authority over any part of the coast of the Qatar peninsula.
4.158 Qatar has also shown that in the first two decades of the 19 century, the coast of Qatar
was intermittently under Wahhabi control or the control of Rahmah bin Jabr (a sworn enemy of
the Al-Khalifah) in association with others, including at times the Wahhabis or the Ruler of
203
Muscat . Bahrain itself was subject to Muscat during 1800-01, to the Wahhabi Amir from
1803-1811; again to Muscat from 1811 to 1816; once again to the Wahhabi Amir in 1816; to the
Persians in 1816-17; and paid tribute again to Muscat in 1820 . Qatar has reproduced Lorimer's
observations for the period 1826-1838 to show that the Al-Khalifah hardly effectively ruled the
205
Bahrain islands at the time . It is Qatar's submission that in these circumstances, it is
inconceivable that there was any functioning Al-Khalifah central authority on the Qatar coast at
Zubarah, or even in Bahrain, from where any Qadi could have granted any valid permission to
the Dowasir of any formal nature which could form the basis of title to territory, i.e., to the
Hawar islands.
4.159 There is thus nothing to show that in the year 1800 the Chief of Bahrain was in a position
to make or was engaged in making grants of land anywhere on the Qatar peninsula or its coasts,
and there is no credible basis whatsoever for Bahrain's contention - a mere allegation - that the
Dowasir occupied Hawar from 1800 onwards under a grant of some kind from any Bahraini
authority. Furthermore, a Qadi is not known to have the power to make grants of land. That is a
power which can only be exercised by a Ruler. On the other hand, the duties of a Qadi consist
only of deciding disputes when tw206uslims approach him for the purpose. He is generally
required to sit, for this purpose , in a mosque so as to be easily available to Muslims from
anywhere .207
3. The Dowasir as Bahraini "subjects"4.160 As regards Bahrain's claim that the Dowasir were its "subjects", Qatar has already shown
that the Dowasir were a large and autonomous tribe who frequented a number of places in the
Gulf region; and that they were a particularly independent community who did not accept that
the Rulers of Bahrain had any political authority over them. In the Western Sahara case, the
Court considered that tribal allegiances, to support any claim for sovereignty, must be real and
evidenced by acts manifesting acceptance of political authority 208. No such evidence is offered
by Bahrain for the period before 1936 in regard to the Dowasir who seasonally frequented the
Hawar islands 209.
4.161 Qatar has further shown that when, in the 1920s, the Ruler of Bahrain, at the instigation of
the British, sought to introduce certain reforms to apply to the pearl-fishing Dowasir of Bahrain,
they regarded this as an encroachment on their independent status and, as confirmed by Bahrain,
simply left Bahrain in 1923 for the Dammam promontory in Saudi Arabia. During the period of
their stay in Dammam for a number of years, their seasonal fishing visits to the Hawar islands
would have stopped, if only because of the distance involved 210.
4.162 In its anxiety to show that the Dowasir occupied the Hawar islands during the period
before and after their emigration from Bahrain, Bahrain states:
"During the time that the Bahraini Dowasir absented themselves from Bahrain, they
left their villages of Budaiya and Zellaq on the main island of Bahrain and the Hawar
Islands, thereby demonstrating that they acknowledged the Hawar Islands were also
under the authority of the Ruler of Bahrain" 21.
Bahrain further states:
"Indeed, the fact that the Dowasir protest consisted of leaving the Hawar Islands is a
compelling indication that they considered that they were removing themselves from
the territory of Bahrain; they asked and were ultimately permitted to return to
Bahrain" 212.
Bahrain provides no evidence whatsoever for either of these statements. In any event, there is
nothing here indicating that the Dowasir, either as Bahraini subjects or otherwise, permanently
occupied the Hawar islands.
4.163 In 1927, Ibn Saud began to canvass for their return to Bahrain and the Dowasir sought
permission to do so. They were clearly not welcome by many, including Belgrave, as is indicated
by the following entries in Belgrave's diaries:
th
"Wednesday 5 January 1927
... The market closed again in the morning owing to a scare among the Jews, someone
called out 'the Dawasir are coming' & all at once closed their shops. Barrett & Parke
persuaded them to open shops again. The Dawasir are the Arabs who were exiled to
the coast.
th
Saturday 26 March 1927
... I personally consider the return of the Dawasir is a great mistake, they oppressed
their divers & the Bahrainis & were arrogant & truculent, but they are more like
Arabs than these people. Motored out to the Shaikh's in the afternoon in his new
Studebaker, a large comfortable car. He wanted to show me a letter from Bin Saoud,
Sultan of Nejd, approving of the return of the Dawasir to Bahrain, & also to discuss
the question of their rights. He looks at it all in quite the wrong way considering that
the Dawasir are the oppressed prodigal sons, naturally they are all getting at him to
grant them favours.
Friday 15 April 1927 Looked up the Dawasir secret files, all very interesting, telegrams from Viceroy,
Thomas (then Colonial Sec.) & the complete history of their intrigues with bin Saoud
who egged them on to get up against the Government. Found that they had been
clearly told that if they left the place their estates would be confiscated.
30 October 1927
.... Motored out to Budeya. Waited there some time talking to the Dawasir Shaikhs.
They are all squabbling with each other as one party wish to come back and the others
are trying to prevent them.
13 March 1928:
.... Yesterday night Abdulla bin Jabr came in & had a long talk about the Dawasir
business, said that what the Shaikh really wanted was that PR [Political Resident]
should give him a letter saying that he was not to pay back the rents so that he could
tell Bin Saoud that he wanted to but could not do so. The PR talked about it a few
days ago and was entirely against giving them back.
11 April 1928:
Left off early as I wanted to settle the Dawasir business which I got finished. They
are an intolerable nuisance..."
These entries (and other similar entries could be cited) sufficiently reveal Belgrave's dislike of
the Dowasir.
4.164 Notwithstanding Belgrave's diary entry for 11 April 1928, the Dowasir were still drifting
back to Bahrain as late as 1933, as will be seen from the following extract from the Bahrain
Government's Annual Report for 1351 H. (1932-33):
"The town of Budeya is gradually being re-inhabited by members of the Dawasir tribe
who returned one by one from Dhammam. Ahmed bin Abdullah, the son of the late
Shaikh of213e Dawasirs makes every effort to prevent his followers from returning to
Bahrain" .
Furthermore Qatar has already drawn attention to King Ibn Saud's letter of 6 April 1928 214where
he makes representations to the British authorities and the Ruler of Bahrain on behalf of "our
Duwasir subjects who are residing in Damman [who] have represented to us concerning their
certain rights in Bahrain". Taken together with all the other circumstances described above, this
hardly indicates that the Dowasir were Bahrain's "subjects" in the 1920s and the period before
1936.
4. Permanent or seasonal habitation of the Hawar islands
4.165 In Bahrain's first formal written claim made by Belgrave on 28 April 1936 it was stated:
"At least four of the larger islands are permanently occupied by His Excellency's
subjects who live there in stone houses as well as barastis and who are the owners of
valuable fishtraps round the coasts of the islands which they acquired by purchase or
gift under the seal of the late Shaikh of Bahrain, Shaikh Sir Isa bin Ali al-Khalifah,
215
and also His Excellency Shaikh Hamad" .
This was the first and last occasion when Bahrain claimed that "four" islands were "permanently
occupied". Bahrain clearly investigated the factual position only subsequently; thereafter,
without formally withdrawing the initial claim, Bahrain presented evidence only with respect to
the main island. As to habitation, Belgrave reiterated in his letter of 22 December 1938/3 January
1939 to the Political Agent that: "... The inhabitants of Hawar reside there permanently keeping their goods and
chattels in their houses and their boats, when not in use, on the shore of the
216
islands" .
As noted below, Bahrain now concedes that the islands were only seasonally visited by the
Dowasir 217.
4.166 Despite the absence of any credible evidence to support Bahrain's earlier claim of
permanent occupation of Hawar, Weightman seems in effect to have accepted Bahrain's claim of
long and permanent Dowasir occupation, stating in his assessment of the relative claims of Qatar
and Bahrain in his letter of 22 April 1939, that:
"... I am not able to state definitely that these Dawasir have for the past 150 years
occupied Hawar at all seasons of the year, though those now in residence there claim
that this is so. On the other hand the cemeteries, the water cisterns, the ruins of the old
fort which I have myself seen and the type of house in use all provide evidence of
consistent occupation for at least the greater part of the year" . 218
th
4.167 In its Counter-Memorial, in addition to reiterating its claim that "in the early 19 Century,
a branch of the Dowasir tribe settled in the Hawar Islands after having sought and obtained
permission to do so from an official of the Ruler of Bahrain", Bahrain itself now states:
"In 1845, the same branch of the Dowasir tribe was granted permission from the
Ruler of Bahrain to settle on the main island of Bahrain. The Bahrain Dowasir have
maintained their loyalty to the Ruler of Bahrain to the present day, and have lived in
Bahrain throu219ut this time except for a brief period of three and a half years in the
mid-1920s" .
4.168 Qatar has shown abovethhe lack of any basis for a Qadi's grant of any permission to the
Dowasir "in the early 19 Century". Now, Bahrain appears at least to concede the lack of
Dowasir loyalty to the Ruler and their absence from Bahrain (and therefore presumably their
ceasing to frequent the Hawar islands) for a number of years in the mid-1920s.
4.169 Before dealing with Bahrain's assertion of permanent or continuous Dowasir presence on
the Hawar islands, Qatar must point out that there is no evidence to support Bahrain's above
account of the Dowasir arrival in the region. Lorimer records that:
"The Dawasir of Bahrain are said to have immigrated from Najd, whence they
gradually moved eastwards and, after spending several years by the way on
Zakhnuniyah island, finally arrived in Bahrain about 1845 under the leadership of the
grandfather of their present Shaikh. They have now about 800 houses at Budaiya and
200 at Zallaq, both places on the west side of Bahrain Island. About 30 households of
the tribe are settled at Dohah in Qatar and perhaps the same number in the town of
Kuwait. Offshoots from the Bahrain community of Dawasir exist in the Persian coast
district of Dashtistan at Chah Kutah and its dependent villages and at the village of
220
Jazireh in Bushehr harbour" .
4.170 Two conclusions can be drawn from Lorimer's account. Firstly, the only Dowasir
"stopover" recorded while they were en route from Nejd to Bahrain is Zakhnuniyah and there is
no basis whatsoever for stating thaththe Bahraini Dowasir first went to the Hawar islands in
"about 1800" or "in the early 19 Century" before arriving in Bahrain in 1845. Clearly, "the
grandfather of their present Shaikh" gave no information to his descendants to support any such
claim! Furthermore, as may be seen from Map No. 9, facing page 150, the Dowasir movement
from Zakhnuniyah to Budaiya and Zellaq on the west coast of Bahrain main island would appear
to be a natural route to follow instead of going across to the Hawar islands adjoining the west
coast of Qatar. Secondly, the presence of "offshoots from the Bahrain community of Dawasir" inDoha, Kuwait and the Persian Coast has never been claimed to be or regarded as a credible basis
for any sovereignty or other rights for the Ruler of Bahrain in those territories.
4.171 Turning now to the question of the extent to which the Hawar islands were inhabited
before 1936, Bahrain now concedes, contrary to Belgrave's claims in his letters of 28 April 1936
and 22 December 1938/3 January 1939 quoted above, and in addition to the Dowasir absence in
the 1920s, that:
"Many of the Dowasir who lived on the main island of Bahrain spent five months of
the year there during the pearling season and the remainder of the year on the Hawar
221
Islands" .
4.172 The Court will not fail to notice that Bahrain refers to those Dowasir "who lived on the
main island of Bahrain" 222. Accordingly, any Dowasir visits to the Hawar islands were not only
admittedly seasonal but were also irregular and therefore wholly insufficient (and even
irrelevant) in the context of a claim to sovereignty.
4.173 Bahrain insists however that "although the presence of some Hawar Islanders was
223
seasonal, the settlement was nevertheless permanent" . Qatar submits there is no evidence to
support this bald statement in respect of any permanent Dowasir settlement on the Hawar islands
before 1936 and will show, by reference to other available evidence, that in view of the
uninhabitable nature of the Hawar islands in the period before 1936, the islands were only
seasonally visited, that the visitors were generally fishermen from countries in the region, and
that their activities cannot be the basis of any title to territory. Such evidence includes the
following:
(a) The Persian Gulf Pilot published between 1864 and 1932, though it contains numerous
political inaccuracies or inconsistencies, is relatively consistent in its geographical treatment of
the Hawar islands. The description in the 1864 Edition is as follows:
"On the west side of the entrance to this inlet is a group of islands, little explored, the
largest of which is called Hawar, and is about 10 miles long, and frequented by
fishermen.
There is no channel inside these islands, and, outside them, there is a gap in the
survey, which leaves i224ndecided whether or no[t] there is any channel between them
and Bahrein island" .
The subsequent editions of the Persian Gulf Pilot for the years 1883, 1890 and 1898
225
are either identical or very similar . Each of these descriptions notes that the island
is "frequented by fishermen". The 1898 description adds that "[t]he waters, in and
about these islands, are unsurveyed". The descriptions in the next four editions, i.e. of
1908, 1916, 1924 and 1932, all refer to the Hawar "group of islands" as "little
explored" and the fact that the waters around the islands are shallow and unsurveyed.
In these reports, there is no further mention even of fishermen frequenting the islands.
(b) Lorimer in his geographical description of Qatar (published in 1908) in describing "Hawar
(Jazirat)" states:
"About 10 miles long, north and south, and roughly parallel to the Qatar coast. There
are no wells, but there is a cistern to hold rainwater built by the Dawasir of Zallaq in
Bahrain, who have houses at two places on the island and use them in winter as
shooting boxes. Fishermen also frequent Hawar. The island is adjoined on the north
by Jazirat Rubadh and on the south by Jazirat Janan, while Jabalat Ajirah and Jazirat
Suwad lie in the channel between it and the mainland" 226.
(c) The Political Agent, Prideaux, in his letter of 20 March 1909, states: "The facts are that Dowasir of Budaiya and Zellaq on the north-west coast of Bahrain
are in the habit of every winter partially migrating to Zakhunniya and Hawar Islands
for fishing (sharks as well as edible fish) and hawking..." 22.
The Lorimer and Prideaux accounts thus indicate that seasonal (winter) visitors
undertook only hunting or fishing on the island.
(d) Consistent with the above accounts, the Ruler of Qatar in his statement of 27 May 1938
stated that Hawar was used by fishermen during the fishing season "as they do in other islands
which is considered a usual practice" (paragraph 4) 228. He again referred to the question of the
permanent occupation of Hawar in his comments of 30 March 1939. He questioned the statement
made by the Bahrain Government that the Hawar islands were "inhabited by their subjects in a
permanent manner" (paragraph 4). In paragraph 5 the Ruler described the islands as follows:
"they are barren, without water and unfit as a pasturage for herds, and was [sic] in the
past completely without inhabited buildings and by no any way [sic] can be called
villages or anything that approaches the meaning of this word, and generally un-
frequented except by fishermen who come from time to time, or who pull up their
fishing boats (for 'a dry' or repairs) temporarily... and who then leave" 22.
The Ruler apparently regarded the Hawar islands as being subject to the "widely
prevalent custom" whereby islands were left free as refuges which fishermen could
utilise in winter "for fishing by setting fish traps and nets on the shores of the
islands... [a230 build dwellings and water reservoirs as there is no water available on
the islands" . In his marginal comments on the Ruler of Qatar's comments of 30
March 1939, Weightman also admitted that there was such a custom. Even Bahrain
now alleges that non-Dowasir Bahrainis were present in Hawar 23. It offers no
credible evidence to show that such non-Dowasir (if they existed at all) were only
Bahrainis. On the contrary, apart from the well-known fact that fishermen from
around the Gulf followed the practice of visiting different islands including the Hawar
islands to undertake fishing and were freely allowed to do so by the rulers in the
region, it has been shown that residents and fishermen from Qatar also frequented the
Hawar islands. The Court will recall the Ruler of Qatar's complaint of 8 July 1938
regarding the wrongful detention by the Bahraini auth232ties of a Qatari subject and
his boat and Weightman's acknowledgement of it ; as well as evidence of Qatar
fishermen who frequented the Hawar islands and who, from their own knowledge,
deposed that the Dowasir fishermen who frequented the Hawar islands were in fact
permanently settled in Bahrain (at Zellaq) 233.
(e) An important aspect with regard to habitation on the Hawar islands is the absence of any
source of water supply in the islands. After the Ruler of Qatar in his comments of 30 March 1939
pointed out that the islands were barren and without water, suggesting thereby that they were
uninhabitable, Bahrain began to claim that rain-water was collected in a number of cisterns and
that additional needs were met by bringing water from Bahrain. Weightman, in his assessment of
the relative claims of Qatar and Bahrain in his letter of 22 April 1939, simply accepted Bahrain's
bare unfounded statement and observed, inter alia:
"... Hawar suffers from the absence of a permanent water supply, since the cisterns to
which reference is made in the Bahrain counter-claim are only full after heavy rain
and are subject to loss both from evaporation and from leakage. There was, for
instance, heavy rain in Hawar a month ago, filling the cisterns to the brim, but the
local people informed me that this water would be exhausted within three months.
Water therefore, during much of the year, has to be brought across from Bahrain and
this naturally restricts the number of persons remaining there permanently and makes
it necessary for them to send their goats (except a few in milk) and their cattle across to Bahrain. Nevertheless a few people do remain there throughout the year, though
whether this is equally true of the past I cannot say" 23.
While Bahrain acknowledges that there is no natural source of ground water on the
Hawar islands 23, it speaks of the existence of eight cisterns to store rain-water (as
against the descriptions of Lorimer and Prideaux, according to which the fishermen
had built one/two cisterns). Bahrain also claims that "in addition to the water supplied
from the cisterns, water was also brought from Bahrain and stored in the water tanks
of pearling boats" 23. Bahrain then cites an individual claiming to be a former Hawar
island resident as stating:
"Additionally, if we were fishing near the west coast of the Qatar peninsula, we
would go to Zekrit. There was a spring there where we could get fresh water" 23.
The only evidence Bahrain cites of water being brought from Bahrain is Belgrave's
letter to Weightman of 22 December 1938/3 January 1939 which was clearly self-
serving and unsupportive in any other way. Bahrain further states:
"In the light of the geographical proximity of the Hawar Islands to the west coast of
the Qatar peninsula, it is noteworthy that the inhabitants of the Hawar Islands shipped
water from within Bahrain and not from the Qatar peninsula, except if they were
238
fishing very close to the coast, when they would use the spring at Zekrit" .
Considering the close proximity of the spring in Zekrit, it would clearly be more
reasonable to assume that fishermen on Hawar who were short of water would secure
it from a nearby spring rather than incur great expense for the water to be brought all
the way from Bahrain in pearling boats.
th
4.174 In Qatar's submission, all available evidence referred to above, from the 19 century and at
least up to 1936 in the present century, demonstrates the seasonal and temporary nature of visits
of fishermen to the Hawar islands, the lack of any permanent habitation of the islands, and the
complete absence of any State control or activity by Bahrain on these waterless and relatively
barren islands. Nothing of what is really known of human activity on Hawar supports any
Bahraini claim of sovereignty over the islands.
4.175 In its Counter-Memorial, Bahrain contends there is "evidence in the public record" of what
it now calls "regular" as against "permanent" habitation of the islands by Bahrain "including
239
evidence dating from 1821-1829, 1845, 1873, 1908, 1909, and 1911, in addition to the 1930s" .
An examination of each of the sources relating to these dates shows no basis for such "regular"
habitation of the islands by Bahrain. The evidence of 1821-1829 refers to a report of Captain G.
Brucks which merely describes Hawar island and states "It has two fishing villages on it" 240. The
next reference is to the passage from Lorimer quoted above, showing the arrival of the Dowasir
in Bahrain in 1845 by way of Zakhnuniya. This passage does not refer to Hawar at all. Bahrain
has suggested that in 1873, the Ruler of Bahrain was staying in the Hawar islands and helped to
rescue some Ottoman soldiers. There is no evidence whatsoever for this suggestion 241though
there is some evidence of Bahraini Sheikhs visiting various locations in the islands for hunting
(as they also visited various locations in Saudi Arabia). But that would not in any way support
any claim of "regular" habitation of the Hawar islands. The source mentioned for 1908 is another
passage from Lorimer quoted above, which merely mentions that the Dowasir of Zallaq in
Bahrain have houses at two places on the island which they use in winter as shooting boxes. The
sources for 1909 are the letters from Prideaux after his visit to the Hawar islands mentioned
above; and the reference to 1911 relates to an assurance in a letter given by the Ruler of Bahrain
to the Political Agent that an unemployed Dowasir seaman who was in Hawar and was to be
offered a pearling assignment would appear if required. The letter suggests he may already have
another pearling job. The letter also shows, if anything, the temporary nature of the unemployedseaman's presence in Hawar. Finally, as regards the evidence of the 1930s, Bahrain merely refers
the reader to a whole section in its Memorial.
4.176 Further evidence has recently been uncovered by Qatar which in any event wholly
undermines the Bahraini assertion that members of the Dowasir tribe owing allegiance to
Bahrain had had a long-standing settled presence on Hawar prior to 1936 and maintained that
settled presence after the occupation of Hawar by Bahraini officials and forces in the year 1937.
Mention has already been made of Alban, who succeeded Weightman as Political Agent in
October 1940 and served in that capacity until January 1942. On 13 December 1940, i.e., well
after the British decision of July 1939, Alban paid a brief visit to Hawar island, less than two
months after Weightman's departure. The following is his report as recorded in the Intelligence
Summary of the Political Agent, Bahrain for the period 1 to 15 December 1940:
"On December 13th (Friday) I visited the Hawar Island in the 'Felix Jones'; Captain
J.B. Howes and Dr. R. Holmes also came. We started from the Bahrain Petroleum
Company's pier at Sitra at 9 a.m. and arrived off North Hawar village at 12.30. We
landed at the pier and were saluted by a guard of naturs, after which we examined the
recently built Fort which is fitted with an electric light plant (only used when any of
the Shaikhs are present). The Fort has recently been surrounded by a barbed wire
fence. There are 12 naturs [Policemen] who are changed at intervals. A few Dawasir
from Zellaq were in residence; they apparently like Hawar in winter and return to
Zellaq in summer. We also saw some of the other Islands of the group" 242.
These italicised sentences coincide perfectly with the evidence which Qatar has produced from
several sources to the effect that Hawar was, prior to the Bahraini occupation of the islands in
1937, occasionally visited by itinerant fishermen from various Gulf states during the winter
months, but that there was no settled community on the islands, far less "a settled population
243
with a pattern of regular habitation", as Bahrain claims . Bahrain may have initiated a
programme of public works on Hawar in the many years which have elapsed since its unlawful
occupation of the islands in 1937, but that is another matter. The question is: what was the
factual position on Hawar in, say, 1935, immediately before Bahrain first lodged a formal claim
of title to the Hawar islands? If Alban has correctly described the situation as it was in December
1940, is it not more than likely that this had been the position in 1935, even assuming that, by
1935, those members of the Dowasir tribe who had been accustomed to wintering on Hawar had
revived this practice after their voluntary exile in Saudi Arabia from 1923 onwards (as to which
there is no evidence) 244?
4.177 Apart from the fact that none of the evidence referred to by Bahrain supports the claim of
"regular" habitation of the Hawar islands, it will also be seen that the nature of the activities
mentioned could not in any event be the basis for any Bahraini "sovereignty" over the islands.
4.178 Qatar has drawn attention to the fact that Bahrain has cited no evidence at all of any
exercise of political authority over, or its acceptance by, the Dowasir who may temporarily have
visited the Hawar islands during the winter season. Qatar has shown that in his conversation with
Prideaux, the Dowasir he met on Hawar in 1909 claimed the island for themselves. The
following entry in Belgrave's diaries describing his (first) visit to Hawar in the spring of 1938
also indicates the lack of any acceptance of Bahraini authority over the Dowasir:
"... In the evening I went to the village & drank coffee with the headman, rather a
tiresome old fellow, they resent us having developed the place which in the past was
never visited & which they seem to consider as their own property, a roaring gale, I
245
have no intention of returning tomorrow if weather continues so bad" .
Even assuming any political ties between the Ruler of Bahrain and the Dowasir, the account
contradicts Bahrain's claim that the Dowasir accepted the Ruler's authority in the Hawar islands.In fact, it clearly shows Belgrave himself confirming that no one in the past ever visited the
Hawar islands on behalf of the Bahraini authorities.
4.179 As observed in the Advisory Opinion of the International Court of Justice of 1975 in the
Western Sahara case:
"Political ties of allegiance to a ruler, on the other hand, have frequently formed a
major element in the composition of a State. Such an allegiance, however, if it is to
afford indications of the ruler's sovereignty, must clearly be real and manifested in
acts evidencing acceptance of his political author246. Otherwise, there will be no
genuine display or exercise of State authority" .
4.180 Furthermore, evidence of individual activities such as seasonal fishing and some hunting
(hawking) for which purpose the seasonal visitors built temporary houses (or shooting boxes),
cisterns to store water and the existence of cemeteries, cannot sustain any claim to sovereignty.
4.181 As indicated above, there was until recent years a traditional pattern of freedom of fishing
in the Gulf and other parts of the Arab region. S. H. Amin in his Treatise on International and
Legal Problems of the Gulf states:
"The fishing activities in the Gulf have been traditionally governed by the
Shariah/Islamic Law. The Shariah does not have a comprehensive legal theory in
respect of fishery. The provisions applicable to fishing activities are scattered
throughout various parts of Islamic legal theories, in particular those parts relating to
public assets (anfal), as well as hunting and slaying (al-sayd va el-zabaha), eating and
drinking (atamah va el-ashrabah), acquisition of property (malekiyyah), and State
revenue (kharaj). 'Anfal', or public assets, include all national resources and raw
material, whether in land or sea or space. They belong, exclusively, to God and are
not, in any way, subject to exclusive rights of persons, individually or collectively.
Individuals may use and exploit the oceans, seas, and rivers, in a reasonable manner,
as much as required, without restriction. As soon as one person acquires or possesses
a quantity of fish, from river or sea, the fish will become the possession of the
fishermen. All these parts of Shariah, taken together, indicate that God is the
proprietor of the fishing stocks. They could not, therefore, be subject to exclusive
rights of any particular people, either individually or collectively. So, although fish
stocks in Shariah are considered as ownerless property, ownership is, in fact, deemed
to be vested in the State. Thus, the fish come under the ownership of the fishermen by
actual possession, but the State may collect revenue from commercial fishermen.
However, no restriction could be imposed upon individuals under Shariah with
respect to the fishing industry.
In the absence of strict provisions in Islamic law concerning the fishing industry, the
customs and traditions of the local inhabitants have provided a workable, if not
universal and binding, framework. Thus, it is submitted that fishing in the Gulf is
'governed by customs and usages of immemorial standing'. However, neither the
exact nature nor the scope of these traditional rights and customs is defined. In 1949,
Saudi Arabia, and all British Protected Arab Emirates in the Gulf, issued
Proclamations asserting their exclusive rights to the continental shelves adjacent to
their coasts. It was specified in these Proclamations that they should not be
interpreted as affecting fishing activities. Similarly, the Saudi Arabian Proclamation
of 1958, extending the territorial sea of the Kingdom to 12 miles, effectively
conceded that fishing rights were accorded equally to all the various peoples of the
Gulf and only to them. Foreign nationals had no fishing rights in the area. Intrusion
by outsiders, except possibly kinsfolk of the coastal people of the Gulf, has always been resented and was discouraged by the British, prior to their 1971 withdrawal from
the Gulf" 247.
4.182 There are many traces in the recent Award by the Arbitral Tribunal in the Eritrea-Yemen
Arbitration of what Qatar has been arguing in its previous pleadings as regards the traditional
freedom of fishing in the waters of the Gulf of tribesmen owing allegiance to differing Rulers:
"The reported data clearly indicate that the population living around the southern part
of the Red Sea on the two opposite coasts have always been inter-linked culturally
and engaged in the same type of socio-economic activities. Since times immemorial,
they were not only conducting exchanges of a human and commercial nature, but they
were freely fishing and navigating throughout the maritime space using the existing
islands as way stations... These activities were carried out for centuries without any
need to obtain any authorizations from the rulers on either the Asian or the African
side of the Red Sea and in the absence of restrictions or regulations exercised by
public authorities.
This traditionally prevailing situation reflected deeply rooted cultural patterns leading
to the existence of what could be characterized from a juridical point of view as res
communis permitting the African as well as the Yemeni fishermen to operate with no
limitation throughout the entire area and to sell their catch at the local markets on
either side of the Red Sea. Equally, the persons sailing for fishing or trading purposes
from one coast to the other used to take temporary refuge from the strong winds on
any of the uninhabited islands scattered in that maritime zone without encountering
248
difficulties of a political or administrative nature" .
Thus, there are many striking parallels between the socio-economic activities carried out by
fishermen in the Red Sea and by fishermen along the southern shore of the Arabian Gulf, at least
up until relatively recent times. It should, however, be noted that the Award attaches no weight
to evidence of individual fishing practices as constituting state activity supporting a claim to
sovereignty over the islands concerned. The Tribunal states:
"... although substantial evidence of individual fishing practices in the record may be
taken as a different form of 'effectivité' - i.e., one expressive of the generally effective
attitude and practice of individual citizens of Eritrea or of Yemen - it is not indicative
as such of state activity supporting a claim for administration and control of the
Islands. This varied and interesting evidence, on both sides, speaks eloquently
concerning the apparent long attachment of the populations of each coast to the
fisheries in and around the Islands, and in particular that around the Zuqar-Hanish
islands. However it does not constitute evidence of effectivités for the simple reason
that none of these functions are acts 'à titre de souverain'. For state activity capable of
establishing a claim for sovereignty, the Tribunal must look to the state licensing and
enforcement activities concerning fishing described above" 24.
4.183 The Award seeks to draw conclusions from what it refers to as "the limited life on the
Islands". Qatar takes the view that, mutatis mutandis, these conclusions are applicable to life on
the Hawar islands at least prior to the unlawful occupation of Hawar by Bahrain in 1937:
"The first conclusion must be that settled life on the Islands does not exist, but that
episodic or seasonable habitation occurs, and that it appears to have taken place for
many years. Eritrea asserts that its fishermen have been predominant, and Yemen
asserts the reverse. There is no evident manner in which the Tribunal can, on the basis
of the sparse and conflicting evidence before it, decide the matter one way or the
other. The likelihood is not that one nationality prevailed and the other was absent,
but that both were present on the Islands in varying numbers and at various times - and that any precise calculation of relative use would, over time, reveal what may be
perceived as a genuinely common use of the waters and their resources.
The second conclusion appears to be that the manner of living on the Islands is
equally indiscriminate: some fishermen stay on their boats; others sleep on the beach;
some construct small shelters; others use larger shelters; some consider their
structures 'settlements'. The one thing that is clear from the record is that there is no
significant and permanent dwelling structure, or in fact any significant and permanent
structure of any other kind, that has been built and that has been used to live in.
The third conclusion is that it is not clear from the evidence, in spite of occasional
references to 'families' staying on the Islands, whether any family life is in fact
present on the Islands. Inasmuch as the use of the islands is necessarily seasonal, this
would seem to be a priori inconsistent with family life in the sense of family units
migrating to a location where normal community activities continue, as for example
with nomadic herdsmen.
The final conclusion must be that life on the Islands, such as it is, is limited to the
seasonal and temporary shelter for fishermen. The evidence shows that many of them,
of both Eritrea and Yemen nationality, appear to stay on the islands during the fishing
season and in order to dry and salt their catch, but that residence, although seasonal
250
and regular, is also temporary and impermanent" .
4.184 The evidence which Qatar has submitted to the Court as regards human activity on the
Hawar islands prior to their unlawful occupation by Bahrain in 1937 is broadly consistent with
this description of human activity today on the disputed Red Sea islands. Qatar is of course in no
position to determine the extent to which the current situation as far as the Hawar islands is
concerned differs from the pre-1937 situation, given Bahrain's continuing unlawful occupation of
the islands and its consistent attempts to modify the status quo against which Qatar has
consistently protested. Qatar in any event contends that Bahrain's claim of title to the Hawar
islands (first advanced in 1936) must be determined on the basis of the situation as it existed
before Bahrain's unlawful occupation of the islands.
4.185 In support of its claim of effective exercise of authority in Hawar, Bahrain has also
contended that in the past, fidawis of the Sheikh of Bahrain were sent to arrest people on
251
Hawar . Bahrain's claim to the Hawar islands of 28 April 1936 refers to no such practice or any
evidence of it. In any event, at most this only means that fidawis pursued criminals attempting to
hide on a deserted island.
4.186 Another example of evidence in support of Bahraini sovereignty cited by Bahrain is that
disputes about fish traps in Hawar were settled in Bahraini Courts. But Qatar has shown that the
two judgments produced by Bahrain in this connection are of no evidentiary value, as it was
common for Qadis in one Moslem country to settle disputes between Moslem subjects of another
country or in regard to property located in another country 25.
4.187 It must be reiterated that the post-1936 activities cited by Bahrain in support of its claim
cannot be invoked by Bahrain in support of its claim to sovereignty. The fort was admittedly
built in 1937-38 and the mosque was also built (and not just repaired) at the same time. There is
evidence to suggest that Bahrain began to spend money on repairs of the cisterns also after its
253
illegal occupation of Hawar . Prior to that, the cisterns appear to have sufficed for the purpose
of storing water for the short periods during which fishermen were present on the island.
Furthermore, it has already been shown that there is no evidence of any police operations or the
issue of licences by Bahrain for the extraction of gypsum in the period before Bahrain's
occupation of the islands in 1937.
5. Lack of evidence of habitation from 1937 onwards4.188 Qatar considers it relevant to point out that the Hawar islands were relatively barren and
unfit for permanent habitation (though suitable for picnics) even after Bahrain had occupied the
main island in 1937 and carried out various "improvements". This is apparent from descriptions
given in Belgrave's diaries of visits to Hawar as follows:
"Friday 1st April 1938:
Went by camel to the end of the island. Took four men from the camel section, we
were out about five hours, I enjoyed it but got very very stiff & sore. I have not had a
long camel ride for about 15 years so am quite unaccustomed to it. It was very hot &
dry & then quite suddenly, on our way back, the wind turned shamaal & blew very
strong, a real gale, all the afternoon & night. There are some nice places in the island
& after rain it must look very attractive. This year all the plants & brushwood are dry
but there are quantities of plants showing how green it must be some years. Saw a lot
of big nests, sea birds, sort of fish hawks. Had a pleasant bathe in a delightful little
sandy bay, the water was not too cold, lay on the sand & dried, in the sun, & got very
sunburned...
Friday 29th April 1938:
Got up at a reasonable time & went down to the pier & had a very nice bathe, quite
deep water & absolutely clear, then, after breakfast, went in the launch right round the
other side among the islands, which have all got cairns on them now painted red &
white. Quite cool; a very pleasant trip. Landed at one of the islands & climbed up the
cliffs, then had a bathe. Rather shallow water. Took Said & two other lads of the
Camel section, they bathed too. Got back rather late. Had lunch & then slept till 5 pm
when I went out for a ride on one of the camels, almost an hour, taking some of the
camel men with me. Pleasant exercise, not unpleasantly hot, a cool breeze in the
evening. I really enjoy this place & hate the idea of its being spoilt by oil.
Sunday 19th March 1939 :
Went to Hawar, drove to Sitra where I met the launch, took just over three hours to
cross but we went the longest way to avoid the rough sea as it was blowing strong.
Quite a good trip though rather bumpy. Had an excellent late lunch which I cooked
myself, stewed pigeon with vegetables. Slept & then went for a walk along the
[illegible] very fine air, had a look at the mosque which we are building and took
coffee with two Arabs in the village, it looked even poorer than usual, but they all
seemed pleased to see me. A strong shamaal roaring round the tower, but rather a
cosy feeling. Had to stuff some of the loopholes with paper to keep the Gale out.
Friday 28th June 1940 :
Went to Hawar, car to Sitra & by sea in the 'Hawar', pleasant cool day. Went ashore
on one of the islands, looking for nests but found no eggs, at least only one, too late in
the season. The naturs looked very smart & the whole place clean & neat. Had a late
lunch & then slept, took a walk in the evening & had a bathe & slept out on the roof,
very dry & cool & enjoyed the change. Marvellous starry night & quite still, lovely
sunset. It's a pleasant place for a rest".
4.189 The Ruler of Qatar's state254t that the Hawar islands are relatively barren and would
entail hardships to inhabitants is further supported by the fact that even after the British
decision of July 1939 in favour of Bahrain, (i.e., after Bahrain had "won" the islands but found
no oil on them), the islands seem to have been used for banishing individuals for misbehaviour
of one kind or another or for hunting as in the past. Even Weightman himself was frank enough,
at least after the British decision of 11 July 1939, to downplay the impression which he had
carefully cultivated in 1938/39 that Hawar was occupied during the greater part of the year. Infact, there is evidence to show that, in the early 1940s, Bahrain used the main Hawar island as a
penal colony to which offending Bahrainis (particularly junior members of the ruling family)
could be banished. The following is a report by Weightman included in the Intelligence
Summary of the Political Agent, Bahrain, for the period 16-31 March 1940:
"In the last two or three years some of the younger members of the Shaikhly Family,
though not the sons of Shaikh Hamad himself, have caused considerable scandal by
their drunkenness. After a good deal of encouragement His Highness was induced to
promise that if they continued to be drunk and disorderly he would deal very firmly
with them, and this promise has now been put into effect in one case. Shaikh Ali, son
of His Highness' brother Shaikh Abdullah, indulged in a particularly revolting
drunken bout a few days ago and has now been banished for an indefinite period to
Hawar. The pleasures of Hawar are confined to watching a few fishermen gut their
catch, and the result of this action should be admirable" 255.
The underlined sentence is hardly consistent with Weightman's previous reports on conditions in
Hawar 0!
4.190 A similar case of banishment to Hawar occurred in 1945. The following is the relevant
entry in the Belgrave diaries:
"21 April 1945 :
.... Sh A [Sheikh Abdullah] first with a long complaint about Rashid, his son, who got
drunk & beat a butcher. He asked that he should be sent to Hawar, HH [the Ruler of
Bahrain] agreed".
More such cases occurred in 1949, according to the Belgrave diaries:
"14 February 1949:
Court, quite a long session, had one of the Khubjal Shaikhs up again for being drunk,
he having just returned from a period at Hawar.
21 February 1949:
... Court but very dull cases, dealt with [illegible] Abdel Rahman one of the Khalifah
who was drunk, sent him to Hawar for 6 months, having consulted HH [Ruler of
Bahrain] first".
4.191 Belgrave records numerous other similar incidents in his diaries:
"Thursday 28 March 1940 :
Sh Khalifah discussed the deportation of Ali bin Abdulla to Hawar, we decided to
send him there tomorrow night. It will cause a sensation.
Thursday 24 May 1945 :
Fort. Very busy morning in office and at the customs, Hesketh brought in a new
labour man who had a lot of questions to ask about workmen etc, Sh Abdulla called
to say that his son Rashid was to be brought back from Hawar, having done about 6
weeks there, I think a bit longer would have been better.
Saturday 7 April 1951 :
HH & Sh A, the latter has been at Hawar on a hunting trip & looked very well after it.
Thursday 25 September 1952:
Had an appeal court with Sh Abdulla & afterwards Sh Khalifah [illegible] reported
about the doings of Ali bin Abdulla who as usual is drunk & making a dangerous
nuisance of himself. Sh A agreed to send him to Hawar. Saturday 24 January 1953:
Tackled HH about his going home, but he wouldnt say anything definite. He didnt
seem to mind the FO suggestion that he should take not more than 4 people with him.
Sh A came in & discussed some dope which is said to cure drinking which he wants
his son Ali to take, Ali has been allowed to return from his long banishment to
Hawar. HH didnt stay very long.
Saturday 21 November 1953:
... Sh Abdulla came in, he had been hunting to Hawar but returned hurriedly owing to
the very strong Shamaal, the first this year..."
4.192 So there is clear evidence that, throughout the 1940s and 1950s (but not earlier), the
Bahraini ruling family used Hawar island partly as a convenient penal colony, to which more
junior family members could be banished in the event of their misbehaviour, and partly as a
convenient (if isolated) venue for seasonal hunting, as in the past. The Court will no doubt note
that this was the position despite all the "imp1ovements" carried out by Bahrain as evidenced in
its Annual Reports from 1937-1938 onwards . All this further demonstrates the unsuitability of
the Hawar islands for permanent habitation of the kind Bahrain alleges.
Section 5. The Bahrain and Qatar Oil Concession Negotiations between 1925 and 1939 and
the Events Leading to the Reversal of British Recognition of Hawar as part of Qatar
4.193 Bahrain's account of the oil concession negotiations in respect of Bahrain's "unallotted
area" draws pointed attention to the British efforts to secure the concession for the British
Company, PCL (a group Company which replaced APOC after the latter received a concession
over the whole of Qatar) and how the Hawar islands came to be regarded as part of this area in
1936. Bahrain further shows that these efforts did not succeed because the American Company,
BAPCO, which had obtained the first concession from the Ruler of Bahrain in 1928 and a
mining lease in 1934, threatened to reduce its oil production (which would result in a reduction
of royalties payable to the Ruler of Bahrain) if the new concession was not given to it. Bahrain
goes on to contend that when BAPCO delivered a similar threat to oppose a British attempt to
insist that a concession at least in respect of the Hawar islands should be granted to PCL,
"Britain realised that its hands were tied" because as Weightman pointed out in February 1939,
any such insistence would have a "devastating effect" on the prestige of the British in the Gulf
who would be regarded as having served their own interest at the cost of Bahrain 2. While
Bahrain's account of the concession negotiations from 1936 to 1939 is incomplete and inaccurate
in some important respects, it does highlight and support the fact, and therefore Qatar's
contention, that the Hawar islands, contrary to earlier British views, were simply treated as
Bahrain territory from 1936 onwards. Accordingly, the so-called "arbitration" in 1938-1939
leading to the British decision of 11 July 1939 was nothing short of a sham.
4.194 The Court will recall that in its Memorial, Qatar drew attention to events that showed bias
in favour of Bahrain on the part of British officials when dealing with the first formal claim to
the Hawar islands made by Bahrain on 28 April 1936 . It is Qatar's submission that there was no
evidence and therefore no valid basis for the British "provisional" decision of 1936 treating
Hawar as belonging to Bahrain; and that the inclusion of the Hawar islands in the territory of
Bahrain for which the new concession was being negotiated during 1936 to 1940 demonstrated
clear pre-judgment by British officials. An accurate and comprehensive account of the
negotiations for a concession over Bahrain's unallotted area, read with some of the evidence
referred to in Bahrain's Counter-Memorial, as well as an analysis of the attitudes and procedures
adopted by various British officials at the time, which Qatar will now set out, provides further
strong evidence of such bias and pre-judgment and shows that both the British "provisional"
decision of 1936 and the later decision of July 1939 that the Hawar islands belonged to Bahrain,
are vitiated.4.195 After BAPCO had applied in 1932 for an extension of its prospecting licence from the
Ruler of Bahrain in respect of the latter's dominions and in the context of determining the
unallotted area for which the concession was still to be granted, Laithwaite of the India Office, in
a letter of 3 May 1933 to the Petroleum Department, noted that:
"... in considering any grant of a concession in respect of his 'dominions' or 'Bahrein'
it would see4 necessary to have a clear understanding as to precisely what is
covered..." .
In the same letter, he stated:
"The Sheikh maintains a rather nebulous claim to certain areas on the Arab coast,
with which it is unnecessary to deal here. His dominions may be regarded as
consisting of the Bahrein archipelago. The Bahrein archipelago consists of the Island
of Bahrein, and of the adjoining islands of Muharraq, Umm Na'assan, Sitrah and Nabi
Salih" .
In a further letter of 9 August 1933, Laithwaite wrote:
"We have been considering whether there is any risk, in view of the reference to the
Sheikh's 'territories' in the Agreement of December, 1925, [the first concession] of a
claim being put forward by the [American] Syndicate to rights in respect of Hawar
and the area in Qatar to which a vague claim is maintained by Bahrein and to which
Colonel Loch refers in his telegram of 23 July No 27 to the Colonial Office. The
exploration licence granted under the Agreement of 2 December 1925... is... in
respect of 'the whole of the territories under' the Sheikh's 'control'. This seems clearly
to exclude areas in Qatar and presumably also would exclude Hawar which belongs
in any case geographically to Qatar, and is the westernmost and largest of a group of
islands just off the Qatar coast on the west side of the entrance of Duhat-al-
6
Adhwan" .
Laithwaite's acceptance of the proposition that a reference to "the whole of the territories under"
the control of the Ruler of Bahrain would exclude Hawar surely establishes that at the time, the
Ruler of Bahrain exercised no authority in or over the Hawar islands.
4.196 Qatar has provided other compelling evidence in support of the British view expressed on
a number of occasions in 1933 that the Hawar islands belonged to Qatar 7. Further evidence of
this view is the War Office map annotated by the Foreign Office (G.W. Rend8l) in 1933 and
referred to above clearly showing the Hawar islands as part of Qatar . In fact even in 1934 during
negotiations for the Qatar Oil Concession of 1935, when the Ruler of Qatar suggested the
concession territory could only include the coast and not the interior, the British Resident
disagreed and firmly ass9rted "... you are the Ruler of all Qatar and the Treaty [of 1916] extends
to the whole of Qatar" . He made no exception in respect of the Hawar islands.
4.197 Bahrain simply brushes aside all this evidence and merely picks on the references in 1933
to its "nebulous" or "vague" claims to contend that the British were therefore aware of Bahrain's
claims in 1933 but, strangely, fails to realise that such claims were ignored and clearly not
recognised.
4.198 As Qatar has shown in its Memorial, the British view of 1933 was precipitately reversed
after Bahrain, in connection with the resumed negotiations for an oil concession for its
"unallotted area" made a formal claim to the Hawar islands in April 1936 10. With regard to
Qatar's allegations of British bias in connection with this reversal, beginning with the so-called
"provisional" British decision of 9 July 1936 and culminating in the final decision of 11 July
1939 "giving" Bahrain the Hawar islands, Bahrain makes the rather obscure statement that: "The facts plainly show, to the contrary, that if Britain had allowed itself to be guided
by such impulses rather than by legal principle, it would have favoured the grant of
11
the Hawar Islands [ownership] to Qatar" .
4.199 But then, having assumed that Britain would not have allowed itself to be guided by such
impulses, Bahrain contradicts itself by stating a few paragraphs later that after the establishment
in Bahrain of what was for all practical and economic purposes an American Oil Company
(BAPCO) "... Britain was to do its utmost to promote the interests of British oil companies over
those of American oil companies" ; and that when the Anglo-Persian Oil Company (APOC),
regarded as a British company, "decided to join the competition for the Bahrain unallotted area",
this:
"... increased Britain's concern to ensure that any additional concession rights
awarded to the American-owned BAPCO were confined to as small an area as
13
possible" .
4.200 In support of this statement, Bahrain refers to a letter from the British Political Resident to
the Secretary of State for the Colonies of 22 June 1933 stating:
"it seems to me there are obvious advantages in having a second competitor,
especially British, in the field" ;4
and to another letter from the British Political Resident to the British Political Agent of 29 June
1933, reproducing a part of a "Reply received from His Majesty's Government" stating:
"It would, as you will appreciate, be much more satisfactory from our point of view if
remainder [Bahrain] Island were to be developed by Anglo Persian Oil Company or
Iraq Petroleum Company..." 15.
4.201 The Government's Reply went on to suggest that Loch should therefore inform Belgrave
confidentially of APOC's interest and make it clear to him that the Government's advice on
BAPCO's offer would necessarily turn to some extent on whether or not there was substantial
competition in the field; and "that in Shaikh's own interest it is most desirable that he should
avoid committing himself in any way to HOLMES [then acting for BAPCO] pending receipt of
our advice" 1.
4.202 It may be noted however that at the time (in 1933) this did not in any way affect the British
view that the Hawar islands were part of Qatar. This is obvious from the subsequent telegram
written by the Political Resident himself on 31 July 1933 stating that "Hawar Island is clearly not
one of the Bahrain group" as well as Laithwaite's letter of 9 August 1933 referred to above to
Starling, of the Petroleum Department, pointing out that the Hawar island wa17not under the
control of the Ruler of Bahrain and belonged geographically to Qatar .
4.203 Another significant development in 1933 relating to the unallotted area was triggered by a
letter of 17 May 1933 from Holmes to the Political Agent reporting, after a meeting with the
Ruler of Bahrain, that the Ruler had agreed to accept an offer from BAPCO for exclusive
exploration rights throughout his territories including all the islands and all the territorial
waters . This was disputed by the Ruler and, at the same time, questions arose with regard to the
size of the Sheikh's territories and territorial waters. The Ruler of Bahrain was greatly disturbed
to discover at this stage that his unallotted land area was much less than he had imagined. In a
letter to the Political Agent of 28 May 1933, he stated "it now appears that the additional area
does not amount to more than 38000 acres, including towns, cemeteries and gardens" 1.
4.204 As Belgrave notes in his diary in the entry for 15 August 1933:
"Very busy morning. Fort, office, police & customs. Drafted some important letters.
Went to see the Shaikh at the Palace to talk oil. He was very disappointed at Holmes
Company having withdrawn their offer for the additional area, he gave me orders to write a letter about that and about the question of "half the island". He has always
assumed that 100,000 acres was half but actually the rest is only about 30,000 acres.
Talked also about the new stamps, he was very disappointed as he expected his own
head on them, not George's. However, he agreed with complete lack of enthusiasm, to
my sending a set to the King & a letter from him. He was disappointed and angry
about the oil. Motored in evening & then went in to Mespers".
4.205 In a letter of 16 August 1933, Belgrave then proceeded to inform the Political Agent that,
until recently, the Ruler had suffered from a "grave misapprehension regarding the additional
area" and stated:
"Although the [1925] concession is for 100,000 acres, which corresponds to 100,000
feddans, His Excellency has always assumed that the concession covered half of the
total area of Bahrain, apart from the fore-shore and territorial waters. His Excellency
is of the opinion that His Britannic Majesty's Political Agents were also under this
impression as when referring to the additional area the expression 'other half' has been
in general use... His Excellency feels that while references were being freely made to
the other 'half' of the island during the lengthy negociations [sic] on the subject he
should have been informed that this 'half' was in reality an area very considerably less
than half the total area of Bahrain" .20
4.206 The Political Agent in a letter to the Political Resident disputed that the Agency had ever
employed the term "half" and suggested that the misunderstanding might have its origin in a
description of the Ruler of Bahrain's territories by Holmes in 1928 . It appears possible that this
episode, together with the fact that the first discovery of oil had occurred a short while earlier
and the desperate financial position in which Bahrain found itself in 1933-1934, also led to
efforts to try and increase the size of the Ruler's territories to be covered by the new oil
concession and thereby try and earn higher royalties for him.
4.207 As already indicated, the negotiations in connection with a concession relating to the
unallotted area were suspended in August 1933 after BAPCO sought an extension of its
prospecting licence 22. Bahrain however states in its Counter-Memorial that two of the Bahraini
Sheikhs told Belgrave that the British had dissuaded Bahrain from coming to terms with the
23
American Company over the additional area in order to help APOC to get a footing in Bahrain .
4.208 As Qatar has already shown, after the negotiations for the concession over Bahrain's
unallotted area were resumed in 1936, and just after PCL submitted a proposal for a concession
on 16 April 1936, Bahrain decided for the first time to make a formal claim24o the Hawar islands
by its letter dated 28 April 1936 from Belgrave to the Political Agent . The contents of this letter
have already been analysed by Qatar, showing that the claim was expressly made in the context
of negotiations for a concession over the unallotted area . The letter contains numerous
inaccuracies (such as the number of islands in the Hawar group) as well as false statements (that
at least 4 of the larger islands were permanently occupied by Bahraini subjects), etc. When PCL
became aware of Bahrain's new claim, it protested on the very next day by a letter of 29 April
1936 to Walton in the India Office, stating:
"We are, as you know, now negotiating with the Shaikh of Bahrain for that part of his
group of islands which has not already been given to the Californians. He has 26
commenced by claiming that the Island of Hawar is part of his dominions" .
The letter went on to assert:
"This island is, in fact, situated off the west coast of Qatar, from which it seems to be
not more than ¾ miles distant at its nearest point. The island is shown on the official
map of Qatar which was signed by the Shaikh of Qatar and by Mr. Mylles and which
forms part of the Qatar Concession. This map, I believe, was seen and approved by the Political Resident and, perhaps, the India Office. All this points to its forming part
27
of Qatar and not of Bahrain" .
The letter concluded with a request for a clarification regarding the opinion of the Government
of India on the following question: "to which potentate... does the island belong?" . This request
in the context was in effect for a confirmation of PCL's view rather than a request for what
Bahrain calls "an advisory opinion".
4.209 As already shown, it was only after April 1936, when negotiations for an oil concession
over Bahrain's unallotted area had been resumed and after Bahrain had advanced its formal claim
to the Hawar islands, that British officials began to express opinions contrary to the position
recognised by the British in 1933 and even 1934, which then was that the Hawar islands were
part of Qatar .9
4.210 Thus Loch, the Political Agent, in his letter of 6 May 1936 forwarding to the Political
Resident Bahrain's formal letter of 28 April 1936 claiming the Hawar islands, while admitting
that "past correspondence... is not available to me", nonetheless proceeded to express the view
(accepting the bare assertions in Belgrave's letter and without calling for any evidence) that there
was real substance in Bahrain's claim and then went on to state also "that it might in certain
circumstances suit us politically to have as large an area as possible included under Bahrain" 30.
4.211 The Political Resident (Fowle), without having seen any evidence in support of Bahrain's
claim, similarly took the position that he was "incline[d] to the view that Hawar should be
regarded as belonging to the Shaikh of Bahrain and that the burden of disproving his claim lies
31
on the Shaikh of Qatar" .
4.212 While Bahrain's formal claim of 28 April 1936 was being considered in London, the
question of which company could secure Bahrain's new concession for its unallotted area (which
at that time was not regarded as including the Hawar islands) was simultaneously receiving
attention, BAPCO having informed the Political Agent in June 1936 that it was definitely
interested in concession rights over all the area of Bahrain and its territorial waters 32. In that
regard, a Foreign Office Minute of 26 June 1936 records, inter alia:
"HMG would certainly prefer that PCL should get this concession, but they would
raise no objection to the BPC securing it subject to their receiving the necessary
political safeguards and 33 their being convinced that the concession was in the best
interests of the Shaikh" .
4.213 Soon thereafter, another British official, Starling of the Petroleum Department, writing to
the India Office on 3 July 1936 in the context of his concern for "securing a measure of British
control" over oil supplies from the Gulf area, suggested:
"... There is, however, the possibility that H.M. Government may consider it desirable
to suggest to the Sheikh that it might be a good thing to give the remainder of Bahrain
to Petroleum Concessions Ltd." 34.
He went on to suggest that "in view of the issues involved it might be as well if we were to have
an inter-departmental discussion on the whole matter" . 35
4.214 Such an inter-departmental meeting was therefore held on 9 July 1936 where Starling,
among others, was present. The opening paragraph of the Minutes of this meeting records:
"The meeting first examined the question of the ownership of the Hawar Islands. It
was agreed that on the evidence at present available these Islands appear to belong to
the Sheikh of Bahrein, and that the burden of disproving his claim lay on any other
potential claimants. It was agreed that the Sheikh of Bahrein should be informed
36
accordingly" .In other words, the question of ownership of the Hawar islands was hurriedly decided in favour
of Bahrain, notwithstanding the lack of any effort to examine previous records (of 1933), other
appropriate evidence, or the views of the Ruler of Qatar. As will be seen hereafter, though the
decision was regarded as "provisional" in nature, it was in fact treated as final and acted upon as
such.
4.215 At the same inter-departmental meeting, Starling pushed his point further and, as Bahrain
itself points out, the Minutes of the meeting record:
"Mr. Starling [of the Petroleum Department] then suggested that His Majesty's
Government should exert a sub rosa influence to induce the Sheikh to give the
concession for the unallotted area to [PCL]. He said that he hoped that United States
concerns would gradually disappear from the Gulf and that the whole area would fall
under British control" .37
As Bahrain also points out, the underlined text was later deleted and replaced with the following:
"if the [PCL] could secure the remainder of Bahrain, it might give them a better
chance in any renewal of negotiations to acquire the Standard of California's interests
in the Gulf, thus strengthening the British position in the area" .38
4.216 The change in the views of British officials in the Gulf on the ownership of the Hawar
islands between 1933 and 1936 as mentioned above, and the record of the inter-departmental
meeting on 9 July 1936 suggest that by that date at least some British officials were inclined to
believe that attributing the Hawar islands to the Ruler of Bahrain (even if only "provisionally")
would39elp to persuade him to grant the new concession over the "remainder of Bahrain" to
PCL . The possibility that such a belief existed is further strengthened by the fact that the so-
called "provisional" decision of 9 July 1936 that the Hawar islands were part of Bahrain was
immediately communicated to Belgrave at a meeting on 10 July 1936; and although he was also
told that an official ruling could only be given after ascertaining whether the Sheikh of Qatar had
a claim, Belgrave immediately stated tha40the Sheikh of Bahrain would enter the island in the list
of his possessions to be given to PCL . Bahrain further states that:
"... it was clear to all parties that the oil concession negotiations with the Ruler of
Bahrain were to proceed on the understanding that the Hawar Islands were included
within the territories of Bahrain" 41.
4.217 In response to the Skliros letter of 29 April 1936 (reproduced above), PCL was informed
of the "provisional" British decision in favour of Bahrain by the India Office on 14 July 1936.
However, from this time onwards, the British authorities not only permitted but even participated
in concession negotiations on the basis that the Hawar islands were part of "the unallotted area"
of Bahrain, i.e., without taking any steps (until much later) to finally determine this vital issue of
the territorial sovereignty over the Hawar islands.
4.218 Reporting on 17 July 1936 to the India Office on the progress of the negotiations, Belgrave
outlined the terms offered by each of the two companies and said (in the words of J.C. Walton of
the India Office) that both companies, in particular BAPCO, appeared to attach great value to the
oil prospects of the Hawar islands 42. The Ruler of Bahrain suggested soon thereafter that the
additional area might be divided between the two companies, with the area that included the
Hawar islands being offered to PCL, and the rest of Bahrain "proper" to BAPCO 4. Both the
companies found the idea of dividing the additional area unacceptable. BAPCO desired to obtain
a concession over the whole additional area, and clearly the real attraction for PCL (for which it
began to get support from the British officials) was to secure a concession not just over the
Hawar islands but over areas in Bahrain "proper" 44. After a meeting at the India Office, Longrigg
of PCL, in a letter of 11 September 1936, summarised the PCL objectives in the following
45
terms : "In the Bahrain group of islands, we intend to obtain a Concession for all the territory
(including territorial waters) not already leased to the Bahrain Oil Company..."
He went on to state (now without any protest):
"... The question of ownership of Hawar Island was referred by us to you, and you
have replied that it should be considered as Bahrain territory".
He further stated:
"The Company proposes to make Bahrain the administrative headquarters of its
activities, not only in that Island, but in the whole Persian Gulf area. It is therefore
shipping to Manama the necessary equipment for the drilling and geological parties
proposed... Mr. E.V. Packer, whose appointment as Company's Manager in that area th
you have already approved... will take up his residence at Manama on October 19 ..."
PCL was therefore assuming by September 1936 that not only were the Hawar islands to be
regarded as part of Bahrain, but also that it would secure the concession for the unallotted area as
a whole; and it was therefore already planning to make Bahrain the principal PCL base in the
Gulf region.
4.219 The pre-supposition that the Hawar islands were part of Bahrain's unallotted area had
further hardened into a working, and unchallenged, assumption by 1 October 1936. A record of a
meeting held in the India Office on that date, the record itself being dated 5 October 1936 , 46
indicates that Belgrave was to ascertain informally from PCL whether that company would be
interested in an oil concession limited to the Hawar islands only, or to the Hawar islands plus the
small islands in the immediate vicinity of the two main Bahrain islands. In other words, it was by
now taken for granted that it would be the Ruler of Bahrain who would be granting such a
concession. This meeting was attended not only by Belgrave, but also by Walton (India Office)
and Fowle, who was in London at the time.
4.220 It must be pointed out however that not every British official concerned regarded the
"allotment" of the Hawar islands to Bahrain with equanimity. Thus G.W. Rendel of the Foreign
Office recorded, well over a year after the 1936 "provisional" decision:
"... As regards the Hawar Islands at No. 17, I cannot help regretting that the India
Office went so far as they seem to have done in allotting these islands to Bahrein.
They are obviously, from the geographical point of view, a part of Qatar, and since
the Qatar oil concession is held by a British company, while the Bahrein concession
is held by a purely American company, I should have thought tha47interest, as well as
geography, ought to have led us to allocate them to Qatar" .
The Court will no doubt notice that even Rendel, though an opponent of the so-called
"provisional" decision, in December 1937 appeared to be assuming that the "allocation" of the
Hawar islands to Bahrain was final.
4.221 On 1 May 1937, the Ruler of Bahrain suspended negotiations for one year on the ground 48
that the question of Zubarah was occupying his attention to the exclusion of all other matters .
By the time the negotiations were resumed in 1938, PCL had given up the idea of applying for a
concession over the whole of the unallotted area in the light of the Ruler's known desire to divide
the area49. PCL therefore sought British approval to approach the Ruler of Bahrain for a
concession over two areas, one being a limited area on the Bahrain islands and the second which
50
included the Hawar islands group .
4.222 In April 1938, the Political Resident (Fowle) noted in a Memorandum that until the
unallotted area had come to the fore there had bee51no object in the British Government's giving
a definite decision on the ownership of Hawar . Now, however, that PCL wanted to commence
negotiations with the Ruler of Bahrain concerning this area in which Hawar was situated, theBritish Government would have to give a decision. Fowle recommended that the Ruler of Qatar
be informed that, in the light of these oil negotiations, the question of sovereignty of Hawar (and
Fasht Dibal) had now to be decided, and that he be asked for his views on this; but that he be
informed that "[o]n the evidence at present available to HMG these islands [sic] appear to belong
to the Sheikh of Bahrein". In the same Memorandum, Fowle also expressed the view:
"From the political point of view it will suit quite well if we give Hawar52o Bahrein,
as this will balance our previous decision of giving Zubara to Qatar" .
4.223 It is important to note that from the first half of 1938 onwards developments in
negotiations for a concession over the unallotted area proceeded in parallel with what Bahrain
refers to as the "arbitration" over the Hawar islands, leading to decisions on the two issues at
almost the same time,i.e. between April and July 1939. It will be recalled that two months
before Fowle's above memorandum of 5 April 1938 (i.e. in February 1938), the Ruler of Qatar
had already complained to the Political Agent (Weightman) orally about Bahrain's illegal
activities on Hawar and that in May 1938 he filed his formal written protest against these
activities .
4.224 In April 1938, Fowle also recommended at a meeting in London that the concession 54
negotiations be postponed until the ownership of Hawar and Dibal had been decided . Although
this was not in fact done, it is of interest to note the comments of PCL on the proposal for the
postponement. Qatar has already drawn attention to the cynical attitude of PCL which was now
55
being adopted . While PCL had initially supported the principle that its concession with the
Ruler of Qatar covered the Hawar islands as part of the Ruler's territories, it now retreated from
this position. At the London meeting, Longrigg of PCL stated that there was no need for a
postponement inasmuch as sovereignty over the "islands" in question (i.e., the Hawar group and
Fasht Dibal) did not concern the company; if, reasoned the company, the islands belonged to
Qatar, then they came within its Qatar concession; if, on the other hand, they belonged to
Bahrain, the company was merely running the risk of paying for the same thing twice, a risk it
was prepared to take 56.
4.225 PCL was thus prepared to take a calculated risk in allowing Hawar to be included among
the territories over which the Ruler of Bahrain was entitled to grant a concession, in the
expectation that this would secure for it additional territories on or around the Bahrain islands. It
would make no difference to PCL to which of the two Rulers it would have to pay royalties in
respect of any oil produced in Hawar, as long as PCL could secure a concession over some
additional territory from the Ruler of Bahrain. PCL was clearly prepared to take such a risk in
view of the support it expected to secure and did in fact secure from the British Government to
persuade the Ruler of Bahrain to grant it a concession over at least a part if not the whole of the
territory comprised in the Bahrain islands themselves.
4.226 Around the same period, a note made by Gibson of the India Office contains the following
significant indication of the thinking in the India Office:
"If a concession over Hawar were given to either Company it would probably be
necessary to give a ruling on the question of ownership; if it should be found that the
island belonged to Qatar it would presumably follow that it was already included in
the Petroleum Concessions Limited 57tar concession, but in our view it almost
certainly belonged to Bahrein" .
4.227 In two separate letters on 22 May 1938, Weightman forwarded to the Political Resident
and the Secretary of State for I58ia a description of the areas to be offered by the Ruler of
Bahrain to the two companies . The area for PCL clearly included the Hawar islands, although
two days earlier, i.e. on 20 May 1938, Weightman had written to the Ruler of Qatar inviting him
to state his case on the Hawar islands and to provide evidence of it as rapidly as possible 5. In
retrospect therefore, this letter to the Ruler of Qatar can hardly be said to be part of an unbiasedprocess of "arbitration", as Bahrain's ownership of Hawar was already being taken for granted in
complicated negotiations for an oil concession covering the unallotted area as a whole (including
the Hawar islands). This is confirmed by the fact that both the Political Resident as well as the
British Government (in the India Office, Foreign Office, Admiralty and Petroleum Department)
approved the Ruler's division of the unallotted area . 60
61
4.228 PCL was generally satisfied with the Ruler's scheme of division . But at this stage,
BAPCO, which already held a concession over a large part of Bahrain territory, delivered a
significant threat. It warned that if any part of the concession was offered to another company,
BAPCO's retort could be to slow down production on its existing Bahrain concession, resulting
62
in a reduction in the Ruler of Bahrain's royalties . The Ruler and his family were greatly
alarmed at this threat and showed a disposition to go back on the scheme that the Ruler of
Bahrain had proposed and communicated to BAPCO and PCL. BAPCO thereafter repeated its
threat of slowing down production, and made a new offer for a concession covering the whole
area under the dominion of the Ruler of Bahrain . The Ruler of Bahrain now indicated (on 9
June 1938) that he wished to abandon the original scheme and give the whole area, with the
exception of the Hawar islands, to BAPCO. In his letter, he stated:
"Our reason for making this decision is that we do not wish to endanger our revenue
from oil by causing the Bahrain Petroleum Company Limited to reduce its work in
Bahrain. We believe that this would result if Petroleum Concessions Limited were
allowed to introduce themselves into our territory, except at Hawar" . 64
4.229 In a letter of 10 June 1938, the Political Agent (Weightman) reported to the Political
Resident (Fowle) that the Al-Khalifah Sheikhs believed it was out of the question to resist the
threat made by BAPCO and that they confidently believed the British Government would
appreciate their position . Weightman noted that, in giving PCL even a concession covering
Hawar alone, the Ruler was to that extent ignoring BAPCO's threats, which were directed
towards obtaining the whole of the unallotted area without exception. However, he observed that
BAPCO had indicated in the past that it did not regard Hawar as likely to yield oil, and that the
Ruler of Bahrain and his family felt very definitely that the allocation of Hawar to BAPCO
would involve them in unending difficulties in the future. As to the latter, he elaborated as
follows:
"Indeed both Mr. Belgrave and I have little doubt, from remarks which His Highness
has passed, that he has some confused idea in his mind that the grant of a concession
for Hawar to the Bahrain Petroleum Company [BA66O] might result in the loss of
his sovereignty over that group of Islands" .
4.230 In another letter of 10 June 1938 to the Political Resident, Weightman noted that if
BAPCO's threat was carried out it would have devastating economic consequences for Bahrain
and that he did not consider that the British Government could advise the Ruler of Bahrain to
disregard it. He went on to state:
"No one can doubt that His Highness' original wish was to discharge some part of his
debt of gratitude to the British Government and to give proof of his loyalty by
offering a British Company (he is unaware of the cosmopolitan composition of
Petroleum Concessions Limited) a substantial part of his territories, while at the same
time `pleasing' the American Company which had succeeded, where an English
Company had failed, in providing him with great wealth. These admirable sentiments
must now yield to the knife which he and his family see at their throats" 67.
Despite the threat, however, Weightman thought that Hawar could still be hived off from the
unallotted area and given to PCL. As to this, he stated: "Hawar is a different matter. It seems impossible for the Al Khalifah to consider
Hawar without at the same time wondering how much they can annoy or perhaps
damage the Al Thani of Qatar. His Highness has this absurd conviction that, whatever
'the engineers' may say, there is oil in Hawar, and if the Company operating in Qatar
can produce oil from Hawar for Bahrain it will give him immense, if childish,
pleasure. He does not want to offer Hawar in any case to the Americans [BAPCO]...
and the present intention is that if an agreement cannot be reached with Petroleum
Concessions Limited then Hawar will remain outside any concession. At the same
time, the Shaikh seems to think that Petroleum Concessions Limited can work Hawar
alone without taking any oil found into Qatar. I have told him that this is quite
impossible, but so far he fails to face the fact..." .
4.231 The Court will not miss the significance of these observations which demonstrate that
quite apart from any prospect of finding oil in the Hawar islands and regardless of whether he
had any rights to them, an important motive for the Ruler of Bahrain to occupy the Hawar islands
in 1937 was his general dislike of the Al-Thani of Qatar and perhaps his desire to obtain revenge
for Qatar's action in 1937 in Zubarah.
4.232 In the hope of saving Hawar for PCL, Weightman went on to observe:
"... they [BAPCO] have protested on various occasions that Hawar is of no interest
from the point of view of producing oil; and there is moreover on record the definite
suggestion made by the Company's representative in London that Hawar should be
given to [Petroleum Concessions Limited]..." 69
4.233 The Political Resident concurred with Weightman. By letter dated 19 June 1938 to the
India Office, he recommended that the Government inform the Ruler of Bahrain that they did not
wish to interfere with his decision of 9 June 1938 (to open negotiations with PCL for the Hawar
Islands, and with BAPCO for the rest of the unallotted area). The loss to the Bahrain 70
Government if BAPCO were to carry out its threat, he stated, would "be ruinous to the State" .
Here, then, was Fowle now actively engaged in the process of securing the Hawar islands for
PCL from the Ruler of Bahrain. Yet, in parallel, in the course of what Bahrain refers to as an
"arbitration" (a term the British Government itself never used), on the very next day, 20 June
71
1938, he forwarded the Ruler of Qatar's "detailed claim" to the Secretary of State for India . It is
noteworthy that he proposed that this should be given to Bahrain, and Bahrain's "counter-claim"
obtained, but that at the same time he recommended that the Ruler of Qatar's request to see
Bahrain's "counter-claim" should be rejected 72.
4.234 At an inter-departmental meeting held at the India Office (where Belgrave was present), on
7 July 1938, it was decided to recommend that the Ruler of Bahrain postpone the concession
negotiations in the light of BAPCO's threat. Belgrave reported that the Ruler and his family were
in favour of closing with BAPCO but were prepared to give Hawar to PCL. There was no truth,
however, he asserted, "in the suggestion that the Sheikh was disposed to give Hawar to PCL
from a fear that if he did not 73G might be influenced to decide the question of the ownership
of Hawar in favour of Qatar" .
4.235 The Ruler of Bahrain was firmly opposed to postponement, and by October 1938 he even
changed his mind with regard to Hawar, advising the Political Agent (Weightman) that he no
longer wished to offer this area to PCL though he had not till then decided whether to exclude
the Hawar islands from the proposed new concession to BAPCO or to include them and mark
them as "closed to operations" 74.
4.236 In another letter of 18 October 1938, Weightman considered some of the political
considerations at play and stated: "The main and most important question, however, is that of our relations with
Bahrain. Is it sound, save for reasons of the most extraordinary urgency, to imperil
our friendship with the one loyal Sheikhdom in the Gulf? [i.e. by opposing the Ruler's
75
views]" .
4.237 The Political Resident (Fowle) considered that the Ruler of Bahrain's comments had much
weight. However, in a letter dated 3 November 1938 to the India Office, he expressed - for what
appears to be the first time - the view that the British Government should insist that a concession
over Hawar be granted to PCL because of its geographical proximity to Qatar:
"It will be seen that the Shaikh now does not even wish to give Hawar to Petroleum
Concessions Limited. I am not of opinion that we should accept this... Hawar
geographically is outside the Bahrain area and adjoining Qatar, where Petroleum
Concessions Limited already have a concession and in fairness therefore it should go
to them" .6
4.238 The Court will no doubt notice that Fowle was now giving reasons for his opinion which
were almost identical to those given by British officials in 1933 (and by G.W. Rendel of the
Foreign Office in 1937) in support of Qatar's title to the Hawar islands . He was doing so,
however, in support only of PCL's claim to a Bahraini concession covering the Hawar islands
and not Qatar's ownership of the Hawar islands! He advised, accordingly, that the British
Government should inform the Ruler that it agreed to his proposal, provided that Hawar was
allotted to PCL but not otherwise. The Court will also notice that Fowle was making this
recommendation at the point of time when under the agreed so-called "arbitration" procedure
Bahrain was still to submit its "counter-claim" (which it actually submitted on 22 December
1938) and yet F78le was assuming that Hawar was within the gift of the Ruler of Bahrain to
"give" to PCL .
4.239 It will be seen therefore that although at this time the so-called "arbitration" in respect of
sovereignty over Hawar was also proceeding apace, the attention of all concerned was on how to
get the Ruler of Bahrain to grant a concession over the Hawar islands to PCL. No one was even
thinking of the possibility of a decision in favour of Qatar on the question of sovereignty.
4.240 On 9 January 1939, PCL submitted a new offer and on the same day, the Political Resident
sent a telegram to the Secretary of State for India in which he renewed his earlier
recommendation that the Ruler should be informed of the British Government's desire that
Hawar be granted to PCL 79. Here again, Fowle's recommendation was being made on the basis
that Hawar was to be "given" by the Ruler of Bahrain when, in the so-called "arbitration",
Bahrain's "counter-claim" had been forwarded to the Ruler of Qatar, and his further comments
were awaited. The Secretary of State for India nevertheless also acted on Fowle's advice.
Responding to a query from the Ruler as to whether the British Government had any political
objection to his granting a concession to BAPCO extending "over our [Bahrain's] whole
80
territory" , he stated, in a telegram dated 14 January 1939, that:
"[The Ruler] may be assured that whatever conclusions he arrives at as a result of
negotiations this will not affect goodwill of His Majesty's Government. His Majesty's
Government think however that it may be convenient for His Highness at this stage of
negotiations to inform him of their views in regard to one portion of area namely the
Hawar islands. Owing to the contiguity of these islands to Qatar where an oil
concession is being operated by P.C.L. the grant of concessional rights to B.P.C. in
Hawar would be open to objection and His Majesty's Government consider that it
would be appropriate at least to allow P.C.L. the opportunity to acquire concessional
rights therein. His Highness should however be assured that in informing him of their
views in regard to grant of a concession in Hawar, His Majesty's Government are not
in any way prejudicing the question of sovereignty over Hawar islands. The choice of P.C.L. rather than B.P.C. as concessionaires could not affect adversely his claim to
81
the islands"
4.241 Here then was the Secretary of State himself directing that the Ruler of Bahrain be
informed that "the grant of concessional rights to B.P.C. [BAPCO] in Hawar would be open to
objection"; that PCL should at least be given the opportunity to acquire such concessional rights
in Hawar; but that the Ruler should be assured that the British Government was not in any way
"prejudicing the question of sovereignty over Hawar islands" (sic); and that "his choice of P.C.L.
rather than B.P.C. [BAPCO]... could not affect 'adversely' his claim to the [Hawar] Islands". The 82
Political Agent duly informed the Ruler of the British Government's views on 15 January 1939 .
4.242 Acting on the British Government's suggestion, the Ruler (through Belgrave) invited from
PCL an offer covering the Hawar islands alone, and enquired of BAPCO whether its offer f83 the
whole unallotted area would be affected if the Hawar islands were to be excluded . But
BAPCO, who had recently submitted a revised bid with improved financial terms , now 84
changed its view and delivered its second all-important threat, stating in effect that it must also
have Hawar. At a meeting held on 17 January 1939, BAPCO made it clear that it was not
interested in a part of the area but only in the whole, and stated that its offer would be withdrawn
if the area were to be divided . BAPCO's representative (F.A. Davies) said that he was
astounded at the request to know what offer the company was prepared to make for the
additional area, excluding the Hawar group, because:
"all through the present negotiations the whole of the area has been under discussion
86
and there had been no mention of excluding Hawar..." .
The Ruler and the others present agreed that this was the case. The Ruler went on, however, to
explain that he had merely excluded Hawar in order "to prevent complications and difficulties in
the future which might arise owing to the proximity of Hawar to the Petroleum Concession
Limited concession [in Qatar] 87". He tried to argue that "Hawar was a very small island and very
far away and its loss to the company would not cause them any material loss" . Replying to
this, Davies explained that the chief reason why his company were unwilling to bid for a divided
area was not because of the possible value of the area but because they did not want another
company to hold an oil concession anywhere within the Ruler's territory since they knew, from
past experience, that if two companies held a concession in so small a country it would cause
90
difficulties and misunderstandings which would damage BAPCO's position vis-à-vis the Ruler .
4.243 By a letter of 6 February 1939, signed by all the Bahrain Sheikhs, the Political Agent was
informed that BAPCO's offer for "the whole area, including Hawar" was financially more 91
advantageous for Bahrain than the alternative of dividing the concession area into two . Before
making a final decision, the Sheikhs therefore sought the advice of the British Government.
4.244 As Ba92ain itself has stated, this was the stage at which "Britain realised that its hands
were tied" .
4.245 Reporting to the Political Resident on 12 February 1939, the Political Agent (Weightman)
expressed the view that it was no longer possible for the British Government to press the Ruler
of Bahrain to grant Hawar to PCL as the net effect upon Bahrain of granting a concession to PCL
would be financially disastrous and was regarded by the Bahrain Sheikhs as an invitation to
93
bankruptcy . Here again, Weightman was assuming Bahrain's ownership of Hawar and making
his recommendation not to insist on the Ruler of Bahrain granting a concession in respect of
Hawar to PCL while the Ruler of Qatar's comments on Bahrain's "counter-claim" in the so-called
"arbitration" were still awaited. Summing up the probable consequences if the British
Government were to insist on the Bahrain Government granting Hawar to PCL, he stated:
"... the essence of the existing situation is that the Bahrain Petroleum Company's offer
is made dependent on their obtaining the entire Unallotted Area. This being the case, and since the details of the present negotiations must inevitably become public
property, it is scarcely too much to say that the grant of a concession for Hawar to
Petroleum Concessions Limited under the advice of His Majesty's Government will
be as disastrous to the prestige and position of His Majesty's Government in Bahrain
and in this part of the Gulf generally as to the Shaikh and his administration... [I]t
requires little imagination therefore to realise the devastating effect of the almost
inevitable comment, if His Majesty's Government insist on Hawar going to Petroleum
Concessions Limited - 'the British have served their own interests at the cost of 1 ½
million pounds to the Shaikh of Bahrain'. The effect of hostile propaga94a, overt and
covert, which might be based on such a statement is incalculable..."
and:
"...for the reasons which I have stated above it is no longer possible, without incurring
the gravest risk to the prosperity of Bahrain and, in direct consequence, to the future
good relations between His Majesty's Governme95 and the Bahrain Shaikhs, to exert
pressure to obtain Hawar for them [PCL]" .
Weightman went on to suggest that there was only one alternative to approving the grant of an
unrestricted concession to BAPCO; namely, while allowing BAPCO to obtain a concession for
the whole unallotted area, to insist that no operations should be conducted in Hawar until such
time as the Ruler, acting on the advice of the British Government, might pronounce them
unobjectionable. Weightman concluded:
"It is distasteful to be compelled to recommend the withdrawal of the support hitherto
afforded to a partially British Company in its attempts to obtain a footing in Bahrain.
Nevertheless it seems inevitable to me that commercial advantages must yield to the
over-riding interests of His Majesty's Government and of the Bahrain State" . 96
The Court will note that nowhere in this important letter is any reference made to the possibility
that the Hawar islands might be regarded as appertaining to Qatar.
4.246 The Political Resident (Fowle), in a letter of 14 February 1939 to the Secretary of State for
India, agreed generally with Weightman's views, asserting that "it seems to me definitely that the
only course open to His Majesty's Government is to permit the Shaikh [of Bahrain] to include
Hawar in the Bahrain Petroleum Company's concession" 97. He disagreed, however, with
Weightman's suggestion that BAPCO should not work Hawar, since he considered that:
"it would be difficult to give adequate reasons to the Shaikh or the Bahrain Petroleum
Company why, having obtained Hawar in their concession, they should not work
98
it" .
4.247 It will be seen therefore that in February 1939, while supposedly conducting an
"arbitration" in respect of the ownership of the Hawar islands and two months before they were
to assess the evidence and make their recommendations on the issue, both the officials (the
Political Agent, Weightman and the Political Resident, Fowle) were unreservedly and
unequivocally acting on the basis that the Hawar islands belonged to Bahrain. Fowle was
formally stating to the Secretary of State for India that (apart from the embarrassment to the
British Government) it would not be possible to give a valid explanation to BAPCO for
preventing th99company from working Hawar once they had "obtained Hawar in their
concession" .
4.248 Bahrain contends however that one avenue still remained open, because as yet no formal
decision had been issued as to which of the two Rulers possessed sovereignty over the Hawar
islands; and that even at this stage, the British Government could have decided in Qatar's favour
and saved the Hawar islands for PCL but that it was unable to do so because the evidence
available supported Bahrain's ownership over the Hawar islands 10. However, the sequence ofevents described above clearly shows that after the view that the Hawar islands were part of
Qatar, which had been clearly held by the British until at least 1933/1934, had been reversed by
the British "provisional" decision of 9 July 1936, the Hawar islands became something in the
nature of a bait which could be held out to Bahrain so as to secure the Ruler's agreement to the
grant of a concession over the unallotted area as a whole (which included considerable areas in
Bahrain itself) to PCL. Consequently, from 1936 to the first quarter of 1939, complicated and
elaborate negotiations (or manoeuvres?) took place in which British Ministers and officials in
London and the Gulf actively participated and during which it was simply taken for granted at all
material times that Bahrain's unallotted area included the Hawar islands and that it was for the
Ruler of Bahrain to grant a concession over it. By the time BAPCO finally made its threat and
notified its firm refusal to allow Hawar to be excluded, it was clearly too late for the British
authorities then to try and retrieve the position by reversing the "provisional" decision of July
1936 and holding that there was evidence to justify that the Hawar islands belonged to Qatar!
Any such decision would clearly have had the same consequence as described in Weightman's
letter of 12 February 1939, i.e., the devastating effect of the almost inevitable comment that the
British had served their own interests "at the cost of... the Shaikh of Bahrain [sic]" and the fact
that this would have been "disastrous to the pre101ge and position of His Majesty's Government in
Bahrain and in this part of the Gulf generally" . Further, as Fowle pointed out in February
1939, once BAPCO had "obtained" Hawar in its concession from the Ruler of Bahrain, it would
be impossible to prevent it from working it.
4.249 Accordingly, well before 22 April 1939, when Weightman engaged in what, in retrospect,
appears to have been the farcical exerc102 of analysing the evidence on whether the Hawar
islands belonged to Bahrain or Qatar , there was already a firm pre-judgment that the islands
belonged to Bahrain, or, to use Bahrain's terminology, "Britain's hands were already tied". There
was accordingly never any question of Weightman, Fowle or the British officials in London
rendering an objective decision in what Bahrain persists in calling an "arbitration". There was
therefore no legal basis for the "decision" of 11 July 1939. Qatar has already shown there was no
evidence to support the reversal in 1936 of the earlier British view that Hawar was part of Qatar.
The provisional British decision of July 1936 and the final decision of 11 July 1939 were both
therefore clearly vitiated by bias and pre-judgment as well as the other defects to which Qatar
has drawn attention in its previous written pleadings.
4.250 There is one final mystery in all this. The British Government were well aware (and had
indeed been aware since they made their provisional decision in favour of Bahrain in July 1936)
that they would eventually have to undertake the task of determining whether the Hawar islands
appertained to Qatar or to Bahrain. This would have to be done before any oil concession
covering the Hawar islands could be granted, since only the Ruler of the sheikhdom having
sovereignty over these islands could grant such a concession. Despite this, the British
Government and its representatives in the Gulf encouraged the competing oil companies (PCL
and BAPCO) to make bids for the so-called "additional area" (including the Hawar islands) to
the Ruler of Bahrain, thereby assuming that the Ruler of Bahrain alone was entitled to grant an
oil concession covering the Hawar islands. Thus, PCL (Qatar's concessionaire) had already
entered into direct negotiations with the Ruler of Bahrain in the spring of 1936 with a view to
offering terms for a new concession covering the "additional area". After the British Government
had made their "provisional decision" in favour of Bahrain in July 1936, the British
representatives in the Gulf (both the Political Resident and the Political Agent in Bahrain) were
quite content to see competition between the oil companies as regards payments to be made to
the Ruler of Bahrain under a new concession covering the "additional area" as a whole or
(preferably) under two concessions, one covering Hawar (to go to PCL) and the other covering
the remainder of the so-called "additional area". It is indeed apparent that the events following
the making of the "provisional decision" in favour of Bahrain in July 1936 operated for all
practical purposes to convert that "provisional decision" into a definitive decision withimmediate effect. There is certainly ample evidence that Fowle and other officials in London
acted on that basis long before 11 July 1939 103. It is indeed noteworthy that, as late as 30 June
1939, PCL, in a final and cynical volte face, sent a letter to the Under Secretary of State for India
drawing attention to this development. That letter states inter alia:
"In spite, however, of the provisional, or limited, nature of the ruling under
reference 104, it appears that the Hawar group have subsequently come to be treated as
de facto Bahrain territory; so much so, that both this Company and another have been
encouraged to m105 offers to the Shaikh of Bahrain for a concession to include the
Hawar group" .
The letter concludes by stating in its final paragraph that:
"... the original negotiator of the Qatar Concession in 1935, Mr. C.C. Mylles, was and
remained under the impression that Hawar formed part of the Concession area... Our
information from Bahrain is to the effect that representatives of that Government are
mapping reefs, etc. in waters immediately adjacent to the Qatar Peninsula and which
would appear, under any but altogether exceptional circumstances, to belong to the
Ruler of Qatar. The fact that the latter has no British adviser and no Political Agent
seems to create a certain danger that the Bahrain State - between which and himself
very bad relations exist at present - may be encroaching at his expense: which, in the
present case, would also be the expense of the Company".
Qatar has been unable to trace a reply to this letter.
Section 6. Events leading up to and following the British Decision of 1939 on the Hawar
Islands
A. Further evidence of bias against Qatar on the part of certain British officials in the Gulf
in the matter of the conflicting claims to the Hawar islands, and of pre-judgment in favour
of the Bahraini claim
1. Bias
4.251 Evidence of the bias of Weightman and Fowle in favour of Bahrain and against Qatar in
the matter of the dispute over the Hawar islands is spread throughout the voluminous official
records in the British archives of the time. Attention has been drawn to a number of instances of
106
such bias in Section 5 above and also in Qatar's previous written pleadings . So far as
Weightman is concerned, the most blatant (and indeed alarming) example of his general anti-
Qatar bias is to be found in the letter covering the Packer Report of 5 December 1939, which he
sent to the Political Resident (Prior) on that date. In that letter, Weightman is seen to be
contemplating with equanimity (if not approval) the eventual assassination of the heir-apparent
to the then Ruler of Qatar:
"But when he [the then Ruler of Qatar] dies and Shaikh Hamad comes into power I
should anticipate a rapid acceleration of the tempo of agitation. I doubt very much if
there will be any armed rising, for the Ruling Family have the best arms by a long
way. But I should certainly anticipate a murder and quite candidly I think it would be
to Qatar's advantage in the long run if Shaikh Hamad bin Abdulla passed out. We
have of course recognised him as heir-apparent but that does not involve us in
protecting him from assassins, fortunately" 107.
The writer of this extraordinary letter was of course the central figure in the decision-making
process as regards the Hawar islands completed less than six months previously. There can
surely be no more compelling proof of his general bias against Qatar (and in favour of Bahrain)
in the matter of the Hawar islands so eloquently reflected in a number of his interventions in the
decision-making process (if indeed it can be called that). Weightman's bias in this matter alsomanifested itself in some serious instances of pre-judgment of the issue; the more significant
examples of these will be taken up under the "pre-judgment" heading.
4.252 Fowle's bias against Qatar in the matter of the Hawar islands was not so pronounced as
Weightman's; but it existed nonetheless. It is demonstrated by his failure to inform the Ruler of
Qatar of the formal Bahraini claim to Hawar lodged in 1936, and of the subsequent "provisional
decision" by the British Government in favour of the Bahraini claim. Nor can it be plausibly
objected that Fowle was unaware that the Ruler of Qatar had a claim to the Hawar islands. His
letter of 25 May 1936 to the Secretary of State for India acknowledges the existence of a dispute
between the two sheikhdoms by shifting the burden of proof on to the Ruler of Qatar,
notwithstanding that at least half of the land area of the main Hawar island and the totality of the
land area of a number of other islands in the Hawar group lay within a three-mile limit drawn
from the mainland of Qatar:
"... I incline to the view that Hawar should be regarded as belonging to the Shaikh 108
Bahrain and that the burden of disproving his claim lies on the Shaikh of Qatar" .
It may be objected that, at the time, Fowle was unaware of the geographical position of the
Hawar islands in relation to the mainland of Qatar. All the more reason, then, for his informing
himself more fully of the facts before committing himself to a viewpoint which was unsupported
by the evidence available to him, had that evidence been subjected to serious scrutiny. To be fair
to Fowle, it was he who recommended in the procedural proposals which he put forward on 5
April 1938 that a second letter be sent to the Ruler of Bahrain asking him to postpone
negotiations with the oil companies concerned until the ownership of Hawar and Fasht Dibal had
been decided. But this proposal was strongly opposed by PCL and seems subsequently to have
been quietly dropped. Again, as with Weightman, Fowle's general bias in favour of Bahrain and
against Qatar in the matter of the Hawar islands can be seen in a glaring instance of pre-
judgment.
2. Pre-judgment
(a) Fowle
4.253 As Political Resident in the Gulf during the period leading up to the making of the British
decision of 11 July 1939. Fowle bears a heavy responsibility for the injustice. He shared with
other British officials a general mistrust of the Ruler of Qatar, of the heir-apparent and of their
close advisers; and, to the extent that he had any knowledge of conditions in Qatar at the time, he
no doubt viewed the sheikhdom as a poverty-stricken and barren wasteland in comparison with
Bahrain. More than sixty years on, it is no doubt easier to see where matters began to go wrong.
In Qatar's submission, the fundamental error was to assume that the negotiations with the
competing oil companies (PCL and BAPCO) over a concession covering the so-called
"additional area" of Bahrain (which would include the Hawar islands) could be carried forward
and indeed virtually completed before a decision was taken on whether the Hawar islands
belonged to Bahrain or to Qatar; and it is to Fowle's credit that he initially recommended that
these negotiations be postponed pending a formal decision on the ownership of the Hawar
islands and Fasht Dibal. The oil concession negotiations should not have been continued on the
assumption that the "additional area" of Bahrain included the Hawar islands, at least until title to
those islands had been definitively determined. As has been fully demonstrated in Section 5
above, to proceed otherwise was in effect to treat the "provisional decision" in favour of Bahrain,
arrived at with only the most perfunctory consideration, as the final decision. This would
explain, even if it does not excuse, the instances of pre-judgment by Fowle. The most glaring
example of pre-judgment by F109e is to be found in his letter of 3 November 1938, to the
Secretary of State for India . The whole of that letter (written more than eight months before
the British decision of 11 July 1939) assumes that the grant of an oil concession covering the so-
called Bahrain "additional area", which would include the Hawar islands, is in the gift of theRuler of Bahrain. A postponement of the oil concession negotiations would be wholly
unacceptable to the Ruler who would "certainly feel that his interests and those of his State have
been sacrificed". Furthermore, "the knowledge that His Majesty's Government had prevented the
Bahrain State from increasing its income considerably would naturally have a deplorable effect
not only locally but in the neighbouring Arab countries". All this is but a prelude to what
follows. The British authorities had thought that they had persuaded the Ruler of Bahrain to
divide the "additional area" into two, so that PCL would be given a concession covering the
Hawar islands, the remainder of the "additional area" being given to BAPCO. However, as
Fowle now reports:
"It will be seen that the Shaikh [of Bahrain] now does not even wish to give Hawar to
Petroleum Concessions Limited. I am not of opinion that we should accept this ...
Hawar geographically is outside the Bahrain area and adjoining Qatar, where
Petroleum Concession110imited already have a concession and in fairness therefore it
should go to them" .
Here is a most glaring instance of pre-judgment, since Fowle is assuming, more than eight
months prior to the British decision of 11 July 1939, that the grant of an oil concession covering
Hawar is within the gift of the Ruler of Bahrain. It is perhaps not altogether surprising that Fowle
should have taken this position which was broadly shared by the competent British officials in
the Gulf and in London, and also by the oil companies concerned. The confusion stemmed of
course from the initial presupposition that Hawar was (or at any rate should be) within the gift of
the Ruler of Bahrain in the context of an oil concession (or concessions) covering the "additional
area". It will be seen that this pre-supposition had already hardened into a working, and
unchallenged, assumption as early as 1 October 1936. A record of a meeting held in the India
Office on that date, the record itself being dated 5 October 1936 111indicates that Belgrave was to
ascertain informally from PCL whether that company would be interested in an oil concession
limited to the Hawar Islands only, or to the Hawar islands plus the small islands in the immediate
vicinity of the two main Bahrain islands. This clearly presupposes that it would be the Ruler of
Bahrain who would be granting such a concession. So here is, in all probability, the first instance
of pre-judgment of the issue. This meeting was attended not only by Belgrave, but also by
Walton (India Office) and Fowle, who was in London at the time.
(b) Weightman
4.254 Qatar has already given a blatant example of pre-judgment by Weightman in the early
months of 1939. His letter to Fowle of 12 February 1939 sought to weigh up the financial and
other advantages a112disadvantages of the respective bids put in by BAPCO and PCL for the
"additional area" . The BAPCO bid was for the "additional area" as a whole (including the
Hawar islands); the PCL bid was for a concession covering only the Hawar islands and their
territorial waters. As pointed out in paragraph 3.161 of the Qatar Counter-Memorial, there are
two passages in that letter which provide clear evidence of pre-judgment. The first is in
paragraph 8(b), where Weightman expresses the view that "... there can be little genuine doubt
that sovereignty [over Hawar] rests with Bahrain". The second is in paragraph 9(b) where
Weightman states: "When once His Majesty's Government award Hawar to Bahrain...".
(c) British officials in London
4.255 But it was not only Fowle and Weightman in the Gulf who pre-judged the outcome of the
decision-making process (if in fact it can be called that) set in train on 20 May 1938, when the
Ruler of Qatar was formally invited to present his evidence in support of his sovereignty over the
Hawar islands "at the earliest possible moment". It was also officials in the India Office in
London.
4.256 In addition to the pre-judgment by Walton (India Office), already discussed above 113,
Gibson (India Office) was equally guilty of pre-judgment of the final outcome. In a note dated 14July 1938, he comments on the Foreign Office suggestion that the Ruler of Qatar be given an
opportunity to respond to the Bahrain claim and states:
114
"The suggested postponement of the Bahrein Unallotted Area negotiations would
remove any element of urgency from the question of deciding the ownership of the
Hawar Islands, and since the issue will almost certainly be decided in favour of
Bahrein it would be as well to leave the S115kh of Qatar with no feeling of grievance
that his case had not been fully heard..."
4.257 Gibson seems also to have prepared the draft letter from Peel (India Office) to Bagallay of
6 July 1938, which advances a pure pre-judgment argument to deny to the Ruler of Qatar an
opportunity to comment on the Bahrain case:
"We are inclined to think that for practical reasons there would be no advantage in
inviting the Shaikh of Qatar's observations on the Bahrein case116ince it is pretty clear
that he has no evidence to bring forward in his own support" .
4.258 When it is recalled that as recently as 1933 numerous British officials in London,
including Laithwaite (India Office) and Rendel (Foreign Office), were clearly of the view that
the Hawar islands appertained to Qatar, evidence of both bias and pre-judgment of the issues by
other British officials in the Gulf and in London between 1936 and 1939 is striking.
4.259 The question may of course be asked: Why did Britain favour Bahrain so noticeably over
the issue of Hawar at this time? There is evidence to suggest that it may have included some, if
not all, of the following elements:
a) Having regard to the "provisional decision" of 1936, British officials in the Gulf and in
London, in pursuit of their overall petroleum policy, were anxious to secure for PCL a
concession covering the "unallotted areas", but, as a minimum, a concession covering the Hawar
islands only.
b) Both the Political Agents (Loch and Weightman), together with Fowle, were largely ignorant
of the geography (both physical and human) of Qatar in the 1930s.
c) The lack of any resident British political representative in Qatar at the time meant that this
ignorance could not be easily dispelled.
d) The Political Agent, being resident in Bahrain but being required also to follow events in
117
Qatar, was exposed to a constant barrage of anti-Qatar propaganda by the Al-Khalifah sheikhs.
e) The Ruler of Bahrain was constantly complaining to Belgrave and indeed to the Political
Agent about the meagre payments made to him by the oil companies during the 1930s, and
would clearly benefit financially from the grant of a new oil concession which would include
Hawar.
f) Some British officials (for example, Hemingway of the India Office) believed that a British
decision in favour of the Ruler of Bahrain's claim to Hawar would afford "an opportunity to 118
mollify any resentment which he may feel at our treatment of the Zubara question in 1937" ; in
other words, a decision in favour of Bahrain on Hawar would or could compensate for Britain's
lack of support for Bahrain over Zubarah.
4.260 There is ample documentary evidence to support point (e). Among that evidence is an
official Government of Bahrain publication entitled Administrative Report for the Years 1926-
1937 119. This is prefaced by a foreword entitled "General Review" written by Belgrave himself
and dated December 1937. Included in this foreword is a very brief account of the financial
turbulence which so afflicted Bahrain during this period:
"During the period under review the State has suffered violent financial fluctuations;
first comfortable prosperity based on the pearl trade, then severe financial depression
resulting in drastic curtailment of all activity and expansion, then recovery and a sudden tremendous increase in revenue which, in my opinion, would have been more
advantageous if it had come gradually" 12.
4.261 More detail is given in the section of the Administrative Report devoted to finance:
"In 1348 (June 1929 - May 1930) there was an alarming fall in the revenue due to the
slump in the pearl trade which was owing to general financial depression in Europe,
and especially the increasing competition of cultured pearls which were produced in
Japan. From then, until money began to pour in from oil, the income of the State
decreased rapidly, and the financial future of the State caused the gravest anxiety to
those who controlled its finances...
The most acute years of the crisis in Bahrain were 1351 and 1352 (May 1932 - April
1933 and April 1933 - April 1934). In these years, the revenue shrunk to Rs
6,84,000/- and Rs 7,26,000/-. In 1353 (April 1934 - April 1935), the Bahrain
Government sold to the British Government three large areas on Muharraq island and
Manamah, from which the net profit to this Government was just over one lac.
Although this sum was not normal revenue, it was included in the revenue of the year
and it enabled me to balance the Budget" 12.
4.262 One can in fact have a good deal of sympathy for Belgrave, whose primary duty was to
rationalise the finances of Bahrain. In this context, he was confronted with the collapse of the
pearl trade, combined with a world-wide depression. In addition, his diaries show that during the
period from 1927 to 1935, he was regularly being pressed by the Ruler of Bahrain and other
importunate members of the ruling family to increase substantially the payments made to them
out of the Civil List122. It can be seen from these diary entries how concerned Belgrave was
about the profligacy of certain members of the ruling family. For Belgrave, therefore, the
prospect of securing for Bahrain an additional source of oil revenues through the grant of a new
concession or concessions covering the so-called unallotted area was an alluring one, particularly
if the unallotted area was to include the Hawar islands - an area in which the oil companies were
known to be interested at this time. Qatar is not suggesting that this was the only factor which
motivated Bahrain to put forward its formal claim to the Hawar islands on 28 April 1936; but it
clearly provided an important and indeed powerful incentive to Bahrain to seek to ensure that the
Hawar islands were included in Bahrain's so-called unallotted area. Belgrave's diary entry for 12
November 1935 demonstrates the seductive allure of a substantial increase in Bahrain's oil
revenues ("... He [Skinner] said that I would be absolutely safe in assuming a revenue from oil
[in 1936] of 40 lacs, i.e. £300,000 but it might go up to £600,000, our present revenue is only
£60,000 so it's a tremendous increase...") - and this without taking into account any additional
revenues which might accrue from a new concession covering the so-called unallotted area
which would, in Bahrain's perception, include the Hawar islands. It requires no great effort of
imagination to assume that the prospect of securing new sources of revenue from a concession
which would cover inter alia the Hawar islands was a prime motive for the formal claim to the
islands submitted by Belgrave to the Political Agent on 28 April 1936.
B. Qatar has never alleged any "conspiracy" between Britain and Bahrain
4.263 The Court will recall that Qatar's position has always been that the prior consent in writing
of the Rulers of Bahrain and Qatar (which was not given) would have been required in 1939 if
the British Government was to be empowered to give a binding decision on which of the two
sheikhdoms had sovereignty over the Hawar islands; and that, even if it could be established that
Qatar had given its prior consent to the making of such a decision, the procedure followed by the
British Government in 1938/39 was so defective, the evidence on which the British Government
based that decision was so fragmentary and so uncertain, and the conduct of the British
Government in pursuing its investigation of the respective claims of title was so clearly affected
by continuing and persistent evidence of bias and prejudgment on the part of key Britishofficials, that the "decision" of 11 July 1939 (if it can in truth be called a "decision") was vitiated
on a number of grounds, including error, and cannot be permitted to stand 123. Indeed, there is a
question as to whether the view expressed by the British Government on 11 July 1939 can be
accounted a decision at all, given the clear evidence now assembled in Section 5 of this Chapter
of the determination of the British authorities in the Gulf, in the pursuit of British oil and other
interests, to "award" the Hawar islands to Bahrain, a determination which is itself sufficient to
deprive the so-called "decision" of any authority whatsoever.
4.264 Qatar strenuously denies that it has ever alleged a "conspiracy" between Britain and
Bahrain to dispossess Qatar of the Hawar islands. The charges made by Bahrain in paragraph
376 of the Bahrain Counter-Memorial are accordingly as malicious as they are grossly
exaggerated.
4.265 In this context, it is necessary to distinguish between what Qatar is no longer alleging, and
what it continues to allege on the basis of documents other than those which it has now stated it
will disregard. Qatar is still far from satisfied with the authenticity of the petition enclosed with
Belgrave's letter to the Political Agent of 22 December 1938/3 January 1939 (the so-called
Bahraini "counter-claim"). The Court will recall124at, in the section of the Packer Report of 5
December 1939 devoted to the Hawar islands , the following is stated:
"Bahrain have been 'in possession' of the main Hawar Island for some time & in a
position to annex & mark anything they pleased within reach of their fort.
It is not known on what authority or documents the annexations have been made,
certainly the document held by one Mohd. bin Ahmad bin Shahin Dausari given him
by Shaikh Isa of Bahrain has been in all probability considerably exceeded, as only
125
nine names were quoted by him" .
4.266 This citation provokes a whole series of questions. As we know, the Sheikh Isa of Bahrain
to whom reference is being made died in early December 1932. So the "document" held by
Mohd. bin Ahmad bin Shahin Dausari must have been prepared before December 1932. It seems
highly likely, by virtue of the content of the Packer Report of 5 December 1939, that this
document was the "spontaneous" petition annexed by Belgrave to the Bahraini "counter-claim"
of 22 December 1938/3 January 1939 12. That "spontaneous" petition was subscribed to by 19
(and not nine) persons. The most plausible explanation of this somewhat ungrammatical passage
(it is not clear whether it was Mohd. Bin Ahmad bin Shahin Dausari or Sheikh Isa who "quoted"
the nine names) is that Sheikh Isa had (no doubt in return for some pecuniary or other reward)
required Mohd. bin Ahmad bin Shahin Dausari to procure additional signatures or thumb
impressions for this "spontaneous" petition; unfortunately, Mohd. bin Ahmad bin Shahin Dausari
had procured too many. Qatar submits accordingly that no credence can be attached to this
"spontaneous" petition annexed to Bahrain's counter-claim of 22 December 1938/3 January,
1939, not because of any evidence which Qatar has pledged itself to disregard, but rather because
of the evidence in the Packer Report. After all, the Packer Report was submitted in evidence by
Bahrain itself, and Packer was a pretty reliable informant of Weightman's.
4.267 Bahrain also accuses Qatar of having directly impugned Fowle (Political Resident from
1932 to 1939) in its all127d "conspiracy", citing four paragraphs from the Qatar Memorial to
sustain this accusation . But if one looks at the references given in footnote 499 to paragraph
378 of the Bahrain Counter-Memorial, it will be seen that there is no substance in this charge.
Paragraph 6.35 of the Qatar Memorial barely mentions Fowle, but rather concentrates on Loch's
immediate reaction to the Bahraini formal claim to the Hawar islands lodged on 28 April 1936.
Paragraph 6.37 of the Qatar Memorial does mention Fowle, but its content is purely factual and
has not been denied by Bahrain. Paragraph 6.116 of the Qatar Memorial does mention Fowle and
Weightman's partiality for Bahrain on the issue of title to the Hawar islands, but this is simply in
the context of differentiating the position as regards bias and pre-judgment in this case from thatfound to exist in the Dubai/Sharjah Border arbitration. Finally, paragraph 6.163 of the Qatar
Memorial provides no support for the Bahraini accusation; it is simply summing up the Qatar
arguments underpinning the complaint that the Bahraini arguments adduced in their preliminary
statement of 29 May 1938 were never subjected to critical scrutiny. Qatar sticks by what it states
in paragraph 6.163 of the Qatar Memorial, and certainly does not regard that paragraph as
impugning Fowle in Bahrain's fantasy of a vast conspiracy between Britain and Bahrain to
dispossess Qatar of the Hawar islands.
4.268 By the same token, the paragraphs of the Qatar Memorial cited in footnote 500 to
paragraph 378 of the Bahrain Counter-Memorial do not, notwithstanding the Bahraini
allegations, impugn Loch in Bahrain's fanciful "conspiracy" theory. Certainly, paragraphs 6.35
and 6.37 of the Qatar Memorial do not, being entirely fair and justified comment on a letter
whose authenticity is not in doubt.
4.269 Similarly, Qatar has never alleged that Weightman was a participant in a massive
"conspiracy" to deprive Qatar of its sovereignty over the Hawar islands. What Qatar has alleged
(and continues to allege) is that Weightman was biased against Qatar in the context of the dispute
over the Hawar islands; and that, as the Political Agent, the British official in the Gulf entrusted
with the task of making an objective assessment of the merits of the respective claims of Qatar
and Bahrain to the Hawar islands, Weightman pre-judged the decision which had to be taken by
his superiors by assuming, well before the eventual decision 128en on the basis of his analysis of
the facts, that that decision would be in favour of Bahrain .
4.270 Qatar reiterates that it has never alleged any "conspiracy" between Britain and Bahrain.
The paragraphs in the Qatar Memorial which are invoked in paragraph 379 of the Bahrain
Counter-Memorial to support the Bahraini charge that Qatar seeks to implicate Britain directly in
Bahrain's "fictitious" conspiracy no less than 12 times are, in any event, those paragraphs which
draw on documents which Qatar has now pledged itself to disregard.
4.271 Qatar is in no sense withdrawing its charges against Weightman and, to a lesser extent,
Fowle, of bias in favour of Bahrain, and against Qatar, in the matter of the dispute over title to
the Hawar islands, nor its charges against Weightman, Fowle and certain British officials in
London of pre-judgment of this issue. However, Qatar would wish to emphasize yet again that
these are charges against named individuals, based on incontestable evidence in the British
archives; they are not charges that the British Government as such, or the Government of India at
the time, engaged or in any way participated in a conspiracy to dispossess Qatar of its title to the
Hawar islands. This evidence has been invoked simply to demonstrate that the British decision of
11 July 1939, attributing the Hawar islands to Bahrain, is vitiated on a number of grounds.
4.272 Belgrave was not of course a British official in the Gulf at the relevant time. He had been
appointed financial adviser to the Government of Bahrain in 1926 and remained in Bahrain until
well after the Second World War. As has already been noted, he rapidly gained the confidence of
the then Ruler of Bahrain and was saddled with other important responsibilities such as acting
for Bahrain in contacts and negotiations with those oil companies interested in exploring and
exploiting Bahrain's petroleum resources, whether on-shore or off-shore. He thus became
intimately involved, but as a Bahraini rather than a British official, in Bahrain's efforts to acquire
the Hawar islands in the 1930s.
4.273 Mention has already been made in the Qatar Memorial of the close relations between
Belgrave and Weightman during the latter's term of office as Political Agent from October 1937
129
to October 1940 . There is not much to add from the additional Belgrave diary entries which
Qatar has now been able to consult, particularly since there do not appear to be any Belgrave
diaries covering the year 1937 (a crucial year in the history of this dispute), and the diary entries
for 1938 are short and sporadic, and cover only the first five months of the year. The followingentries in the Belgrave diaries do however shed some additional light on the relationship between
Belgrave and Weightman:
5 February 1939 : "... At the fort in afternoon & then Weightman came over &
discussed oil - as usual..."
7 August 1939: "... Shs A & S [Abdulla and Sulman] came in & stayed some time,
discussed HH [Ruler] in India, got a letter from HW [Weightman]..."
5 September 1939 : "Out at the camp all morning with HW..."
26 September 1939: "... Dinner with HH [Ruler] at the Palace, quite a pleasant affair,
then to GPs [Geoffrey Prior's] house for drinks. A somewhat chilly atmosphere, he and
HW [Weightman] don't hit it off - both having made up their minds to dislike each other
before they met".
19 October 1939: "... I went out with HW in evening to dinner with Phillips and then
to the cinema..."
4 June 1940: "HW and I drove out to see HH, also present Shs A & S. Discussed
additional area oil concession and the agreement between Brit Govt & Coy..."
4.274 The pen portraits of key officials in the Gulf which Belgrave drew in the 1920s and the
1930s are illuminating. Belgrave's opinion of Prior in his earlier incarnation as Political Agent
between 1929 and 1932 is, perhaps surprisingly in the light of later developments, favourable;
but he is critical of Loch's performance, while acknowledging that some of the problem may be
attributable to Loch's deafness. On balance, he rates Fowle highly, although complaining of his
off-handedness. The additional entries concerning Weightman cited above confirm the strength
of the bond between Belgrave and Weightman. It is unfortunate to say the least, that there appear
to be no entries in the copies of the Belgrave diaries housed in the Gulf Documentation Unit of
the University of Exeter or deposited with the Court for certain key periods during the 1930s. It
is of course understandable that there should be no diary entries for the months June to
December 1938, when Belgrave was on leave in England. But it is surprising that there appear to
be no entries for:
(a) most of May 1936 (last entry, 12 May) and the remainder of 1936; and
(b) the whole of 1937.
4.275 In this context, the Court will wish to be aware that, on 15 December 1998, a letter was
addressed by the law firm acting for Qatar to Messrs. Wiltshires (the firm of solicitors which,
according to Qatar's state of knowledge, acts for Mrs. Sarah Belgrave-Lock, the possessor until
recently of the Belgrave diaries) enquiring about Volume 17 of the diaries covering the period
from 13 May 1936 to 13 January 1938, which is missing from the collection of the diaries 130
deposited with the Court. A reminder was sent to Messrs. Wiltshires on 2 February 1999 . No
reply has yet been received to those communications.
C. Prior's and Alban's criticisms of the 1939 decision
4.276 Bahrain's attempt to discredit the views of Prior and Alban on the 1939 decision is wholly
unconvincing. In the Bahrain Counter-Memorial it is argued that Prior's statements reflected:
"... nothing more than his tentative, personal opinion, expressed on the basis of
unverified, inaccurate and incomplete information, which was immediately
discredited and properly ignored by senior British officials" 131.
4.277 Bahrain seeks to base this criticism on the assumption that both Prior and Alban were
ignorant of the local circumstances in general, and of the relationship between the Hawar islands
and Qatar in particular. Paragraph 290 of the Bahrain Counter-Memorial is careful to point out
that Weightman had served as the British Political Agent in Bahrain for three years and "hadthoroughly investigated and commented on the claims advanced by both parties"; and that Fowle
had been British Political Resident in Bushire for over 7 years and had examined and accepted
the views of Weightman, as did the British and Indian Governments. What Bahrain carefully
conceals from the Court is that Prior was not a neophyte in Gulf affairs. As we know from the
Belgrave diaries, Prior had been secretary to the then Political Resident (Prideaux) as long ago as
1926 132. He was the British Political Agent in Bahrain between April 1929 and November 1932 -
a period of some 3½ years - and was fully familiar with all areas of contention between Qatar
and Bahrain, having been Loch's immediate predecessor. He was therefore fully entitled to state,
as he did in his letter to Peel of 26 October 1941:
"During 3½ years in Bahrain I never heard anything to suggest that these islands
belonged t133ahrain, and believed them to belong to Qatar, a view supported by
Lorimer" .
4.278 Alban was also no newcomer to the problems between Bahrain and Qatar, notwithstanding
Bahrain's egregious reference to "his relative lack of knowledge and appreciation of regional
affairs" and "his complete lack of appreciation of the Dowasir tribe's connection with the Ruler
of Bahrain" 134. In fact, Alban had already served as Political Agent in Bahrain from April 1927
to November 1927, during the temporary absence of Barrett in Kuwait 135. Alban was therefore
familiar with the Dowasir problem, as it was during his relatively brief term of office as Political
Agent in 1927 that, much to Belgrave's disgust, strong pressures were being put on the Ruler of
Bahrain to return the money confiscated from the Dowasir who had gone into temporary exile
from Bahrain in 1923. To seek to characterise Prior and Alban as being totally unfamiliar with
the problems between Bahrain and Qatar on their appointments as Political Resident (in
September 1939) and as Political Agent (in October 1940) respectively is demonstrably false.
4.279 Prior, on his appointment as Political Resident in September 1939, was immediately
confronted with the fall-out from the British decision of 11 July 1939, declaring that the Hawar
islands belonged to the State of Bahrain and not to the State of Qatar. He was himself
immediately persuaded that a serious injustice had been done to Qatar 136, and never wavered in
that view. In no way was his reaction "tentative"; nor was it expressed on the basis of unverified
or inaccurate information. Prior was however conscious that his predecessor (Fowle) and his
Political Agent (Weightman, who did not leave Bahrain until October 1940) were the two
officials in the Gulf who had been the principal protagonists of the Bahraini claim to the Hawar
islands. He was also persuaded that both the British Government and the Indian Government had
been seriously misled by Fowle and Weightman. It is indeed hardly surprising that, as early as 26
Septe137r 1939, Belgrave should have formed the view that Prior and Weightman "don't hit it
off".
4.280 In the circumstances, Prior had to exercise caution in expressing his view. He was now
confronted with a fait accompli. It was obvious that some time would have to elapse before there
would be any realistic prospect of having the issue reopened. This explains his dilatoriness in
following up his initial reaction as reflected in his manuscript minute of 25 September 1939. The
story is set out in full in paragraphs 6.102 to 6.109 of the Qatar Memorial. There is one element
that Qatar would wish to add to this account of the events following the British decision of 11
July 1939. There is an entry in the Belgrave diaries dated 1 July 1940 which states inter alia:
"HW very edgy and keyed up these days". Qatar would suggest that the reason why Weightman
might have been "edgy" and "keyed up" on 1 July 1940 is that he would by that date have
received a copy of Prior's telegram No. 366 of 7 June 1940, to the Secretary of State for India 13,
139
and was no doubt in the process of formulating his response of 3 July 1940 . Weightman would
therefore have felt that his conduct in the matter of the Hawar islands was being called in
question; he was indeed entitled to feel "edgy" and "keyed up", having to deal with a new
Political Resident who did not share his prejudices about Qatar and its relationship to Hawar. Section 7. The Bahraini Claim that the British Decision of 11 July 1939 resulted from a
Process of Arbitration and is therefore res judicata
A. The misleading nature of the chronology in Section 3.2 of Chapter III of the Bahrain
Counter-Memorial
4.281 The chronology given in paragraph 374 of the Bahrain Counter-Memorial for the steps
taken prior to the British decision of 11 July 1939 is thoroughly misleading. The Court will not
be surprised to note that Bahrain again simply ignores the crucial events of 1936 including
Bahrain's formal claim to the Hawar islands presented to Loch (the Political Agent) on 28 April
1936, and Britain's provisional decision of July 1936 in favour of that Bahraini claim, neither of
these developments having been notified to the Ruler of Qatar 14. As the chronology given in
paragraph 374 of the Bahrain Counter-Memorial begins only in February 1938, it also ignores
the clandestine occupation of Hawar effected by Bahrain in 1937 following the Zubarah incident
141
earlier that year . Indeed, the first item in the Bahraini chronology in the Bahrain Counter-
Memorial (which should not have been the first item in any event) could more truthfully be re-
phrased as follows:
"February 1938: British Political Agent meets Ruler of Qatar in Doha. Political Agent
does not reveal that Bahrain made formal claim to the Hawar Islands in April 1936,
and that Britain made provisional decision in favour of Bahraini claim to Hawar in
July 1936; nor does he report in writing to the Political Resident that the Ruler
protests against activities of the Bahrain Government in building and drilling for
water on Hawar. The Ruler claims that the Hawar Islands belong to Qatar and that the
Bahrainis have no de jure rights in Hawar, although they have occupied the island.
Political Agent claims to have reported all this verbally to the Political Resident,
presumably shortly after the conversation, but the only written record is in his letter to
142
the Political Resident of 15 May 1938" .
4.282 It is a further indication of Weightman's attitude towards Qatar in this matter of the Hawar
islands that, although he consistently relies on the fact that Qatar has not made a claim to certain
geographical features whereas Bahrain has made such a claim, he should unaccountably have
failed to register with his superior that the Ruler of Qatar had asserted his sovereignty over the
Hawar islands orally in February 1938. Not that this would have come as any surprise to the
Political Resident (Fowle), given that the latter had already acknowledged the existence of a
143
latent dispute between Bahrain and Qatar over title to Hawar as early as 25 May 1936 .
4.283 What is even more indicative of Weightman's deep-seated prejudice against Qatar is the
thoroughly misleading nature of the report on Hawar which he includes in his Intelligence
Summary for the period 1 to 15 April 1938. The report on Hawar states:
"I visited Hawar Island on the 15 thApril and inspected the new Bahrain Police Post
there. The fact that no complaint has been received from the Shaikh of Qatar while
this very solid building was under construction is an intere144ng omission, apparently
indicating his acceptance of Bahrain's rights in Hawar" .
The falsity of this report (and the Intelligence Summary was signed off by Weightman on 25 145
April 1938) is proved by Weightman's own letter to the Political Resident of 15 May 1938 ,
drafted some three weeks after he had approved his Intelligence Summary for the period 1 to 15
April. In his letter to the Political Resident of 15 May 1938, which forwards a copy of the Ruler
of Qatar's protest of 10 May 1938, Weightman confesses:
"It is true that on my visit to Dohah in February Shaikh Abdullah bin Qasim stated
that he had received information that the Bahrain Government were building and
146
were drilling for water in Hawar, which they had no right to do" .So much for the assertion that no complaint had been received from the Ruler of Qatar while the
police post was under construction. Weightman himself is forced to admit that he had received a
direct protest from the Ruler in February 1938, a protest which he had not even reported to his
superior.
4.284 The chronology in paragraph 374 of the Bahrain Counter-Memorial is misleading as much
147
for what it conceals as for what it reveals . Thus, there is a description of Weightman's letter to
the Ruler of Qatar of 20 May 1938. What that description does not reveal is the pressure which
Weightman is putting on the Ruler of Qatar to submit his evidence as rapidly as possible:
"My friend, I am sure you will realise how important it is that your formal claim,
supported by all the evidence which you can produce, should be sent to me at the
earliest possible moment, and I trust you will use your best endeavours to ensure that
there shall be no delay in this" 14.
The hypocrisy of this injunction becomes apparent when it is recalled that Weightman was well
aware at the time that Bahrain had made a formal claim to the Hawar islands more than two
years previously, that Britain had provisionally decided in favour of the Bahraini claim just
under two years previously, and that Bahrain had utilised this intervening period to attempt to
strengthen its claim to the Hawar islands, for example, by the erection of beacons and the
stealthy "occupation" of the main island. It is even more apparent when account is taken of the
coincidence in time of Weightman's letter to the Ruler of Qatar of 20 May 1938, and his two
separate letters to the Political Resident and the Secretary of State for India of 22 May 1938
which contained a description of the areas to be149fered by the Ruler of Bahrain to the two
competing oil companies (PCL and BAPCO) . As the area to be offered to PCL included the
Hawar islands, it is apparent that what Bahrain terms the "arbitration" was a mockery from the
outset, since Weightman was already, at the time when he was requesting the Ruler of Qatar to
present his evidence on 150 Hawar islands, actively proceeding on the clear assumption that they
appertained to Bahrain .
4.285 The Bahraini chronology likewise does not reveal that the "preliminary statement" of
Bahrain's case put in by Belgrave to Weightman on 29 May 1938 was entirely unsolicited,
Weightman having written to Belgrave on 20 May 1938, specifically informing him: "Should it
become necessary to request the Bahrain Government to submit a counter-claim supported by
evidence, I will address you again in due course" 15. Possibly Weightman thought that the case
for Bahrain was so open and shut that the Bahrain Government should not even be called upon to
respond to the expected Qatari claim. It is also significant that the Bahraini "preliminary
statement" was not revealed to the Ruler of Qatar, although it was later treated as a key
document 15.
4.286 The Bahraini chronology is also deceptive in places. Thus, against the date 22 March
1939, Weightman is recorded as stating in a letter to the Ruler of Qatar of that date "... you must
remember that you had unlimited time in which to make your original claim...". Bahrain fails to
remind the Court of Weightman's earlier letter to the Ruler of Qatar of 20 May 1938, in which he
153
presses the Ruler to submit his evidence without delay . So much for the "unlimited time"
which the Ruler of Qatar is said to have enjoyed. Indeed, it is hardly surprising that the Ruler of
Qatar, in the face of this peremptory demand for an early response, should have given his initial
response on 27 May 1938 15, just one week after having been requested to present his evidence
on the Hawar islands.
4.287 Finally, the Bahraini chronology, besides ignoring the significant events relating to Hawar
which occurred between 1933 and 1936 155, also maintains absolute silence about the
circumstances surrounding the "occupation" of the main Hawar island by Bahrain, almost
certainly during the year 1937. This is perhaps understandable since the Ruler of Bahrain would
have found it awkward to admit that he had, at a time when the British authorities had"provisionally" decided in favour of his claim to Hawar but had informed him that this was not a
final decision, for example, by organising the construction of a fort on Hawar, by building a new
mosque there, and by beaconing outlying islets in the vicinity of the main Hawar island, to seek
to strengthen the Bahraini claim to the Hawar islands.
B. The Ruler of Qatar's protests of February and May 1938 against Bahrain's unlawful
occupation of the Hawar islands incorporate an invocation of the British/Qatar Treaty of
1916 in order to secure Bahraini withdrawal from Hawar. They did not involve any express
or implied consent to any process of "arbitration" by the British authorities and certainly
not to any process involving a binding decision on the conflicting claims to Hawar
4.288 On 10 May 1938, the Ruler of Qatar put in writing the protest against Bahraini action on
Hawar which he had already made orally to Weightman (Political Agent) in February of that
year. He repeated this protest in slightly different language in his further letter to Weightman of
27 May 1938. The wording of the Ruler of Qatar's letter of 10 May 1938 clearly amounts to a
direct invocation of the British/Qatar Treaty of 1916 15; and both letters call upon the British
Government to ensure that Bahrain withdraws from the Hawar islands. Thus, the Ruler of Qatar's
letter to Weightman of 10 May 1938 draws attention in a dignified manner to the wrongful
Bahraini action in occupying Hawar and requests the aid of Britain in requiring the Bahrainis to
withdraw:
"I have said previously that I do not like to create difficulties and disputes unless I see
a deliberate encroachment on my country which is not admissible by any civil law,
rules and regulations. As I am bound to His Majesty's Government by strong
relations, friendship and alliance, and am aware that they are well acquainted with
these parts and their political and geographical conditions, I deem it necessary to
report the matter to you at the first instance and protest against the interferences and
actions taken by the Bahrain Government at Hawar, which is a dependency of Qatar...
I preferred to inform you, as it is necessary for me to do, and hope that you will let
me know of your decision as it is necessary to take prompt action and to prevent the
aggressors who ventured to take these actions without my knowledge. I am quite
confident that you will, i157rder to keep the peace and tranquillity, do what is
necessary in the matter" .
4.289 Weightman's report to Fowle (Political Resident) of 15 May 1938, enc158ing a copy of the
Ruler of Qatar's letter of 10 May is a masterly exercise in obfuscation . Weightman casually
attempts to explain away why he had failed to report in writing his earlier conversation with the
Ruler of Qatar in February 1938, when the latter had formally protested against the activities of
Bahrain on Hawar. There are two key sentences in this letter:
"As I reported to you verbally I attempted to draw him [the Ruler of Qatar] by saying
that I had always heard that the Bahrain Government claimed Hawar as part of the
Bahrain possessions, to which he replied that it was true that they had occupied
Hawar but that they had no 'de jure rights' there. He changed the conversation
immediately and it was evident that at that tim159e was by no means prepared to lay a
formal claim to the Hawar group of islands" .
The italicised sentence is a striking example of Weightman's self-induced delusion. Why should
the Ruler of Qatar make a formal protest against the Bahraini "occupation" of Hawar if he
himself did not maintain a "formal claim" of title to the Hawar islands? If the Ruler says that the
Bahrain Government have no de jure rights in Hawar, it is because these de jure rights are vested
in himself. This is not just an excusable misunderstanding on the part of Weightman. It is a
deliberate exercise in self-deception, designed to provide a seemingly plausible reason why he
had failed to alert the Political Resident and the Government of India in February 1938 that theRuler of Qatar had at that time asserted his claim of title to the Hawar islands in the face of the
unlawful Bahraini occupation of the islands.
4.290 In addition, in retrospect, it seems fairly obvious that Weightman was seeking to deny to
the Ruler of Qatar even the opportunity of having his rights to the Hawar islands considered!
That is why it is a plain mis-use of language to equate consideration of the Ruler of Qatar's case
on the Hawar islands in 1938/39 with an "arbitration" or indeed any other form of judicial or
quasi-judicial process. Weightman clearly wished to short-circuit the "proceedings", having
convinced himself that the Hawar islands appertained to Bahrain and that the oil concession
negotiations should, in the interests of the Ruler of Bahrain, be brought to a rapid conclusion.
4.291 The Ruler of Qatar's letter to Weightman of 27 May 1938 elaborates on his initial protest
160
in certain respects . Its tone is, however, again dignified, notwithstanding the highly
provocative action of Bahrain in secretively occupying Hawar:
"It is a clear fact that the islands of Hawar are still a dependency of Qatar as other
similar islands. The Bahrain Government have only recently occupied th161which
fact made me move in the matter and submit protests against it" .
The Ruler of Qatar summarizes his complaint under five headings. Under the first heading, he
states that it is hardly necessary for him to explain the position of the Hawar islands in detail as
his correspondent (Weightman) knows them better. Under the second heading, he asserts his
right of ownership over the Hawar islands. Under the third heading, he states uncompromisingly:
"Since the date of declaring the independence of Qatar and recognition of my
rulership over it, this island [Hawar], as other islands, has been belonging to Qatar.
The Bahrain Government were not in occupation of it until recently when they openly
interfered there. This made me object and submit my complaint to you" 162.
Under the fourth heading, he questions what authority the Bahrain Government have to claim
Hawar and on what ground they are justified in taking the action they have taken. Under the fifth
heading, he requests the British Government:
"... to note this complaint and restrict the Bahrain Government from unlawful
interference in the rights of others as far as there is no legal ground on which they can
base such acts".
4.292 The Ruler of Qatar might have been a good deal less diplomatic in his language if he had
been aware at the time that the British authorities had already (in 1936) made a "provisional
decision" in favour of the Bahraini claim to Hawar, but had deliberately withheld from him news
of this development; and that the British authorities, in the context of oil concession negotiations
with the Ruler of Bahrain which were proceeding in parallel with consideration of his protest,
were acting on the assumption that the Hawar islands formed part of Bah163n's "additional area"
for which the Ruler of Bahrain was entitled to grant a concession . At this time (1938), the
Ruler of Qatar was an innocent abroad; he knew nothing of the 1936 "provisional decision" of
the British Government and was largely ignorant of the political realities and of the ruthless
tactics of multi-national oil companies when seeking to obtain a new oil concession.
4.293 It is true that in his second letter of 27 May 1938, the Ruler of Qatar also requested
Weightman as Political Agent:
"... to stop the activities and interferences which the Bahrain Government are
undertaking in Hawar Islands until the matter is decided by His Majesty's
Government in the light of justice and equity as you have said in your letter" 16.
The Ruler was of course anxious that the British authorities should take his protest seriously and
investigate the circumstances in which Bahrain had unlawfully occupied Hawar in 1937, in order
to bring about a withdrawal of Bahraini forces and officials from the islands. In the light of whatwe know now, it is hardly surprising that the British authorities in the Gulf took no action on the
first element in this two-pronged request; and the evidence of pre-judgment of the dispute in
favour of Bahrain is so overwhelming as to deprive of all credibility the assurance given
(ironically) by Weightman that the matter would be decided by the British Government "in the
light of truth and justice". The Ruler of Qatar did of course accept at the time that the Political
Agent should look into the issue carefully, being wholly unaware of what was going on in the oil
concession negotiations with the Ruler of Bahrain which were being conducted in parallel, and
of the evidence of Weightman's bias against Qatar as regards the conflicting claims of Qatar and
Bahrain to sovereignty over the Hawar islands. But the Ruler most certainly did not give his
consent to any process of "arbitration" involving a binding decision by the British Government
on these conflicting claims.
C. The falsity and irrelevance of the Bahraini argument that criticisms of the conduct of
Weightman, Fowle and other British officials in the Gulf between 1936 and 1939 in relation
to the conflicting claims to the Hawar islands are inadmissible in the absence of Britain as a
party to the present proceedings between Qatar and Bahrain
4.294 In paragraphs 382 to 387 of its Counter-Memorial, Bahrain argues that Qatar's allegations
(which Bahrain falsely characterises as including a charge that Britain engaged with Bahrain in a
ten-year conspiracy to deprive Qatar of its title to the Hawar islands) are inadmissible in the
present proceedings in the absence of Britain as a party to these proceedings. This argument is
unsustainable on the facts and on the law. Qatar will deal separately with these two elements.
1. The facts
4.295 Qatar has never alleged that Britain colluded or conspired with Bahrain to dispossess Qatar
of the Hawar islands. Qatar has of course been obliged to reveal that certain British officials in
the Gulf - Weightman in particular, but also, though to a lesser extent, Fowle and Loch -
displayed a notable bias against Qatar (and consequently in favour of Bahrain) in the matter of
the dispute over the Hawar islands. These are allegations directed against named individuals on
the basis of unchallenged documents in the British archives of the time. The Qatari allegations of
pre-judgment by named British officials in the Gulf and in London are similar in character.
4.296 These allegations are not and never have been allegations directed against the British
Government as such. The fact that named officials may have misconducted themselves in the
course of an enquiry (if indeed it could even be styled an "enquiry") has, in Qatar's submission,
the consequence that any Governmental decision reached as a result of that enquiry is rendered
invalid; but Qatar has never claimed, and does not now claim, that the United Kingdom as a
State bears international responsibility for the injury caused to Qatar by virtue of the British
decision of 11 July 1939. It is Qatar which has throughout these proceedings drawn attention to
the real efforts made by Prior and Alban (the successors to Fowle and Weightman as Political
Resident and Political Agent respectively) between the autumn of 1939 and the end of 1941 to
rectify the injustice done to Qatar by the British decision of 11 July 1939; it is of course Bahrain
which has sought by all means to discredit the views of Prior and Alban, not only by expressing
unfounded doubts about their knowledge of Qatar and the Hawar islands , but also by
stigmatising their views as being based on "unverified, inaccurate and incomplete
166
information" . The example given of Alban's "inaccurate" information is his comment that it is
possible to wade from Hawar to the167inland at low water; but Weightman says the same in his
letter of 22 April 1939 to Fowle , so this example is clearly as unfounded as the allegation is
malicious. It remains only to add that the falsity of the charge that Alban had never visited the
Hawar islands is comprehensively proven by the report of his visit to the islands on 13 December
1940 168.
4.297 There is also the highly relevant consideration that, for more than thirty years, the British
Government has accepted that the issue of title to the Hawar islands, together with thedifferences between Qatar and Bahrain over the two shoals of Fasht Dibal and Qit'at Jaradah, and
the course of the 1947 line, were suitable for reference to arbitration or other form of third-party
judicial settlement 169. In other words, the British Government were fully aware as early as
1965/66 that Bahrain wished to have the course of the 1947 line modified and was prepared to
have that issue referred to arbitration; that Qatar wished to have its sovereignty over the Hawar
islands recognised and was prepared to have that issue, together with the dispute over the course
of the 1947 line and the other differences between Bahrain and Qatar relating to Fasht Dibal and
Qit'at Jaradah, referred to arbitration; but that Bahrain in the final analysis rejected the idea of
referring all these issues to arbitration simultaneously because of its reluctance to countenance
the inclusion of the question of the Hawar islands among the issues to be submitted to
arbitration170. The British Government, in 1965/66, never took the position vis-à-vis Qatar that it
would object to a reference to arbitration of the question of the Hawar islands, although it was
fully aware that the Government of Qatar had objected strenuously and consistently to the British
decision of 11 July 1939, upholding Bahrain's claim to the islands. The British Government was
indeed content at this time that all these identified issues in dispute between Qatar and Bahrain
should be referred to arbitration, and approved the Government of Qatar's nomination of
Professor Charles Rousseau of France as its arbitrator 171.
2. The law
4.298 On the law, Bahrain has invoked the judgment of the Court in the East Timor case in
support of its argument that "Qatar's allegations of Bri172h wrongdoing cannot be considered by
the Court in the absence of Great Britain as a party" . Having referred in passing to the East
Timor case as a recent authority, Bahrain goes on to say that "it is unnecessary for Bahrain now
to refer to the authorities in any detail"173. Qatar begs to differ. Qatar is of course aware that, in
the Monetary Gold case 174, the Court was called upon to decide on submissions by Italy that the
monetary gold in question should be assigned to Italy by way of priority over other claimants,
including Albania (which was not a party to the particular proceedings). The Court explained
that, in order to decide that question, it would be necessary to determine whether certain
Albanian legislation of 1945 was contrary to international law. That was an issue only as
between Italy and Albania. The Court made reference to Article 62 of the Statute which gives to
a third State the right to request permission to intervene in proceedings between other States
when it considers that it has "an interest of a legal nature which may be affected by the decision
in the case". But it noted that Albania had not submitted a request to the Court to be permitted to
intervene. The Court concluded:
"In the present case, Albania's legal interests would not only be affected by a
decision, but would form the very subject-matter of the decision. In such a case, the
Statute cannot be regarded, by implication, as authorizing proceedings to be
continued in the absence of Albania" 175.
4.299 The Court faced a similar situation in the East Timor case. Portugal instituted proceedings
against Australia arising out of the conclusion of a 1989 treaty between Australia and Indonesia
delimiting the continental shelf between the two States. Portugal was, at the relevant time, the
Administering Power in respect of East Timor, a territory which had been occupied by Indonesia
and which was covered by the treaty. Portugal contended that, by concluding this treaty,
Australia had violated a number of its international obligations, since Portugal, as the
Administering Power in respect of East Timor, had the exclusive right to conclude treaties
affecting the territory. Portugal had not sought to implead Indonesia, which itself had not applied
for permission to intervene under Article 62 of the Statute. The Court eventually concluded,
upholding a submission by Australia that the Portugal application was inadmissible:
"... the Court would necessarily have to rule upon the lawfulness of Indonesia's
conduct [in occupying East Timor] as a prerequisite for deciding on Portugal's contention that Australia violated its obligation to respect Portugal's status as
administering Power, East Timor's status as a non-self-governing territory and the
right of the people of the Territory to self-determination and to permanent sovereignty
over its wealth and natural resources" 176.
These are the limits of what is sometimes referred to as the "indispensable parties" or "essential
parties" principle. The key element is that the Court would, in order to rule upon a submission
made by one or the other party to the proceedings before it, have to pronounce on the legal rights
or interests of a third State not party to the proceedings without the consent of that third State,
these legal rights and interests forming the very subject-matter of the Court's decision.
4.300 It need occasion no surprise that Bahrain fails even to mention those authorities which run
counter to the argument that Britain is an essential party to the present proceedings. The first of
these authorities is the Court's judgment of 26 November 1984 on jurisdiction and admissibility
in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua
v. United States of America). In that case, the United States had argued that the application by
Nicaragua was inadmissible as Nicaragua had failed to bring before the Court parties whose
presence and participation in the proceedings was essential. The Court dismissed this contention:
"There is no doubt that in appropriate circumstances the Court will decline, [and here
reference is made to the Monetary Gold case] to exercise the jurisdiction conferred
upon it where the legal interests of a State not party to the proceedings 'would not
only be affected by a decision but would form the very subject-matter of the
decision...'. Where however claims of a legal nature are made by an Applicant
against a Respondent in proceedings before the Court, and made the subject of
submissions, the Court has in principle merely to decide upon those submissions, with
binding force for the parties only, and no other State, in accordance with Article 59
of the Statute. As the Court has already indicated.... other States which consider that
they may be affected are free to institute separate proceedings, or to employ the
procedure of intervention. There is no trace, either in the Statute or in the practice of
international tribunals, of an 'indispensable party' rule of the kind argued for by the
United States, which would only be conceivable in parallel to a power, which the
Court does not possess, to direct that a third State be made a party to proceedings.
The circumstances of the Monetary Gold case probably represent the limit of the
power of the Court to refuse to exercise its jurisdiction..." 177.
The italicised passages in this extract demonstrate the limits of the Court's discretion to refuse to
exercise its jurisdiction in cases where it is argued that the participation of a third State in the
proceedings before the Court is essential.
4.301 Equally, the Court will hardly be surprised to note that no mention is made in Section 3.3
of the Bahrain Counter-Memorial of the Court's judgment in the case of the Phosphate Lands in
Nauru (Nauru v. Australia). Nauru filed an Application with the Court, instituting proceedings
against Australia. In its Memorial, Nauru alleged that Australia was in breach of certain of its
obligations by reason of its conduct as Administering Power in respect of Nauru under the
Trusteeship Agreement of 1947, and claimed inter alia a declaration that Australia was under a
duty to make reparation in respect of the loss caused to Nauru as a result of these breaches and
its failure to recognise the interest of Nauru in the overseas assets of the British Phosphate
Commissioners. Australia raised a number of preliminary objections to the jurisdiction of the
Court and to the admissibility of the Nauru claims. The sixth preliminary objection was based on
the absence from the proceedings of New Zealand and the United Kingdom, who, together with
Australia, had been "jointly" designated as Administering Authority for Nauru under the 1947
Trusteeship Agreement. Australia contended that the claims of Nauru were in substance not
claims against Australia itself but against the Administering Authority (i.e. the threeGovernments) in relation to Nauru, and that the claims were therefore inadmissible and the Court
lacked jurisdiction, as any judgment on the question of breach of the Trusteeship Agreement
would involve the responsibility of third States which had not consented to the Court's
jurisdiction in the case. The Court found that the Administering Authority of Nauru under the
Trusteeship Agreement did not have an international legal personality distinct from the three
States designated to constitute it; but that, of those three States, Australia played a very special
role in the system of administration applied in Nauru. The Court also found that Australia's sixth
preliminary objection had two branches. The first of these was Australia's contention that, insofar
as Nauru's claims were based on the conduct of Australia as one of the three States constituting
the Administering Authority, the nature of the responsibility in that respect was such that a claim
might only be brought against the three States jointly and not against any one of them
individually. The Court gave short shrift to this contention:
"The Court does not consider that any reason has been shown why a claim brought
against only one of the three States should be declared inadmissible in limine litis
merely because that claim raises questions of the administration of the territory,
which was shared with two other States. It cannot be denied that Australia had
obligations under the Trusteeship Agreement, in its capacity as one of the three States
forming the Administering Authority, and there is nothing in the character of that
Agreement which debars the Court from considering a claim of a breach of those
obligations by Australia" 178.
4.302 The second branch of the Australian contention was based upon the Court's jurisprudence
in the Monetary Gold case, and in the jurisdiction and admissibility phase of the Case
concerning Military and Paramilitary Activities in and against Nicaragua. The Court first of all
drew attention to the right of a State which is not party to a case to apply for permission to
intervene in the proceedings under Article 62 of the Statute. It then re-states the governing
principle:
"But the absence of such a request in no way precludes the Court from adjudicating
upon the claims submitted to it, provided that the legal interests of the third State
which may possibly be affected do not form the very subject-matter of the decision
that is applied for. Where the Court is so entitled to act, the interests of the third State
which is not a party to the case are protected by Article 59 of the Statute..." 179.
The Court then proceeded to analyse the interests of New Zealand and the United Kingdom:
"In the present case, the interests of New Zealand and the United Kingdom do not
constitute the very subject-matter of the judgment to be rendered on the merits of
Nauru's Application and the situation is in that respect different from that with which
the Court had to deal in the Monetary Gold case. In the latter case, the determination
of Albania's responsibility was a prerequisite for a decision to be taken on Italy's
claims. In the present case, the determination of the responsibility of New Zealand or
the United Kingdom is not a prerequisite for the determination of the responsibility of
Australia, the only object of Nauru's claim" 180.
The Court accordingly rejected the sixth Australian preliminary objection.
4.303 How then do we apply these elements of the Court's jurisprudence to the circumstances of
the present case? Qatar would submit that the following conclusions can be drawn:
1. The legal interests of the United Kingdom do not form the very subject-matter of the decision
that Qatar has applied for in this context, namely that it has sovereignty over the Hawar islands.
The United Kingdom maintains no claim of title to the Hawar islands in relation to which
sovereignty is presently disputed only as between the two independent States of Qatar and
Bahrain.2. Qatar has not submitted that the United Kingdom bears international responsibility for the
injury caused to Qatar by the decision of 11 July 1939 on the Hawar islands. Qatar has simply
argued that a number of irregularities on the part of British officials in the Gulf occurred during
the course of the "enquiry" initiated by the British authorities in 1938/39, and that these
irregularities were of such a character as to invalidate the British decision of 11 July 1939.
3. Whether the British decision of 11 July 1939 constitutes an arbitral award binding upon
Bahrain and Qatar is clearly not a matter where British legal interests form the very subject-
matter of the decision applied for by Qatar as may have been the position in the East Timor case.
4.304 On the facts, the United Kingdom was content, even in the years 1965 and 1966 when it
still retained responsibility for the conduct of the international relations of the two sheikhdoms of
Qatar and Bahrain, that the issues at that time in dispute between Qatar and Bahrain (including
the issue of sovereignty over the Hawar islands) should be referred to a process of arbitration.
D. The significance in this context of the award of the arbitration tribunal in the
Dubai/Sharjah case
4.305 The United Kingdom was not a party to the arbitration between Dubai and Sharjah
established as a result of an arbitration agreement concluded between the Rulers of Dubai and
Sharjah on 30 November 1976. The dispute between the two Emirates of Dubai and Sharjah
(now member States of the United Arab Emirates (UAE) but, before the formation of the UAE,
two of the six individual Emirates collectively known as the "Trucial States") to be referred to
arbitration was "the outstanding dispute... concerning the demarcation of the boundaries between
them" 181.
4.306 In 1954, the Rulers of the six Emirates constituting the Trucial States (including both
Dubai and Sharjah) requested the Political Agent (Mr. Pirie Gordon) to determine their
respective boundaries. Mr. Julian Walker (Assistant Political Agent) was deputed to conduct the
necessary enquiries. On the basis of a report submitted by Mr. Walker to Mr. Peter Tripp
(successor to Mr. Pirie Gordon as Political Agent) in March 1955, and having obtained the
written consent of the Rulers of both Dubai and Sharjah, Mr. Tripp rendered three series of
decisions on the boundary between the two Emirates, the first in April 1956, on the coastal
terminus, the second in July 1956, on the coastal region, and the third in March 1957, on the
interior. The arbitration tribunal in the Dubai/Sharjah Border case duly found that the Rulers of
both Dubai and Sharjah had given their specific consent in writing to the delimitation of their
boundaries by the British authorities. The tribunal rejected a plea by Du182 that the consent of its
Ruler had been obtained under duress and was therefore invalidated . The Court will note once
again the terms of the written assurance given by the Ruler of Dubai on 18 March 1955, on his
own behalf and on behalf of all his successors as Rulers of Dubai that they would not:
"... dispute or object to any decision that may be decided by the Political Agent
regarding the question of the boundaries between our Emirate and the Emirate of
Sharjah towards the Coast" 183.
The Court will equally have noted that no such written assurances were sought or obtained from
the Rulers of Qatar and Bahrain before the procedures leading up to the decision of 11 July 1939
were initiated. The Court will also have taken into consideration the following conclusion of the
arbitration tribunal in the Dubai/Sharjah Border case:
"It is therefore clear that no treaty authorised the British authorities to delimit
unilaterally the boundaries between the Emirates and that no British administration
ever asserted that it had the right to do so. The Court has therefore come to the
conclusion that the consent of the Rulers con184ned was necessary before any such
delimitation could have been undertaken" .4.307 Qatar submits that this conclusion applies mutatis mutandis to the British decision of 11
July 1939 purporting to attribute sovereignty over the Hawar islands to Bahrain, that decision
having been given without the specific written consent of the Rulers of both Qatar and Bahrain to
the rendering of such a decision by the British Government. Qatar also submits that the award in
the Dubai/Sharjah Border arbitration, made in the absence of the United Kingdom as a party to
the proceedings, supports the view that the legal interests of the United Kingdom do not form the
very subject-matter of the decision that is applied for in the circumstances of the present dispute
between Qatar and Bahrain (now independent States) as regards sovereignty over the Hawar
islands.
4.308 Bahrain has of course argued that the implied consent of both sheikhdoms (Qatar and
Bahrain) is sufficient in the sense that participation in the processes proposed by the British
authorities in the Gulf in 1938 for the "e185iry" into the conflicting claims to the Hawar islands
operated as a type of forum prorogatum . But implied consent to what? Certainly not to the
designation of the British Government as arbitrator in an agreed process of arbitration which
would result in a binding award, as was the case in the Arbitral Award of the King of Spain case,
an extract from the Court's judgment in which is cited at paragraph 393 of the Bahrain Counter-
Memorial.
4.309 Bahrain also seeks to argue that Qatar had given its explicit consent to the taking by the
British Government of a binding decision on this issue by virtue of the obligation undertaken by
186
the then Ruler of Qatar in 1868 to refer to the Resident any difference of opinion with Bahrain .
It is sufficient to remind the Court yet again that in the Dubai/Sharjah Border case, the
arbitration tribunal took note of the fact that both Emirates had given their explicit prior consent
to the delimitation of the boundaries between Dubai and Sharjah by the Political Agent and that
both Rulers specifically undertook not to dispute or object to any decision that might be
forthcoming from the Political Agent. No such explicit prior consent by the Rulers of Bahrain
and Qatar to the determination by the British Government of title to the Hawar islands in
1938/39 has been shown to exist, far less an undertaking by both Rulers not to object to any
decision that might be forthcoming from the British Government.
4.310 So far as concerns the obligation undertaken by the then Ruler of Qatar in 1868 to refer to
the Resident any difference of opinion with Bahrain, it need only be said that the Ruler of Qatar
did make a serious protest to the Political Agent in February 1938 against Bahrain arising out of
the unlawful Bahraini activities in 1937 in and in relation to Hawar. What happens? The Political
Agent completely ignores this serious protest; he does not even inform the Political Resident,
except possibly in the course of conversation. The Ruler of Qatar has to formulate in writing his
protest against the unlawful Bahrain activities in and in relation to Hawar (in his two letters of 10
May and 27 May 1938) 187before it is even accepted that he might have an interest in the islands.
The Court will of course note from the terms of these two letters from the Ruler of Qatar to the
Political Agent that the Ruler was confidently anticipating that his serious complaint against
Bahrain would be investigated by the British authorities, who would thereupon take action to
ensure that Bahrain withdrew its police and other officials from Hawar. Of course, no such
action was taken, for the reasons developed in this Reply 188.
E. The significance of the British "provisional decision" of 1936 and its non-disclosure to
the Ruler of Qatar
189
4.311 This has already been analysed in detail in Qatar's written pleadings . Qatar would only
add the following. The Bahrain Counter-Memorial deals with the British "provisional decision"
of 1936 in some detail, while referring to it as an "advisory opinion" given at the request of
PCL 19. There are two sentences in paragraph 245 of the Bahrain Counter-Memorial which merit
further comment by Qatar: "What is notable in the evidence offered by PCL is the fact that no mention is made
of any views held by the Ruler of Qatar on the subject of the sovereignty over the
Hawar Islands. It is inconceivable that PCL, the Qatar concessionaire, should not
have consulted the Ruler of Qatar, who would have been the beneficiary of payments
by PCL if the Islands belonged to him and contained oil".
4.312 Qatar does not dissent from the view expressed in the first sentence of this citation, at least
191
so far as it relates to evidence offered by PCL in 1936 . But Qatar does not agree with the
assumption made in the second sentence of this citation that PCL would have consulted with the
Ruler of Qatar before Britain made its provisional decision in favour of Bahrain in July 1936.
There is no evidence of any such consultation; and it is in fact much more likely that PCL
decided not to consult the Ruler of Qatar even after it became aware that Bahrain was asserting a
claim to the Hawar islands, and particularly after it became aware, in July 1936, that Britain had
made a provisional decision in favour of the Bahraini claim to Hawar. PCL would not have
wished to be the bearer of highly unwelcome news to the Ruler of Qatar, the more so as it was
already in negotiation with the Ruler of Bahrain for a concession over the so-called "additional"
(or unallotted) area which the Ruler of Bahrain had asserted, in April 1936, included the Hawar
islands. Why should PCL have confessed to the Ruler of Qatar that it had learnt of this
development in the course of negotiations with the Ruler of Bahrain? It would certainly have
feared that if it revealed this information to the Ruler of Qatar, it would have been strongly urged
by the latter, under threat of the suspension or even cancellation of its Qatar concession, to
abandon its negotiations with the Ruler of Bahrain. The plain fact of the matter was that from the
early summer of 1936 onwards it was not in the interest of the Political Agent or the Political
Resident (the two senior British officials in the Gulf), nor was it in the interest of PCL or
BAPCO, to inform the Ruler of Qatar of any of these significant developments bearing upon the
status of the Hawar islands. From the point of view of the British authorities in the Gulf and of
the oil companies directly concerned, it was preferable to keep the Ruler of Qatar in ignorance of
what was going on.
4.313 One inevitable consequence of the British provisional decision of 1936 was that it created
an atmosphere where British officials, both in the Gulf and in London, began to assume that a
new oil concession covering the Hawar islands alone, or including the Hawar islands in Bahrain's
"additional area", lay within the gift of the Ruler of Bahrain. It would clearly have been fairer to
the parties (and Fowle in fact recommended something like this in 1938) 192 if the Ruler of
Bahrain could have been persuaded not to re-open the negotiations in 1936 for the conclusion of
an oil concession over the "additional area" pending a thorough and detailed investigation by an
impartial authority into the issue of which of the two sheikhdoms had sovereignty over the
Hawar islands. By not bringing this about, and by proceeding on the assumption that the Ruler of
Bahrain was entitled to grant an oil concession over the entire additional area, including the
Hawar islands, British officials themselves might be said to have given the impression of
prejudging the key issue, notwithstanding the belated reminder contained in the exp193s letter
from the Secretary of State for India to the Political Resident of 1 March 1939 . In the
circumstances, it is not altogether surprising that certain British officials, both in the Gulf and in
London, forgot their lines in the period between 1936 and 1939 and acted as if the provisional
decision in favour of the Bahrain claim to the Hawar islands had somehow become transformed
into a final decision in Bahrain's favour.
F. Other irregularities breaching the principle of equality of arms
4.314 Apart from the evidence of bias and pre-judgment to which Qatar has already directed
attention194, there was a difference in the treatment accorded to the two Rulers in the context of
their dispute over title to the Hawar islands. Paragraphs 6.83 and 6.87 to 6.96 of the Qatar
Memorial provide clear instances of the less favourable treatment accorded to the Ruler of Qatar
than that accorded to the Ruler of Bahrain in this context. Qatar would recall, in the context ofparagraph 6.94 of the Qatar Memorial, that it now relies on other documentation (notably, Annex
292 to the Bahrain Memorial, put in evidence by Bahrain itself) to establish the worthlessness of
the petition annexed to the Bahrain "counter-claim" of 22 December 1938/3 January 1939.
4.315 As regards comments made in the Bahrain Counter-Memorial about these other
irregularities, Qatar would offer the following observations:
(a) It is a matter of some astonishment that Bahrain should urge in its defence to the charge of
bias by Weightman that the Ruler of Qatar had spoken privately about the case with Weightman
on several occasions 19. One of these occasions was of course the meeting in Doha between the
two protagonists in February 1938, when the Ruler of Qatar made a serious protest to
Weightman about Bahraini activities on Hawar. Weightman did not even deign to report this
protest196 writing to the Political Resident, as his subsequent letter to Fowle of 15 May 1938
admits . Furthermore, at this meeting, it was absolutely clear that the Ruler of Qatar was
asserting his sovereignty over the Hawar islands; yet Weightman speciously denies this in his
letter to Fowle of 15 May 1938.
(b) A further attempt is made in paragraphs 395 to 413 to refute the charge of bias brought by
Qatar against Weightman. The attempt is unsuccessful. Qatar is however glad to note that
Bahrain has now provided the full text of Belgrave's diary entry for 22 April 1939. Qatar had not
deliberately omitted the sentence that "Abdulla bin Jasim has no argument except that the islands
are close to his shore", because the extract from the Belgrave diaries covering 22 April 1939,
available to Qatar at the time when it was preparing its Memorial, did not include that sentence.
The fact that the sentence to which Bahrain has drawn attention does form part of Belgrave's
diary entry for the day in question is in fact helpful from Qatar's point of view, since it goes a
long way towards confirming that Belgrave was shown the whole of Weightman's report and not
just selected passages.
(c) The most blatant instance of bias by Weightman against Qatar in general and members of its
ruling family in particular is of course provided by his letter to Fowle of 5 December 1939,
covering the Packer Report of the same date 19. Paragraph 3 of that letter is highly revealing of
Weightman's almost hysterical animus against the then heir-apparent to the Ruler of Qatar. It is
in fact paralleled by another instance of Weightman's extraordinary and ferocious bitterness
against the ruling family of Qatar which Qatar has recently uncovered. Weightman includes the
following observations in his Intelligence Summary for the period 1 to 15 April 1938:
th
"On April 14 a rumour was circulating in Bahrain that Shaikh Abdullah bin Qasim
al Thani of Qatar had died. It appears to have been a case of the wish being father to
the thought, as an enquiry from Doha produced the reply that the Shaikh was in
excellent health" 19.
(d) The weakness of the arguments advanced in paragraphs 416 to 418 of the Bahrain Counter-
Memorial is apparent. Qatar notes that, in paragraph 417, Bahrain refers to Britain's "protective
obligations with respect to Bahrain" as a justification for its provisional decision of 1936
favouring the Bahraini claim to the Hawar islands. But Britain had equal protective obligations
with respect to Qatar deriving from the British-Qatar Treaty of 1916. Why then did British
officials consistently hide from the Ruler of Qatar the actions which they had taken in 1936 in
relation to a group of islands the majority of which lay within the then three-mile belt of
territorial waters appertaining to the mainland of Qatar? Bahrain has no answer, except to say
that what was done in 1936 was not part of the 1939 procedure; but this is to substitute the
appearance for the reality, since, as Bahrain well knows, there would almost certainly have been
no participation by the Ruler of Qatar in the so-called "arbitration" if what was carefully being
concealed from him had been revealed.
Conclusion4.316 In this Section of Chapter 4, Qatar has responded to a number of miscellaneous arguments
developed by Bahrain in its Counter-Memorial. In particular, Qatar demonstrates how
misleading and indeed dishonest is the chronology set out in Section 3.2 of Chapter III of the
Bahrain Counter-Memorial; attention is drawn in particular to the developments in 1936 and
1937 which Bahrain passes over in silence. Qatar also shows how, in May 1938, the Ruler of
Qatar invoked the British-Qatar Treaty of 1916 in an unsuccessful endeavour to persuade the
British authorities to bring about Bahraini withdrawal from Hawar. The Ruler of Qatar's protests
in February and May 1938 did not involve any express or implied consent to any process of
"arbitration" by the British authorities in the Gulf, far less to any process involving a binding
decision on the conflicting claims to the Hawar islands. Qatar also responds in detail to Bahrain's
argument that criticisms of the conduct of Weightman, Fowle and other British officials in the
Gulf or in London between 1936 and 1939 are inadmissible in the absence of Britain as a party to
the present proceedings before the Court; Qatar shows that this Bahraini argument is manifestly
ill-founded, both on the facts and on the law (including the award of the arbitration tribunal in
the Dubai/Sharjah Border case). In addition, Qatar offers some further observations on the
significance of the British provisional decision of 1936, in particular its effect on British officials
in the Gulf and also in London, and responds to comments made in the Bahrain Counter-
Memorial purporting to refute the charges made by Qatar about irregularities in the processes
leading to the decision of 11 July 1939 on Hawar.
Section 8. The Bahraini claim that Qatar acquiesced in the 1939 decision on the Hawar
islands
4.317 This Bahraini contention was dealt with in full in paragraphs 6.239 to 6.248 of the Qatar
Memorial and paragraphs 3.172 to 3.179 of the Qatar Counter-Memorial. The only response
which Bahrain can make is that Qatar did not protest enough! International law does not of
course require from a State which is aggrieved by the unlawful "occupation" of a part of its
territory a constant stream of protests against the State responsible for that unlawful
"occupation". What it does require is that the aggrieved State should assert its grievance, since
there is authority for the view that silence or lack of protest maintained over a significant period
of time may justify a finding of acquiescence . But Qatar immediately protested against the
British decision of 11 July 1939, and reiterated that protest at regular intervals. The terms of the
Ruler of Qatar's letter to the Political Resident (Prior) of 18 November 1939 embody a
comprehensive reservation of the Ruler's rights to the Hawar islands; and that letter in itself,
even apart from the other letters which Qatar has invoked in this context, sufficiently negatives
any implication of acquiescence on the part of the Ruler of Qatar in the unlawful occupation of
the Hawar islands by Bahrain. Here is what the Ruler of Qatar says in that letter:
"I therefore beg to inform Your Honour that I neither recognize nor submit that the
Bahrain Government have the least lawful connection with the Hawar Islands, and
that I view whatever measure which have been lately taken by the Bahrain
Government as a challenge and an encroachment upon my rights against which I most
strongly protest, and therefore... I reserve my rights to 200 Hawar Islands while not
recognising any measure which may be taken in them..." .
__________
FOOTNOTES
1 BM, para. 18.
2 BM, para. 19.
3 BM, para. 23.
4 BCM, para. 23; emphasis in original.
5 See, QM, Chapter V and QCM, Chapter III.6 QM, paras. 5.39-5.40; QCM, paras. 3.40-3.42.
7 QM, paras 5.42-5.43; QCM, para. 3.42.
8 BCM, Annex 122, Vol. 2, p. 410.
9 QM, Annex III.296, Vol. 8, p. 483.
10 QM, Annex III.66, Vol. 6, p. 323, at p. 345.
11 QCM, Annex III.35, Vol. 3, p. 183.
12 See, para. 3.32, above and QR, Map Atlas, Maps Nos. 58 and 77.
13 QM, Annex II.10, Vol. 4, p. 276. This description was consistent with a British Memorandum
of nearly 50 years earlier (in 1874) confining Bahrain's territories to only three islands (see, QM,
para. 5.31), as well as with Lorimer's description of Bahrain in 1908 referred to above. None of
these descriptions included the Hawar islands.
14 See, para. 3.31(f)(iii), above, and QM, Annex III.84, Vol. 6, p. 431.
15 QM, Annex III.88 and III.91, Vol. 6, pp. 449 and 461.
16 QM, Annex III.90, Vol. 6, p. 457.
17 QM, Annex III.94, Vol. 6, p. 479; QCM, Annex III.43, Vol. 3, p. 237. In attacking what
Bahrain characterises as Qatar's "astonishing conclusion" that "the RAF was thus in no doubt at
this time that Hawar island belonged to Qatar" (BCM, para. 24), Bahrain completely misses the
point that the main purpose of the RAF's action was to survey Qatar's territories in connection
with the 1935 British assurance of protection of these territories. As already pointed out, no
permission was sought from the Ruler of Bahrain to overfly the Hawar islands, which would
certainly have been the case if the British had considered that the Hawar islands appertained to
Bahrain.
18 See, para. 4.220, below.
19 QM, para. 6.106 and Annex III.229, Vol. 8, p. 127.
20 QM, paras. 5.48, 6.18-6.27 and 6.100-6.107.
21 QCM, Chap. III.
22 See, QM, Map No. 5, Vol. 17.
23 QM, Annex III.195, Vol. 7, p. 497.
24 The Court will recall that Bahrain has accused Qatar of giving an "inaccurate and misleading"
depiction, on Map No. 5, of the distance between the southern tip of the main Hawar island and
the Qatari mainland, describing this as "one of Qatar's subtler distortions". Qatar confirms that its
Map No. 5 is an accurate representation of what appears on Bahrain Chart 1:50,000 Series, Sheet
3, "The Hawar Islands", which is part of the Official Topographical Series published by the State
of Bahrain in 1986. Unfortunately, because of a typographical error which was not picked up at
the time, the distance at high tide between the southern tip of the main Hawar island and the
Qatari mainland should have been shown as 1.2 km and not 1.0 km. The distance at low tide is
correctly shown as 250m.
25 In this connection, Qatar has produced photographic evidence of the proximity of certain
Hawar islands to the Qatar mainland, in QR, Appendix 5, Vol. 6.
26 See, Chap. II, Sect. 2, above.
27 QM, Annex II. 4, Vol. 3, p. 109, at p. 141.
28 QM, Annex II.4, Vol. 3, p. 109, fn. p. 112.29 QM, Annex II.3, Vol. 3, p. 61, at p. 88. Lorimer does of course state that "The term Bahrain
once embraced the promontory of Qatar and the Oases of Qatif and Hasa as well as the islands of
the archipelago" (ibid., p. 87), but this is self-evidently expressed in the past tense in 1907/08;
and no mention whatever is made in any event of the Hawar islands as such.
30 QM, Annex III.195, Vol. 7, p. 497.
31 QR, Annex III.91, Vol. 3, p. 559.
32 See, QCM, Chap. III, Sects. 3 to 7; see, also Sect. 4.D of this Chapter below.
33 Award of the Arbitral Tribunal in the First Stage of the Proceedings (Territorial Sovereignty
and Scope of the Dispute), between the Government of the State of Eritrea and the Government
of the Republic of Yemen, dated 9 October 1998 (hereinafter referred to as the "Eritrea/Yemen
Award"), para. 457. A full copy of this Award is being deposited with the Registry, pursuant to
Article 50, paragraph 2 of the Rules of Court.
34 Reports of International Arbitral Awards, Vol. II, p. 829.
35 Ibid., pp. 854-5; italics in original; underlining added.
36 BM, p. 165, fn. 420.
37 "The Law and Procedure of the International Court of Justice, 1951-4; Points of Substantive
Law. Part II" in 32 B.Y.I.L. (1955-6) p. 72, fn. 2 (QR, Annex III.104, Vol. 3, p. 633, at p. 641).
38 Ibid., at p. 641.
39 Ibid., at pp. 642-643.
40 Sir H. Waldock, "Disputed Sovereignty in the Falkland Islands Dependencies", 25 B.Y.I.L.,
(1948) p. 314, at p. 344 (QR, Annex III.115, Vol. 3, p. 707).
41 I.C.J. Reports 1953, p. 102.
42 G. Gidel, Le droit international public de la mer, Vol. iii (1934), p. 691.
43 See, paragraph 4.24, above.
44 See, QM, Annex IV.203, Vol. 11, p. 13, at p. 23, para. 15.
45 D.W. Bowett, The Legal Regime of Islands in International Law (1979), p. 50 (QR, Annex
III.102, Vol. 3, p. 625).
46 BCM, para. 163, fn. 243.
47 Special considerations may of course apply to lake boundaries such as the one in Lake
Malawi to which Bahrain draws attention.
48 See, QM, Map No. 5 facing p. 50 and Map No. 9 facing p. 145.
49 See, also, paras. 4.7, et seq., above. It should be noted that under Article 5 of the 1982
Convention on the Law of the Sea, the normal baseline from which the breadth of the territorial
sea is measured is the low-water mark along the coast as marked on large-scale charts officially
recognised by the coastal State. In this part of the Gulf, however, it is notoriously difficult to
identify the low-water mark because of the shallowness of the seas. Qatar has therefore hitherto
drawn the three-mile limit from the high-water mark for the purpose of these proceedings.
50 For a full account of these events, see, QM, paras. 3.30, et seq., and QCM, paras. 3.20, et seq.
51 QCM, Appendix 2, Vol. 5, p. 145.
52 Ibid., at p. 147.
53 QCM, paras. 2.68-2.69. The Ruler of Bahrain was paid £1,000 in compensation for the waiver
of his claim to Zakhnuniya by virtue of Article 11 of the Anglo-Ottoman Convention of 29 July
1913.54 QR, Annex III.30, Vol. 3, p. 175.
55 QCM, paras. 2.72-2.74. For further detail, see, QCM, Appendix 2, Vol. 5, pp. 148, et seq.
56 QR, Annex III.55, Vol. 3, p. 339, at p. 348.
57 It was in the context of consideration of this question that Rendel (Foreign Office) expressed
his regret about the decision of the India Office to allot the Hawar islands to Bahrain rather than
to Qatar; see, para. 4.220, below.
58 QR, Annex III.102, Vol. 3, p. 635.
59 Lindley, The Acquisition and Government of Backward Territory in International Law (1926)
p. 7, where the author affirms: "An uninhabited island within territorial waters is under the
dominion of the Sovereign of the adjoining mainland".
60 QR, Annex III.102, Vol. 3, p. 625.
61 See, paras. 1.42-1.44, above.
62 Moore, Digest, Vol. V, pp. 5037-40 (QR, Annex III.111, Vol. 3, p. 677). See, also, QR,
Annex III.102, Vol. 3, p. 625.
63 Translation from the original Spanish, which reads as follows: "Considerando que si bien
aparece comprobado el hecho de que los habitantes de San Eustaquio, posesión neerlandesa, van
á pescar tortugas y recoger huevos á la isla de Aves, este hecho no puede servir de apoyo al
derecho de soberania, porque solamente significa una ocupación temporal y precaria de la isla,
no siendo la pesca en este caso un derecho exclusivo, sino la consecuencia del abandono de ella
por parte de los habitantes de las comarcas immediatas, ó por su legítimo dueño" (QR, Annex
III.111, Vol. 3, p. 677).
64 I.C.J. Reports 1951, p. 157.
65 The significance of fishing activities by private individuals has also been considered recently
in the Eritrea/Yemen arbitration; see, paras. 4.182-4.183, below.
66 Elihu Root in Proceedings of the North Atlantic Fisheries Arbitration, cited in Jessup, The
Law of Territorial Waters and Maritime Jurisdiction (1927), p. 5 (QR, Annex III.110, Vol. 3, p.
673).
67 R.P. Anand, Origin and Development of the Law of the Sea (1982), p. 140 (QR, Annex
III.101, Vol. 3, p. 621).
68 QM, para. 5.72.
69 QM, Annex III.289, Vol. 8, p. 447.
70 QM, para. 5.72, and QM, Annex III.291, Vol. 8, p. 455.
71 Semble, of territories under British sovereignty.
72 D.P. O'Connell, The International Law of the Sea (ed. Shearer), Vol. 2 (1982), pp. 185-6
(QR, Annex III.112, Vol. 3, p. 685).
73 See, H.A. Smith, Great Britain and the Law of Nations, Vol. II (1935), pp. 224-5 (QR, Annex
III.114, Vol. 3, p. 701).
74 Cited in Smith, op.cit., p. 240 (ibid.); also in M.M. Whiteman, Digest of International Law,
Vol. 4 (1965), p. 274 (QR, Annex III.116, Vol. 3, p. 711).
75 Whiteman, op. cit., ibid.
76 Ibid.
77 Jessup, op. cit., p. 64, note 4 (QR, Annex III.110, Vol. 3, p. 673).78 A. Hershey, The Essentials of International Public Law, (1912), p. 173 (QR, Annex III.107,
Vol. 3, p. 657).
79 Oppenheim's International Law, 9th Edn. (eds. Jennings and Watts), Vol. 1, Parts 2 to 4
(1992), p. 600 (QR, Annex III.109, Vol. 3, p. 665).
80 See, para. 4.21, above.
81 Sir R. Jennings, The Acquisition of Territory in International Law (1963), pp. 74-5 (QM,
Annex III.304, Vol. 8, p. 529; emphasis added).
82 Ibid.
83 I.C.J. Reports 1969, p. 22, para. 19.
84 Ibid., p. 31, para. 43.
85 Except where the feature is located in an area where the territorial seas of two opposite States
overlap which could not have been the case in 1936 when both Bahrain and Qatar claimed only a
three mile belt of territorial sea.
86 Sir R. Jennings, The Acquisition of Territory in International Law, op.cit., p. 23 (QR, Annex
III.108, Vol. 3, p. 661).
87 QR, Annex III.104, Vol. 3, p. 633.
88 See, QCM, paras. 3.172, et seq., and Sect. 8 of this Chapter.
89 QR, Annex III.39, Vol. 3, p. 225.
90 For the sake of completeness, it should be noted that, by Article 14 of the Treaty of Peace
with Italy of 1947, Italy transferred to Greece sovereignty over the same 13 named Dodecanese
islands and their "adjacent islets".
91 BCM, para. 496.
92 Award of 14 February 1985, hereinafter referred to as the "Guinea/Guinea-Bissau Award".
The award was published in French and Portuguese, the two official languages of the arbitration;
but an unofficial English translation of the authentic French text of the award is at 25
International Legal Materials, 1986, p. 251.
93 Guinea/Guinea-Bissau Award, para. 21.
94 Ibid., para. 95.
95 Eritrea/Yemen Award, para. 90.
96 Ibid., para. 93.
97 See, QM, Chap. VI, Sect. 3, and QCM, Chap. III, Sect. 6; see, also, paras. 4.173, et seq.,
below.
98 Eritrea/Yemen Award, para. 93.
99 Ibid., para. 124.
100 See, paras. 4.182-4.183, below.
101 Eritrea/Yemen Award, para. 458.
102 Ibid., para. 463, citing the passage from O'Connell to which Qatar makes reference at para.
4.42; emphasis supplied. See, also, paras. 4.43-4.44, above for further discussion of the "portico
doctrine".
103 Ibid., para. 467.
104 Ibid., para. 472.105 Ibid., para. 475.
106 Ibid., para. 474; emphasis added.
107 Ibid., para. 477; emphasis added.
108 QM, Annex III.195, Vol. 7, p. 501.
109 QM, Annex III.203, Vol. 8, p. 13.
110 Fowle and Weightman were also aware of this; see, QM, para. 5.73.
111 QM, Annex III.195, Vol. 7, p. 501.
112 Emphasis added.
113 Sir G. Fitzmaurice, "The Law and Procedure of the International Court of Justice, 1951-
1954: Points of Substantive Law", B.Y.I.L., Vol. 32, (1955-1956), pp. 75-76 (QR, Annex III.104,
Vol. 3, p. 633, footnote omitted).
114 Frontier Dispute, Judgment, I.C.J. Reports 1986, p. 582, para. 54.
115 Ibid., p. 583, para. 56.
116 Beagle Channel Arbitration (Argentina v. Chile), International Law Reports, 1979, Vol. 52,
p. 93, para. 139.
117 Eritrea/Yemen Award, para. 381.
118 Ibid., p. 99, para. 388.
119 Ibid., p. 130, para. 490.
120 See, para. 2.82, above.
121 QR, Map Atlas, Map No. 5.
122 QR, Map Atlas, Maps Nos. 11, 21 and 22.
123 Ibid., Maps Nos. 10, 19 and 23.
124 Ibid., Maps Nos. 18 and 25. See, also, the maps deposited separately with the Court from
this period.
125 Ibid., Maps Nos. 2 and 7.
126 Ibid., Maps Nos. 24 and 29.
127 Ibid., Map No. 14.
128 See, Chap. II, Sects. 4 and 5, above.
129 QR, Map Atlas, Maps Nos. 49, 50 and 51.
130 QR, Annex III.38, Vol. 3, p. 215.
131 See, ibid., Appendix (A).
132 Eritrea-Yemen Award, para. 151.
133 QR, Map Atlas, Map No. 60.
134 See, for example, QR, Map Atlas, Maps Nos. 63-73.
135 QR, Map Atlas, Map No. 71.
136 QM, Annex III.66, Vol. 6, p. 323, at p. 345.
137 See, paras. 2.104, et seq., above, Map No. 5 facing p. 56 and QR, Map Atlas, Map No. 77.
138 QR, Annex III.41, Vol. 3, p. 243.
139 See, QR, Map Atlas, Maps Nos. 83 and 88.140 See, QR, Map Atlas, Maps Nos. 74 and 79.
141 BM, para. 18.
142 Ibid., paras. 412 and 438.
143 See, QM, para. 5.46, Maps Nos. 7 and 8 to the Memorial and the maps deposited with the
Court referred to at para. 5.46, fn. 66 of the QM.
144 See, BM, para. 21, and the sketch map facing p. 7.
145 See, also, para. 3.30, above.
146 BM, para. 345.
147 BCM, para. 159.
148 See, para. 3.1, above.
149 BCM, Annex 1(b), Vol. 2, p. 2.
150 BCM, Annex 2(b), Vol. 2, p. 4. The Arabic text of this document is very difficult to read.
151 These errors are listed in Appendix 2, at the end of this Volume. Amongst other things,
Qatar's translator is unable to find the words "resided in"; he states that what is translated as
"occupied" is really "conquered", and wonders if it is conceivable that the Hawar islands that are
at issue in these proceedings had to be "conquered" in the first century of the Hijri.
152 See, paras. 4.173, et seq., below and the Persian Gulf Pilot extracts in Annex III.113, Vol. 3,
p. 691.
153 BCM, Annex 3(b), Vol. 2, p. 6.
154 See, paras. 3.1, et seq., above.
155 BCM, para. 69.
156 QM, Chap. III, Sect. 3.C and QCM, Chap. III, Sect. 2A to 2C.
157 See, for example, the British Administration Report of the Persian Gulf Political Residency
for 1905-1906 (which preceded Lorimer's Gazetteer) which states that "The purview of this
Agency includes (a) the Protected State of Bahrain, (b) the independent Peninsula of Katar, (c)
the Turkish 'Sanjak of Najd'..." (QR, Annex III.28, Vol. 3, p. 159).
158 QR, Annex III.37, Vol. 3, p. 211.
159 See, QM, Annex III.297, Vol. 8, p. 490.
160 QR, Annex III.99, Vol. 3, p. 609, at p. 611.
161 BCM, para. 84.
162 See, QCM, paras. 3.34, et seq.
163 BCM, Annex 5, Vol. 2, p. 10.
164 QR, Annex III.2, Vol. 3, p. 19.
165 QR, Annex III.3, Vol. 3, p. 23.
166 QCM, Annex. III.9, Vol. 3, p. 65; emphasis added.
167 BCM, para. 76.
168 QM, paras. 5.3 and 5.4.
169 QM, para. 3.31 and QCM, paras. 3.20-3.28.
170 QCM, Annex III.7, Vol. 3, p. 53. Interestingly, it seems as though Britain might not have
intervened against Bahrain if it had itself believed, as Bahrain would have the Court believe, thatQatar was still part of the Ruler of Bahrain's territories. Thus, some years later, with regard to the
1916 Treaty between the British Government and the Sheikh of Qatar (QM, Annex II.47, Vol. 5,
p. 181), Article 1 of which required the Sheikh of Qatar to maintain the maritime peace, the
question arose of whether Britain would allow the Sheikh to "take action by boats against
rebellious villages on the coast" (BCM, Annex 51, Vol. 2, p. 164). The response of the Political
Resident was that "this strictly speaking is a breach of the Maritime Peace to the maintenance of
which the Shaikh subscribed in Article (1) of his treaty with the Government of India, but I do
not think any notice would be taken in the case of a Shaikh using boats to preserve order in his
own territory" (Ibid., p. 165; emphasis added).
171 See, also, QR, Annex III.99, Vol. 3, p. 609, at p. 612.
172 See, BCM, para. 81.
173 See, QM, para. 3.30.
174 See, QM, paras. 3.30-3.32.
175 BCM, para. 81.
176 QM, Annex II.5, Vol. 3, p. 300.
177 Ibid.
178 BCM, para. 81.
179 QM, para. 3.32; emphasis added.
180 BCM, para. 81.
181 See, QM, Annex II.5, Vol. 3, p. 300.
182 See, para. 4.134, above.
183 Under cover of its letter of 25 August 1998 to the Court, Bahrain deposited with the Registry
what it described as "one full copy of the originals of those of Sir Charles' diaries in its
possession" (see, in this regard, paras. 4.274-4.275, below). This is the copy which has now been
examined by Qatar.
184 See, QM, Annex II.11, Vol. 4, p. 291.
185 See, para. 6.67, below.
186 See, para. 3.34, above.
187 QCM, Chap. III, Sect. 3.
188 QR, Annex III.59, Vol. 3, p. 361.
189 QCM, para. 3.53(6).
190 QR, Annex III.89, Vol. 3, p. 545.
191 Ibid.
192 QR, Annex III.54, Vol. 3, p. 331, at p. 338.
193 QR, Annex III.92, Vol. 3, p. 563.
194 Ibid.
195 QM, Chap. VI, Sect. 3 and QCM, Chap. III, Sect. 6.
196 BM, para. 36 and BCM, para. 159.
197 BM, para. 345; emphasis added.
198 BM, Annex 236, Vol. 5, p. 1042; emphasis added.
199 See, QM, Annex III.195, Vol. 7, p. 502.200 QM, Annex II.7, Vol. 4, p. 61.
201 QCM, para. 3.11; BCM, para. 43.
202 BM, para. 120. Qatar has drawn attention to the significant fact that the Hawar islands are
not mentioned as a location even for such use.
203 QCM, paras. 2.5-2.6 and 2.51.
204 QR, Annex II.62, Vol. 2, pp. 365-367.
205 See, para. 3.14, above.
206 See, the Opinion of Judge Wassel Alaa El Din Ahmed Ibrahim of 27 April 1999 (QR, Annex
III.98, Vol. 3, p. 601).
207 See, C. Hamilton, The Hedaya or Guide - A Commentary on the Musulman Laws, Vol. II,
New Delhi (QR, Annex III.105, Vol. 3, p. 647.
208 Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 44, para. 95.
209 In the context of the Anglo-Saudi negotiations in the 1930s concerning the boundary
between Qatar and Saudi Arabia, the British pointed out, in response to a Saudi claim based on
tribal allegiances, that: "... the question of allegiance was not always one which could be settled
decisively. According to the information in the possession of His Majesty's Government many of
the tribes were of uncertain and changing allegiance. There were, of course, certain areas which
were predominantly or exclusively frequented by certain tribes owing a definite and exclusive
allegiance to a particular ruler. His Majesty's Government were prepared to take such
considerations into full account in arriving at a settlement, and indeed had already done so in the
formulation of their present proposals. But it seemed clear that a settlement could not be based
on tribal considerations alone and that there existed other factors which should also be taken
into account" (QR, Annex III.93, Vol. 3, p. 573; emphasis added).
210 See, Map No. 9, facing page 150.
211 BCM, para. 194.
212 BCM, para. 195.
213 QR, Annex III.42, Vol. 3, p. 270.
214 QCM, para. 3.86 and QCM, Annex III.34, Vol. 3, p. 179, at p. 182.
215 QM, Annex III.103, Vol. 7, p. 18; emphasis added.
216 QM, Annex III.174, Vol. 7, p. 378.
217 See, paras. 4.171-4.172, below.
218 QM, Annex III.195, Vol. 7, p. 506.
219 BCM, para. 159; emphasis added. In fact the Dowasir were still returning from Dammam to
Budaiya as late as 1933 (see, para. 4.164, above, and QR, Annex III.42, Vol. 3, p. 270).
220 BM, Vol. 3, pp. 378-379; emphasis added.
221 BM, para. 419, emphasis added. See, also, BM, para. 52 where Bahrain states that "Many of
the Bahraini Dowasir would spend the summer at Zellaq and Budaiya on the main island of
Bahrain and the winter on the Hawar Islands". The statements of individuals filed by Bahrain
with its Memorial also speak of spending a few months every year in the Hawar islands.
222 BM, para. 419.
223 BM, para. 419.
224 QR, Annex III.113, Vol. 3, p. 691; emphasis added.225 Ibid.
226 QM, Annex II.4, Vol. 3, pp. 120-121.
227 QM, Annex III.51, Vol. 6, p. 233.
228 QM, Annex III.157, Vol. 7, p. 285.
229 QM, Annex III.192, Vol. 7, p. 453.
230 Ibid., p. 466.
231 BCM, para. 159.
232 QCM, para. 3.56.
233 QM, Annex III.192, Vol. 7, p. 453, at p. 480.
234 See, QM, Annex III.195, Vol. 7, p. 503.
235 BCM, para. 185.
236 BCM, para. 187.
237 Ibid.
238 BCM, para. 188, fn. 292.
239 BCM, para. 184.
240 BM, Annex 7, Vol. 2, p. 101.
241 The only "evidence" offered by Bahrain in this regard is Belgrave's letter to Weightman of
22 December 1938 (BM, Annex 274, Vol. 2, p. 1129), which can hardly be considered as
objective evidence.
242 QR, Annex III.94, Vol. 3, p. 575; emphasis added.
243 BCM, para. 183.
244 In this context, see, para. 4.164, above, which demonstrates that the Dowasir were still
drifting back from Dammam to Bahrain in 1933.
245 Belgrave's Diary - Entry of Friday, 1st April 1938.
246 I.C.J. Reports 1975, p. 44, para. 95.
247 QR, Annex III.100, Vol. 3, p. 617; footnotes omitted; emphasis added. See, also, extract
from 1949 Proclamations reproduced in para. 7.23, below, and the reservation regarding the
protection of fishing rights in the British Government's letters of 23 December 1947, also
referred to in para. 7.23.
248 Eritrea/Yemen Award, paras. 127-128; emphasis added.
249 Ibid., para. 315; emphasis added.
250 Ibid., paras. 353-356.
251 BM, para. 479, fn. 600.
252 See, para. 4.159, above.
253 QR, Annex III.89, Vol. 3, p. 545.
254 QM, Annex III.192, Vol. 7, p. 453, at p. 460.
255 QR, Annex III.91, Vol. 3, p. 559; emphasis added.
0 See, QM, Annex III.195, Vol. 7, p. 497.
1 See, paras. 4.145, et seq., above.2 BCM, paras. 280-281.
3 QM, paras. 6.132-6.140.
4 QM, Annex III.84, Vol. 6, p. 435.
5 Ibid, p. 433.
6 QM, Annex III.91, Vol. 6, pp. 466-467; emphasis in original.
7 QM, Chap. V, in particular para. 5.48, and Chap. VI.
8 See, para. 2.104, above and QR, Map Atlas, Map No. 77.
9 BCM, Annex 122, Vol. 2, p. 412.
10 QM, paras. 5.48, 5.56, 6.18-6.21 and 6.33-6.39.
11 BCM, para. 197.
12 BCM, para. 205.
13 BCM, para. 217.
14 BCM, Annex 61, Vol. 2, p. 208; in fact a telegram.
15 BCM, Annex 62, Vol. 2, pp. 209-210, also a telegram. The date of this letter is of course long
before the Hawar islands were considered as part of the "unallotted area".
16 BCM, Annex 62, Vol. 2, pp. 209-210.
17 QM, Annexes III.88 and III.91, Vol. 6, pp. 449 and 461.
18 QR, Annex III.43, Vol. 3, p. 271.
19 QR, Annex III.44, Vol. 3, p. 277. The Court will recall that Qatar has shown that subsequent
calculations of the Bahrain land area by the Petroleum Department in London established the
total land area to be 144,768 acres and the additional area (after excluding BAPCO's entitlement
under the first concession) of 44,768 acres obviously could not include the Hawar islands. QM,
paras. 6.16-6.19.
20 QR, Annex III.45, Vol. 3, p. 285.
21 QR, Annex III.46, Vol. 3, p. 291.
22 QM, para. 6.23.
23 BCM, para. 224.
24 QM, Annex III.103, Vol. 7, pp. 17-18.
25 QCM, paras. 3.60, et seq.
26 QM, Annex III.104, Vol. 7, p. 21; emphasis added.
27 Ibid.
28 Ibid.
29 See, in this context, para. 4.143, above.
30 QM, Annex III.106, Vol. 7, p. 30, which letter has been more fully discussed in QM para.
6.35; see, also, paras. 4.251, et seq., above.
31 QM, Annex III.107, Vol. 7, p. 35.
32 QR, Annex III.49, Vol. 3, p. 307.
33 BCM, Annex 75, Vol. 2, p. 239.
34 BCM, Annex 76, Vol. 2, p. 241.35 Ibid., pp. 241-242.
36 BCM, Annex 77, Vol. 2, p. 243.
37 BCM, para. 252; emphasis added.
38 BCM, para. 252, fn. 365.
39 It will be seen however that not every British official concerned regarded the "allotment" of
the Hawar islands to Bahrain as a good idea. See the views of G.W. Rendel of the Foreign Office
in para. 4.220, below.
40 QM, Annex III.111, Vol. 7, p. 51.
41 BCM, para. 255. See, letter from Belgrave to Hood, 18 July 1936 (BM, Annex 78, Vol. 2, pp.
246-247); letter from Walton to Starling, 30 July 1936 (QM Annex III.112, Vol. 7, p. 55);
telegram from Fowle to Secretary of State for India, 12 February 1937 (BM, Annex 80, Vol. 2,
pp. 249-250); all quoted by Bahrain in BCM, para. 255, fn. 368.
42 QM, Annex III.112, Vol. 7, p. 55.
43 QR, Annex III.50, Vol. 3, p. 311. This clearly suggests that the Ruler of Bahrain was himself
anxious to ensure the British would not oppose his claim to ownership of Hawar and result in the
loss of his anticipated revenues from any oil expected to be discovered on the islands.
44 See, QM, Annex III.114, Vol. 7, p. 63 and QR, Annex III.51, Vol. 3, p. 317.
45 QCM, Annex IV.1, Vol. 4, p. 1.
46 QM, Annex III.113, Vol. 7, p. 59.
47 QR, Annex III.56, Vol. 3, p. 349; emphasis added.
48 QR, Annex III.52, Vol. 3, p. 321.
49 QR, Annex III.57, Vol. 3, p. 353.
50 Ibid.
51 QM, Annex III.146, Vol. 7, p. 233.
52 Ibid.
53 See, QM, Annex III.157, Vol. 3, p. 285.
54 QM, Annex III.148, Vol. 7, p. 24.
55 QCM, paras. 3.64-3.66.
56 QM, Annex III.148, Vol. 7, p. 241.
57 QR, Annex III.58, Vol. 3, p. 357; emphasis added.
58 QR, Annexes III.62 and III.63, Vol. 3, pp. 381 and 385.
59 As Qatar has shown (QM, para. 6.76), on the same day, Weightman also wrote to Belgrave
sending him a copy of his letter to the Ruler of Qatar and stating that he would address Belgrave
again: "Should it become necessary to request the Bahrain Government to submit a counter-claim
supported by evidence..." (QM, Annex III.154, Vol. 7, p. 271).
60 QR, Annexes III.61 and III.65-III.68, Vol. 3, pp. 377 and 397-411.
61 QR, Annex III.69, Vol. 3, p. 415.
62 QR, Annex III.64, Vol. 3, p. 391.
63 QR, Annexes III.70 and III.71, Vol. 3, pp. 419 and 427.
64 QR, Annex III.72, Vol. 3, p. 437; emphasis added.65 QR, Annex III.73, Vol. 3, p. 441.
66 Ibid.
67 QR, Annex III.74, Vol. 3, p. 447; emphasis added.
68 Ibid.
69 Ibid.
70 QR, Annex III.75, Vol. 3, p. 459.
71 See, QM, para. 6.78.
72 However, on the basis of advice by Foreign Office Legal Advisers, this recommendation was
not approved and it was agreed that Bahrain's "counter-claim" should be shown to the Ruler of
Qatar.
73 See, QR, Annex III.77, Vol. 3, p. 469; emphasis added.
74 QR, Annex III.78, Vol. 3, p. 479.
75 QR, Annex III.79, Vol. 3, p. 487; emphasis added.
76 QR, Annex III.80, Vol. 3, p. 493; emphasis added.
77 See, para. 4.220, above.
78 QM, paras. 6.82-6.84.
79 QR, Annex III.81, Vol. 3, p. 499.
80 See, QR, Annex III.82, Vol. 3, p. 503.
81 QR, Annex III.84, Vol. 3, p. 515; emphasis added.
82 QR, Annex III.86, Vol. 3, p. 525.
83 Ibid.
84 QR, Annex III.70, Vol. 3, p. 419.
85 QR, Annex III.85, Vol. 3, p. 519.
86 Ibid.
87 Ibid.; emphasis added.
88 Presumably from Bahrain.
89 Ibid.; emphasis added.
90 Ibid.
91 QR, Annex III.87, Vol. 3, p. 529.
92 BCM, para. 281.
93 QCM, Annex III.47, Vol. 3, p. 265, at p. 272; BCM, para. 280. See, also, QCM, para. 3.161
containing an analysis of Weightman's letter.
94 QCM, Annex III.47, Vol. 3, p. 265, at p. 272; emphasis added.
95 Ibid., at p. 273.
96 Ibid., at p. 274.
97 QR, Annex III.88, Vol. 3, p. 539; emphasis added.
98 Ibid.; emphasis added.
99 See, also, QCM, paras. 3.161-3.162.
100 BCM, paras. 281-285.101 QCM, Annex III.47, Vol. 3, p. 265, at p. 272.
102 QM, Annex III.195, Vol. 7, p. 497.
103 See, QM, paras. 6.84-6.85 and 6.139; and QCM, paras. 3.64-3.66 and 3.70-3.71.
104 The 1936 "provisional decision".
105 QM, Annex III.206, Vol. 8, p. 27.
106 See, QM, paras. 6.132, et seq.; and QCM, para. 3.142.
107 QCM, Annex III.48, Vol. 3, p. 275.
108 QM, Annex III. 107, Vol. 7, p. 31.
109 QM, Annex III.170, Vol. 7, p. 351. See, also, the discussion at paras. 4.237, et seq., above.
110 QM, Annex III.170, Vol. 7, p. 351.
111 QM, Annex III.113, Vol. 7, p. 59.
112 QCM, Annex III.47, Vol. 3, p. 265. See, also, para. 4.245, above.
113 See, para. 4.219, above.
114 In the event, the negotiations were not formally postponed because of objections by PCL;
see, paras. 4.235, et seq., above.
115 QM, Annex III.166, Vol. 7, p. 333; emphasis added.
116 QM, Annex III. 164, Vol. 7, p. 323. This draft letter seems to have issued; see, the reply
from Baxter (FO) to Peel (IO) of 12 July 1938, at QM, Annex III.165, Vol. 7, p. 327.
117 See, the Packer Report of 5 December 1939 (BM, Annex 292, Vol. 5, p. 1190 (especially
Section 1)).
118 QM, Annex III.203, Vol. 8, p. 13.
119 QR, Annex III.54, Vol. 3, p. 331.
120 Ibid.
121 Ibid.
122 The entries in the Belgrave diaries for 14 February and 12 March 1927; 29 December 1929;
8, 13 and 21 December 1932; 11 September and 23 December 1933; 25 January and 7 February
1934; 14 February, 3, 27 and 28 March, 12 November and 15 December 1935 - all show
Belgrave's impatience with these demands on him.
123 QM, para. 6.9, read in conjunction with paras. 6.4-6.8.
124 BM, Annex 292, Vol. 5, p. 1190 (wrongly stated to be Report by Weightman).
125 BM, Annex 292, Vol. 5, p. 1190, at p. 1194; emphasis added.
126 QM, Annex III.174, Vol. 7, p. 371, at p. 379.
127 BCM, paras. 377 and 378, together with references in fn. 499.
128 See, QCM, para. 3.161, and QCM, Annex III.47, Vol. 3, p. 265, and paras. 4.227, et seq.,
above.
129 See, QM, paras. 6.72 and 6.73, together with the Annexes referred to therein. There is also
evidence of Belgrave's close relationship with other British officials, such as Prior, Loch and
Fowle. For Prior, see Belgrave's diary entries for 5 April 1929, 2 May 1929, 31 October 1932
and 29 November 1932; for Loch, see entries for 29 November 1932, 2 December 1932, 15
November 1933 and 7 February 1934; and for Fowle, see entries for 6 December 1932, 15
November 1933 and 24 November 1933.130 A copy of the letter from Messrs. Frere Cholmeley of 15 December 1998, and of the
reminder of 2 February 1999, is at QR, Annex III.97, Vol. 3, p. 597.
131 BCM, para. 289. This statement is incorrect. It was in fact Prior himself who concluded that
it was not "practical politics to reverse it [the 1939 decision] now [in 1941]" (see, QM, para.
6.108 and Annex III.299, Vol. 8, p. 127).
132 The entry for 16 September 1926, in the Belgrave diaries includes the sentence: "Prior his
[the PR's] secretary is ill and very sorry for himself".
133 QM, Annex III.229, Vol. 8, p. 127.
134 BCM, para. 299.
135 The entry for 19 April 1927 in the Belgrave diaries states inter alia: "[Barrett] has orders to
go to Kuwait, by the next up boat, for 6 months certainly... His successor is to be one Alban,
quite a young new man..."
136 See, QM, paras. 6.100-6.102, and QM, Annex III.212, Vol. 8, p. 53.
137 See, the Belgrave diary entry for 26 September 1939, cited at para. 4. above. Prior's
manuscript minute where he expressed his view that "a grave miscarriage of justice has
occurred" is dated 25 September 1939.
138 QM, Annex III.220, Vol. 8, p. 89. This is the telegram in which Prior expresses his
disagreement with the notion that territory can be acquired by the erection of "national marks",
and his grave doubts about the justice of the Hawar islands decision.
139 QM, Annex III.322, Vol. 8, p. 99.
140 In this respect, the BCM marks no advance on the BM which also ignored the crucial events
of 1936; see, BM, para. 356.
141 Qatar cannot put a precise date on the Bahraini occupation of Hawar in 1937, simply
because it was effected secretly; but see, QCM, paras. 3.50-3.59. The Court will in addition
recall that there are no Belgrave diaries for the second half of 1936 or for any part of the year
1937, so that further direct evidence on this point is unlikely to be forthcoming.
142 QM, Annex III.152, Vol. 7, p. 261.
143 In his letter of that date to the Secretary of State for India where he states: "... I incline to the
view that Hawar should be regarded as belonging to the Shaikh of Bahrain and that the burden of
disproving his claim lies on the Shaikh of Qatar". See, QM, Annex III.107, Vol. 7, p. 31.
144 QR, Annex III.60, Vol. 3, p. 371; emphasis added.
145 QM, Annex III.152, Vol. 7, p. 261.
146 QM, Annex III.152, Vol. 7, p. 261; emphasis added.
147 For a full and accurate chronology of events, see, in addition to what has been said in this
Section, QCM, para. 3.72; see, also, QCM, paras. 3.60-3.71 and 3.73-3.79 and the documentary
annexes referred to therein.
148 See, QM, Annex III.156, Vol. 7, p. 279.
149 QR, Annexes III.62 and III.63, Vol. 3, pp. 381 and 385.
150 See, also, Sect. 5, particularly para. 4.227, above.
151 QM, Annex III.154, Vol. 7, p. 271.
152 See, QM, para. 6.189.
153 See, para. 4.282, above.
154 QM, Annex III.157, Vol. 7, p. 285.155 As to which see, QCM, para. 3.72.
156 See, QM, para. 5.58.
157 QM, Annex III.150, Vol. 7, p. 253.
158 QM, Annex III.152, Vol. 7, p. 261.
159 Ibid., at p. 263; emphasis added.
160 It is noteworthy that Weightman's interim response to the Ruler of Qatar on 20 May 1938
acknowledges that the Ruler of Qatar's letter of 10 May 1938 was indeed a "protest".
161 QM, Annex III.157, Vol. 7, p. 285, at p. 287.
162 Ibid., at p. 289.
163 See, Sect. 5, above.
164 The reference to "your letter" is to Weightman's letter of 20 May 1938, at QM, Annex
III.156, Vol. 7, p. 279.
165 As in paras. 290 to 299 of the BCM.
166 BCM, para. 289.
167 QM, Annex III.195 Vol. 7, p. 497.
168 QR, Annex III.94, Vol. 3, p. 575.
169 See, QM, paras. 6.244-6.248.
170 See, QM, ibid., and also, at paras. 10.41 and 10.43. See, also, QMJA, Annexes I.56-I.61, and
(particularly) I.62 and I.63, Vol. II, pp. 327-407.
171 QJMA, Annex I.60, Vol. II, p. 371.
172 This is the title given to Sect. 3.3 of Chap. 3 of the BCM.
173 BCM, para. 386.
174 Monetary Gold Removed from Rome in 1943, Judgment, I.C.J. Reports 1954, p. 19.
175 Ibid., p. 32.
176 East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 104 para. 33.
177 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States
of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 431, para. 88;
emphasis added.
178 Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment,
I.C.J. Reports 1992, pp. 258-9, para. 48.
179 Ibid., p. 261, para. 54.
180 Ibid., para. 55.
181 Extracts from the award of the arbitration tribunal of 19 October 1981 in the Dubai/Sharjah
Border case are at QM, Annex III.295, Vol. 8, p. 475.
182 Paragraphs 6.4 to 6.9 of the QM set out the key elements of the award in the Dubai/Sharjah
Border arbitration in this respect.
183 Cited in paragraph 6.8 of the QM.
184 QM, Annex III.295, Vol. 8, p. 477; cited in paragraph 6.4 of the QM.
185 BCM, paras. 393-394.
186 BCM, paras. 390-392.187 QM, Annexes III.150 and III.157, Vol. 7, pp. 253 and 285, respectively.
188 See, paras. 4.217, et seq., 4.251, et seq., and 4.289, above.
189 See, QM, paras. 6.34-6.39; QCM, paras. 3.60-3.63; and QR, paras. 4.217, et seq., above.
190 BCM, paras. 237-259.
191 But note by way of contrast the formal letter of 30 June 1939, from the Managing Director
of PCL to the Under-Secretary of State for India which refers at length to the views of the Ruler
of Qatar; QM, Annex III. 206, Vol. 8, p. 27. See, also, para. 4.250, above.
192 See, para. 4. 224, above; see, also, QM, Annex III.146, Vol. 7, p. 233, para. 4(c).
193 QM, Annex III.183, Vol. 7, p. 417.
194 See, Sect. 6.A, above, and para. 4.313(c), below.
195 See, BCM, para. 410.
196 See, QM, Annex III.152, Vol. 7, p. 261.
197 The Packer Report is at BM, Annex 292, Vol. 5, pp. 1190-94; and Weightman's covering
letter is at QCM, Annex III.48, Vol. 3, p. 275.
198 QR, Annex III.60, Vol. 3, p. 371.
199 In the Norwegian Fisheries case (I.C.J. Reports 1951, p. 116), successive United Kingdom
Governments had failed to protest, over a period of some seventy years, against the application
by Norway of a particular system for the delimitation of the outer limits of her territorial sea and
this was found by the Court to amount to acquiescence by the United Kingdom in that system.
200 QM, Annex III.213, Vol. 8, p. 59.
__________
CASE CONCERNING MARITIME DELIMITATION AND
TERRITORIAL QUESTIONS BETWEEN QATAR AND BAHRAIN
(QATAR V. BAHRAIN)
REPLY OF THE STATE OF QATAR
_____________________________________________
CHAPTER V 231
JANAN ISLAND 231
Section 1. The Basis of Qatar's Title to Janan Island 231
Section 2. Bahrain's Alleged Acts of Sovereignty over Janan Island 235
___________
CHAPTER V
JANAN ISLAND
Section 1. The Basis of Qatar's Title to Janan Island
5.1 In its Memorial, Qatar has shown that when the British Government began its consideration
of proposals to delimit the maritime boundary between Qatar and Bahrain (eventually notified to
both States by letters of 23 December 1947), it was recognised that the composition of the group
referred to as the Hawar islands, which were regarded as belonging to Bahrain by the British
decision of 11 July 1939, had never been carefully considered, far less determined . As Qatar has
already pointed out, the British authorities in July 1939 were ignorant of the area whose fate theywere deciding. This fact was recognised not only by the Political Agent in Bahrain, who
considered that unspecified islands had been allotted to Bahrain simply because they were
2
"assumed" to form a group which had been awarded to Bahrain but even by the Secretary of
State for India who himself recorded that the exact extent of the Hawar islands had never been
accurately defined .3
5.2 By December 1946, however, the British Government had increasingly come to recognise the
significance of evidence relating to Qatar's sovereignty over islands in its territorial waters, a
factor wrongly ignored at the time of the 11 July 1939 decision. Thus, in making his
recommendations on the delimitation of the maritime boundary, the Political Agent "after
4
visiting the islands and examining the situation on the spot with the greatest care" described
Janan in the following terms:
"... The island is barren, but is used by Bahrain fishermen, and I dare say by Qataris on
occasions. It has neither water nor habitation, and beyond the erection of a cairn by the
Bahrain Government I know of no justification for their claim to ownership. The erection of
a cairn should, in my opinion, be given but little consideration since it was not included in
the Bahrain Government's 1938 list. Further the eastern half of the island lies within Qatar
territorial waters and south of the deep water channel which runs close to Janan and not
5
Hawar..."
Accordingly, the Political Agent rightly took the view, later confirmed by the Political Resident
and the Secretary of State for India, that Janan island formed part of the territory of Qatar.
5.3 Qatar has already submitted that the reasons given by it to show that the Hawar islands
belong to Qatar, in particular the principles governing proximity and sovereignty over islands in
territorial waters, fully set out and analysed in Chapter IV above, apply equally to Janan. It is
Qatar's further submission that the reasons given by the British Political Agent in 1946 regarding
the appurtenance of Janan to Qatar should also have been applied by the British with regard to
the appurtenance of the Hawar islands to Qatar.
5.4 The Court will recall that in its Memorial, Bahrain devoted just two paragraphs to its
purported claim to Janan, which name, Bahrain claims, refers to two islands, i.e., Janan and Hadd
Janan, that have a combined surface and merge into a single island at low tide. The only
submission Bahrain makes in its Memorial is that "There is no reason to exclude Janan from the 6
Hawar Islands" and that the island "was used by Hawar residents and other Bahraini fishermen" .
In support of this submission, Bahrain merely provides extracts from two statements of so-called
Hawar islanders. There is no other evidence to corroborate these clearly self-serving statements.
Qatar has already pointed out that apart from the question of whether Bahrain's claim to what it
calls two islands (Janan and Hadd Janan) could even be regarded as admissible, given that the
issue submitted to the Court in this respect was entitled "the island of Janan", the geographical
facts simply do not provide a basis for Bahrain to claim a second island . 7
5.5 With regard to Janan, Bahrain again indulges in its practice of ascribing a contention to Qatar
which Qatar has not made and then proceeding to show that it is without any basis. Contrary to
what Bahrain states in its Counter-Memorial , Qatar has not claimed in its Memorial that Britain
decided in 1947 to "award" Janan island to Qatar. In fact, Qatar has merely pointed out that the
thrust of Britain's decision was that Janan island did not form part of the Hawar islands and
therefore belonged to Qatar; and that the10easons for which Britain decided Janan belonged to
Qatar also apply to the Hawar islands . Furthermore, Qatar reiterates that it has never accepted
any part of the British decision of 11 July 1939 to the effect that the Hawar islands belonged to
Bahrain and that it specifically protested the 1947 decision insofar as it relied upon the 1939
decision, and also insofar as it concluded that the Dibal and Qit'at Jaradah shoals appertained to
Bahrain.5.6 Bahrain then sets out the three reasons given by the Political Resident to the Secretary of
State for India in his letter of 18 January 1947 , i.e., that Janan is separated by a deep water
channel, that it flanks Zekrit Bay, and that it is not included in the Ba12ain Government's 1938
list submitted as part of its claim to ownership of the Hawar islands . Bahrain seeks to challenge
these grounds but fails to recognise, firstly, that each of these grounds is factually correct; or,
secondly, that they supplement the reasons given by the Political Agent in support of his
recommendation reproduced in paragraph 5.2 above which was accepted by the British
authorities. Bahrain nevertheless attempts to discredit these grounds and simply brushes aside the
principle that the coastal State has title to islands located within its territorial waters which the
British applied to Janan in 1947 (and, as shown above, erroneously ignored in 1939 in regard to
the Hawar islands).
5.7 In its attempt to show that the Political Agent (Galloway) was mistaken in excluding Janan
island from the Hawar islands because of its omission from the list submitted by Belgrave in
1938, Bahrain asserts that the Political Agent only considered three lists but that in fact there was
a fourth list. The reference of course is to the 1936 list attached to 13lgrave's letter of 28 April
1936 containing Bahrain's first formal claim to the Hawar islands .
5.8 Qatar has shown elsewhere that this list, which contained the names of only seven islands, in
fact clearly shows that the Ruler of Bahrain was entirely unaware of the actual number and
nature of the islands in the group that he purported to claim; and that this is demonstrated, firstly,
by the fact that in Belgrave's letter it was claimed that "at least four of the larger islands are
permanently occupied by His Excellency's subjects who live there in stone houses as well as
14
barastis..." , a wholly false claim never subsequently repeated by Bahrain itself after that date
except in regard to the main Hawar island; and secondly, by the contents of the three subsequent
lists submitted by Bahrain.
15
5.9 Bahrain's account itself shows that having laid claim to seven named islands16n 1936, a year
later, in August 1937, it submitted a list containing the names of nine islands ; yet another list,
of 29 May 1938 (which Galloway took into account and which did not mention Janan), named
sixteen islands; and a fourth list, of 10 July 1946, contained the names of eighteen islands and
islets. This account strongly supports Qatar's submission that there was no basis for Bahrain's
claim in 1936 to the Hawar islands, of whose composition it had hardly any knowledge.
Furthermore, it certainly does not support Bahrain's contention that, against this confused
background, created entirely by Bahrain, it was the Political Agent who was mistaken in dealing
with Bahrain's various lists and excluding Janan from the Hawar islands.
5.10 Bahrain further claims that the Political Agent relied on unverified geomorphological
survey information about Janan 17. Qatar has now shown the correct geographical position, which
is that Janan island is separated by 17 nautical miles (or more than 30 kilometres) of relatively
deep water from the nearest point of Bahrain and has no geomorphological connections with it at
all, but that it is close to the Qatar mainland coast and is a component of the offshore topography
and the nearshore dynamic system associated with the Qatar coast 18.
5.11 Bahrain then contends that in the negotiations for the oil concession for Bahrain's
"unallotted" area between 1937 and 1939, in regard to the offer of the concession area to PCL,
Janan island was always regarded as part of the Hawar islands. Qatar was of course not
represented in those oil concession negotiations, so that nothing discussed there is opposable to
Qatar. In any event, as Qatar has already shown, during that period there had admittedly been no
considered examination of the significant and highly relevant issues by the British authorities,
particularly those relating to sovereignty over islands in territorial waters, as there was by the
Political Agent in 1946; and if there had been such an examination, in the absence of other
considerations described above 19, the Hawar islands would necessarily have been regarded as
belonging to Qatar. Furthermore, Bahrain's allegation that the Political Agent, in excluding Jananfrom the Hawar islands, was influenced by extraneous considerations , is neither substantiated
nor relevant.
Section 2. Bahrain's Alleged Acts of Sovereignty over Janan Island
5.12 Finally, there is no force in Bahrain's contention that its sovereignty over Janan island can
21
be sustained by evidence "independently of the 1939 British Award" . In addition to the reasons
given by the Political Agent in his letter of 31 December 1946 and cited above, Qatar has already
shown that Lorimer clearly lists Janan (as he does the Hawar islands) as part of Qatar in his
geographical description of the territories constituting Qatar . Furthermore, apart from the
Political Agent's reference to the fact that fishermen from Qatar and Bahrain frequented Janan,
Qatar has also shown that this was part of the custom prevailing in the Gulf region whereby
fishermen from different countries were able freely to visit islands in the area, including Hawar
and Janan, to undertake fishing. As to the Ruler of Bahrain's claim, made for the first time in his
letter of 31 December 1947 , that Bahraini fishermen were "accustomed, with our permission, to
erect huts on the island in the fishing season...", there is no evidence provided by Bahrain in
support. In any event, considering that Janan island is known to be barren and waterless, this
claim is also factually incorrect.
5.13 It will be seen therefore that, on the basis of all the evidence and established principles of
international law relating to islands situated wholly or partially in a State's territorial waters, the
conclusion must be that Janan, as well as the Hawar islands, appertains to Qatar and not to
Bahrain.
__________
FOOTNOTES
1 QM, paras. 7.5-7.11.
2 QM, Annex III.249, Vol. 8, p. 219, at p. 222.
3 QM, para 7.8; see, also, QM, Annex III.246, Vol. 8, p. 207.
4 QM, Annex III.250, Vol. 8, p. 233.
5 QM, Annex III.249, Vol. 8, p. 219, at p. 223; emphasis added.
6 BM, para. 405.
7 See, QCM, para. 4.2.
8 BCM, paras. 313-319.
9 Either in para. 7.5 or in para. 7.11, the two sources cited by Bahrain.
10 QM, para. 7.5.
11 QM, Annex III.250, Vol. 8, p. 233.
12 BCM, para. 318.
13 BM, Annex 246, Vol. 5, p. 1071; QM, Annex III.103, Vol. 7, p. 15.
14 Ibid.
15 BCM, paras. 320-330.
16 BCM, para. 324.
17 BCM, paras. 331-333.
18 QCM, para. 4.3.
19 See, Chap. IV, Sect. 5, above.
20 BCM, paras. 334-335.21 BCM, paras. 363-364.
22 See, QM, para. 7.4.
23 See, BCM, para. 364.
__________
CASE CONCERNING MARITIME DELIMITATION AND
TERRITORIAL QUESTIONS BETWEEN QATAR AND BAHRAIN
(QATAR V. BAHRAIN)
REPLY OF THE STATE OF QATAR
_____________________________________________
CHAPTER VI - ZUBARAH 237
Section 1. The Question of Zubarah Viewed in its Proper Perspective 237
Section 2. The Basis of Qatar's Title to Zubarah 238
Section 3. The Map Evidence 246
Section 4. Bahrain's Claim to Sovereignty over Zubarah is Manifestly Ill-Founded 248
A. The claim of direct exercise of sovereignty by Bahrain over Zubarah 249
B. The claim of indirect exercise of sovereignty by Bahrain over Zubarah, that is to say,
through the Naim tribe 253
1. Bahrain's misstatements with regard to the Naim 254
2. Bahrain's relations with the Naim are of no significance with regard to sovereignty
over Zubarah 257
Section 5. Bahrain's Claim to Zubarah was never recognised by the British; it was not supported
in Bahrain itself; and it was repeatedly disclaimed by the Ruler of Bahrain 266
A. Britain's refusal to recognise the Bahraini claim to Zubarah 266
B. Bahrain's disclaimers of sovereignty 269
C. Lack of any support in Bahrain for the Ruler's claim 270
__________
CHAPTER VI
ZUBARAH
Section 1. The Question of Zubarah Viewed in its Proper Perspective
6.1 As the Court is aware, Bahrain has presented its claim to Zubarah as a claim of sovereignty.
As Qatar has already pointed out, Bahrain never mentioned Zubarah as a subject of dispute
between the Parties during the entire period of the Saudi mediation under the 1978 Framework
and only brought it up for the first time in a draft document to be considered at the second
meeting of the Tripartite Committee in April 1988 . Qatar thereafter immediately protested in
this regard to King Fahd of Sau2i Arabia in a letter in which the Amir of Qatar described the
claim to Zubarah as "astounding" .
6.2 Qatar has now seen Bahrain's own official Annual Report for the year 1376 H. (1937-1938).
That report puts the whole of Bahrain's so-called claim to sovereignty over Zubarah in a proper
perspective when it states: "... Zubara, the subject of this quarrel, is a place of no apparent value. The town is entirely in
ruins, the fort is rapidly crumbling to pieces, there is no water except a few wells which
frequently become dry and the land is barren and salty. The few villages within the Zubara
area are miserable groups of mud huts inhabited by almost starving Arabs. The Khalifah, and
the Arabs of Bahrain, however, regard Zubara as their ancestral home, which in fact it is,
they remember that their ancestors and the early Khalifah Shaikhs built Zubara and are
buried there and they remember its ancient glories, although during recent years visits to
Zubara by the Khalifah Shaikhs have been rare, yet they resent the claim of Qatar that
Bahrain has no rights over Zubara. That the reason of the quarrel is a matter of principle and
3
sentiment makes it all the more difficult to arrive at an understanding" .
The Court will no doubt see that Bahrain's own views (objectively) expressed above, describing
its interest in Zubarah as no more than of sentimental value, must defeat the wholly artificial4
claim to sovereignty over the "Zubarah region" that it now makes in these proceedings .
6.3 While Qatar totally rejects Bahrain's claim to Zubarah - let alone any claim to the so-called
"Zubarah Region" - out of deference to the Court and in order to dispose of this wholly fictitious
claim once and for all, Qatar will briefly address Bahrain's contentions in the Sections that
follow. Before doing so, it is appropriate to recapitulate the essential elements of Qatar's title to
Zubarah.
Section 2. The Basis of Qatar's Title to Zubarah
6.4 As Qatar has already shown, the integrity of the territories of Qatar consisting of the
peninsula, its territorial waters, as well as the adjoining islands situated partly or wholly therein,
including the Hawar islands, has been recognised for over a century. All of the historical and
cartographical evidence referred to by Qatar to demonstrate the territorial integrity of Qatar must
apply with equal force with regard to Zubarah as incontestably part of the territory of the State of
Qatar .
6.5 Qatar has shown that the Al-Thani established their power and influence on the Qatar
peninsula by the middle of the 19 century and, in the period following the 1868 Agreements
and after the arrival of the Ottomans in 1871, steadily expanded and consolidated their authority
over the entire territory of Qatar. Between 1871 and 1913 (when they relinquished their rights in
favour of the Al-Thani), the Ottomans regarded the entire peninsula of Qatar including Zubarah
as part of Ottoman territory, with Sheikh Jassim bin Thani exercising authority over the whole
territory as their kaimakam 6.
6.6 Qatar has shown, by reference to the observations of J. C. Wilkinson (a writer greatly
favoured by Bahrain) quoted in Qatar's Counter-Memorial, that the forebears of the Al-Thani
family, the Ma'adhid, arrived in the Qatar peninsula in the 17 thcentury (long before the Al-
Khalifah) and established a presence in different parts of the peninsula including Zubarah; and
that the Al-Thani had themselves had a connection with or presence in Zubarah over a long
period, even before they came to establish and consolidate their rule over Qatar and exercise
complete control in Zubarah 7.
6.7 The Court will recall that it was with the most important Al-Thani Sheikh that the British
chose to enter into the Agreement of 1868, and that the British thereafter recognised that the Al-
Thani family was not only the effective power on 8he peninsula itself, but was also responsible
for preventing piracies off the coast of Qatar . Qatar has further shown how other historians
including A.H. Cordesman and A. de L. Rush have stated that the 1868 Agreement between
the British and Mohamed bin Thani signalled the ending of Britain's treatment of Qatar as a
dependency of Bahrain and the first recognition of Qatar as a separ11e entity in its own right. The
Court will recall that a similar view was recorded by Lorimer as well as, more recently, by Dr.
Al-Baharna of Bahrain . 126.8 Qatar has described in its Counter-Memorial and in this Reply those events or reports
demonstrating the establishment, consolidation and recognition of Al-Thani authority both over
13
the interior of the peninsula and the coasts of Qatar, including Zubarah, after 1868 . Some of the
more important of these, which are particularly relevant in demonstrating Qatar's incontestable
title to Zubarah (and the lack of any basis for Bahrain's claim to Zubarah), are summarised
below.
(a) In its Counter-Memorial, Qatar has described in detail the British investigation (by Major
Grant) of Bahrain's supposed claim to Zubarah on the basis of its relationship with a section of
the Naim tribe when the claim was first made in 1873, and the rejection of that claim by the
14
British then and ever since .
(b) Following the above-mentioned investigation, a formal declaration was made by the
Governor-General in Council in 1874 that "the Chief of Bahrein had no possessions on the
15
mainland of Katar..." .
(c) Lorimer records that in September 1878, when a piracy was committed by the inhabitants of
Zubarah upon a passing boat, Colonel Ross, the Political Resident, was directed by the
Government of India to demand of the Turkish author16ies that the place should be punished, and
to offer British naval assistance for the purpose . He immediately proceeded to Basrah to meet
the Ottoman Wali who agreed to take appropriate action. In the meantime, however, Shaikh
Jassim bin Thani himself took action against the Naim in Zubarah. Colonel Ross then visited
Zubarah and the camp of Sheikh Jassim, pitched about half a mile from the square fort of Murair,
in which the Naim, numbering about 500, were besieged. The force with Sheikh Jassim
numbered some 2,000 armed men. The Naim besieged in Murair surrendered, on unfavourable
terms, not long after Colonel Ross's departure, and Zubarah as a populated place ceased to exist;
the inhabitants, between whom and Sheikh Jassim a peace seems to have been arranged by the
commander of the Ottoman vessel Iskanderia, were mostly removed to Doha. Colonel Ross, who
visited Sheikh Jassim in his camp at Zubarah but did not interfere in any way with his action to
discipline the Naim, clearly acted in conformity with the British recognition of his authority in
Zubarah. Writing about these events of 1878, K. Ferdinand, an author much relied upon by
Bahrain, notes:
"... in 1878 Zubarah was finally destroyed by the Al-Thani Shaykh of Dohah, who thereby
confirmed his control over the whole of the Qatar peninsula" 17.
It is Qatar's submission that this incident, together with the almost identical incident some
sixty years later (in 1937) described below when Sheikh Abdullah Al-Thani similarly
disciplined a recalcitrant section of the Naim tribe in Zubarah, clearly demonstrates the
effective exercise of Al-Thani authority in Zubarah. The 1878 Al-Thani assertion of authority
was approved and recognised as legitimate by the British as well as the Ottomans. The
legitimacy of the 1937 Al-Thani action was also never questioned by the British authorities.
(d) The British Political Resident issued warnings to Sheikh Jassim bin Thani in 1881, treating
him as being in effective control of the coasts of Qatar and as "having the power to prevent such
movements [by Nasir bin Mubarak] from the Katar Coast" to attack Bahrain from Zubarah as
well as pointing out Sheikh Jassim's "duty to exercise vigilance and prevent any warlike
18
movements by sea" .
(e) In 1889, an official Ottoman document reported that prior to the creation of a nahiye at
Zubarah, Mohammed bin Abdulwahab, a follower of the Al-Khalifah, had, with the consent of
Sheikh Jassim bin Thani, settled at the Murair fort outside Zubarah. Howeve19 when a dispute
arose between them later in the same year, Sheikh Jassim evicted him .
(f) As is also apparent from another Ottoman report of 25 September 1892, Sheikh Jassim levied
taxes on those engaged in pearl fishing and other activities from Zubarah. The report states: "As can be seen from the attached table the yearly revenues from all the pearl boats in Qatar
come to two million five hundred and forty kran. This includes the tax collected under the
name kallata by Jassim Al-Thani from all divers and crews, and the tax called rakabiya. The
tax collected as zakat on sheep and slaughtering fees amounts to seventy five thousand four
hundred and three kran. This total represents the income from the dependent villages of the
kaza and the nahiyes of Zubarah and Udeid..." . 20
(g) The Court will recollect that as part of the 1874 British declaration by the Governor-General
in Council that the Chief of Bahrain "had no possessions on the mainland", the latter was also
asked to "rely for support on the assistance of the British Government, which will, if necessary,
be given hi21either to repel attacks by sea or to frustrate a threatening movement from the
mainland" . This was exactly the support that was given to Bahrain in 1895 when it was
threatened with an attack from Zubarah by a seaborne force (with the backing of Sheikh Jassim
and the Ottomans), and British warships destroyed the threatening fleet in Zubarah harbour . 22
This is clear from the report made by the Political Resident, Colonel Wilson, on 15 September
1895 to the Government of India in which he stated, inter alia:
".... I have the honour to report, for the information of His Excellency the Viceroy and
Governor-General in Council, that on the 6th instant, Commander Pelly, Senior Naval
Officer, Persian Gulf Station, having in his judgment, after careful consideration of the facts
immediately before him, 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 assembled off Zobara, armed and ready for an instant descent on that place" . 23
The British position in this regard was also explained in the British Parliament (as reported in
The Times of 22 February 1896) in the following terms:
"THE PERSIAN GULF
SIR C. DILKE (Gloucester, Forest of Dean) asked the Secretary of State for India if he could
state to the House the reason for the operations conducted during the last year in the Persian
Gulf by her Majesty's ships Sphinx and Pigeon.
LORD G. HAMILTON (Middlesex, Ealing) - In consequence of quarrels between the Sheikh
of Bahrein, who is under the suzerainty of her Majesty, and other local sheikhs, the chief of
the Ali-bin-Ali, apparently supported by the Turks, established himself on the mainland at
Zobara, opposite Bahrein, and about 200 dhows assembled there to attack Bahrein. In order
to maintain the maritime peace to which the tribes are pledged Commander Pelly, of the
Sphinx, was authorized to resist this demonstration provided he was satisfied that the dhows
were assembled with a hostile purpose, and to liberate the Bahrein boats which had been
forcibly detained. As the dhows after due warning refused to disperse they were attacked on
September 6, and 44 were destroyed. On the following day terms were arranged and the
peace of the Gulf re-established" .24
It is important to note that after the 1895 incident, and consistent with the British position
established since 1873 that the Ruler of Bahrain had no rights in Zubarah, the British made
no attempt (nor allowed the Ruler of Bahrain) to occupy Zubarah or to displace Sheikh
Jassim.
(h) The international reaction to the above incident, which also reflects the Turkish connection
25
with Zubarah at the time, is also apparent from a number of German reports of that period .
(i) In an Ottoman document of 11 February 1896 relating to the events of 1895, Zubarah is
presented as very much a part of Qatar:
"Zubarah on the Gulf coast, a subdivision of Qatar, an integral part of the territory of the
Ottoman State, was held under gun-fire by the British fleet" . 26(j) An Ottoman report of 1896 concerns a proposal for payment of a pension to the relatives of a
Sheikh, an Ottoman loyalist (allegedly killed upon his return to Bahrain after the 1895 incident).
Those relatives were living in Zubarah, which was clearly regarded as part of Ottoman territory.
The report states:
"Sheikh Sultan bin Selame's family of fifty is in a destitute state at the Zubarah ruins. In
order to avoid them being exposed to utter destitution, they must be sheltered under the
wings of the beneficent Ottoman Sultan; so it is deemed advisable to pay a monthly pension
of 750 Kurushes to Ali bin Sultan Selame, son of the Sheikh Sultan, to secure their
livelihood. The said amount will barely cover their daily expenses. To secure the livelihood
of the progeniture and family of the Sheikh Sultan who, on more than one occasion, fought
for the Ottoman State by opposing the seditious activities and provocations by foreigners and
made proof of his loyalty to the Ottoman Sultan and Khalife, is but a consequence of the
endless mercy of our Sultan. Under the circumstances, I humbly beg that the said pension of
750 Kurushes be granted to the person in question" . 27
(k) Qatar has already referred to other Ottoman documents describing the peni28ula as the kaza
(district) of Qatar which included the nahiye (sub-district) of Zubarah . Two annexes to
Bahrain's Memorial clearly support this position, as do a large number of other Ottoman
documents referred to in Chapter II of this Reply, and Map No. 15 in the Map Atlas 30.
(l) An Ottoman letter of 8 April 1903 notes that Zubarah is located "to the north-east of the
centre of the kaza" .31
(m) That Zubarah is an integral part of the territory of Qatar is also apparent from the recognition
of the territories of Qatar by the Anglo-Ottoman Convention of 1913, incorporating a provision
that the Qat32 peninsula would be "governed, as in the past", by Sheikh Jassim bin Thani and his
successors .
(n) The British-Qatar Treaty of 1916 and the British Resident's confirmation (reproduced above)
to the Ruler of Qatar that "... you are the Ruler of all Qatar and the Treaty extends to the whole
of Qatar" must clearly cover Zubarah as part of Qatar 33.
(o) During the discussions relating to the granting and then to the extension of Bahrain's oil
concession in the 1920s and 1930s, Bahrain did not at any time contend that Zubarah was part of
its territory to be covered by any concession. Qatar has shown that in fact Bahrain later
acknowledged explicitly in 1944 that Zubarah was covered by Qatar's oil concession 3.
(p) When the Qatar oil concession was finally signed in 1935 with the approval of the British
Government, it clearly included the whole of the Qatar peninsula, including Zubarah, as is also
35
confirmed by the map attached to the concession .
(q) As Qatar has shown, in the 1930s Qatar was increasingly concerned to protect the security of
36
its borders and control imports through the imposition of customs duties . When the Ruler of
Qatar took steps to impose such controls in the Zubarah area, these efforts were obstructed by a
section of the Naim tribe in 1937. While the details of this incident are fully described in Qatar's
Memorial and Counter-Memorial , the Court is respectfully referred to certain additional
38
documents which shed more light on the event . For present purposes, it is only necessary to
point out that in view of the Naim obstruction, the Ruler of Qatar decided in July 1937 to impose
his authority over the dissenting Naim by force and put an end himself to the smuggling and
other activities occurring. When the Ruler of Bahrain requested the British to intervene to stop
the Ruler of Qatar, the British refused on the basis that Zubarah was very much part of th39Ruler
of Qatar's territories and the Secretary of State for India concurred with this view . Furthermore,
by 5 July 1937, the dissenting Naim had surrendered and their leader, Rashid bin Jabor, agreed
with the Ruler of Qatar to obey the laws of Qatar while he resided in Qatar . 406.9 As submitted above, this Al-Thani action in disciplining a section of the Naim tribe in
Zubarah was the second such action in 60 years (the first one being in 1878). These two
assertions of Al-Thani authority in Zubarah are a clear expression of Qatari sovereignty over
Zubarah. The events and facts described above, the consistent British refusals over nearly a
century to acknowledge any sovereign rights of Bahrain in Zubarah, as well as Bahrain's
numerous disclaimers of sovereignty over Zubarah, establish Qatar's incontestable title to
Zubarah. That title was, over the years, recognised by the British, the Ottomans and other
European powers. As also shown below, Bahrain's only interest was, firstly, concern for the
individuals comprising a section of the Naim tribe and not for any territory in which they may
have been present at different times and, secondly, keeping the Naim in good humour to ensure
that they helped protect Bahrain against any attacks on its territories from Zubarah. The British
shared Bahrain's concern about this last point, and took steps from time to time to prevent threats
to the security of Bahrain from Zubarah.
Section 3. The Map Evidence
6.10 The map evidence discussed earlier in this Reply and included in Qatar's Map Atlas
confirms the fact that Zubarah has consistently been recognized as forming part of Qatar and as
therefore falling under its sovereignty. Since many of the relevant maps have been addressed in
connection with the description of the territorial integrity of Qatar (Chapter II) and Qatar's title to
the Hawar islands (Chapter IV), the present discussion can be kept brief. Not surprisingly, the
maps demonstrate that the territorial integrity of Qatar extended over the entire peninsula
including the Hawar islands. They thus necessarily confirm Qatar's sovereignty over Zubarah. In
contrast, Bahrain has failed to present any cartographic evidence which even remotely supports
its extravagant claim either to Zubarah itself or to an artificially defined area called the "Zubarah
Region".
6.11 To give a taste of the extensive cartographic evidence which supports Qatar's position,
reference may be made to the following maps in the Map Atlas:
· Maps Nos. 5, 6, 8, 9, 11, 21, 22, 31, 39, 45 and 53, prepared under the auspices of the Justus
Perthes Institute between 1875 and 1917, all of which specifically label Zubarah (Sabara) on the
maps and show it as part of Qatar by colour coding;
· Map No. 15, prepared by the Ottoman authorities in 1890, depicting the kaza of Qatar as
extending over the entire peninsula, and identifying Zubarah as a town within that kaza;
· Maps Nos. 24 and 29 published in The Times Atlas, London, in 1895 and 1900, respectively,
which also label Zubarah and show it within Qatari territory;
· Map No. 30, a 1901 map produced by the British War Office, Intelligence Division, which
shows Zubarah as part of "El Katr";
· Map No. 20, prepared by the Russian General Staff in 1894, and map No. 88, published by the
Central Administration of Geodetics and Cartography of the U.S.S.R. in 1939/40, on both of
which Zubarah can be seen to fall within Qatar's territory.
· Map No. 33, published in 1904 by G.S. Hammond and Co. of New York, on which Zubarah is
also identified as situated within Qatar;
· Map No. 34, an official French map prepared in 1905 by the Geographic Service of the
Ministry of Foreign Affairs, which also labels Zubarah and shows it as falling within Qatar's
territory;
· Map No. 43, a further French map published in 1911 by Hachette & Cie., Paris, which depicts
the same situation; and· Maps Nos. 48 (1914) and 57 (1917) published by George Philip & Son, and Maps Nos. 59
(1917), 80 (1935) and 81 (1935), published by John Bartholomew and Son, all of which clearly
show Zubarah as part of Qatar.
6.12 As the Court will appreciate, the maps referred to above, which constitute only a sample of
the relevant cartography, span a considerable period and come from a variety of official sources
and highly respected cartographic houses located in a number of different countries. When
considered together with the historical evidence discussed in the previous section, the map
evidence leaves no doubt whatsoever as to Qatar's sovereignty over Zubarah.
Section 4. Bahrain's Claim to Sovereignty over Zubarah is Manifestly Ill-Founded
6.13 Qatar has already shown in its Memorial and Counter-Memorial that the Al-Khalifah - one
section of the Al-Utub tribe - along with anothe41section of the same tribe, the Al-Jalahma,
settled close to the town of Zubarah in 1766 . Qatar has also shown that the Al-Utub and various
Qatari tribes took control of Bahrain from the Persians in 1783, less than twenty years later, and
that thereafter the Al-Khalifah section of the Al-Utub moved their headquarters from Qatar to
Bahrain . After that date, there is no evidence of any control or authority exercised by the Al-
Khalifah in or over Zubarah.
6.14 Qatar has also demonstrated that when, in 1868, the British recognised Qatar and Bahrain as
43
separate entities, Zubarah was considered as part of Qatar and not as part of Bahrain , and that
during the period of the Ottoman presence in Qatar Zubarah continued to be considered as part of
the political entity of Qatar, by both the British and the Ottomans.
6.15 Against this background, Bahrain makes the curious assertion that it has invoked "the most
cogent evidence of State activity, as well as continuous and peaceful display of territorial
sovereignty, over a period of two centuries", over what it refers to as the "Zubarah Region" . 44
However, both Bahrain's Memorial and its Counter-Memorial are striking for the lack of any
evidence, cogent or otherwise, of such sovereignty.
6.16 The present section will in the first place address Bahrain's claim to have exercised
sovereignty directly over the so-called "Zubarah Region". Qatar will then deal with Bahrain's
claim to have exercised sovereignty over the so-called "Zubarah Region" indirectly through the
Naim tribe.
A. The claim of direct exercise of sovereignty by Bahrain over Zubarah
6.17 It will be noted at the outset that, even before the British recognition in 1868 of the
separation between Qatar and Bahrain, there is a dearth of evidence with regard to any exercise
of sovereignty by the Al-Khalifah over Zubarah. Bahrain's claim appears to be based, at least in
part, upon the assertion that it was the Al-Khalifah who founded Zubarah. There is, however, no
basis for this assertion. First, Bahrain seems to have forgotten that it was not only the Al-
Khalifah section of the Al-Utub who settled at Zubarah in 1766, but also the Al-Jalahma section
which, although it participated in the conquest of Bahrain from the Persians in 1783,
45
subsequently left Bahrain, returned to Qatar, and no longer had any connection with Bahrain .
6.18 Second, in any event, as Qatar has already shown in its Memorial, Zubarah existed before
the arrival of the Al-Utub .46
6.19 With regard to the period between the time of the Al-Khalifah's departure to Bahrain in
1783 and the 1868 Agreements, Bahrain has produced no evidence of any exercise of authority
by the Al-Khalifah in Zubarah. Indeed, as has been se47 above, at this time the Al-Khalifah were
hardly able to exercise authority in Bahrain itself .
6.20 As for the period following the 1868 Agreements, Bahrain contends that "Ottoman and Al-
Thani authority never extended beyond the enclave comprising Doha and its immediate 48
hinterland, despite no less than six attempts to extend their authority to the Zubarah Region" ,and that "Britain and Bahrain rebuffed the Ottoman Empire and the Doha confederation in their
attempts to exercise authority over the Zubarah Region from 1874 to 1903" 49.
6.21 Qatar has already shown in its Counter-Memorial that Bahrain's account of the six events
referred to is grossly inaccurate and distorted . A few words should however be added with
regard to the incident which occurred in 1903. According to Bahrain, Britain invoked Bahrain's
51
sovereignty over Zubarah on that occasion . In fact, this is just one more example of Bahrain's
distortion of the evidence: the sources relied upon by Bahrain in this regard refer only to
Bahrain's security; there is not one word about its alleged "sovereignty".
6.22 Thus, Bahrain reproduces a truncated extract from a letter written by the Political Resident
in 1903, according to which:
"the occupation of Zobara [by the Ottoman Empire] would be viewed with the greatest
concern by the Chief of Bahrein, who considers the place to be an appanage of his, and
whose rights we are bound to maintain..." . 52
The whole passage from which this citation has been extracted by Bahrain in fact reads as
follows:
"It is, in my opinion, absolutely essential for the security of the Bahrein islands that Zobara
should not be occupied by the Turks. Apart from the fact that the occupation of Zobara
would be viewed with the greatest concern by the Chief of Bahrein, who considers the place
to be an appanage of his, and whose rights we are bound to maintain, the prestige which the
Turks would gain throughout the countryside by the occupation of this place, in opposition to
the well-known views of the British Government, would be so great that an attack on
Bahrein from Katr could at any time be organized, and the continual presence of a ship of
war in Bahrein waters, and perhaps even a military occupation of the islands, would be
required" 53.
In fact, the only concerns of the British here were once more to limit Ottoman influence and to
ensure the security of Bahrain, but this did not constitute an invocation or recognition of
Bahrain's sovereignty over Zubarah.
6.23 As for the Ottomans, Bahrain contends that they never exercised authority over Zubarah 54.
Qatar does not dispute the fact that there was no permanent official Turkish presence in Zubarah
between 1871 and 1915, but this is not the important point. The fact is that the Ottomans always
conside55d Zubarah as an integral part of Qatar and the Ottoman Empire, as indeed did third
parties . What is important in the context of sovereignty over Zubarah is that at this time the Al-
Thani were exercising authority in the area. As has been shown in the preceding Section, there
are numerous examples of the exercise of Al-Thani authority. Bahrain is quite unable either to
provide evidence to the contrary or to assert a single comparable example of an act of
sovereignty accomplished by itself or on its behalf in or over Zubarah during the period of the
Ottoman presence or later.
6.24 A further word should be said about the British request made in 1911 to Sheikh Jassim to
allow Bahrainis to settle in Zubarah, in exchange for payment of an annual rent - a request which
was refused by Sheikh Jassim. This event has been relied upon in Qatar's Memorial as evidence
of the British understanding that Qatar had full and effective control over Zubarah 56. Bahrain
advances a twisted interpretation of the same event, however, characterising it as an attempt by
Britain "to entice Jasim bin Thani into agreeing to the de jure recognition of the de facto
situation in the peninsula" in the context of "concerted action by Britain to follow a policy that
was described by British officials as: 'devoted to contracting this Chiefship [Sheikh Jasim] to its
narrowest possible limits'" 57.
6.25 The idea that the request was made in the context of such a "concerted action" by the British
is once more a complete misreading by Bahrain of the documentary evidence. First, the requestwas made by Britain in 1911, while the document which allegedly sets out a concerted British
policy dates from 1905. Second, the suggestion made in 1905 that Sheikh Jassim's authority
should be contracted to the narrowest possible limits was a personal suggestion by the Political
Agent, linked to the British desire to restrict the concomitant Ottoman authority, and was quickly
dismissed .58
6.26 Furthermore, Bahrain's suggestion that Sheikh Jassim was somehow being bribed to
recognise "the de facto situation in the peninsula" cannot be reconciled with the fact that the
British made the request to Sheikh Jassim, offered payment of an annual rent, and took no
measures to contest Sheikh Jassim's refusal. In Qatar's submission, these are all clear indications
that the British considered that Sheikh Jassim was sovereign over the territory concerned.
6.27 Qatar has already demonstrated the fallacy of Bahrain's contention that after the 1913
Convention, the Al-Thani were losing their control over Doha and the Ruler59f Bahrain
"remained in possession of the northern part of the Qatar peninsula" . In this regard it will be
recalled that in 1919, the Ruler of Bahrain tried to re-open the Zubarah issue by asking the
British to be allowed to occupy that place. He was however coolly received by the Political
Agent, who wrote on 6 December 1919 that the ruling family of Bahrain were "rather
unnecessarily filled with ideas of their own importance" and that:
"... the suggestion of Shaikh Isa's that he be allowed to revive a ten year-old controversy
should be nipped in the bud. The new move is obviously an attempt to extend his power
territorially and financially at the expense of Ibn Saud and Abdullah bin Jassim [Al-Thani]
and will only end in trouble" .60
The sketch map attached by the Political Agent to his letter clearly shows that Zubarah was an
integral part of the territory of Qatar61.
6.28 Finally, Bahrain contends that its "sovereignty over Zubarah could not have been lost by
Qatar's armed attack in 1937" and that it made "24 officially recorded protests and claims in
relation to the Zubarah Region... to Britain and Qatar between 1937 and 1961" 6. Qatar will not
review all these alleged protests and claims, which are listed but not discussed in the Bahrain
Counter-Memorial. However, it may be noted that in general they are related less to sovere64nty
than to personal jurisdiction, private property rights or simply questions of prestige . Moreover,
as has already been noted and as will be further discussed below, the British Government never
recognised any Bahraini claim to sovereignty in or over Zubarah, and Bahrain has on numerous
65
occasions expressly disclaimed sovereignty over Zubarah .
6.29 Having reviewed Bahrain's contentions above, it is striking that Bahrain has presented
absolutely no evidence whatsoever of the exercise by Bahrain of any direct sovereignty over
Zubarah at any time during the last 200 years.
B. The claim of indirect exercise of sovereignty by Bahrain over Zubarah, that is to say,
through the Naim tribe
6.30 As there is no evidence to support any direct exercise of authority by the Al-Khalifah in
Zubarah, Bahrain lays great stress upon the alleged relatio66hip of the Naim tribe with the Ruler
of Bahrain in a further attempt to prove its sovereignty .
6.31 Qatar has already shown in its Counter-Memorial that the supposed allegiance of the Naim
towards the Ruler of Bahrain cannot serve as a basis for Bahrain's claim to Zubarah since:
- the links of allegiance of the Naim towards the Ruler of Bahrain have not been proven 6;
- the territory claimed by Bahrain was not occupied permanently or even regularly by the
Naim ;68
- the territory claimed by Bahrain was frequented - on the rare occasions when there was
settlement in that region - not only by sections of the Naim tribe other than the Al-Jabr (thesingle section on which Bahrain relies to establish its title to Zubarah) , but also by other
70
tribes ;
- even if there had been some link between the Al-Jabr section of the Naim tribe and the Ruler of
Bahrain, this could not serve as a basis for any claim of title to Zubarah by Bahrain in the
absence of any evidence of the exercise of acts of political or public authority by Bahrain in
Zubarah .71
6.32 Nevertheless, Bahrain has continued to argue that it exercised its sovereignty continuously
over the so-called "Zubarah region", from the 1760s until 1937, by means of the presence of the
Naim tribe which, according to Bahrain, was at all times loyal to the Al-Khalifah. In the
following sub-sections, Qatar will examine the various assertions made by Bahrain in its
Counter-Memorial in this respect. More particularly, Qatar will show that Bahrain has made
numerous misstatements with regard to the Naim; and that the alleged relationship between
Bahrain and the Naim has no significance with regard to sovereignty over Zubarah.
1. Bahrain's misstatements with regard to the Naim
6.33 Bahrain's pleadings contain a number of contentions regarding the role of the Naim which
are simply not supported by the evidence upon which Bahrain relies.
6.34 A critical element of Bahrain's claim is that the Naim maintained a permanent presence in
the "Zubarah Region" throughout the 19 and 20 centuries until 1937 . Bahrain has produced
no contemporary evidence which proves the existence of an identifiable "Zubarah Region"
distinct from the town of Zubarah. Moreover, not only Qatar but also Bahrain has produced
evidence that Zubarah was completely deserted for long periods during the 19 thand 20 th
centuries. For example, Lorimer records the destruction of Zubarah by fire in 1811 and the re-
occupation of "the deserted site of Zubarah" some thirty years later, and f74 a period of only a
few months, by Sheikh Abdullah and Sheikh Mohamed Al-Khalifah . Although the Naim
returned to Zubarah at some time thereafter, it should be recalled that they left again in 1878 and
were mostly removed to Doha 75. This information is confirmed by an appendix to the 1879-1880
Report of the P76itical Resident, which states that Zubarah, like Khor Hassan and Robeyjah, was
"uninhabited" . Some years later, in a letter addressed to the Turkish Ministry of the Interior in
1903, the Governor of Basrah wrote:
"As Udeid and Zubarah had no population and settlements, the Mudirs formerly appointed in
Katar were on the regular payroll without having discharged their functions... The Zubarah
and Udeid nahiyes are dens of robbers forming an uninhabited area devoid of all shelter
77
where the supply of food and other necessaries is beyond possibility" .
While Qatar does not dispute that Zubarah may have been frequented from time to time - indeed,
as was usual in the Gulf region, a number of tribes had a nomadic way of life which led them to
move from one place to another - the above evidence cannot be construed as supporting the idea
of a permanent settlement in Zubarah or its vicinity in the 19 century and the earlier part of the
20 century.
6.35 Bahrain also contends that "an 1893 report by the Ottomans confirmed that the Naim tribe
was living in the Qatar peninsula, that its tribal dirah included Zubarah and that it was a Bahraini
78
tribe" . What Bahrain neglects to point out with regard to this report is that the Naim are listed
as one of the three principal tribes "in the territory of Qatar" - a description which immediately
rules out any idea of their somehow conferring Bahraini sovereignty over the areas within which
they moved. Furthermore, there is no mention in the report of a Naim dirah.
6.36 It will be recalled that in its Counter-Memorial Bahrain put forward the idea that until 1937
the Qatar peninsula was shared out among three "confederations", one of which was the "Naim-
led tribal confederation in the north (whose allegiance lay with the Al-Khalifah dynasty)" which,
along with Saudi tribes, "dominated" what Bahrain refers to as "the pearl merchant enclave inDoha (the tiny Al-Thani-led Doha confederation...)" . The idea of a "Naim-led tribal
confederation" which somehow exercised the authority of the Ruler of Bahrain in the Qatar
peninsula is just as far-fetched as the idea of the Al-Thani being no more than the leaders of a
tiny and insignificant group of merchants in Doha . This "Naim-led tribal confederation" is
again something which has appeared for the first time in Bahrain's Counter-Memorial.
6.37 In order to support its contentions in this regard, Bahrain has regrettably engaged again in
mis-citation of the evidence. For example, we read in the body of the Bahrain Counter-Memorial
that "the Naim-led northern tribal confede81tion participated in Muhammed bin Khalifa's 1848
victory over a challenger to his throne" ; yet the document cited in support of that statement
says no more than that Sheikh Mohamed "was received by the Al-Naim tribe who were ready to
fight" . There is no mention of a "Naim-led tribal confederation". Bahrain further relies upon a
1906 report in support of its statement that "the loyalty to Bahrain of the83aim-led tribal
confederacy in the north of the Qatar peninsula remained undisputed" . Reference to that report
shows, however, that there is no mention of the Naim at all, and that the author judged, with
respect to the tribe concerned, that "the Chief of Bahrein is quite incapable of imposing his will
84
upon them for any practical purpose" . A final example of Bahrain's exaggeration in this regard
concerns the alleged integration of "the Naim-led confederation" into "the political economy of
Bahrain" ; again, the source upon which Bahrain relies refers only to the Naim themselves,
without mentioning any other tribes that might have formed such a confederation . As to the
supposed unswerving allegiance of the "Naim-led confederation" to the Al-Khalifah, Qat87 has
already shown, and will show further below, that this notion is quite unfounded .
2. Bahrain's relations with the Naim are of no significance with regard to sovereignty over
Zubarah
6.38 Bahrain argues that the loyalty of the Naim to the Al-Khalifah remained undisputed until
88
1937 and that this provided at least one basis for its claim of sovereignty . The evidence that
Bahrain relies upon simply does not support this contention.
6.39 First, it must be recalled that the immediate precursor to the 1868 Agreements was an
incident which occurred in October 1867 between the Naim and the Ruler of Bahrain. That
incident was reported by the Assistant Political Resident as follows:
"One Ali bin Thamir al Naemiee of the Bedouins of Guttar having been seized and sent to
Bahrain by Shaikh Ahmed bin Mohamed bin Sulman the representative of the Chief of
Bahrain on the Guttar Coast for going to his tribe, the naimes of Wakra, the naimes and the
people of Biddah, Doha and Dougha combined and demanded his release. This dem89d was
refused, and they then determined to turn Shaikh Ahmed out of Wakra" .
As Qatar has already shown in its Memorial, this eventually led to the sack of the eastern towns
of Qatar by the united forces of Bahrain and Abu Dhabi, the scattering of the members of the
Qatar tribes (including the Naim) throughout the region, the retaliation led in June 1868 by the
united tribes of Qatar against Bahrain, and finally the conclusion of the 1868 Agreements . 90
6.40 In the light of these events, it is easy to understand why the British were sceptical when in
1873 the Ruler of Bahrain asserted that the Naim were his subjects. As Qatar has noted, the
British observed at that time that the rights claimed by the Ruler of Bahrain over the Naim were,
91
at best, purely nominal . In addition, they observed that the Ruler of Bahrain "has not the power
if he wished to protect tribes residing in Guttur". Writing to the Political Resident, the First
Assistant Political Resident stated that:
"From what I have heard whilst living in Bahrein, I should say that 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 Guttur seems to have varied in proportion to the power of coercion those rulers possessed; if the Chief of Bahrein
92
was strong the tribes acknowledged his supremacy; if he was weak they denied it" .
These remarks can hardly support Bahrain's argument that there existed a special and
unwavering relationship between the Ruler of Bahrain and the Naim.
6.41 However, Bahrain mentions certain British documents dating from the 1870s and 1880s,
93
which reported that the Naim "maintain intimate friendly relations with the Chief of 94hrain"
and that the latter "makes yearly presents of considerable value" to the Naim . But this is not
indicative of strong ties of allegiance between the Naim and the Ruler of Bahrain, especially
when, as one of the same sources recorded, "a large portion of the revenues of Bahrain are
95
dissipated in this manner without any ostensible compensating advantage" . This is certainly not
sufficient to establish a relation of overlord to subordinate, with the former exercising
sovereignty over the territory occupied by the latter.
6.42 Bahrain similarly observes that in 1875 the Ruler of Bahrain was said to spend:
"... three to four thousand krans every month on the people of Zobarah, and gives Nasir bin
96
Jabor [the Naim headman] 300 krans per mensem" .
Beside the fact that this is not significant in terms of allegiance , Bahrain has failed to reproduce
the whole extract, which continues as follows:
"This salary to Nasir bin Jabor has been disbursed since the siege of Zobarah last year" . 98
In other words, even assuming, arguendo, that such payments could imply ties of allegiance,
they are certainly not proof of the longstanding links of allegiance that are alleged by Bahrain 99.
6.43 Bahrain also contends that the so-called "Naim-led confederation" was integrated into the
political economy of Bahrain. However, Lorimer recalled, writing in 1908, that in the summer:
"most of them [the Naim] remove to Bahrain and form camps in the northern part of the main
island, but some take up their summer quarters near Dohah in the Qatar peninsula" 100.
In other words, it cannot seriously be contended that the Naim had special and exclusive links
with Bahrain.
6.44 Qatar does not dispute that some of the Naim may have migrated between Qatar and
Bahrain. However, Bahrain seems to imply that the territory of one country frequented by private
persons of another country and even nomads can become the territory of the latter. In Qatar's
submission, such a criterion cannot be a basis for any title of sovereignty. As Sir Gerald
Fitzmaurice stated:
"It has long been well settled that the hunting, whaling, guano collecting, exploring and other
similar activities of private individuals acting on their own, however numerous and
extensive, do not per se confer on their State a title to sovereignty over the areas
concerned" 10.
Reference may also be made to the recent Award in the Eritrea-Yemen case, where the Arbitral
Tribunal noted that fishing activities by private persons do "not constitute evidence of effectivités
for the simple reason that none of these functions are acts à titre de souverain" 102. This was of
course particularly true in the Gulf where, from time immemorial, people moved from one
territory to another in pursuit of their economic activities.
6.45 In any event, after the incident of 1937, which Bahrain characterises a103 Qatari invasion of
the territory of Bahrain's "Naim-led tribal confederation in the north" , and after the Naim had
agreed to obey the laws of Qatar, an Intelligence Report of the Political Agent of August 1937
recorded that:
"The Shaikh [of Bahrain] asked for written permission to allow the Naim to come to Bahrain
if they so desired which was granted, but the Naim did not appear to desire to leave Qatar where they had sufficient grazing for their flocks which probably they would not have been
104
able to obtain in Bahrain" .
Accordingly, even if the Naim were to be regarded as a Bahraini tribe, their presence in parts of
Qatar was determined by whether there was better grazing there or in Bahrain, and can clearly
provide no support to any Bahraini claim to have exercised authority over any part of Qatar.
6.46 Moreover, there was no special and exclusive relationship between the Rulers of Bahrain
and the Naim. In this regard Bahrain refers to Lorimer's observation that the Naim had
"immigrated from Oman several generations ago at the invitation of the Utub, then in Qatar, for
the purpose of expelling the Al Mussalam" 105, inferring from this that:
"The Naim tribe and the Al-Khalifa quickly entered into a mutually 106antageous
relationship of Ruler/benefactor and dependent/beneficiary" .
107
There is no basis for such an inference. As Qatar has already recalled in its Counter-Memorial ,
Lorimer stated in the same extract that:
"The Bedouins of the northern Na'im are retained as mercenaries both by the Shaikh of
Bahrain and by the Al Thani Shaikhs of Dohah, and the protection of those Shaikhdoms is
considered to devolve principally upon them during the absence from home of the pearl
fleets"108.
Lorimer added:
"Their efficiency and trustworthiness are not however beyond doubt, and their presence in 109
Bahrain in summer is a source of annoyance to the peaceable agriculturists of other tribes" .
Consequently, the picture painted by Bahrain of a loyal tribe owing exclusive allegiance to the
Al-Khalifah does not square with the historical facts as reported by Lorimer.
6.47 Some years later, in 1926, Prideaux, the Political Resident, noted that it was necessary for
the Sheikh of Qatar:
"to arm contingents from the Bedouin tribes - Bani Hajir, Naim and Manasir - who, although
they do not reside all the year round in his territory but spend periods in the interior of
Trucial Oman, yet admit themselves to be feuda110y to him and must be controlled by
periodical gifts of arms and ammunition" .
The implication of this is that the Naim owed their allegiance to the Ruler of Qatar.
6.48 Bahrain however stresses the fact that "members of the Al-Jabr branch of the Naim tribe -
includi111their Chief" appear on the Bahrain Civil Lists and Pension Lists dating from the
1920s . Qatar would simply comment as follows. Even if, arguendo, the presence of members
of the Al-Jabr section of the Naim tribe on such lists could have had some significance, it was
limited to a few members of a single section of the tribe and to their chief, and had no
significance for the rest of the Naim tribe.
6.49 Bahrain further contends that in return for financial support received from the Ruler of
Bahrain:
"... the Naim tribe paid taxes to the Ruler of Bahrain, acted as his guards, and performed a
variety of services for him" 11.
These three assertions are disputable and/or irrelevant. As a general point, it should be noted that
Bahrain makes these assertions almost immediately after having referred tothe report stating that
"a large portion of the revenues of Bahrain are dissipated in this manner without any ostensible
113
compensating advantage" .
6.50 Bahrain has produced no evidence whatsoever of the payment of tax by the Naim to the
Ruler of Bahrain. The authority that it relies upon in this regard is in fact referring to thepayment not of tax, but of tribute or zakat. Moreover, it is interesting to note that the authority
cited by Bahrain wrote as follows:
"Le traité de 1868 stipule en outre le paiment d'un tribut par les communautés tribales au
dirigeant de Bahrain (en 'krans'): al-muhandat 1700; al bu ainain et Naim, 1500; al bu
kuwarah, 500; keleb, 500; Sudan, 1500; Muhammad bin Thani pour les Maadhid et
Musallam, 2500; Amamarah, 800; soit 9000 'krans' au total ou 400 livres sterling par an
(IOR/5/15/2/30, file E 7). De ce montant, 4000 krans devaient être délivrés par Muhammed
ibn Thani au principal shaykh des al-naim, le reste étant envoyé à Bahrain pour être transmis
à Riyadh. Dans son rapport, le Résident politique Pelly explique:
'this payment of tribute does not affect the independence of Guttur [Qatar] in relation
to Bahrein. But it is to be considered as a fixed contribution by Guttur [Qatar] toward
a total sum payable by Bahrein and Guttur combined, in view to securing their
frontiers from molestation by the Naim and Wahabee bedouins, more particularly
during the pearl diving season, when the tribes of Guttur and Bahrein, occupied at sea
leave their homesteads comparatively unprotected' (Kelly, 1968: 675).
Ce tribut - que les al-na'im nomment jazi'ah - fut acquitté deux années seulement. On sait
que l'attribution d'une part de la zakat, à laquelle on réfère plus communément, ni ne
confirmait ni n'infirmait un pouvoir réel de ceux qui la percevait. Elle symbolisait une
soumission religieuse et la pacification. Ainsi délivrée aux al-na'im il semble pourtant
qu'une responsabilité dans le respect et le maintien de l'ordre leur était dès lors dévolue.
Une idée que l'on voit confirmée par des écrits plus tardifs les qualifiant de mercenaires
engagés aux services des shuyukh de Bahrain et de Qatar et pour la 'protection of those
shaikhdoms' (Lorimer, 1970, II: 1302)" 114
6.51 As for the Naim acting as guards of the Ruler of Bahrain, Bahrain has mentioned only one
isolated example, dating from 1869, when Colonel Pelly wrote to Mohamed bin Thani that he
had invited-
"Esau bin Alee to visit me here (Bahrein) with an armed escort of the Naeem tribe, and I
desire that he may not be interfered with in any way" 11.
As has been noted above, the Naim tribe acted as mercenaries for both the Al-Thani and the Al-
Khalifah, and there is moreover nothing to suggest that the Naim referred to in this context were
Naim from Qatar, and not Naim normally resident in Bahrain.
6.52 Finally, as to the "variety of services" allegedly performed by the Naim for the Ruler of
Bahrain, Bahrain refers only to Section 2.1 of its Memorial and Section 2.2 of its Counter-
Memorial, where very few examples of such alleged services are to be found.
6.53 One such example which, according to Bahrain, proves "the loyalty to Bahrain of the Naim-
led tribal confederacy in the n116h of the Qatar peninsula" related to a shipwreck that occurred
off the north of Qatar in 1906 . Captain Prideaux, the British official who investigated the case,
was told by a local sheikh that he was a subject of the Ruler of Bahrain and that Captain
Prideaux should address himself to that Ruler 117. This incident not only does not confirm what
Bahrain alleges, however, but it also confirms the total lack of power of Bahrain in Qatar.
6.54 First, the document quoted by Bahrain does not say anything about any "Naim-led tribal
confederacy" or indeed Zubarah; the document only mentions the sheikh of a village, "Abu
Dhaluf, at the north-west end of the Katr peninsula". Second, Bahrain does not mention the fact
that in 1902 the British had decided that the Ruler of Qata118should continue to be held
responsible for the behaviour of the Bedouins of Qatar" . Finally, it may be noted that Captain
Prideaux stated that:
"It was a considerable surprise to me to find that the people of this part of Katr should still
ostensibly call themselves Bahrein subjects, but, as the Chief of Bahrein is quite incapable of imposing his will upon them for any practical purpose, I submit that this fact should not
debar us from dealing with the tribes of the Katr mainland, and especially those who do not
acknowledge the sovereignty of t119Bin Thani family direct, in virtue of our claim to
maintain the maritime peace" .
120
6.55 Contrary to what Bahrain asserts, there is no evidence of the Naim dealing with "rebels"
(this being apparently a reference to the Al-Thani) on behalf of the Ruler of Bahrain, either in
Zubarah or anywhere else in Qatar. Bahrain refers to British documents of 1887 and 1888 which,
according to Bahrain, record "the Naim Sheikhs' visits to the Ruler of Bahrain to request
121
assistance in their tribal struggles and in their struggles against the Doha confederation" . In
fact, the documents referred to by Bahrain allude to only one visit of one member of the Naim
"on behalf of Jasim bin Thani" 12. Furthermore, the Ruler of Bahrain is reported as having
replied that if the Naim wanted "to side with Jasim they were free to do so, but if they wanted
Sheikh Eesa they will be welcome on their island (of Bahrain), which is of extensive
123
dimensions" . Leaving aside the fact that the ties of allegiance of the Naim with the Ruler of
Bahrain can clearly not have been very strong if the Ruler of Bahrain was happy to allow them
"to side with Jasim", the fact that the Naim were also stated to be welcome on the island of
Bahrain if they did not want to do so confirms once more that the Ruler of Bahrain himself
considered that the authority and territory of Bahrain did not extend to any part of Qatar.
6.56 The 1937 events have already been dealt with above and in Qatar's previous written
124
pleadings . These events, which culminated in the submission of the dissent125 Naim to the
Ruler of Qatar, again confirmed the sovereignty of Qatar over Zubarah . They also
demonstrated that the alleged unswerving loyalty of the Naim to the Ruler of Bahrain simply did
not exist. Thus, the Political Resident wrote that:
"Attitude of Naim is reported to be that, if they do not receive support from the Shaikh of
Bahrein against the Shaikh of Qatar, they will 'adhere to Ibn Saud'. They are stated to have
complained to Saud bin Jiluwi, Governor of Hasa, against the Shaikh of Qatar... Naim
numbering about 1000 (the men being (? armed)) with camels and flocks are concentrated126
Zubarah. This appears to me to indicate a possible migration of Naim to Hasa" .
The fact that the Naim were prepared to adhere to Ibn Saud and possibly to migrate to Hasa
demonstrates the weakness of any attempt to found territorial sovereignty upon links of
allegiance. The Court will of course recall that the same considerations apply, in the context of
the dispute over Hawar, to the relationship between the Ruler of Bahrain and the Dowasir in the
1920s, the Dowasir in fact carrying out their threat of adhering to Ibn Saud in 1923 127.
6.57 The document relied upon by Bahrain is also revealing of British views as to Bahrain's
alleged sovereignty over Zubarah. The Political Resident wrote:
"I do not feel we should interfere if Naim emigrates to Saudi Arabia. Nor am I of the opinion
that we should take any forcible measure against either side in the event of a clash between
Naim and Shaikh of Qatar... Political Agent, Bahrein, however, should of course continue his
efforts at persuading all parties concerned to keep peace. In particular Shaikh of Bahrein
should be prevented from sending reinforcements to the Naim at Zubarah, which, apart from
other considerations, would be against his treaty of 1861 as it would involve a breach of (?
maritime) peace" 128.
This appears to show that the obligation of the Ruler of Bahrain not to interfere on the territory
of Qatar had, in the view of the British authorities, been binding upon successive Rulers of
Bahrain since 1861.
6.58 In sum, the evidence shows that even if there might at times have been weak or transitory
links between the Ruler of Bahrain and some of the Naim, the Ruler of Bahrain was unable to
exercise any authority over them. On the contrary, Qatar has drawn attention to the fact that theChief of Bahrain himself admitted to Major Grant in 1877 the real basis of his relationship with
the Naim. He stated that he had dealings with them, made presents to them and received them in
Bahrain because he had no choice, for fear of the tribe joining with his e129ies (at the time,
Nasir bin Mubarak) and attacking the Bahrain islands from Zubarah . The evidence also shows
that from at least 1867 onwards, the Naim from time to time sided with the Al-Thani against the
Al-Khalifah, and that the tribe's relationship with both Qatar and Bahrain was essentially a
mercenary relationship. In these circumstances, there can be no question of the Ruler of Bahrain
exercising his authority over the Naim or of any durable links of allegiance between the Naim
and the Rulers of Bahrain. It necessarily follows that Bahrain's contention that it exercised
sovereignty over Zubarah indirectly through the Naim cannot be sustained, and it is therefore
unsurprising that Bahrain has produced no evidence of any acts of authority performed by the
Naim in Zubarah or any other part of Qatar on behalf of the Rulers of Bahrain.
Section 5. Bahrain's Claim to Zubarah was never recognised by the British; it was not
supported in Bahrain itself; and it was repeatedly disclaimed by the Ruler of Bahrain
A. Britain's refusal to recognise the Bahraini claim to Zubarah
6.59 The nature of the Ruler of Bahrain's relationship with the Naim and its consequences is
discussed more fully above. For the present purposes, it is only necessary to point out that the
British never recognised that such a relationship was in the nature of allegiance that entitled
Bahrain to exercise any territorial sovereignty in or over Zubarah or the so-called "Zubarah
Region". The Court will recall that Qatar has dealt in detail 130h the British response to Bahrain's
claim relating to Zubarah when it was first made in 1873 . Qatar has shown that the Bri131h
rejected the claim as a result of investigations made by local British officials at the time . This
was followed by a decision by the Governor General in Council of the Government of India in
1874 that the Ruler of Bahrain had no possessions on the mainland of Qatar 132. This decision was
133
duly communicated to the Ruler by the Political Resident in December 1874 .
6.60 Bahrain claims in a sub-heading in its Counter-Memorial that its "claim to rights in Zubarah
was recognised by Britain" 134. However, an examination of what follows under this sub-heading
contains no reference to any evidence that supports such a claim. Bahrain in fact proceeds to
provide reasons why the British did not recognise Bahrain's claims in Zubarah, and in effect tries
to argue that those reasons did not affect its claim to rights in Zubarah. The main explanation that
Bahrain offers is that Britain, in its own interest, "did not want to be dragged into a war - even a
135
proxy war - with the Ottomans" , suggesting that this could have resulted from allowing
Bahrain to interfere, in any way, in Zubarah. Bahrain admits that the British authorities advised
its Ruler that if protection under the 1861 Treaty was to be accorded to him, "he must not be the
aggressor or undertake measures... considered inadvisable by the British Government" 136.
Bahrain fails to recognise that the British were therefore warning him not to commit a breach of
the 1861 Treaty by any aggression across the sea if he desired the benefit of protection under that
Treaty. Bahrain clearly accepted the warning so as to avail itself of the benefits under the Treaty
and, as shown below, the British thereafter acted repeatedly in discharge of their obligations
under the 1861 Treaty in protecting Bahrain and ensuring its security. Having obtained the full
advantage of British protection under the Treaty for over a century, Bahrain surely cannot now
blame the British for not supporting its claim to rights in Zubarah which the British had in any
case rejected after Major Grant's investigation in 1873.
6.61 Bahrain then claims that Britain prevented the Ottoma137from exercising any authority in
Zubarah specifically because othBahrain's rights there . While it has been shown to be part of
British policy in the late 19 century to refrain from according formal recognition of Ottoman
claims to territory in the region, Bahrain fails to realise that this had nothing to do with
"Bahrain's rights" in Zubarah. Thus the British did not similarly prevent any exercise of Al-Thani
authority in Zubarah. As shown above, when the Al-Thani disciplined the Naim in Zubarah in1878 and again in 1937, the British acquiesced in such action and took no steps to protect any
138
alleged claim of Bahraini rights in Zubarah, having rejected that claim in 1873 . Similarly,
when in 1895 the British destroyed a fleet in Zubarah harbour which posed a threat to Bahrain's
security, there was never any question of allowing any Al-Khalifah presence or exercise of
authority in Zubarah.
6.62 What is particularly important is that even Bahrain's so-called excuse, namely, that due to
the Ottoman presence in Qatar, Bahrain was prohibited by the British from asserting any rights in
Zubarah, disappeared from 1913. In that year, under the Anglo-Turkish Convention, the British,
far from recognising any Bahraini rights in Zubarah, not only acknowledged the Al-Thani rights
to the entire peninsula but also expressly undertook not to allow Bahrain to interfere on the Qatar
peninsula even after the Ottomans had left Qatar.
6.63 Bahrain then seeks to rely on the views of individual British officials who might from t139
to time have expressed support or sympathy for Bahrain's claims relating to Zubarah . Bahrain
fails to recognise that such views never became part of official British policy, which continued to
be a refusal to accept any Bahraini claims in Zubarah from 1873 onwards. The most striking
examples of the individual views on which Bahrain seeks to rely are those expressed in 1937 by
the then Political Agent, Colonel Loch, in his telegram of 30 March 1937 and a Note of 12 April
1937 to the Political Resident (Fowle) 140as well as a letter of his successor, Capt. Hickinbotham,
of 22 September 1937 141, also addressed to Fowle. However, Bahrain fails to draw attention to
the fact that Fowle's first response to Loch was a telegram stating "Personally I am of the opi142n
that Zubara definitely belongs to Qatar but I am writing to His Majesty's Government" .
Thereafter, and having conducted a fuller investigation, Fowle, in his considered report and
recommendations of 5 May 1937 to the Secretary of State for India, concluded that in spite of his
friendly feelings about Britain his view was that "juridically, Bahrain's claim to Zubarah must
143
fail" .
6.64 Further evidence of this continuing British position that Qatar has recently unearthed is an
Intelligence Report of the Political Agency in Bahrain for July 1945 which records:
"For an hour and a half, after sitting with him in the Joint Court, the Political Agent listened
to His Highness the Sheikh on the subject of his claims, rights, wrongs and grievances in and
concerning Qatar. Since the implication of most of the Sheikh's arguments was, as usual, that
he had sovereign rights in part of Qatar territory (Zubarah) - rights which His Majesty's
Government have never admitted - the conversations resulted in little else but the exhaustion
of the Political Agent" 144.
6.65 Qatar has already shown that when the Ruler unilaterally requested the British for a final
decision in regard to his claim of rights in Zubarah and after the issue was considered by the
British Foreign Secretary, Mr. Selwyn Lloyd, the Ruler of Bahrain was expressly informed by
the Political Resident in his letter of 10 August 1957 that "Her Majesty's Government have never
supported any claim by Bahrain to sovereignty in Zubarah" . He was further informed that
various arrangements for special facilities (even the rights of Bahraini visits etc. to Zubarah)
negotiated in the past with the Ruler of Qatar could no longer be continued, as considerations of
146
Qatar's security required strict entry arrangements . A further attempt by the Ruler of Bahrain
to revive his complaints concerning Zubarah in 1961 was similarly rejected, his attention being
drawn to the above-mentioned letter of 10 August 1957 from the Political Resident 147.
B. Bahrain's disclaimers of sovereignty
6.66 Qatar has set out in its Memorial details of various occasions when the Ruler of Bahrain
expressly or by implication disclaimed sovereignty over Zubarah and o148 even stated that any
such claim was more a matter of prestige than of anything else . Qatar has given further
instances of such specific disclaimers of sovereignty by the Ruler of Bahrain in its Counter-Memorial 149. It is of particular importance to note that Bahrain has made no attempt to deny
Qatar's allegations of Bahraini disclaimers of sovereignty in Zubarah.
C. Lack of any support in Bahrain for the Ruler's claim
6.67 It is also of interest to note that Belgrave, as well as members of the Bahraini ruling family
other than the Ruler himself, were aware the British Government had never recognised Bahrain's
claim to Zubarah; nor did they believe there was any merit in the claim. This is apparent from the
following entries in Belgrave's personal diaries:
(a) "Saturday May 1 1954
Rode, went up to Jufair with HH & from 9-30 till 1-30 talked mostly about Zubara. B told
him that he had been over to Qatar, seen Z & studied all the files & papers & made up his
mind & was now reporting to HMG & recommending an arrangement which included
allowing Qatar patrols to patrol Zubara, but not to interfere with Bahrain people - HH of
course very angry and upset and said he could never agree of his own accord. He claims what
amounts to sovereignty & the BG never has & never will admit this. At 1 o'clock we had
been invited to luncheon with the Burrows to meet Hafiz Wahaba & Yusuf Yaseen & at half
past we were still discussing Zubara, however the meeting finally ended & HH, very angry
with almost no voice - he has been having a cold - left. He was not as unreasonable as usual
but insisted that he spoke for the family & t150people of Bn, whereas none of them care a bit,
all are sick of the Qatar quarrel & Zubara" .
(b) "Thursday February 21 1957
Busy morning & very late coming up, a lot of people in & out. Sh Abdulla came in & we
discussed HH's attitude about Zubara, which, all agree, is unreasonable. It seems the sons
met Sh Ali of Qatar when hunting & he was very friendly & had them to dinner at his camp.
HH however never varies in his detestation of the Qatar people & his claim, which he
himself, & only he, really believes. Days & weeks & months of time have been wasted talking
about it - or rather listening to HH on the subject"151.
__________
FOOTNOTES
1 See, QMJA, para. 3.37.
2 Ibid., Annex II.23, Vol. III, p. 145.
3 QR, Annex III.59, Vol. 3, p. 361.
4 In this context, the Court will recall the observations of Sheikh Hamad bin Abdullah of Qatar
to the effect that "[the] graves... belonged to the dead and would continue to do so and that no
one would interfere with them. There are Al Thani buried under the Petroleum Concessions
Limited tennis court at Jufair but that does not give the living Al Thani any right to play tennis
on the P.C.L. court!" (QM, Annex III.244, Vol. 8, p. 199; and see, QM, para. 8.48, fn. 67).
5 See, QM, Chaps. V and VIII; QCM, Chaps. III and V; and Chaps. II and III, above.
6 See, QCM, para. 3.45 and Chap. II, above.
7 QCM, para. 2.24, and fn. 34.
8 See, para. 6.8(d), below.
9 See, QCM, para. 2.53.
10 See, QCM, para. 2.26.11 See, QCM, para. 3.30 and Lorimer's further observation that the Sheikh of Bahrain's
"suzerainty" over Qatar by the middle of the 19 century was "more apparent than real" (QM,
Annex. II.4, Vol. 3, p. 109, at p. 141).
12 See, para. 4.129, above.
13 QCM, Chap. II, Sect. 1.C, and Chap. II, above.
14 QCM, paras. 5.9-5.16. See, also, paras. 6.59, et seq., below.
15 QM, Annex II.7, Vol. 4, p. 61.
16 QM, Annex II.5, Vol. 3, pp. 224-225.
17 QM, para. 2.58.
18 See, Chap. II, Sect. 3, above, and the historical documents there referred to.
19 QR, Annex III.22, Vol. 3, p. 119; see, also, QR, Annex III.25, Vol. 3, p. 137.
20 QR, Annex III.8, Vol. 3, p. 47.
21 QM, Annex II.7, Vol. 4, p. 61.
22 See, QCM, paras. 5.17(6) and 5.19(7).
23 BM, Annex 62, Vol. 2, p. 268.
24 See, QR, Annex III.14, Vol. 3, p. 81.
25 See, QR, Annexes III.11 and III.15, Vol. 3, pp. 67 and 85.
26 QR, Annex III.13, Vol. 3, p. 77.
27 QR, Annex III.12, Vol. 3, p. 73.
28 See, QCM, para. 5.22, and BM, para. 65; see, also, para. 2.42, above.
29 BM, Annexes 49(a) and 66(a), Vol. 2, pp. 245 and 279.
30 See, paras 2.42, et seq., above.
31 QR, Annex III.24, Vol. 3, p. 131.
32 See, QM, paras. 3.55, et seq., and Chap. II, Sect. 4, above.
33 BCM, Annex 122, Vol. 2, p. 412. See, Chap. II, Sect. 5, above. It is important to note that in
March 1934, the Resident did not exclude the Hawar islands from "the whole of Qatar" or its
coasts.
34 See, also, QM, paras. 8.45-8.46.
35 QM, Annex III.99, Vol. 6, p. 507; See, also, QM, para. 6.26.
36 QM, para. 8.32.
37 QM, paras. 8.31-8.43, and QCM, paras. 5.35-5.37.
38 See, QR, Annex III.53, Vol. 3, p. 325, where it was reported that "Without much difficulty the
Shaikh of Qatar's Forces succeeded in reducing the Fort and in taking possession of the garrison.
It appears that some five or six persons were killed on either side during this engagement... The
Shaikh of Qatar obtained a document from Shaikh Rashid bin Mohammad of the Naim to the
effect that they would [abide by the] laws of Qatar while they remained in the State and that in
the event of their desiring to leave the State of Qatar they were in full liberty to do so". The
Court will recall another later British Report of 5 December 1939 referred to by Qatar (QCM,
para. 5.36) annexed by Bahrain to its Memorial (BM, Annex 292, Vol. 5, p. 1190, at p. 1191)
which describes the 1937 Zubarah incident by stating: "Naim tribesman, financed and armed
largely from Bahrain were defeated by the Shaikh of Qatar in a bloodless battle in which thecasualties were two on each side". On the other hand, Bahrain's account of the same incident in
the Government of Bahrain's own official Annual Report for the year 1356H (March 1937 to
February 1938) states: "In the fighting which ensued there were about a dozen casualties on each
side, among the Naim Arabs who were killed were several of the personal retainers of the Ruler
of Bahrain who belonged to the Naim tribe and had their families in Qatar and lived sometimes
in Bahrain and sometimes in Qatar. Eventually the Naim surrendered and handed over a number
of their rifles. As soon as the Qatar forces had withdrawn, the whole Naim tribe with their tents,
families and flocks, moved over to Bahrain where they were generously received" (QR, Annex
III.59, Vol. 3, p. 361). This is contradicted by the Political Agent's Report mentioned above,
which further states however: "The Shaikh [of Bahrain] asked for written permission to allow the
Naim to come to Bahrain if they so desired which was granted, but the Naim did not appear to
desire to leave Qatar where they had sufficient grazing for their flocks which probably they
would not have been able to obtain in Bahrain" (QR, Annex III.53, Vol. 3, p. 325).
39 QM, para. 8.42.
40 QM, para. 8.43.
41 See, QM, para. 8.8 and QCM, para. 5.7.
42 See, QM, para. 8.10 and QCM, para. 5.7.
43 See, QM, paras. 3.35, et seq. and para. 8.12; QCM, paras. 3.25, et seq. and 5.8, et seq.; and
paras. 6.7-6.8, above.
44 BCM, para. 2.
45 See, QM, para. 3.18.
46 QM, para. 8.3; see, also, para. 6.6, above and QCM, para. 2.24. As regards Bahrain's reliance
upon the book by Bibby, see, Appendix 1 at the end of this Volume, para. 4.
47 See, paras. 3.9, et seq., above.
48 BCM, para. 89.
49 Ibid., para. 104.
50 QCM, paras. 5.17-5.18.
51 BCM, para. 117, referring to BM, paras. 183-186.
52 BM, para. 183; emphasis by Bahrain.
53 BM, Annex 67, Vol. 2, p. 281; emphasis added.
54 See, BCM, para. 94.
55 See, para. 6.8, above.
56 QM, para. 8.26.
57 BCM, para. 121.
58 See, BM, Annex 71, Vol. 3, p. 357. It may be noted that the document made no reference to
any Bahraini sovereignty in Zubarah, which it described as uninhabited.
59 See, paras. 2.53, et seq., above, referring to BCM, para. 127.
60 BM, Annex 86, Vol. 3, p. 518; see, also, BM, Annex 87, Vol. 3, p. 524.
61 Ibid., p. 521.
62 BCM, para. 454.
63 BCM, para. 451.
64 See, QCM, paras. 5.38, et seq.65 See, QM, paras. 8.49-8.50; QCM, para. 5.38; and para. 6.66, below.
66 BCM, paras. 42, et seq.
67 QCM, paras. 5.45, et seq.
68 Ibid., paras. 5.48, et seq.
69 Ibid., paras. 5.53, et seq.
70 Ibid., para. 5.11.
71 Ibid., paras. 5.58, et seq.
72 BCM, para. 44.
73 BM, Annex 83, Vol. 3, p. 444 and QM, Annex II.5, Vol. 3, p. 198.
74 BM, Annex 83, Vol. 3, p. 452; and QM, Annex II.5, Vol. 3, p. 206.
75 See, para. 6.8(c), above; BM, Annex 83, Vol. 3, pp. 470-471; QM, Annex II.5, Vol. 3, pp.
224-225.
76 QR, Annex III.5, Vol. 3, p. 31.
77 QR, Annex III.25, Vol. 3, p. 137; see, also, QR, Annexes III.22 and III.23, Vol. 3, pp. 119 and
125.
78 BCM, para. 45, referring to BCM, Annex 25, Vol. 2, at p. 76.
79 BCM, para. 40.
80 Qatar has already dealt, in Chap. II, Sect. 2, above, with Bahrain's unfounded assertions as to
the so-called "Doha confederation".
81 BCM, para. 43.
82 QM, Annex II.69, Vol. 5, p. 353.
83 BCM, para. 54.
84 BCM, Annex 32, Vol. 2, p. 106.
85 See, BCM, para. 56. The idea that the Naim were "integrated into the political economy of
Bahrain" is based upon the allegation that they migrated seasonally from Zubarah to Bahrain,
and had homes "both in Zubarah and the islands". Bahrain overlooks the fact that this could
equally well signify that they were "integrated into the political economy" of Qatar.
86 BM, Annex 232, Vol. 4, p. 1013.
87 See, QCM, paras. 5.44, et seq.; and paras. 6.38, et seq., below.
88 See, BCM, paras. 54-55.
89 QR, Annex III.1, Vol. 3, p. 1.
90 See, QM, paras. 3.30, et seq; and QM, Annex II.7, Vol. 4, pp. 31-36.
91 See, QCM, para. 5.13.
92 QR, Annex III.4, Vol. 3, p. 27.
93 BCM, para. 45.
94 Ibid., para. 51.
95 Ibid.
96 Ibid., para. 50.
97 See, para. 6.50, below.98 BCM, Annex 13, Vol. 2, p. 35.
99 BCM, para. 42.
100 BM, Annex 74, Vol. 3, p. 396.
101 "The Law and Procedure of the International Court of Justice - General Principles and
Sources of Law", B.Y.I.L., 1953, p. 48 (QR, Annex III.103, Vol. 3, p. 629; footnote omitted).
See, also, Sir Gerald's article in the 1955-1956 edition of B.Y.I.L. at p. 55 (QR, Annex III.104,
Vol. 3, p. 693) and the Aves Islands Award of 30 June 1865, Moore's Digest, Vol. V (QR, Annex
III.111, Vol. 3, p. 677).
102 Eritrea/Yemen Award, para. 315.
103 BCM, para. 40.
104 QR, Annex III.53, Vol. 3, p. 329.
105 BM, Annex 74, Vol. 3, p. 397.
106 BCM, para. 42.
107 QCM, para. 5.47.
108 BM, Annex 74, Vol. 3, p. 397; emphasis added.
109 Ibid.
110 QR, Annex III.40, Vol. 3, p. 237; emphasis added.
111 BCM, para. 51.
112 Ibid., para. 52.
113 Ibid., para. 51; emphasis added.
114 BCM, Annex 119, Vol. 2, p. 380.
115 BCM, Annex 6, Vol. 2, p. 13.
116 BCM, para. 54.
117 Ibid.
118 BM, Annex 83, Vol. 3, p. 485.
119 BCM, Annex 32, Vol. 2, p. 107; emphasis added.
120 BCM, para. 84, fn. 135.
121 BCM, para. 49.
122 BCM, Annex 21, Vol. 2, p. 47.
123 Ibid.
124 See, para. 6.8(q), above; QM, paras. 8.31, et seq., and QCM, paras. 5.35, et seq.
125 See, QM, paras. 8.39, et seq.
126 BCM, Annex 82, Vol. 2, pp. 259-259a.
127 See, para. 4.161, above.
128 BCM, Annex 82, Vol. 2, p. 259a; emphasis added.
129 QCM, para. 5.19(3); and BM, Annex 35, Vol. 2, p. 204 (text crossed out by Bahrain).
130 QCM, paras. 5.10, et seq.
131 Ibid.
132 QM, paras. 8.19-8.20.133 QM, Annex III.30, Vol. 6, p. 145.
134 BCM, Section 2.2(H) (iii), p. 46.
135 BCM, para. 98.
136 BCM, para. 99.
137 BCM, para. 102.
138 See, in this regard, para. 6.57, above.
139 BCM, para. 100.
140 BM, Annexes 113 and 114, Vol. 3, pp. 633 and 634.
141 BM, Annex 160, Vol. 4, p. 733.
142 BM, Annex 112, Vol. 3, p. 632.
143 QCM, paras. 5.31, et seq.
144 QR, Annex III.95, Vol. 3, p. 581.
145 QM, para. 8.53.
146 Ibid.
147 Ibid., para. 8.54.
148 Ibid., paras. 8.47, et seq.
149 QCM, para. 5.38. Another similar instance, which Qatar has recently noted, is a Report of
the British Political Residency of 12 May 1953 which records:"... a map published last year with
an Annual Report of the Bahrain Government's Education Department in which a considerable
slice of the north-western coast of Qatar is included in an area shown as 'Bahrein Islands and
Dependencies'. In fairness to the Ruler of Bahrein it should be stated that this map appears to
have been published without his knowledge and that he was considerably embarrassed when he
was shown it" (QR, Annex III.96, Vol. 3, p. 587).
150 Extract from Belgrave diary dated 1 May 1954; emphasis added.
151 Extract from Belgrave diary dated 21 February 1957; emphasis added.
__________
CASE CONCERNING MARITIME DELIMITATION AND
TERRITORIAL QUESTIONS BETWEEN QATAR AND BAHRAIN
(QATAR V. BAHRAIN)
REPLY OF THE STATE OF QATAR
_____________________________________________
CHAPTER VI - ZUBARAH 237
Section 1. The Question of Zubarah Viewed in its Proper Perspective 237
Section 2. The Basis of Qatar's Title to Zubarah 238
Section 3. The Map Evidence 246
Section 4. Bahrain's Claim to Sovereignty over Zubarah is Manifestly Ill-Founded 248
A. The claim of direct exercise of sovereignty by Bahrain over Zubarah 249
B. The claim of indirect exercise of sovereignty by Bahrain over Zubarah, that is to say,
through the Naim tribe 253 1. Bahrain's misstatements with regard to the Naim 254
2. Bahrain's relations with the Naim are of no significance with regard to sovereignty
over Zubarah 257
Section 5. Bahrain's Claim to Zubarah was never recognised by the British; it was not supported
in Bahrain itself; and it was repeatedly disclaimed by the Ruler of Bahrain 266
A. Britain's refusal to recognise the Bahraini claim to Zubarah 266
B. Bahrain's disclaimers of sovereignty 269
C. Lack of any support in Bahrain for the Ruler's claim 270
__________
CHAPTER VI
ZUBARAH
Section 1. The Question of Zubarah Viewed in its Proper Perspective
6.1 As the Court is aware, Bahrain has presented its claim to Zubarah as a claim of sovereignty.
As Qatar has already pointed out, Bahrain never mentioned Zubarah as a subject of dispute
between the Parties during the entire period of the Saudi mediation under the 1978 Framework
and only brought it up for the first time in a draft document to be considered at the second
meeting of the Tripartite Committee in April 1988 . Qatar thereafter immediately protested in
this regard to King Fahd of Saudi Arabia in a letter in which the Amir of Qatar described the
2
claim to Zubarah as "astounding" .
6.2 Qatar has now seen Bahrain's own official Annual Report for the year 1376 H. (1937-1938).
That report puts the whole of Bahrain's so-called claim to sovereignty over Zubarah in a proper
perspective when it states:
"... Zubara, the subject of this quarrel, is a place of no apparent value. The town is entirely in
ruins, the fort is rapidly crumbling to pieces, there is no water except a few wells which
frequently become dry and the land is barren and salty. The few villages within the Zubara
area are miserable groups of mud huts inhabited by almost starving Arabs. The Khalifah, and
the Arabs of Bahrain, however, regard Zubara as their ancestral home, which in fact it is,
they remember that their ancestors and the early Khalifah Shaikhs built Zubara and are
buried there and they remember its ancient glories, although during recent years visits to
Zubara by the Khalifah Shaikhs have been rare, yet they resent the claim of Qatar that
Bahrain has no rights over Zubara. That the reason of the quarrel is a ma3ter of principle and
sentiment makes it all the more difficult to arrive at an understanding" .
The Court will no doubt see that Bahrain's own views (objectively) expressed above, describing
its interest in Zubarah as no more than of sentimental value, must defeat the wholly artif4cial
claim to sovereignty over the "Zubarah region" that it now makes in these proceedings .
6.3 While Qatar totally rejects Bahrain's claim to Zubarah - let alone any claim to the so-called
"Zubarah Region" - out of deference to the Court and in order to dispose of this wholly fictitious
claim once and for all, Qatar will briefly address Bahrain's contentions in the Sections that
follow. Before doing so, it is appropriate to recapitulate the essential elements of Qatar's title to
Zubarah.
Section 2. The Basis of Qatar's Title to Zubarah
6.4 As Qatar has already shown, the integrity of the territories of Qatar consisting of the
peninsula, its territorial waters, as well as the adjoining islands situated partly or wholly therein,
including the Hawar islands, has been recognised for over a century. All of the historical and
cartographical evidence referred to by Qatar to demonstrate the territorial integrity of Qatar mustapply with equal force with regard to Zubarah as incontestably part of the territory of the State of
5
Qatar .
6.5 Qatar has shown that the Al-Thani established their power and influence on the Qatar
th
peninsula by the middle of the 19 century and, in the period following the 1868 Agreements
and after the arrival of the Ottomans in 1871, steadily expanded and consolidated their authority
over the entire territory of Qatar. Between 1871 and 1913 (when they relinquished their rights in
favour of the Al-Thani), the Ottomans regarded the entire peninsula of Qatar including Zubarah
as part of Ottoman territory, 6ith Sheikh Jassim bin Thani exercising authority over the whole
territory as their kaimakam .
6.6 Qatar has shown, by reference to the observations of J. C. Wilkinson (a writer greatly
favoured by Bahrain) quoted in Qatar's Counter-Memorial, that the fothbears of the Al-Thani
family, the Ma'adhid, arrived in the Qatar peninsula in the 17 century (long before the Al-
Khalifah) and established a presence in different parts of the peninsula including Zubarah; and
that the Al-Thani had themselves had a connection with or presence in Zubarah over a long
period, even before they came t7 establish and consolidate their rule over Qatar and exercise
complete control in Zubarah .
6.7 The Court will recall that it was with the most important Al-Thani Sheikh that the British
chose to enter into the Agreement of 1868, and that the British thereafter recognised that the Al-
Thani family was not only the effective power on the peninsula itself, but was also responsible
for preventing piracies off the coast of Qatar 8. Qatar has further shown how other historians
9 10
including A.H. Cordesman and A. de L. Rush have stated that the 1868 Agreement between
the British and Mohamed bin Thani signalled the ending of Britain's treatment of Qatar as a
dependency of Bahrain and the first recognition of Qatar as a separate entity in its own right. The
Court will recall that a similar view was recorded by Lorimer as well as, more recently, by Dr.
12
Al-Baharna of Bahrain .
6.8 Qatar has described in its Counter-Memorial and in this Reply those events or reports
demonstrating the establishment, consolidation and recognition of Al-Thani authority both o13r
the interior of the peninsula and the coasts of Qatar, including Zubarah, after 1868 . Some of the
more important of these, which are particularly relevant in demonstrating Qatar's incontestable
title to Zubarah (and the lack of any basis for Bahrain's claim to Zubarah), are summarised
below.
(a) In its Counter-Memorial, Qatar has described in detail the British investigation (by Major
Grant) of Bahrain's supposed claim to Zubarah on the basis of its relationship with a section of
the Naim tribe when the claim was first made in 1873, and the rejection of that claim by the
British then and ever since 14.
(b) Following the above-mentioned investigation, a formal declaration was made by the
Governor-General in Council in 1874 that "the Chief of Bahrein had no possessions on the
mainland of Katar..." 15.
(c) Lorimer records that in September 1878, when a piracy was committed by the inhabitants of
Zubarah upon a passing boat, Colonel Ross, the Political Resident, was directed by the
Government of India to demand of the Turkish authorities that the place should be punished, and
16
to offer British naval assistance for the purpose . He immediately proceeded to Basrah to meet
the Ottoman Wali who agreed to take appropriate action. In the meantime, however, Shaikh
Jassim bin Thani himself took action against the Naim in Zubarah. Colonel Ross then visited
Zubarah and the camp of Sheikh Jassim, pitched about half a mile from the square fort of Murair,
in which the Naim, numbering about 500, were besieged. The force with Sheikh Jassim
numbered some 2,000 armed men. The Naim besieged in Murair surrendered, on unfavourable
terms, not long after Colonel Ross's departure, and Zubarah as a populated place ceased to exist;
the inhabitants, between whom and Sheikh Jassim a peace seems to have been arranged by thecommander of the Ottoman vessel Iskanderia, were mostly removed to Doha. Colonel Ross, who
visited Sheikh Jassim in his camp at Zubarah but did not interfere in any way with his action to
discipline the Naim, clearly acted in conformity with the British recognition of his authority in
Zubarah. Writing about these events of 1878, K. Ferdinand, an author much relied upon by
Bahrain, notes:
"... in 1878 Zubarah was finally destroyed by the Al-Thani Shaykh 17 Dohah, who thereby
confirmed his control over the whole of the Qatar peninsula" .
It is Qatar's submission that this incident, together with the almost identical incident some
sixty years later (in 1937) described below when Sheikh Abdullah Al-Thani similarly
disciplined a recalcitrant section of the Naim tribe in Zubarah, clearly demonstrates the
effective exercise of Al-Thani authority in Zubarah. The 1878 Al-Thani assertion of authority
was approved and recognised as legitimate by the British as well as the Ottomans. The
legitimacy of the 1937 Al-Thani action was also never questioned by the British authorities.
(d) The British Political Resident issued warnings to Sheikh Jassim bin Thani in 1881, treating
him as being in effective control of the coasts of Qatar and as "having the power to prevent such
movements [by Nasir bin Mubarak] from the Katar Coast" to attack Bahrain from Zubarah as
well as pointing out 18eikh Jassim's "duty to exercise vigilance and prevent any warlike
movements by sea" .
(e) In 1889, an official Ottoman document reported that prior to the creation of a nahiye at
Zubarah, Mohammed bin Abdulwahab, a follower of the Al-Khalifah, had, with the consent of
Sheikh Jassim bin Thani, settled at the Murair fort outside Zubarah. Howeve19 when a dispute
arose between them later in the same year, Sheikh Jassim evicted him .
(f) As is also apparent from another Ottoman report of 25 September 1892, Sheikh Jassim levied
taxes on those engaged in pearl fishing and other activities from Zubarah. The report states:
"As can be seen from the attached table the yearly revenues from all the pearl boats in Qatar
come to two million five hundred and forty kran. This includes the tax collected under the
name kallata by Jassim Al-Thani from all divers and crews, and the tax called rakabiya. The
tax collected as zakat on sheep and slaughtering fees amounts to seventy five thousand four
hundred and three kran. This total represents the income from the dependent villages of the
kaza and the nahiyes of Zubarah and Udeid..." 20.
(g) The Court will recollect that as part of the 1874 British declaration by the Governor-General
in Council that the Chief of Bahrain "had no possessions on the mainland", the latter was also
asked to "rely for support on the assistance of the British Government, which will, if necessary,
be given hi21either to repel attacks by sea or to frustrate a threatening movement from the
mainland" . This was exactly the support that was given to Bahrain in 1895 when it was
threatened with an attack from Zubarah by a seaborne force (with the backing of Sheikh Jassim
and the Ottomans), and British warships destroyed the threatening fleet in Zubarah harbour 2.
This is clear from the report made by the Political Resident, Colonel Wilson, on 15 September
1895 to the Government of India in which he stated, inter alia:
".... I have the honour to report, for the information of His Excellency the Viceroy and
Governor-General in Council, that on the 6th instant, Commander Pelly, Senior Naval
Officer, Persian Gulf Station, having in his judgment, after careful consideration of the facts
immediately before him, 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 assembled off Zobara, armed and ready for an instant descent on that place" 23.
The British position in this regard was also explained in the British Parliament (as reported in
The Times of 22 February 1896) in the following terms:
"THE PERSIAN GULF SIR C. DILKE (Gloucester, Forest of Dean) asked the Secretary of State for India if he could
state to the House the reason for the operations conducted during the last year in the Persian
Gulf by her Majesty's ships Sphinx and Pigeon.
LORD G. HAMILTON (Middlesex, Ealing) - In consequence of quarrels between the Sheikh
of Bahrein, who is under the suzerainty of her Majesty, and other local sheikhs, the chief of
the Ali-bin-Ali, apparently supported by the Turks, established himself on the mainland at
Zobara, opposite Bahrein, and about 200 dhows assembled there to attack Bahrein. In order
to maintain the maritime peace to which the tribes are pledged Commander Pelly, of the
Sphinx, was authorized to resist this demonstration provided he was satisfied that the dhows
were assembled with a hostile purpose, and to liberate the Bahrein boats which had been
forcibly detained. As the dhows after due warning refused to disperse they were attacked on
September 6, and 44 were destroyed. On the following day terms were arranged and the
peace of the Gulf re-established" . 24
It is important to note that after the 1895 incident, and consistent with the British position
established since 1873 that the Ruler of Bahrain had no rights in Zubarah, the British made
no attempt (nor allowed the Ruler of Bahrain) to occupy Zubarah or to displace Sheikh
Jassim.
(h) The international reaction to the above incident, which also reflects the Turkish connection
with Zubarah at the time, is also apparent from a number of German reports of that period . 25
(i) In an Ottoman document of 11 February 1896 relating to the events of 1895, Zubarah is
presented as very much a part of Qatar:
"Zubarah on the Gulf coast, a subdivision of Qatar, an integral part of the territory of the
Ottoman State, was held under gun-fire by the British fleet" 26.
(j) An Ottoman report of 1896 concerns a proposal for payment of a pension to the relatives of a
Sheikh, an Ottoman loyalist (allegedly killed upon his return to Bahrain after the 1895 incident).
Those relatives were living in Zubarah, which was clearly regarded as part of Ottoman territory.
The report states:
"Sheikh Sultan bin Selame's family of fifty is in a destitute state at the Zubarah ruins. In
order to avoid them being exposed to utter destitution, they must be sheltered under the
wings of the beneficent Ottoman Sultan; so it is deemed advisable to pay a monthly pension
of 750 Kurushes to Ali bin Sultan Selame, son of the Sheikh Sultan, to secure their
livelihood. The said amount will barely cover their daily expenses. To secure the livelihood
of the progeniture and family of the Sheikh Sultan who, on more than one occasion, fought
for the Ottoman State by opposing the seditious activities and provocations by foreigners and
made proof of his loyalty to the Ottoman Sultan and Khalife, is but a consequence of the
endless mercy of our Sultan. Under the circumstances, I 27mbly beg that the said pension of
750 Kurushes be granted to the person in question" .
(k) Qatar has already referred to other Ottoman documents describing the pen28sula as the kaza
(district) of Qatar which included the nahiye (sub-district) of Zubarah . Two annexes to
Bahrain's Memorial 29clearly support this position, as do a large number of other Ottoman
documents referred to in Chapter II of this Reply, and Map No. 15 in the Map Atlas . 30
(l) An Ottoman letter of 8 April 1903 notes that Zubarah is located "to the north-east of the
centre of the kaza" 31.
(m) That Zubarah is an integral part of the territory of Qatar is also apparent from the recognition
of the territories of Qatar by the Anglo-Ottoman Convention of 1913, incorporating a provision
that the Qatar peninsula would be "governed, as in the past", by Sheikh Jassim bin Thani and his
successors .2(n) The British-Qatar Treaty of 1916 and the British Resident's confirmation (reproduced above)
to the Ruler of Qatar that "... you are the Ruler of all Qatar and the Treaty extends to the whole
33
of Qatar" must clearly cover Zubarah as part of Qatar .
(o) During the discussions relating to the granting and then to the extension of Bahrain's oil
concession in the 1920s and 1930s, Bahrain did not at any time contend that Zubarah was part of
its territory to be covered by any concession. Qatar has shown that in fact Bahrain later 34
acknowledged explicitly in 1944 that Zubarah was covered by Qatar's oil concession .
(p) When the Qatar oil concession was finally signed in 1935 with the approval of the British
Government, it clearly included the whole of the Qatar peninsula, including Zubarah, as is also
confirmed by the map attached to the concession . 35
(q) As Qatar has shown, in the 1930s Qatar was increasingly concerned to prot36t the security of
its borders and control imports through the imposition of customs duties . When the Ruler of
Qatar took steps to impose such controls in the Zubarah area, these efforts were obstructed by a
section of the Naim tribe in 1937. While the details of this incident are fully described in Qatar's
Memorial and Counter-Memorial , the Court is respectfully referred to certain additional
38
documents which shed more light on the event . For present purposes, it is only necessary to
point out that in view of the Naim obstruction, the Ruler of Qatar decided in July 1937 to impose
his authority over the dissenting Naim by force and put an end himself to the smuggling and
other activities occurring. When the Ruler of Bahrain requested the British to intervene to stop
the Ruler of Qatar, the British refused on the basis that Zubarah was very much part o39the Ruler
of Qatar's territories and the Secretary of State for India concurred with this view . Furthermore,
by 5 July 1937, the dissenting Naim had surrendered and their leader, Rashid bin Jabor, agreed
with the Ruler of Qatar to obey the laws of Qatar while he resided in Qatar . 40
6.9 As submitted above, this Al-Thani action in disciplining a section of the Naim tribe in
Zubarah was the second such action in 60 years (the first one being in 1878). These two
assertions of Al-Thani authority in Zubarah are a clear expression of Qatari sovereignty over
Zubarah. The events and facts described above, the consistent British refusals over nearly a
century to acknowledge any sovereign rights of Bahrain in Zubarah, as well as Bahrain's
numerous disclaimers of sovereignty over Zubarah, establish Qatar's incontestable title to
Zubarah. That title was, over the years, recognised by the British, the Ottomans and other
European powers. As also shown below, Bahrain's only interest was, firstly, concern for the
individuals comprising a section of the Naim tribe and not for any territory in which they may
have been present at different times and, secondly, keeping the Naim in good humour to ensure
that they helped protect Bahrain against any attacks on its territories from Zubarah. The British
shared Bahrain's concern about this last point, and took steps from time to time to prevent threats
to the security of Bahrain from Zubarah.
Section 3. The Map Evidence
6.10 The map evidence discussed earlier in this Reply and included in Qatar's Map Atlas
confirms the fact that Zubarah has consistently been recognized as forming part of Qatar and as
therefore falling under its sovereignty. Since many of the relevant maps have been addressed in
connection with the description of the territorial integrity of Qatar (Chapter II) and Qatar's title to
the Hawar islands (Chapter IV), the present discussion can be kept brief. Not surprisingly, the
maps demonstrate that the territorial integrity of Qatar extended over the entire peninsula
including the Hawar islands. They thus necessarily confirm Qatar's sovereignty over Zubarah. In
contrast, Bahrain has failed to present any cartographic evidence which even remotely supports
its extravagant claim either to Zubarah itself or to an artificially defined area called the "Zubarah
Region".
6.11 To give a taste of the extensive cartographic evidence which supports Qatar's position,
reference may be made to the following maps in the Map Atlas:· Maps Nos. 5, 6, 8, 9, 11, 21, 22, 31, 39, 45 and 53, prepared under the auspices of the Justus
Perthes Institute between 1875 and 1917, all of which specifically label Zubarah (Sabara) on the
maps and show it as part of Qatar by colour coding;
· Map No. 15, prepared by the Ottoman authorities in 1890, depicting the kaza of Qatar as
extending over the entire peninsula, and identifying Zubarah as a town within that kaza;
· Maps Nos. 24 and 29 published in The Times Atlas, London, in 1895 and 1900, respectively,
which also label Zubarah and show it within Qatari territory;
· Map No. 30, a 1901 map produced by the British War Office, Intelligence Division, which
shows Zubarah as part of "El Katr";
· Map No. 20, prepared by the Russian General Staff in 1894, and map No. 88, published by the
Central Administration of Geodetics and Cartography of the U.S.S.R. in 1939/40, on both of
which Zubarah can be seen to fall within Qatar's territory.
· Map No. 33, published in 1904 by G.S. Hammond and Co. of New York, on which Zubarah is
also identified as situated within Qatar;
· Map No. 34, an official French map prepared in 1905 by the Geographic Service of the
Ministry of Foreign Affairs, which also labels Zubarah and shows it as falling within Qatar's
territory;
· Map No. 43, a further French map published in 1911 by Hachette & Cie., Paris, which depicts
the same situation; and
· Maps Nos. 48 (1914) and 57 (1917) published by George Philip & Son, and Maps Nos. 59
(1917), 80 (1935) and 81 (1935), published by John Bartholomew and Son, all of which clearly
show Zubarah as part of Qatar.
6.12 As the Court will appreciate, the maps referred to above, which constitute only a sample of
the relevant cartography, span a considerable period and come from a variety of official sources
and highly respected cartographic houses located in a number of different countries. When
considered together with the historical evidence discussed in the previous section, the map
evidence leaves no doubt whatsoever as to Qatar's sovereignty over Zubarah.
Section 4. Bahrain's Claim to Sovereignty over Zubarah is Manifestly Ill-Founded
6.13 Qatar has already shown in its Memorial and Counter-Memorial that the Al-Khalifah - one
section of the Al-Utub tribe - along with another section of the same tribe, the Al-Jalahma,
settled close to the town of Zubarah in 1766 41. Qatar has also shown that the Al-Utub and various
Qatari tribes took control of Bahrain from the Persians in 1783, less than twenty years later, and
that thereafter the Al-Khalifah section of the Al-Utub moved their headquarters from Qatar to
42
Bahrain . After that date, there is no evidence of any control or authority exercised by the Al-
Khalifah in or over Zubarah.
6.14 Qatar has also demonstrated that when, in 1868, the British recognised Qatar and Bahrain as
43
separate entities, Zubarah was considered as part of Qatar and not as part of Bahrain , and that
during the period of the Ottoman presence in Qatar Zubarah continued to be considered as part of
the political entity of Qatar, by both the British and the Ottomans.
6.15 Against this background, Bahrain makes the curious assertion that it has invoked "the most
cogent evidence of State activity, as well as continuous and peaceful display of territorial 44
sovereignty, over a period of two centuries", over what it refers to as the "Zubarah Region" .
However, both Bahrain's Memorial and its Counter-Memorial are striking for the lack of any
evidence, cogent or otherwise, of such sovereignty.
6.16 The present section will in the first place address Bahrain's claim to have exercised
sovereignty directly over the so-called "Zubarah Region". Qatar will then deal with Bahrain'sclaim to have exercised sovereignty over the so-called "Zubarah Region" indirectly through the
Naim tribe.
A. The claim of direct exercise of sovereignty by Bahrain over Zubarah
6.17 It will be noted at the outset that, even before the British recognition in 1868 of the
separation between Qatar and Bahrain, there is a dearth of evidence with regard to any exercise
of sovereignty by the Al-Khalifah over Zubarah. Bahrain's claim appears to be based, at least in
part, upon the assertion that it was the Al-Khalifah who founded Zubarah. There is, however, no
basis for this assertion. First, Bahrain seems to have forgotten that it was not only the Al-
Khalifah section of the Al-Utub who settled at Zubarah in 1766, but also the Al-Jalahma section
which, although it participated in the conquest of Bahrain from the Persians in 1783,
subsequently left Bahrain, returned to Qatar, and no longer had any connection with Bahrain . 45
6.18 Second, in any event, as Qatar has already shown in its Memorial, Zubarah existed before
the arrival of the Al-Utub .46
6.19 With regard to the period between the time of the Al-Khalifah's departure to Bahrain in
1783 and the 1868 Agreements, Bahrain has produced no evidence of any exercise of authority
by the Al-Khalifah in Zubarah. Indeed, as has been seen above, at this time the Al-Khalifah were
hardly able to exercise authority in Bahrain itself .47
6.20 As for the period following the 1868 Agreements, Bahrain contends that "Ottoman and Al-
Thani authority never extended beyond the enclave comprising Doha and its immediate
hinterland, despite no less than six attempts to extend their authority to the Zubarah Region" , 48
and that "Britain and Bahrain rebuffed the Ottoman Empire and the Doha confederati49 in their
attempts to exercise authority over the Zubarah Region from 1874 to 1903" .
6.21 Qatar has already shown in its Counter-Memor50l that Bahrain's account of the six events
referred to is grossly inaccurate and distorted . A few words should however be added with
regard to the incident which occurred in 1903. According to Bahrain, Britain invoked Bahrain's
sovereignty over Zubarah on that occasion 51. In fact, this is just one more example of Bahrain's
distortion of the evidence: the sources relied upon by Bahrain in this regard refer only to
Bahrain's security; there is not one word about its alleged "sovereignty".
6.22 Thus, Bahrain reproduces a truncated extract from a letter written by the Political Resident
in 1903, according to which:
"the occupation of Zobara [by the Ottoman Empire] would be viewed with the greatest
concern by the Chief of Bahrein, who considers the place to be an appanage of his, and
52
whose rights we are bound to maintain..." .
The whole passage from which this citation has been extracted by Bahrain in fact reads as
follows:
"It is, in my opinion, absolutely essential for the security of the Bahrein islands that Zobara
should not be occupied by the Turks. Apart from the fact that the occupation of Zobara
would be viewed with the greatest concern by the Chief of Bahrein, who considers the place
to be an appanage of his, and whose rights we are bound to maintain, the prestige which the
Turks would gain throughout the countryside by the occupation of this place, in opposition to
the well-known views of the British Government, would be so great that an attack on
Bahrein from Katr could at any time be organized, and the continual presence of a ship of
war in Bah53in waters, and perhaps even a military occupation of the islands, would be
required" .
In fact, the only concerns of the British here were once more to limit Ottoman influence and to
ensure the security of Bahrain, but this did not constitute an invocation or recognition of
Bahrain's sovereignty over Zubarah.6.23 As for the Ottomans, Bahrain contends that they never exercised authority over Zubarah . 54
Qatar does not dispute the fact that there was no permanent official Turkish presence in Zubarah
between 1871 and 1915, but this is not the important point. The fact is that the Ottomans always
considered Zubarah as an integral part of Qatar and the Ottoman Empire, as indeed did third
parties . What is important in the context of sovereignty over Zubarah is that at this time the Al-
Thani were exercising authority in the area. As has been shown in the preceding Section, there
are numerous examples of the exercise of Al-Thani authority. Bahrain is quite unable either to
provide evidence to the contrary or to assert a single comparable example of an act of
sovereignty accomplished by itself or on its behalf in or over Zubarah during the period of the
Ottoman presence or later.
6.24 A further word should be said about the British request made in 1911 to Sheikh Jassim to
allow Bahrainis to settle in Zubarah, in exchange for payment of an annual rent - a request which
was refused by Sheikh Jassim. This event has been relied upon in Qatar's Memorial as evidence
56
of the British understanding that Qatar had full and effective control over Zubarah . Bahrain
advances a twisted interpretation of the same event, however, characterising it as an attempt by
Britain "to entice Jasim bin Thani into agreeing to the de jure recognition of the de facto
situation in the peninsula" in the context of "concerted action by Britain to follow a policy that
was described by British offi57als as: 'devoted to contracting this Chiefship [Sheikh Jasim] to its
narrowest possible limits'" .
6.25 The idea that the request was made in the context of such a "concerted action" by the British
is once more a complete misreading by Bahrain of the documentary evidence. First, the request
was made by Britain in 1911, while the document which allegedly sets out a concerted British
policy dates from 1905. Second, the suggestion made in 1905 that Sheikh Jassim's authority
should be contracted to the narrowest possible limits was a personal suggestion by the Political
Agent, link58 to the British desire to restrict the concomitant Ottoman authority, and was quickly
dismissed .
6.26 Furthermore, Bahrain's suggestion that Sheikh Jassim was somehow being bribed to
recognise "the de facto situation in the peninsula" cannot be reconciled with the fact that the
British made the request to Sheikh Jassim, offered payment of an annual rent, and took no
measures to contest Sheikh Jassim's refusal. In Qatar's submission, these are all clear indications
that the British considered that Sheikh Jassim was sovereign over the territory concerned.
6.27 Qatar has already demonstrated the fallacy of Bahrain's contention that after the 1913
Convention, the Al-Thani were losing their control over Doha and the Ruler of Bahrain
59
"remained in possession of the northern part of the Qatar peninsula" . In this regard it will be
recalled that in 1919, the Ruler of Bahrain tried to re-open the Zubarah issue by asking the
British to be allowed to occupy that place. He was however coolly received by the Political
Agent, who wrote on 6 December 1919 that the ruling family of Bahrain were "rather
unnecessarily filled with ideas of their own importance" and that:
"... the suggestion of Shaikh Isa's that he be allowed to revive a ten year-old controversy
should be nipped in the bud. The new move is obviously an attempt to extend his power
territorially and financially a60the expense of Ibn Saud and Abdullah bin Jassim [Al-Thani]
and will only end in trouble" .
The sketch map attached by the Politica61Agent to his letter clearly shows that Zubarah was an
integral part of the territory of Qatar .
6.28 Finally, Bahrain contends that its "sovereignty over Zubarah could not have been lost by
62
Qatar's armed attack in 1937" and that it made "24 officially recorded protests and cl63ms in
relation to the Zubarah Region... to Britain and Qatar between 1937 and 1961" . Qatar will not
review all these alleged protests and claims, which are listed but not discussed in the Bahrain
Counter-Memorial. However, it may be noted that in general they are related less to sovereignty 64
than to personal jurisdiction, private property rights or simply questions of prestige . Moreover,
as has already been noted and as will be further discussed below, the British Government never
recognised any Bahraini claim to sovereignty in or over Zubarah, and Bahrain has on numerous
occasions expressly disclaimed sovereignty over Zubarah . 65
6.29 Having reviewed Bahrain's contentions above, it is striking that Bahrain has presented
absolutely no evidence whatsoever of the exercise by Bahrain of any direct sovereignty over
Zubarah at any time during the last 200 years.
B. The claim of indirect exercise of sovereignty by Bahrain over Zubarah, that is to say,
through the Naim tribe
6.30 As there is no evidence to support any direct exercise of authority by the Al-Khalifah in
Zubarah, Bahrain lays great stress upon the alleged relationship of the Naim tribe with the Ruler
of Bahrain in a further attempt to prove its sovereignty 66.
6.31 Qatar has already shown in its Counter-Memorial that the supposed allegiance of the Naim
towards the Ruler of Bahrain cannot serve as a basis for Bahrain's claim to Zubarah since:
67
- the links of allegiance of the Naim towards the Ruler of Bahrain have not been proven ;
- the 68rritory claimed by Bahrain was not occupied permanently or even regularly by the
Naim ;
- the territory claimed by Bahrain was frequented - on the rare occasions when there was
settlement in that region - not only by sections of the Naim tribe other than the Al-Jabr (the
single section on which Bahrain relies to establish its title to Zubarah) , but also by other
tribes ;
- even if there had been some link between the Al-Jabr section of the Naim tribe and the Ruler of
Bahrain, this could not serve as a basis for any claim of title to Zubarah by Bahrain in the
absence o71any evidence of the exercise of acts of political or public authority by Bahrain in
Zubarah .
6.32 Nevertheless, Bahrain has continued to argue that it exercised its sovereignty continuously
over the so-called "Zubarah region", from the 1760s until 1937, by means of the presence of the
Naim tribe which, according to Bahrain, was at all times loyal to the Al-Khalifah. In the
following sub-sections, Qatar will examine the various assertions made by Bahrain in its
Counter-Memorial in this respect. More particularly, Qatar will show that Bahrain has made
numerous misstatements with regard to the Naim; and that the alleged relationship between
Bahrain and the Naim has no significance with regard to sovereignty over Zubarah.
1. Bahrain's misstatements with regard to the Naim
6.33 Bahrain's pleadings contain a number of contentions regarding the role of the Naim which
are simply not supported by the evidence upon which Bahrain relies.
6.34 A critical element of Bahrain's claim is that the Naim maintained a permanent presence in
the "Zubarah Region" throughout the 19 thand 20 centuries until 1937 . Bahrain has produced
no contemporary evidence which proves the existence of an identifiable "Zubarah Region"
distinct from the town of Zubarah. Moreover, not only Qatar but also Bahrain has produthd th
evidence that Zubarah was completely deserted for long periods during the 19 and 20
centuries. For example, Lorimer records the destruction of Zubarah by fire in 1811 73and the re-
occupation of "the deserted site of Zubarah" some thirty years later, and f74 a period of only a
few months, by Sheikh Abdullah and Sheikh Mohamed Al-Khalifah . Although the Naim
returned to Zubarah at some time thereafter, it should be recalled that they left again in 1878 and
were mostly removed to Doha . This information is confirmed by an appendix to the 1879-1880
Report of the Political Resident, which states that Zubarah, like Khor Hassan and Robeyjah, was"uninhabited" . Some years later, in a letter addressed to the Turkish Ministry of the Interior in
1903, the Governor of Basrah wrote:
"As Udeid and Zubarah had no population and settlements, the Mudirs formerly appointed in
Katar were on the regular payroll without having discharged their functions... The Zubarah
and Udeid nahiyes are dens of robbers forming an uninhabited area devoid of all shelter
where the supply of food and other necessaries is beyond possibility" . 77
While Qatar does not dispute that Zubarah may have been frequented from time to time - indeed,
as was usual in the Gulf region, a number of tribes had a nomadic way of life which led them to
move from one place to another - the above evidence cannot be construed as supporting the idea
th
of a permanent settlement in Zubarah or its vicinity in the 19 century and the earlier part of the
20 century.
6.35 Bahrain also contends that "an 1893 report by the Ottomans confirmed that the Naim tribe
was living in the Qatar peninsula, that its tribal dirah included Zubarah and that it was a Bahraini
tribe" . What Bahrain neglects to point out with regard to this report is that the Naim are listed
as one of the three principal tribes "in the territory of Qatar" - a description which immediately
rules out any idea of their somehow conferring Bahraini sovereignty over the areas within which
they moved. Furthermore, there is no mention in the report of a Naim dirah.
6.36 It will be recalled that in its Counter-Memorial Bahrain put forward the idea that until 1937
the Qatar peninsula was shared out among three "confederations", one of which was the "Naim-
led tribal confederation in the north (whose allegiance lay with the Al-Khalifah dynasty)" which,
along with Saudi tribes, "dominated" what Bahrain refers79o as "the pearl merchant enclave in
Doha (the tiny Al-Thani-led Doha confederation...)" . The idea of a "Naim-led tribal
confederation" which somehow exercised the authority of the Ruler of Bahrain in the Qatar
peninsula is just as far-fetched as the idea of the Al-Thani being no more than the leaders of a
80
tiny and insignificant group of merchants in Doha . This "Naim-led tribal confederation" is
again something which has appeared for the first time in Bahrain's Counter-Memorial.
6.37 In order to support its contentions in this regard, Bahrain has regrettably engaged again in
mis-citation of the evidence. For example, we read in the body of the Bahrain Counter-Memorial
that "the Naim-led northern tribal confederation participated in Muhammed bin Khalifa's 1848
victory over a challenger to his throne" 81; yet the document cited in support of that statement
says n82more than that Sheikh Mohamed "was received by the Al-Naim tribe who were ready to
fight" . There is no mention of a "Naim-led tribal confederation". Bahrain further relies upon a
1906 report in support of its statement that "the loyalty to Bahrain of the Naim-led tribal
confederacy in the north of the Qatar peninsula remained undisputed" 83. Reference to that report
shows, however, that there is no mention of the Naim at all, and that the author judged, with
respect to the tribe concerned, that "the Chief of Bahrein is quite incapable of imposing his will
upon them for any practical purpose" . A final example of Bahrain's exaggeration in this regard
concerns the alleged integration of "the Naim-led confederation" into "the political economy of
85
Bahrain" ; again, the source upon which Bahrain relies refers only to the Naim themselve86
without mentioning any other tribes that might have formed such a confederation . As to the
supposed unswerving allegiance of the "Naim-led confederation" to the Al-Khalifah, Qatar has
87
already shown, and will show further below, that this notion is quite unfounded .
2. Bahrain's relations with the Naim are of no significance with regard to sovereignty over
Zubarah
6.38 Bahrain argues that the loyalty of the Naim to the Al-Khalifah remained undisputed until
1937 and that this provided at least one basis for its claim of sovereignty . The evidence that
Bahrain relies upon simply does not support this contention.6.39 First, it must be recalled that the immediate precursor to the 1868 Agreements was an
incident which occurred in October 1867 between the Naim and the Ruler of Bahrain. That
incident was reported by the Assistant Political Resident as follows:
"One Ali bin Thamir al Naemiee of the Bedouins of Guttar having been seized and sent to
Bahrain by Shaikh Ahmed bin Mohamed bin Sulman the representative of the Chief of
Bahrain on the Guttar Coast for going to his tribe, the naimes of Wakra, the naimes and the
people of Biddah, Doha and Dougha combined and demanded his release. This demand was
89
refused, and they then determined to turn Shaikh Ahmed out of Wakra" .
As Qatar has already shown in its Memorial, this eventually led to the sack of the eastern towns
of Qatar by the united forces of Bahrain and Abu Dhabi, the scattering of the members of the
Qatar tribes (including the Naim) throughout the region, the retaliation led in June 1868 by the
united tribes of Qatar against Bahrain, and finally the conclusion of the 1868 Agreements . 90
6.40 In the light of these events, it is easy to understand why the British were sceptical when in
1873 the Ruler of Bahrain asserted that the Naim were his subjects. As Qatar has noted, the
British observed at that time that the rights claimed by the Ruler of Bahrain over the Naim were,
at best, purely nominal . In addition, they observed that the Ruler of Bahrain "has not the power
if he wished to protect tribes residing in Guttur". Writing to the Political Resident, the First
Assistant Political Resident stated that:
"From what I have heard whilst living in Bahrein, I should say that 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 Guttur seems to have
varied in proportion to the power of coercion those rulers possessed; if the Chief of Bahrein
92
was strong the tribes acknowledged his supremacy; if he was weak they denied it" .
These remarks can hardly support Bahrain's argument that there existed a special and
unwavering relationship between the Ruler of Bahrain and the Naim.
6.41 However, Bahrain mentions certain British documents dating from the 1870s and 1880s,
which reported that the Naim "maintain intimate friendly relations with the Chief of Bahrain" 93
94
and that the latter "makes yearly presents of considerable value" to the Naim . But this is not
indicative of strong ties of allegiance between the Naim and the Ruler of Bahrain, especially
when, as one of the same sources recorded, "a large portion of the revenues of Bahrain are
dissipated in this manner without any ostensible compensating advantage" 9. This is certainly not
sufficient to establish a relation of overlord to subordinate, with the former exercising
sovereignty over the territory occupied by the latter.
6.42 Bahrain similarly observes that in 1875 the Ruler of Bahrain was said to spend:
"... three to four thousand krans every month on the people of Zobarah, and gives Nasir bin
96
Jabor [the Naim headman] 300 krans per mensem" .
Beside the fact that this is not significant in terms of allegiance , Bahrain has failed to reproduce
the whole extract, which continues as follows:
"This salary to Nasir bin Jabor has been disbursed since the siege of Zobarah last year" 98.
In other words, even assuming, arguendo, that such payments could imply ties of allegiance,
they are certainly not proof of the longstanding links of allegiance that are alleged by Bahrain 99.
6.43 Bahrain also contends that the so-called "Naim-led confederation" was integrated into the
political economy of Bahrain. However, Lorimer recalled, writing in 1908, that in the summer:
"most of them [the Naim] remove to Bahrain and form camps in the northern part of the main
island, but some take up their summer quarters near Dohah in the Qatar peninsula" . 100In other words, it cannot seriously be contended that the Naim had special and exclusive links
with Bahrain.
6.44 Qatar does not dispute that some of the Naim may have migrated between Qatar and
Bahrain. However, Bahrain seems to imply that the territory of one country frequented by private
persons of another country and even nomads can become the territory of the latter. In Qatar's
submission, such a criterion cannot be a basis for any title of sovereignty. As Sir Gerald
Fitzmaurice stated:
"It has long been well settled that the hunting, whaling, guano collecting, exploring and other
similar activities of private individuals acting on their own, however numerous and
extensive, do not per se confer on their State a title to sovereignty over the areas
concerned" 10.
Reference may also be made to the recent Award in the Eritrea-Yemen case, where the Arbitral
Tribunal noted that fishing activities by private persons do "not constitute evidence of effectivités
for the simple reason that none of these functions are acts à titre de souverain" 102. This was of
course particularly true in the Gulf where, from time immemorial, people moved from one
territory to another in pursuit of their economic activities.
6.45 In any event, after the incident of 1937, which Bahrain characterises as a Qatari invasion of
103
the territory of Bahrain's "Naim-led tribal confederation in the north" , and after the Naim had
agreed to obey the laws of Qatar, an Intelligence Report of the Political Agent of August 1937
recorded that:
"The Shaikh [of Bahrain] asked for written permission to allow the Naim to come to Bahrain
if they so desired which was granted, but the Naim did not appear to desire to leave Qatar
where they had sufficient grazing for their flocks which probably they would not have been
able to obtain in Bahrain" 10.
Accordingly, even if the Naim were to be regarded as a Bahraini tribe, their presence in parts of
Qatar was determined by whether there was better grazing there or in Bahrain, and can clearly
provide no support to any Bahraini claim to have exercised authority over any part of Qatar.
6.46 Moreover, there was no special and exclusive relationship between the Rulers of Bahrain
and the Naim. In this regard Bahrain refers to Lorimer's observation that the Naim had
"immigrated from Oman several generations ago at the invitation of the Utub, then in Qatar, for
105
the purpose of expelling the Al Mussalam" , inferring from this that:
"The Naim tribe and the Al-Khalifa quickly entered into a mutually advantageous
106
relationship of Ruler/benefactor and dependent/beneficiary" .
There is no basis for such an inference. As Qatar has already recalled in its Counter-Memorial 107,
Lorimer stated in the same extract that:
"The Bedouins of the northern Na'im are retained as mercenaries both by the Shaikh of
Bahrain and by the Al Thani Shaikhs of Dohah, and the protection of those Shaikhdoms is
considered to devolve principally upon them during the absence from home of the pearl
108
fleets" .
Lorimer added:
"Their efficiency and trustworthiness are not however beyond doubt, and their presence in
Bahrain in summer is a source of annoyance to the peaceable agriculturists of other tribes" 109.
Consequently, the picture painted by Bahrain of a loyal tribe owing exclusive allegiance to the
Al-Khalifah does not square with the historical facts as reported by Lorimer.
6.47 Some years later, in 1926, Prideaux, the Political Resident, noted that it was necessary for
the Sheikh of Qatar: "to arm contingents from the Bedouin tribes - Bani Hajir, Naim and Manasir - who, although
they do not reside all the year round in his territory but spend periods in the interior of
Trucial Oman, yet admit themselves to be feudatory to him and must be controlled by
110
periodical gifts of arms and ammunition" .
The implication of this is that the Naim owed their allegiance to the Ruler of Qatar.
6.48 Bahrain however stresses the fact that "members of the Al-Jabr branch of the Naim tribe -
including their Chief" appear on the Bahrain Civil Lists and Pension Lists dating from the
1920s 111. Qatar would simply comment as follows. Even if, arguendo, the presence of members
of the Al-Jabr section of the Naim tribe on such lists could have had some significance, it was
limited to a few members of a single section of the tribe and to their chief, and had no
significance for the rest of the Naim tribe.
6.49 Bahrain further contends that in return for financial support received from the Ruler of
Bahrain:
"... the Naim tribe paid taxes to the Ruler of Bahrain, acted as his guards, and performed a
variety of services for him" 11.
These three assertions are disputable and/or irrelevant. As a general point, it should be noted that
Bahrain makes these assertions almost immediately after having referred tothe report stating that
"a large portion of the revenues of Bahrain are dissipated in this manner without any ostensible
compensating advantage" 113.
6.50 Bahrain has produced no evidence whatsoever of the payment of tax by the Naim to the
Ruler of Bahrain. The authority that it relies upon in this regard is in fact referring to the
payment not of tax, but of tribute or zakat. Moreover, it is interesting to note that the authority
cited by Bahrain wrote as follows:
"Le traité de 1868 stipule en outre le paiment d'un tribut par les communautés tribales au
dirigeant de Bahrain (en 'krans'): al-muhandat 1700; al bu ainain et Naim, 1500; al bu
kuwarah, 500; keleb, 500; Sudan, 1500; Muhammad bin Thani pour les Maadhid et
Musallam, 2500; Amamarah, 800; soit 9000 'krans' au total ou 400 livres sterling par an
(IOR/5/15/2/30, file E 7). De ce montant, 4000 krans devaient être délivrés par Muhammed
ibn Thani au principal shaykh des al-naim, le reste étant envoyé à Bahrain pour être transmis
à Riyadh. Dans son rapport, le Résident politique Pelly explique:
'this payment of tribute does not affect the independence of Guttur [Qatar] in relation
to Bahrein. But it is to be considered as a fixed contribution by Guttur [Qatar] toward
a total sum payable by Bahrein and Guttur combined, in view to securing their
frontiers from molestation by the Naim and Wahabee bedouins, more particularly
during the pearl diving season, when the tribes of Guttur and Bahrein, occupied at sea
leave their homesteads comparatively unprotected' (Kelly, 1968: 675).
Ce tribut - que les al-na'im nomment jazi'ah - fut acquitté deux années seulement. On sait
que l'attribution d'une part de la zakat, à laquelle on réfère plus communément, ni ne
confirmait ni n'infirmait un pouvoir réel de ceux qui la percevait. Elle symbolisait une
soumission religieuse et la pacification. Ainsi délivrée aux al-na'im il semble pourtant
qu'une responsabilité dans le respect et le maintien de l'ordre leur était dès lors dévolue.
Une idée que l'on voit confirmée par des écrits plus tardifs les qualifiant de mercenaires
engagés aux services des shuyukh de Bahrain et de Qatar et pour la 'protection of those
114
shaikhdoms' (Lorimer, 1970, II: 1302)"
6.51 As for the Naim acting as guards of the Ruler of Bahrain, Bahrain has mentioned only one
isolated example, dating from 1869, when Colonel Pelly wrote to Mohamed bin Thani that he
had invited- "Esau bin Alee to visit me here (Bahrein) with an armed escort of the Naeem tribe, and I
115
desire that he may not be interfered with in any way" .
As has been noted above, the Naim tribe acted as mercenaries for both the Al-Thani and the Al-
Khalifah, and there is moreover nothing to suggest that the Naim referred to in this context were
Naim from Qatar, and not Naim normally resident in Bahrain.
6.52 Finally, as to the "variety of services" allegedly performed by the Naim for the Ruler of
Bahrain, Bahrain refers only to Section 2.1 of its Memorial and Section 2.2 of its Counter-
Memorial, where very few examples of such alleged services are to be found.
6.53 One such example which, according to Bahrain, proves "the loyalty to Bahrain of the Naim-
led tribal confederacy in the no116 of the Qatar peninsula" related to a shipwreck that occurred
off the north of Qatar in 1906 . Captain Prideaux, the British official who investigated the case,
was told by a local sheikh that he was a subject of the Ruler of Bahrain and that Captain
Prideaux should address himself to that Ruler 11. This incident not only does not confirm what
Bahrain alleges, however, but it also confirms the total lack of power of Bahrain in Qatar.
6.54 First, the document quoted by Bahrain does not say anything about any "Naim-led tribal
confederacy" or indeed Zubarah; the document only mentions the sheikh of a village, "Abu
Dhaluf, at the north-west end of the Katr peninsula". Second, Bahrain does not mention the fact
that in 1902 the British had decided that the Ruler of Qatar "should continue to be held
responsible for the behaviour of the Bedouins of Qatar" . Finally, it may be noted that Captain
Prideaux stated that:
"It was a considerable surprise to me to find that the people of this part of Katr should still
ostensibly call themselves Bahrein subjects, but, as the Chief of Bahrein is quite incapable of
imposing his will upon them for any practical purpose, I submit that this fact should not
debar us from dealing with the tribes of the Katr mainland, and especially those who do not
acknowledge the sovereignty of the Bin Thani family direct, in virtue of our claim to
maintain the maritime peace" 119.
120
6.55 Contrary to what Bahrain asserts, there is no evidence of the Naim dealing with "rebels"
(this being apparently a reference to the Al-Thani) on behalf of the Ruler of Bahrain, either in
Zubarah or anywhere else in Qatar. Bahrain refers to British documents of 1887 and 1888 which,
according to Bahrain, record "the Naim Sheikhs' visits to the Ruler of Bahrain to request 121
assistance in their tribal struggles and in their struggles against the Doha confederation" . In
fact, the documents referred to by Bahrain allude to only one visit of one member of the Naim
"on behalf of Jasim bin Thani" 122. Furthermore, the Ruler of Bahrain is reported as having
replied that if the Naim wanted "to side with Jasim they were free to do so, but if they wanted
Sheikh Eesa th123will be welcome on their island (of Bahrain), which is of extensive
dimensions" . Leaving aside the fact that the ties of allegiance of the Naim with the Ruler of
Bahrain can clearly not have been very strong if the Ruler of Bahrain was happy to allow them
"to side with Jasim", the fact that the Naim were also stated to be welcome on the island of
Bahrain if they did not want to do so confirms once more that the Ruler of Bahrain himself
considered that the authority and territory of Bahrain did not extend to any part of Qatar.
6.56 The 1124 events have already been dealt with above and in Qatar's previous written
pleadings . These events, which culminated in the submission of the dissenting Naim to the
Ruler of Qatar, again confirmed the sovereignty of Qatar over Zubarah 125. They also
demonstrated that the alleged unswerving loyalty of the Naim to the Ruler of Bahrain simply did
not exist. Thus, the Political Resident wrote that:
"Attitude of Naim is reported to be that, if they do not receive support from the Shaikh of
Bahrein against the Shaikh of Qatar, they will 'adhere to Ibn Saud'. They are stated to have
complained to Saud bin Jiluwi, Governor of Hasa, against the Shaikh of Qatar... Naim numbering about 1000 (the men being (? armed)) with camels and flocks are concentrated at
Zubarah. This appears to me to indicate a possible migration of Naim to Hasa" 12.
The fact that the Naim were prepared to adhere to Ibn Saud and possibly to migrate to Hasa
demonstrates the weakness of any attempt to found territorial sovereignty upon links of
allegiance. The Court will of course recall that the same considerations apply, in the context of
the dispute over Hawar, to the relationship between the Ruler of Bahrain and the Dowasir i127he
1920s, the Dowasir in fact carrying out their threat of adhering to Ibn Saud in 1923 .
6.57 The document relied upon by Bahrain is also revealing of British views as to Bahrain's
alleged sovereignty over Zubarah. The Political Resident wrote:
"I do not feel we should interfere if Naim emigrates to Saudi Arabia. Nor am I of the opinion
that we should take any forcible measure against either side in the event of a clash between
Naim and Shaikh of Qatar... Political Agent, Bahrein, however, should of course continue his
efforts at persuading all parties concerned to keep peace. In particular Shaikh of Bahrein
should be prevented from sending reinforcements to the Naim at Zubarah, which, apart from
other considerations, would be against his treaty of 1861 as it would involve a breach of (?
128
maritime) peace" .
This appears to show that the obligation of the Ruler of Bahrain not to interfere on the territory
of Qatar had, in the view of the British authorities, been binding upon successive Rulers of
Bahrain since 1861.
6.58 In sum, the evidence shows that even if there might at times have been weak or transitory
links between the Ruler of Bahrain and some of the Naim, the Ruler of Bahrain was unable to
exercise any authority over them. On the contrary, Qatar has drawn attention to the fact that the
Chief of Bahrain himself admitted to Major Grant in 1877 the real basis of his relationship with
the Naim. He stated that he had dealings with them, made presents to them and received them in
Bahrain because he had no choice, for fear of the tribe joining with his enemies (at the time,
129
Nasir bin Mubarak) and attacking the Bahrain islands from Zubarah . The evidence also shows
that from at least 1867 onwards, the Naim from time to time sided with the Al-Thani against the
Al-Khalifah, and that the tribe's relationship with both Qatar and Bahrain was essentially a
mercenary relationship. In these circumstances, there can be no question of the Ruler of Bahrain
exercising his authority over the Naim or of any durable links of allegiance between the Naim
and the Rulers of Bahrain. It necessarily follows that Bahrain's contention that it exercised
sovereignty over Zubarah indirectly through the Naim cannot be sustained, and it is therefore
unsurprising that Bahrain has produced no evidence of any acts of authority performed by the
Naim in Zubarah or any other part of Qatar on behalf of the Rulers of Bahrain.
Section 5. Bahrain's Claim to Zubarah was never recognised by the British; it was not
supported in Bahrain itself; and it was repeatedly disclaimed by the Ruler of Bahrain
A. Britain's refusal to recognise the Bahraini claim to Zubarah
6.59 The nature of the Ruler of Bahrain's relationship with the Naim and its consequences is
discussed more fully above. For the present purposes, it is only necessary to point out that the
British never recognised that such a relationship was in the nature of allegiance that entitled
Bahrain to exercise any territorial sovereignty in or over Zubarah or the so-called "Zubarah
Region". The Court will recall that Qatar has dealt in detail with the British response to Bahrain's
130
claim relating to Zubarah when it was first made in 1873 . Qatar has shown that the Bri131h
rejected the claim as a result of investigations made by local British officials at the time . This
was followed by a decision by the Governor General in Council of the Government of India in
1874 that the Ruler of Bahrain had no possessions on the mainland of Qatar 132. This decision was
133
duly communicated to the Ruler by the Political Resident in December 1874 .6.60 Bahrain claims in a sub-heading in its Counter-Memorial that its "claim to rights in Zubarah
134
was recognised by Britain" . However, an examination of what follows under this sub-heading
contains no reference to any evidence that supports such a claim. Bahrain in fact proceeds to
provide reasons why the British did not recognise Bahrain's claims in Zubarah, and in effect tries
to argue that those reasons did not affect its claim to rights in Zubarah. The main explanation that
Bahrain offers is that Britain, in its own interest, "did not want to be dragged into a war - even a
135
proxy war - with the Ottomans" , suggesting that this could have resulted from allowing
Bahrain to interfere, in any way, in Zubarah. Bahrain admits that the British authorities advised
its Ruler that if protection under the 1861 Treaty was to be accorded to him, "he must not be the
aggressor or undertake measures... considered inadvisable by the British Government" 136.
Bahrain fails to recognise that the British were therefore warning him not to commit a breach of
the 1861 Treaty by any aggression across the sea if he desired the benefit of protection under that
Treaty. Bahrain clearly accepted the warning so as to avail itself of the benefits under the Treaty
and, as shown below, the British thereafter acted repeatedly in discharge of their obligations
under the 1861 Treaty in protecting Bahrain and ensuring its security. Having obtained the full
advantage of British protection under the Treaty for over a century, Bahrain surely cannot now
blame the British for not supporting its claim to rights in Zubarah which the British had in any
case rejected after Major Grant's investigation in 1873.
6.61 Bahrain then claims that Britain prevented the Ottomans from exercising any authority in
Zubarah specifically because of Bahrain's rights there 137. While it has been shown to be part of
British policy in the late 19 century to refrain from according formal recognition of Ottoman
claims to territory in the region, Bahrain fails to realise that this had nothing to do with
"Bahrain's rights" in Zubarah. Thus the British did not similarly prevent any exercise of Al-Thani
authority in Zubarah. As shown above, when the Al-Thani disciplined the Naim in Zubarah in
1878 and again in 1937, the British acquiesced in such action and took no steps to protect any
alleged claim of Bahraini rights in Zubarah, having rejected that claim in 1873 138. Similarly,
when in 1895 the British destroyed a fleet in Zubarah harbour which posed a threat to Bahrain's
security, there was never any question of allowing any Al-Khalifah presence or exercise of
authority in Zubarah.
6.62 What is particularly important is that even Bahrain's so-called excuse, namely, that due to
the Ottoman presence in Qatar, Bahrain was prohibited by the British from asserting any rights in
Zubarah, disappeared from 1913. In that year, under the Anglo-Turkish Convention, the British,
far from recognising any Bahraini rights in Zubarah, not only acknowledged the Al-Thani rights
to the entire peninsula but also expressly undertook not to allow Bahrain to interfere on the Qatar
peninsula even after the Ottomans had left Qatar.
6.63 Bahrain then seeks to rely on the views of individual British officials who might from t139
to time have expressed support or sympathy for Bahrain's claims relating to Zubarah . Bahrain
fails to recognise that such views never became part of official British policy, which continued to
be a refusal to accept any Bahraini claims in Zubarah from 1873 onwards. The most striking
examples of the individual views on which Bahrain seeks to rely are those expressed in 1937 by
the then Political Agent, Colonel Loch, in his telegram of 30 March 1937 and a Note of 12 April
1937 to the Political Resident (Fowle) 140as well as a letter of his successor, Capt. Hickinbotham,
of 22 September 1937 141, also addressed to Fowle. However, Bahrain fails to draw attention to
the fact that Fowle's first response to Loch was a telegram stating "Personally I am of the opinion
142
that Zubara definitely belongs to Qatar but I am writing to His Majesty's Government" .
Thereafter, and having conducted a fuller investigation, Fowle, in his considered report and
recommendations of 5 May 1937 to the Secretary of State for India, concluded that in spite of his
friendly feelings about Britain his view was that "juridically, Bahrain's claim to Zubarah must
143
fail" .6.64 Further evidence of this continuing British position that Qatar has recently unearthed is an
Intelligence Report of the Political Agency in Bahrain for July 1945 which records:
"For an hour and a half, after sitting with him in the Joint Court, the Political Agent listened
to His Highness the Sheikh on the subject of his claims, rights, wrongs and grievances in and
concerning Qatar. Since the implication of most of the Sheikh's arguments was, as usual, that
he had sovereign rights in part of Qatar territory (Zubarah) - rights which His Majesty's
Government have never ad144ted - the conversations resulted in little else but the exhaustion
of the Political Agent" .
6.65 Qatar has already shown that when the Ruler unilaterally requested the British for a final
decision in regard to his claim of rights in Zubarah and after the issue was considered by the
British Foreign Secretary, Mr. Selwyn Lloyd, the Ruler of Bahrain was expressly informed by
the Political Resident in his letter of 10 August 1957 that "Her Majesty's Government have never
supported any claim by Bahrain to sovereignty in Zubarah" . He was further informed that
various arrangements for special facilities (even the rights of Bahraini visits etc. to Zubarah)
negotiated in the past with the Ruler of Qatar could 146longer be continued, as considerations of
Qatar's security required strict entry arrangements . A further attempt by the Ruler of Bahrain
to revive his complaints concerning Zubarah in 1961 was similarly rejected, his attention being
drawn to the above-mentioned letter of 10 August 1957 from the Political Resident 147.
B. Bahrain's disclaimers of sovereignty
6.66 Qatar has set out in its Memorial details of various occasions when the Ruler of Bahrain
expressly or by implication disclaimed sovereignty over Zubarah and148ce even stated that any
such claim was more a matter of prestige than of anything else . Qatar has given further
instances of such specific disclaimers of sovereignty by the Ruler of Bahrain in its Counter-
Memorial 149. It is of particular importance to note that Bahrain has made no attempt to deny
Qatar's allegations of Bahraini disclaimers of sovereignty in Zubarah.
C. Lack of any support in Bahrain for the Ruler's claim
6.67 It is also of interest to note that Belgrave, as well as members of the Bahraini ruling family
other than the Ruler himself, were aware the British Government had never recognised Bahrain's
claim to Zubarah; nor did they believe there was any merit in the claim. This is apparent from the
following entries in Belgrave's personal diaries:
(a) "Saturday May 1 1954
Rode, went up to Jufair with HH & from 9-30 till 1-30 talked mostly about Zubara. B told
him that he had been over to Qatar, seen Z & studied all the files & papers & made up his
mind & was now reporting to HMG & recommending an arrangement which included
allowing Qatar patrols to patrol Zubara, but not to interfere with Bahrain people - HH of
course very angry and upset and said he could never agree of his own accord. He claims what
amounts to sovereignty & the BG never has & never will admit this. At 1 o'clock we had
been invited to luncheon with the Burrows to meet Hafiz Wahaba & Yusuf Yaseen & at half
past we were still discussing Zubara, however the meeting finally ended & HH, very angry
with almost no voice - he has been having a cold - left. He was not as unreasonable as usual
but insisted that he spoke for the family & the people of Bn, whereas none of them care a bit,
150
all are sick of the Qatar quarrel & Zubara" .
(b) "Thursday February 21 1957
Busy morning & very late coming up, a lot of people in & out. Sh Abdulla came in & we
discussed HH's attitude about Zubara, which, all agree, is unreasonable. It seems the sons
met Sh Ali of Qatar when hunting & he was very friendly & had them to dinner at his camp.
HH however never varies in his detestation of the Qatar people & his claim, which he himself, & only he, really believes. Days & weeks & months of time have been wasted talking
about it - or rather listening to HH on the subject"151.
__________
FOOTNOTES
1 See, QMJA, para. 3.37.
2 Ibid., Annex II.23, Vol. III, p. 145.
3 QR, Annex III.59, Vol. 3, p. 361.
4 In this context, the Court will recall the observations of Sheikh Hamad bin Abdullah of Qatar
to the effect that "[the] graves... belonged to the dead and would continue to do so and that no
one would interfere with them. There are Al Thani buried under the Petroleum Concessions
Limited tennis court at Jufair but that does not give the living Al Thani any right to play tennis
on the P.C.L. court!" (QM, Annex III.244, Vol. 8, p. 199; and see, QM, para. 8.48, fn. 67).
5 See, QM, Chaps. V and VIII; QCM, Chaps. III and V; and Chaps. II and III, above.
6 See, QCM, para. 3.45 and Chap. II, above.
7 QCM, para. 2.24, and fn. 34.
8 See, para. 6.8(d), below.
9 See, QCM, para. 2.53.
10 See, QCM, para. 2.26.
11 See, QCM, para. 3.30 and Lorimer's further observation that the Sheikh of Bahrain's
"suzerainty" over Qatar by the middle of the 19 century was "more apparent than real" (QM,
Annex. II.4, Vol. 3, p. 109, at p. 141).
12 See, para. 4.129, above.
13 QCM, Chap. II, Sect. 1.C, and Chap. II, above.
14 QCM, paras. 5.9-5.16. See, also, paras. 6.59, et seq., below.
15 QM, Annex II.7, Vol. 4, p. 61.
16 QM, Annex II.5, Vol. 3, pp. 224-225.
17 QM, para. 2.58.
18 See, Chap. II, Sect. 3, above, and the historical documents there referred to.
19 QR, Annex III.22, Vol. 3, p. 119; see, also, QR, Annex III.25, Vol. 3, p. 137.
20 QR, Annex III.8, Vol. 3, p. 47.
21 QM, Annex II.7, Vol. 4, p. 61.
22 See, QCM, paras. 5.17(6) and 5.19(7).
23 BM, Annex 62, Vol. 2, p. 268.
24 See, QR, Annex III.14, Vol. 3, p. 81.
25 See, QR, Annexes III.11 and III.15, Vol. 3, pp. 67 and 85.
26 QR, Annex III.13, Vol. 3, p. 77.
27 QR, Annex III.12, Vol. 3, p. 73.
28 See, QCM, para. 5.22, and BM, para. 65; see, also, para. 2.42, above.
29 BM, Annexes 49(a) and 66(a), Vol. 2, pp. 245 and 279.
30 See, paras 2.42, et seq., above.31 QR, Annex III.24, Vol. 3, p. 131.
32 See, QM, paras. 3.55, et seq., and Chap. II, Sect. 4, above.
33 BCM, Annex 122, Vol. 2, p. 412. See, Chap. II, Sect. 5, above. It is important to note that in
March 1934, the Resident did not exclude the Hawar islands from "the whole of Qatar" or its
coasts.
34 See, also, QM, paras. 8.45-8.46.
35 QM, Annex III.99, Vol. 6, p. 507; See, also, QM, para. 6.26.
36 QM, para. 8.32.
37 QM, paras. 8.31-8.43, and QCM, paras. 5.35-5.37.
38 See, QR, Annex III.53, Vol. 3, p. 325, where it was reported that "Without much difficulty the
Shaikh of Qatar's Forces succeeded in reducing the Fort and in taking possession of the garrison.
It appears that some five or six persons were killed on either side during this engagement... The
Shaikh of Qatar obtained a document from Shaikh Rashid bin Mohammad of the Naim to the
effect that they would [abide by the] laws of Qatar while they remained in the State and that in
the event of their desiring to leave the State of Qatar they were in full liberty to do so". The
Court will recall another later British Report of 5 December 1939 referred to by Qatar (QCM,
para. 5.36) annexed by Bahrain to its Memorial (BM, Annex 292, Vol. 5, p. 1190, at p. 1191)
which describes the 1937 Zubarah incident by stating: "Naim tribesman, financed and armed
largely from Bahrain were defeated by the Shaikh of Qatar in a bloodless battle in which the
casualties were two on each side". On the other hand, Bahrain's account of the same incident in
the Government of Bahrain's own official Annual Report for the year 1356H (March 1937 to
February 1938) states: "In the fighting which ensued there were about a dozen casualties on each
side, among the Naim Arabs who were killed were several of the personal retainers of the Ruler
of Bahrain who belonged to the Naim tribe and had their families in Qatar and lived sometimes
in Bahrain and sometimes in Qatar. Eventually the Naim surrendered and handed over a number
of their rifles. As soon as the Qatar forces had withdrawn, the whole Naim tribe with their tents,
families and flocks, moved over to Bahrain where they were generously received" (QR, Annex
III.59, Vol. 3, p. 361). This is contradicted by the Political Agent's Report mentioned above,
which further states however: "The Shaikh [of Bahrain] asked for written permission to allow the
Naim to come to Bahrain if they so desired which was granted, but the Naim did not appear to
desire to leave Qatar where they had sufficient grazing for their flocks which probably they
would not have been able to obtain in Bahrain" (QR, Annex III.53, Vol. 3, p. 325).
39 QM, para. 8.42.
40 QM, para. 8.43.
41 See, QM, para. 8.8 and QCM, para. 5.7.
42 See, QM, para. 8.10 and QCM, para. 5.7.
43 See, QM, paras. 3.35, et seq. and para. 8.12; QCM, paras. 3.25, et seq. and 5.8, et seq.; and
paras. 6.7-6.8, above.
44 BCM, para. 2.
45 See, QM, para. 3.18.
46 QM, para. 8.3; see, also, para. 6.6, above and QCM, para. 2.24. As regards Bahrain's reliance
upon the book by Bibby, see, Appendix 1 at the end of this Volume, para. 4.
47 See, paras. 3.9, et seq., above.
48 BCM, para. 89.
49 Ibid., para. 104.50 QCM, paras. 5.17-5.18.
51 BCM, para. 117, referring to BM, paras. 183-186.
52 BM, para. 183; emphasis by Bahrain.
53 BM, Annex 67, Vol. 2, p. 281; emphasis added.
54 See, BCM, para. 94.
55 See, para. 6.8, above.
56 QM, para. 8.26.
57 BCM, para. 121.
58 See, BM, Annex 71, Vol. 3, p. 357. It may be noted that the document made no reference to
any Bahraini sovereignty in Zubarah, which it described as uninhabited.
59 See, paras. 2.53, et seq., above, referring to BCM, para. 127.
60 BM, Annex 86, Vol. 3, p. 518; see, also, BM, Annex 87, Vol. 3, p. 524.
61 Ibid., p. 521.
62 BCM, para. 454.
63 BCM, para. 451.
64 See, QCM, paras. 5.38, et seq.
65 See, QM, paras. 8.49-8.50; QCM, para. 5.38; and para. 6.66, below.
66 BCM, paras. 42, et seq.
67 QCM, paras. 5.45, et seq.
68 Ibid., paras. 5.48, et seq.
69 Ibid., paras. 5.53, et seq.
70 Ibid., para. 5.11.
71 Ibid., paras. 5.58, et seq.
72 BCM, para. 44.
73 BM, Annex 83, Vol. 3, p. 444 and QM, Annex II.5, Vol. 3, p. 198.
74 BM, Annex 83, Vol. 3, p. 452; and QM, Annex II.5, Vol. 3, p. 206.
75 See, para. 6.8(c), above; BM, Annex 83, Vol. 3, pp. 470-471; QM, Annex II.5, Vol. 3, pp.
224-225.
76 QR, Annex III.5, Vol. 3, p. 31.
77 QR, Annex III.25, Vol. 3, p. 137; see, also, QR, Annexes III.22 and III.23, Vol. 3, pp. 119 and
125.
78 BCM, para. 45, referring to BCM, Annex 25, Vol. 2, at p. 76.
79 BCM, para. 40.
80 Qatar has already dealt, in Chap. II, Sect. 2, above, with Bahrain's unfounded assertions as to
the so-called "Doha confederation".
81 BCM, para. 43.
82 QM, Annex II.69, Vol. 5, p. 353.
83 BCM, para. 54.
84 BCM, Annex 32, Vol. 2, p. 106.85 See, BCM, para. 56. The idea that the Naim were "integrated into the political economy of
Bahrain" is based upon the allegation that they migrated seasonally from Zubarah to Bahrain,
and had homes "both in Zubarah and the islands". Bahrain overlooks the fact that this could
equally well signify that they were "integrated into the political economy" of Qatar.
86 BM, Annex 232, Vol. 4, p. 1013.
87 See, QCM, paras. 5.44, et seq.; and paras. 6.38, et seq., below.
88 See, BCM, paras. 54-55.
89 QR, Annex III.1, Vol. 3, p. 1.
90 See, QM, paras. 3.30, et seq; and QM, Annex II.7, Vol. 4, pp. 31-36.
91 See, QCM, para. 5.13.
92 QR, Annex III.4, Vol. 3, p. 27.
93 BCM, para. 45.
94 Ibid., para. 51.
95 Ibid.
96 Ibid., para. 50.
97 See, para. 6.50, below.
98 BCM, Annex 13, Vol. 2, p. 35.
99 BCM, para. 42.
100 BM, Annex 74, Vol. 3, p. 396.
101 "The Law and Procedure of the International Court of Justice - General Principles and
Sources of Law", B.Y.I.L., 1953, p. 48 (QR, Annex III.103, Vol. 3, p. 629; footnote omitted).
See, also, Sir Gerald's article in the 1955-1956 edition of B.Y.I.L. at p. 55 (QR, Annex III.104,
Vol. 3, p. 693) and the Aves Islands Award of 30 June 1865, Moore's Digest, Vol. V (QR, Annex
III.111, Vol. 3, p. 677).
102 Eritrea/Yemen Award, para. 315.
103 BCM, para. 40.
104 QR, Annex III.53, Vol. 3, p. 329.
105 BM, Annex 74, Vol. 3, p. 397.
106 BCM, para. 42.
107 QCM, para. 5.47.
108 BM, Annex 74, Vol. 3, p. 397; emphasis added.
109 Ibid.
110 QR, Annex III.40, Vol. 3, p. 237; emphasis added.
111 BCM, para. 51.
112 Ibid., para. 52.
113 Ibid., para. 51; emphasis added.
114 BCM, Annex 119, Vol. 2, p. 380.
115 BCM, Annex 6, Vol. 2, p. 13.
116 BCM, para. 54.
117 Ibid.118 BM, Annex 83, Vol. 3, p. 485.
119 BCM, Annex 32, Vol. 2, p. 107; emphasis added.
120 BCM, para. 84, fn. 135.
121 BCM, para. 49.
122 BCM, Annex 21, Vol. 2, p. 47.
123 Ibid.
124 See, para. 6.8(q), above; QM, paras. 8.31, et seq., and QCM, paras. 5.35, et seq.
125 See, QM, paras. 8.39, et seq.
126 BCM, Annex 82, Vol. 2, pp. 259-259a.
127 See, para. 4.161, above.
128 BCM, Annex 82, Vol. 2, p. 259a; emphasis added.
129 QCM, para. 5.19(3); and BM, Annex 35, Vol. 2, p. 204 (text crossed out by Bahrain).
130 QCM, paras. 5.10, et seq.
131 Ibid.
132 QM, paras. 8.19-8.20.
133 QM, Annex III.30, Vol. 6, p. 145.
134 BCM, Section 2.2(H) (iii), p. 46.
135 BCM, para. 98.
136 BCM, para. 99.
137 BCM, para. 102.
138 See, in this regard, para. 6.57, above.
139 BCM, para. 100.
140 BM, Annexes 113 and 114, Vol. 3, pp. 633 and 634.
141 BM, Annex 160, Vol. 4, p. 733.
142 BM, Annex 112, Vol. 3, p. 632.
143 QCM, paras. 5.31, et seq.
144 QR, Annex III.95, Vol. 3, p. 581.
145 QM, para. 8.53.
146 Ibid.
147 Ibid., para. 8.54.
148 Ibid., paras. 8.47, et seq.
149 QCM, para. 5.38. Another similar instance, which Qatar has recently noted, is a Report of
the British Political Residency of 12 May 1953 which records:"... a map published last year with
an Annual Report of the Bahrain Government's Education Department in which a considerable
slice of the north-western coast of Qatar is included in an area shown as 'Bahrein Islands and
Dependencies'. In fairness to the Ruler of Bahrein it should be stated that this map appears to
have been published without his knowledge and that he was considerably embarrassed when he
was shown it" (QR, Annex III.96, Vol. 3, p. 587).
150 Extract from Belgrave diary dated 1 May 1954; emphasis added.151 Extract from Belgrave diary dated 21 February 1957; emphasis added.
__________
CASE CONCERNING MARITIME DELIMITATION AND
TERRITORIAL QUESTIONS BETWEEN QATAR AND BAHRAIN
(QATAR V. BAHRAIN)
REPLY OF THE STATE OF QATAR
_____________________________________________
PART IV 271
MARITIME DELIMITATION 271
Introduction 271
CHAPTER VII - BAHRAIN'S IMAGINARY VIEWS OF ITSELF 273
Introduction 273
Section 1. The Fantasy of Bahrain as a Maritime State whose Power, Influence and Geographical
Extent stretches as far as the Shores and even the Mainland of Qatar 273
A. Bahrain's notion of "a system of spatially proximate and economically interrelated
islands and other relevant features" 273
1. The historically recognised "Bahrain archipelago" 275
2. Bahrain has not presented evidence, item by item, to establish that each and every one
of the so-called maritime "features" between the historically recognised Bahrain
archipelago and Qatar falls under its sovereignty 280
3. The so-called economic and political unity of these low-tide elevations, rocks and
small islets is completely unfounded 288
B. Bahrain's image of itself: a maritime Sheikhdom ruling the waves 290
Section 2. Bahrain's Misrepresentation of Qatar's Position 292
A. Qatar reduces Bahrain to a single main island 292
B. Qatar admits that low-tide elevations are susceptible to appropriation 292
C. The fact that Qatar does not claim any other "feature" in the sea between the two
States except the Hawar islands, Fasht Dibal and Qit'at Jaradah implies that Bahrain has
sovereignty over all the other "features" 295
__________
PART IV
MARITIME DELIMITATION
Introduction
(i) In its Counter-Memorial, Bahrain is content simply to reiterate the principal claim put forward
in its Memorial concerning the maritime delimitation . It no longer refers to the two alternative
2
claims which appeared in Part Two of its Memorial . Qatar ca3 only note this development, and
will not speculate here on Bahrain's apparent change of posit. Qatar is nonetheless obliged to
emphasise yet again the extraordinary nature of the claim which Bahrain has reiterated in its
Counter-Memorial, and which is altogether extravagant and manifestly inequitable. What
follows, therefore, is directed to bringing out the issues that still divide the Parties.(ii) Unfortunately, as will be seen, the few specific points on which there is apparent agreement
between the Parties are far outnumbered by the large number of issues on which the Parties hold
significantly differing views. To give just one important example, it is clear that, while there
might appear to be a measure of agreement concerning the applicable law, the Parties disagree
entirely as to the application of the rules governing maritime delimitation. Similarly, while the
two Parties accept the need to divide the maritime delimitation into two sectors, they differ
profoundly as to how that division should be effected.
(iii) The basic disagreement between the Parties turns essentially on two main issues which lie at
the root of the maritime delimitation process in this particular case. Those issues relate to the
identification of the relevant coasts to be taken into consideration, and to the role assigned to the
1947 sea-bed delimitation line. In addition, Qatar submits that Bahrain has obscured these issues
due to the false impression that it has tried to create of itself as a "sea-oriented archipelagic
State" - an impression which appears constantly throughout its Counter-Memorial.
(iv) In this Part of the Reply, Qatar will expose the defects in Bahrain's approach to maritime
delimitation, and will demonstrate how Qatar's method, in contrast, leads to an equitable result.
To this end, Chapter VII will examine Bahrain's imaginary views of itself. Chapter VIII will then
respond to Bahrain's false allegations that Qatar has misrepresented the nature of the Bahraini
"coast" and has given "undue weight" to the 1947 line. Chapter IX, which is devoted to the
method of delimitation of the single maritime boundary claimed, will demonstrate that, contrary
to Bahrain's assertion, there is no contradiction in the Qatari approach and that, unlike Bahrain's
extraordinary claim, that approach, which takes into consideration all relevant circumstances,
produces an equitable solution.
CHAPTER VII
BAHRAIN'S IMAGINARY VIEWS OF ITSELF
Introduction
7.1 In the context of the maritime delimitation, the Bahrain Counter-Memorial seeks to impress
upon the mind of the reader some simple and self-serving ideas. Principal among these is the
image of Bahrain as a maritime State whose power, influence and geographical extent stretch as
far as the shores and even the mainland of Qatar. This is pure fantasy. Conversely, Bahrain seeks
to present an image of Qatar as a tribal and nomadic community confined to the east coast of the
Qatar peninsula. As part of this process, Bahrain misrepresents Qatar's position on several
important points and then purports to rebut these misrepresented views. Although such rhetorical
techniques are scarcely novel, they cannot be left unanswered.
Section 1. The Fantasy of Bahrain as a Maritime State whose Power, Influence and
Geographical Extent stretches as far as the Shores and even the Mainland of Qatar
7.2 Bahrain tries to convey an image of itself as a powerful maritime State by characterizing
itself in typically expansive, convoluted and, in the final analysis, meaningless language as a
"system of spatially proximate and economically interrelated islands and other relevant features"
and by alleging that the Sheikhdom extends up to the shores and even to the mainland of Qatar.
This is another imaginary Bahraini construct of a maritime Sheikhdom ruling the waves. These
artificial characterisations serve as a springboard to advance a wholly artificial and hugely
extravagant delimitation line.
A. Bahrain's notion of "a system of spatially proximate and economically interrelated
islands and other relevant features"
7.3 In its Counter-Memorial Bahrain tries to give meaning to this often repeated, if somewhat
pompous, litany of "a system of spatially proximate and economically interrelated islands and
other relevant features". The meaning of this jargon is not immediately apparent, and its mererepetition - which can be illustrated by a few excerpts from the text itself - is of no assistance to
the reader:
"The human geography of the region has traditionally reflected an integrated socio-economic
unit in the Gulf of Bahrain and its littoral including the main island of Bahrain, the Hawar
group of islands, the other Bahraini maritime features and the Zubarah Region..." 4.
"Bahrain does not consist simply of its main island, but is geographically and politically, in
addition to the Zubarah Region, an archipelago, a system of spatially proximate and
5
economically interrelated islands and other relevant features" .
"The State of Bahrain consists of a system of inter-related maritime features, which includes,
in addition to the main island of Bahrain and the islands of Muharraq and Sitrah, the Hawar
archipelago and all the islands and other features scattered throughout the sea between the6
main island of Bahrain and the Qatar peninsula, together with the Zubarah Region" .
Elsewhere,7Bahrain insists on "the essentially insular and archipelagic character of the State of
Bahrain" .
7.4 One fails to see how "spatially proximate" the main island of Bahrain could be to Hawar or
Zubarah. If these words have a meaning, one would have ventured to assume that, rather than
being "spatially proximate" to Bahrain, Hawar and Zubarah were "spatially" an integral part of
Qatar. The "economic interrelation" between Zubarah and Bahrain also comes as a surprise.
Finally, how the archaeological site of Zubarah - which has never up to now been construed by
anyone as an island - can be part of an archipelagic State, is also a great mystery. In contrast to
Bahrain's exaggerated view of itself, Bahrai8 seeks to confine Qatar to "Doha an isolated enclave
on the east coast of the Qatar peninsula" . The false nature of these allegations insofar as they
concern Qatar's sovereignty over the whole peninsula including Hawar and Zubarah has already
been demonstrated previously in this Reply. In this Part of the Reply, Qatar will deal with the
implications of Bahrain's assertions with respect to the question of maritime delimitation.
7.5 Qatar's position - which is in conformity with the history and international law - is threefold:
1) the sole recognised historical "Bahrain archipelago" comprises the five main islands of
Bahrain and a number of lesser islets and rocks forming part of the same compact geographical
group. It does not extend to any other scattered "features" lying between the shores of the two
States;
2) Bahrain has not presented evidence, item by item, to establish that each and every one of the
so-called maritime "features" between the historically recognised Bahrain archipelago and Qatar
falls under its sovereignty;
3) the so-called economic and political unity of these "features" (low-tide elevations, rocks and
small islets) is pure assertion, without any proof whatsoever.
1. The historically recognised "Bahrain archipelago"
7.6 The Bahrain archipelago has historically been described and depicted as being limited t9 a
compact group of islands and a number of islets and rocks in its immediate vicinity . The
following examples may be cited:
- 1874: Confidential memorandum of 25 March 1874, printed for the use of the Foreign Office,
on the separate claims of Turkey and Persia to sovereignty over the island of Bahrein:
"The Bahrein Islands are a small group of islands, three in number, on the south-west side of
the Persian Gulf, in the centre of Bahrein Bay, the principal of which is Bahrein (or Aval),
lying about ten miles off the Coast of Arabia" . 10
- 1890: J. Theodore Bent, of the Royal Geographical Society, describes Bahrain as follows: "The group of islands known as the Bahrein... lies in a bay of the same name about 20 miles
off the coast of El Hasa, in Arabia, in the Persian Gulf. Bahrein, the largest is 27 miles long
by 10 wide... The second island in point of size is Moharek, north of Bahrein, and separated
from it by a strait one mile broad... and is about five miles in length. The rest of the group are
mere rocks: Sitrah, four miles long, with a village on it of the same name; Nebbi-Saleh;
Sayeh, and Khaseifah, and to the east of Moharek, Arad, three-quarters of a mile in length...
(either an island or a peninsula at low tide)" .11
- 1908: Lorimer (see, paragraphs 7.7-7.8, below)
- 1916: A Handbook of Arabia, Vol. I, General :
"The present Sheikhdom of Bahrein consists of the archipelago formed by the islands of
Bahrein, Muharraq, Umm Na'asan, Sitrah and Nebi Salih, with a number of lesser islets and
rocks. The whole forms a compact group almost in the middle of the gulf which separates the
promontory of El-Qatar and the coast of Qatif..." . 12
- 1928: India Office confidential memorandum of 27 August 1928 signed J.G.L. (Laithwaite) and
entitled "Status of certain Groups of Islands in the Persian Gulf":
"The Bahrein Archipelago
The archipelago consists of the islands of Bahrein, Muharraq, Umm Na'assan, Sitrah and
Nabi Salih, and a number of lesser islets and rocks forming part of the same compact
13
geographical group" .
- 1934: India Office memorandum from Laithwaite of 14 July 1934 which repeats the same
14
description .
- 1939: The Military Report and Route Book for the Arabian States of the Persian Gulf 1939,
gives a similar description:
"The Sheikhdom of Bahrein consists of the archipelago formed by the islands of Manama,
Muharraq, Umm-Na'san, Sitrah and Nebi Sala, with a number of lesser islets and rocks. The
whole forms a compact group almost in the middle of the bight which separates the
15
promontory of Qatar and the mainland of Hasa" .
7.7 Given that Bahrain relies so heavily on Lorimer's description, it may be useful to reproduce it
here:
"The present Shaikhdom of Bahrain consists of the archipelago formed by the Bahrain,
Muharraq, Umm Na'asan, Sitrah and Nabi Salih islands and by a number of lesser islets and
rocks which are enumerated in the articles upon the islands: taken all together these form a
compact group almost in the middle of the gulf which divides the promontory of Qatar from
the coast of Qatif and which, as it has no recognised name, may appropriately be styled the
Gulf of Bahrain" 16.
7.8 The fact that the only recognised historical "Bahrain archipelago" is limited essentially to the
five main islands of Bahrain - Lorimer's description of the Sheikhdom speaks of a "compact
group almost in the middle of the Gulf" - is confirmed by the list of islets and rocks given by
Lorimer as app17taining to the Sheikhdom. These are limited to those lying very close to the
main islands , i.e.:
For Bahrain main island, formerly called "Awal" 18
- Jidi (Jazirat): 3 miles west-south-west of Budaiya: islet
- Libainat-al-Aliyah: 8 miles west-north-west of Budaiya: islet
- Libainat-as-Safiliyah: 8 miles west-south-west of Budaiya: islet
- Na'aija: 2 miles west-north-west of Budaiya: rocks, rising 2 feet above high water mark- Raqah (Jazirat-ar): 1 ¼ miles south-west of Budaiya: islet, rocky and about 5 feet above high
water, covered with low scrub. Also known as Umm-as-Subban
- Sahailah (Jazirat): 1 ½ miles north west of Budaiya: islet, sandy, said to be increasing in
elevation, but is still covered at high tide19
- Ya'suf (Jazirat): 2 ½ miles west of Aqariyah: islet, small and barren.
All these "islets" are in the close vicinity of the west coast of Bahrain island except the two
Libainat islands. But, as is well known, these were ultimately shared with Saudi Arabia, on the
basis of the proximity principle, by the agreement of 22 February 1958, Libainat-al-Aliyah being
recognised as appertaining to Saudi Arabia . 20
21
For Muharraq :
- Jurdi (Jazirat): 1 mile north-east o22Qalali: an islet 2 feet above sea level, situated on the shore
reef, with the remains of a building
- Khasaifah (Jazirat): ½ mile north of Dair: a small rocky islet on the shore reef
- Sajah (Jazirat-as-): 1 mile west of Busaitin: a small islet on the shore reef
- Shahin (Jazirat Abu): 1 mile south-east of Hadd: an islet on the shore reef
It will be noted that all these islets are on the shore reef of Muharraq.
For Nabi Salih:
This small island, part of the Bahrain group (enclaved between Mina Sulman on the main
Bahrain island and Sitrah), is not listed as a main entry by Lorimer.
23
For Sitrah :
- Qassarain: 500 yards from the north side of Sitrah island: 2 rocky islets
- Tarif (Qassar Bin-): 250 yards from the north-west corner of the island: a rocky islet.
For Umm Na'asan:
This small island, part of the Bahrain group, is not listed as a main entry by Lorimer. The
surrounding islets were mentioned above under Bahrain island.
7.9 The same position is taken by Lorimer with regard to Qatar. Only the islands and islets close
to the shores of Qatar are mentioned, among them the Hawar islands and Janan. Consequently,
nothing in the sources reviewed above supports Bahrain's contention:
"... that the maritime features situated between Bahrain's main island and Qatar form an
integral part of the State of Bahrain, indeed, are the State of Bahrain" 2.
7.10 As it appears from the Map Atlas appended to the present Reply, maps published between
1868 and 1937 consistently depict the Bahrain islands and Qatar (including Hawar and Zubarah)
in different colours. Significantly, large-scale maps such as Bent's map of 1890 and Tivener's
map of 1898 which depict the Islands of B25rain do not show the "features" relied upon by
Bahrain as part of the State of Bahrain .
2. Bahrain has not presented evidence, item by item, to establish that each and every one of
the so-called maritime "features" between the historically recognised Bahrain archipelago
and Qatar falls under its sovereignty
7.11 The first question to clarify in this context is the correct usage of the legal concepts to be
applied in the circumstances. The Bahrain Counter-Memorial constantly uses the word
"features". In spite of the fact that this word is mentioned 93 times in the Bahrain Counter-
Memorial 2, the concept of "feature" is alien to international law. The use of a meaningless
concept in such a deliberate manner can only be designed to obscure the legal situation in a
number of respects. First, it encompasses in a single word four different concepts used in the lawof the sea, i.e., island, rock, reef, and low-tide elevation, thereby confusing their legal
characteristics; second, it begs the question as to the right of a coastal State to appropriate
islands, rocks, reefs, and low-tide elevations; and third, it confuses the potential legal
entitlements of such "features" to a territorial sea or other maritime zones with their possible use
in a delimitation process.
7.12 The law of the sea knows several concepts to characterise pieces of land emerging from the
sea, i.e., islands, rocks, reefs, and low-tide elevations.
7.13 Islands
"An island is a naturally formed area of land, surrounded by water, which is above water at
high tide" .7
By way of distinction from artificial islands or "installations", an island must have been natural
in origin and, therefore, cannot be the product of human action. Every island has a territorial sea,
a contiguous zone, and, provided it is not a mere rock, an exclusive economic zone and a
continental shelf. These zones are determined in 28cordance with the provisions of the 1982
Convention applicable to other land territory . As will be seen below, the role of islands in a
matter of delimitation varies considerably in practice according to their size and location.
Consequently, Bahrain's contention that "islets" is "a term devoid of legal meaning, since an
29
island is an island in international law regardless of its size" misses the point. The fact is that
the International Court of Justice has not hesitated in some circumstances to speak of islands as
"islets" and in some cases for the purposes of delimitation to draw consequences from their small
size . Indeed, when one comes to a delimitation process, islands are treated in a number of
different ways. As clearly evidenced by State practice and case law, small islands are often
dis31garded and even large islands are, on occasion, given only a partial effect or no effect at
all .
7.14 Rocks
Rocks as such are not defined by the 1982 Convention on the Law of the Sea. However, there is
no dispute about the fact that:
- rocks are a sub-category of islands;
- as islands they must be uncovered at high tide;
- even if it is not provided as such in the Convention, rocks are islands of small dimension.
Moreover, the Convention contains a provision of great practical importance:
"Rocks which cannot sustain human habitation or ec32omic life of their own shall have no
exclusive economic zone or continental shelf" .
7.15 Reefs
Reefs are not defined by the 1982 Convention on the Law of the Sea but the usual description is
the following:
"A mass of rock or coral which either reaches close to the sea surface or is exposed at low
tide, posing a hazard to navigation" . 33
Except for the words "posing a hasard to navigation", the same definition appears in the
Consolidated glossary of technical terms used in the United Nations Convention on the Law of
the Sea . This source adds the following distinction:
"Drying reef. That part of a reef which is above water at low tide but submerged at high tide.
Fringing reef. A reef attached directly to the shore or continental land mass, or located in
their immediate vicinity".
7.16 Low-tide elevations As defined by Article 13, paragraph 1 of the 1982 Convention on the Law of the Sea:
"A low-tide elevation is a naturally formed area of land which is surrounded by and
above water at low tide but submerged at high tide".
An identical definition was given by Article 11, paragraph 1 of the Convention on the Territorial
Sea and the Contiguous Zone of 1958. The difference between a low-tide elevation and an island
lies in the fact that the latter remains permanently uncovered at 35gh tide. By way of contrast to
islands, low-tide elevations are not susceptible to appropriation .
7.17 The second question to clarify is the physical and legal nature of the so-called "features"
situated between Bahrain's main island and the Qatar peninsula, i.e. south of the closing line
between Muharraq and Ras Rakan. While the legal concepts are clear, their actual application to
the situation in the area is not always easy. In the gulf between Qatar and Bahrain, the waters are
traditionally described as shallow and dangerous for maritime navigation; in view of the scarcity
of maritime surveys, the difference in the choice of mean sea level datum and the variations in
tidal heights, it is not always easy to distinguish, in actual fact, between low-tide elevations,
rocks and reefs. The situation from south to north, excluding the Hawar islands, is as follows : 36
(a) Unnamed rock southeastwards of Halat Nun (25°45'00" N, 50°38'40" E)
2 ¼ miles southeastwards of Halat Nun there is an unnamed rock (drying coral reef); on Bahrain
chart 5005 shown with a high water line 0.5 metres above LAT Datum.
(b) Al Hul: (25°44'40" N, 50°33'65" E)
On British chart 2886 published in 1972: indicated as a small islet with a cairn.
On Bahrain chart 5005 no islet is visible but a drying coral spit extending from Ras al Barr.
(c) Halat Noon or Nun: (25°46'50" N, 50°33'95" E)
An island according to BCM (paragraph 484), lying 1 mile east of Ras al Barr.
Bahrain chart 5005: islet 0.3 metres high.
(d) Qassar Nun or Sabkha Noon: (25°47'30" N, 50°36'15" E)
Not mentioned in BCM.
On British chart 2886: "Sabkha Noon, cairn".
Bahrain chart 5005: drying reef with cairn 1.8 metres high.
(e) Al'Mutarid: (27°47'05" N, 50°42'65" E)
An island according to BCM (paragraphs 484 and 510).
On Bahrain chart 5005, it is not an island but a reef about 1 ½ miles long with a cairn 2 metres
high. There is no high water line on it.
(f) Mashtan: (27°48'35" N, 50°40'95" E)
An island according to BCM (paragraphs 484 and 510).
On Bahrain chart 5005: reef with a "V" form, 500 metres long, 100 metres wide. Beacon
2 metres high. Northeastern arm: neither drying height indicated nor any indication that it is an
island. Northwestern arm: awash at low water. At the southern end small island indicated called
"Jazirat Mashtan".
(g) Fasht Bu Thur:
A low-tide elevation according to BCM (paragraph 484).Shown for the first time on Bahrain chart 5005. Northern part a drying reef about 1 mile long;
southern part about the same size but it is a reef with less than 2 metres of water over it with a
drying part.
(h) Jabbari: (25°53'02" N, 50°38'70" E)
An island according to BCM (paragraph 484).
Referred to as Yabberi rock on British chart 2886.
A mere reef on Bahrain chart 5001 ("Jabberi") with a cairn 2 metres high. No high water line
indicated.
(i) Qita'a el Erge:
A low-tide elevation according to BCM (paragraph 484).
On Bahrain chart 5001, three small separate coral reefs. A beacon at 25°52'95" N, 50°47'76" E.
(j) Thalib or Tighaylib:
A low-tide elevation according to BCM (paragraph 484).
On Bahrain chart 5001 coral reef dry at LAT, cairn 2.1 metres at 25°54'60" N, 50°41'95" E.
Some drying coral reefs close off its south western edge.
Beacon at 25°53'10" N, 50°43'35" E.
(k) Umm Jalid (Fasht Adham):
An island according to BCM (paragraphs 484 and 510).
On Bahrain chart 2501: an islet about 260 metres long and 50 metres wide and 0.3 metres high
above MHWS parallel to a drying reef. Centre at 26°01'50" N, 50°43'30" E.
(l) Island North of Ras abu Jarjur: (26°04'75" N, 50°37'35" E)
On Bahrain chart 2501: Close to the shore and about 360 metres by 60 metres. No height is
given.
(m) Jazirat ash Shaykh: (26°03'00" N, 50°37'95" E)
On Bahrain chart 2501, just north of and close to Ras Hayyan: 180 x 40 metres. No indication of
height. Symbol of mosque on it. Two small islets are situated southward 1.2 and 1 metres high.
(n) Fasht Al Azm:
The Bahrain Counter-Memorial asserts that Fasht Al Azm is a low tide elevation (paragraph
484).There are a few inconsistencies in the Bahrain mapping with regard to this "feature".
Bahrain chart 5001 labels it "drying reefs and sandbanks" and chart 2501 "numerous drying reefs
and sand banks"; both represent the fasht as a continuous line drying completely at low tide and
being attached to Sitrah island.
Chart 1502 describes the fasht in different terms - "numerous shoals, dries in patches" - a
description which is more consistent with former mapping (e.g. British chart 2886), and depicts
more accurately several interruptions in the continuance of the shoal eastward at high tide.
What is important to emphasize in the circumstances is the fact that former mapping of the area
shows that there was a separation between the low water line of Fasht Al Azm and the low water
line of the mainland. The fasht was not joined naturally to Sitrah. There was already a water
passage before reclamation was made in 1981-1982. This has already been explained in the
Qatar Counter-Memorial , and further proof is to be found in Landsat Satellite photography
dating from 25 January 1973, a copy of which is being deposited with the Registry. Fasht Al
Azm is thus a series of low tide elevations, naturally unconnected with Sitrah island .38
(o) Qit'at ash Shajarah (Um Mais):A low-tide elevation, east of Fasht Al Azm but not connected to it.
39
As already noted in the Qatar Counter-Memorial , contrary to the maps given in the Bahrain
Memorial, Qit'at ash Shajarah is clearly separated from Fasht Al Azm as evidenced, for example,
by British chart 2886 and by Bahrain chart 5001.
(p) Qit'at Jaradah:
This shoal is described by the Bahrain Counter-Memorial as a low-tide elevation (paragraph
468) and as an island (paras. 511-520). This latter characterization is contested by Qatar which
has brought ample evidence in Appendix 5 to its Memorial that it is a low-tide elevation . With 41
regard to Qit'at Jaradah the Bahrain Counter-Memorial uses only the passages from that
Appendix that are in favour of its thesis and carefully conceals the fact that the British 42thorities
were never convinced that Qit'at Jaradah was anything other than an artificial island . This fact
is proven today by photographs taken on the spot which have been appended to the Qatar
Memorial 43. The allegation by Bahrain that this statement of fact is the result of a removal of the
land by Qatar during the incidents in 1986 is disproved by the fact that the return to the status44
quo ante was implemented by an outside contractor under international GCC supervision .
Furthermore a Landsat satellite image taken on 30 December 1984 shows that the shoal was
covered at high tide 4.
(q) Fasht Dibal:
46
Bahrain admits now t47t Fasht Dibal is a low-tide elevation . It is not mentioned in the list of
"Bahraini islands" and is not treated elsewhere as an island.
7.18 The third question is to determine whether these "features" are susceptible of appropriation,
and if so, by whom and by which process.
7.19 There are two methods by which islets, low-tide elevations, rocks and reefs may fall under
the sovereignty of a State.
7.20 First, in some instances they may be susceptible to appropriation by the usual means
whereby land territory may be acquired. It is Qatar's position that low-tide elevations and reefs -
as distinct from islets and rocks - may not be appropriated in that way. As to the islets and rocks
lying between Bahrain and Qatar - when both States had a territorial sea of only 3 miles width -
they were certainly not recognised at the time as belonging to either State.
7.21 The second method is based on the rules governing the extension of a State's sovereignty
over its territorial sea. It is not disputed that the sovereignty of a coastal State extends, beyond its
land territory and internal waters, to an adjacent belt of sea, described as the territorial sea.
Consequently all the islands, rocks, low-tide elevations and reefs located in its territorial sea
belong in principle to the coastal State. Such jurisdiction does not extend to such "features"
located in the open sea. It follows, therefore, that low-tide elevations and reefs located in the
open sea are not subject to appropriation 48. The situation is altered now only to the extent that
both States have established a 12 mile territorial sea. Both States may claim sovereignty over the
islets, as well as over all the low-tide elevations, rocks and reefs lying within their respective
territorial waters. Consequently, contrary to what is alleged by Bahrain, Qatar does not contend
that there is a "physical and legal vacuum" 49 between the two mainlands. A problem arises only
when the two territorial seas overlap, in which case, instead of a vacuum, two conflicting claims
may cover part of the area to be delimited.
3. The so-called economic and political unity of these low-tide elevations, rocks and small
islets is completely unfounded
7.22 The extended description which has been given above speaks for itself. In Lorimer's time,
only four of the main islands constituting the Bahrain group were inhabited, and there is no
evidence of habitation of Umm Na'asan and any other islets, low-tide elevations, rocks or reefsclaimed by Bahrain between the two States. If by the expression "economic unity" Bahrain is
referring to the use of islands, reefs, rocks and low-tide elevations by Bahraini fishermen, this
overlooks the well-known fact that until very recent times, fishing has traditionally been
common to all tribes in the Arabian-Persian Gulf. This was as true for swimming fish as it was
for pearl fisheries .
7.23 It will be recalled in this regard that the British decision of 23 December 1947 stated that it
did not:
"affect any fishing or other rights in the waters on either side of the line, nor is it intended to
deprive Qatar [Bahrain] nationals of rights in private property such as fish-traps which may
lie in the waters on the Bahrain [Qatar] side of the line nor Bahrain [Qatar] nationals of
similar rights in the waters on the Qatar [Bahrain] side of the line" . 51
Similarly, the 1949 proclamations by both States on their rights over the seabed reserved the
traditional fishing rights of all fishermen:
"Nothing in this Proclamation shall be considered to affect the character as high seas of the
waters of the Persian Gulf above the seabed and outside the limits of the territorial waters or
the status of the air space above the waters of the Persian Gulf outside the territorial waters or
the fishing and traditional pearling rights in such waters" . 52
7.24 The same argument presented by Bahrain in the context of its claim to the Bu Saafa banks
was rejected firmly by Saudi Arabia. See, for instance the following statement:
"It was made clear... that the Saudis could not consider fishing and pearling as evidence. It
was a historical and acknowledged fact as well as common practice that all nationals of any
state could use any fishing or pearling area and this did not give rights of ownership" 53.
54
7.25 The same applied to the fashts used as shelters such as Dibal and Qit'at Jaradah . As will be
recalled in this regard, the Political Resident's telegram to the Secretary of State for India dated 7
June 1940 stated that:
"Fasht Dibal. ... In point of fact it is almost entirely submerged and belongs to neither
[Bahrain nor Qatar] and is resorted to by all fishermen under stress of weather" . 55
Similarly, Prior's letter of 18 October 1941 to Peel of the India Office concerning Dibal stated
that:
"Fasht al Dibal is not in any sense56eculiarly a Bahrain anchorage and is freely utilised by all
pearlers in this neighbourhood" .
The other reefs, rocks and islets, including Meshtan and Al-Hool, are without economic value.
Qassar (west of Ras al Barr) and Al Hool were not taken into account in the Saudi
Arabia/Bahrain delimitation.
7.26 It is also important to note that the so-called "features" lying between the two States south
of the closing line Muharraq - Ras Rakan have never played any role as pearling banks, a fact
which is not in dispute between the two Parties . 57
7.27 As to swimming fish, there is obviously no connection between these and the "features" per
se. In any event, although Bahrain gives information about its fishing activities, such information
is of a general nature and is not specifically related to the maritime areas between the two
countries.
7.28 Finally there is no oil exploitation by either State in this area.
7.29 In these circumstances, to speak of an "integrated socio-economic unit" consisting of
uninhabited Lilliputian islets, low-tide elevations, rocks or reefs is a gross misrepresentation of
reality. B. Bahrain's image of itself: a maritime Sheikhdom ruling the waves
7.30 Bahrain has shown a certain sensitivity with regard to the characterization made in Qatar's
previous pleadings of Bahrain seeking to impose the idea of itself as a maritime Sheikhdom
"ruling the waves" . But the constantly repeated Bahraini claims render vain any denial. As
shown in Qatar's previous pleadings, for many years Bahrain has claimed sovereignty over all
the sea between the two countries. This fanciful claim was transformed in 1960-1961 into a
claim to the continental shelf . In spite of its disclaimer, the present position of Bahrain remains
the same as evidenced by:
- the very fact that Bahrain claims "that the maritime features situated between Bahrain's main
island and Qatar form an integral part of the State of Bahrain, indeed, are the State of Bahrain" 6;
62
- the map of Bahrain's claim . With the Bahraini claims on the Qatar peninsula we are back to
the old claims of the Ruler of Bahrain to the whole of the sea between the two countries except
for some small enclaves;
- the vacillations between the concept of "archipelagic State" or that of "sea-oriented State"
exercising sovereignty over the sea north of the Qatar peninsula and part of the land territory of
Qatar.
In this context, the Bahraini claim to sovereignty over the sea to the north of Qatar on the basis
of pearling activities which were never an exclusive right of Bahraini fishermen, but were on the
contrary a prerogative of every tribe in the Gulf, is extraordinary. Considering that pearling has
been defunct for at least half a century and has no prospect of revival, this is another Bahraini
fantasy.
7.31 The other Bahraini attempt is to try to give an image of Qatar as a "continental land-
oriented State" 64. This is a purely ideological vision. Italy or Spain (also, like Qatar, peninsulas)
are no less sea-oriented than Malta or Cyprus. Consideration of the coastal length of a State is
probably a better and more objective test to determine whether such a State is "sea-oriented".
This criterion is clearly in favour of Qatar.
Section 2. Bahrain's Misrepresentation of Qatar's Position
7.32 The other rhetorical device employed by Bahrain consists in misrepresenting Qatar's
position on several important points and then purporting to rebut these misrepresented views.
This can be shown by a few examples.
A. Qatar reduces Bahrain to a single main island
65
7.33 Contrary to what is alleged in the Bahrain Counter-Memorial , Qatar nowhere reduces
Bahrain to its main island alone; Bahrain is consistently treated as a compact group of islands.
For instance, the closing line between the northern and southern sectors is based on one of
Bahrain's main islands, Muharraq, and Sitrah island is also taken into account as part of Bahrain's
coast for drawing a provisional equidistance line. By way of contrast, Qatar has not taken into
account all the small islets, rocks, reefs and low-tide elevations in the sea between the two States,
as it is Qatar's firm conviction that these elements cannot have any effect on the delimitation of
the single maritime boundary. In any event, some of the "features" listed by Bahrain are closer to
Qatar than to Bahrain.
B. Qatar admits that low-tide elevations are susceptible to appropriation
7.34 Contrary to Bahrain's allegations, Qatar cannot accept the following statements:
"The Parties also seem to agree that the low-tide elevations in the disputed area are 66
susceptible to appropriation and are subject to the sovereignty of one or the other" .
or "This brings to an end the old controversy as to whether low-tide elevations are capable of
appropriation in sovereignty: it is accepted today that they are. Indeed, the Parties concur on
this proposition, for Qatar itself requests the Court 'to adjudge and declare... that Fasht ad
Dibal and Qit'at Jaradah shoals are low-tide elevations which are under Qatar's
sovereignty'" .67
This betrays a complete confusion of mind. Qatar has constantly made clear its position on the
subject and maintained that low-tide elevations are not subject to appropriation as land
territory . It is true, but this is a different matter, that "sovereign rights" can be acquired over
them as a consequence of the jurisdiction over the continental shelf, exercisable by the coastal
State, if the low tide elevation is situated on the continental shelf. And it is also true that
"sovereignty" can be exercised over them when they are situated within territorial waters as a
consequence of the sovereignty exercisable by a coastal State over its territorial waters.
Consequently, Qatar did in the past claim "sovereign rights" over Dibal and Qit'at Jaradah
because they were part of its continental shelf, and now claims "sovereignty" over these two low-
tide elevations, not because they are susceptible to acquisition as land territory, but because they
fall within Qatari territorial waters as now extended to twelve miles.
7.35 The rule according to which only islands (or for that matter islets) and rocks are capable of
appropriation has been evoked by the International Court of Justice in the Minquiers and
Ecrehos case:
"... the Court is requested to determine the sovereignty over the islets and rocks in so far as
they are capable of appropriation. These words must be considered as relating to islets and
rocks which are physically capable of appropriation" . 69
This statement echoed what had been Britain's position in its pleadings, interpreting Article I of
the special agreement : 70
"... these words, considered according to their natural and ordinary meaning in the context,
simply have in view the fact that certain islets or rocks in or round the groups may, by reason
of their physical nature and position, be incapable of appropriation by any State at all: that
is... there might be rocks or banks which are only uncovered71t low water, and are situated
outside the territorial waters of any appropriated land" .
Expressing his view as a scholar, Sir Gerald Fitzmaurice wrote a few years later:
"It is a well-established rule of international law that territory, in order to be capable of
appropriation in sovereignty, must be situated permanently above high-water mark, and not
consist e.g. of a drying-rock, only uncovered a72low tide, unless it is already within the
territorial waters of appropriable territory" .
After reciting the above extract from the Court's judgment in the Minquiers and Ecrehos case,
Sir Gerald added:
"By this finding, the Court also implicitly endorsed the rule that certain kinds of territory are
not capable of appropriation in sovereignty at all. The usual case is that of the island, rock,
bank or shoal only uncovered at low tide" . 73
This was also the position taken by Sir Hersch Lauterpacht in the eighth edition of Oppenheim's
International Law (which he edited):
"Since the open sea is free, no part of it can be the object of occupatio74 nor can rocks or
banks in the open sea, although lighthouses may be built on them" .
This statement has remained basically unchanged by the learned editors of the ninth edition:
"Since the high seas are free, no part of it can be the object of acquisition of sovereignty by
occupation nor can mere rocks or banks in the open sea, although lighthouses may be built on
75
them" .7.36 Reference may also be made in this respect to a treaty signed on 8 September 1972 at
Bogotá, between the United States and Colombia, whereby the United States renounced all
claims of sovereignty to three groups of small reefs in the Caribbean, Quita Sueño Bank and the
cays on Roncador and Serrana Banks. In the press release of 11 September 1972 issued about
this event the United States stated:
"Quita Sueño is submerged at high tide and thus, according to the U.S. view, is a part of the
76
high seas and not subject to a claim of sovereignty by any government" .
7.37 Contrary to the allegations of Bahrain, these authoritative statements are in no way obsolete
or, as termed by Bahrain, "an old controversy" . 77
C. The fact that Qatar does not claim any other "feature" in the sea between the two States
except the Hawar islands, Fasht Dibal and Qit'at Jaradah implies that Bahrain has
sovereignty over all the other "features"
7.38 Another distortion is made by the Bahrain Counter-Memorial about the position of Qatar
concerning the shoals situated in its territorial sea. Bahrain affects to believe that Qatar does not
claim any shoals other than Dibal and Qit'at Jaradah:
"Since, other than the Hawar Islands, Fasht ad Dibal and Qit'at Jaradah, Qatar does not claim
sovereignty over any of the maritime features situated between the eastern coast of Bahrain's
main island and the western coast of Qatar, all of these maritime features, islands and low-
tide elevations alike, must be deemed, by the common agreement of the two Parties, to be
78
under Bahrain's sovereignty" .
7.39 This is a complete distortion of Qatar's position . The reason why Qatar has so far insisted
on Dibal and Qit'at Jaradah is because these two shoals were wrongly attributed by Britain to
Bahrain on the analogy of land territory acquisition. Qatar's position being that the shoals are not
capable of appropriation like land territory but fall under the jurisdiction of the State in whose
territorial sea they are located, all the shoals situated in its present territorial sea are subject to its
territorial jurisdiction. This includes, for example, part of Fasht Al Azm, Fasht Bu Thur, Qit'at
ash Shajarah and Qita'a al Erge.
7.40 The position of Qatar on this conforms to international law. The law of the sea governs the
use of low-tide elevations with respect to the limits of the territorial sea, and it governs the
acquisition of title over them by way of necessary implication. As a matter of fact, the possibility
for a coastal State to use the low-water mark on a low-tide elevation as the baseline for
measuring the breadth of the territorial sea is strictly dependent on the distance of that low-tide
elevation from the mainland or an island, that distance being determined by reference to the
breadth of the territorial sea as adopted by the coastal State concerned in conformity with
international law. In other words, in order to decide whether a low-tide elevation lying off the
coast is under the sovereignty of the coastal State and may thus be used as a basepoint for the
calculation of the external limits of the territorial sea, it is first necessary to make a projection of
the territorial sea from the coast. And it is when, and only when, the low-tide elevation is situated
wholly or partly within the projection of the territorial sea from the main coast that the coastal
State has a title over that low-tide elevation and can use it as a basepoint for purposes of
determining the outer limits of the territorial sea.
7.41 Consequently Qatar, contrary to Bahrain, does not claim sovereignty over low-tide
elevations as such. It claims sovereignty over all the islands, islets, reefs and low-tide elevations,
including Dibal, Qit'at Jaradah, part of Fasht al Azm, Fasht bu Thur, Qit'at ash Shajarah, Qita'a al
Erge, which are situated to the east of the line delimiting the respective territorial seas between
the two States. If they fall under the sovereignty of Qatar it is not because they provide a
justification for the maritime delimitation, but because they appertain to Qatar as a consequence
of the maritime delimitation effected on other grounds. __________
FOOTNOTES
1 See, BCM, paras. 3 and 455.
2 See, BM, paras. 657, et seq.
3 This is not the first time that Bahrain has changed its position on the maritime delimitation.
See, QM, paras. 10.34-10.35.
4 BCM, para. 164.
5 BCM, para. 613.
6 BCM, para. 495.
7 BCM, paras. 476 and 537.
8 BCM, para. 164.
9 See, in general, Chap. III, above.
10 QM, Annex III.28, Vol. 6, p. 137.
11 J. T. Bent, "The Bahrein Islands in the Persian Gulf", Proceedings of the Royal Geographical
Society, Vol. XII, January 1890 (QR, Annex II.82, Vol. 2, p. 577). See, also, para. 3.31(c), above.
12 QR, Annex IV.1, Vol. 4, p. 1.
13 QR, Annex IV.2, Vol. 4, p. 5.
14 See, text quoted in para. 3.31(f) (v), above.
15 QR, Annex IV.3, Vol. 4, p. 11. The same document lists Hawar as a possible landing ground
on the coastline of Qatar.
16 QM, Annex II.3, Vol. 3, p. 61, at p. 88.
17 The Persian Gulf Pilot, also invoked by Bahrain to support the myth of a greater Bahrain,
depicts the situation merely as "small islands and islets lying close to its shores". (Compare text
of Persian Gulf Pilot (1982-1994) quoted by BCM, para. 481 and Bahrain's tendentious
interpretation of that text in the same paragraph).
18 QM, Annex II.3, Vol. 3, p. 61, at pp. 64, et seq.
19 Consequently Sahailah is not an islet but a low-tide elevation.
20 QCM, Appendix 2, Vol. 5, paras. 13-14.
21 QR, Annex IV.41, Vol. 4, p. 245.
22 Named "Qassar Jurdi" on Bahrain Chart No. 5004 "Approaches to Bahrain".
23 QR, Annex IV.42, Vol. 4, p. 249.
24 BCM, para. 538.
25 QR, Map Atlas, Maps Nos. 12 and 28. See, also, Map No. 77.
26 BCM, pp. 2, 72, 81, 138, 139 (three times), 202 (twice), 204, 206 (twice), 209, 210 (twice),
211 (three times), 212, 213 (twice), 214 (three times), 215, 217 (twice), 220 (four times), 221
(twice), 225 (three times), 227 (four times), 228 (twice), 232, 233 (eight times), 234 (three
times), 235 (three times), 236 (twice), 237 (five times), 238 (eleven times), 246, 266, 272, 273
(six times), 276 (twice), 277, 278, 298, 299, 301, 302.
27 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone, Art. 10, para. 1
and, in identical terms, 1982 United Nations Convention on the Law of the Sea, Art. 121, para. 1.
28 1982 Convention on the Law of the Sea, Art. 121, para. 1.29 BCM, para. 484.
30 See, for instance, Fisheries case, I.C.J. Reports 1951, p. 127; Minquiers and Ecrehos case,
I.C.J. Reports 1953, passim; North Sea Continental Shelf cases, I.C.J. Reports 1969, p. 36, para.
57; Continental Shelf (Tunisia/Libya) case, I.C.J. Reports 1982, p. 62, para. 76 and p. 88, para.
128; Continental Shelf (Libya/Malta) case, I.C.J. Reports 1985, pp. 50-51, paras. 68 and 70;
Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening)
case, I.C.J. Reports 1992, p. 588, para. 383.
31 See, paras. 9.39, et seq., below.
32 Art. 121, para. 3.
33 See, QR, Annex IV.39, Vol. 4, p. 237.
34 QR, Annex IV.33, Vol. 4, p. 199.
35 See, paras. 7.18, et seq., below.
36 For the convenience of the Court, Qatar has included references to the BCM in order to
permit comparison of what Bahrain writes with what is shown on the charts.
37 QCM, paras. 8.47, et seq.; and QCM, Map No. 9, facing p. 270.
38 It is interesting to note that neither in the 1982 Persian Gulf Pilot, nor in its Supplements up
to 1994, is any mention made of Fasht al Azm.
39 QCM, para. 8.46.
40 See, also, BCMJA, Vol. I, map inside cover.
41 QM, Appendix 5, Vol. 15.
42 BCM, paras. 511, et seq.
43 QM, facing p. 238.
44 See, QCM, para. 6.91.
45 See, QR, Annex IV.31, Vol. 4, p. 187, which includes a report by Professor T.D. Rabenhorst,
who concludes that the shoals of Dibal and Qit'at Jaradah "were completely submerged when
these images were taken".
46 BCM, para. 468.
47 Ibid., paras. 484 and 510.
48 An exception was made by the United Kingdom with regard to Dibal and Qit'at Jaradah but
Qatar has always made known that it considered this was a legally wrong decision.
49 BCM, para. 476.
50 As to pearl fisheries, see, QM, Appendix 4, Vol. 15.
51 See, QCM, Annexes IV.2 and IV.3, Vol. 4, pp. 9 and 13.
52 See, QM, Annexes II.55 and II.56, Vol. 5, pp. 219 and 223; emphasis added.
53 See, QCM, Annex II.55, Vol. 2, p. 303. See, also, QCM, Annexes II.54, II.56 and II.57, Vol.
2, pp. 297, 311 and 317.
54 It is significant that Bahrain admits that Dibal was also used by Qatari fishermen (BCM, para.
503).
55 See, QM, Annex IV.63, Vol. 9, p. 309.
56 See, QM, Annex IV.69, Vol. 9, p. 335; see, also, QCM, para. 6.32.
57 See, QCM, para. 6.42.58 QM, paras. 10.27, et seq.
59 According to BCM, para. 538, this image "is pure fantasy".
60 QM, paras. 10.34-10.35.
61 BCM, para. 538.
62 BCM, Map 1.
63 As explained elsewhere in the QM and QCM Bahrain does not meet the conditions to be
considered an archipelagic State in contemporary international law. See, QM, paras. 11.43, et
seq., and QCM, para. 6.72.
64 BCM, para. 496.
65 BCM, paras. 483, 485, 495 and 496.
66 BCM, para. 468.
67 BCM, para. 524.
68 See, QM, paras. 10.59, et seq., QCM, paras. 6.15, et seq., and paras. 7.18, et seq., above.
69 I.C.J. Reports 1953, p. 53.
70 Which read as follows: "The Court is requested to determine whether the sovereignty over the
islets and rocks (in so far as they are capable of appropriation) of the Minquiers and Ecrehos
groups respectively belongs to the United Kingdom or the French Republic" (ibid., p. 49).
71 Minquiers and Ecrehos, I.C.J. Pleadings, Reply of the United Kingdom, Vol. I, p. 432.
72 Sir G. Fitzmaurice, "The law and procedure of the International Court of Justice, 1951-4:
Points of substantive law", Part II, B.Y.I.L., 1955-6, (QR, Annex IV.38, Vol. 4, p. 229).
73 Ibid.
74 Oppenheim's International Law, 8 Ed., Vol. I, p. 556, para. 221 (QR, Annex IV.40, Vol. 4, p.
241).
75 QM, Annex III.307, Vol. 8, p. 543.
76 QR, Annex IV.20, Vol. 4, p. 133. See, also, the observation of the Chamber of the Court in its
judgment of 11 September 1992 in the case concerning the Land, Island and Maritime Frontier
Dispute (El Salvador/Honduras : Nicaragua intervening): "That Meanguerita is 'capable of
appropriation' to use the wording of the dispositif of the Minquiers and Ecrehos case is
undoubted; it is not a low-tide elevation, and is covered by vegetation, although it lacks fresh
water". (I.C.J. Reports 1992, p. 570, para. 356; emphasis added).
77 BCM, para. 524.
78 Ibid. The same false statement is repeated in paras. 525, 536 and 545.
79 Qatar's position was made perfectly clear in QM, paras. 10.62, et seq., and 10.73, but "Il n'est
pire sourd que celui qui ne veut pas entendre".
__________
CASE CONCERNING MARITIME DELIMITATION AND
TERRITORIAL QUESTIONS BETWEEN QATAR AND BAHRAIN
(QATAR V. BAHRAIN)
REPLY OF THE STATE OF QATAR
_____________________________________________CHAPTER VIII - THE FALSE ALLEGATIONS MADE BY BAHRAIN 297
Section 1. Qatar's Alleged Misrepresentation of what is meant by the Bahraini Coast 297
A. The confusion created by Bahrain 297
B. The fiction of Bahrain's "true coasts" 300
Section 2. The So-Called "Undue Weight" given to the 1947 Line 303
A. Bahrain's position as to the alleged irrelevance of the 1947 line 303
1. Misrepresentation of Qatar's position 304
2. The refusal or inability of Bahrain to view the 1947 line in its proper perspective 306
B. The relevance of the 1947 line under the current law of maritime delimitation 308
__________
CHAPTER VIII
THE FALSE ALLEGATIONS MADE BY BAHRAIN
Section 1. Qatar's Alleged Misrepresentation of what is meant by the Bahraini Coast
A. The confusion created by Bahrain
8.1 According to Bahrain, Qatar is mistaken in asking the Court to effect a maritime delimitation
between the two mainland coasts because this does not take account of 1he fact that "[t]he State
of Bahrain consists of a system of inter-related maritime features" . Thus, in Bahrain's view,
Qatar has "misrepresent[ed] geographical and, even more important, political and economic
reality"2. On the basis of this premise, Bahrain affects to believe that Qatar has attempted to
resuscitate the distinction that has sometimes been made between "primary" and "secondary" 3
coasts, and that it has done so in order to introduce some kind of hierarchy between the coasts .
This assertion cannot stand, for the three following reasons.
8.2 First of all, nowhere in Qatar's previous pleadings is there any mention of, or reference to,
such a distinction. On the contrary, Qatar has made it perfectly clear that it is necessary, in
drawing the maritime boundary, to start by taking into account what it called in its Counter-
Memorial "the actual coast of the two States" 4. If any distinction has been made by Qatar, it is
between what is the actual Bahraini coast and what cannot be regarded as a coastline at all, 5ince
there is no "coast" properly speaking on maritime "features" such as low-tide elevations . And it
must be remembered here, as already noted in Qatar's Counter-Memorial, that Bahrain has
deliberately chosen to ignore entirely the coast of any of its islands, and to rely only on a series
of low-tide ele6ations which are quite clearly separated from the eastern coast of the main
Bahrain island .
8.3 Secondly, Qatar notes that, when criticising the term "main coasts", Bahrain has omitted to
indicate that this term was used in Qatar's Memorial in a Section dealing with the circumstances
in which the 1947 line was drawn by the British Government, and more particularly with the
criteria adopted by the British Government to give effect to the equitable principles referred to in
the 1945 Truman Proclamation on the continental shelf 7. The reasons which induced the British
authorities at that time to draw a dividing line based on the configurati8n of the main coastlines,
without taking minor reefs or other "maritime features" into account , are equally compelling
today 9.
8.4 Thirdly, Bahrain has tried to introduce into the discussion about the respective coasts of the
Parties that are relevant to the present case a confusion between the questions of entitlement and
of delimitation , two questions which, although complementary, are nevertheless entirely
distinct .8.5 Bahrain rightly states that "[t]here is no hierarchy between the coasts" , and Qatar agrees, at
least with respect to the question of t13le generated by those coasts; for the notion of the equal
value of coasts invoked by Bahrain applies first of all to the question of entitlement, in that a
coast per se generates a potential title over adjacent maritime areas, and the legal titles generated
by any coast are indeed equal. But the same statement is not necessarily true when applied to the
delimitation of a maritime boundary effected by an international tribunal. As a matter of fact, in a
maritime delimitation process, one of the first questions which arises is that of the identification
and limits of the relevant coasts to be taken into consideration for that delimitation. This implies
that a selection has to be made among the various coasts in order to determine those which may
be recognised as relevant. In fact, when defining the relevant coasts in this respect, the Court and
other international tribunals have always considered that not all the coasts of the States
concerned are to be taken into account. Thus, as the Court said in its Continental Shelf
(Tunisia/Libya) judgment, "for the purpose of shelf delimitation between the Parties, it is not the
whole of the coast of each Party which can be taken into account" . It is evident that coasts
which are not deemed relevant in the context of the delimitation are regarded as having no value
for that purpose.
8.6 Moreover, even among the relevant coasts, there might sometimes be a distinction between
certain stretches of coast insofar as, in some particular aspects, one part of the relevant coast may
be of greater importance than another part for the purposes of the delimitation to be carried out,
as was acknowledged by the Chamber of the Court in the Gulf of Maine case when it rejected the
idea of "primary" and "secondary" coasts . It suffices to recall that in maritime delimitation
cases different weights have often been attributed to different coasts, as is clearly demonstrated
by "[t]he frequent references in the case-law to the idea of proportionality - or disproportion -
[which] confirm the importance of the proposition that an equitable delimitation must, in such
circumstances, take into account the disparity between the respective coastal lengths of the
relevant area" 16. In the same way, the equal value of coasts has no bearing on the matter of
delimitation when one portion of the relevant coast is given either no effect or only a partial
effect, a situation which has occurred on different occasions in the jurisprudence since the 1977
Anglo-French Arbitration 17.
B. The fiction of Bahrain's "true coasts"
8.7 There is undoubtedly something curious in the allegation in Bahrain's Counter-Memorial that
Qatar's claim rests on a "fiction" as to the Bahraini coasts. In fact, it is Bahrain itself which
founds its own claim on a fiction of lines drawn between maritime "features" which qualify at
most as low-tide elevations and equates that fiction with its relevant coasts for purposes of
delimitation 18. Thus, Bahrain has defined its coast as an "aggregate coast" which "is a complex
19
construct of lines" , trying to create what would appear to be a totally new concept in the rules
governing maritime delimitation. And it requires a considerable amount of audacity for Bahrain
then to refer to that "aggregate coast", elsewhere in its Counter-Memorial, as being "the true
coasts" of the State of Bahrain 20.
8.8 Bahrain even goes so far as to compare the so-called complexity of its eastern maritime
façade to the coastal façade of Norway as it was considered in the Fisheries case . There is
certainly not only a high degree of exaggeration, but also a large dose of imagination in such a
comparison. Bahrain has in fact omitted to 22ote what the Court said in that case concerning "the
realities which must be borne in mind" in order to characterize the Norwegian coastal zone
known by the name of "Skjaergaard":
"The coast of the mainland... is of a very distinctive configuration... To the west, the land
configuration stretches out into the sea: the large and small islands, mountainous in character,
the islets, rocks and reefs... are in truth but an extension of the Norwegian mainland... The
coast of the mainland does not constitute, as it does in practically all other countries, a clear dividing line between land and sea. What matters, what really constitutes the Norwegian
23
coast line, is the outer line of the 'skjaergaard'" .
In no way can the geographical situation off the Bahraini eastern coast, with detached islets,
rocks and low-tide elevations, which appear as isolated features both in terms of size and
distance from the mainland and which in any event do not all appertain to Bahrain, be compared
to that of the Skjaergaard.
24
8.9 It is not Qatar which "postulates a fictitious and artificial coastal façade for Bahrain" ; on the
contrary, it is Bahrain who relies on a wholly artificial construct by claiming that its eastern
coastline facing the Qatari peninsula is "a complex construct of lines" joining minor rocks and
low-tide elevations. The artificiality of Bahrain's approach becomes self-evident, particularly
when Bahrain places on the same level the coasts of the Hawar islands and "25e coasts of Fasht
ad Dibal, Qit'at Jaradah and all of the other legally relevant features" . Bahrain's assertions are
based on a mere assumption which has already been dealt with in the previous Chapter . In fact,26
Bahrain simply repeats, ad nauseam and parrot-fashion, that its territory "does not consist simply
of its main island, but is geographically and politically, in addition to the Zubarah Region, an
archipelago, a system of spatially proximate and economically interrelated islands and other
relevant features" .7
8.10 There is no need to repeat here what Qatar has said previously on the question of the so-
called archipelagic character of Bahrain . Nor is it necessary to develop at length Qatar's
rebuttal of Bahrain's assimilation of coasts to baselines, since Qatar has already done so in its
29
Counter-Memorial . A few words will suffice in response to Bahrain's argument on that point in
its Counter-Memorial.
8.11 When Bahrain argues that the coasts of the Parties to be taken into consideration for 30e
drawing of a maritime boundary are their respective "international legal baselines" , it seeks to
invoke a principle which has been rejected in the law of international maritime delimitation, i.e.,
"the principle that every maritime delimitation must start from the parties' coasts as they are
31
represented by the baselines from which the breadth of their territorial seas is measured" . No
such principle exists in the law of maritime delimitation between States as applied by the Court
and other international tribunals. In the Tunisia/Libya Continental Shelf case, for example, the
Court ignored the Tunisian baselines both for the method of delimitation to be followed 32 and for
33
the test of proportionality to be applied . According to numerous international judicial and
arbitral decisions, the basepoints used for maritime delimitation purposes are generally chosen as
appropriate points that are independent of the basepoints used by the coastal States concerned for
the drawing of the baselines from which they measure their territorial sea and other maritime
zones. As the Court stated in the Libya/Malta Continental Shelf case:
"in any event the baselines as determined by coastal States are not per se identical with the
points chosen on a coast to make it possible to calculate the area of continental shelf
34
appertaining to that State" .
8.12 It thus appears that Qatar's position in asking the Court to draw the single maritime
boundary from appropriate basepoints on the respective main coasts of the two States is legally
justified, unlike the artificial construction of lines that is supposed to represent Bahrain's so-
called "aggregate coast". Moreover, Bahrain's attitude towards the definition of its coasts is
inequitable on the face of it, since its consequence is to make minor geographical features, such
as tiny islets, uninhabited rocks and shoals or low-tide elevations, not all of which appertain to
Bahrain, the basis for determining the course of the boundary line. This is a consequence which
has consistently been rejected by the international jurisprudence. For instance, in the Gulf of
Maine case the Chamber of the Court pointed out "the potential disadvantages inherent in any
method which takes tiny islands, uninhabited rocks or low-tide elevations, sometimes lying at aconsiderable distance from terra firma, as basepoint for the drawing of a line intended to effect
35
an equal division of a given area" . And the Chamber went on to say:
"If any of these geographical features possess some degree of importance, there is nothing to
prevent their subsequently being assigned whatever limited corrective effect may equitably
be ascribed to them, but that is an altogether different operation from making a series of such
minor features the very basis for the determination of the dividing line, or from transforming
them into a succession of basepoints for the geometrical construction of the entire line" . 36
8.13 Therefore, Qatar submits that, for the purposes of the present delimitation, Bahrain has
invented a purely fictitious coast based on a series of interconnecting lines between artificial
basepoints located on minor features that are clearly detached from the mainland. Moreover, this
construct of lines cannot be regarded as being the real Bahraini coastline, if only because its end
result is a particularly exorbitant and extravagant claim, as may be seen immediately from Map
1, facing page 196 of Bahrain's Counter-Memorial. On the contrary, the most appropriate way, in
Qatar's submission, of accurately reflecting the realities of this case, and especially the relevant
geographical facts, as clearly shown on Maps Nos. 5 and 6 of Qatar's Counter-Memorial, is to
take into account, for the purposes of the delimitation of the single maritime boundary, only the
two main coasts of the Parties.
Section 2. The So-Called "Undue Weight" given to the 1947 Line
A. Bahrain's position as to the alleged irrelevance of the 1947 line
8.14 In its Counter-Memorial, Bahrain has devoted a great deal of effort to its attempt to
downgrade the value or weight to be attributed to the 1947 line, and to demonstrate that it is
irrelevant . Bahrain has advanced a number of separate arguments in this context . It would
hardly have been necessary for Bahrain to have advanced so many arguments if the 1947 line
were not to be regarded as an important factor in the present case. In any event, none of Bahrain's
arguments really addresses what Qatar has previously said with respect to the 1947 line, either
because of Bahrain's misrepresentation of Qatar's actual position, or because of Bahrain's refusal
or inability to appreciate the nature of that line in its proper perspective.
1. Misrepresentation of Qatar's position
8.15 When Bahrain alleges that Qatar's Memorial is self-contradictory in arguing in effect that
"(i) it cannot be said that historic title derives from the British 1947 letters, but (ii) historic title
derives from the British 1947 letters" 39, this is just a misrepresentation of what Qatar actually
stated. In fact, Qatar has never contended that any historic title derives from the 1947 British
letters. It has simply pointed out that, in part of the southern sector of the delimitation area, the
situation created by the drawing of the 1947 line is to be regarded as the kind of circumstance
which could be covered by the reference to "historic title or other special circumstances"
contained in Article 15 of the 1982 Convention on the Law of the Sea . Subsequently, in Qatar's
Counter-Memorial, it has been made perfectly clear that the division of the sea-bed by the 1947
line is an important historical aspect of the question of maritime delimitation in the present
case 4, and that the line "constitutes a historical circumstance which is to be combined with the
geographical circumstance of the disparity between coastal lengths" . Therefore Bahrain's
43
allegation that "[t]he 1947 line has no relevance as a source of 'historic title'" completely misses
the point.
8.16 In the same manner, Bahrain seems to have distorted Qatar's conception of the 1947 British
decision, when it states: "To the extent that Qatar thereby [i.e., through the use of the word
decision] intends to imply that the letters of 23 December 1947... had made a definitive
decision... Qatar's characterisation of [those] letters is manifestly inaccurate" 44. On the basis of
this supposition, Bahrain embarks on a lengthy attempt to demonstrate that "The letters of 23
December 1947, unlike Britain's arbitral award [sic] of 1939 in relation to the Hawar Islands, didnot constitute a 45ecision' purporting to bind Bahrain and Qatar, nor was it regarded by the
Parties as such" . Apart from what will be said in the next paragraph below, Qatar is obliged to
underline that there is a degree of inconsistency in the contrast thus made by Bahrain between
the two British "decisions" of 1939 and 1947.
8.17 The chief objection to Bahrain's dogmatic assertion is that Qatar has never argued that the
1947 decision is a binding decision. On the contrary, in Qatar's Memorial it was clearly
explained that the British Government's position as regards the 1947 decision "was equivocal for
many years, maintaining in some statements that the line was final and admitting in others that it
46
could be revised" . Thus, in response to prot47ts from both Rulers, the British considered in
1949 that their 1947 decision was "final" ; in 1950, they recalled that the 1947 line was
"previously announced as final" , and later on in 1962 that it was "a decision often declared to
be final" . In the same vein, on several occasions, they referred to that decision as "the 1947
50 51 52
award" or "the 1947 seabed award" , and sometimes as "the 1947 settlement" ; and a legal
adviser in the Foreign Office expressed the view that this "award" was "a unilateral statement by
H.M.G. on the delimitation of the Bahrain-Qatar sea-bed boundary" . However, on some other
occasions, the British authorities departed from their strong position and declared that the 1547
line or the sea-bed boundary between Qatar and Bahrain had simply been "indicated" or
"announced" to the Rulers, and even that "the decision reached in 1947... has not yet been
finally confirmed" . Indeed, in 1965/66, Britain was prepared to allow both the 1939 and 1947
57
"decisions" to be referred to arbitration .
8.18 The Court is well aware that, in the first round of written pleadings in this case, Qatar drew
attention to the "serious legal doubts which had been raised as to the validity and binding
character of the 1947 decision" . Unfortunately, it appears that Bahrain has not paid sufficient
attention to this, and all the discussion in its Counter-Memorial devoted to the non-binding
59
character of the 1947 British decision is therefore entirely beside the point .
8.19 Whatever may be the legal definition and significance of the 1947 British decision, the fact
remains that a sea-bed dividing line was laid down at that time, and that afterwards any
discussion, reflection, or suggestion dealing with the Qatar-Bahrain boundary focussed on that
line, with a view either to transforming it into an agreed line, or to altering its course . And in
Qatar's submission, it is the existence of that simple fact which is to be taken into account in the
delimitation of the single maritime boundary between the two States: nothing more, nothing less.
2. The refusal or inability of Bahrain to view the 1947 line in its proper perspective
8.20 Obsessed with the idea that the 1947 line ought to have been drawn at the time by
application of precise rules of maritime delimitation, if it were to be regarded as having some
impact now on the determination of a single maritime boundary, Bahrain has tried to lessen the
value and significance of that line by asserting that "the principal British preoccupation was that
61
of good management, rather than the rule of law" . This is indisputable. But does this really
matter in seeking to assess the relevance of the 1947 line? Are there no other sea-bed boundaries
which have been drawn up so as to satisfy inter alia the requirement of "good management",
including among those sea-bed boundaries some of those more recently established? Even if in
1947 the aim of the British Government was not to carry out a delimitation on the basis of well-
established legal principles, but rather to settle practically, on an ad hoc basis 62, a problem with
which the oil companies and the Rulers were faced from the outset of the second world war , the 63
result was a line dividing the sea-bed between the two Sheikhdoms. And the British Government
considered that it was an equitable line at a time when it was urgent to effect a delimitation in
this part of the Gulf to enable oil exploration and exploitation to continue 64. This was akin to the
division of the sea-bed in the Gulf of Paria in 1942, which was effected i65order to meet urgent
requirements, being "linked to oil shortages during the war period" . Whatever might have been
the preoccupation of the British Government in constructing such a dividing line, the resultingline has to be regarded as an established fact which, as such, has some significance for any
further delimitation process.
8.21 Moreover, when they drew the 1947 line on an ad hoc basis, as mentioned above, the
66
British authorities considered that it was "in accordance with equitable principles" . According
to Bahrain:
"This was a general reference to an essentially subjective kind of equity, whereas the
contemporary law of the sea refers to equitable principles of an objective character... More
importantly still, the 'equitable principles' to which the 1947 line purported to conform are
impossible to identify" .67
68
Qatar does not dispute the rather flexible nature of the terms "equity" and "equitable
principles", even under the present-day legal rules governing maritime delimitation law. As
Qatar's Memorial underlined, at the time of the 1947 British decision, there were no helpful
precedents or established rules of delimitation, and no specific rule or method could yet be 69
regarded as being already part of the emerging legal doctrine of the continental shelf .
Nonetheless, as Qatar has already pointed out, the British decision did take into account certain
objective criteria, such as basing the decision on the main coasts of the Parties . 70
8.22 It should also be recalled that the only sea-bed delimitation between States which had taken
place before that date was that resulting from the 1942 Treaty of the Gulf of Paria 7. As noted by
one commentator, the approach followed by the Governments of the United Kingdom and
Venezuela for that delimitation was also "essentially pragmatic":
"Lacking precedents of its own, the methods applied in the Pari72Treaty, as deduced from the
characteristics of the line may be qualified as sui generis" .
No doubt the same appraisal may be made concerning the 1947 line dividing the sea-bed
between Qatar and Bahrain.
B. The relevance of the 1947 line under the current law of maritime delimitation
8.23 In its Counter-Memorial Bahrain asserts that:
"In the contemporary law of maritime delimitation, the purpose of considering relevant
circumstances is to verify whether the provisional equidistance line will lead to an equitable
result and, if necessary, to adjust or shift it"73.
Qatar cannot entirely subscribe to this view. In fact, the role played by the relevant
circumstances in a particular case is not limited to verifying the equitable nature of a provisional
equidistance line. The role assigned to them is much broader: it consists also in the choice of the
method or methods of delimitation, for such circumstances are inherent in that choice. As was
stated by the Court of Arbitration in the Anglo-French Continental Shelf Delimitation, "the
appropriateness of the equidistance method or any other method for the purpose of effecting an
equitable delimitation is a function or reflection of the geographical and other relevant
circumstances of each particular case. The choice of the method or methods of delimitation in
any given case... has therefore to be determined in the light of those circumstances and of the
fundamental norm that the delimitation must be in accordance with equitable principles" 74.
75
8.24 As already noted, when the 1947 line is put in its true perspective , that line appears as a
historical circumstance which is highly relevant for the delimitation of the single maritime
boundary between the Parties 76, rather than, as Bahrain contends, as "part of a historical context
77
which is now superseded" . There are at least two main reasons that support this proposition.
8.25 The first reason may be found in a comparison with the precedent constituted by the almost
contemporaneous sea-bed delimitation in the Gulf of Paria established by a treaty signed on 26
February 1942 between the United Kingdom and Venezuela, the conclusion of which "was
linked to the devolution of Patos island to Venezuela" 78. Despite the fact that the 1942 dividingline related exclusively to the submarine areas of the Gulf of Paria , and notwithstanding the
further extension of the territorial seas of Venezuela and Trinidad and Tobago up to 12 nautical
80
miles , a new delimitation agreement concluded in 1990 between those two States established
an all-purpose maritime boundary which, in the Gulf of Paria, more or less follows the sea-bed
dividing line that had been established in the famous 1942 Treaty, with the exception of some
minor rectifications . This precedent clearly shows that a sea-bed boundary line drawn half a
century ago on a purely ad hoc basis, through sui generis methods of delimitation, may have
great significance for the establishment of an all-purpose maritime boundary line according to
the contemporary law of maritime delimitation. In particular, it demonstrates how the latter has
been drawn with due regard to the former.
8.26 The second reason derives from the conduct of the Parties with regard to the 1947 line in
the matter of oil concessions and offshore exploration and exploitation. It is a fact that in
previous maritime delimitation cases, the Court has examined the conduct of the Parties, as a
particular factor among other circumstances, to determine whether that conduct is relevant in the
82
choice of the appropriate method of delimitation . The Court will be aware that in some
instances the conduct of the Parties has not constituted an element influencing the course of the
delimitation line. For example, in the Libya/Malta case the Court noted that neither party had
suggested that their conduct in the grant of petroleum concessions had given rise to a de facto
line dividing concession areas. Based on the circumstances of the case, the Court therefore
concluded that it was "unable to discern any pattern of conduct on either side sufficiently
unequivocal to constitute either acquiescence or any helpful indication of any view of either
Party as to what would be equitable differing in any way from the view advanced by that Party
before the Court" . In the Libya/Tunisia case, on the other hand, the Court expressly relied on
the conduct of the Parties in their gr84ting of petroleum concessions as one of the relevant
factors, albeit a highly relevant one , providing "indicia... of the line or lines which the Parties
themselves may have considered equitable or acted upon as such - if only as an interim solution
affecting part only of the area to be delimited" . Bearing these considerations in mind, Qatar
submits that, in the present case, the conduct of the Parties relating to the limits of their
respective oil concessions reinforces, to some extent, the value of the 1947 line as a relevant
factor in the present case.
8.27 It is not necessary to enter into a detailed examination of the practice followed by Bahrain
and Qatar relating to oil concessions in the relevant maritime area to appreciate its relevance
with respect to the 1947 line. Suffice it to note that the 1947 line has from time to time been
relied upon by the Parties and the British for the operating limits of the Parties' offshore
petroleum licences.
8.28 To take one example, in 1965 the Foreign Office expressed the desire to make clear the
operating limits of a concession proposed to be granted by Bahrain to the Continental Oil
Company. In an internal note from the Foreign Office dated 12 November 1965, the British
authorities observed as follows:
"3. We shall... have to impose a more restrictive operating limit in the Bahrain/Qatar sector,
and we propose that this should start five miles to the west of the intersection of the Gulf
median line and the Bahrain/Qatar median line (low-water mark of mainland only, counting
Muharraq Island and Ras Umm al-Karam as mainland), and run in a straight line to the most
northerly point of the 1947 line which is (fortunately) still 2 ½ miles short of the median
line..."6.
8.29 This view was further reflected in a letter from Parsons, the Political Agent Bahrain, dated
20 February 1966. In relevant part, the letter stated:
"The Bahrain Government were prepared to accept, without prejudice, the 1947 line as the
division between Bahrain and Qatar for operating purposes provided that both sides agreed to hold off exploitation of any structure which straddled the line : in the north they would be
guided by Her Majesty's Government 'within reasonable limits' 87".
8.30 Bahrain's position with respect to the 1947 line as an operating limit to petroleum activities
was also confirmed during the course of a meeting on 12 April 1966 between the Political
Resident, Luce, the Ruler of Bahrain and Sayyid Mahmood in the following terms:
"I urged them once again to try to reach agreement with Qatar about Continental's operating
limits, and Shaikh Khalifa said he would be ready to discuss this with the Deputy Ruler of
Qatar when they meet to prepare for the Gulf Rulers' meeting... They indicated again that
they were ready to accept the 1947 line as the operating limit, without prejudice to an
eventual settlement of the boundary, and again made the point that if any oil structure were
found which straddled that line operatio88 should be suspended until the two Governments
agreed on how it should be dealt with" .
8.31 From these exchanges, it can be seen that the conduct of the two Parties in the matter of oil
concessions suggests that, while they were under pressure at the outset from the British
authorities, they both considered that the 1947 line was a circumstance to be taken into account -
whatever might have been their respective perceptions of its nature . Consequently, owing to the
role that has been historically assigned to that line in the conduct of both States, there can be no
doubt as to the relevance of the 1947 line in the light of the contemporary law of maritime
delimitation.
__________
FOOTNOTES
1 BCM, para. 495.
2 Ibid.
3 See, BCM, para. 490.
4 QCM, p. 216.
5 See, QCM, para. 6.95.
6 See, QCM, paras. 6.76, 6.79, 6.82 and 6.84.
7 Footnote 624 of the BCM refers purely and simply to "QM, Chapter X, Section 2.C.1". The
wording "main coasts" was otherwise used once in Qatar's Memorial (para. 11.37). Qatar's
Counter-Memorial used the wording "mainland coasts" on p. 228 and in paras. 7.24, 7.26, 7.27,
7.31, 7.41, 7.42, 7.45 and 7.50, while the expression "main coasts" appeared twice, in paras. 6.6
and 7.28 of that Counter-Memorial. On the concept of the "mainland", see, para. 9.37, below.
8 See, the questions put in a letter dated 13 February 1947 from F.A.K. Harrison, India Office, to
G.C.B. Dodds, Admiralty, reproduced as BCM, Annex 109, Vol. 2, p. 335, at p. 338.
9 See, QCM, para. 7.24, paras. 9.39, et seq., below.
10 See, BCM, paras. 492-493.
11 See, the Judgment of the Court in the Continental Shelf (Libya/Malta) case, I.C.J. Reports
1985, p. 30, para. 27.
12 BCM, p. 212.
13 BCM, para. 490.
14 I.C.J. Reports 1982, p. 61, para. 75.
15 Delimitation of the Maritime Boundary in the Gulf of Maine Area, Judgment, I.C.J. Reports
1984, p. 271, para. 36, where it was stated that "there is nothing to preclude the possibility of theso-called 'secondary' coasts being of equal if not of even greater importance than the 'primary'
coasts".
16 Maritime Delimitation in the Area between Greenland and Jan Mayen, Judgment, I.C.J.
Reports 1993, p. 67, para. 65.
17 In the Tunisia/Libya Continental Shelf case, where Tunisia had specified as a relevant
circumstance the presence of islands, islets and low-tide elevations forming part of its eastern
coastal front, the Court made a distinction between different coasts by giving half-effect to the
coasts of the Kerkennah Islands while totally disregarding the coast of the island of Jerba in the
circumstances of that particular case. See, I.C.J. Reports 1982, p. 64, para. 79; p. 85, para. 120; p.
89, paras. 128-129. See, also, the dissenting opinion of Judge ad hoc Evensen, who wrote: "The
enormous low-tide elevations surrounding both the Kerkennah Islands and Jerba are disregarded
so completely that no mention of them has been made at all" (ibid., p. 299, para. 17).
18 After having expressly recognized that Dibal and Qit'at Jaradah are both low-tide elevations,
when it speaks of "sovereignty over two low-tide elevations, Fasht ad Dibal and Qit'at Jaradah"
(BCM, para. 468), later on Bahrain nevertheless contends that Qit'at Jaradah "qualifies as an
island under international law" (BCM, para. 511), or that it "is an island within the meaning of
Article 121" (BCM, para. 525, fn. 670).
19 BCM, para. 613.
20 Ibid., para. 652.
21 Ibid., para. 613.
22 I.C.J. Reports 1951, p. 128.
23 Ibid., p. 127.
24 BCM, para. 614.
25 BCM, para. 655.
26 See, Chap. VII, above. In a study devoted to the concept of baselines, published a few years
ago, two distinguished scholars made an assessment of "defining the 'coast' as a series of
interconnecting lines between points far from the actual interface of the terra firma and the
hydrosphere". In their opinion: "If the coastline is understood as extending beyond the terra
firma, baselines and all subsequent seaward boundaries will themselves extend proportionately
farther out to sea. In view of the fact that this determination must have deprivatory effects on
nearby states in specific maritime boundary claims..., we submit that the word 'coastline' must be
understood restrictively to mean the mean low-water mark of the most landward interface of the
hydrosphere and terra firma. Coast should, in short, mean coast in an empirically referential
sense and not in the sense of some intellectual or juridical construct of coast". See, W.M.
Reisman and G.S. Westerman, Straight Baselines in International Maritime Boundary
Delimitation, London, 1992, p. 78 (QR, Annex IV.49, Vol. 4, p. 279).
27 BCM, para. 613.
28 See, QCM, paras. 6.57, et seq., and Chap. VII, above.
29 See, QCM, paras. 7.33, et seq.
30 BCM, paras. 593 and 610.
31 BCM, para. 607.
32 See, I.C.J. Reports 1982, pp. 61-62, para. 75, and p. 89, para. 128.
33 Ibid., p. 76, para. 104, and p. 91, para. 131.
34 I.C.J. Reports 1985, p. 48, para. 64; already quoted in QCM, para. 7.36.35 I.C.J. Reports 1984, pp. 329-330, para. 201.
36 Ibid., p. 330; emphasis added.
37 BCM, pp. 240-264.
38 See, BCM, paras. 552 to 586.
39 BCM, para. 586.
40 QM, para. 11.39.
41 QCM, para. 7.11.
42 QCM, para. 7.48.
43 BCM, p. 263.
44 BCM, para. 552.
45 BCM, p. 244.
46 QM, para. 10.41
47 QM, Annexes IV.131 and IV.133, Vol. 10, pp. 169 and 179.
48 QM, Annex IV.173, Vol. 10, p. 365.
49 QM, Annex IV.241, Vol. 11, p. 387.
50 QM, Annexes IV.228 and IV.239, Vol. 11, pp. 329 and 377.
51 QM, Annexes IV.225 and IV.241, Vol. 11, pp. 315 and 387.
52 QM, Annexes IV.211 and IV.224, Vol. 11, pp. 211 and 305.
53 QM, Annex IV.221, Vol. 11, p. 277.
54 QM, Annex IV.147, Vol. 10, p. 241.
55 QM, Annexes IV.152 and IV.153, Vol. 10, pp. 263 and 269; QM, Annex IV.204, Vol. 11, p.
53.
56 QM, Annex IV.163, Vol. 10, p. 317.
57 See, para. 4.295, above.
58 QM, para. 10.42.
59 BCM, paras. 552-562.
60 If the British were reluctant to reopen the existing line, this was essentially because of two
main considerations: they did not see how the Ruler of Qatar could "be expected to agree to the
matter being reexamined without it being possible for the sovereignty over Hawar Island to be
looked at simultaneously"; on the other hand, they had no illusions as to the possibility of
achieving "a compromise solution which left the existing line where it is, but extended it
northwards to the median line of the Gulf, with some consequential advantage to Bahrain over
Qatar". See, QM, Annex IV.243, Vol. 11, p. 399. As stated in the phase of this case relating to
Questions of Jurisdiction and Admissibility (QMJA, paras. 3.02, et seq.) and in Qatar's Memorial
in the present phase on the merits (QM, paras. 3.87 and 10.43), the British Government finally
agreed in the 1960s to an international arbitration process where both questions would be dealt
with, i.e. sovereignty over the Hawar islands and the 1947 line.
61 BCM, para. 563.
62 See, QM, Annex IV.152, Vol. 10, p. 263.
63 See, QM, paras. 10.8, et seq.64 The letters sent on 23 December 1947 to the two Rulers stated explicitly: "Apart from any
other considerations the operations of the Oil Companies... make such a delimitation necessary"
(QM, Annexes IV.115 and IV.116, Vol. 10, pp. 71 and 75).
65 See, K.G. Nweihed, in L. Alexander & J. Charney, International Maritime Boundaries,
Nijhoff, 1993, Vol. I, p. 683 (QR, Annex IV.45, Vol. 4, p. 263).
66 QM, Annexes IV.115 and IV.116, Vol. 10, pp. 71 and 75.
67 BCM, para. 580.
68 As stated by Professor Reuter, "peu de termes sont aussi plaisants à l'esprit et au c_ur, peu
touchent aussi profondément une attente inscrite au tréfonds de la nature humaine, mais en
revanche peu restent aussi mystérieux". See, "Quelques réflexions sur l'équité en droit
international", Revue belge de droit international, Vol. 15, 1980, p. 165 (QR, Annex IV.50, Vol.
4, p. 283).
69 See, QM, para. 10.15.
70 See, QM, para. 10.16.
71 See, QM, Annex IV.72, Vol. 9, p. 349.
72 K.G. Nweihed, op. cit. (QR, Annex IV.44, Vol. 4, p. 259).
73 BCM, para. 653.
74 Decision dated 30 June 1977, para. 97, U.N.R.I.A.A., Vol. XVIII, pp. 59-60.
75 See, paras. 8.15, et seq., above.
76 See, QCM, paras. 7.11, et seq.
77 BCM, para. 474.
78 K.G. Nweihed, op. cit. (QR, Annex IV.44, Vol. 4, p. 259). See, also, QM, para. 10.5, fn. 11.
79 According to Article 6 of the 1942 Treaty: "Nothing in this Treaty shall be held to affect in
any way the status of the waters of the Gulf of Paria" (QR, Annex IV.72, Vol. 4, p. 349).
80 See, United Nations, Law of the Sea Bulletin, No. 30, 1996, pp. 77 and 78 (QR, Annex IV.30,
Vol. 4, p. 181).
81 See, K.G. Nweihed, op. cit. (QR, Annex IV.45, Vol. 4, p. 263).
82 See, for example, Maritime Delimitation in the Area between Greenland and Jan Mayen,
Judgment, I.C.J. Reports 1993, p. 75, para. 82.
83 See, Continental Shelf (Libyan Arab Jamahariya/Malta), Judgment, I.C.J. Reports 1985, pp.
28-29, paras. 24 and 25. See, also, in this connection, Maritime Delimitation in the Area between
Greenland and Jan Mayen, Judgment, I.C.J. Reports, 1993, p. 77, para. 86.
84 Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1982, p. 83,
para. 117.
85 Ibid., p. 84, para. 118.
86 QR, Annex IV.14, Vol. 4, p. 75.
87 QR, Annex IV.16, Vol. 4, p. 87.
88 QR, Annex IV.18, Vol. 4, p. 95.
89 For further details regarding oil concessions, see, QR, Annexes IV.4-IV.8, IV.10, IV.13-
IV.14, IV.16-IV.19 and IV.21-IV.27, Vol. 4, pp. 17-33, 47, 67-75, 87-99 and 137-163.
__________ CASE CONCERNING MARITIME DELIMITATION AND
TERRITORIAL QUESTIONS BETWEEN QATAR AND BAHRAIN
(QATAR V. BAHRAIN)
REPLY OF THE STATE OF QATAR
_____________________________________________
CHAPTER IX - THE SINGLE MARITIME BOUNDARY 313
Introduction 313
1. Bahrain is ill at ease with its extravagant maritime claim 313
2. Bahrain's distortion of Qatar's position with respect to the provisional equidistance line
313
Section 1. Bahrain's Line is a Distorted Equidistance Line 315
A. Bahrain's line infringes the principle of non-encroachment 315
B. Bahrain's line runs counter to the jurisprudence concerning the determination of
basepoints for the equidistance line 318
Section 2. Qatar's Provisional Equidistance Line is Based on Reasonable Constructions 319
A. A precedent that cannot be ignored: the Boggs-Kennedy line of 16 December 1948
320
1. The principles adopted by Boggs-Kennedy 321
2. Application of the principles adopted by Kennedy and Boggs 323
(a) Equidistance and longitudinal delimitation in the central part of the Gulf 323
(b) Equidistance and delimitation in the "Bahrain area" 323
(i) The Saudi Arabia - Qatar lateral line 324
(ii) The Saudi-Arabia - Bahrain lateral line 325
(iii) The Bahrain-Qatar lateral line 326
B. A significant practice: the maritime delimitation agreements entered into by the Parties
to the present case 328
1. Bahrain - Saudi Arabia, seabed boundary agreement dated 22 February 1958 328
2. The Qatar-Saudi Arabia Agreement on determination of land and sea boundaries dated
4 December 1965 329
3. The Abu Dhabi-Qatar Agreement on the settlement of seabed boundary and ownership
of islands dated 20 March 1969 329
4. The Iran-Qatar boundary line dividing the continental shelf dated 20 September 1969
330
5. The Bahrain-Iran continental shelf agreement dated 17 June 1971 331
C. The provisional equidistance line, constructed on the basis of the mainland-to-
mainland method: a claim that is well-suited to the geographical circumstances of the
present case 332
1. The mainland-to-mainland method 332
(a) The mainland-to-mainland method disregards islands, islets, rocks, reefs and low-tide
elevations 333 (b) The mainland-to-mainland method is based on the high-water line 336
(i) Technical arguments in favour of the high-water line 337
(ii) Legal arguments in favour of the high-water line 339
2. Description of the provisional equidistance line, constructed on the basis of the
mainland-to-mainland method 342
Section 3. The Adjustments made by Qatar to its Provisional Equidistance Line 344
A. The adjustments made to the provisional equidistance line in the southern sector 344
1. The special or relevant geographical circumstances 344
2. The special or relevant historical circumstances 345
B. Adjustments to the provisional equidistance line in the northern sector 347
1. The reasons for the adjustment made by Qatar to the provisional equidistance line in
the northern sector 348
(a) The special historical circumstances justifying the first section of Qatar's line, from N
to BLV 348
(b) The relevant geographical circumstances justifying the second section of Qatar's line,
from BLV to 2(2B) 349
2. The a posteriori verification of the equity of Qatar's line, by means of proportionality
tests 353
(a) Proportionality between the coastal lengths and the surface areas of the maritime areas
356
(b) Proportionality between the lengths on either side of the foot of the perpendicular on
the RK-MQ closing line 357
__________
CHAPTER IX
THE SINGLE MARITIME BOUNDARY
Introduction
1. Bahrain is ill at ease with its extravagant maritime claim
9.1 The discussion in the Bahrain Counter-Memorial of the maritime delimitation between Qatar
and Bahrain cannot fail to surprise the reader. The Bahrain Counter-Memorial says not one word
in justification of1the line submitted by Bahrain in its Memorial. The cartography in the Bahrain
Counter-Memorial is as poor as it was in the Bahrain Memorial; and there is still lacking any
indication as to the precise geographical coordinates of the turning points that are essential for
the definition of the maritime boundary claimed by Bahrain, or of the base points from which
Bahrain's line has been constructed. The impression given is that Bahrain is ill at ease with the
extravagance of the line that it is claiming, that it dare not take the risk of comparing it with
Qatar's line, as has been done on Map No. 10 facing page 314, and that it no longer ventures to
defend its own claim .
2. Bahrain's distortion of Qatar's position with respect to the provisional equidistance line
9.2 On the other hand, while the Bahrain Counter-Memorial acknowledges the Parties'
agreement as to the content of the law applicable to the maritime delimitation , it objects to
Qatar's application of that law and embarks upon a curious criticism 4f Qatar's line - a criticism
which is all the more surprising in that it is devoid of any legal basis . In particular, in Bahrain's
view, Qatar's claim does not comply with the principles of the law of maritime delimitation, interalia because it does not use the equidistance method as the starting point for drawing the line or,
in other words, because Qatar has not made reference to the provisional equidistance line.
According to Bahrain:
"At no point, either in the southern or in the northern sector, does Qatar contemplate the
equidistance line as a provisional boundary. In the southern sector and as far north as the
point BLV, Qatar takes as its provisional boundary the 1947 line, before deciding to
'disregard' this line southwards of point L. In the northern sector, Qatar takes this same 1947
line as its provisional - and final - boundary as far north as the point BLV; northwards of the
point BLV, Qatar takes as its provisional boundary a perpendicular passing through the point
BLV to a so-called closing line, and then rotates this perpendicular about the point BLV. In
the contemporary law of maritime delimitation, the purpose of considering relevant
circumstances is to verify whether the provisional equidistance line will lead to an equitable
result and, if necessary, to adjust or shift it. Qatar's proposed method is completely different:
Qatar takes as its provisional line the British 1947 line as far north as the point BLV... It is
this provisional line which Qatar modifies in the light of selected relevant circumstances. The
legally required process of delimitation is thereby completely distorted" . 5
9.3 In so arguing, Bahrain has distorted Qatar's position. With regard to the maritime
delimitation in the southern sector, Qatar expressly took the "provisional median line" as the
starting point for its construction , and then adjusted it westwards because of the circumstances
7
of the case, in particular historic circumstances such as the 1947 British line . As regards the
maritime delimitation in the northern sector, while Qatar did not formally construct a provisional
equidistance line, it was careful to point out that the method it had adopted, which was the
adjusted perpendicularity method, was "derived from the same rationale as the equidistance
method" 8. Qatar also stressed that it "does not dispute that it might be possible to have recourse
to the equidistance method in order to achieve a 9easonable and equitable delimitation in the
northern sector, just as in the southern sector" . In any event, taking Bahrain's criticism at its face
value , Qatar will show below that the maritime boundary that it claims is based, in both the
northern sector and the southern sector, on the provisional equidistance line, duly adjusted in
order to take into account the historical and geographical circumstances of the case. Qatar
considers that the single maritime boundary that it claims in this case leads to an equitable result,
creating an objective and verifiable link between the rules that are applicable to maritime
delimitation and the actual geographical situation. The method proposed by Qatar results from
the 1947 line, the practice of the Parties and "the actual geographical relation of the coasts of the
two States", to borrow the words used in the Arbitral Award of 30 June 1977, in the case
concerning the Del11itation of the Continental Shelf between the United Kingdom and the
French Republic .
9.4 In this Chapter Qatar will first recapitulate, in Section 1, the reasons why the maritime
boundary claimed by Bahrain is a distorted equidistance line. Qatar will then show, in Section 2,
that its own provisional equidistance line is based on reasonable constructions of an equidistance
line and, in Section 3, that the adjustments it makes to that line flow from the particular historical
and geographical circumstances, allowing an equitable delimitation to be achieved.
Section 1. Bahrain's Line is a Distorted Equidistance Line
A. Bahrain's line infringes the principle of non-encroachment
9.5 In a standard work on maritime delimitation, it has rightly been noted that:
"The equidistance method, besides reflecting the coastal geography, incorporates to a
remarkable degree the double parameter of coast and distance which lies at the very heart of
the legal concept that States are entitled to maritime areas adjacent to their shores. It takes
account of the concept of maritime delimitation as presently provided for by the law. It
respects the principle of non-encroachment both in its negative aspect - not to cut off one of the States from 'areas situated directly before [its coastal] front' - and its positive aspects - to
12
give each State a boundary line which is sufficiently far from its coasts" .
9.6 Bahrain acknowledges the importance of the non-encroachment principle, citing the Jan
Mayen case where the Court recognised that with regard to the maritime boundary claims there
was an "overlap between the areas which each13tate would have been able to claim had it not
been for the presence of the other State" . Bahrain adds that:
"The delimitation process consists of reducing the entitlement of each of the parties by a
method which will, by taking account of the relevant circumstances, lead to an equitable
result. The reduction must be mutual and must affect the two parties equitably; otherwise, by
definition, the process has not led to an equitable result" .14
Bahrain then goes on to assert that:
"The boundary claimed by Qatar does not divide the 'area of overlapping potential
entitlement' which is the essence of maritime delimitation. Even on the assumption that the
Hawar Islands and the Zubarah Region belong to Qatar and that the features to the east of
Bahrain's main island are to be ignored, for a major part of its extent Qatar's proposed
boundary encroaches 15on Bahrain's 12-mile entitlement only, while leaving Qatar's 12-mile
entitlement intact" .
9.7 By so reasoning, Bahrain disregards the arguments put forward by Qatar to justify the fact
that the line it claims coincides, between points L and BLV, with the 1947 line. The 1947 British
decision is indisputably a relevant circumstance in effecting a maritime delimitation between
Qatar and Bahrain. This is particularly the case, given that it has been confirmed by the practice
of both Parties in regard to petroleum activities, as noted in Chapter VIII above 16. It will also be
noted that in its written pleadings Bahrain has remained silent with respect to the history of
petroleum licences granted in the northern sector. That history is however particulary interesting
in the present case. As pointed out in Qatar's Counter-Memorial, Bahrain's petroleum activities in
the northern sector have always been to the west of the line joining points N, NSLB, BLV and
2(2B) as claimed by Qatar, with the exception of the Athari I well, which is adjacent to the BLV-
2(2B) segment, on the eastern side of the line. Moreover, the western limit of the licences
granted by Qatar in the northern sector undermines Bahrain's claim, which is based on its alleged
"historic rights to the pearling banks", and from another point of view underlines the lack of any
foundation for that claim 17. Furthermore, Bahrain forgets that when the 1947 decision was made,
the breadth of the territorial waters was three nautical miles and that the line that it laid down
therefore did not encroach upon Bahrain's territorial sea. It also forgets that contrary to Bahrain's
allegations, the maritime boundary claimed by Qatar, practically from point NSLB and, a
fortiori, from point BLV , in no way encroaches, "for a major part of its extent", "upon
19
Bahrain's 12-mile entitlement" . In fact, by reason of the general20orth-north-easterly direction
of the line, it takes full account of Bahrain's maritime projection .
9.8 On the other hand, it should be recalled that along the whole of its course, Bahrain's line
21
takes no account whatsoever of Qatar's maritime projection . Thus, in the southern sector, the
whole of Bahrain's line encroaches upon Qatar's 12-mile territorial waters, and only upon those
waters. Thus, too, in the northern sector, Bahrain's line encroaches upon Qatar's 12-mile
territorial waters up to point Q and, beyond that point, from point Q up to point 2(2Q) located on
the continental shelf boundary laid down by the 1969 Qatar/Iran agreement, upon Qatar's
continental shelf and superjacent fishing zones. Maps Nos. 10 and 11, facing pages 314 and 318,
are a clear illustration of each Party's treatment of the principle of non-encroachment. This is a
major principle of the law of maritime delimitation which, it bears repeating, is one of the most
significant advantages of using the equidistance method that Bahrain is ostensibly applying. It is
immediately apparent from these two maps that Qatar's line is reasonable and that Bahrain's lineis grossly extravagant, the latter showing not the slightest trace of any equitable balance in the
22
sacrifices demanded by Bahrain of Qatar .
B. Bahrain's line runs counter to the jurisprudence concerning the determination of
basepoints for the equidistance line
9.9 It is claimed in the Bahrain Counter-Memorial that Qatar's line is based on "the fiction of a
geographical23nd legal vacuum between the coast of Bahrain's main island and the Qatari
peninsula" . There is no legal basis for this criticism since, as has been shown above, it ascribes
a purely arbitrary and artificial content to the notions of the "coasts" and "baselines" from which
the course of any equidistance line must be determined . It is untrue to say that in matters of
maritime delimitation, international law somehow automatically and ipso jure gives full effect
(1) to any "maritime feature", of whatever size, which remains permanently uncovered at high
tide, be it an island, an islet, a rock or a reef and also (2) to any "maritime feature" which is
uncovered at low tide but covered at high tide, i.e. a low-tide elevation. Bahrain's statement that
in matters of maritime delimitation "an island is an island" 25 runs counter to both the
international jurisprudence and State practice. Equally unfounded is Bahrain's assertion that low-
tide elevations "form part of the territory of the State in question and... are subject to its
territorial sovereignty" and that in any event they serve as basepoints for the drawing of any
equidistance line . It is sheer fantasy to claim that such "maritime features" should, in the
construction of the maritime boundary, be attributed the same weight as the Qatar peninsula
itself, or indeed any weight at all. Not only does Bahrain refashion nature and geography; it also
refashions the law.
9.10 Indeed, it has been definitively demonstrated that, according to the jurisprudence that has
never wavered, (1) an island, islet, rock or reef that can generate its own territorial sea does not
necessarily serve as a basepoint for the construction of a line of delimitation, in particular when
such line is an equidistance line; and (2) a fortiori, a low-tide elevation that does not have its
own territorial sea when it lies in its entirety at a distance from the mainland or from an island
exceeding the breadth of the territorial sea, cannot be adopted as a basepoint for determining the
course of a dividing line 2. It is thus in contradiction of this consistent jurisprudence for the
whole of the maritime boundary claimed by Bahrain, in both the southern sector and the northern
sector, to be constructed from basepoints from which the breadth of the territorial sea is to be
measured 2. The equidistance line claimed by Bahrain, which is a final equidistance line in the
southern sector and for the first section in the northern sector, and a provisional equidistance line
30 31
for the second section in the northern sector , is thus devoid of any legal basis . The case of
Fasht Dibal should be recalled here, since it plays a pivotal role in the construction of Bahrain's
line: international law neither allows it to be used as a basepoint for the drawing of an
equidistance line nor, contrary to what is alleged by Bahrain, does it allow it to have its own
32
territorial sea; far less does it permit such a "feature" to be appropriated . There is not a shred of
justification for the solution proposed by Bahrain, which is nothing less than a perversion of the
equidistance method.
Section 2. Qatar's Provisional Equidistance Line is Based on Reasonable Constructions
9.11 Contrary to Bahrain's assertions, Qatar has never disputed the fact that the equidistance
metho33may be used, in one way or another, in effecting the maritime delimitation in the present
case . Qatar considers it appropriate, first of all, to draw a provisional equidistance line which
can then be adjusted to take the relevant circumstances into account. The course of the
provisional equidistance line put forward by Qatar is based upon the assumption, as previously
shown, that Bahrain's claims with respect to the "Zubarah region" will be rejected and that Qatar
will be recognised as having territorial sovereignty over the Hawar islands. As will be
demonstrated below, in sub-section C, this provisional equidistance line must be constructed by
means of the mainland-to-mainland method, it being understood that this type of construction hasbeen frequently used in maritime delimitations in this part of the Arabian/Persian Gulf. Indeed, it
will be seen in sub-section A that this was the method proposed in 1948 in the Boggs-Kennedy
report and, in sub-section B, significantly, that it has been adopted by the Parties themselves in
the delimitation agreements that they have entered into.
A. A precedent that cannot be ignored: the Boggs-Kennedy line of 16 December 1948
9.12 The first illustration of a reasonable construction of the equidistance method in the maritime
areas concerned in the present dispute is to be found in what is usually referred to as the Boggs-
Kennedy line. That line is described in a document that cannot be ignored when dealing with any
problem of maritime delimitation anywhere in the Arabian/Persian Gulf, and in particular in the
present case. This is why Qatar has referred to it on several occasions in its written pleadings: it
mentioned it in its Memorial , annexing the full text of the experts' report , and it also referred
36
to it in its Counter-Memorial . In contrast, Bahrain's silence with regard to this document must
be noted. Bahrain's discretion is undoubtedly due to the fact that the dividing line between Qatar
and Bahrain that is proposed in this document is strikingly similar, along the greater part of its
course and with the exception of the effect of the question of sovereignty over the Hawar islands,
to the single maritime boundary claimed by Qatar. Map No. 12, facing this page, which shows
the lines claimed by the two Parties together with the Boggs-Kennedy line, is a striking
illustration - if such were needed - of the extravagant nature of Bahrain's claims with respect to
the delimitation of the maritime areas.
9.13 At the request of their respective Governments, Commander R.H. Kennedy, of the
Hydrographic Department of the British Admiralty, and Mr. S. Whittemore Boggs, the State
Department's Special Adviser on Geography, prepared a "Joint Report Regarding an Orderly and
Equitable Longitudinal Line and Lateral Jurisdictional Lines in the Persian Gulf", dated 16
December 1948 and illustrated by a line drawn on British Chart No. 2837b, entitled "Persian
Gulf Western Sheet" , which was dated and signed by both experts . After a long working
session held in London from 23 November to 16 December 1948, Kennedy and Boggs
recommended to their Governments "the basis of a geographical division of the Persian Gulf... -
for the exploitation of the natural resources of the seabed and subsoil of that area - which they
may wish to propose to some or all of the several states concerned" 3.
1. The principles adopted by Boggs-Kennedy
9.14 The Boggs-Kennedy report, which was prepared in agreement between the two experts, is
based exclusively upon considerati40s of a geographical and technical nature, leaving aside any
political or legal considerations , with a view to making what they called "an orderly and
equitable delimitation of the entire area of the Persian Gulf" 41or, even more precisely, "a fair and
equitable division of the seabed and subsoil areas of the Persian Gulf on scientific principles" . 42
Annexed to the Report are two Appendices: Appendix A, entitled "Description of the Suggested
Median Line and Lateral Lines", and Appendix B, entitled "Definition of Terms and Explanation
of Techniques". It is therefore a technical report, drawn up by experts whose authority was
unanimously acknowledged at the time 43, which did not fail to have an influence on the many
maritime delimitations that were later carried out in the Arabian/Persian Gulf in general, and in
particular in the sector concerning Saudi Arabia, the two Parties to this case, and Iran.
9.15 In this Report, Kennedy and Boggs made no attempt to conceal the numerous difficulties
that they had encountered in performing their task. In particular, they mentioned the inadequacy
of the cartographical and hydrographical surveys in the area, the insufficient knowledge of the
tides and thus the difficulty in making a precise determination of the low-water coastline, and the
various problems related to the presence of numerous geographical features such as islands 44,
islets, rocks, reefs, and the very frequently occurring shoal areas. However, they systematised the
principles that they used, in the following terms: "We have undertaken to apply in the entire
Persian Gulf area the technical principles and procedures for laying down a longitudinal medianline, and lateral lines between contiguous states" , it being understood that these various
dividing lines were "derived from the shores as we find them represented on hydrographic charts
46
at the present time" .
9.16 More precisely, in order to achieve a "fair and just delimitation" of the continental shelf in
the Gulf, the two experts applied the following three principles. First, they used the equidistance
method both for the longitudinal delimitation in the central part of the Gulf and for the lateral
delimitations, notably in what the report calls the "Bahrein area". Second, they constructed the
equidistance line, as a general rule, from the coastline "of the mainland", "disregarding
practically all islands" , and thus all the islets, rocks and reefs and, a fortiori, all the low-tide
elevations detached from the coastline. Third, and finally, the two experts also constructed the
equidistance line by relying upon either the low-water line, to which they gave preference, or
upon the high-water line, depending upon the sector concerned and their degree of knowledge of
such sector.
2. Application of the principles adopted by Kennedy and Boggs
9.17 It will be sufficient here to recall the position taken by the two experts with respect to the
two maritime sectors that are most particularly concerned by the present dispute. These are, first,
the central part of the Arabian/Persian Gulf and, second, the "Bahrein area", with particular
reference to the "Bahrein-Qatar lateral line".
(a) Equidistance and longitudinal delimitation in the central part of the Gulf
9.18 In the view of the two experts the "longitudinal line in the middle of the Persian Gulf" had
to be the "median line", defined as follows:
"The median line, serving as the outer limit of the seabed and subsoil under the jurisdiction
of each coastal state to the south of 29°00'N. latitude (except where modified by mutual
agreement) is the line every point of which is equidistant from the nearest point or points on
opposite shores of the Persian Gulf, measured from the mean low-water coast line of the
'mainland' - disregarding all islands except as noted below" . 48
(b) Equidistance and delimitation in the "Bahrain area"
9.19 In the present case, particular attention should be paid to the recommendations of the
Boggs-Kennedy report with respect to the delimitations in the sector of the Arabian/Persian Gulf
that the two experts referred to as the "Bahrein area" - i.e. for drawing the "jurisdictional lines
surrounding 'Bahrein'" 49 - although the experts took into consideration, without entering into the
substance of the issue (because they were not lawyers), the British decision of 1939 relating to
the Hawar islands. With this important exception, they rightly emphasised the peculiar
characteristics of maritime delimitation in this sector.
9.20 First, they were careful to note the fact - which is probably less true now, though still true to
a certain extent, when one looks at present-day cartography - that "The hydrographic charting in
the entire 'Bahrein area' is inadequate for the purpose of laying down precise water boundaries".
They added immediately thereafter the observation - which still remains pertinent today - that
"The hydrography is exceptionally complicated and difficult because of the numerous reefs and
shoals" . Kennedy and Boggs then drew the consequences from this situation in determining the
basepoints for the equidistance line. While they had dec51ed to give preference for this
construction to "the low-water line of the mainland" , they considered that a different approach
had to be taken in the "Bahrain area". In that area, it was sometimes necessary to construct the
equidistance line from the "high water line of the mainland", taking account of practically no
islands. The Report explains that: "Except in the vic52ity of Bahrein Island it has been found
feasible to use exactly the same baseline for both , namely the lo53water coastline of the
mainland, where charted, disregarding practically all islands" . On the basis of these particular
facts, Kennedy and Boggs put forward three separate delimitations for this "Bahrein area". (i) The Saudi Arabia - Qatar lateral line
9.21 The first delimitation that was dealt with by the two experts in the "Bahrein area" was the
"Saudi Arabia-Qatar Lateral Line". They suggested, in accordance with the previously identified
general principles, that the lateral line between Saudi Arabia and Qatar should "constitute a
median line in the Duhat as Salwa which is equidistant from the nearest points on the low-water
54
coastlines of Qatar and Saudi Arabia" . The line that they proposed appeared satisfactory,
insofar as "There seems to be less uncertainty with regard to the Duhat as Salwa than farther to
the north however, and possibly the Saudi Arabia-Qatar line developed on the chart is fairly
accurate" . This was due to the fact that there were practically no reefs or shoals in the area, in
contrast with the maritime areas lying between Saudi Arabia and Bahrain and between Qatar and
Bahrain. Nevertheless, the Boggs-Kennedy line, 56ke the line laid down in the delimitation
agreement between Qatar and Saudi Arabia , was ultimately constructed from the high water
line because, as the two experts stated, "As the low water line is not marked on any of the above
charts, the high water line has been used in drawing this median line" . 57
(ii) The Saudi-Arabia - Bahrain lateral line
9.22 The second delimitation in the Boggs-Kennedy report concerning the "Bahrein area" is the
"Saudi Arabia-'Bahrein' Lateral Line". The two experts suggested "that the lateral line between
Saudi Arabia and the Bahrein group be the median line which is equidistant from the islands
belonging to Bahrein on the east and from the Saudi Arabian mainland and islands on the west",
it being understood that beyond 26°23'N, "the line continues by connecting successively the
respective intersections of the envelopes of arcs of circles of 12, 15, 18, etc., miles radius drawn
from all points on the low-water coastlines of the two states until it meets the median line in the
Gulf, in approximately 27°07' N. latitude, 50°57' E. longitude" . It is quite clear that the
description of the equidistance line between Saudi Arabia and Bahrain and the determination of
the basepoints for this line are less precise than those of the Saudi Arabia-Qatar lateral line.
Indeed, as the two experts stated:
"Because of the numerous reefs and coral heads, and the lack of clear indication of the low-
water coastlines of the islands and mainland, together with the uncertainty as to the
sovereignty of some of the islands, it is exceptionally difficult to lay down this boundary or
jurisdictional line"59.
Thus, the line proposed in the Boggs-Kennedy report between Saudi Arabia and Bahrain was
only provisional, in the experts' view, the "definite boundary" being subject to fuller
hydrographical surveys.
(iii) The Bahrain-Qatar lateral line
9.23 The last delimitation examined by Kennedy and Boggs in the "Bahrein area" was the
"'Bahrein'-Qatar Lateral Line". As with the other two delimitations that had already been
proposed in this part of the Gulf, the Report recommends using the equidistance method,
allowing "an orderly and equitable delimitation" to be achieved . It suggests as follows:
"that the lateral line between the Bahrein group (including the Hawar Islands) and Qatar be
the median line which is equidistant from the mainland of Qatar on the east and the islands
belonging to Bahrein on the north and west, beginning at the 'triple point' (with Saudi Arabia)
which is approximately sixteen miles south of Ras al Bar on Bahrein island, and extending
northward to a point in approximately 26°00' N. latitude (which is approximately 10 miles
from Bahrein island and Qatar); continuing thence as a straight line to the point of
intersection of the envelopes of arcs of circles of 12 miles radius from the low-water
coastlines of the Bahrein island group and Qatar, in approximately 26°15' N. latitude, 50°55'
E. longitude; thence the line continues by connecting successively the intersections of the
respective envelopes of arcs of circles of 15, 18, 21, etc. miles radius from the low-water coastline of the two states until it meets the median line in the Gulf, in approximately 27°04'
N. latitude, 51°07' E. longitude" 61.
9.24 After giving this general description of the proposed line of delimitation between Bahrain
and Qatar, the experts indicated, in the Confidential Note that followed, the basepoints that they
had adopted for the construction of the equidistance line. They noted that:
"On no available chart or map is the low-water line shown southward of latitude 26°07' N.;
the high-water line was therefore used for the development of the lateral line as far north as
latitude 26° N., whence it is suggested that a straight line be drawn to the point in 26°15' N.
latitude, 50°55' E. longitude (approximate), where the envelopes of arcs of 12 miles radius
from the respective low-water lines of Bahrein Island and Qatar intersect" . 62
This means that the line proposed by Kennedy and Boggs between Qatar and Bahrain consists of
three segments. The first segment links the "triple point" with Saudi Arabia to a point located on
the 26°00'N line of latitude. It is a median line constructed from the high water line on the
respective coasts of Qatar and Bahrain. The second segment links by a straight line the point
located on the 26°00'N line of latitude to a point located approximately at the intersection of the
26°15'N line of latitude with the 50°55'E line of longitude. It will be noted that this straight-line
segment clearly cuts across Fasht al-Azm. Finally, the third and longest segment links the latter
point to a point located on "the longitudinal line in the middle of the Persian Gulf" at 27°04'N,
51°07'E. This portion of the dividing line proposed by the two experts is an equidistance line
constructed "from the low-water coastline of the two states", i.e., on Qatar's side, from the low-
water line on Ras Rakan and, on Bahrain's side, from the low-water line on Muharraq.
9.25 The Boggs-Kennedy Report concludes its discussion of the Bahrain-Qatar lateral line by
stating that: "As in the case of the Saudi Arabia-Bahrain line, and for the same reasons, it is
suggested that the verbal description given above be adopted as the basis for negotiations". The
two experts therefore considered that it was just as difficult to draw a dividing line between
Qatar and Bahrain as between Saudi Arabia and Bahrain, "for the same reasons", which were the
presence "of the numerous reefs and coral heads", "the lack of clear indication of the low-water
coastline63of the islands and mainland" and "the uncertainty as to the sovereignty of some of the
islands" .
9.26 The dividing line that was thus proposed on 16 December 1948 in the Boggs-Kennedy
Report as "the basis for negotiations" for the delimitation of the continental shelf between Qatar
and Bahrain was based, as was stressed by the authors themselves, on exclusi64ly geographical
and technical considerations, disregarding any political or legal factors . It was of course drawn
by the two experts on the basis of the cartographical and hydrographical knowledge available to
them at the time. But it must be emphasised, as its authors did strongly on several occasions, in
language that is strikingly similar to the language used in the present-day law of maritime
delimitation, that the line was drawn with a vie65to making "an orderly and equitable
delimitation", "a fair and equitable division" . It is noteworthy that the common-sense principles
identified by Kennedy and Boggs on the basis of a purely objective analysis, are to a great extent
to be found in the maritime delimitation agreements that have been entered into by the States in
the region. The Boggs-Kennedy Report, which shows both the lasting difficulties that have to be
faced in delimiting the maritime areas lying between Qatar and Bahrain, and the reasonableness
of the lines that were drawn by Kennedy and Boggs, cannot be ignored.
B. A significant practice: the maritime delimitation agreements entered into by the Parties
to the present case
9.27 Although not applied as such in the seabed delimitation agreements entered into with their
neighbours by the Parties to the present case, the Boggs-Kennedy principles were obviously an
element taken into consideration since the principle of the equidistance based on the mainland-
to-mainland method has been followed in the region on several occasions. 1. Bahrain - Saudi Arabia, seabed boundary agreement dated 22 February 1958
9.28 A map illustrating the Bahrain-Saudi A66bia agreement may be found as Map No. 2 in the
Qatar Counter-Memorial, facing page 38 . In the southern part of the delimitation line the
mainland-to-mainland method was used for the selection of basepoints namely for turning points
1, 3, 4, 5 and 6. In particular the Bahraini islets of Al-Hool and Qassar were both disregarded.
On the other hand, the islands of Zakhnuniya and Umm Al-Nas'san, both of which are of some
importance and lie close to the respective mainland coasts of the two Parties, were selected as
basepoints for turning points 2 and 7, respectively. Further north, other circumstances were taken
into consideration: the allocation of the Lubainah islands in the middle area, the presence of
shoals on both sides of the line and the Bu Saafa hexagon for which a joint revenue arrangement
was established.
2. The Qatar-Saudi Arabia Agreement on determination of land and sea boundaries dated
4 December 1965
9.29 The text of67he agreement dated 4 December 1965 between Qatar and Saudi Arabia is
annexed hereto . According to that agreement:
"Article (1) Dohat Salwa shall be divided equally between the two countries by the method
of equidistance points from both shores. As regards the curves a median line, as much
straight as possible, shall be taken".
"Article (3) It shall be entrusted to an internationally known surveying company to carry out
the survey and demarcate the points and boundary lines between the two countries physically
on ground in compliance with the contents of this agreement and to prepare a map showing
the land and sea boundaries between the two countries as well as any other relevant
descriptions".
In accordance with Article 1 of the Agreement the islet of Unaibir on the Saudi side has not been
taken into account.
3. The Abu Dhabi-Qatar Agreement on the settlement of seabed boundary and ownership
of islands dated 20 March 1969
9.30 The course of this boundary is illustrated on Map No. 13, facing page 330 68. The boundary
consists of three segments joining four turning points. Point A is very close to a mainland-to-
mainland equidistance tripoint between Qatar, Abu Dhabi and Iran. It was first selected between 69
Qatar and Abu Dhabi and adopted a few months later as point 6 in the Qatar-Iran agreement .
Contrary to the Boggs-Kennedy approach, the important coastal island of Sir Bani Yas on the
Abu Dhabi side was ignored, and contrary to the assumptions of the U.S. Department of State
Geographer 70, the shoals on the Abu Dhabi side were not taken into account for the
determination of that tripoint. At the southern extremity of the delimitation, point D can also be
considered to be equidistant from the two mainland coasts.
9.31 The two intermediary points were selected on other grounds: point B was located on the Al
Bunduq oil field in order to share its resources. Point C however is marginally closer to the
mainland of Qatar (38.2 miles from Ras al-Alaj) than to that of Abu Dhabi (41 miles from Jabal
Dhanna). As to the relevant segments, when one compares segment B-C to the Boggs-Kennedy
line, the former is slightly more favourable to Qatar, placing C a few miles south of the Boggs-
Kennedy line. But one has to remember that the Boggs-Kennedy line was influenced by the Abu
Dhabi off-lying island of Sir Bani Yas, which has been ignored in the delimitation agreement. As
a matter of fact, segment B-C roughly coincides with an equidistance line drawn between the
mainlands of the two countries. But segment C-D is slightly less favourable to Qatar than the
mainland-to-mainland equidistance line. In any event, the two segments B-C and C-D do not
take into account the islands and low tide elevations along the respective coasts.
4. The Iran-Qatar boundary line dividing the continental shelf dated 20 September 19699.32 Map No. 13, illustrating the Iran-Qatar delimitation agreement dated 20 September 1969, is
71
to be found facing this page .
9.33 It is generally accepted that the Iran-Qatar continental shelf boundary is based on the
mainland-to-mainland equidistance principle. All islands, rocks, reefs, and low-tide elevations
were ignored in the delimitation. The boundary was established so as to be equidistant from the
nearest points on the coasts of the mainland territories of the parties. In particular large islands
were ignored: on the Iranian side Jazirat Shaikh Shuaib, Hinderabi and Qeys, and on the Qatari
side Halul.
5. The Bahrain-Iran continental shelf agreement dated 17 June 1971
9.34 Map No. 13, illustrating 72e Bahrain-Iran continental shelf agreement dated 17 June 1971, is
to be found facing page 330 .
9.35 It would appear that in this case the mainland-to-mainland equidistance method may not
have been fully applied. Although the equidistance method seems to be generally considered to
be the method adopted in this case, it is clear that point 4 is not equidistant, being closer to Iran
than to Bahrain. However, this point was not chosen because of its own merits but rather because
it coincided with the terminal point of the previous Bahrain-Saudi Arabia agreement. As for
point 1, it was left undefined, pending determination of the Qatar-Bahrain-Iran tripoint, which
necessarily depends upon the outcome of the present case. Point 2 is almost equidistant and point
3 is equidistant on British chart 2847, if the basepoints are the island of Muharraq on the
Bahraini side and the island of Jabrin (or Nakhilu whichever is the closest) on the Iranian side . 73
9.36 Qatar takes the view however that islands such as Muharraq can reasonably be considered
as part of the mainland of Bahrain. Hence the same approach is in equity to be applied to the
island of Jabrin on the Iranian side. In any event, low-tide elevations (such as Fasht al Jarim on
the Bahraini side) were clearly not used as basepoints.
C. The provisional equidistance line, constructed on the basis of the mainland-to-mainland
method: a claim that is well-suited to the geographical circumstances of the present case
1. The mainland-to-mainland method
9.37 At the very heart of this method of delimiting maritime areas lies, by definition, the concept
of a "mainland", i.e. a large piece of land, or continental mass 74. This idea has always been
accepted by those 75o, from a technical or a legal point of view, have dealt with these issues in
the relevant area . It is quite clear that the concept of "mainland" applies76o the Qatar peninsula,
which should also be understood as embracing the main Hawar island . That island is a natural
extension of the landmass of Qatar . The concept of "mainland" may also be applied to Bahrain,
although its application is more difficult, given the exclusively insular nature of Bahrain. This is
why, in a desire that both Parties to the present case should be treated equally, Qatar considers
that for purposes of this maritime delimitation, Bahrain should be taken into account as a
continental mass consisting not only of the main Bahrain island, but also of the islands that are
relevant for the present delimitation, which lie off the north-eastern and eastern coasts of the
78
main Bahrain island, i.e., the islands of Muharraq and Sitrah .
9.38 The concept of "mainland" being defined in this way, the application of the mainland-to-
mainland method in the construction of the provisional equidistance line between Qatar and
79
Bahrain, in both the southern sector and the northern sector, has two main characteristics. First,
it takes no account of the islands (except for Hawar on the Qatari side and Muharraq and Sitrah
on the Bahraini side, as mentioned above), islets, rocks, reefs or low-tide elevations lying in the
relevant area . Second, the concept of "mainland" and the implementation of the mainland-to-
mainland method result in the provisional equidistance line being constructed from the high
water line. Both aspects of this method must be analysed separately, as follows. (a) The mainland-to-mainland method disregards islands, islets, rocks, reefs and low-tide
elevations
9.39 In its Counter-Memorial, Qatar has already demonstrated the appropriateness of this method
for drawing the provisional median line in the southern sector, but the demonstration is equally
valid for the northern sector, since the basepoints used for the construction of the line are, at least
in some cases, the same for both sectors. The mainland-to-mainland method is quite naturally
applicable when, as in the present case, the maritime areas to be delimited are "dotted with a
great number of small islands, islets, rocks, reefs and shoals" . First of all, from a strictly
technical point of view, a line taking these numerous maritime features into account would be
difficult to construct, and in this regard Bahrain's inability to define the exact basepoints for the
dividing line that it claims is extremely telling. Moreover, a line constructed in the manner
proposed by Bahrain would inevitably lead to a clearly unreasonable and inequitable result since
it would lie alongside Qatar's coast in violation of the principle of non-encroachment and would
82
not respect the security interests of Qatar .
9.40 In such circumstances, as has been shown by both consistent jurisprudence and State
practice, when an equidistance line is being drawn, be it provisional or final, adjudicated or
negotiated, no reliance can be placed upon such maritime "features", which clearly have a
"disproportionally distorting effect" . It is sufficient to recall that in its Judgment of 12 October
1984 in the Gulf of Maine case, the Chamber spoke out against a "method which takes tiny
islands, uninhabited rocks or low-tide elevations, sometimes lying at a considerable distance
from terra firma, as basepoints for the drawing of a line intended to effect an equal division of a
given area" 84. It will also be recalled that in the practice followed by the States in the region, and
notably by the Parties to the present case, maritime "features" of this kind have not normally
been taken into consideration . Thus, it has been noted that "the Iran-Qatar agreement of 1969 is
a case in point, using a ma86land-to-mainland equidistant line and ignoring islands, rocks, reefs,
and low-tide elevations" . It is well established in international law that maritime "features"
falling within the above categories, which may serve as basepoints for determining the course of
the outer limit of territorial waters are not appropriate basepoints for the construction of a
87
dividing line, in particular when the line is an equidistance line .
9.41 This demonstration, which has been made by Qatar for the southern sector, may, as already
88
noted, be transposed to the northern sector . Indeed, the equidistance line claimed by Bahrain in
the southern sector r89ies, on Bahrain's side, on a collection of islands, islets, rocks, reefs and
low-tide elevations . In drawing its line to the south of the "Zubarah Region", Bahrain takes into
account "Hadd Janan" (if that "feature" exists separately from Janan), Janan, the Hawar islands
and various low-tide elevations such as Fasht Bu Thur and Qita'a el Erge. In drawing its line to
the north of the "Zubarah Region", Bahrain relies - at least if the very rudimentary construction
that it produced in its Memorial is to be believed - on Qit'at Jaradah and Fasht Dibal. As for the
equidistance line claimed by Bahrain in the northern sector, it has been drawn exclusively, on the
Bahraini side, from Fasht Dibal . This is true both of the definitive first segment of the line,
linking points O and R, and of the provisional equidistance line which is the second segment of
the same line, linking point R to the point of intersection of that line with the median line
established in the central part of the Arabian/Persian Gulf by the continental shelf delimitation
agreement concluded on 20 September 1969 between Qatar and Iran.
9.42 It should be emphasised that the above analysis by Qatar - according to which the islands,
islets, rocks, reefs and low-tide elevations that might be used as basepoints for determining the
outer limit of the territorial sea are not necessarily basepoints to be used for constructing a
dividing line - is perfectly consistent with Qatar's general position. First, it corroborates the
demonstration in Qatar's Counter-Memorial which established that Fasht Dibal (even if it could
be appropriated, which Qatar has shown is not the case), cannot possibly be a relevant basepoint
for effecting an equitable delimitation in the northern sector. Similarly, Bahrain cannot rely onFasht al-Azm, which is at most a low-tide elevation that does not naturally form an integral part
of Sitrah island . Second, the above analysis is in perfect harmony with the determination of the
basepoints for the provisional equidistance line proposed by Qatar in the northern sector : on 92
Qatar's side, this line ignores the islet of Ras Rakan, which would inevitably give Qatar an
advantage at the expense of Bahrain, but which is clearly no more than a "minor geographical
feature"; on Bahrain's side, the provisional equidistance line proposed by Qatar relies on the
relevant points on the island of Muharraq that Qatar considers as part of the Bahrain
"mainland" .93
(b) The mainland-to-mainland method is based on the high-water line
9.43 According to a well-established customary rule that has been codified by both Article 3 of
the 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone and Article 5 of the
1982 United Nations Convention on the Law of the Sea, "the normal baseline for measuring the
breadth of the territorial sea is the low-water line along the coast as marked on large-scale charts
94
officially recognized by the coastal State" . The ratio legis of this rule was clearly identified by
the International Court of Justice in its Judgment of 18 December 1951 in the Norwegian
Fisheries case, in a dictum that is often cited:
"... for the purpose of measuring the breadth of the territorial sea, it is the low-water mark as
opposed to the high-water mark, or the mean between the two tides, which has generally
been adopted in the practice of States. This criterion is the most favourable to the coastal
State and clearly shows the character of territorial waters as appurtenant to the land
territory" .
The fact that the low-water line is "the normal baseline" for determining the outer limit of the
territorial waters and thus the various maritime areas under national jurisdiction does not
necessarily mean that the same low-water line is the baseline from which an equidistance line
must be constructed. Even if it is true that equidistance lines are frequently drawn from the low-
water line, this is because the geographical circumstances of the delimitation in question have
allowed an equitable result to be achieved. In Qatar's view, this is not a rule of general
application, and the use of the high-water line is justified on both technical and legal grounds,
precisely in order to achieve an equitable delimitation.
(i) Technical arguments in favour of the high-water line
9.44 Technical considerations necessarily intervene in the choice between the low-water line and
the high-water line as a baseline for the construction of the equidistance line. While the
determination of the low-water line is a question of hydrography, the determination of the high-
water line is a question of topography. Whereas the low-water line is by definition precarious,
subjective, or even arbitrary, insofar as it may vary with time, the high water line can be drawn
in a sure and objective way, insofar as it is relatively invariable. As A.L. Shalowitz has put it:
"Both to the hydrographer and the topographer, the low-water line is one of the most
uncertain and difficult features to delineate. Unlike the high-water line, it is actually visible
but momentarily to the topographer. If located by the hydrographer it must generally be
accomplished when the height of the tide is well above low water, making it difficult to
develop readily its many irregularities" 96.
In these circumstances, an expert has systematised the problem in the following terms:
"Although it is general practice in many countries to depict on official nautical charts the low
water line (equivalent to the low-water mark), which often corresponds to the local chart
reference datum, this is far from being the case worldwide. Often the scale is too small to
allow for both the normal coastline (mean high water line) and the low-water line to be
depicted separately, but most frequently the data available on local tides are insufficient or
inadequate to form the basis for the tracing of separate lines. In these cases, the 'coastline' on the chart is often directly transferred from corresponding large scale landmass, which today
in most cases is based on photogrammetry. Hence, on the chart the low-water line and the
geode97c and hydrographic coastline coincide, although they may be different in actual
fact" .
9.45 With respect to the maritime areas lying between Qatar and Bahrain, there is every reason to
believe that even the most recent surveys are not absolutely reliable. First, this is an area which
is of only marginal interest for maritime navigation, which therefore does not require systematic
surveys to be made. Second, the nature of the seabed and the presence of low-tide elevations
make the hydrographer's task particularly difficult. Using only the British marine charts, which
are the most reliable, several different situations may be seen to exist. In some sectors, the low-
water line and the high-water line may more or less coincide, being the same line on the chart
even if not in actual fact. In other sectors - which is the most frequent case - there is a difference
between the low-water line and the high-water line, to the degree of accuracy of the chart in
question, since the tide, which is in the region of 1-1.4 metres, is great enough to have significant
effects, at least locally.
9.46 It therefore appears that in these circumstances, with a view to both accuracy and simplicity,
and given the particular situation of the maritime area to be delimited in the present case, it is
safer to rely on the high-water line rather than on the low-water line in order to determine the
course of the provisional equidistance line, not only in the southern sector, as Qatar has already
98 99
shown , but also in the northern sector . In other words, the observation of Kennedy and Boggs
in 1948 that "In large areas of the Persian Gulf it is impossible to chart the low water line until
more detailed surveys are made" 100to a great extent remains true today with regard to the
maritime areas lying between the Parties to the present case.
(ii) Legal arguments in favour of the high-water line
9.47 As a preliminary remark, it should first be noted that the subjectivity inherent in the
determination of the low-water line is acknowledged by the Conventions codifying the law of the
sea. Article 3 of the 1958 Convention on the Territorial Sea and the Contiguous Zone and Article
5 of the 1982 Convention on the Law of the Sea 10, when they provide that the "normal baseline"
used for measuring the breadth of the territorial sea must be the "low-water line along the coast",
point out that this102 the low-water line "as marked on large scale charts officially recognized by
the coastal State" . This expression is significant, since it underlines the uncertainties of the
low-water line. Such a well-informed expert as Mr. P.B. Beazley has mentioned three of such
uncertainties 103. First, in the absence of adequate marine charts, "a hydrographic survey will
104
almost certainly be necessary ", which means a long and expensive operation; second, "There
is no internationally agreed specific level for universal use, chiefly because there is no single
formula that will produce a satisfactory definition applicable to all tidal regimes. As a result, the
low-water line used by one country will not necessarily be the same as that chosen by
105
others... "; and third, "Differences between levels of chart datum... may... be very significant
where dealing with overlapping claims. Where a coastline is formed by a gently sloping shore, or
where there are rocks or banks close offshore which may just cover or just uncover at low-water,
a small change in choice of level may result in a considerable change in the position of the
territorial sea baseline106". The difficulties which arise in the determination of the low-water line
are obvious in shallow maritime areas in which maritime "features" are scattered, such as the
areas lying between Qatar and Bahrain. Moreover, they are particularly serious since, as noted by
Mr. Beazley "it is essentially a delimitation, rather than a baseline, problem" 107.
9.48 Authors who have analysed the question of the baselines from which maritime boundaries
are constructed, and in particular equidistance lines in State practice and the jurisprudence, have
often noted that, as one author has put it, "Although the low-water line is considered as 'normal',
108
there are numerous instances in which other kinds of basepoints have been used" . Theseauthors are thus referring, more often than not, to straight baselines drawn along a deeply
indented coast or one where there is a fringe of islands in its immediate vicinity and where, in a
manner of speaking, such baselines are projected forward from the coastline of the mainland. But
it must be borne in mind that the opposite hypothesis is also possible and that, for reasons of
equity, it has been accepted by the jurisprudence. The baseline from which the dividing line and,
more particularly, the equidistance line is constructed may indeed be brought inwards from the
coastline of the mainland, i.e. from the low-water line. In its first Judgment on the subject, in the
North Sea Continental Shelf cases, the International Court of Justice held that, in order to
determine the course of a maritime boundary, it was not only islets or rocks and, a fortiori, reefs
or low-tide elevations that could be disregarded, but also "the presence of... minor coastal
projections" in order to avoid their "disproportionally distorting effect" 10. Since the Court thus
recognises that, in order to achieve an equitable delimitation, it is entitled not to take into
consideration a slight projection on the coast of the mainland and to make a simplification of the
coastline by a kind of smoothing or planing, it is a fortiori entitled to ignore the low-water line.
This would be a means for the Court to effect an objective delimitation that would be technically
suited to the geographical and hydrographical circumstances of the area in question. As the
Chamber stressed in the Gulf of Maine case, "the choice of method to be used is essentially
dependent upon geography" 110. Moreover, it bears repeating that the problem in the present case
is a problem of delimitation, governed by considerations of equity, and not a problem of
baselines for territorial waters, where there is no role for the application of equitable principles.
Thus, all the distorting effects of the coastline are disregarded, and both Parties are treated on a
strictly equal footing.
9.49 These arguments, both technical and legal, in favour of application of the high-water line in
the present case, are confirmed by the conduct of the Parties. As far as Qatar is concerned, its
position with regard to the high-water line is consistent not only with its prevailing conventional
practice 11, but are also with the closing line that it has proposed in the present case for
separating the northern and southern sectors, which links point RK, located on the high-water
line of the northern tip of the Qatar peninsula, to point MQ, located on the high-water line on the
north of Muharraq. As far as Bahrain is concerned, the identification of the basepoints used for
the construction of the equidistance line that it claims (which in any event is devoid of any legal
basis112) has remained extremely vague. Moreover, Bahrain has sometimes used the high-water
113
line in the maritime delimitation agreements that it has concluded with neighbouring States , at
least for certain segments of the dividing lines established by such agreements. Finally, it should
be added that use of the high-water line in selecting the basepoints used for constructing the
dividing line is not unknown in the practice followed by other States bordering on the
Arabian/Persian Gulf, notably Iran 11.
2. Description of the provisional equidistance line, constructed on the basis of the
mainland-to-mainland method
9.50 As has been noted above, the provisional equidistance line proposed by Qatar is based on
the mainland-to-mainland method 11. It bears repeating that this method is based on two criteria:
first, it does not take into account any islands (with the exception of the main Hawar island on
Qatar's side and Muharraq and Sitrah on Bahrain's side), islets, rocks, reefs or low-tide
elevations; second, it is applied from the high-water line. This line is shown on Map No. 14,
facing this page, and has been constructed on the basis of the nautical charts of the British
Admiralty that are in current use (notably No. 2886) and on American nautical charts (notably
Nos. 62420, 62530 and 62550). These charts are of course of a far higher quality than the
cartographic documents that were available immediately after the Second World War, when the
British decision of 23 December 1947 was taken, or when the Boggs-Kennedy Report of 16
December 1948 was written. However, it must be borne in mind that these charts may stillcontain a few residual uncertainties as to the geodetic connection of the various national systems
in the region.
9.51 In the southernmost part of the southern sector, the provisional equidistance line does not lie
very far from the S1-L section of the maritime boundary claimed by Qatar (see, Map No. 14,
facing this page). The starting point of the line of delimitation of the continental shelf between
Saudi Arabia and Bahrain, resulting from the agreement of 22 February 1958, must, when it is
constructed, be quite close to this provisional equidistance line. This is indeed the case, allowing
for the uncertainties arising out of the earlier topography. Then, in the central and northern parts
of the southern sector, the provisional equidistance line turns towards the north, to meet the
closing line from RK to MQ at point V. Point V, the coordinates of which are 50°55'10"E and
26°13'38"N, is located approximately 29,500 metres (to be precise, 29,504 metres) from point
MQ and 34,000 metres (to be precise, 34,011 metres) from point RK, i.e. 11,350 metres (to be
precise, 11,356 metres) to the west of point N, which is the point of intersection of the line
claimed by Qatar: S1, L, NSLB, BLV, 2(2B).
9.52 At low tide the provisional equidistance line cuts through Fasht al-Azm, around 4,000
metres from its eastern extremity, and crosses the low-tide elevation of Qit'at Jaradah slightly to
the south of point V. To the south of Fasht al-Azm, this line leaves on Qatar's side only shoals
that are awash, all the rocks and islets that are uncovered at low-tide being on Bahrain's side. It
should also be noted that to the south of Fasht al-Azm, the choice of the low-water line on the
mainland (excluding the islets, reefs and low-tide elevations), rather than the high-water line,
would have had only a very negligible effect on the course of the line. The situation would be
quite different to the north of Fasht al-Azm. Both in the northern part of the southern sector, in
the neighbourhood of point V on the RK-MQ closing line, and in the whole of the northern
sector up to the intersection of the provisional equidistance line with the maritime boundary
between Bahrain and Iran, at point W, the choice of the low-water line would have had
significant consequences on the course of the line. It would have shifted the line westwards, and
thus in a direction unfavourable to Bahrain, by only about 50 metres at the level of the RK-MQ
closing line but by about 4,000 metres at the level of the maritime boundary between point W
and a point close to point 2(2B), the total surface area involved being 96.78 square miles or
331.94 square kilometres. This shifting of the line is explained by the presence of a line of reefs
lying at a distance off the coast of Qatar, between Ras Ushairiq and Ras Rakan.
9.53 In the northern sector, the provisional equidistance line appears as a sequence of segments
in almost a straight line between point V on the RK-MQ closing line and point W on the
maritime boundary with Iran, located between points 2(2B) and 2(2Q). Point W, the
geographical coordinates of which are 51°09'05"E and 27°02'22"N, lies approximately 5,328
metres to the east of point 2(2B), the geographical coordinates of which are 51°05'54"E and
27°02'47"N 116. It should moreover be noted that this provisional equidistance line in the northern
sector touches the western edge of the low-tide elevation of Fasht Dibal.
Section 3. The Adjustments made by Qatar to its Provisional Equidistance Line
A. The adjustments made to the provisional equidistance line in the southern sector
9.54 In its Counter-Memorial, Qatar has already shown that in the southern sector the provisional
median line had to be adjusted westwards in order to take into account the special or relevant
geographical and historical circumstances pertaining to the maritime areas to be delimited
between Qatar and Bahrain 11. The following discussion will be limited to the main points of that
demonstration.
1. The special or relevant geographical circumstances
9.55 The provisional median line must first be modified and shifted westwards, in favour of
Qatar, for geographical reasons. In its written pleadings, Qatar has always argued that there is a"disparity or disproportion between the respective lengths of the coasts of Qatar and Bahrain"
118
and that this fact cannot be ignored in the maritime delimitation before the Court . Bahrain, on
the other hand, contends that "there is no significant disparity between Bahrain's and Qatar's
respective coastal lengths", concluding that "there is therefore no justification for adjusting the
equidistance line to be drawn in the southern sector" 119.
9.56 This is a strange contention, that can be rejected immediately on the face of the maps. It is
hardly necessary to recall that the eastern coast of Bahrain, measured in accordance with its
general direction and without taking into account the islands, islets, rocks, reefs, and low-tide
120
elevations , is, roughly speaking, a straight line linking Ras al Barr in the south to the northern
end of Muharraq, its length being approximately 29.9 nautical miles or 55.5 kilometres. The
western coast of Qatar, measured in accordance with the same parameters, is a straight coastline
linking Ras al-Uwaynat in the south to the northern tip of the Qatar peninsula (disregarding Ras
Rakan), its length being approximately 47.6 nautical miles or 88.2 kilometres. The ratio between
the respective lengths of the Parties' coastlines is thus 1.59 to 1 in favour of Qatar. In this regard
it is possible to transpose word for word to the present case the Chamber's analysis in the Gulf of
Maine case in its Judgment of 12 October 1984, according to which:
"... it is in the Chamber's view impossible to disregard the circumstance, which is of
undeniable importance in the present case, that there is a difference in length between the
respective coastlines of the two neighbouring States which border on the delimitation area.
121
Not to recognize this fact would be a denial of the obvious" .
This statement by the Chamber is all the more significant in that, in the Gulf of Maine case, the
ratio of the coastal lengths of 1.38 to 1 in favour of the United States, in which the Chamber saw
"a subst122ial disproportion", constituted "a valid ground for correction, more pressing even than
others" . The ratio in that case was thus much smaller than the ratio in the present case in
favour of Qatar. In refusing to acknowledge this fact, Bahrain is simply denying the obvious.
2. The special or relevant historical circumstances
9.57 Throughout the present dispute, Qatar has always argued that the 1947 line is a factor that
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cannot be disregarded in determining the maritime boundary between Qatar and Bahrain .
Bahrain, here again denying the obvious, has gone to considerable lengths to try to demonstrate
that "The British 1947 line is irrelevant to the delimitation which the Court is requested to
effect" 12, and it concludes its argument by stating that "Qatar in fact asks the Court to hold that
modern international law requires a single maritime boundary which, by a miraculous and
unexplained coincidence, is supposed to be identical to a seabed division proposed by Britain
fifty years ago upon bases, and for reasons, which no one can articulate" 125.
126
9.58 Qatar has already responded in detail to Bahrain's argument in this regard . There is no
need to go over this ground again, but it should simply be pointed out just how inconsistent
Bahrain's position is. On the one hand, Bahrain argues that a line that was to delimit the sea-bed
in 1947 could not be based on the "concepts and rules of contemporary international law" 127,
while on the other hand it adjusts the course of the equidistance line that it claims in the northern
sector by shifting it far to the east, relying on pearl fisheries that, for the most part, have been
defunct for over half a century 128. In fact the reason why Bahrain wants to ignore the 1947
British line lies in the fact that, along the greater part of its course, that line categorically
disqualifies the line submitted by Bahrain to the Court. As will be recalled, the British line was
determined "in accordance with equitable principles", and its construction was that of "a median
line based generally on the configuration of the coast-line of the Bahrain main island and the
peninsula of Qatar" 129. This means that, in accordance with Qatar's position, the 1947 line, just
like the Boggs-Kennedy line, takes no account of the islands, islets, rocks, reefs 130low-tide
elevations, and is based on the high-water line of the main Bahrain island .9.59 Qatar must recall that it is only that part of the 1947 line that links points L and BLV that is
relevant in the present case 13. First, the segment of the line which links points L and Q, forming
a semi-enclave around the Hawar islands, is not to be taken into consideration, because of Qatar's
132
title to those islands . Second, the most southerly segment of the 1947 line, between points Q
and M, is not to be taken into consideration either, since point M encroaches upon the rights of
Saudi Arabia at the mouth of the Dawhat Salwa. Therefore, for reasons relating to non-
encroachment upon the rights of third States and also for reasons of simplification and clarity of
the delimitation in this area, the starting-point of the line claimed by Qatar in the southern sector
must correspond to point 1 of the dividing line estab133hed by the agreement entered into on 22
February 1958 between Bahrain and Saudi Arabia . In addition, the first segment of Qatar's line
must therefore be a straight line linking points S1 and L. The adjustment of the provisional
median line to coincide with the 1947 line as defined above, i.e., from point L up to its terminal
point BLV, complies with the fundamental norm of the present-day law of maritime delimitation.
The dividing line must be drawn in application of equitable principles, taking into account all the
special or relevant circumstances, in order to achieve a reasonable and equitable result. As Qatar
has demonstrated, this was already the aim of the British authorities when, on the basis of the
Truman Proclamation and of the notion of equitable principles, they drew the 1947 line 134.
B. Adjustments to the provisional equidistance line in the northern sector
9.60 The provisional equidistance line, as constructed above on the basis of the mainland-to-
mainland method, without taking into account the islands, islets, rocks, reefs and low-tide
elevations, and relying on the high-water line, is as follows in the northern sector. It is the line
running from the point of intersection of this provisional equidistance line with the RK-MQ
closing line up to its point of intersection with the boundary laid down in the central part of the
Arabian-Persian Gulf in the agreements entered into by Iran with Qatar on 20 September 1969
135
and with Bahrain on 17 June 1971 . This line, in the northern sector as in the southern sector,
must be shifted westwards because of the special or relevant circumstances in the present case
which, in both sectors, are both historical and geographical. The equitable nature of the
adjustment made in the northern sector is confirmed by application of the proportionality test.
1. The reasons for the adjustment made by Qatar to the provisional equidistance line in the
northern sector
(a) The special historical circumstances justifying the first section of Qatar's line, from N to
BLV
9.61 In its written pleadings, Qatar has argued that the first portion of the single maritime
boundary that it claims in the northern sector should coincide with the final part of the 1947 line,
beyond the area where Qatar and Bahrain have directly opposite coasts, linking points N, NSLB
and BLV 13. Point N (50°48'31"E and 26°15'02"N) lies at the intersection of the line laid down
by the 1947 British decision and of the RK-MQ closing line, which is the southern limit of the
delimitation area in the northern sector. Points NSLB (50°49'48"E and 26°21'24"N) and BLV
(50°57'30"E and 26°33'35"N) are two points on the 1947 line, which are turning points on
Qatar's line. In particular, point BLV is a real anchor point, and is a highly significant
circumstance in the maritime delimitation between the two Parties to this case: it is both the end
point of the 1947 line and the starting point of the second section of Qatar's line.
9.62 With respect to this first section of Qatar's line, from N to BLV, which coincides with the
1947 line, Bahrain has not failed to make the same criticisms as those that it had already made
with respect to the same line between points L and N in the southern sector. Bahrain adds that
"the points NSLB and BLV bear no relationship whatever to the coastal geography... In short, ...
the segment of the boundary cl137ed by Qatar to the south of BLV has no known raison d'être,
justification or explanation" . Qatar has already shown that there is no foundation for Bahrain'sobjections , and it therefore suffices to refer to the preceding discussion and to add the
following two observations.
9.63 First, Bahrain cannot ignore the existence of the 1947 line. This is, above all, a special
circumstance for the first segment of Qatar's line, delimiting the territorial waters, which links
139
point N to a point located just beyond point NSLB and, beyond that point, a relevant
circumstance for the delimitation of the continental shelf and the superjacent fishing zone. The
1947 line is the raison d'être for the shifting westwards of the provisional equidistance line,
which is itself constructed on the basis of coastal geography.
9.64 Second, there is evidence that the Parties have relied upon the 1947 line between points N,
NSLB and BLV, corresponding to the first section of Qatar's line in the northern sector, for the
operating limits of their offshore petroleum activities 14. As was pointed out by the International
Court of Justice in its judgment of 24 February 1982 in the case concerning the continental shelf
between Libya and Tunisia, the line of the concessions "which was tacitly respected for a
number of years... does appear to the Court to constitute a circumstance of great relevance for the
delimitation" 141. The fact that the 1947 line has been taken into account in the Parties' petroleum
operations in the N-NSLB-BLV area confirms the appropriateness of this segment of the line as
the first section of Qatar's proposed maritime boundary in the northern sector.
(b) The relevant geographical circumstances justifying the second section of Qatar's line,
from BLV to 2(2B)
9.65 Qatar has argued that the second section of the line that it claims in the northern sector
142
should link point BLV, the end point of the 1947 line, to point1432B) , and that its construction
should be based on the modified perpendicularity method . The two stages of its
implementation will be briefly recalled here 144. As a first stage, Qatar drew a strict perpendicular
from BLV, the basepoint of which, on the RK-MQ closing line, is point R (50°52'28"E and
26°14'12"N) and the end point of which intersects the boundary laid down by the agreement 145
entered into in 1971 between Bahrain and Iran at point S (51°05'12"E and 27°03'04"N) . Then,
as a second stage, Qatar rotated the strict perpendicular R-BLV-S slightly eastwards and thus in
favour of Bahrain. This involved a shift from point S to point 2(2B), the easternmost turning
point defined by coordinates on the dividing line laid down by the 1971 Bahrain/Iran
146
agreement . The result is that the foot of the modified perpendicular from 2(2B) to BLV on the
RK-MQ closing line was in turn shifted slightly westwards, from point R to point T (50°51'59"E
and 26°14'18"N). As may be seen from Map No. 15 facing this page, and as Qatar has already
pointed out, the shifting effect - 800 metres at the starting point of the construction (R-T) and
1300 metres a147ts end point (S-2(2B)) - is practically negligible at the scale of the
construction .
9.66 This line, which not only in itself but also, a fortiori, if it is compared 148h Bahrain's claims
in the northern sector, is technically simple and leads to an equitable result , has nevertheless
been subjected to excessive, often repetitive, and moreover groundless criticism by Bahrain 14.
Bahrain's criticisms in fact boil down to two. First, the perpendicularity method is unrefined and
obsolete. Second, that method is inapplicable in the present case, because there is no coastal
concavity and consequently no closing line. Neither of these arguments withstands scrutiny.
9.67 The first argument, as to the out-dated nature of the perpendicularity method, is surprising.
Bahrain seems to have forgotten the pertinent comments of a distinguished specialist in the field
of maritime delimitation according to whom, when, as in the present case, there is an inequitable
provisional equidistance line, which therefore has to be adjusted "the range of methods of
adjustment which can be employed, either alone or in combination with one another, is very
broad: a simple correction of the equidistance line, a line perpendicular to the150ast or in a
notional direction, one which follows a line of latitude or longitude, etc." . And the same
author cites the words of the Arbitral Tribunal in the 1977 Award, according to which the choiceof the method and of the final course of the line "is very much a matter of appreciation in the
151
light of the geographical and other circumstances" , explaining that "The perpendicular method
can also, in certain cases... be a useful variant for correcting the line of equidistance", in
particular "in the case of a coast which is more or less straight, or the imaginary closing-line of a
gulf"152. That is precisely the case here.
9.68 The second argument advanced by Bahrain is even more surprising than the first. In
Bahrain's view, "The situation in the present case is certainly not that of a 'coastal concavity', an
'estuary' or a 'gulf'. The waters between Bahrain and Qatar are not a more or less pronounced
concavity, they are not a gulf or an estuary, they do not conclude in common terra 153ma. The
waters between Bahrain and Qatar are, rather, a channel open on both sides" . It is however
difficult to see how Bahrain can maintain this argument when, in its Memorial, it states the exact
opposite: "Bahrain has consistently exercised sovereignty over all of the maritime features
situated in the Gulf of Bahrain, from the Hawar Islands in the outh to Fasht ad Dibal in the
154
north" . Qatar has thus done no more than use the geographical description given by Bahrain of
the maritime areas concerned. Bahrain cannot criticise Qatar for doing so, nor can it prevent
Qatar from highlighting Bahrain's inconsistencies and successive contradictions. Thus, Bahrain's
argument that: "In the present case there is no coastal concavity... and, therefore, no 'closing
155
line'" , falls to the ground, just like the whole of Bahrain's discussion directed against Qatar's
use of the modified perpendicularity method in making the delimitation in the northern sector.
9.69 Bahrain's argument is all the more unfounded in that the shifting of the provisional
equidistance line in the northern sector towards the line linking points N, NSLB, BLV and 2(2B),
which is a technically simple and legally well-founded line, results in a reasonable and equitable
delimitation. This line is consistent with equitable principles which, as the International Court of
Justice recalled, in its Judgment of 3 June 1985 in the Libya/Malta case, are of a "normative
156
character", stressing that they were "expressed in terms of general application" . Moreover, as
Qatar has shown, the line joining N, NSLB, BLV and 2(2B) "is scrupulously observant of the
principle of non-encroachment" 15; it takes full account of Bahrain's maritime projection, and in
no way interferes with its natural north-north-easterly projection. Qatar's line also ensures
observance of another equitable principle that is just as fundamental as the princip158of non-
encroachment: the principle that "equity does not necessarily imply equality" . Indeed, the line
is governed by nature and geography, taking full account of the configuration of the Parties'
coasts, and especially of the disparity or disproportion in their respective lengths 15. In all these
respects, the reasonable and equitable nature of Qatar's line is in stark contrast with Bahrain's
line, as is strikingly illustrated by Map No. 10, facing page 314, showing the two maritime
claims.
9.70 Confirmation of this analysis is to be found in the equitable nature of the terminal point of
Qatar's line, i.e. point 2(2B) (51°05'54"E, 27°02'47"N), the location of which is particularly
significant. It should be recalled that it is a potential tripoint, practically equidistant from the
respective coasts of Qatar, Iran and Bahrain 16. In its agreement of 17 June 1971 with Iran,
Bahrain acknowledged that point 2(2B) was an equidistance point and thus that to the east of
point 2(2B), the coasts of Bahrain no longer had any influence on the drawing of the dividing
line between the coasts of the Arab States and Iran. In other words, to the east of point 2(2B),
Qatar's coasts alone have to be taken into consideration, and the dividing line corresponds
exclusively to the delimitation laid down by the agreement of 20 September 1969 between Qatar
and Iran. Finally, it should be recalled that point 2(2B) is approximately the same as the terminal
point of the lateral line proposed by Kennedy and Boggs in their report of 16 December 1948 at
its intersection with the longitudinal median line that they had drawn, in the centre of the
Arabian-Persian Gulf, the coordinates of which were, according to those two experts,
161
"approximately 27°04'N. latitude, 51°07'E. longitude" . The differences in the geographical
coordinates of these two points are no doubt due to the differences appearing between thevarious marine charts used in 1948 at the time of the Boggs-Kennedy Report and those used in
1971, at the time of the Bahrain-Iran agreement.
2. The a posteriori verification of the equity of Qatar's line, by means of proportionality
tests
9.71 Qatar has always attached great importance to the Court's dictum in its judgment of 14 June
1993 in the Denmark-Norway case, according to which:
"The frequent references in the case-law to the idea of proportionality - or disproportion -
confirm the importance of the proposition that an equitable
delimitation must, in such circumstances, take into account the disparity between the
respective coastal lengths of the relevant area" 162.
This is why Qatar has always pointed out in its written pleadings that proportionality allows the
verification of whether the single maritime boundary linking points N, NSLB, BLV and 2(2B)
that it claims in the northern sector is equitable .63
9.72 Bahrain, on the other hand, has totally neglected the significant factor of the disparity in the
lengths of the Parties' coastlines. The reason is quite obvious: a proportionality test applied to the
line proposed by Bahrain in the northern sector has the immediate effect of showing still further
just how extrava164t Bahrain's line is. Bahrain raises numerous objections to Qatar's use of
proportionality , which can be met by at least four arguments.
9.73 First, Bahrain is simply denying the obvious when it asserts that "t165e is no significant
disparity between Bahrain's and Qatar's respective coastal lengths" . It bears repeating that the
respective lengths of the relevant coasts are 88.2 kms (47.6 nautical miles) for Qatar and 55.5
kms (29.9 nautical miles) for Bahrain, and that the proportionality ratio is 1.59 to 1 in favour of
Qatar 166. It also bears repeating that, in the Gulf of Maine case, the Chamber took into
167
consideration a proportionality ratio of 1.38 to 1 in favour of the United States .
9.74 Second, in trying to equate its own geographical situation with that of Guinea-Bissau and
168
the Bijagos Islands, Bahrain is making a caricature of the reality . The islets, rocks, reefs and
low-tide elevations scattered off the eastern coast of the main Bahrain island have nothing in
common with the large and tightly-packed Bijagos Islands lying off the coast of Guinea-Bissau.
The absurdity of the comparison is immediately apparent from Map No. 16, facing page 352.
9.75 Third, even more fallacious is Bahrain's comparison of Qatar's use of the proportionality
test in the present case with France's use of the smoothing method in its dispute with the United
Kingdom, in order to justify the course of the line that it was claiming in the Atlantic sector,
169
beyond the area in the English Channel where the Parties had opposite coasts . Here, Bahrain
confuses a method of delimitation with a means of verifying the equitable nature of a dividing
line drawn in accordance with that method.
9.76 Fourth, and finally, Bahrain observes that "There is no possible justification for verifying
the equitableness of a proposed delimitation in the northern sector by reference to the ratio of the
Parties' respective coastal lengths in the southern sector" 170. Bahrain forgets that in the Gulf of
Maine case, in order to determine the course of the third segment of the dividing line - which, it
may be recalled, "lies outside and over against171e Gulf of Maine" and thus is located
"throughout its length... in the open ocean" - the Chamber strongly emphasised that "from the
geographical point of view, there is no point of reference, outside the actual shores of the Gulf,
that can serve as a basis for carrying out the final operation required" 17. In applying the criterion
of proportionality for purposes of establishing the seaward portion of the maritime boundary in
that case, the Court relied on the difference in the respective lengths of the coasts of the parties
along the Gulf. It is thus clearly necessary to refer to the respective lengths of the coastlines of
Qatar and Bahrain in order to test the equitable nature of the dividing line claimed in the northern
sector.9.77 It is also necessary clearly to define the role that Qatar attributes to proportionality in the
present case. Qatar "has never suggested dividing the relevant delimitation area in proportion to
173
the lengths of the Parties174oasts" . Qatar simply asserts that, in accordance with the Court's
consistent jurisprudence , proportionality is an a posteriori test of the equity of the line that it
proposes in the northern sector, where the delimitation area has been defined in a reasonable
manner. The delimitation area in the northern sector joins points RK, MQ, WB, 4, 3, 2(2B),
2(2Q), WQ and RK, being a polygon with a total surface area of 6005.06 km² 175. Proportionality
allows the verification of the equitable nature of Qatar's line in the northern sector, which from
point N on the RK-MQ closing line, follows the course of the 1947 line up to point BLV then
extends it, on the basis of the modified perpendicularity method, up to point 2(2B) at its
intersection with the line established by the 1971 agreement between Bahrain and Iran.
Proportionality allows this verification to be made on two bases. First, as Qatar has already
stated in its earlier written pleadings, and as will be briefly recalled hereafter, it allows a
verification of the equitable nature of the line with regard to the relationship between the lengths
of the Parties' relevant coasts and the surface areas of the maritime areas thus attributed to each
of them . Proportionality also allows an a posteriori verification of the equitable nature of
Qatar's line from a second point of view, with regard to the relationship between the lengths on
either side of the foot of the perpendicular on the RK-MQ closing line which separates the
northern from the southern sector.
(a) Proportionality between the coastal lengths and the surface areas of the maritime areas
9.78 As has been noted above, the equitable nature of Qatar's line has already been verified in the
light of the ratio between the lengths of the relevant coasts of the Parties and the surface areas of
the maritime areas respectively attributed to them in the delimitation area in the northern sector.
In this delimitation area, and to the east of the line linking N, NSLB, BLV and 2(2B), Qatar is
allotted maritime areas covering approximately 3,768.55 km², and to the west of that line
Bahrain is allotted maritime areas covering approximately 2,236.51 km². The ratio of these areas
is thus 1.68 to 1 in favour of Qatar; in other words it is close to the ratio of coastal lengths which,
it will be recalled, is 1.59 to 1 in favour of Qatar.
9.79 It is true that these two ratios are not exactly the same, but as Qatar has already pointed out,
177
the difference is only around 6% . In these circumstances, as was noted in Qatar's Counter-
Memorial, the difference is not great in view of the scale of the constructions and does not permit
a conclusion that Qatar's line is inequitable. The test of equitableness is indeed conclusive insofar
as it may be seen that the BLV-2 (2B) segment of this line put forward by Qatar is, so to speak,
embraced between the BLV-S segment corresponding to a strict application of the
perpendicularity178thod and the BLV-EQ segment corresponding to a strict application of
proportionality . This first proportionality test alone allows the conclusion that Qatar's line in
the northern sector is equitable 179.
(b) Proportionality between the lengths on either side of the foot of the perpendicular on
the RK-MQ closing line
9.80 The equitable nature of the dividing line put forward by Qatar, as already demonstrated on
the basis of proportionality between the Parties' coastal lengths and the surface areas of the
maritime areas, is also confirmed by a second proportionality calculation. This new test of
equitableness is based on the closing line of the area where Qatar and Bahrain have opposite
coasts, linking points RK and MQ which, as has been seen, are the northernmost points on the
Qatar peninsula and the island of Muharraq. This line from RK to MQ has an important role to
play in the present case, insofar as it separates the northern and southern sectors of the disputed
maritime areas 180. It is both the northern limit of the sector where the Parties have opposite
coasts, and the southern limit of the sector lying beyond. The geographical coordinates of point
RK are 51°15'02"E and 26°09'25"N; those of point MQ are 50°37'54"E and 26°17'15"N, thelength of the line from RK to MQ being approximately 63,500 metres (or, to be precise, 63,515
metres).
9.81 This second test of equitableness, as may be seen from Map No. 18, facing page 356, is
based on points R and T of the line from RK to MQ. Points R and T played an important role in
the construction, beyond point BLV, of the dividing line in the northern sector, based on the
181
perpendicularity method . Point R, the geographical coordinates of which are 50°52'28"E and
26°14'12"N, at the intersection of the extension of the perpendicular from S to BLV with the line
from RK to MQ, is approximately 38,600 metres (or, to be precise, 38,610 metres) from point
RK and approximately 24,900 metres (to be precise, 24,905 metres) from point MQ. Point T, the
geographical coordinates of which are 50°51'59"E and 26°14'18"N, at the intersection of the
extension of the dividing line from 2(2B) to BLV with the line from RK to MQ, is approximately
39,430 metres (to be precise, 39,432 metres) from point RK and approximately 24,080 metres (to
be precise, 24,083 metres) from point MQ.
9.82 It is noteworthy that points R and T divide the closing line of the area where Qatar and
Bahrain have opposite coasts almost exactly in proportion to the ratio of the Parties' coastal
lengths, which is 1.59 to 1 in favour of Qatar. The ratio is 1.55 to 1 for point R and 1.64 to 1 for
point T. Points R and T on the line from RK to MQ are therefore at an almost equal distance
from point PP, give or take 100 metres, on either side of that point, as may be seen from Map No.
18, facing page 356. Point PP is the exact point dividing the RK-MQ closing line of the area
where the Parties have opposite coasts in accordance with the ratio of 1.59 to 1. This point, the
geographical coordinates of which are 50°52'16"E and 26°14'14"N, lies approximately 38,950
metres (to be precise, 38,966 metres) from point RK and approximately 24,550 metres (to be
precise, 24,549 metres) from point MQ 18. This new proportionality calculation supports the
preceding test of equitableness and consequently the construction submitted by Qatar to the
Court for the delimitation of the maritime areas in the northern sector, along the line joining
points N, NSLB, BLV and 2(2B). Insofar as it shows that the method of delimitation that is used
by Qatar is perfectly appropriate in the geographical circumstances, it underscores the equitable
nature of this dividing line in the northern sector.
9.83 Qatar would have liked to apply to Bahrain's line linking points O, Q, R, S, T, U and
2(2Q) 183 the same treatment that it has applied to the line it claims itself in the northern sector,
and to carry out the same proportionality tests on Bahrain's line. However, such an exercise is
impossible, because of the extravagance of Bahrain's claims. Indeed, the greater part of Bahrain's
line in the northern sector falls outside the delimitation area defined by Qatar. As may be seen
from Map No. 19, facing page 358, Bahrain's line gives Qatar less than 8% (to be precise,
7.92%), i.e., 138.63 square nautical miles or 475.48 square kilometres, of that delimitation area
and gives Bahrain 92% (to be precise, 92.08%), i.e. approximately 1612.17 square nautical miles
or 5529.58 square kilometres. This means that if account were also taken of the maritime areas
that Bahrain allots to itself to the east of that delimitation area, being the irregular polygon
formed between R', S, T, U and U', the surface area of which is 263.05 square nautical miles or
902.23 square kilometres, the result would in a manner of speaking be negative. There could be
no better way of demonstrating just how absurd is Bahrain's idea of equitableness. As Professor
Paul Reuter rightly observed, "le principe de l'égalité des Etats devrait conduire à accorder à
l'Etat qui a fait l'usage le plus mo184é de ses droits le bénéfice d'une délimitation selon les
données retenues par l'autre Etat" .
9.84 In conclusion, the two proportionality tests applied by Qatar are consistent with each other.
They confirm the equitable character of Qatar's line in the northern sector, i.e. the line joining N,
NSLB, BLV and 2(2B). This is why Qatar submits to the Court the same line that it had already
proposed in its Submissions in its Memorial 185and Counter-Memorial 18.
__________ FOOTNOTES
1 The BCM contains just one map illustrating Bahrain's maritime claims (Map 1), which is quite
lacking in detail.
2 BCM, Vol. 3, Maps.
3 The BCM acknowledges that Qatar (QM, paras. 11.37, 11.41 and 12.13-12.16) "correctly
emphasises the unity of the rules governing the delimitation process under contemporary
international law. Whether the delimitation concerns the territorial sea, the continental shelf, the
exclusive economic zone or a single maritime boundary; whether the relevant coasts are opposite
or adjacent; and whether the applicable law is treaty law which refers to the equidistance-special
circumstances rule, or customary law which refers to the equitable principles-relevant
circumstances rule, the method to be applied is always the same: namely, a provisional
equidistance line which may be adjusted or shifted, if circumstances so require, in order to arrive
at an equitable result" (BCM, para. 653).
4 See, Chap. VIII, Sect. 1, above, and paras. 9.37, et seq., below.
5 BCM, para. 653.
6 QCM, paras. 7.28, et seq.; QCM, Map No. 5, Vol. 6.
7 QCM, paras. 7.44, et seq.; QCM, Maps Nos. 6 and 7, Vol. 6.
8 QM, paras. 12.44, et seq.; QCM, para. 8.96.
9 QCM, para. 8.96, fn. 274; para. 8.42.
10 BCM, para. 653; see, para. 9.2, above.
11 U.N.R.I.A.A., Vol. XVIII, pp. 112-113, paras. 240-244, at para. 242.
12 P. Weil, The Law of Maritime Delimitation - Reflections, Cambridge, 1989, pp. 207-208 (QR,
Annex IV.54, Vol. 4, p. 303).
13 I.C.J. Reports 1993, p. 64, para. 59.
14 BCM, para. 650.
15 BCM, para. 651.
16 See, paras. 8.27, et seq., above.
17 See, QCM, para. 8.4.
18 See, Map No. 11, facing page 318.
19 BCM, para. 651.
20 See, QCM, paras. 8.34, et seq., and 8.100.
21 See, Map No. 11, facing page 318.
22 BCM, para. 650.
23 BCM, Chap. 6, p. 206.
24 See, paras. 8.7, et seq., above.
25 BCM, para. 484; see, also, BCM, para. 537.
26 BCM, para. 524; see, also, BCM, paras. 468 and 525, et seq.
27 BM, Maps 8 and 10, Vol. 7.
28 P. Weil, "A propos de la double fonction des lignes de base et points de base dans le droit de
la mer", Essays in Honor of Judge Taslim Olawale Elias, Nijhoff, 1992, pp. 145-162 (QCM,
Annex IV.56, Vol. 4, p. 429).29 See, BM, paras. 609, et seq., for the southern sector and paras. 649, et seq., for the northern
sector. Qatar does not of course agree that all of the "maritime features" relied upon by Bahrain
can be used as basepoints for measuring the territorial sea.
30 See, BM, Maps 8 and 10.
31 See, the criticisms in the QCM, paras. 7.32, et seq., for the southern sector and paras. 8.55, et
seq., for the northern sector.
32 QCM, paras. 8.44, et seq.
33 See, para. 9.3, above.
34 QM, para. 11.37.
35 QM, Annex IV.127, Vol. 10, p. 123.
36 QCM, para. 8.96, fn. 274.
37 New editions of this chart, first published on 1 May 1862, had been issued on 3 April 1925
and 21 January 1938. Subsequently, "large corrections" were made to the 7 August 1942 edition
and, after that date, "small corrections" were included, the last of which were made at the
beginning of 1948. This document was therefore the best general cartographic document in
existence at the time with respect to the whole of the northern and central parts of the Gulf.
38 QM, Annex IV.127, Vol. 10, p. 123. See, Map No. 12, facing p. 320.
39 QM, Annex IV.127, Vol. 10, p. 123, at p. 125, para. 1.1.
40 It will be noted in this regard that the Boggs-Kennedy report does not mention the 1947
British line, although it does assume that the Hawar islands appertain to Bahrain by virtue of the
British "decision" of 11 July 1939 (see, para. 9.23, below).
41 QM, Annex IV.127, Vol. 10, p. 123, at p. 125, para. 1.1.
42 Ibid., para. 1.2.
43 Their practical experience and their theoretical studies of maritime delimitation problems
were outstanding. It may be recalled that they were both members of the Committee of Experts
that met in 1953 - at the request of Professor J.P.A. François, the special rapporteur of the
International Law Commission on the régime of the high seas and of the territorial sea - to
nd
answer certain technical questions about the territorial sea (Add. to the 2 François report on the
territorial sea of 15 May 1953, Yearbook of the International Law Commission, 1953, Vol. II,
pp. 77-79). It may be added that at the request of the United Nations Secretariat, Commander
Kennedy prepared, in view of the First Geneva Conference on the Law of the Sea, two reports
that have been published in the travaux préparatoires of the Conference, a "brief geographical
and hydrographical study of straits constituting international waterways" of 23 October 1957 and
a "summary geographical and hydrographical study of bays and estuaries whose coasts belong to
different States" of 13 November 1957 (United Nations Conference on the Law of the Sea, Off.
Doc., Vol. I, Preparatory Documents A/CONF. 13/37, Doc. A/CONF. 13/6 and Add. 1, pp. 115-
164 and Doc. A/CONF. 13/15, pp. 198-243). As a member of the British delegation to the
Geneva Conference, Commander Kennedy prepared "brief remarks on median lines and lines of
equidistance and on the methods used in their construction", a document distributed at the
Conference on 2 April 1958. Mr. S. Whittemore Boggs was just as well known for his extensive
work on these problems. Mention may be made, in particular, of "Delimitation of the Territorial
Sea: the Method of Delimitation proposed by the Delegation of the United States at the Hague
Conference for the Codification of International Law", American Journal of International Law
1930, Vol. 24, pp. 541-555; "Problems of Water-Boundary Definition. Median Lines and
International Boundaries through Territorial Waters", The Geographical Review 1937, pp. 445-
456; International Boundaries. A Study of Boundary Functions and Problems, Columbia U.P.1940; "Delimitation of Seaward Areas under National Jurisdiction", American Journal of
International Law, 1951, Vol. 45, pp. 240-266.
44 In particular islands situated "on the wrong side of the boundary" (QM, Annex IV.127, Vol.
10, p. 123, at p. 146, Appendix B, para. 6).
45 Ibid., at p. 127, para. 3.2.
46 Ibid., at p. 128, para. 3.2.
47 Ibid., at p. 141, Appendix B, para. 3.
48 Ibid., at p. 129, Appendix A, para. 1 and p. 144, Appendix B, para. 4; the line was drawn on
British Chart No. 2837b, signed by both experts, Annex I to the report.
49 Ibid., at p. 133, Appendix A, para. 6.
50 Ibid., at p. 134, Appendix 1, para. 6a.
51 See, paras. 9.16 and 9.18, above.
52 The report had previously indicated that "It is recommended that, so far as feasible, the same
baseline be employed in delimiting both the longitudinal line ('median line') and the lateral
jurisdictional lines between adjacent states"; QM, Annex IV.127, Vol. 10, p. 123, at p. 141,
Appendix B, para. 3.
53 Ibid.
54 Ibid., at p. 134, Appendix A, para. 6.a; the line is shown on British Chart No. 2837b, Annex I.
55 Ibid.
56 See, para. 9.29, below.
57 QM, Annex IV.127, Vol. 10, p. 135, para. 6.a.
58 Ibid., Appendix A, para. 6.b; the line was drawn on Chart No. 2837b signed by both experts,
Annex I.
59 Ibid., at p. 136, para. 6.b.
60 Ibid., at p. 125, para. 1.
61 Ibid., at p. 136, para. 6.c; the line was drawn on British Chart No. 2837b signed by both
experts on 16 December 1948, Annex I.
62 Ibid., at p. 137, Appendix A, para. 6.c.
63 See, para. 9.22, above.
64 See, para. 9.14, above.
65 See, ibid.
66 The text of the agreement is to be found in QM, Annex IV.216, Vol. 11, p. 235.
67 QR, Annex IV.15, Vol. 4, p. 79. It should be noted that this agreement was supplemented by a
communiqué dated 20 December 1992 (QR, Annex IV.29, Vol. 4, p. 173). The parties have since
engaged in a process of demarcation of the basepoints and identification of the turning points on
the line, which is nearing completion.
68 For the text of the agreement, see, QM, Annex IV.259, Vol. 12, p. 77.
69 On the official map attached to the Qatar-Abu Dhabi agreement (British chart 3707 Sheet
Umm al Qaiwan to Ras al Matbakh 1967, scale 1:330,000) point A is located 82 miles from Ras
Abu Al Mishut in Qatar and 81.8 miles from Ras al Aish in Abu Dhabi and on the official map
used for the Qatar-Iran agreement (the British Persian Gulf Eastern sheet 1960 No. 2837,
1:750,000) point 6 is approximately 79 miles from Ras Abu Al Mishut in Qatar and 80 milesfrom Chiru on the Iranian mainland. It may thus be considered that, accounting for slight
differences due to the use of different charts, point A is roughly an equidistance tripoint
mainland-to-mainland between Abu Dhabi, Iran and Qatar.
70 See, QM, Annex IV.259, Vol. 12, p. 77.
71 For the text of the Agreement, see, QM, Annex IV.260, Vol. 12, p. 81.
72 For the text of the Agreement, see, QM, Annex IV.264, Vol. 12, p. 111.
73 According to H. Al-Baharna "the Iranian Islands of Nakhilu and Jabrin [were] given full
effect in fixing the base-lines from which the Bahrain-Iran median line could be drawn". See,
The Arabian Gulf States, 1978, p. 356 (QR, Annex IV.32, Vol. 4, p. 195).
74 Webster's Third New International Dictionary of the English Language, Unabridged defines
the word "mainland" as "a continuous body of land constituting the chief part of a country or
continent" (1986, Vol. II; p. 1362). See, para. 8.3, above.
75 This matter has been discussed in Chap. VIII, Sect. 2, and Sect. 2.B, above. See, also, D.
Bowett, "Islands, Rocks, Reefs, and Low-Tide Elevations in Maritime Boundary Delimitations",
in J.I. Charney & L.M. Alexander, International Maritime Boundaries, Vol. I, p. 149 (QCM,
Annex IV.37, Vol. 4, p. 307) and para. 9.40, below; see, finally, the commentary by R.F.
Pietrowski, ibid., Vol. II, p. 1513, para. 5 (QR, Annex IV.48, Vol. 4, p. 275).
76 Excluding, naturally, the two sand islets of Rabad al Gharbiyah and Rabad ash Sharqiyah,
lying to the north of Jazirat Hawar (QM, Map No. 9, Vol. 17).
77 QM, Map No. 9, Vol. 17.
78 An author who has written about the Bahrain/Iran agreement of 17 June 1971 has rightly
remarked that "The Bahraini island of Jazirat Al Muharraq (which is connected to the island of
Bahrain by a causeway) was apparently considered a part of the Bahraini mainland for
delimitation purposes" (R.F. Pietrowski, in J.I. Charney & L.M. Alexander, International
Maritime Boundaries, Vol. II, p. 1483, para. 5 (QR, Annex IV.47, Vol. 4, p. 271)). In that
delimitation between Bahrain and Iran, only the island of Muharraq was in a position to be taken
into account, whereas in the present delimitation between Qatar and Bahrain, Muharraq and
Sitrah should, in Qatar's view, be used as basepoints for constructing the provisional equidistance
line.
79 See, QCM, paras. 7.24, et seq.
80 See, para. 7.17, above. See, also, QCM, paras. 8.47, et seq.
81 QCM, para. 7.24.
82 See, paras. 9.5, et seq., above.
83 I.C.J. Reports 1969, p. 36, para. 57.
84 I.C.J. Reports 1984, pp. 329-330, para. 201. The Chamber was also careful not to make "a
series of such minor features the very basis for the determination of the dividing line" and to
transform them "into a succession of basepoints for the geometrical construction of the entire
line"; ibid., p. 330, para. 201. It will also be recalled that in the Libya/Malta case (Judgment of 3
June 1985), the Court rejected the islet of Filfla as a basepoint for constructing the provisional
median line between the Parties' coasts, although it was included among the Maltese basepoints
used for measuring the breadth of the territorial sea (I.C.J. Reports 1985, p. 48, para. 64; p. 52,
para. 73 and p. 57, para. 79C). See, finally, the Judgment of 24 February 1982 in the
Libya/Tunisia case (see, para. 8.6, fn. 17, above), and the Separate Opinion of Judge
Weeramantry in the Denmark/Norway case (I.C.J. Reports 1993, pp. 270-271, paras. 221-223).
85 See, paras. 9.27, et seq., above.86 D. Bowett, International Maritime Boundaries, ed., J.I. Charney & L.M. Alexander, Vol. I,
1993, p. 149 (QCM, Annex IV.37, Vol. 4, p. 311).
87 See, the definitive analysis by P. Weil, "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, 1992 (QCM,
Annex IV.56, Vol. 4, p. 429). The same idea had already appeared in the "Brief Remarks on
median lines and lines of equidistance and on the methods used in their construction" by
Commander R.H. Kennedy, which were distributed by the British delegation on 2 April 1958 at
the Geneva Conference on the Law of the Sea. These comments read as follows, with regard to
the complications caused by the presence of islands or islets when a maritime delimitation is
being made:
"In the case of the delimitation of a boundary through the territorial sea it may in general
seem reasonable to take into account the base lines of islands lying within the belt of
territorial sea in order to arrive at the boundary. Should, however, one State claim a wider
belt of territorial sea than its neighbour, an inequitable result may often occur.
For a boundary across a continental shelf the problem of islands may become very acute. It
would seem most inequitable for instance, if the existence of an island or islet (which by
definition need only be a small above-water rock or sandbank, possibly only a few yards long
and a few feet high) should be allowed to divert a boundary and thus give extensive areas of
shelf to the State possessing the island. Should such an island exist about halfway between
opposite States, both on the same continental shelf, and its base lines be allowed to be used in
forming the median line, this line would be switched from the middle of the area separating
the States to three quarters of the way across, towards one side or the other dependent upon
the sovereignty of the islet. Such a situation might well give rise to international friction as to
the ownership of the islet. This is of course an extreme case but any islands near a boundary
may have a similar but lesser effect. It might seem reasonable under such circumstances not
to permit these islands to have any influence on a boundary but to allow them only their own
belts of territorial sea for the purposes of exploration and exploitation". (Emphasis added).
88 See, para. 9.39, above.
89 BM, Map 8, Vol. 7.
90 See, BM, Map 10, Vol. 7.
91 See, QCM, paras. 8.42, et seq.
92 See, Map No. 14, facing page 342.
93 See, para. 9.37, above.
94 While the standard baseline is the low-water line, it should be remembered, as Prof. D.P.
O'Connell has pointed out, that:
"The use of the low-water mark is relatively recent, Roman Law having designated the shore
by reference to the high-water mark, and the Common Law having treated the area intra
fluxium et refluxium as one of ambulatory curial jurisdiction. The reference to the low-water
mark first appeared in the Fishery Convention of 1839 between Great Britain and France. For
a time the low-water mark had several competitors. First, there was the argument that the
extent of the territorial sea should be measured by reference to the state of the tide at the
moment when the relevant event occurred. Secondly, there was the argument that the
distance should be measured from the point where the sea first became navigable; thirdly,
there was the argument that, since the extent of the territorial sea was the actual limit of the
range of coastal artillery, it should logically be determined by reference to the point where it
was possible to erect batteries which would not be endangered by the sea but could dominate
it; fourthly, there was the high-water standard; and fifthly, there was the view that each State could determine its own standard in lieu of the cannon-shot standard. However, the
legislation in European countries giving effect to the North Sea Fishery Convention of 1882
established the low-water mark as the practical standard. The English writers, reflecting the
Admiralty rule, adhered to the low-water mark, and they were followed by some civil law
writers. Eventually the low-water mark was employed in the Institut de Droit International in
1894". (The International Law of the Sea, ed. by I.A. Shearer, Oxford, 1982, Vol. 1, pp. 171-
172; QR, Annex IV.46, Vol. 4, p. 267).
Moreover, it should be added that in their domestic legislation certain States have expressly
referred to the high-water line to determine the normal baseline from which their territorial sea is
measured. For example, in Ethiopia's Maritime Proclamation No. 137 of 1953, it is provided in
Article 6(f) that: "The territorial waters of Our Empire are defined as extending from the
extremity of sea-board at maximum annual high tide of the Ethiopian continental coast and of the
coasts of Ethiopian islands, in parallel line on the entire sea-board and to an outward distance of
twelve nautical miles, except that in the case of the Dahlac archipelago..." (Negarit Gazetta No.
1, 25 September 1953, pp. 2164-2165; emphasis added, QR, Annex IV.9, Vol. 4, p. 41). It is
noteworthy that when Eritrea became independent, it maintained the Ethiopian regulations. In
Proclamation No. 7 relating to the Transitional Maritime Code, it declared that "The provisions
of... Article 6(f)... of Proclamation No. 137 of 1953... are hereby adopted and shall take effect
while the other provisions of the said Proclamation are hereby repealed" (QR, Annex IV.28, Vol.
4, p. 169).
95 I.C.J. Reports 1951, p. 128.
96 A.L. Shalowitz, Shore and Sea Boundaries with Special Reference to the Interpretation and
Use of Coast and Geodetic Survey Data, U.S. Department of Commerce, Washington, Vol. I,
1964, p. 183 (QR, Annex IV.52, Vol. 4, p. 291). The same author has also noted that "The low-
water line on topographic surveys must necessarily be an approximation for the most part,
coinciding but rarely with the actual low-water line" (ibid., p. 187). Referring to the American
practice in this regard, and alluding to the "difficulties attending its location by the topographer
alone or by the hydrographer alone", he explained that: "Where the hydrography failed to
establish the low-water line, the line was transferred from the topographic survey, the chart
compiler making the necessary adjustments for charting purposes" (ibid., pp. 246-247).
Similarly, it has been noted that, by its very definition, the low-water line is "pratiquement
toujours submergée, et les techniques habituelles de la phototopographie ne lui sont pas
normalement applicables. Compte tenu de sa sensibilité... elle est donc plus difficile à déterminer
avec précision que la laisse de pleine mer" (A. Roubertou, in L. Lucchini et M. Voelcker, Droit
de la mer, Tome 2, Vol. I, Délimitation, Pedone, 1996, p. 365, para. 35; QR, Annex IV.43, Vol.
4, p. 253).
97 M. Thamsborg, Hydrographic Office, Copenhagen, On the precise determination of maritime
boundaries, October 1986, p. 24, para. 2.4.
98 See, QCM, para. 7.43 and QCM, Map No. 5.
99 See, Map No. 14, facing page 342.
100 QM, Annex IV.127, Vol. 10, p. 123, at p. 141, para. 3.1.
101 See, para. 9.43, above.
102 See, para. 9.43, fn. 94, above.
103 See, Maritime Limits and Baselines. A Guide to their Delineation, published by The
Hydrographic Society, Special Publication No. 2, Third Edition, June 1987 (QR, Annex IV.34,
Vol. 4, p. 203).
104 See, ibid., para. 5.5.105 See, ibid., para. 5.6.
106 See, ibid., para. 5.7.
107 See, ibid.
108 L.B. Sohn, "Baseline Considerations", in J.I. Charney & L.M. Alexander, International
Maritime Boundaries, Vol. I, p. 155 (QR, Annex IV.53, Vol. 4, p. 299).
109 I.C.J. Reports 1969, p. 36, para. 57.
110 I.C.J. Reports 1984, p. 333, para. 216. Similarly, the Chamber stated: "Just as the criteria to
which they must give effect are basically founded upon geography, the practical methods in
question can likewise only be methods appropriate for use against a background of geography"
(ibid., para. 199). The Award of the Arbitral Tribunal of 30 June 1977 in the case concerning
delimitation of the continental shelf between France and the United Kingdom had earlier stated
that: "it is the geographical situation which indicates the applicable method of delimitation"
(U.N.R.I.A.A., Vol. XVIII, p. 53, para. 87).
111 See, paras. 9.27, et seq., above.
112 See, QCM, paras. 8.44, et seq.
113 See, paras. 9.27, et seq., above.
114 In this regard it will be recalled that at the First United Nations Conference on the Law of
the Sea, before the Fourth Commission on 8 April 1958, the Iranian delegate proposed an
amendment to the International Law Commission's draft Article 72 (QR, Annex IV.11, Vol. 4, p.
57). This involved, first, adding at the end of paragraph 1 the following sentence: "Where special
circumstances, as envisaged in this paragraph, so warrant, the median line may be measured from
the high-water mark along the coastline of the States concerned" (emphasis added) and, second,
including an additional paragraph reading as follows: "Where an island or islands exist in a
region which constitutes a continuous continental shelf, the boundary shall be the median line
and shall be measured from the low-water mark along the coasts of the States concerned,
provided, however, that where special circumstances so warrant, the median line shall be
measured from the high-water mark along the coastline of such States" (Doc.
A/CONF.13/C.4/L60, in A/CONF. 13/42, United Nations Conference on the Law of the Sea,
Official records, Vol. VI, Fourth Committee (Continental Shelf), p. 142; emphasis added). When
he addressed the Commission, the Iranian delegate, Mr. Rouhani, explained, notably, that: "9...
One special case arose when large bodies of water carrying sediment deposited it near the coast
and formed extensive mud flats which were exposed at low water. In such cases it would be
almost impossible to identify the low-water line by visual observation or photography. It would
have to be established by calculation from the high-water mark and time [sic: tide]
measurements, but there were many areas where no tide measurements had been made and
where it might be necessary to define a boundary line for the continental shelf in the near future.
His delegation therefore proposed that in such circumstances the boundary should be measured
from the high-water mark instead of the low-water mark. 10. It might also be a complicated
matter, where there were islands on a continuous continental shelf, to identify the low-water line
for each island and it was therefore proposed that in such cases the boundary should be measured
from the low-water line along the coast. His delegation's proposal was substantially the same as
the Italian amendment, except that the Iranian amendment recommended the reference in special
circumstances to the high-water mark" (ibid., Vol. VI, p. 92; emphasis added). It is clear that the
Iranian delegate was alluding to the delimitations to be made in the future in the Arabian/Persian
Gulf, and in fact Iran was to rely on the high-water line on the coasts of the States concerned in
drawing the limits of the continental shelf that it negotiated with certain Arab States bordering
the Gulf, and notably with Qatar (see, para. 9.33, above).
115 See, paras. 9.37, et seq., above.116 See, QM, para. 12.64, fn. 153.
117 See, QCM, paras. 7.44, et seq.; QCM, Maps No. 5, 6 and 7.
118 See, QM, paras. 12.30, et seq.; QCM, para. 7.45 and 8.101.
119 BCM, para. 648; see, also, para. 614.
120 This is not, as Bahrain contends, "a caricature of Bahrain's coastline by arbitrarily excluding
from the computation the coasts of the islands and other legally relevant features of Bahrain"
(BCM, para. 614). Qatar has already demonstrated that Bahrain's choice of basepoints, including
Fasht Dibal, for the construction of the equidistance line that it claims, runs counter to the
consistent jurisprudence (QCM, paras. 8.44, et seq.; see, paras. 9.9-9.10, above).
121 I.C.J. Reports 1984, p. 334, para. 218; emphasis added.
122 Ibid., p. 323, para. 185.
123 Application filed in the Registry of the Court on 8 July 1991, paras. 18-25 and para. 41.II;
QM, paras. 11.1, et seq., paras. 12.1, et seq., and para. 12.62; and QCM, paras. 7.49, et seq., and
paras. 8.95-8.96.
124 BCM, paras. 552-587.
125 Ibid., para. 587.
126 See, Chap. VIII, Sect. 2, above.
127 BCM, para. 575.
128 See, QCM, paras. 8.65-8.66. It should moreover be recalled that contrary to what Bahrain
now claims, the pearling banks in question were never subject to the exclusive jurisdiction of
Bahrain (BM, para. 638 and paras. 641-642). Indeed, in accordance with well-established
regional custom, the pearling banks were always considered as the collective property of the
tribes and rulers on the Arabian side of the Gulf (QCM, paras. 8.78, et seq.). The various
arguments put forward by Bahrain on this question (BM, paras. 638, et seq.) have been fully
rebutted by Qatar (QCM, paras. 8.60, et seq.).
129 QM, Annex III.256, Vol. 8, p. 265, para. 2.
130 See, QM, para. 10.17.
131 See, QM, Maps Nos. 14, 15 and 16.
132 See, QM, paras. 11.21, et seq.
133 Point S1 on QM, Maps Nos. 15 et 16.
134 See, QM, paras. 10.15, et seq.
135 See, Map No. 14, facing page 342.
136 See, QM, paras. 10.40-10.42, 12.5, 12.7 and 12.62; QCM, paras. 8.95-8.96, and QCM, Map
No. 11.
137 BCM, para. 627.
138 See, Chap. VIII, Sect. 2 and para. 9.7, above.
139 See, QM, Maps Nos. 14 and 21.
140 See, paras. 8.27, et seq. and 9.7, above.
141 I.C.J. Reports 1982, p. 71, para. 96.
142 See, QM, paras. 12.57, et seq.; QCM, paras. 8.95, et seq.
143 See, QM, Maps Nos. 20 and 21; QCM, Map No. 11 and QR, Map No. 15, facing page 350.144 For further details, see, QM, paras. 12.62-12.64 and QCM, paras. 8.96-8.97.
145 The segment R-BLV-S of this perpendicular forming a right angle of 90° with the RK-MQ
closing line.
146 QM, Annex IV.264, Vol. 12, p. 111.
147 See, QM, para. 12.64; see, also, QCM, para. 8.97.
148 See, Map No. 10, facing page 314.
149 See, BCM, paras. 628-646.
150 P. Weil, The Law of Maritime Delimitation - Reflections, p. 270 (QR, Annex IV.54, Vol. 4,
p. 303; emphasis added).
151 U.N.R.I.A.A., Vol. XVIII, p. 45, para. 70.
152 P. Weil, The Law of Maritime Delimitation - Reflections, pp. 274-275 (QR, Annex IV.54,
Vol. 4, p. 303; emphasis added). To illustrate his remarks, the same author refers to the Treaty of
Rio de la Plata signed on 19 November 1973 between Argentina and Uruguay, which Qatar has
itself relied upon (QM, paras. 12.50-12.53 et Map No. 18). Nonetheless, the BCM considers that
that agreement is not a precedent for the present case, in particular because the geographical
circumstances are not the same (BCM, para. 641; see, also, para. 637). The BCM comes to
similar and equally erroneous conclusions as to the use of this technique by the Chamber in the
Gulf of Maine case (QM, paras. 12.54-12.56; BCM, para. 638 and 641). It is difficult to share
Bahrain's view that the Chamber used a method of delimitation that was "too crude" (BCM, para.
630) and also "primitive" (BCM, para. 631), when it applied it in order to determine the course
of the third segment of the maritime boundary between points C and D (see, QM, Map No. 19),
lying outside the closing line of the Gulf of Maine "throughout its length... in the open ocean"
(I.C.J. Reports 1984, p. 337, para. 224). In the words of the Chamber, "Within the range of such
methods, the most appropriate is that recommended above all by its simplicity, namely in this
instance the drawing of a perpendicular to the closing line of the Gulf" (ibid., pp. 337-338, para.
224). Qatar must also point out that while Bahrain refuses to accept the relevance of the
precedents cited by Qatar (QM, paras. 12.48-12.56), it goes to considerable lengths to reduce
their significance (BCM, paras. 633-642). However, Qatar reasserts that the concept of the
closing line that is recognised under international law for the closing of a bay or of an estuary
applies quite naturally in the present case to close the area where the Parties have opposite coasts
by means of the line from RK to MQ, not only because these are strikingly similar situations
(QM, paras. 12.60-12.61), but also because Bahrain itself has referred to the area as the "Gulf of
Bahrain" (see, para. 9.68, below). Qatar moreover reasserts that "the factor of perpendicularity"
has always been and still is, to repeat the Court's words in the Libya/Tunisia case, one of the
"relevant criteria to be taken into account in selecting a line of delimitation calculated to ensure
an equitable solution" (I.C.J. Reports 1982, p. 85, para. 120). A careful examination of State
practice would reveal many other precedents in addition to those cited by Qatar in its Memorial
(see, for example, Sang-Myon Rhee, "Sea boundary delimitation between States before World
War II", American Journal of International Law 1982, Vol. 76, pp. 555-588; QR, Annex VI.51,
Vol. 4, p. 287). In this regard mention will simply be made of the Protocol for delimitation of the
boundary concluded in July 1926 by Albania and Yugoslavia, Annex III of which, relating to the
general description of the boundary line, provides that "the boundary starting from the limit of
the territorial waters in the Adriatic Sea follows first a straight line perpendicular to the general
direction of the coast and ends up at the mouth of the principal area of the Boyana" (see, P. de
Lapradelle, La Frontière - Etude de droit international, Paris Les Editions internationales 1928,
p. 216, note 1; G. Gidel, Le droit international public de la mer, Tome III, La mer territoriale et
la zone contiguë, Paris 1934, p. 768, note 1; Sang-Myon Rhee, op. cit., p. 579; QR, Annex IV.51,
Vol. 4, p. 287). But it must also be borne in mind that in negotiations that are still pending, theperpendicularity method seems to have been invoked by the Parties, notably for the delimitation
in the Black Sea between Romania and the Soviet Union/Ukraine (A. Oude Elferink, The Law of
maritime boundary delimitation: a case study of the Russian Federation, Publications on Ocean
Development, M. Nijhoff, p. 357; QR, Annex IV.37, Vol. 4, p. 25).
153 BCM, para. 641; emphasis added.
154 BM, para. 568; emphasis added.
155 BCM, pp. 292-293.
156 I.C.J. Reports 1985, p. 39, para. 46.
157 QCM, para. 8.100; see, also, paras. 9.5, et seq., above.
158 I.C.J. Reports 1969, p. 49, para. 91; see, QM, paras. 12.17-12.19 and QCM, paras. 8.101-
8.102.
159 See, para. 9.55, above.
160 See, QM, paras. 12.41, 12.64, fns. 153 and 154, and para. 12.72.
161 QM, Annex IV.127, Vol. 10, p. 123, at p. 136; see, also, paras. 9.23-9.24, above.
162 I.C.J. Reports 1993, p. 67, para. 65.
163 See, QM, paras. 12.30-12.32; QCM, paras. 8.103-8.105.
164 See, BCM, paras. 647-649.
165 BCM, para. 648.
166 See, para. 9.56, above.
167 See, ibid., above.
168 See, BCM, para. 614.
169 See, BCM, para. 615.
170 BCM, para. 649; emphasis in the original.
171 I.C.J. Reports 1984, p. 337, para. 224.
172 Ibid. The Chamber also concluded from this that only "a geometrical method", and more
precisely "the drawing of a perpendicular to the closing line of the Gulf" was "the most
appropriate... in this instance" (ibid.).
173 QCM, para. 8.103.
174 Mention will be made here only of the Gulf of Maine case: "The Chamber's views on this
subject may be summed up by observing that a maritime delimitation can certainly not be
established by a direct division of the area in dispute proportional to the respective lengths of the
coasts belonging to the parties in the relevant area, but it is equally certain that a substantial
disproportion to the lengths of those coasts that resulted from a delimitation effected on a
different basis would constitute a circumstance calling for an appropriate correction" (I.C.J.
Reports 1984, p. 323, para. 185).
175 See, QM, paras. 12.66-12.69 and Map No. 22.
176 See , QM, paras. 12.70-12.71 and Map No. 23; QCM, paras. 8.103-8.105.
177 See, QM, para. 12.71; QCM, para. 8.105.
178 QCM, para. 8.105. It should also be recalled (see, QCM, para. 8.105, fn. 295) that point EQ,
which is the end point of the dividing line established on the basis of a ratio of 1.59 to 1 between
the lengths of the respective relevant coasts of Qatar and Bahrain, is located approximately 3,000metres to the east of point 2(2B), which is approximately 1,270 metres to the east of point S, the
end point of the dividing line on the basis of the perpendicularity method when applied strictly.
179 See, Map No. 17, facing page 354, which is similar to Map No. 23 of the QM.
180 See, QM, paras. 12.10, 12.63 and 12.68 and Maps Nos. 17, 20 and 22. See, also, QCM,
paras. 8.95-8.96.
181 See, QM, para. 12.64 and Map No. 21; QCM, para. 8.96.
182 Point PP is moreover located precisely 465.65 metres from point T and 365.59 metres from
point R.
183 See, BM, Map 10.
184 P. Reuter, "Une ligne unique de délimitation des espaces maritimes", Mélanges Georges
Perrin, Payot, Lausanne, 1984, p. 262, note 33.
185 QM, p. 307, II.
186 QCM, p. 303, II.
__________
CASE CONCERNING MARITIME DELIMITATION AND
TERRITORIAL QUESTIONS BETWEEN QATAR AND BAHRAIN
(QATAR V. BAHRAIN)
REPLY OF THE STATE OF QATAR
_____________________________________________
SUBMISSIONS
In view of the above, the State of Qatar respectfully requests the Court, rejecting all contrary
claims and submissions:
I. To adjudge and declare in accordance with international law:
A. (1) That the State of Qatar has sovereignty over the Hawar islands;
(2) That Dibal and Qit'at Jaradah shoals
are low-tide elevations which are under
Qatar's sovereignty;
B. (1) That the State of Bahrain has no sovereignty over the island
of Janan;
(2) That the State of Bahrain has no
sovereignty over Zubarah;
(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 maritime delimitation in
the present case;
II. To draw a single maritime boundary between the maritime areas of sea-bed, subsoil and
superjacent waters appertaining respectively to the State of Qatar and the State of Bahrain 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 delimitation agreement concluded
between Bahrain and Iran in 1971 (51°05'54"E and 27°02'47"N), thence proceeding in a
southerly direction up to BLV (50°57'30"E and 26°33'35"N), then following the line of theBritish decision of 23 December 1947 up to NSLB (50°49'48"E and 26°21'24"N) and up to point
L (50°43'00"E and 25°47'27"N), thence proceeding to point S1 of the delimitation agreement
concluded by Bahrain and Saudi Arabia in 1958 (50°31'45"E and 25°35'38"N). The line claimed
by Qatar is illustrated on Map No. 20, facing this page.
(Signed) Dr. Abdullah bin Abdulatif Al-Muslemani
Agent of the State of Qatar
__________
Reply of the Government of the State of Qatar