INTERNATIONAL COURT OF JUSTICE
CASE CONCERNING MARITIME DELIMITATION
AND TERRITORIAL QUESTIONS
BETWEEN
QATAR AND BAHRAIN
(QATAR v. BAHRAIN)
COUNTER-MEMORIAL
SUBMITTED BY
THE STATE OF BAHRAIN
(Merits)
VOLUME 1
31 December 1997 CONTENTS
CHAPTER!
INTRODUCTION
Outline ofthe Counter-Memorial ............................................... 1
SECTION 1.1
SECTION 1.2 The status and impact of the 81 forged documents .................... 2
PART I- THE TERRITORIAL QUESTIONS
CHAPTER2
THE FUNDAMENTAL BASES OF BAHRAIN'S SOVEREIGNTY OVER THE
ZUBARAH REGION AND THE HAWAR ISLANDS
SECTION 2.1 General observations on Qatar'streatment of the territorial
question ...................................................7....................
...............
SECTION 2.2 The Zubarah Region was Bahraini until the Al-Thani
attack of 1937............................................................................ 12
A. Introduction...............................................12...........
...................
B. The threefold human geography of the Qatar peninsula:
the Naim-led confederation of the north; the Saudi
Bedouin in the south; and the Doha confederation in the
east ......................................................17................
....................
c. The Nairn tribe who occupied the Zubarah Region
maintained their allegiance to the Al-Khalifa Rulers ............... 18
D. Qatar'sdescription of the "ancient" history ofZubarah
prior to its founding by the Al-Khalifa in 1762 is
inaccurate and misleading ......................................................... 26
E. Qatar'sdescription of the history of the Qatar peninsula
until the middle of the 19th Century prior to 1871 is
inaccurate and misleading .........................................................
F. Qatar claims falsely that Britain and Bahrain
acknowledged the Qatar peninsula as a territorial unit
under Al-Thani control from the mid-19th Century ................. 32
- 1- G. The events of 1867-1868 did not amount to recognition of
an independent "State of Qatar", but rather the opposite.......... 36
H. Qatar claims falsely that a political entity called "Qatar"
was recognised prior to 1916 and that it included the entire
Qatar peninsula ........................................................................
. 41
(i) The Ottomans acknowledged that they never had any
control outside the Doha enclave.............................................. 41
(ii) The AI-Thani understood that the Doha enclave was
subject to the Ottoman protege and Al-Khalifa pretender-
Sheikh Nasir bin Mubarak ........................................................ 44
(iii) Bahrain'sclaim to rights in Zubarah was recognised by
Britain ........................................................................
............... 46
(iv) Britain and Bahrain did not recognise Ottoman orAl-
Thani rights in Zubarah............................................................. 48
(v) 1896-1910: Fifteen critical years that are passed over
without comment in Qatar'sMemorial ..................................... 52
(vi) The negotiations over the unratified 1913 Anglo-Ottoman
Convention........................................:....................................... 56
I. Qatar claims falsely that the i916 Treaty between Britain
and the Chief of Doha included the entire Qatar peninsula ...... 59
J. Qatar'sMemorial offers no post-Ottoman evidence of Al
Thani activities in Zubarah until shortly before the 1937
attack........................................................................
................. 67
K. Qatarfsattack on the Zubarah Region in 1937 displaced
Bahrain........................................................................
.............. 67
L. The evidence of Bahrain'ssovereignty over the Zubarah
Region is not fundamentally disturbed by Qatar's
arguments........................................................................
.......... 68
SECTION2.3 The Continuity of Bahrain'ssovereignty over the Hawar
Islands from the 18th Century to the present day..................... 69
A. Introduction........................................................................
....... 69
B. Qatar'sclaim that the Hawar Islands are geographically
proximate to the Qatar peninsula is correct but irrelevant........ 72
c. Qatar has not produced any authentic evidence of exercise
of authority in the Hawar Islands.............................................. 73
-2-D. Qatar claims falsely that the Ottoman Empire, Britain,
Bahrain and neighbouring States recognised the Hawar
Islands as part of the territories controlled by the Doha
confederation or Qatar .............................................................. 74
E. Qatar claims falsely that the Hawar Islands were never
populated and could not support habitation..............................1
F. Qatar claims falsely that the Dowasir tribe, the principal
occupants of the Hawar Islands, were not subject to the
authority of Bahrain.................................................................. 84
G. Qatar'sversion of the history of oil concession
negotiations is a fabrication ...................................................... 89
(i) The 1925Bahrain oil concession.............................................. 89
(ii) Negotiations for the Bahrain Unallotted Area concession:
1928-1933........................................................................
......... 93
(iii) The 1935 Qatar oil concession................................................ 101
(iv) The so-called 1936 British "Provisional Decision" ................ 104
(v) The British decision regarding sovereignty over the Hawar
Islands........................................................................
............. 113
H. Prior'sand Alban'scriticisms ofthe 1939 Award were
hasty, unfounded, and disproved ............................................ 123
I. Janan Island is part of the Hawar Islands group and was
awarded to Bahrain by the 1939 British Award ..................... 130
(i) Britain did not "decide" in 1947 to award Janan Island to
Qatar........................................................................
................ 132
(ii) The British Political Agent'schoice of the 1938 list was
mistaken................................................................
.................. 134
(iii) The British Political Agent relied on unverified survey
information ........................................................................
..... 138
(iv) The British Political Agent was influenced by extraneous
considerations ........................................................................
. 139
(v) The British Political Agent failed to take into account
directly relevant evidence .......................................................
(vi) Bahrain'ssovereignty over Janan Island was recognised by
Britain in 1936 and confirmed in 1939................................... 143
-3- (vii) Independently of the 1939 British Award, Bahrain's
sovereignty over Janan Island in the Hawar Islands is well-
established........................................................................
....... 150
J. The evidence of Bahrain'ssovereignty over the Hawar
Islands is not undermined by Qatar'sarguments ....................1
CHAPTER3
BAHRAIN'S TITLE TO THE HAWAR ISLANDS IS RES JUDICATA
SECTION 3.1 Introduction........................................................................
..... 154
SECTION 3.2 The procedures for the 1939 arbitration were
straightforward and fair .......................................................... 155
SECTION 3.3 Qatar'sallegations ofBritish wrongdoing cannot be
considered by the Court in the absence of Great Britain as
a Party ........................................................................
............. 162
A. Qatar has alleged unlawful acts by Britain ............................. 162
B. Qatar'sallegations necessarily implicate the British
Government and not only Weightman and Belgrave.............. 162
C. Qatar'sallegations are inadmissible in the absence of
Britain as a Party..................................................................... 165
SECTION 3.4 The burden of proof with respect to the validity of the
1939 Award rests on Qatar ..................................................... 167
SECTION 3.5 Refutation of Qatar'scriticisms ofthe 1939 Award ............... 168
A. Qatar'sallegation of absence of consent is unfounded ........... 168
(i) Explicit Consent...................................................................... 168
(ii) Implied Consent: Participation without Protest...................... 170
B. There was no British bias........................................................ 171
C. There was no violation of audi alterampartem .................178.
D. Britain violated no obligation in its assignment of the
burden of proof .......................................................................
181
E. There were no procedural improprieties with regard to
hearings or witnesses .............................................................. 182
(i) Oral hearing ........................................................................
.... 182
-4- (ii) Cross-examination of witnesses.............................................. 183
F. Reasons ................................................................................... 184
SECTION 3.6 The 1939 Award is confirmation of a settled state of
affairs ...................................................................................... 186
SECTION 3.7 The special status of decisions establishing boundaries ......... 187
SECTION 3.8 Qatar claims falsely to have maintained its challenge to the
British Award since 1939 ....................................................... 188
CHAPTER4
BAHRAIN'S RIGHT TO SOVEREIGNTY OVER THE ZUBARAH REGION
REMAINS INTACT
SECTION 4.1 In accordance with a legal principle explicitly
acknowledged by Qatar itself, Bahrain's sovereignty over
Zubarah was not lost in 1937.................................................. 192
SECTION 4.2 Bahrain has never acquiesced in Qatar'sconquest of
Zubarah, nor has Qatar'sclaim to sovereignty ever been
acknowledged by a binding decision ...................................... 192
PART II- THE MARITIME DELIMITATION
CHAPTERS
THE POINTS OF AGREEMENT ANDDISAGREEMENT
SECTION 5.1 The nature of the delimitation to be carried out: a single
maritime boundary.................................................................. 197
SECTION 5.2 The division into two sectors.................................................. 199
SECTION 5.3 The geographical relationship between the coasts.................. 199
SECTION 5.4 The delimitation is to be effected according to the
contemporary law of maritime delimitation ........................... 200
SECTION 5.5 The impact of the supervening factor created by the
extension of the Parties'respective territorial seas to 12
nautical miles ........................................................................
.. 202
SECTION 5.6 The British line of 1947 is not the maritime boundary........... 203
-5-SECTION 5.7 The two major points of disagreement ................................... 203
CHAPTER6
QATAR'S CLAIM RESTS ON THE FICTION OF A GEOGRAPHICAL AND
LEGAL VACUUM BETWEEN THE COAST OF BAHRAIN'S MAIN ISLAND
AND THE QATARI PENINSULA, DISREGARDING THE INSULAR AND
ARCHIPELAGIC NATURE OF BAHRAIN
SECTION 6.1 The erroneous theoryof so-called "main coasts" ................... 212
A. There is no hierarchy between the coasts ............................... 212
B. Bahrain is a sea-oriented archipelagicte ........................... 214
SECTION 6.2 Qatar'sequivocal reference to "features which do not
generate their own maritimezone" ......................................... 220
A. Bahrain'sislands ..................................................................... 220
B. Bahrain's low-tide elevations ............,..................................... 225
c. The law governing sovereignty over low-tide elevations is
the law governing territorial sovereignty ................................ 227
D. Bahrain'ssovereignty over all the features lying between
the eastern coastf Bahrain's main island and the western
coastof the peninsula of Qatar ............................................... 233
SECTION 6.3 Qatar'smisconceived recourse to the theoryf "unusual
features" ...............................................234......................
..........
CHAPTER 7
QATAR'S CLAIM GIVES UNDUE WEIGHT TO THE BRITISH LINE OF 1947
SECTION7.1 Qatar'sposition .......................................................................
240
SECTION 7.2 Qatar'sposition is self-contradictory ...................................... 242
SECTION 7.3 The British 1947 line is irrelevant to the delimitation
which the Court is requested to effect .................................... 244
A. The lettersf23 December 1947, unlike Britain's arbitral
award of 1939 in relation to the Hawar Islands, did not
-6- constitute a "decision" purporting to bind Bahrain and
Qatar, nor was it regarded by the Parties as such ................... 244
B. The 1947 letters did not purport tobe legal decisions, and
the 1947 line was not based exclusively- or even mainly-
on legal criteria .......................................................................
249
C. The 1947 letters related exclusively to the delimitationof
the continental shelf, and expressly did not purport to
delimit the superjacent waters................................................. 252
D. The concepts and rules by reference to which the 1947 line
was drawn do not correspond to the contemporary
international legal concepts and rules under which the
Parties have called upon the Court to delimit a single
maritime boundary between the two States ............................ 255
E. The 1947 line does not rest on any known or identifiable
legal ground ........................................................................
.... 259
F. The 1947 line has no relevance in the light of the
supervening factor created by the extension of the
territorial seafboth countries from 3 to 12 miles................. 261
G. The 1947 line has no relevance as a source of "historic
title" .......................................................263..............
................
SECTION 7.4 Conclusion ...................................................263..................
......
CHAPTERS
THE SINGLE MARITIME BOUNDARY REQUESTED BY QATAR IS NOT IN
ACCORDANCE WITH THE PRINCIPLES AND RULES OF INTERNATIONAL
LAW
SECTION 8.1 The two sectors .......................................................................
265
A. The Parties agree that there are two sectors ............................ 265
B. The reasons and methodological implications of
distinguishing two sectors....................................................... 265
C. The location of the line dividing the two sectors .................... 267
D. Qatar'sjustification for its proposed dividing line.................. 267
E. The consequences of Qatar's contradiction ............................. 268
-7-SECTION 8.2 The southern sector................................................................. 269
A. The segment of the boundary requested by Qatar to the
south of point L.......................................................................
269
B. The segment of the boundary requested by Qatar from
point L to the intersection with the so-called "closing line"... 272
SECTION 8.3 The northern sector ................................................................. 274
A. The coastal relationship in the northern sector ....................... 274
B. The legally relevant circumstances in the northern sector...... 275
C. The segment of the single maritime boundary requested by
Qatar to the south of point BLV, i.e.from the so-called
closing line northwards to point BLV .................................... 282
D. The segment of the single maritime boundary requested by
Qatar to the north of point BLV.............................................. 283
(i) The delimitation method proposed by Qatar .......................... 283
(ii) The perpendicularity method.................................................. 285
(iii) The perpendicular to the general direction of the coast .......... 289
(iv) The perpendicular to the closing line of a coastal concavity .. 290
(v) In the present case there is no coastal concavity.................... 292
(vi) ... and, therefore, no "closing line" ......................................... 293
(vii) The single maritime boundary requested by Qatar to the
north of point BLV is a perpendicular only in name .............. 294
E. The proportionality test in Qatar'sMemorial.......................... 296
SECTION 8.4 The single maritime boundary requested by Qatar is not in
accordance with the fundamentals of the law of maritime
delimitation ........................................................................
..... 298
A. The single maritime boundary requested by Qatar
disregards the very concept of maritime delimitation ............ 298
B. The single maritime boundary requested by Qatar
disregards the principles and rules governing the
delimitation process ................................................................ 299
-8-C. The single maritime boundary requested by Qatar
disregards the fundamental principle that an equitable
solution is "the aim of any delimitation process" ................... 301
-9- CHAPTER!
INTRODUCTION
This Counter-Memorial of the Government of the State of Bahrain (hereinafter
"Bahrain") is filed pursuant to the Order of the Court of 30 October 1996. Its primary
objective is to demonstrate that Qatar'sMemorial fails to disturb the legal and factual
foundations of Bahrain'sclaims, which are hereby reiterated.
SECTION 1.1 Outline of the Counter-Memorial
1. Section 1.2of this introductory Chapter recalls Bahrain'sposition with respect to
the seriouscomplicationscaused by Qatar'ssubmission of 81 forged documents. These
forgeriesconstitute a massive and intolerable abuse of the processes of the Court.It is
imperativethat such documents not be allowed to distort consideration of the merits of
the dispute.
2. Part One deals with the territorial claims. Chapter 2 demonstrates that, wholly
apart from the 1939Award by Britain, which acknowledged Bahrain'ssovereignty over
the Hawar Islands, the fundamental bases of Bahrain's sovereignty over the Hawar
Islands and the Zubarah Region are firmly established by reliable proof. Bahrain
invokes the most cogent evidence of State activity, as well as continuous and peaceful
display of territorial sovereignty, over a period of two centuries. With respect to the
Hawar Islands, this continuum has never been interrupted. As for Zubarah, the
continuum was disrupted by an armed invasion by Qatar in 1937, an illegal act which
cannot generateany legal effect under international law. Chapter 3 then reaffirms that
Bahrain'ssovereignty over the Hawar Islands is res judicata. Section 3.i raises the
specific objection (which Bahrain could not have raised before reading Qatar's
Memorial) that Qatar'sallegations of British wrongdoing in connection with the 1939
- 1-Award are inadmissible in the absence of Britain as a party. Chapter 4 demonstrates
that Bahrain'srights to restoration of its rights over the Zubarah Region remain intact.
3. Part Two deals with the maritime delimitation. Bahrain reiterates the claim
articulated in its Memorial. Following a review in Chapter 5 of the points of agreement
and disagreement between Bahrain and Qatar over the maritime delimitation, Chapter 6
demonstrates the fundamental inadequacies of Qatar's maritime delimitation claim in
international law. Chapter 6 shows that Qatar's claim rests on the fiction of a
geographical and legal vacuum between the coast of Bahrain'smain island and the Qatar
peninsula; it disregards the multi-insular and archipelagic nature of the State of Bahrain,
in particular the presence of Bahraini islands and other Bahraini maritime features in the
relevant area. Chapter 7 explains how Qatar's claim gives undue weight to the British
line of 1947, which, as Qatar itself acknowledges, is not legally binding, and which is
irrelevant to the single maritime boundary which the Court is now requested to identify.
Finally, Chapter 8 demonstrates that the single maritime boundary requested by Qatar is
in fundamental conflict with the principles and rules of intemationallaw. 1
SECTION 1.2 The status and impact of the 81 forged documents
4. As the Court will recall, Qatar's Memorial introduced 81 new documents
containing startling revelations which, if true, would mean that previously accepted
history must be radically rewritten - not only the history of Bahrain and Qatar, but also
that of the Gulf as a whole. Qatar's Memorial does not explain why Qatar failed to
mention these documents in 1938-39 when Britain arbitrated a dispute over the Hawar
Islands in Bahrain's favour. Nor does it explain when and how the original texts of
In this Counter-Memorial, Bahrain has, with few exceptions, only included as annexes
documents that were not already submitted as annexes to either Bahrain'sor Qatar'sMemorials.
Where a document was cited by both Bahrain and Qatar in their respective Memorials, Bahrain
has provided the Bahrain Memorial Annex reference ("BM Annex"), as well as the Qatar
Memorial Annex cross-reference ("QM Annex").
-2-these documents, most of which were written by persons outside Qatar to other persons
outside Qatar - and which were quite unknown to Bahrain and its specialist advisers -
succeeded in reaching only the Diwan Amiri Archives of Qatar but did not reach any
other and more likely repositories.
5. Bahrain has established that the 81 documents are forged. Even when
confronted with the results of Bahrain's painstaking verification efforts, as detailed in
Bahrain's letter to the President of the Court dated 25 September 1997, Qatar has
provided no explanation. The same restraint marked the statements made by its
representatives at the meeting which the President of the Court held with the Parties on
25 November 1997. All Qatar has said, in its letter to the Court dated 6 October 1997,
was that:
"before submitting these documents to the Court as Annexes to its
Memorial, Qatar satisfied itself that there was no reason to doubt their
authenticity."
6. As already explained in its letter of 25 September 1997, Bahrain will treat the
content of the 81 forged documents as non-existent. Bahrain's letter of 25 September
1997 should be read together with and treated as part of the present Counter-Memorial.
7. The significance of the forgeries may, however, be briefly recalled as follows.
8. In July 1986, in the context of extensive diplomatic efforts in the aftermath of
Qatar's armed attack and abduction of 29 workers from Fasht ad Dibal on 26 April of
that year, Qatar submitted to the Council of Ministers of the Gulf Co-Operation
Council a lengthy memorandum in Arabic which set out its contentions regarding the
border dispute between Qatar and Bahrain.
2 See Bahrain's Memorial (hereafter referred to as "BM") paras. 488, 592 and 623.
-3-9. Section One of this memorandum was entitled "Summary of the Evidence on
Qatari Sovereignty over the Hawar Islands." It was presented in four parts:
"geographical evidence" (in which Qatar mentioned the uncontested but legally
irrelevant fact that the Hawar Islands are close to the Qatar peninsula);
"historical evidence" (in which Qatar stated that it had become an autonomous
State in 1868 (sic) and argued, albeit in a circular fashion, that as a result of
Qatar'sindependence "the Hawar Islands, being part of Qatar, were included");
"legal evidence" (in which Qatar argued that the Hawar Islands must be part of
Qatar because they were within Qatar'sterritorial sea); and
"logical evidence" (in which Qatar argued that the Hawar Islands must
"inevitably" belong to Qatar because Qatar was in a better position than Bahrain
to ensure the military and ecological protectionof the Islands).
10. The memorandum contained some 217 pages of annexes ofhistorical documents
and narratives going back to 1766. Not one of the 81 documents presented in Qatar's
Memorial of 30 September 1996, wherein they are alleged to be part of Qatar's own
archives, is to be found among these numerous annexes to the 1986 memorandum.
11. Qatar's 1986 memorandum and its annexes contained none of the allegations
now presented, on the basis of the 81 forged documents, of a historic British-Bahraini
conspiracy to fabricate evidence favourable to Bahrain, to destroy evidence favourable
to Qatar, and to produce an Award tainted by bias in favour of Bahrain. The 1986
memorandum and its annexes contained no allegations - nor, of course, any proof- of
Qatari historic acts of sovereignty or acts of administration in the Hawar Islands and the
Zubarah Region. There were no allegations - nor any proof- of a 19th Century Anglo
Ottoman Agreement on the boundary between Qatar and Bahrain; and even less so of
any specific understanding that the Hawar Islands were a part of Qatar. Nor did the
1986 materials contain any allegations - let alone proof- that 19th Century rulers in the
-4-Gulf had spontaneously felt the need to write letters proclaiming their belief that the
Hawar Islands (which never appeared at issue until shortly after oil was discovered in
Bahrain in 1932) belonged to Qatar, which did not exist as a State when these "letters"
were allegedly written.
12. All of these new allegations were to come for the first time with the 81 new
documents presented in Qatar'sMemorial of 30 September 1996.
13. The arguments which Qatar had put forward in its 1986 memorandum caused
Bahrain no concern. Qatar'sprimary position was plainly contradicted by the principle
that proximity does not create international title, a basic principle in international law
3
which has consistently been upheld. Qatar'sarguments added nothing to those that had
failed in the 1938-39arbitration in which Britain, as arbitrator, confirmed Bahrain'stitle
to the Hawar Islands. Whatever might have been the results of regional mediation
efforts.as a political matter, therefore, Bahrain did not expect that Qatar would again
seriously pursue its claim in a legal forum.
14. Bahrain was surprised when Qatar sought unilaterally to bring its claims before
the International Court of Justice. In Bahrain'sperception, Qatar was pursuing a course
in which it thought it had something to gain but nothing to lose, with little heed for
ordinary prudence. At the same time, Bahrain was seriously troubled by the fact that so
substantial a portion of its overpopulated territory was being put at risk. 4
15. Today, Qatar has abandoned the regional dispute resolution and come to the
Court seeking to turn the tables of law and history by using dramatic new "evidence." If
See BM Section 4.3.
4 As stated in BM para. 54, Bahrain is among the world's five most densely populated countries.
Moreover, according to World Bank statistics Bahrain's population in the 1975-1994 period rose
by 106%, a much higher rate than that of, for example, the Philippines (52%) or India (46%).
2 2
The area of Bahrain's territory (701 km ) is about the same as that of Singapore (639 km )and
well1ess than one-third of that of Luxembourg (2,586 km ). Qatar has 16 times Bahrain's land
area but less thanhalf its population.
-5-Qatar's"evidence" had been available in 1986, it could and should have been included
in Qatar'smemorandumto the GCC. Each of the 81documents antedates 1986- indeed
52 of them antedate the 1938-1939 British arbitration. Considering the great weight
given to them in Qatar'sMemorial before the Court, one can only surmise that:
either Qatar had not procured or fabricated the 81 documents by 1986
or Qatar was reluctant to show them to the member States of the Gulf
Co-Operation Council since they included documents which, in all likelihood,
would have been quickly recognised as forgeries in Saudi Arabia and Abu 5
Dhabi. 6
16. Qatar now apparentlypersists in relying on these forged documents to support its
attempt to appropriate a substantial portion of Bahrain's territory. The Court will
appreciate that the matter cannot be treated as a routine controversy as to the reliability
of isolated items of evidence; the gravity of the violation, in terms of the seriousness of
the breach of principle and in the scope of its intended effect, is too far-reaching.
17. Moreover, Bahrain invites the Court to draw the appropriate inferences as to the
fragility of the claims of a Party which is so hard-pressed to produce genuine evidence
that it fmds itself reduced to relying so extensively on blatant forgeries.
See Statement of MrAdil Algosaibi dated 22 April 1997, Appendix 11.13to Bahrain's letter of
25 September 1997 to the President of the Court.
6 See Research Report from the Centre for Documentation and Research, the Cultural Centre of
Abu Dhabi, dated 25 April1997, Appendix 11.3to Bahrain'sletter, ibid.
-6- .PART I- THE TERRITORIAL QUESTIONS
CHAPTER2
THE FUNDAMENTAL BASES OF BAHRAIN'S SOVEREIGNTY OVER THE
ZUBARAH REGION AND THE HAWAR ISLANDS
SECTION2.1 General observations on Qatar's treatment of the territorial
question
18. Qatar's discussion of the territorial questions suffers from three fundamental
defects which appear consistently throughout its Memorial of 30 September 1996:
anachronism, revisionism, and nominalism.
19. All three defects appear in Qatar'sclaim that it became a sovereign State in the
1860s. In fact, the situation in the Qatar peninsula until well into the 20th Century
contradicts any meaningful notion of statehood extending over the entire Qatar
peninsula. One need only consider, by way of illustration, the following elements of the
historical record:
• The Rulers of Bahrain received tribute and taxes from all inhabitants of the Qatar
peninsula until tribal chiefs in the Doha region rebelled in 1866. This rebellion
was put down and in 1868 Mohammed bin Thani as Chief of the Maadhid tribe
agreed to collect that tribute and taxes from other local chiefs so that payments
to the Ruler of Bahrain would be resumed.8
See Qatar'sMemorial(hereafterreferredto as "QM")ChapterIII, Section3 and ChapterV.
BMpara. 127.
-7-• An internal Ottoman Empire report in 1871 referred to Mohammed bin Thani as
9
residing in Doha and having "no rule over the other villages."
• In 1881, Mohammed's son Jasim wrote to the British Political Resident that:
"I have no power over [the Katar coast]. You are aware of the
treaty made in the time of my father [1868] between us and the
British Govt. namely that we were only to be responsible for
[Doha Town] and AI Wakra [a village just south ofDoha]." 10
• In 1893, in a meeting with the British Political Resident:
"Shaikh Jasim at once acknowledged the rights of Bahrain and
expressed his willingness to pay tribute as before." 11
• Throughout the period of their presence in Arabia (1871-1915), the-Ottomans
referred to the "Qatar province" as being the region of Doha, as opposed to the
Zubarah and Odaid territories elsewhere on the peninsula. 12
• Between 1874 and 1903 six attempts by the Ottomans and the Al-Thani to
exercise authority over Zubarah from Doha were repulsed by Bahrain and
Britain. 13
• In 1907, the Ottoman Governor of Sanjak reported that "where the Ottoman
coast ends ... the seaport town of Qatar is under the independent control of a
Sheikh called Jasim AI Thani." 14
9 BMparas. 133and 158.
10 BMpara. 133.
II BMpara. 164.
12 BMSection2.6.
13 BMSection2.7.
14 BM Ann. 72(a),Vol. 3.
-8-• The Ottomans repeatedly acknowledged - at the highest level - that they had
never exercised any effective control over the Qatar peninsula, apart from Doha
and its immediate environs. 15
• Although a Treaty was finally signed between Britain and the "Ruler of Qatar" in
1916, that Treaty did not define the territorial limits of Qatar. Indeed, a close
analysis of the Treaty and a review of subsequent history leads to the conclusion
that the denomination "Qatar" referred only to Doha and its environs. 16
• In 1932, the Ruler of Qatar admitted in public that certain areas of the Qatar
peninsula appertained to Bahrain. 17
• In 1947, the British Political Resident noted that the Ruler of Qatar was a "late
arrival" on the political scene of the region and had only consolidated his
position on the Qatar peninsula in 1937. 18
20. Qatar presents the "State of Qatar" as possessed of full-fledged statehood
commencing in 1868. 19 Yet the AI-Thani chief of Doha in 1881 acknowledged, as seen
above, that he had no responsibility for the conduct of tribes outside the Doha region.
This element of contradiction reflects the anachronism of Qatar'sclaim.
21. Qatar's discussion elevates Mohammed bin Thani and Jasim AI-Thani, who were
not even demonstrably in command of the various tribes in the region of Doha, to the
IS BMSection2.2.H.(i).
16
BMparas.217-222.
17 Section2.2.1.
18 Sections2.2.Aand2.2.1.
19
QMpara. 3.38.
-9-status of Heads of a State purportedly encompassing the entirety of the peninsula. 20
Hereinlies the revisionism underlyingQatar'sclaim.
22. Qatar unceasingly treats the word "Qatar" whenever it appears in any document
as referring to the entirety of the peninsula as a political entity without regard to the
context in which the word was used. 21 Even a cursory consideration of the
circumstances of many of the documents relied on by Qatar shows that it was quite
obviously impossible that their authors should have intended to refer to any place
beyond the vicinity of Doha or, possibly, beyond a province encompassing a limited
stretch of the east coast of Qatar, or yet again beyond the territory actually under Al
Thani control- whatever its extent might have been.l This reliance on the mere use of
a word, defined as Qatar wishes to define it, to answer the very question being posed is
emptynominalismand of no assistancein resolving any controversy.
23. With respect to the Hawar Islands, Qatar'sapproach is once again nominalistic.
Its Memorial argues that the Hawar Islands belonged to "Qatar" well before 1939
becauseof their close proximityto the peninsula. 23 The absence of legal persuasiveness
ofthis argumenthasbeen demonstratedin Section 4.3 of Bahrain'sMemorial. But even
if proximity were a valid basis for title, it is pointless for Qatar to argue that the Hawar
Islands were attached to "Qatar" at a time when the territorial scope of the recently
created political entity of "Qatar" simply did not reach the west coast of the Qatar
peninsulanearestthe Hawar Islands.
24. Qatar'sseveralvariations on the theme of proximity thus contribute nothing to its
case. The Hawar Islands are obviously close to the Qatar peninsula, but the fact that
20
QMparas.3.22and3.38,andChapterV.
21 Forexample,seeQMpara.6.27.
22 Forexample,seeQMparas.3.36-3.38.
23 Forexample,seeQMpara.4.2.
-10-many people have recorded this geographical truth is irrelevant to the issue of
sovereignty. Thus,to take but one example, it borders on the absurd for Qatar to invoke
the fact that the Royal Air Force in 1934 concluded that, in the event of inclement
weather over western Qatar, the Hawar Islands could provide a refuge for flying boats.
And yet, paragraph 6.27 of Qatar's Memorial advances the astonishing conclusion that:
"The RAF was thus in no doubt at this time that Hawar island belonged to Qatar." This
yields no more support for a Qatari claim of sovereignty than an observation that vessels
setting out from Normandy might find leeward refuge off Jersey would support a French
claim of sovereignty over the Channel Islands. (In fact, the RAF report could be taken
as evidence that the Hawar Islands' climate and ecology were distinct from the
peninsula.)
25. In connection with the Hawar Islands, however, the most egregious defect of
Qatar's presentation is its attempt to rewrite history on a grand scale. Qatar does so
through the use of forged documents and, to a significant extent, by the misleading
misquotation and misuse of authentic documents.
26. It will be recalled that at the time of presenting his claim during the 1938-1939
British arbitration, the Rulerof Qatar was unable to produce any proof, or even allege
any particulars,of his rule in the Hawar Islands. The British officials who evaluated his
claim immediately saw, despite their repeated urging that he produce some evidence,
that his claim had no other basis than the unsustainable one of proximity. The 1939
Award confirmed that Bahrain's sovereignty over the Hawar Islands was already a
settled state of affairs at that time.
27. Coming before this Court, more than 50 years later, Qatar was obviously
cognisant of the weakness of its situation given the overwhelming failure of its claim to
the Hawar Islands when raised for its arbitration before the British Government in 1939,
and the continuing dearth of evidence for its position. Qatar, it seems, therefore has
regrettably come to the conclusion that it has no choice but to present a radical and
- 11-irresponsible new version of the story of that arbitration. Worse, the evidentiary
foundation for this revisionist account consists forged documents.
28. The remainder of the present Chapter will review the undisputed evidence
relating to the territorial questions, leaving aside Qatar's forged documents, and will
show that Qatar's Memorial does not begin to counter the preponderant weight of
Bahrain's evidence. Bahrain regrets that the limitation of space available in the
Memorial and in this Counter-Memorial does not permit it to present to the Court more
than a condensed account of the history of Bahrain and the region. Unlike Qatar,
Bahrain has no need to try to alter history. The historical record is clear, consistent and
abundant in its support of the arguments that Bahrain has submitted to the Court in its
Memorial and in this Counter-Memorial.
SECTION2.2 The Zubarah Region was Bahraini until the AI-Thani attack of
1937
A. Introduction
29. Qatar's Memorial claims that the entire Qatar peninsula, and in particular the
Zubarah Region, was under the control of the Ottomans and the AI-Thani well before
the end of the 19th Century.24 This is not true, awas acknowledged by the Ottom~
and the AI-Thaniat the time.
30. In Chapter 2 of its Memorial, Bahrain described the failure of the AI-Thaniand
the Ottoman Empire to exercise any control in the Qatar peninsula outside the enclave
of Doha and its hinterland on the east coast and, specifically, how they failed to
establish their authority in the Zubarah Region. Section 2.7 of Bahrain's Memorial
recounts that the Ottomans and the AI-Thani were rebuffed by Bahrain and Britain in
24 QM Chapter III Section 3 and 4 and Chapter VIII Section 2.
- 12-their attempts to exercise authority over the Zubarah Region no less than six times up to
1903. Both the Ottoman Empire and Britain, as well as Bahrain and the Al-Thani,·took
note of these failures (see Section 2.2.H below). In fact, as late as January 1947, in a
despatch to the Secretary of State for India, the British Political Resident highlighted the
historically limited political stature of the Ruler of Qatar:
"In fact, as the Political Agent points out, the Shaikh of Qatar is a late
arrival on the scene. He only consolidated his position on the mainland
2
as recently as 1937 .... " s
31. Qatar'sdesire to modify the human geography and history of the Qatar peninsula
is understandable. 26 As a political entity, "Qatar" emerged only in the 20th Century
when a confederation of merchants living in or near Doha, led by the AI-Thani family,
slowly expanded and solidified its influence. But even then, the "Doha confederation,"
as such, had had only a very short prior history. In this respect, the historical
background section of Qatar's Memorial (QM Chapter III) is entirely inadequate and
indeed misleading. In particular, Qatar ignores the historical evidence of the existence
and activities of local powers in the Gulf- undoubtedly because that historical evidence
25
Letter from British Political Resident to Secretary of State for India, 18 January 1947. BM Ann.
344, Vol. 6, pp. 1478-1485; QM Ann. III.250, Vol. 8, pp. 233-242. The reference to 1937 is to
the AI-Thani attack on Zubarah and the Nairn tribe, which is recounted in Bahrain's Memorial in
Section 2.13.
26
Qatar's desire to mischaracterise its history does not appear to be limited to the presenDr.ase.
J.B. Kelly, an expert on whom Qatar itself relies at paragra520 of its Memorial with respect
to the region's history, has observed:"... the Qataris have of late been equipping themselves
with a history and an indigenous culture, both of noble proportions. The showpiece of this
particular enterprise is a 'national museum', housed in the former (c. 1920) palacehe ruler in
Dauhah [Doha]. Largely an inspiration of a public relations firm in London, the museum has
been equipped and adorned at a cost of several millions, despite - or perhaps because of- the
fundamental limitation of having very little to put into it ... [T]he museum has had to attach
profound significance to fishing nets, Bedouin tents, camel halters and saddles in its re-creation
of the Qatari past. It is not the fault of the Qataris that they have no history, nor can it be held
against them that they would like to invent one ... What is objectionable about these public
relations exercises on behalfof the Qatari regime is that they involve the falsification of the
historical record over the past two centuries, notably concerning the nature and length of
Bahrain's connection with Qatar, the relationship between the Al-Thani and the Ottoman Turks
... " J.B. Kelly, Arabia, the Gulf and the West, (I 980) at p. 191. (Emphasis added.) Ann. 117,
Vol. 2, pp. 367-370.
-13-confirms that Bahrain was such a power and that "Qatar" as a political entity did not
even exist.
32. Traditionally, Bahrain, along with Basra (in modem Iraq) and Oman, constituted
the geopolitical entities that formed the Arab littoral of the Gulf. The Qatar peninsula,
along with the Hasa oases, was included within the major geographical and socio
economic unit known to historians as Greater Bahrain. The origins of Greater Bahrain
go back over four thousand years to the Dilmun Empire. As well as being a focal point
for land and maritime trade networks well before either Islam or Christianity, the
peculiar hydrologicalconditions- the fresh water aquifers of Bahrain - endowed it with
considerable agricultural resources. Its seas contained the main pearling banks of the
Gulf. Rich in resources and population, and a natural defensive site, the Bahrain Islands
thus formed a core area within this wider region of Greater Bahrain, with an extensive
network of commercial and tribal relations linking it to its maritime foreland and
mainland hinterland. The Bahrain Islands were a focal point for seasonal migrations
linking the traditional occupations of agriculture, pastoral nomadism, pearling and
fishing whilst also serving as a market and a trading and financial centre maintaining a
network of relations with Mesopotamia,the Ottoman and Persian Empires, India, Oman
and East Africa.
33. The Qatar peninsula, on the other hand, was an arid and practically empty desert
area. Until the middle of the 19th Century, when the pearl banks off Abu Dhabi came
into prominence, the north-western coast was the only area of the slightest importance
on the peninsula. In the first half of the 19th Century, it was recorded that Bahrain
28
(including the Qatar peninsula) had a population of some 70,000 inhabitants. Of those
70,000 Bahraini subjects, only 3,500 inhabited the Qatar peninsula. Approximately
27
"Hasa" refers to the eastern coast of the Arabian peninsula.
28
Captain G. Brucks "Memoir Descriptive of the Navigation of the Gulf of Persia, 1821-29",
hereinafter Brucks, pp. 557-566, BM Ann. 7, Vol. 2, pp. 95-104.
-14-3,000 of the latter lived in several villages in the north-west of the Qatar peninsula,
including the Zubarah Region. This compared to a mere 400 inhabitants in Bidda (now
called "Doha" and referred to as such hereafter), which at the time was the only recorded
settlementon the east coast of the peninsula. 29
34. Doha did not attain significance until the mid-19th Century, when its merchants
became involved with the pearling industry that had begun to exploit new banks in the
seas between Doha and Dubai. 30 Thus, when it began to develop, Doha and its
hinterland were entirely focused on the sea to the east.
35. Qatar'sMemorial depicts the Al-Thani as asserting authority over the tribes of
the Qatar peninsula and even as being chiefs of the people of the Qatar peninsula. 31 The
historical record shows otherwise. The population around Doha from the mid-19th
Century onward is properly described as a confederation of pearl merchants and others
associated with the pearling industry. The Doha confederation was not based on any
traditional system of tribal allegiances and the AI-Thani were not tribal leaders. This is
confirmed by the historical record. An Ottoman report on Qatar from 1893 described
the three principal tribes in the Qatar peninsula: the Beni Hajir; the al-Munasir; and the
Nairn. Of these, the Nairn were described as being Bahraini and the Al-Thani were
described as having won over "only one" of the subdivisions of the Beni Hajir tribe and
part of the al-Munasir tribe. 32
36. The Al-Thani were not even the traditional leaders in Doha. Until 1843, the
33
Chief of Doha was a headman of the Sudan tribe. The situation in Doha only changed
29 Ibid.
30
In fact, the name "Bidda" denotes "something new" - in this context a new settlement.
31 For example, seeQM para. 3.22.
32 Ottoman Report on Qatar 22 September 1893, at p. 8. Ann. 25,ol. 2, pp. 69-86 at p. 76.
33
J.G. Lorimer, Gazetteer of the Persian Gulf, Oman and Central Arabia, Volume 1 (1915),
(hereinafter, Lorimer), p. 799. BM Ann. 83, Vol. 3, p. 452; QM Ann. 11.4,Vol. 3, p. 143.
- 15-when, following a period of internal AI-Khalifa dynastic struggles that spanned the
islands of Bahrain and the Qatar peninsula, Muhammed bin Khalifa defeated a
challenger at the battle of Umm Suwayya, near Doha, on 9 October 1848. He achieved
his victory with the assistance of the Naim tribe, the traditional allies of the AI-Khalifa
about which more will be said below (see Sections 2.2.B and 2.2.C below). 34 The
challenger hadmade his base in Doha. Thus, the town was overrun by the victors and
the AI-Khalifa removed the existing local chiefs there. That enabled Muhammad bin
Thani - one of the principal pearl merchants who operated from Doha - to move from
obscurity to becomethe focus of the emerging pearl-merchant community.
37. The AI-Thani, however, did not succeed thereafter in building up stable tribal
allegiances and were thus unable to consolidate any political power. They were always
dependent on outsiders in order to have any political role: first on the AI-Khalifa, then
on the Ottomans, and finally on Britain and the Ibn Saud dynasty. This situation lasted
until well after Britain agreed in 1935 to protect the AI-Thani rulers from land-based
attack.
38. The new pearling banks between the Qatar peninsula and Abu Dhabi allowed the
small Doha community - a few hundred persons in 182~ 5 - to grow. That, and the
historical accident of a power vacuum in Doha, enabled the AI-Thanito achieve local
prominence. These developments, however, provide no support for Qatar's attempt to
manufacture a history featuring the AI- Thanias masters of a unified Qatar peninsula by
the mid-19th Century.
34
Al-Nabhani, al-Tuhfa al-Nabhaniya fi Ta'rikh al-Jazira al-'Arabiya Cairo 1923 (section entitled
"The Battle ofUmm Suwayya"). Ann. 52, Vol. 2, p. 169. This event cemented the loyalty of
the Naim-led confederation of tribes in the north of the Qatar peninstoathe Al-Khalifa
dynasty. They remained loyatothe Al-Khalifa throughout the following decades. Indeed, this
was essentially the tribal configuration which was attacked and ejected from the Zubarab Region
by the Al-Thani in 1937. A. Montigny-Kozlowska, Evolution d'un groupe bedouin dans un pays
producteur de petrole: les AI Nairn de Qatar, (1985 Ph.D. thesis), at pp. 66-67 and 136-137.
Ann. 119, Vol. 2, pp. 378-382. See further Section 2.2.C below.
35 Brucks,op. citBM Ann. 7, Vol. 2, p. 97.
-16-B. The threefold human geography of the Qatar peninsula: the Naim-Ied
confederation of the north; the Saudi Bedouin in the south; and the Doha
confederation in the east
39. Qatar seeks to revise history to show that from the mid-18th Century there
existed one "people of Qatar" 36, spread over the entire peninsula, and that all its tribes
were under the leadership of the Al-Thani. 37 To a significant extent, this claim is based
on forged documents. This can only be because the reality was completely different.
40. Bahrain'sMemorial has described the traditional control of the Al-K.halifaover
the inhabitants and territory of the Qatar peninsula from the time they founded
38
Zubarah. Bahrain'scontrol of the peninsula was to an extent accomplished through the
tribes that inhabited the northwest of the Qatar peninsula, in particular the Nairn tribe
and its tribal confederacy. 39 By the mid-19th Century, the Wahhabis of central Arabia
had occasionally attempted to challenge Bahrain'sauthority over Doha and the southern
40
part of the peninsula. The Wahhabis'power came from the tribes loyal to the AI Saud
dynasty that occasionally grazed their flocks in the south of the peninsula. From the
middle of the 19th Century, with the opening of the Abu Dhabi pearl banks to the east
of the Qatar peninsula, the pearl-merchant enclave in Doha began to gain some
importance as a commercial centre. Thus the human geography of the Qatar peninsula,
from the middle of the 19th Century until the AI-Thani attack on Zubarah in 1937, is
best described as having been divided into three spheres of which the AI-Thani
controlled only the smallest and least significant one:
36 For example,seeQMpara.3.22.
37 For example,see QMparas.3.22, 3.26,3.30and 3.33.
38
BM Chapter2.
39 See Sections2.2.Band2.2.C.
40 SeeSections2.2.Eand2.2.F.
-17-(a) the Naim-ledtribal confederationin the north (whose allegiance lay with the Al
Khalifa dynasty); 41
(b) the Bedouintribes 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);
(c) the pearl-merchant enclave in Doha (the tiny AI-Thani-led Doha confederation,
dominated by the larger, more powerful and tribal-based Bahraini and Saudi
sphereof influencedescribedunder (a) and (b)).
41. This remained the political demography of the Qatar peninsula until 1937,
notwithstanding embryonic formal divisions of territory among three states: Bahrain,
SaudiArabia, and "Qatar". The Doha confederationexpanded beyond the hinterland of
Doha only in 1935 when Britain finally agreed to protect it from Saudi Arabia to the
south.42 Subsequentlyempoweredby that protection and inspired by the promise of oil
wealth,the AI-Thani invadedZubarah in 1937.
C. The Naim tribe who occupied the Zubarah Region maintained their
allegiance to the AI-Khalifa Rulers
42. Historical records establish that theNairn were invited by the Al-Khalifa to help
the latter assert their authority over the local tribes that lived in the north of the Qatar
peninsula shortly after the Al-Khalifa arrived there in 1762. 43 The Naim tribe and the
Al-Khalifa quickly entered into a mutually advantageous relationship of
Ruler/benefactor and dependent/beneficiary. The Al-Khalifa benefited from having a
loyal ally helping to control new territories in the Qatar peninsula. The Naim tribe
41
Section 2.2.C.
42
BM Section 2.2.
43 Lorimerop. cit., Vol. II, p. 1306, BM Ann. 74, Vol. 3, p. 397.
-18-benefited from receiving the favours of the Al-Khalifa The Nairn's ties to the Al
Khalifa were also based on the latter's control of the Qatar peninsula, of the islands of
Bahrain, and of the Bahrain pearling banks. Additional details regarding the
relationship between the Ruler of Bahrain and the Nairn tribe have already been
provided in Bahrain'sMemorial. 44
43. Having transferred their seat of authority from Zubarah to the main island of
Bahrain at the end of the 18th Century, the Al-Khalifa Rulers appointed governors in the
45
Qatar peninsula. The allegiance of the Nairn tribe assisted Bahrain and its governors
in their exercise of authority over the Qatar peninsula 46and in tum enabled the Nairn to
consolidate their leadership of the confederation of tribes in the northern part of the
peninsula. Thus, for example, the Nairn-led northern tribal confederation participated in
Muhammed bin Khalifa's 1848 victory over a challenger to his throne. 47 Similarly, in
1870, British despatches reported that the Nairn, who remained followers of the Ruler of
Bahrain, had defeated the Beni Hajir tribe, who had been plotting against him. 48
44. Qatar has claimed that Zubarah "ceased to exist as a populated place in the 19th
49
century." Qatar presents no evidence to support its claim. It is true that the city of
Zubarah was sacked twice: once in 1809 by Bedouin from the Arabian peninsula and
once in 1811 by the Sultan of Muscat, as described in Bahrain's Memorial. 50
44 BM Section2.1.
45 It was atthe timeof the Al-Khalifaconquestofthe islandsof Bahrain from their base in Zubarah
in 1783that the AI Jabr branch of the Nairntribe gainedthe primacy that it retained thereafter.
Montigny-Kozlowska p. 137,Ann. 119,Vol.2, pp. 378-382. Seealso BM Section2.1.
46 For example,for protecting tribes of Qatar. See Understandingbetween representative of the
Ruler of Bahrain and representativeof the Sheikhs of the Doha confederation, 10 April 1869.
Ann. 5,Vol.2, pp. 10-12.
47
QM Ann.11.69,Vol. 5,p. 350.
48 Reportto BritishPoliticalResident, 1May 1870. Ann. 8, Vol.2, pp. 16-17.
49
QMpara.8.3.
so BMpara. 113.
-19-Nonetheless, as described above, the northern part remained the population centre of the
Qatar peninsula, with some 3,000 of the 3,500 inhabitants of the Qatar peninsula living
there in the 1820s. Captain Brucks, in his 1821-1829 Arabian Coast survey, observed
that Zubarah, although reduced in importance, nonetheless still had inhabitants who
1
were subject to Bahrain and who exported horses. 5 There is no evidence that the Nairn
tribe left their traditional dirah (tribal domain) at this or any other time. 52 They
continued to live in the Zubarah Region throughout the 19th and 20th Centuries until the
Al-Thani attack in 1937. 53
45. Qatar has wrongly claimed that the Nairn tribe left Zubarah in 1878, with the
54
majority moving to Doha. This claim is contradicted by records from 1873 onward of
the Nairn tribe inhabiting the Zubarah Region. 55 In 1886-1887, British reports noted
that secessionists from the Doha confederation had settled in the north of the Qatar
peninsula:
"... where they are to some extent under the protection of the Noeym
[i.e., Nairn] tribe who maintain intimate friendly relations with the Chief
of Bahrain." 56
In addition, an 1893 report by the Ottomans confirmed that the Nairn tribe was living in
the Qatar peninsula, that its tribal dirah included Zubarah, and that it was a Bahraini
tribe.57
51 Brucks, op.cit. p. 112, BM Ann. 7, Vol. 2, p. 97.
52
For a discussion of the tribal dirah of the Nairn, see BM Section 2.1.
53 BM Section 2.1.
54 QM para. 8.21.
55
BM Section 2.1.
56 Residency and Muscat Political Agency Report for 1886-1887, p. 7. Ann. 18, Vol. 2, p. 44.
57
Ottoman Report on Qatar, 22 September 1893, at p. 8. Ann. 25, Vol. 2, pp. 69-86.
-20-46. Qatar also claims that the Nairn were not Bahraini and that Britain "rejected
Bahrain'sallegations" that they were. 58 The historical record from 1873 cited by Qatar
as supportfor this claim does not support this assertion. The extract quoted by Qatar is
unrelatedto the issue and the relevant part of the document is not mentioned by Qatar.
With referenceto Bahrain'sclaim in relation to the Nairn, British officials admitted that
they were aware of the claim, but were not willing or able to evaluate the claim at that
point:
"In a conversation with Major Grant, the Chief of Bahrein claimed the
Nairn tribes, living near Zobarah, as his subject under treaty, and stated
that when he became Chief of Bahrein, the Chief of the Nairn tribe had in
Colonel Pelly's presence acknowledged subjection to Bahrein under
treaty. Major Grant wrote to Colonel Ross that he had no means of
forming an opinion on the claim advanced by the Bahrein Chief to
sovereigntyoverthe Nairntribe ...
Colonel Ross replied on receiving Major Grant'sreport that though the
matter of sovereignty over Katar had apparently never been formally
decided, still the Turkish authorities in Nejd had established an influence
over the Katar Coast as far as the Odeid boundary. He thought the
Bahrein Chief had not the power, if he wished, to protect tribes residing
in Katar, and that he could not expect Government to interfere where the
rights were involved in uncertainty. The Chiefs allied with Bahrein could
choose between remaining where they were and removing to Bahrein
with the latter'spermission.
... In writing to Government, Colonel Ross thought that, as the question
of sovereign and feudal rights over places and tribes on the mainland of
Arabia opposite to Bahrein, was a complicated one, probably
Government would not deem it practicable or expedient to enter into its
merits."59
That early uncertainty was eventually replaced by Britain's recognition of Bahrain's
relationship with the Naim. 60 Thus both Britain and the Ottomans recognised the Nairn
as being a Bahrainitribe.
58 QM para. 8.16.
59
QM Ann. 11.7,Vol. 4, p. 53.
60
See BM Section 2.1 and Section 2.2.C of this Counter-Memorial.
-21-47. Though the evidence about Zubarah from the 19th Century is episodic, it is
nonetheless consistent in showing the presence of the Naim inthe Zubarah Region. ·
48. In 1880, Sheikh Nasir, a pretender to the Bahraini throne, about whom more is
said below in Section 2.2.H.(ii) below, arrived with his Al-Thani ally in the northern
part of the Qatar peninsula in order to invade Bahrain. They were prevented from so
doing by the inhabitants who refused to lend them their boats and even threatened to
scupper them should they be taken by force. 61 This is further evidence of the continuing
ties to Bahrain of the Nairn confederation.
49. In addition to the historical records described above and in Bahrain's Memorial,
there are British records from 1887 and 1888 of the Nairn Sheikhs'visits to the Ruler of
Bahrain to request assistance in their tribal struggles and in their struggles against the
Doha confederation. 62 In these records it is noted that the Ruler of Bahrain referred to
the Nairn as his "people" and his "dependants." In 1888, the Ruler of Bahrain reassured
his "dependants" the Nairn that they could settle in the main island of Bahrain if they
were pressured by Sheikh Jasim Al-Thani. 63 An Ottoman report on Qatar from 1893,
referred to above, lists the Nairn tribe as one of the three principal tribes of the Qatar
peninsula The report noted that the Nairn tribe lived in the Qatar peninsula, that its
tribaldirah included Zubarah, and that:
"... it moves to Bahreyn in the date season and the Shaikh of Bahreyn,
Sheikh Isa, every year gives it a present of dates, coffee, etc. This means
that the said tribe is basically reckoned among the tribes of Bahreyn." 64
(Emphasis added.)
61 Report from Lieutenant Stock to Commander G.W. Hand (H.M.S. Beacon, Senior Officer in
Persian Gulf), 4 December 1880.Ann. 16, Vol. 2, pp. 39-40.
62 Reports Bahrain News agent, 29 December 1887 and 3 January 1888; Ruler of Bahrain letteto
British Political Resident, 4 January 18Ann. 20, 21, 22, Vol. 2, pp. 46,47-48, and 49.
63
Despatch from Bahrain News Agent, 3 January 1888. Ann. 21, Vol. 2, p. 47-48.
64 Ottoman Report on Qatar, 22 September 1893, at p.. Ann. 25, Vol. 2, pp. 69-86.
-22-50. This Ottoman report is describing evidence of ikrimiyyah - the system of
benefits that were received by important Arab tribes from their Rulers. Ikrimiyyah was
an integral part of the relationship between the Al-Khalifa and the Nairn tribe. In 1869,
the Ruler of Bahrain assigned to the Sheikh of the Nairn tribe part of the taxes and
tribute payable to him by the Doha confederation. 65 In 1875, it was reported that the
Ruler of Bahrain:
"[spent] three to four thousand krans every month on the people of
Zobarah, and gives Nasir bin Jabor [the Nairn headman] 300 Krans per
mensem [month]." 66
51. The British Persian GulfAdministrative Report for 1886-1887recorded:
"The Chief, Shaikh Eesa-bin-Ali, continues to maintain intimate friendly
relations with the Na'eemtribe of the mainland, to whom, and to other
Arabs of the mainland, he makes yearly presents of considerable value.
Indeed a large portion of the revenues of Bahrain are dissipated in this
manner without any ostensible compensating advantage. "67
Bahrain Civil Lists and Pension Lists from the 1920 included members of the Al-Jabr
branch of the Nairn tribe- including their Chief. 68 In the same manner, the Bahrain
civil lists from the late 1930s reveal that even the Al-Jabr Chief of the Nairn tribe was
still a recipient of financial support from the Ruler of Bahrain. 69 Other evidence of
65
Understanding between representative of the Ruler of Bahrain and the representative of the
Sheikhs of the Doha confederation, witnessed by the Assistant British Political Resident, 10
April1869. Ann. 5, Vol. 2, pp. 10-12.
66
Letter from News Agent, Bahrain, 16 March 1875. Ann. 13, Vol. 2, p. 35.
67
PersianGulf Administrative Report 1886-1887, p. 6. Ann. 19, Vol. 2, p. 45.
68 Request for Civil List Fund Transfer from Bahrain Government to Eastern Bank Ltd. 1923-
1924, Ann. 54, Vol. 2, pp. 173-174; Letter from Managerf Eastern Bank Ltd. to the Ruler of
Bahrain, 19 January 1925, Ann. 55, Vol. 2, pp. 175-182; Letter from Manager of Eastern Bank
Ltd.to the Office of the Deputy Governor of Bahrain, 15 September 1925, Ann. 55, Vol. 2,
pp. 183-191.
69 BMpara. 86.
-23-ikrimiyyah from the Ruler of Bahrain to the Naim was described in Bahrain's
Memorial. 70
71
52. In return for this support, the Naim tribe paid taxes to the Ruler of Bahrain,
acted as his guards, and performed a variety of services for him. 73
53. The relationship between the Ruler of Bahrain and the Naim was acknowledged
by Jasim bin Thani. One of many such examples comes from the British records of
1880, in which there is a letter from Jasim to the British Political Resident that states:
"Sheikh Esau [the Ruler of Bahrain] has kept his friends at Fueyrat, and
is sending the Naeem to them, and they always commit disturbances at
Katr, and if he allowed the Naeem to remain at Fueyrat and create
disorders at El Katr, there will be no end to disturbances; let these people
either go to Bahrein or come to El Bida, in order that disorders may
cease." 74
54. In the first decade of the 20th Century, the weak and fractured leadership of the
Al-Thani caused many inhabitants to leave the Doha enclave (see Section 2.2.H.(v)
below). In contrast, the loyalty to Bahrain of the Naim-led tribal confederacy in the
north of the Qatar peninsula remained undisputed. Captain Prideaux, the British
Political Agent, was witness to that fact in 1906 when he enquired about a shipwreck off
the northern coast of the peninsula. The local shaikh insisted that he was a subject of
75
the Ruler of Bahrain and directed Prideaux to address any questions to the Ruler.
70 See BM Section 2.1.A.
71 This particular payment was referred to the Naim themselves asjazi'a(orjizya),which means
payments made by those considered to be under protection. See Montigny-Kozlowska, op. cit.,
p. 67. Ann. 119, Vol. 2, pp. 378-382.
72
Despatch from British Political Resident, 18November 1869. Ann. 6, Vol. 2, p. 13.
73 See BM Section 2.1 and this Section ofthe Counter-Memorial.
74
Translated purportof a letter from Jasim bin Thani, El-Bida, to Resident, Bushire (included in a
collection of 1880 correspondence). Ann. 14, Vol. 2, p. 36.
75 Despatch from British Political Agent, to the British Political Resident, 3 February 1906.
Ann. 32, Vol. 2, pp. I06-107.
-24-55. This relationship between the Ruler of Bahrain and the Naim still existed in
1937, when Sheikh Abdullah Al-Thani attacked Zubarah. 76 Even at that stage, the
loyalty of the Naim to the Ruler of Bahrain - as well as their antagonism towards the
Al- Thani- was evident. On the eve of the attack, the British Political Resident cabled
to the Secretary of State for India:
"Zubarah. As you are aware Shaikh of Bahrain has an old standing
claim, as against the Shaikh of Qatar, to Zubarah ... Political Agent,
Bahrein, telegraphs that, in connection with this claim a somewhat
serious situation has arisen, briefly as follows. (a) Sheikh of Qatar has
ordered Rashid, head of section of Naim tribe living at Zubarah, to state
his loyalty tohim (the Shaikh) or be punished. (b) Attitude of Naim is
reported to be that, if they do not receive support from the Shaikh of
Bahrain against the Shaikh of Qatar, they will "adhere to Ibn Saud"." 77
That the Al-Thani demanded the allegiance of the Naim in 1937 testifies to the fact that
it had not yet been declared.
56. There is ample evidence that the Naim-led confederation was integrated into the
political economy of Bahrain, which extended throughout the islands of Bahrain and the
northern Qatar peninsula. Until the 1937 Al-Thani attack, the Naim customarily
travelled between the Zubarah Region and the islands of Bahrain. Many Naim families
had homes both in Zubarah and the islands. One historian has described the Naim's
seasonal migration as follows:
"[T]he migration by boat, which informants in Bahrain in 1986-1987 also
told about, was from Zubarah to Jau and Askar on the west coast of
Bahrain, and it took place with families, small animals, and even camels,
and to a lesser degree horses. In Bahrain the bedouins stayed in palm leaf
huts (basrati) close to wells where they had traditional rights or near the
sea, e.g. on small uninhabited islands. They grazed their animals in the
76
See BM Sections 2.11 and 2.13.
77 Telegram from the British Political Resident to the Britishy of State for India, 28 April
1937. Ann. 82, Vol. 2, pp. 259-259b.
-25- southern desert, as well as in the palmgrove area of the north. They were
involved in carrying traffic. "78
57. The seasonal patterns of pearling, fishing, winter and summer grazing, date
harvest and trade made the area a single political economy, as it had been for
millennia.79 The fact that there was sea between the two land masses did not signify a
division. On the contrary, for these seafaring peoples, the sea united them. This factor
was well stated by C.E.M. Hemingway of the India Office, in a letter to the Foreign
Office dated 12 May 1939, where he made the point in relation to the Hawar Islands
that:
"... in so maritime an area as the S. coast of the Persian Gulf, the 20
miles of easily navigable sea between ... [the Hawar Islands] and Bahrain
main island would be more of a link than a division. The persistence of
the Sheikh of Bahrain's interest in Zubarah is an instance of the
importance ofthis factor." 80
D. Qatar's description of the "ancient" history of Zubarah prior to its
founding by the Al-Kbalifa in 1762 is inaccurate and misleading
58. Qatar's Memorial makes the claim that Zubarah was settled in ancient times and
that during the 17th and 18th Centuries it was one of the principal merchant towns in the
81
Gulf of Arabia. Most of the alleged evidence presented by Qatar in support of this
claim is drawn from the 81 forged documents and will not be addressed.
59. An authentic document is reproduced in Annex 111.298,Vol. 8, p. 493 of Qatar's
Memorial - a 1986 Arabic history book by Mohamed Khalifa Al-Nabhani - in support
78 Klaus Ferdinand Bedouins of Qatar (1993), p. 41. BM Ann. 232, Vol. 4, p. 1013. See also BM
Section 2.1.
79
See discussion of Greater Bahrain in Section 2.2.A.
80 Letter from C.E.M. Hemingway (1.0.) to Foreign Office, 12 May 1939. BM Ann. 163, Vol. 4,
pp. 744-746.
81
QM paras. 8.3 and 8.7.
-26-of Qatar's claim that a town existed at Zubarah from early Islamic times. 82 However,
Qatar has mistranslated this document and used it out of context.83 Al-Nabhani's book
refers to the ancient Arab town of al-Zara, but Qatar's mis-translation has transformed
the radicals ZA(W)R (al-Zara) into ZBR (Zubarah). This is a spectacular mistake. The
author's intention to refer to al-Zara, and not Al-Zubarah, is confirmed in a different part
of the same document, cited by Qatar as its Annex 11.69,where Zubarah is referred to by
Al-Nabhani with the appropriate Arabic radicals "ZBR".
60. This mistranslation aside, it is quite incredible that Qatar is trying to use Al
Nabhani's book to equate al-Zara with Zubarah. Al-Nabhani's book does no more than
recount the well-known history of the Islamic conquest of Greater Bahrain, which is
described in many Arabic sources. Al-Zara was on the main Arabian coast, almost
certainly in the Qatif area. Accounts talk of its major spring ('Ayn al-Zara) 84, in
complete contrast to Zubarah which had no proper water supply.
61. Qatar cites Al-Nabhani again in Annex 11.69to support the proposition that
"The local sheikhs laid down a condition for their [the Al-Khalifa]
settlement: if they were to trade in Zubarah, they would have to pay the
usual taxes. The [Al-Khalifa] refused this condition and in 1768 built the
fort known as Murair at some distance outside the outer wall of
Zubarah." 85
Once again, the document cited by Qatar does not support the proposition for which it
has been invoked. In fact, it stands for entirely the opposite. This is yet another
example of the selective misquotation of evidence throughout Qatar's Memorial. The
12
QM para. 8.7.
83 See review of evidence in F. WOstenfeld, Bahrein und Jemima, (1874), pp. 6-10.Ann. 10,
Vol. 2, pp. 25-29.
84
See, in particular, Abu Mansur in Yaqut [1179-1228 AD] Mu'jam al-Buldan.Ann. 3, Vol. 2,
p.6.
as QM para. 8.9.
-27-cited text actually refers to the local sheikhs "wanting to impose a tribute" on the Al
Khalifa. But the timing of their demand was, significantly:
"After they [the Al-Khalifa] had settled in Zubarah and established their
86
rule there .... " (Emphasis added.)
Qatar fails to note that the text goes on to relate that:
"Sheikh Mohammed [AI Khalifa] refused to pay the tribute and fortified
himself in Zubarah by building a fort which is called today the Fort of
Murair." (Emphasis added.)
Qatar fails to mention that the Al-Khalifa defeated the local sheikhs at the Battle of
Sumaysma shortly after this demand, following which the Al-Khalifa forces largely
88
destroyed their town. Furthermore, Qatar also fails to note that the same author, in the
same text, attributes the founding of Zubarah to the Al-Khalifa in the mid-18th Century
89
(contrary to Qatar'sthesis).
62. In other words, even the historical accounts upon which Qatar relies do not
support its claim that there existed an ancient Zubarah before the Al-Khalifa.
63. The true history of Zubarah and the Al-Khalifa was recounted in Section 2.2 of
Bahrain's Memorial. Both Arab and Western historians date the founding of Zubarah
from the middle of the 18th Century. They also establish that Zubarah was founded by
90
the Al-Khalifa. Indeed, the fort built there by the Al-Khalifa was originally called
"Sabha" from the name of an original fort in the Utub (the Al-Khalifa tribe's homeland)
86 Al-Nabhani, pp. 82-83. QM Ann. 11.69,Vol. 5,p. 340.
87
Ibid
88 Bahrain Historical Document Centre AI Watheeka (Vol. 4) (1984]. Ann. 118, Vol. 2, pp. 373-
377.
89 QM Ann. 11.69,Vol.5, p. 340.
90 BM paras. 106-107.
-28- 91
and was built in such a way as to secure a water supply for Zubarah. From the earliest
days of the Al-Khalifa settlement of Zubarah, the Al-Khalifa developed strong bonds
with the local tribes of the Zubarah Region by virtue of economic influence, political
control, and intermarriage.
64. The archaeological evidence is equally clear in dating Zubarah to its foundation
by the Al-Khalifa. In his book Looking for Dilmun, Geoffrey Bibby, leader of the
Danish archaeologicalteam that visited Zubarah in 1956,states unequivocally:
"We had been rather chary of visiting Zubara, for our motives might well
be misunderstood, both by Sheikh Sulman of Bahrain and by Sheikh Ali
of Qatar. For Zubara is the ancestral home of the sheikhs of Bahrain, a
town in which the Al-Khalifah family had settled when, in the middle of
the eighteenth century, they had moved south from the neighbourhood of
Kuwait. ...
We had to see it. Although we ran the risk of being deemed Bahraini
spies, there was a possibility that Zubara was an ancient town ...
[A]fter lunch we collected potsherds, though we could already see that
Zubara was no ancient city. There was no tell [a mound created by the
remains of ancient settlements], except one in the making. The buildings
that were crumbling to ruins about us and being covered with sand would
one day be an even flattish mound that future inhabitants of Qatar might
well choose as a site for a new city. But these buildings were themselves
built upon the naked rock and sand of the foreshore - there had been no
92
city before the Zubara of the Al-Khalifah." (Emphasis added.)
65. These facts, together with those recounted in Bahrain's Memorial, demonstrate
that Qatar'sdescription of Zubarah is inaccurate and misleading.
91
Lam'al Shehab, Fi Sirat Muhammad b. 'Abd Al-Wahhab' (Edited by A.M. Abu Hakima), (1967),
p. 78. Ann. 113, Vol. 2, pp. 355-356.
92
G. Bibby, Looking for Dilmun,1970), pp. 122-123. Ann. 115-116, Vol. 2, pp. 364-366.
-29-E. Qatar'sdescription of the history of the Qatar peninsula until the middle of
the 19th Century prior to 1871 is inaccurate and misleading
66. Qatar's Memorial wrongly describes regional history during the period prior to
1871, apparently in the hope of supporting its claim that there existed an independent
State ofQatar. 93 As hasbeen pointed out before, this argument rests primarily on forged
documents.
67. The few authentic documents presented by Qatar are disingenuously misquoted
and used out of context. For example, paragraph 3.25 of Qatar'sMemorial states:
"Despite assurances by Britain that it would protect Bahrain, the Bin
Khalifa nevertheless acknowledged Egyptian supremacy in 1839 and
paid tribute to the Egyptians, themselves vassals of the Porte, in that
year".
This statement is inaccurate and misleading. First, Britain did not give assurances of
94
protection to Bahrain until 1861. Second, the Egyptian military expedition into the
Arabian peninsula was extremely short-lived (from 1839 to 1840). Third, the
expedition followed Egypt's declaration of independence from the Ottoman Empire on
25 May 1838. Fourth, the Ruler of Bahrain merely temporised with the Egyptian
general, Khurshid Pasha, to enable Bahrain to retain its independence. British records
note that the Ruler of Bahrain:
"considered his own interests were best consulted by his agreeing to pay
the Pacha so trifling a sum as 2,000 dollars a year, to secure the integrity
of his own territories, and the undisturbed possession of his own
authority over them." 95
93 See QM Chapters Ill and Vlll.
94 See Terms of Friendly Convention between Ruler of Bahrain and the British Government,
31 May 1861 (C.U. Aitchison, A Collection of Treaties Engagements and Sanads, (1933),
(hereinafter Aitchison'sTreaties), Vol. XI, pp. 234-236); BM Ann. 8, Vol. 2, pp. 110-113.
95 Warden et al., Historical Sketch of the Uttoobee Tribe of Arabs (Bahrein), 1856 from Selections
from the Records of the Bombay Government, No. XXIV, New Series 1850 pp. 361-425, in
Records of Bahrain, p. 47. BM Ann. 5, Vol. 2, p. 41.
-30- 96
Fifth, Qatar's Memorialfails to relate that the Egyptian invasion ultimately failed. The
situation rapidly returned to the status quo ante with the collapse of an independent
Egypt in 1840. There is no basis for even suggesting that this episode involved Bahraini
acknowledgement of Ottoman supremacy.
68. Similarly, Qatar's Memorial seeks to give the impression that Bahrain and the
Qatar peninsula were separate entities that were treated separately in terms of relations
97
and conflicts with the Wahhabi Emir and the Ottomans. This was not so. In the
1850s,there were conflicts between Bahrain and the Wahhabis over control of the Qatar
peninsula. But the Qatar peninsula- including the Doha confederation - was the object
of this struggle, not a participant. Thus, in 1851, the Wahhabis wrested Doha from
98
Bahrain, whereupon the Ruler of Bahrain blockaded Doha by sea. Eventually, the
Sheikh of Abu Dhabi mediated a resolution to the conflict whereby Doha was restored
to Bahrain and the Wahhabi Emir retreated to the Arabian hinterland. 99 Rather than
providing support for Qatar's claimthat there existed a unified Qatar under the Al-Thani
at this time, this incident confirms Bahrain'ssovereignty over the Qatar peninsula.
69. This was further confirmed by the British Political Resident in his report of 1854
in which he declared unequivocally that:
"The territory of Bahrain consists of the two islands of that name and the
line of coast extending from the bottom of the Bight in which they are
100
situated to the Khor al Odaid [Odeid]". (Emphasis added.)
96
Warden, op. cit., at p. 48. BM Ann. 5, Vol. 2, p. 42.
97
For example, see QM at Chapter III Sections 2, 3 and 4.
98 The LeQuesne Report on the Boundary between Saudi Arabia and Shaikhdoms of Qatar and
Abu Dhabi and the Sultanate of Muscat and Oman, 1953, hereinafter the LeQuesne Report, at
p. 91. Ann. 110-112, Vol. 2, pp. 340-352.
99
There is also evidence that Bahrain agreed to pay four thousand dollars to the Wahhabi Emir as
part of this mediation in return for a guarantee from the Wahhabis not to trouble Bahrain's
dominions.
100 LeQuesne Report, op. cit., p. 90. Ann. 110-112, Vol. 2, pp. 340-352.
-31-The "line of coast" described runs from the deepest indent of the Bay of Bahrain on the
coast of the Arabian peninsula (on the west side of the Qatar peninsula) all the way
around the Qatar peninsula to Abu Dhabi on the east. In other words: the territory of
Bahrain consisted of the islands of Bahrain and the entire Qatar peninsula. Nothing
during the 19th Century dislodged Bahrain's authority from the Doha region of the
peninsula until the Ottoman invasion of Arabia in 1871. Qatar's description is thus
baselessand misleading.
F. Qatar claims falsely that Britain and Bahrain acknowledged the Qatar
peninsula as a territorial unit under AI-Thani control from the mid-19th
Century
70. Qatar'sMemorialclaimsthat Britain and Bahrain recognised Al-Thani control of
the Qatar peninsula and recognised the integrity of the Qatar peninsula from the mid-
19th Century. 101 Even leaving aside the part of this assertion that is based on forged
documents, Qatar'sclaim is inaccurate and misleading. In the mid-19th Century the
Qatarpeninsula as a territorialunit remainedunder Bahrain'scontrol.
71. In describing Britain's early involvement in the region, Qatar's Memorial
(paragraphs 3.3 to 3.10) attempts to equate Britain's treatment of Bahrain with its
treatment of the Trucial sheikhs. This is entirely inaccurate. Bahrain was not part of the
Pirate Coast and, contrary to Qatar'sunsubstantiated assertion in paragraph 3.6, there
were no military operations conducted against Bahrain by Britain at that time. On the
contrary, Bahrain'straditional dominanceof the middle part of the Arab Gulf littoral led
Britain to acknowledge its different status. Britain's policy towards Bahrain was
expressedby the Governorof Bombay on 15December 1819as:
"[To] abstain from all interference... so long as he [the Ruler of Bahrain]
restrains his tribes from [piracy]... [i]f any indicationsa piratical spirit
101 QM paras. 3.38, 3.39, 5.1, 8.12, 8.23, 8.24, 8.27, 8.28, 8.29, 8.30.
-32- should manifest themselves, we shall be compelled to adopt those
measures of coertions [sic] which we are prosecuting against the [Trucial
sheikhs ]."102
72. Britain considered that the 1820 General Treaty, to which Bahrain- but no other
political entity related to the Qatar peninsula - was a party, included the territory of the
Qatar peninsula by virtue of its being a dependency of Bahrain. 103 Qatar's Memorial
itself expressly acknowledges that Britain considered that the General Treaty of Peace
applied to the Qatar peninsula 104
73. There are other manifestations of Britain's view that the Qatar peninsula fell
within the territory of Bahrain:
In 1823 Lieutenant McCloud toured the Arab littoral of the Gulf of Arabia to
compile a register of shipping. His reports note that in Doha, the local sheikh
confirmed that he was a dependent of Bahrain. After having obtained a list of
the local shipping there, Lieutenant McCloud continued on to the main island of
Bahrain where he satisfied himself that the Ruler of Bahrain was indeed in a
position to exercise proper oversight and control of the ships that were based in
Doha. 105
102 J.B. Kelly, Britain and the Persian Gulf, (1968) pp. 162-163.Ann. 114, Vol. 2, pp. 357-363.
Contrary to the implication contained in Qatar'sMemorial that Bahraini ports were patrolled, as
was the case on the Trucial Coast, no British naval vessels surveyed the Bahraini ports during
the years that followed (Lorimer, op. cit., Vom, p. 848. Ann. 45, Vol. 2, pp. 136-131.) Nor
was Bahrain a signatory to the First Maritime Trucef 1835 (renewed periodically) between the
sheikhs of the Trucial Coast. Indeed, Bahrain's territory, including the Qatar peninsula. was
protected after 1836 from attack by the Trucial Sheikhdoms through Britain'senforcementf the
maritime peace by virtue ofthe 1835 Truce. J.B. Kelly, op. cit., (1968) pp. 360-36Ann. 114,
Vol. 2, pp. 357-363. It is misleading to attempt to assimilate Bahrain into the Trucial system,
based on a very different form of relationship with the minor sheikhs located there and to which,
very belatedly, the Al-Thani were added, partially in 1916and moreUllyin 1935.
103 Lorimer, op. cit., Vol. I, pp. 793-794. BMAnn. 83, Vol.3, pp. 446-447. Indeed, a footnote to
Lorimer's text states: "The registration ships, as observed in the history of Trucial Oman,
ultimately proved to be impractical and was abandoned; but, in view of the indefinite status,
replete with political difficulties into which the Qatar promontory has now lapsed, it is much
be regretted that our officers did not continue to insist, as they did in Trucial Oman, on the use of
the Trucial flag. In this there could have been no real difficulty so long as Qatar remained under
the Shaikhs of Bahrain; and the maintenance of the flag might have stereotyped the dependence
of Qatar on Bahrain, and with it the principle ofBritish control over Qatar". (Emphasis added.)
104 QM para. 320.
lOS
Macleod Report, 27 February 1823, QM Ann. 11.15,Vol. 5, p. 17. Lorimer, op. cit., Vol. I,
pp. 793-794. BM Ann. 83, Vol. 3, pp. 446-447.
-33- In 1854, the British Political Resident reported to the Government of Bombay
that Bahrain'sterritory included the Qatar peninsula. 106
In 1859, Britain fined the Ruler of Bahrain two hundred dollars in respect of a
piracy committed by the inhabitants of Doha. 107
In 1863, the British Political Resident described his proposed tour of the Gulf as
starting in Bahrain and then proceeding:
"to the southward of that Chiefs Country and passing along the
coast line to visit the Chiefs of Abotabhee, Dibaye, Sharga,
Asjman Amalajoru and Rasul K.hyma." 108
Clearly the fact that the British Political Resident considered the first chief south of the
Ruler of Bahrain'sterritory to be the Ruler of Abu Dhabi excludes the possibility that
the AI-Thani or the Doha enclavewere considered to be separate from Bahrain.
74. In 1861, partly in order to stop the sea warfare between Bahrain and the
Wahhabis, Britain concluded a Perpetual Treaty of Peace and Friendship with Bahrain.
Under the 1861 Treaty, Bahrain undertook to refrain from all maritime aggression, and
Britain undertook to provide Bahrain with support in the maintenance of security of its
possession against aggression. 109
75. The treatment of this event in Qatar'sMemorial 110fails to mention that Britain's
protection was for "the maintenance of the security of [Bahrain's] possessions",
including the Qatar peninsula. The fact that it applied to the Qatar peninsula was
demonstrated shortly after the 1861 Treaty was ratified. In 1861-1862, ten years after
they had last been repulsed from the Qatar peninsula by Bahrain, the Wahhabis began to
106 LeQuesne Report, op. cit., p. 90. Ann. 110-112, Vol. 2, pp. 340-352.
107
Ibid
108
Report of the British Political Resident to the Political Department of the Government of 2ndia,
February 1863. Ann. 4, Vol. 2, pp. 7-9.
109 1861 Treaty, BM Ann. 8, Vol. 2, pp. 110-113.
110
QM para. 3.29.
-34-interfere again in the Qatar peninsula. Bahrain invoked Article 2 of the 1861 Anglo
Bahraini Treaty, by which Britain had agreed to assist in the protection of Bahrain's
111
territories. On 8 February 1862, the British Resident sent a letter to the Ruler of the
Wahhabis, warning that if the Wahhabis did not desist from their activities in the Qatar
peninsula, the Ruler of Bahrain would be free to "exercise his legitimate rights and
privileges", including by sea, and that Britain would respect and uphold any such
response by Bahrain to protect its sovereignty over the Qatar peninsula. 112 The Wahhabi
threat subsided. By 1866 Bahrain had reached an agreement with the Wahhabi Emir to
secure Bahrain'spossessions in the Qatar peninsula from aggression by other tribes from
the Arabian peninsula. 113
76. It was by virtue of the 1861 Anglo-Bahrain Treaty that Britain intervened in the
1867-1868 rebellion of the Doha confederation. As will now be shown, Britain's
reaction to that event was in no way indicative - as claimed by Qatar - of a new British
policy to consider Doha, much less the entire Qatar peninsula, as being somehow
separated from the rest ofBahrain. 114
Ill Article 2 stated:
"I agree to abstain from all maritime aggressions of every description ... so long as I receive the
support of the British Government in the maintenance of the security of my possessions against
similar aggressions directed against them by the Chiefs and tribes of this Gulf."
112
Letter from Capt. Jones, British Political Resident, to Rulerf the Wahhabis, 8 February 1862.
BM Ann. 9, Vol. 2, p. 114.
113
Lorimer, op. cit., Vol. I, (1915), p. 800. BM Ann. 83, Vol. 3, p. 453.
114 The British-imposed maritime peace in the Gulf in no way altered the territorial integrity of
individual sheikhdoms. For example, Britain recognised that Odeid belonged to the Shaikh of
Abu Dhabi but refused to allow Sheikh Zayed to violate the maritime peace by putting to sea
against the secessionist Qubaysat tribe, who had established themselves there by sea in 1878.
-35-G. The events of 1867-1868 did not amount to recognition of an independent
"State of Qatar", but rather the opposite
77. Qatar's Memorial claims that the events of 1867-1868 demonstrated the
independence of Qatar from Bahrain. 115 The contrary is true.
78. In 1867, in response to local resistance to his Governor in the Doha enclave, the
Ruler of Bahrain, joined by the Ruler of Abu Dhabi, led a joint naval military operation
116
to punish the insubordinate Doba confederation. Despite a request for assistance from
the Doha confederation in 1868, the Wahhabis declined to involve themselves again in
the Qatar peninsula. 117 After the Doha confederation embarked on an unsuccessful
naval raid against the main island of Bahrain, Britain intervened in accordance with the
1861 Treaty with Bahrain, to preserve the maritime peace. 118
79. The British Political Resident extracted unilateral personal undertakings from the
Rulers of Bahrain and Abu Dhabi, as well as from Muhammed bin Thani, chief of the
119
Doha confederation, not to engage in naval military activities. Muhammed bin Thani
bound himself to "maintain towards Sheikh Ali bin Khalifeh, Chief of Bahrain, all the
relations which heretofore subsisted between me and the Sheikh of Bahrain". 120 The
principal chiefs of the Doha confederation, describing themselves as living in the
115 QM paras. 3.38, 3.39, 8.12.
116 BM para. 126.
117
Lorimer, op. cit., Vol. I, (1915), p. 801. BM Ann. 83, Vol. 3, p. 454.
118 BM paras. 126-130.
119
Aitchison's Treaties, op. cit., pp. 236-237, 182-184 and 183-184 respectively. BM Ann. 317,
Vol. 6, pp. 1414-1416, BM Ann. 14, Vol. 2, p. 161 and BM Ann. 12, Vol. 2, pp. 157-158. The
undertaking of Muhammed bin Thani was discussed in BM paras.128-130. As the unilateral
undertakings were personal in nature, unlike Britain'spractice in relation to treaties with Arab
rulers, none was ratified by Britain.
120 Article5 Agreement of Chief of El-Kutr engaging not to commit any Breach of the Maritime
Peace, 1868, (Aitchison'sTreaties, Vol. XI, pp. 183-184). BM para. 127. BM Annex 12, Vol. 2,
pp. 156-158.
-36-"province of Qatar", agreed that the taxes and tribute payable by them to Bahrain would
be gathered from all of them on behalf of Bahrain by Mohammed bin Thani, acting as
121
tax collector. Bahrain's Memorial, at paragraphs 127-130, demonstrates that the
unilateral personal undertakings of the Rulers of Bahrain and Abu Dhabi and
Muhammed bin Thani of 1868were not treated by Britain as treaties.
80. Despite these facts, Qatar's Memorial imaginatively argues that the 1868
agreements (i) treated the Ruler of Bahrain and Muhammed bin Thani on an equal
footing; and (ii) showed that the Ruler of Bahrain'sauthority did not extend to Qatar. 122
The analysis above and in Bahrain's Memorial demonstrates this interpretation to be
false.
81. Furthermore, while describing the events of 1867-1868, Qatar's Memorial 123
itself gives examples of the exercise of Bahrain'sauthority in the Qatar peninsula at that
time:
124
Bahrain arresting individuals in the Qatar peninsula;
121 Aitchison's Treatiesop. cit.Vol. 2, p. 193. BM Ann. 13, Vol. 2, p. 160. The location of the
tribes listed in the 1868 Agreement emphasises the fact that the payment from the "Qatar
sheikhs" was only from those tribal groups constituting the Doha confederation. The source of
the payments was very circumscribed geographically; it was Doha and its hinterland on the east
of the peninsula, where relative prosperity had been founded on the eastern pearling zones. That
geographical division reflected the practical political division between Doha and the rest of the
Qatar peninsula. That political reality was inherited by the Ottomans in 1871. It remained until
the Al-Thani attack on Zubarah in 1937.
122
QM para. 3.38. Qatar argues that both the Rulerof Bahrain and Muhammed bin Thani agreed to
deliver a renegade Al-Khalifa sheikh to the British if he came into their control and that this
showed that the Ruler of Bahrain's authority did not extend to Qatar. However, this argument is
fallacious: the obligationof the Ruler of Bahrain was described as that of the Ruler of a
territorial state ("To consider Mahomed bin Kalifeh as permanently excluded from all
participation in the affairs Bahrein and as having no claim to that territory, and in case of his
returning to Bahrein promise to seize and make him over to the Resident") and the obligation of
Muhammed bin Thani as personal ("If Mahomed bin Kalifeh fall into my hands, I promise to
hand him over to the Resident").
123 QM paras. 3.30-3.32.
124
QM para. 3.30.
-37- Bahraini subjects in the Qatar peninsula apologising to the Ruler of Bahrain for
their behaviour; 125
the son of the leader of the Doha merchants supplicating the Ruler of Bahrain in
relation to taxes; 126
Bahrain imposing taxes throughout the Qatar peninsula; 127
Bahrain defeating and punishing the Doha rebels; 128and
129
Bahrain rejecting Wahhabi interference in the affair.
Documents cited by Qatar also confirm Bahrain's submission that:
the AI-Thani came to prominence in Qatar only in circa 1850; 130 and
the insubordination of the Doha confederation was a result of unhappiness with a
131
succession of Bahraini govemors.
82. Rather than providing evidence of an independent "State of Qatar", the historical
record confirms the political subordination of the Doha confederation to Bahrain.
83. In 1868, Britain restrained the Shaikh of Bahrain from proceeding militarily by
sea, even within his own territory and against his own subjects. Britain's action was
based on an obligation that arose from the 1861 agreement, something that Qatar's
132
Memorial itself acknowledges. It must be recalled that the Doha confederation was
not a party to the maritime truce, as was confirmed by Britain as late as in 1888. 133 The
125 QM para. 3.30.
126
QM para. 3.30.
127 QM para. 3.32.
128
QM paras. 3.31, 3.33.
129 QM para. 3.31.
130 Montigny-Kozlowska, op.cit.QM Ann. 11.74,Vol. 5,p. 399.
131
Ibid
132 QM para. 3.34.
133
India Office note to Foreign Office, 2 November 1888. Ann. 23, Vol. 2, p. 50.
-38-fact that the principal Sheikhs of the Doha confederation were held in breach of that
maritime truce clearly indicates that they too were subject to the 1861 Treaty. Since the
Treaty was bilateral, as between Bahrain and Britain, the only basis on which it could be
invoked against the Doha group was that Doha was a part of Bahrain.
84. Although Bahrain was punished by Britain in 1868 for violating the maritime
peace of the 1861 Treaty, the Doha confederation was punished by Britain for its
rebellion. In addition, the Doha confederation's submission to Bahrain was formalised,
as evidenced by their promise to pay the annual tax and to obey Al-Khalifa authority, as
"heretofore" (see paragraph 79 above and paragraphs 126 to 130 of Bahrain's
134
Memorial). Britain, acting according to the terms of article 3 of the 1861 Treaty
which laid down that the British Political Resident was the guarantor of disputes, settled
the existing dispute by guaranteeing that the tribute from the Doha confederation would
be paid to Bahrain, and insisted that if any purported breach of the obligations arose the
matter should be referred to the British Political Resident. In no way did this alter or
diminish the integrity of the Ruler of Bahrain's territories. 135
85. Any doubt as to the respective roles of the Ruler of Bahrain, the Naim-led
northern tribal confederation, the AI-Thani or the Doha confederation is dispelled by the
Understanding reached between the representative of the Ruler of Bahrain and the
representative of the Sheikhs of the Doha confederation, witnessed by the Assistant
British Political Resident, on 10 April1869. The relevant part of that document reads:
"We the undersigned Syad Maufid bin Syad Darweesh - authorised
Agent on the part of Sheikh Alee Chief of Bahrein; and Khamees bin
134
This intervention by Britain was similar to its intervention against an Al-Khalifa challenger in
Hasa in 1861, following the signing of the 1861 convention.
135 The British-imposed maritime peace in theGulf in no way altered the territorial integrity of
individual sheikhdoms. Pragmatically there was, of course, a consequential problem of how
individual Rulers in the Gulf could deal with rebels in their territory where it was separated from
the core of the state by sea. In the case of Bahrain the resolution to this problem was its use of
reliable loyal forces in the dependent territory: the Nairn confederation.
-39- Jomar Bookourara - authorised Agent on the part of Sheikh Mohomed
bin Tanee and all the other Chiefs of Guttur - who were depicted to the
high in rank·- Colonel Pelly Resident Persian Gulf for the purpose of
communicatingwith him on Affairsconnected with Guttur, have this day
the 27th Tilhaj 1285 appeared before the said officer, and have, .in his
presence, mutually agreed and arranged, in regard to the amount of
tribute payable on account of all the people of Guttur to Shaikh Alee bin
KhuleefaChief of Bahrein, as follows:
That a sum of nine thousand/9,000 Krans shall be paid every year
on account of all demands from Guttur.
That of this amount the sum of 4,000 Krans will be paid to Rashid
bin Jabbur Shaikh of the Naim tribe for his protecting Guttur, and his
receipt will be taken and sent through the Resident, to the Chief of
Bahrein.II136
This shows:
the payment from the Doha confederation was tribute;
that the Naim tribe was to act for the Ruler of Bahrain in collecting the tribute
and protecting "Guttur";
that the reference to the Sheikhs and people of "Gutter" was to the same
configuration as that referred to in the 1868 tribute agreement - the Doha
confederation;
that, as part of their financial support from the Ruler of Bahrain, the Naim were
to keep part of the tribute; and
that Britain endorsedthis arrangement.
86. Thus, as described in Sections 2.2 and 2.3 of Bahrain'sMemorial, the events of
1867-1868did not create an independent Doha -let alone an independent "Qatar." On
the contrary, as described above, they confirmed the paramountcy of Bahrain.
87. Thus, Qatar'stwo contentions, at paragraphs 3.38 and 3.39 of its Memorial, that
the events of 1867-1868implied recognition of an independent Qatar and of a maritime
buffer between Bahrain and Qatar are unwarranted and illogical. Qatar'sreasoning on
136
Understanding between the representative of the Ruler of Bahrain and the representative of the
Sheikhs ofthe Doha confederation, 10April186Ann. 5, Vol. 2, pp. 10-12.
-40-_thispoint is tautological: (1) the embryonic political entity that came to be known as
Qatar included the entire Qatar peninsula; (2) Bahrain did not include any of it; and (3)
neither was to use naval power for military endeavours, from which it followed that
their common boundary was the sea The premises and the conclusion are fallacious, as
hasbeen demonstratedabove.
H. Qatar claims falsely that a political entity called "Qatar" was recognised
prior to 1916 and that it included the entire Qatar peninsula
(i) The Ottomans acknowledged that they never had any control outside the
Doha enclave
88. Qatar'sMemorial asserts that the Ottoman Empire and the Doha confederation
exercised authority over the entire Qatar peninsula, and specifically over the Zubarah
137
Region, from 1871 to 1916. This is incorrect. Qatar'sclaim is based principally on
the forged documents,which will not be addressed.
89. The events of 1867-1868 confirmed the authority of Bahrain in the Qatar
peninsula A number of leaders in Doha soon resumed their attempts to avoid Bahrain's
dominion. To this end, in 1871, they instead subjected themselves to the authority of
the Ottoman Empire, following the Ottoman invasion ofNejd (the Ottoman term for its
territories in the Arabian peninsula). Although the Doha enclave succeeded in gaining
autonomy from Bahrain in this manner, it controlled a very limited territory. Bahrain's
Memorial adduced evidence showing that Ottoman and AI- 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. 138 In any event,
137
QMparas.3.14,and 3.43-3.54,and QMChapterVIII,Section2.
138 BM Section2.7.
-41-by 1874, the Doha confederation was under the control of an Ottoman-backed Al
Khalifa renegade. 139
90. In 1871, after the Doha confederation invited the Ottoman Empire to assume
control over its territory, the AI-Thani were given four Ottoman flags. Qatar claims that
this event signalled recognition that the AI-Thani controlled the entire peninsula 140
What Qatar's Memorial omits to relate is that the AI-Thani were told to raise the flags
on their territory. One of the flags was placed above Jasim bin Thani's house in Doha,
the second was sent to Wakra a few kilometres south of Doha, the third was given to Ali
bin Abd al-Aziz, chief of nearby Khawr, and the fourth was forwarded to a rebel Abu
Dhabi tribe in Odeid, to the south of Doha. 141 Thus, in 1871 the AI-Thani themselves
evidently considered that their territory was confmed to the area immediately in the
vicinity of Doha and the south-east of the peninsula.
91. The Ottoman entry into Doha reinforced the split between the Doha
confederation and the rest of the Qatar peninsula. Following the Ottoman invasion of
Nejd in 1871, the real boundaries in the Qatar peninsula lay between the Bahraini
northern and the increasingly Al-Saud southern Qatar peninsula. The latter occasionally
formed the tribal grazing grounds of the great nomadic tribes of Eastern Arabia. These
two were the principal political configurations that struggled for control over the Qatar
peninsula from 1871 to 1937.
92. In contrast, Doha and its hinterland was a small commercial enclave on the east
coast of the peninsula with a small Ottoman garrison. The authority of the Doha
confederation did not extend outside that enclave. This was understood even by the
139
Section 2.2.H.(ii).
140 QM paras. 3.14 and 3.43.
141
MajorS. Smith, Report of the Assistant Political Resident from Biddah, 20 July Ann..9,
Vol. 2, p. 18.
-42-inhabitants of Doha. For example, during the 1880s there was unrest amongst the
inhabitants of Doha, some of whom left the Doha enclave and the AI-Thani'sauthority
and moved to Fuwairat in the north of the Qatar peninsula. British records of 1886-
1887noted:
"Dissensions have, during the past few years, been rife amongst the
Arabs residing under the jurisdiction of Shaikh Jasim of El-Bida'a, and
bodies of seceders first settled at El-Foweyrat on the Katr Coast, where
they are to some extent under the protection of the Noeym tribe who
maintainintimatefriendlyrelationswith the ChiefofBahrain." 142
93. Throughout their occupation of the Nejd from 1871 to 1915, the Ottomans
themselves, in internal memoranda and correspondence at the highest level,
acknowledgedthat they never exercised any effective control over the Qatar peninsula,
apartfrom Dohaand its immediateenvirons. 143
94. Even as late as 1917,while the OttomanEmpirewas at war with Britain and still
laying claim to the Nejd (including Qatar and Bahrain), an Ottoman internal report
acknowledged that the Ottoman Empire had never exercised any authority over the
Zubarah Region. The report claimed that the Qatar peninsula came under the Ottoman
Empire during the 16th Century but admitted that it quickly drifted out of Ottoman
controlbecause of indifferentadministrationby the Ottomans:
"The issue of Qatar developed over centuries by the same processes as
those which had determined the issue of Kuwait, namely indifference on
142 Persian Gulf Residency and Muscat Political Agency Report for I888-I887, p. 7Ann. I8,
Vol. 2, p. 44.
143 For example, see Projected Ottoman Council of Ministers decision concerning Qatar re
negotiations with Britain, II March 1913, Ann. 37, Vol. 2, p. I18; Communications between
Vali of Basra and Ottoman Minister of the Interior re Zubarah, 30 November 19I1, Ann. 36,
Vol. 2, p. 116; Report from province ofBasra to Ottoman Ministry of the Interior, 25 September
1909, Ann. 35, Vol. 2, p. 113; Document from Ottoman Ambassador to London to Ottoman
Council of Ministers 28 February 1913 and the Grand Vizier's observations [undated], Ann. 38,
Vol. 2, p. I20; Telegram from acting Vali of Basra [to Grand Vizier] 8 March 1913, Ann. 39,
Vol. 2, p. I22; Note from Ottoman Minister of the Interior [to Council of MinistersNizier] 1I
December I908, Ann. 33, Vol. 2, p. 110; Letter from Mutasarrif ofNejd [to Grand Vizier], I7
October I891, Ann. 24, Vol. 2, p. 52.
-43- the part of the Ottoman authorities, coupled with England's desire for
control."144
The report asserted that Midhat Pasha's 1871 expedition again brought the peninsula
within the Ottoman Empire, but that his departure shortly thereafter allowed Britain to
seize it indirectly.45 The document noted:
"England's categorical language and its determination to prevent our
mudirs [local administrators] from settling in their posts, by force if
necessary, deterred the Imperial Government from resuming effective
administration of the aforesaid peninsula." 146(Emphasis added)
The report concluded its analysis by admitting that the Ottomans had no information of
a time when the Ottomans exercised genuine control over Qatar and noted that their best
information was the vague and unsubstantiated supposition that there had been no
Ottoman administration over the coast of Qatar since the early 19th Century "at the
least."147
(ii) The AI-Thani understood that the Doha enclave was subject to the Ottoman
protege and Al-Khalifa pretender- Sheikh Nasir bin Mubarak
95. In 1874, Jasim bin Thani complained to the Ottomans that, despite everything,
the Doha confederation remained subject to the effective exercise of Bahraini
authority.148 In response, the Ottomans sent Sheikh Nasir bin Mubarak Al-Khalifa, a
pretender to the throne of Bahrain, to Doha to be their agentprovocateur against the
144 Ottoman Reports concerning Bahrain, Qatar, Nejd and Basra, 29 May 1917. Ann. 47, Vol. 2,
p. 151.
145
The Ottomans attributed Britain'smotivation for its actovBahrain.
146
Ottoman Reports concerning Bahrain, Qatar, Nejd and Basra, 29ay 1917. Ann. 47, Vol. 2,
p. 151.
147 Ibid.
148
Letter from News Agent, Bahrain,to British Political Resident in Bushire, 14 October 1874.
Ann. 11, Vol., pp. 30-31.
-44-Ruler of Bahrain. 149 Sheikh Nasir spent the next several decades unsuccessfully trying
to expand ostensibly Ottoman (but really his own) interests in achieving ascendancy
over Bahrain from his base in Doha. However, as noted elsewhere, 150 each of the six
times he attempted to do so from the Zubarah Region, he and the Ottomans and Al
Thani were rebuffed by Britain and Bahrain.
96. Significantly, when Sheikh Nasir arrived in Doha, Jasim bin Thani announced
publicly that the Al-Khalifa pretender would be the Governor and he, Jasim, his
assistant.JSJ Thus the Al-Thani continued to acknowledge the Al-Khalifa authority. 152
The matter was put forward in a very candid manner by Sheikh Nasir during a secret
interview with British officials in 1881:
"Jasim in his own heart does not like that I should acquire independence
and power and he hasunderstood, the cause is this, that should I in the
meantime obtain my object (he fears) he would have no escape from my
clutches as you know Guttur and its environs were formerly under the
administration of the Shaikhs of Bahrain, and they (the people) were
regarded as subjects, but it is some time now that they have gone under
the authority of the Ottoman Govt; and are now repentant of their
149 Sheikh Nasir bin Mubarak had acquired Ottoman nationality and become an Ottoman protege.
He incited the Bani Hajir tribe's unsuccessful attack on the Naim tribe in 1873. He had
petitioned the Ottoman Sultan for restoration of his family's rights in Bahrain. which the Porte
duly took up with the British. He remained in Hasa until May 1874 when he was sent to Qatar.
(J.A. Saldana, The Persian Gulf Precis (1986), Vol. IV (hereinafter Saldana), Chapter XVI,
pp. 38-43. QM Ann. 11.7,Vol. 4, pp. 56-61.)
ISO See BM Section 2.7.
lSI
Letter from the News Agent, Bahrain, to British Political Resident, 14 October 1874.nn. II,
Vol. 2, pp. 30-31.
152
In Sheikh Jasim AI-Thani'swill,writtenin 1891 with a supplement in 1904, he invokes blessing
on three ofhis sons, Abdallah, Abd al-Rahman and Muhammad "les allies de Ia famille Khalifa".
This comes from a translation of Jasim's will published in A. Montigny-Kozlowska, "Le partage
des biens d'un ancien dirigeant de Qatar" published in Gast, M, ed. Heriter en Pays Musulman
(1987) pp. 43-54. Ann. 120, Vol. 2, pp. 383-396. Montigny-Kozlowska's comments also make
it clear that at the time of his death in 1913, Al-Thani power was limited to Doha, which he
ruled, and nearby Wakra, ruled by his son Abd al-Rahman.
-45- conduct and are very desirous of escaping from and getting out of the
authority of that Government." 153
97. Thus it was still the Al-Khalifa family, not the Al-Thani, that controlled the
destiny of the Doha confederation. The Doha confederation effectively continued to be
subject to one of the Al-Khalifa family branches, albeit through the Ottoman protege
Sheikh Nasir, and the AI-Thani publicly acknowledged this.
(iii) Bahrain's claim to rights in Zubarah was recognised by Britain
98. Qatar claims that Britain did not recognise Bahrain's rights in Zubarah. 154
However, the historical record shows that this wasnot the case. From 1871, the Ruler
of Bahrain wanted to act against the Doha confederation and Sheikh Nasir in order tore
institute their payment to Bahrain of tax and tribute, which had stopped with the arrival
of the Ottomans. However, Britain did not want to be dragged into a war- even a proxy
war - with the Ottomans. Therefore, Britain warned the Ruler of Bahrain that, in the
light of the Ottoman involvement in Arabia in general and Doha in particular after 1871,
Britain considered that it would not be bound by the terms of the 1861 Treaty to defend
the Ruler if he antagonised the Ottomans. The British Political Resident reiterated this
to the Ruler of Bahrain in 1874:
"I took the opportunity to repeat to you the advice you have so often
received from the British Resident to keep clear of the feuds on the
mainland, and especially to avoid giving offence to the Turkish
Government.
Having reported the nature of this conversation to the Government of
India, I am instructed by Government that if you should take any part in
153
Note from British Political Resident of secret interview with Nasir bin Mubamk at Guttur, 1881.
Ann. 17, Vol. 2, pp. 41-43. It is clear why in 1893 Sheikh Jasim had little difficulty with the
idea of having to pay tribute to the Rulers of Bahrain if he succeeded in breaking from the
Ottomans, as described in paragraphs 148 and 164 of Bahrain's Memorial. The Al-Thani were
caught between the Al-Khalifah Ruler of Bahrain (allied to Britain) and the Al-Khalifa Sheikh
Nasir (protege of the Ottomans).
154
QM paras3.46-3.54, and 8.12-8.30.
-46- complications on the mainland, the British Government will not
guaranteeyou protection." 155 (Emphasisadded.)
99. Britain advised the Ruler of Bahrain that "If such protection [under the 1861
Treaty] is to be accorded him, he must not be the aggressor or undertake measures ...
156
considered inadvisable by the British Government". He was to "abstain, as far as
practicable, from interfering in complications on the mainland." 157 (Emphasis added.)
However, this clearly did not amount to a prohibition. The Ruler of Bahrain clarified
for the Residentthat while he had been advised by Britain:
"to abstain from interferenceon the mainland; that he had carried out the
wishes of Government in this respect, but that he had never been
expresslyforbiddento throw up connectionwith Zobarah." 158
100. At paragraphs 297-301 of its Memorial, Bahrain discussed Britain's review of
the issue of Bahrain'ssovereigntyover the Zubarah Region. Contrary to the assertions
in Qatar's Memorial, British officials acknowledged as late as 1937 that Britain had
never decidedthat Bahraindid not have sovereigntyoverZubarah or that Qatar did. 159
101. After the arrival of the Ottomans in the region in 1871,Britain wanted itself, not
Bahrain, to take measuresto ensurethat the Ruler'senemies did not occupy the strategic
site of Zubarah. As described in Chapter 2 of Bahrain'sMemorial, Britain did protect
Bahrain's interests in the Qatar peninsula and expressly based its actions on its
protection of Bahrain'srightsthere.
ISS Letter from Lt. Col. E.C. Ross, British Political Resident to Sheikh Esau Bin Ali, Chief of
Bahrein, 12 December 1874. QM Ann. 111.30,Vol. 6, pp. 145-147.
IS6
Letterof instructions to British Political Resident, September 1873. QM Ann. II.7, Vol. 4, p. 61.
IS7
Ibid
ISS Report from Officiating 2nd Assistant British Political Resident to British Political Resident
8 March 1875. Ann. 12, Vol. 2, pp. 32-34.
IS9
Letter from Capt. Hickinbotham, British Political Agent, to Capt. Galloway, Secretaryritish
Political Resident, 16 September 1937. BM Ann. 159, Vol. 4, p. 732.
-47-102. The Ottomans recorded that Britain resisted their efforts to exercise authority in
the Zubarah Region specifically because of Bahrain'srights there. An Ottoman Foreign
Ministry Report on Zubarah dated 3 May 1897 observed:
"England claims that Zubarah is under the control of Bahrain which it
claims is under English protection, and England insists that the Ottoman
State hasno rights of sovereignty over it." 160 (Emphasis added.)
103. This clearly refutes the claim in Qatar'sMemorial that Britain did not recognise
161
Bahrain'srights in Zubarah.
(iv) Britain and Bahrain did not recognise Ottoman or AI-Thani rights in
Zubarah
104. Qatar's Memorial asserts that Ottoman and Al-Thani control over the entire
Qatar peninsula was recognised by Britain and Bahrain. 162 This is quite untrue.
Sections 2.5 and 2.6 of Bahrain's Memorial show by reference to the extensive and
unambiguous public record that neither Britain nor Bahrain recognised any such claim.
To this public record is added the account, in Section 2.7 of Bahrain's Memorial, of the
six occasions when 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.
105. British reports confirmed that in the 1880s discontented Doha inhabitants moved
to the north of the Qatar peninsula to leave AI-Thani jurisdiction and settled there under
163
the protection of the Bahraini-allied Naim.
160
Ottoman Report on the Zubarah Affair,May 1897. BM Ann. 63, Vol. 2, pp. 269-272.
161 For further discussion, see BM paras. 197-213.
162 QM Chapter 8.
163
Persian Gulf Residency and Muscat Political Agency Report for 1886-1887, p. 7. Ann. 18,
Vol. 2, p. 44.
-48-106. Sheikh Jasim AI-Thani expressly recognised the fact that his authority was
limited to the Doha enclave. In 1880, referring to Sheikh Nasir bin Mubarak, the
pretender to the Al-Khalifa throne discussed in Section 2.2.H.(ii) above, Jasim bin
Thani wrote to the British Political Resident that he had prevented Sheikh Nasir from
going to Bahrain from "my territory" and added:
"It is his intention to pass [to Bahrain] from the Northern parts either
from [Fuwairat] or from another place, and I have nothing to do with him
or his cousins or the Northern countries, for they belong to the parts of
164
Bahrain." (Emphasis added.)
107. In 1893, Jasim bin Thani, seeking himself to leave the Doha enclave in order to
escape from Ottoman jurisdiction, appealed to the British Political Resident for
protection, and moreover asked the Ruler of Bahrain:
"for permission to reside in the northern part of Qatar within the latter's
jurisdiction."165
The British Political Resident reported that Jasim wanted a place on the Qatar coast
under British protection other than Zubarah. Thus Jasim himself did not consider that
his or the Ottomans' jurisdiction extended beyond Doha and at the same time also
acknowledged that Zubarah could not be considered as his.
108. In 1888, Britain described what itconsidered as the area that comprised the Doha
enclave:
"Her Majesty's Government have declined to admit the claim of Turkey
to sovereignty over the El Katr Coast, while the Sultan
uncompromisingly asserts his rights over that coast. The Sheikh of el
Bidaa, on the eastern side of El Katr Peninsula, an independent Chief, not
a party to the maritime truce, has allowed the Turks to maintain a small
military post there since 1872 and Her Majesty's Government have never
164
Letter from Sheikh Jasim AI-Thani to the British Political Resident, 24 November 1880.
Ann. 15,Vol.2, pp.37-38.
165 Saldanaop. cit. 39. BM Ann. 70,Vol. 2,p.327; QMAnn.II.7, Vol. 4, pp. 59-61.
-49- protested against this assertion of Turkish supremacy on this portion of
the El Katr Coast.
... that Her Majesty's Government do not consider the Porte is in effective
occupation of the Arabian Coast beyond Katif, and that they adhere to the
declaration made in 1883 that the claim of the Porte to the rights of
sovereignty over the El Katr Coast is not admitted by Her Majesty's
166
Government."
109. Qatar has also suggested that Britain was aware of the various attempts by the
Ottomans to strengthen their toehold on the Qatar peninsula and yet did not interfere:
"The British did not seek to interfere with or prevent the establishment of
a Turkish presence in Qatar from 1871 onwards, nor did they seek to
interfere when Turkish or Qatari authorities sought to exercise control
167
over Zubarah."
110. This assertion in Qatar'sMemorial is not supported by reference to any evidence.
The historical record flatly contradicts Qatar's assertion.
111. Ottoman records acknowledging that Britain had prevented the Ottoman Empire
168
from exercising authority outside the Doha enclave - described above - are clear. In
addition to this there is the Ottoman report of Britain's and Bahrain's repudiation in
1895 of the latest unsuccessful Ottoman attempt to settle and administer the Zubarah
Region. That Ottoman government report noted that Britain:
"does not recognise that the Ottoman State has any rights of control over
these shores". 169
The point was driven home more dramatically in another Ottoman report from 1896:
"Zubarah, on the shores of the Persian Gulf ... was blasted by gunfire
170
from the British fleet ... "
166 Memo from India Office to Foreign Office, 2 November 1888. Ann. 23, Vol. 2p. SO.
167
QM para. 8.15. See also QM paras. 3.49etseq.
168 Paras. 93 and 94, above.
169
Ottoman Report on Bahrain, 16 September 1895. Ann. 26, Vol. 2, p. 90.
-50-Yet another Ottoman government report a year later observed:
"England claims that Zubarah is under the control of Bahrain which it
claims is under English protection, and England insists that the Ottoman
State has no rights of sovereignty over it." 171
A report from the Ottoman Council of Ministers (Cabinet) in 1900 reviewed the history
ofBritain's rejection of Ottoman claims relating to Zubarah and concluded:
"According to our understanding of these declarations, the Ottoman State
does not recognise England as having any legal rights and as a result of
the communications that actually took place between them, as far as we
know, England will not give up claims on Zubara and Odeid." 172
(Emphasis added)
A document of the Ottoman Council of Ministers (Cabinet) from 1913 notes:
"England is still opposed to the [Ottoman] administration [of Qatar] and
has not recognised the sovereignty that the Ottoman State tried to
establish in the Katar region. England relies on the guarantee given to
the English Ambassador in Istanbul on December 1Oth1871 ... that the
Sublime Porte had no intention of inciting the independent tribes who
lived on the Gulf of Basra's shores, or of retaining power and influence
over them. Finally a stand had to be made against English threats to
expel the officials and to attack those sent to Ujeyd, Vakra and Zubara.
Furthermore the English warships blasted Zubarah with gunfire and
completely destroyed it. Now the English insist even more that they do
not confirm Ottoman rule on the shores south of the Ujeyr harbour, and
they wish us to cut off connections with the Katar peninsula. Therefore it
is vital to remove disagreements by putting an end to fruitless efforts to
impose sovereignty in the Katar peninsula." 173 (Emphasis added.)
112. Thus the historical record shows that Bahrain, Britain, the Ottomans and the Al
Thani understood, at the relevant time, that the Ottomans and the Al-Thani had no rights
170 Ottoman Report concerning Zubarah and Bahrain, 12 February 1896. Ann. 27, Vol. 2, p. 93.
171
Ottoman Report concerning the Zubarah affair, 3 May 1897. BM Ann. 63,ol. 2, pp. 269-272.
172
Ottoman Report on Bahrain from the Council Chamber, 22 April 1900. Ann. 28, Vol. 2,
pp. 96-97.
173 Projected Ottoman decision concerning Katar, II March 1913. Ann. 40, Vol. 2, p. 125.
-51-outside the Doha enclave, and in particular not in Zubarah. It is only now that Qatar
wishes toalterhistory.
113. The record of Britain's responses to the Ottoman and Al-Thani attempts to
expand their influence beyond the Doha enclave, described in Bahrain's Memorial at
Section 2.7, shows that Britain was quite prepared to act against the Ottomans and the
AI-Thani when they ventured beyond Doha, and did so in order to defend Bahrain's
territory underthe 1861Treaty.
114. These are but samplestaken from a mass of historical evidence refuting Qatar's
allegations.
115. Evidence in Qatar's own Annexes contradicts its claim on this point. For
example, paragraph 3.49 of Qatar'sMemorial notes that Britain did not prevent the
Ottomansfrom supplementingtheir guard post in Doha However, Qatar omits to relate
the remainder of the episode: when Britain found that the Ottomans were planning to
appoint mudirs (local administrators)for Zubara and Udayd, Britain took the matter up
with the Ottoman government in Constantinople and successfully prevented the
appointments. 174
(v) 1896-1910: Fifteen critical years that are passed over without comment in
Qatar's Memorial
116. It is significant that the discussion in Qatar's Memorial.of the history of the
region at this juncture fails to describethe period from 1895 up to the negotiations that
led to the 1913Anglo-OttomanConvention. By leaving out more than 15years, Qatar's
Memorial omits significant events that are entirely inconsistent with Qatar'sclaim that
174
Saldanaop. citpp. 35-36. QM Ann. 11.8,Vol. 4, pp. 221-222. See also BM Section 2.7. It is
deliberately misleading to cut the story off at the point where Qatar's Memorial paragraph 3.49
does.
-52-there was an independent, recognised political entity known as Qatar that controlled the
Qatar peninsula.
117. From the early 1890s, when Sheikh Jasirn bin Thani tried to obtain the protection
of Bahrain and Britain and to flee the Ottomans and the Doha enclave, 175internal Al
Thani family squabbles dissipated what little central authority existed in Doha. This
was recognised by Britain, as is evidenced by the following:
In 1900, part of the AI Bin Ali tribe which had joined the Doha confederation
following the events of 1895, attacked a group of pearl fishers, thinking that they
were responsible for the death of the AI Bin Ali chief. 176 Britain punished the
responsible AI Bin Ali group without paying any heed to the fiction that the
sanction should be carried out by, or even in the name of, the AI-Thani.
Also in 1900, a group from the Beni Hajir tribe based in Doha and thus
ostensibly under the "authority" of the AI-Thani, violated the maritime peace.
Britain intervened in order to provide some sort of effective authority, given the
absence of Ottoman administration. Again, British officials indicated no
177
recognition of any AI-Thani authority.
In 1903, the Ottomans proposed to establish their administration in Zubarah.
Britain confronted the Ottomans, citing Bahrain's sovereignty over Zubarah, and
the Ottomans backed down. 178
118. Britain was concerned by the vacuum of authority in Doha because, while the
rest of the Arab Gulf littoral was subject to the maritime truce and was controlled by
175 See BM paras. 146-155.
176 Lorimer,op. cit.Vol. II, p. 1508. QM Ann. 2.4, Vol. 3, p. 61.
177
Lorimer,op. cit., Vol. I, p. 834. Ann. 45, Vol. 2, p. 1405.
178 BM paras. 183-186.
-53-identifiable rulers who could be held responsible for the control of their subjects, there
were no comparable rulers in that part of the Qatar peninsula around Doha which was
under the nominal control of the Ottomans and the AI-Than.i. This led Britain, from
1900, to consider setting up one of the AI-Than.ibrothers as ruler of the area and
incorporating it within the Trucial system. 179 The internal debate in the British
Government about whether to create a protectorate within the Qatar Peninsula using the
AI-Thani was resolved in 1903 against the idea. 180 The AI-Thani clan were considered
to betoo weak even within the Doha enclave to merit Britain'ssupport.
119. It was during this period that Britain considered various means to endorse and
give effect to Bahrain's claim to the Zubarah Region as a means of controlling the
peninsula. In 1902, the British Political Agent suggested that Bahrain should have
181
Zubarah and leave the rest of the peninsula to the AI-Thani. He later suggested that
Bahrain might formally send a representative to occupy Zubarah. 182 In 1903, the British
Political Resident, referring to the sixth and final unsuccessful attempt by the Ottomans
to establishtheir authority in the Zubarah Region, observed:
"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 appendage of his, and whose rights we are bound to
maintain ... "183(Emphasis added.)
120. In 1905 Britain considered re-establishing Bahrain'ssovereignty over the entire
Qatar peninsula except Doha, noting that the AI-Thani controlled only the Doha
179 BM paras. 151-155.
180
BMparas. 154-155; BM Ann. 70, Vol. 2, pp. 340-341.
Ill
Letter from J.C. Gaskin, Assistant British Political Agent to Lt. Col. C.A. Kemball, British
PoliticalResident, 22 March 1902. Ann. 29, Vol. 2, pp. 98-99.
182 Letterfrom J.C. Gaskin, Assistant British Political Agent to Lt. Col. C.A. Kemball, British
Political Resident, 29 March 1902. Ann. 30, Vol. 2, pp. 100-102.
183
Letter from Lt. Col. Kemball, British Political Resident, to Govt. of India, 23 March 1903. BM
Annex 67, Vol. 2, p. 281.
-54-enclave. 184 The idea of increasing the Bahraini population in Zubarah and forming an
185
alliance between the Ruler ofBahrain and Sheikh Jasim bin Thani was also proposed.
It is clear from these documents that Britain was contemplating at the very least a
formal entrenchment of the existing north/south division of the Qatar peninsula that has
been described in Section 2.2.B above. In 1909 the Ottomans recognised that their lack
of authority in the north of the Qatar peninsula was giving Bahrain free reign to
strengthen its position there. 186
121. It was in this context of strengthening Bahrain's presence in Zubarah that Britain
attempted to obtain Jasim bin Thani's recognition, in 1911, of a plan to increase in the
number of Bahrainis living in the Zubarah Region. 187 Given the full description of the
circumstances, one can see how inaccurate it is for Qatar's Memorial to invoke this
event as demonstrating that Britain understood that Qatar had full and effective control
over the Qatar peninsula. 188 Qatar failed to mention that the same Ottoman report cited
in its Memorial recorded that a similar approach to Sheikh Jasim was made by Abu
Dhabi, to the south and east of Doha. 189 Britain's attempt to entice Jasim bin Thani into
agreeing to the dejure recognition of the de facto situation in the peninsula was part of
concerted action by Britain to follow a policy that was described by British officials as:
184
Memorandum from Major Cox to S.M. Fraser, British Political Resident, 16 July 1905. BM
Ann. 71, Vol. 3, pp. 355-363.
185
Memorandum from Capt. Prideaux, British Political Agent to the British Political Resident,
23 December 1905. Ann. 31, Vol. 2, pp. 103-105.
186 Report from the Vilayet of Basra to Ottoman Ministry of the Interior, 25 September 1909.
Ann. 35, Vol. 2, p. 113.
187 Britain even tried to entice Sheikh Jasim AI-Thani with money. See QM para. 8.26.
188
QM para. 8.26.
189 QM Ann. 111.56,Vol. 6, p. 266.
-55- "devoted to contracting this Chiefship [Sheikh Jasim] to its narrowest
possible limits." 190
122. In 1908, the AI Bu Aynayn tribesmen, living in the Wakra part of the Doha
enclave, 191appealed unsuccessfully to the Ottomans for support against the excesses of
the AI-Thani. 192Fed up with the AI-Thani, the AI Bu Aynayn removed themselves from
Doha, first to Kuwait and then to Jubayl, where they came under Ibn Saud's protection.
The Doha confederation was unravelling.
(vi) The negotiations over the unratified 1913 Anglo-Ottoman Convention
123. Qatar's Memorial claims that the unratified 1913 Anglo-Ottoman Convention
"recognised" the autonomy of the Qatar peninsula under AI-Thani rule, "as in the
193
past." The historical record contradicts this assertion.
124. In 1911, Britain and the Ottoman Empire began negotiations to deal with their
relations in Arabia in relation to a variety of linked issues - including the Baghdad
railway, the geopolitics of the Gulf, customs dues increases- which had implications
for the Qatar peninsula. At the end of 1913, the two Powers reached a provisional,
unratified and partial agreement dealing with the Gulf, known as the Anglo-Ottoman
Convention. 194 However, this document was overtaken by much more significant events
almost before it was signed. Though it was never ratified and so had no legal effect, it is
190 Undated memo forwarded from Major Cox, British Political Agent to British Political Resident
included inmemo from British Political Agent dated 16 July 1905. BM Ann. 71, Vol. 3, pp.
355-363.
191 Wakra was located a few miles south of Doha, and is today a suburb of it.
192
Administrative Report on the PersianGulf Political Residency for April to December 1908,
Calcutta, Superintendent Government Printing, India, 1909, p. 5. Ann. 34, Vol. 2, p. 111.
193 QM paras. 3.57, 8.27-828.
194
Qatar acknowledges the nature of the 1913 Convention: see QM para. 3.58.
-56-noteworthy that Britain, from the outset in 1911, expressly protected the interests of the
Ruler of Bahrain in the Qatar peninsula:
"[A]ny lasting settlement between the two Powers must provide for the
definite renunciation by the Ottoman Government of Bahrain and
adjacent islands and of the whole of the Peninsula of El Katr (including
El Bidaa), wherethe Shaikh of Bahrain has important rights." 195
It merits noting that in 1913 the Ruler of Bahrain reminded Britain of his right to levy
196
tribute from the tribes on the Qatar peninsula.
125. In contrast, the final text of the abortive Convention relating to the Qatar
peninsula was the result of a last-minute political manoeuvre put forward on the spur of
the moment by the Ottoman Minister to London in 1913. After having described the
futility of continuing to insist on Ottoman claims relating to "El-Katar peninsula" and
noting that the Ottoman persistence "greatly offends the English", the Ottoman Minister
related that:
"Iprovided information that we could give up our claims in El-Katar with
some conditions; these suggestions were my own ideas- e.g. that (Katar)
should not ·be part of Bahrain, or be loyal to England or under its rule
••• "97(Emphasis added.)
In other words, this was not a grounded policy decision, but a personal, eleventh-hour
idea by the Ottoman Minister in London to enable the Ottomans to save face.
126. As indicated above, the draft never became a Convention and is neither legally
relevant nor historically determinative. 198 The parties themselves recognised that it was
195
See British memo 29 July 1911, as reproduced in J.C. Wilkinson, Arabian Frontiers: The Story
ofBritain's Boundary Drawing in the Desert, (1991), p. 90. Ann. 121, Vol. 2, pp. 397-409.
196 BM para. 192.
197 Note from Hakki Pasha, former Grand Vizier, at his post in London 25 February 1913. Ann. 37,
Vol. 2, p. 118. His other suggestions were to recognise the AI-Thani role in Doha and give him
an administrative role.
198 See also BM paras. 27 and 192-194.
-57-not a definitive document. The official report of the Ottoman Council of Ministers
(Cabinet) on the 1913Convention,written in February of 1914,noted:
"The written agreement on Basra and its environment, the agreement to
abolish the English post-offices in Ottoman territory, to include the
participation of the English government in discussions about securing
agreement with other states to amend previously negotiated agreements
over matters of justice - this agreement signed by Edward Grey
instituting a temporary state of law, is to be submitted for the Sultan's
approval.
The agreement and declaration of 29th July 1913, signed by Sir Edward
Grey and Hakki Pasha [the Convention], concerning the temporary nature
of the documents, which will, under the conditions of the diplomatic
note, allow for amendments or reciprocal exchanges of ideas, have all
been submitted to the General Council of Ministers for their
consideration." 199(Emphasis added.)
127. The 1913Conventionwas not ratified because the complex set of interdependent
proposals, of which the part relating to Bahrain and Qatar was but a small aspect,
ultimately fell apart. 200 Even as the ink was drying, the 1913 Convention had become
largely irrelevant: the Wahhabis, under Ibn Saud, had ejected the Ottomans from Hasa
on the eastern coast of Arabia; the AI-Thani clan was rapidly losing its control over
Doha; and the Ruler of Bahrain remained in possession of the northern part of the Qatar
201
peninsula and other territories supposedly given away under the 1913 Convention. As
the Saudi Memorial in the Buraimi Arbitration put it:
"[T]he non-ratification of the 1913 Convention became a permanent fact
of history".202
199 Official report of the Ottoman Council of Ministers, 1 February 1Ann. 43, Vol. 2, p. 131.
200
J.C. Wilkinson,op. citp. 99.Ann. 121, Vol. 2, pp. 397-409.
201 Memo from British Political Resident to Governmentof India, 30 June 1913. Ann. 41, Vol. 2,
pp. 126-127.
202
J.C. Wilkinson, op. cit.p. 99. Ann. 121, Vol. 2, pp. 397-409. The argument in Qatar's
Memorial at paragraph 3.58 for the validation of the boundary described in the 1913 text
because of the existence of the ratified Anglo-Ottoman 1914 Treaty that defines the Aden
territory is quite speciousIt is indefensible to maintain that the by-line in Article 3 of the
ratified (3 June 1914) Aden frontier had a "larger scope" than Article 11 of the 1913
-58-I. Qatar claims falsely that the 1916 Treaty between Britain and the Chief of
Doha included the entire Qatar peninsula
128. Even before the-withdrawal'of the Ottomans from Doha in 1915, the Doha
confederationrecognisedthat the greatestthreat to its hope for an independent existence
came from the activities in the south of the Qatar peninsula of the Wahhabis under Ibn
Saud.2° At about this time, Sheikh Jasim bin Thani died. His successor, Sheikh
Abdullah Al-Thani, signed the 1916 Treaty with Britain because he was desperate for
protectionfrom the Saudis,who were rapidly filling the vacuum in Arabia caused by the
departure of the Ottomans. 204
129. Qatar claims that the 1916 Treaty recognised the continuity of Al-Thani rule in
205
Qatar from 1868. Qatar provides no authority for this assertion; it seems to be based
on Qatar'sanalysis of the forged documents. Nothing in the text of the 1916 Treaty
supports it. Only the preamble makes reference to 1868. In it, Abdullah Al-Thani
acknowledgesthat the unilateralpersonal undertakings of his grandfather of 1868 "have
developed [sic: devolved?] on me his successor in Qatar." 206 There is no discussion in
the Treaty of the quality or extent of Al-Thani authority either in 1868 or at any
subsequent time. Qatar's Memorial implicitly recognises this elsewhere when it
acknowledges that the territories of Sheikh Abdullah are not defmed in the 1916
Treaty. 207
Convention, whose ratification was continuously put off because of the immensely complicated
linked issues on which this Convention was dependent.
203 Telegram from British Political Resident to Foreign Secretary of India, 31 August 1913.
Ann. 42, Vol. 2, p. 128.
204
This threat was recognised by Britain. Letter from British Political Resident to Foreign
Secretary of India, 15 September 1914. Ann. 44, Vol. 2, pp. 132-135.
205 QM para.3.61.
206 BM Ann. 84, Vol. 3, p. 513.
207
QM paras. 5.43, 5.47, 8.28.
-59- 130. Qatar's Memorial claims that Britain recognised the entity called Qatar that
emerged afterthe 1916 treaty between Britain and the Chief of Doha as including. the
entirety of the Qatar peninsula. 208 Qatar offers no support for this assertion other than
the forged documents and its own unsupported assertion that:
"Although the extent of Qatari territory was not explicitly defined in the
Treaty, the British had obviously for many years prior to 1916 clearly
recognised that Zubarah was part ofQatar." 209
Qatar'swishful repetition of its assertion does not make its claim obvious.
131. As Bahrain described in its Memorial, and as acknowledged m Qatar's
Memorial, the 1916 Treaty did not define what constituted the territory of the Sheikh of
Qatar. 210 The area controlled by Sheikh Abdullah and the Doha confederation was very
limited, being in reality nothing more than the enclave of the Doha confederation.
132. In fact, Qatar'spresent claim is contradicted by both of the parties to that Treaty.
In March 1934, while discussing the 1916 Treaty with the British Political Resident,
Sheikh Abdullah AI-Thani confirmed:
"The [1916] Treaty does not include the interior but only the coast ... " 211
"The coast" refers to Doha and its environs; the text explicitly excludes "the interior".
This view was shared by Britain. In 1934, during the ongoing debate within the British
Government as to what constituted the territories of Sheikh Abdullah, it was observed:
QM paras.3.61, 5.47, 8.28.
209 QM para. 8.28.
210
See BM paras.217-219. Qatar also asserts that the extent of Qatar's territory under the Treaty
was somehow understood to be the same as it was under the Ottomans. Bahrain bas
demonstrated inSection 2.2.H above that the entity "Qatar" that existed under the Ottomans was
recognised by Bahrain, Britain, the Ottomans and tAI-Thani as limitedto the Doha enclave.
Furthermore, the 1916 Treaty was personal and not hereditary. See BM para. 222.
211 Report of the British Political Resident, 12 March 1934 at p. 420. Ann. 122, Vol. 2,
pp. 410-413.
-60- "Presumably we do not want to add to the hinterland of Qatar large areas
which the Sheikh may not be able to protect and which we should find it
212
difficultto make secure for oil concessionaires."
Clearly both parties considt:redthat the territory of Sheikh Abdullah was quite limited.
133. The historical conflict for control of the Qatar peninsula was between Bahrain
(and the Nairn tribe) in the north and the Saudis (the Wahhabis of the 19th Century) in
the south. Qatar's Memorial, which partly acknowledges this when it discusses the
Saudi claim to territories in the Qatar peninsula afterthe Ottoman departure from the
region, 213fails to relate the full story.
134. Britain was reluctant to protect Sheikh Abdullah by land. Such protection was
not given in the 1916 Treaty. In 1921, Sheikh Abdullah solicited Britain'sprotection in
the event of an attack from Ibn Saud. He was told that Britain:
"might perhaps if Doha is threatened and British subjects or property
endangered send a ship there." 214
135. In 1922 the British Political Resident acknowledged the very real likelihood that
"Qatar" would cease to exist:
"I think it would be a pity if Qatar disappeared as a separate entity; from
our point of view it is convenient to have the rulers of the coastal districts
on the coast, but I do not see any practical means of preventing peaceful
penetration of the country by Ahkwan or Bin Saud'sadherents." 215
212
India Office Memo, 11 January 1934. Ann. 66, Vol. 2, pp. 217-219. In 1947, the British
Political Resident reported:
"In fact, as theolitical Agent points out, the Shaikh of Qatar is a late arrival on the scene. He
only consolidated his position on the mainland as recently as 1937 .... " Letter from British
Political Residento Secretary of State for India, 18 January J947. QM 111.250,Vol. 8, p. 344
213
QM para. 3.59.
214 This threat was recognised by Britain. Letter from British Political Resident to Foreign
Secretary of India, 13 May 1921. Ann. 48, Vol. 2, pp. 152-154.
215
Despatch from Lt. Col. A.P. Trevor, British Political Residento Denys de S. Bray, Foreign
Secretary to the Government of India, 10 November 1922. Ann. 51, Vol. 2, pp. 162-166.
-61-140. This view was evidently shared by Saudi Arabia. In relation to his discussions
with the Saudi Foreign Minister in 1935, the responsible British official reported:
"In conversation, moreover, Sheikh Yusuf Yasim made some attempt to
define the territories of the Sheykhdom of Qatar as having originally
consisted of an enclave comprising Doha itself and a limited surrounding
area known as Sa:ffat." 223
141. The limitation of Sheikh Abdullah's control over the Qatar peninsula to the town
of Doha and its environs was reiterated by Saudi Arabia in 1934 in a communique sent
to Britain:
"3. It is known among the Arab tribes that the confmes (frontiers) of
Qatar are the confmes (frontiers) of the inhabited towns and villages and
that at those points the confines (frontiers) of the countries generally
known to form the part of [Saudi Arabia] end ...
4. All the tribes living b~twe ehn coastal towns of Qatar and the coast
of Oman and the Hadhremaut belong to the Saudi Arab Kingdom, are
entirely submissive to the laws of the country, pay Zakilt [religious tax],
and are obedient to the calls of the Government in the time of war (Jihad)
etc ..n224
142. In 1932, British officials contemplated the territory of Sheikh Abdullah, which
Britain should protect, was limited to the town of Doha, or perhaps along its coast. 225
143. Sheikh Abdullah's lack of control over the Qatar peninsula was forcefully
demonstrated in 1933 when he was tempted by Britain to ignore his dependence on
Saudi Arabia and give an oil concession to a British company. Sheikh Abdullah was
promptly summoned to Riyadh and reprimanded by Saudi Arabia. Sheikh Abdullah's
limited role as ruler of Doha and its environs was made explicit by King Ibn Saud, who
223 Despatch from A.S. Calvert to SirS. Hoare, 10 September 19Ann. 69, Vol. 2, p. 228.
224
Foreign Ministerof Saudi Arabia to British Foreign Office 20 June 1934Ann. 68, Vol. 2,
pp. 225-227.
225 Letter from the Britisholitical Resident to the Foreign Secretary of India, 7 June 1932.
Ann. 56,Vol. 2, pp. 192-196.
-64-was angered that his control over oil concessions in territories he considered his was
being questioned by Sheikh Abdullah. 226
144. Sheikh Abdullah himself acknowledged the limited area under his control. In
1933, the British Political Agent reported to the British Political Resident that Bahrain
continued to make claims to "areas on the Qatar coast". He continued:
"That these claims are not regarded locally as dead and gone is shown by
the fact that I have heard mutterings that the explorers of the Anglo
Persian Oil Company Limited in Qatar have examined places to which
the Ruler of Qatar had no right to allow them to go, and which people
from Bahrain frequent to this day as a summer resort; indeed, it is said
that as late as last year (1932) the Ruler of Qatar admitted in public that
certain areas on the Qatar coast pertain to Bahrain. "227 (Emphasis added.)
This reported admission by Sheikh Abdullah is given further credence by a British
report in 1937:
"It seems fairly evident that the Ruler's desire to protect the interests of
the inhabitants on the east coast is due to the fact that he owes his
position as Ruler to their support in the past whereas the Bedawin who
roam the western areas have hardly recognised his control, favoured the
Ruler of Bahrain by whom many were subsidised and by their migrations
228
into Saudi Arabia are susceptible to outside influences. "
145. Contrary to the assertion in Qatar'sMemorial, Britain, Sheikh Abdullah of Qatar
and the Saudis shared the same view. In 1934, the British Cabinet was considering
whether to offer protection to Sheikh Abdullah in exchange for his granting an oil
concession to a British company (see further Section 2.3.G below). A Foreign Office
Memorandum prepared in that context noted:
226
Letter from C.S. Burnett to the British Political Resident, 28 November 1933. Ann. 65, Vol. 2,
p. 216.
227 Letter from the British Political Agent to the British Political Resident, 29 May 1933. Ann. 59,
Vol. 2, pp. 203-206.
228 British Report 1937. Ann. 122,ol. 2, pp. 410-413.
-65- "The only dangers against which the Sheikh might need to be protected
would come from either (a) Ibn Saud or (b) the tribes of the
229
hinterland."
The Memorandumdiscussed whether Sheikh Abdullah would be able to protect himself
in suchan eventuality and concluded:
"This would probably in any case be impossible, since our accounts of
the Sheikh are that he is little more than a large merchant and his territory
is very sparsely inhabited by tribesmen over whom he appears to exercise
a very loose control." 230
146. Bahrainemphasisesthat this Memorandumwas written in 1934.
147. As late as 12April1937, the British PoliticalAgent noted:
"I told the Resident that I thought that Bahrain had a real claim to
Zubarah as Shaikh !sa'sorders certainly used to be obeyed and the place
is inhabited largely by persons from Hidd and from Rifa [both towns in
the main Bahrain Island] and no Qatar customs are taken. I explained
that the Zubarah area was a large semi-circular enclave with towers
around it ... I finally begged the Resident not to suggest any course to
Government until he had had an opportunity of finding out the Shaikh's
attitude in the matter ...231 (Emphasisadded.)
148. In a telegram dated 30 March 1937,the British Political Agent confirmed that:
(a) in addition to the Nairn, other important Bahraini families lived in the
Zubarah Region;
(b) those families made their living from fishing (with boats and fish traps);
(c) the Ruler of Bahrain sent orders if the occasion arose to people who lived
there (the telegram refersto the practice of the previous Ruler of Bahrain,
who died in 1932, in that regard by stating that he "certainly used to do
so"); and
229 Foreign Office memorandum, 21 February 1934. Ann. 67, Vol. 2, pp. 220-224, at p. 221.
230 Foreign Office memorandum, 21 February 1934. Ann. 67, Vol. 2, pp. 220-224, at p. 222.
231 Note of British Political Agent, 12 April1937. BM Ann. 114, Vol. 3, p. 634.
-66- (d) no Qataricustoms taxes were leviedin the Zubarah Region. 232
149. Even after the 1937 Al-Thani attack on Zubarah, British officials contemplated
that Bahrainwould prove its claim to the ZubarahRegion. 233
150. In the light of this history, Qatar's claim that the 1916 Treaty between Britain
and Sheikh Abdullah created a State of Qatar that included the entire Qatar peninsula is
quite unsustainable.
J. Qatar's Memorial offers no post-Ottoman evidence of AI-Thani activities in
Zubarah until shortly before the 1937attack
151. Qatar'sMemorial presents no evidence of any AI-Thani activity in, let alone any
attempt by the AI-Thani to exercise authority over, the Zubarah Region during the
period following the departure of the Ottomans from Doha in 1915until March 1937.
152. In contrast, Chapter 2 of Bahrain's Memorial and this section of the Counter-
Memorial demonstrate the continuous exercise of Bahrain's sovereignty over the
Zubarah Region.
K. Qatar's attack on the Zubarah Region in 1937 displaced Bahrain
153. Bahrain'sMemorial has already described the details and effects of the Al-Thani
attack on the Nairn tribe and the Zubarah Region in 1937. 234 It was only at that point
that the AI-Thani physically displaced - but did not replace the authority of- the Al
Khalifa in the Zubarah Region.
232 Telegram from Lt. Col. Loch, British Political Agent, to Lt. Col. Fowle, British Political
Resident, 30 March 1937. BM Ann. 113,Vol. 3, p. 633.
233 BM para. 252.
234
See BM Sections2.13-2.14.
-67-L. The evidence of Bahrain's sovereignty over the Zubarah Region is not
fundamentally disturbed by Qatar's arguments
154. Bahrain's Memorial demonstrated Bahrain's sovereignty over the Zubarah
Region. The fanciful account of the history of the Qatar peninsula contained in Qatar's
Memorial has been revealed to be far removed from the truth. Qatar's Memorial has
recreated the history of the Qatar peninsula as it would have liked it to be, ratthan as
it actually was. Bahrain'sdemonstration of its sovereignty over the Zubarah Region is
not disturbed. The history of the peninsula, as evidenced by records in the British
archives, the Ottoman archives, and reliable scholarly works, is one of failure by the Al
Thani to exercise any control outside of Doha and its hinterland until well into the 20th
Century. The record confirms the presence in the Zubarah Region of the Nairn tribe,
loyal to the Al-Khalifa, from the Al-Khalifa'sfounding of Zubarah in the 1760s until the
Al-Thani attack of 1937. 235It also confirms the repeated and self-acknowledged failure
of the Ottomans to establish any effective authority over the Qatar peninsula outside
Doha and the consistent recognition by Britain of the reality and authority of Bahrain's
rights over the Zubarah Region. Finally, the historical record confirms that a political
entity named "Qatar" did not emerge until well into the 20th Century and that no such
entity ever maintained control over the entire peninsula until after 1937.
155. Qatar'sarguments, where not evidenced by fraudulent, misleadingly presented or
mistranslated documents, are purportedly evidenced by selected citations taken out of
context, that convenientlytum blind eyesto historical facts contradicting them.
156. Bahrain has submitted examples of the abundant evidence from historical
records showing the integration of the Nairn into the political economy of Bahrain.
235 The details of the dominant Al-Jabr branch of the Nairn are contained in BM Chapter 2.
-68-157. The arguments Qatar presents in its Memorial cannot withstand examination, nor
do they disturb the evidence of the genuine historical record, described in Bahrain's
Memorial and this Counter-Memorial. The latter records clearly show the continuity of
Bahrainisovereigntyover the Zubarah Region fromthe 18thCentury.
SECTION 2.3 The Continuity of Bahrain's sovereignty over the Hawar
Islands from the 18th Century to the present day
A. Introduction
158. Chapter 3 of Bahrain's Memorial comprehensively detailed the uninterrupted
sovereignty exercised by Bahrain over the Hawar Islands from the 18th Century until
the present day. Bahrain'sevidence demonstrated notably:
(i) the exercise of sovereign authority in the Hawar Islands by or on behalf
of the Ruler of Bahrain;
(ii) the recognition of Bahrain'ssovereignty by the inhabitants of the islands;
and
(iii) the absence of any competing exercise of authority by Qatar.
159. To avoid repetition, Bahrain recalls here the principal themes developed in its
Memorialwith respect to the Hawar Islands:
The historical genesis of Bahrain'stitle 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 recognised in antiquity and pre-dates the presence
of the Al-Khalifa dynasty in the region. 236
236 Arab historians from antiquity have included the Hawar Islands within the territories of Bahrain:
See, for example, AI Emir AI Hafiz Ibn MakolainAllkmal Vol. 1 p. 99 (475 HI 1082 AD),
Ann. 1, Vol. 2, p. 2; Sam'ani, in AI Ansab Folio 180/Manuscript ( 562 HI 1166 AD), Ann. 2,
Vol. 2, p. 4; Yaqoot al Hamawin M'ojam al Buldan Vol. 1, p. 315 (622 Hl1228 AD)Ann. 3,
Vol. 2, p..
-69- In the early 19th 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. 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 throughout this time except for a brief
period of three and a half years in the mid-1920s.237
The Hawar Islands were occupied by the Bahrain Dowasir and also by non
Dowasir Bahrainis.
The traditional occupations of the Hawar Islanders were fishing, pearl-diving,
some animalhusbandry and gypsum extraction. There was regular traffic and
commerce between the Hawar Islands and the main island of Bahrain and
Muharraq Island. There is no evidence of any such commercial activities
between the Hawar Islands and the Qatar peninsula.
Records dating from the first decade of the 20th Century onwards abundantly
testify to Bahrain'sadministration of the Hawar Islands. They include records of
court cases relating to the Hawar Islands, police activities, and commonplace
government directives. No such records exist evidencing Qatar's acts of
administration in the Islands.
Former residents of the Hawar Islands are still alive and have testified,
individually, as to their lives there. Their statements 238consistently describe
their fellow-islanders, their former homes and fish traps, their activities and
livelihoods, their exclusive connection to Bahrain and its Ruler, the uninhabited
nature of the Qatar peninsula opposite the Hawar Islands, and the absence of
visitors to the islands from the Qatarpeninsula.
The record of oil concession negotiations demonstrates that the Hawar Islands
were considered by Bahrain, Britain and the oil companies - including the Qatar
concessionaire - to be included in the territories of Bahrain. Specifically, in
1936, Britain recognised Bahrain's sovereignty over the Hawar Islands.
Thereafter, all concession negotiations with the Ruler of Bahrain included the
Islands within the Ruler'sterritories.
In 1938-1939, Britain conducted an arbitration between Bahrain and Qatar to
determine sovereignty over the Hawar Islands. Bahrain submitted evidence of
its historical exercise of sovereignty over the Hawar Islands. Qatar did not
submit any evidence of its sovereignty, but essentially relied on an argument of
237
From approximately 1923-1927, many of the Bahrain Dowasir absented themselves from
Bahrain (including the Hawar Islands) during a dispute over taxation and traditional privileges.
When they returned, they resumed their traditional living patterns, including their occupation of
the Hawar Islands.
238 See BM Ann. 313-316, Vol. 6, pp. 1363-1413.
-70- proxmnty. On the basis of Bahrain's uncontroverted evidence, Britain
determined that the islands - including Janan Island - belonged to Bahrain.
On the Hawar Islands there can still be found ruins of two villages, several
cemeteries (including a children's cemetery), a mosque, fish traps, water cisterns,
a police fort which hasbeen for the past half century and is today manned by
Bahraini officers, and a palace built by the Ruler of Bahrain in the 1940s.
Modem facilities include water purification systems, paved roads, pleasure craft
docking facilities, two beach resorts and a three-star hotel, and a twice-daily
shuttle-boat from the main island of Bahrain to Jazirat Hawar (the largest of the
Hawar Islands). The Crown Prince of Bahrain hasbuilt a new residence there.
The Hawar Islands are integrated into the Bahraini telephone system, including
public telephones in both the northern and central parts of Jazirat Hawar. The
Bahrain Defence Force have important defensive installations on Jazirat Hawar.
At the time of Qatar's first claim to the islands in 1939, it would have been
impossible to deny that Bahrain exercised authority over the islands. Qatar has
never once done so.
160. In stark contrast to Bahrain's Memorial, which is based entirely on authentic
documents that are a matter of public record, virtually all of the evidence submitted in
Qatar'sMemorial in support of its claim to the Hawar Islands is fraudulent. As Bahrain
has indicated, it will ignore the substance of these forged documents and the arguments
which they support.
161. Qatar has acknowledged that:
"During the latter part of the 19th century, Bahrain from time to time
advanced vague pretensions to various islands (including ... the Hawar
Islands) ..."9
This admission- the pejorative adjective "vague" notwithstanding- speaks for itself,
since Qatar can point to authentic evidence of no such assertions by Qatar.
239 QM para.5.8.
-71-B. Qatar's claim that the Hawar Islands are geographically proximate to the
Qatar peninsula is correct but irrelevant
162. Qatar'sMemorial asserts that the Hawar Islands are situated close to and fit the
general shape of the Qatar coast, 240 and that the geology of the Hawar Islands is that of
the Qatar peninsula 241
163. Bahrain does not contest the fact of the physical location or shape of the Hawar
Islands. Bahrain sees no need to comment on the geology of the Qatar peninsula.
Bahrain has described in its Memorial the legal irrelevance of such facts to the
determination of the issues in the case at hand. 242 There are numerous examples of
States that exercise sovereignty over islands that are closer to another State'sterritory
than their own. 243
244
164. Geographical proximity is irrelevant to the facts of human geography. 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,
with Doha an isolated enclave on the east coast of the Qatar peninsula. 245
240 QM para.4.2.
241
QM para.4.6.
242 See BM Section 4.3.
243
For example: The British Channel Islands lie close to the coast of France. France's St. Pierre and
Miquelon Islands are closetothe coast of Canada. Greece exercises sovereignty of the Aegean
Islands, many of which are close to continental Turkey. The Netherland Antilles lie off the coast
of Venezuela. The Nicobar Islands of India are situated close to the shores of Sumatra,
Indonesia. The Danish islands of Bornholm and Zealand are closer to Sweden than to
continental Denmark. St. Martin's Island, belonging to Bangladesh, is in fact located off the
coast of Burma. The Malawian islands of Chisamula and Likoma are close to the Mozambique
shore of Lake Malawi. The Canary Islands of Spain lie off the west coast of Morocco.
244
QM para.6.218.
24S See further Sections 2.2.A and 2.2.B.
-72-165. While Bahrain maintains that geographical proximity is irrelevant to the case at
hand, one of Qatar'ssubtler distortions requires clarification. Several maps in Qatar's
Memorial purport to show that, at high tide, the southern tail of Jazirat Hawar (the
largest of the Hawar Islands) is 1 kilometre from the coast of the Qatar peninsula. 246
This is not the case. The depictionin the Qatar maps is inaccurate and misleading. The
tail of Jazirat Hawar - which at any rate is a long narrow spit of sand no more than a
few metres wide - does not come nearly so close to the Qatar peninsula at high tide as
Qatar misleadingly depicts. An accurate depiction of Jazirat Hawar and its relationship
to the Qatarpeninsulacan be found in the maps in Volume 7 of Bahrain'sMemorial.
166. In the same section, Qatar's Memorial hypothesises that, if world sea-levels
remain constant, the Hawar Islands might be physically reunited with the Qatar
247
peninsula over a period of centuries. Such conjecture is highly speculative and too
temporally remote to merit consideration in the present case. The waters between the
Hawar Islands and the other islands of Bahrain are only a few metres deep; if anything,
the Hawar Islands are more likely to be joined to the populous main island of Bahrain
than to the empty desert of the west coast of Qatar.
C. Qatar bas not produced any authentic evidence of exercise of authority in
the Hawar Islands
167. Qatar'sMemorial contains no authentic evidence that it ever exercised authority
in the Hawar Islands. 248 Bahrain will not address the forged evidence that Qatar
adduced.
246
For example, see QM map No.5 between pages 50 and 51 of the QM.
247
QM para. 4.6.
248 Qatar'sMemorial contends that one ofthe Rulers of Qatar visited the Hawar Islands. (QM para.
6.194.) The evidence cited for this claim is the unsubstantiated assertionQatar counter
claimof 30 March 1939that this was the case. Qatar'sMemorial also makes reference to "other
evidence" -supposed witness statements submitted by Qatar in 1939 in one handwriting with no
signatures or thumbprints (QM para. 6.200). Qatar acknowledges that this "was not as
-73-168. Bahrain'sevidence in Chapters 1 and 3 of its Memorial and in this Section ofthe
Counter-Memorial·is authentic and verifiable, from the public record. Moreover,. it is
consistent with the evidence presented by Bahrain during the 1938-1939 arbitration.
D. Qatar claims falsely that the Ottoman Empire, Britain, Bahrain and
neighbouring States recognised the Hawar Islands as part of the territories
controlled by the Doha confederation or Qatar
169. Qatar's claim that the Hawar Islands were recognised as being part of the
territories controlled by the Doha confederation or the AI-Thani does not withstand
scrutiny. Most of Qatar's support for this assertion are the 81 forged documents, which
merit no consideration by the Court and will not be addressed by Bahrain.
249
170. Qatar makes reference to two British sources that refer to Bahrain as being a
collection of islands in the middle ofthe GulfofBahrain (i.e., implying that they did not
include other territory such as islands on the littoral of the Gulf of Bahrain). Both were
geographical and explicitly not political. Nonetheless, on that basis, and on the basis of
other purely geographical descriptions of the Qatar peninsula, Qatar claims that the
Hawar Islands were deemed by Britain not to be a part of the territory of the State of
Bahrain. 250 However, the British sources invoked do not support Qatar's argument. 251
compelling as it might otherwise have been." Britain dismissed this "evidence" as
unsubstantiated assertions that meritedand were given- no credence in 1939. Their weight
has not increased with time.
249 The Persian Gulf Pilot 12th Edition and Lorimer's Gazetteer.
250
QM paras. 5.1 and 5.75, 5.38, 5.44.
lSI Furthermore, Qatar failso relate that some of these sources in fact recognise inter alia Bahrain's
claim to sovereignty in the Qatar peninsula. (See also Lorimer, op. cit., pp. 798-800. Ann. 45,
Vol. 2, p. 136-141.) For example, Qatar'sMemorial quotes incompletely from Lorimer, op. cit.:
"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 ofQatif." (QM para. 5.38.)
-74-171. Qatar also refers to a survey of the Gulf conducted by the British Admiralty in
1915. Qatar claims that the survey included the Hawar Islands (with Janan) in the
territory of Qatar. 252 This is incorrect and misleading. The British Admiralty survey
was yet another exercise devoted exclusively to geographical description. The section
relied on by Qatar is entitled "EL-QATAR Physical Character", the relevant part of
which reads:
"An island, Jezirah Hawar, lies 5 miles W. of Ras Abruruk on theW.
coast, with which it is roughly parallel; it is about I0 miles long, and has
no permanent population, but the Dawasir of Zallaq in Bahrein have
houses used as shooting-boxes in winter, and a cistern for rain-water.
The islets Rubadh and Janan lie to N. and S. of Hawar, those of Ajirah
and Suwad in the channel between it and the mainland." 253
This description makes no reference to the Hawar Islands as being part of the territory of
Qatar as a political entity, as Qatar'sMemorial implies. Indeed, the opposite conclusion
The full quotation is:
"Extent and importance.- 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. Connected
with the sovereignty of Bahrain, or possibly appertaining to the Shaikh as hereditary
personal property, are certain ill-defined rights upon the mainland of Qatar, at present
(1905) under discussion. Whatever the nature or extent of these rights, our attention
will be confined, in the present article, to the undisputed insular possessions of the
Shaikh." (From the context of this section of the document, this refers to the main
islands of Bahrain. Lorimerop.cit.p. 234. QM Ann. 11.3,Vol. 3, p. 88.)
Obviously, this quotation supports Bahrain's claim to the Zubarah Region. It also demonstrates
that Bahrain was recognised to have, at the very least, claims to territory beyond the named
islands. However, it confrrms that Lorimer himself acknowledged that his description of the
territories of Bahrain was not exhaustive, despite the fact that Qatar claims that it was.
Significantly, Qatar's Memorial - correctly - acknowledges Lorimer to be a "geographical
dictionary." (QM para. 5.38.) Lorimer does not purport to identify the sovereign title to the
territories surveyed.
252
QM para. 5.44.
253 A Collection of First World War Military Handbooks of Arabia 1913-1917, Vol. IV, A
Handbook of Arabia, Vol. I, General, 1916, Archive Editions, (1988), p. 326. QM Ann. III.296,
Vol. 8, p. 485.
-75-should be reached by virtue of the reference to the Bahrain Dowasir'soccupation of the
islands. 1bis reference can also be found in one of the documents cited by Qatar to
support its discussion of the proximity of the Hawar Islands to the Qatar peninsula A
Handbook of Arabia, prepared by the War Staff Intelligence Division of the British
Admiraltyin May 1916,makes the observationthat:
"the Dawasir of Zallaq in Bahrain have houses used as shooting boxes in
winter, and a cistern for rain-water. "254
172. Even if Qatar'sdistortion of the recordwere correct, geographical descriptions of
this sort do not address the issue of sovereignty. They no more signify that Bahrain
does not have sovereignty over the Hawar Islands than a description of France as a
country in Europe would imply that it did not have sovereignty over the islands of St.
Pierre and Miquelon,off the coast of Canada. 255
173. Numerous references from the 19th and 20th centuries do confirm that the
Hawar islands belonged - politically - to Bahrain. They are cited in Bahrain's
Memorial and this Section of the Counter-Memorial. In stark contrast, there is not a
single genuine document that describesthe Hawar Islands as belonging politically to the
Al-Thani or a State of Qatar, or even to "Qatar." 256
174. Qatar's Memorial discusses the 1909 Ottoman claim to Zakhnuniya Island at
paragraphs 5.39-5.40 in support of its allegation that the Ruler of Bahrain did not
254 QM para. 6.218.
2SS
Qatar omits to note that Lorimer describes the Hawar Islands as follows:
"[Jazirat Hawar is about] 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 Zellaq in
Bahrain who have houses at two places on the island and use them in winter as shooting boxes."
(Emphasis added.) See QM Ann. III.296, Vol. 8, p. 485.
256
This is entirely consistent with - and indeed reflects - the fact that the territory controlled
AI-Thani was restricted to the area around Doha on the east coast of the Qatar peninsula until the
late 1930s, as discussed in Sections 2.2.H and 2.2.1above.
-76-consider that the Hawar Islands belonged to him. Qatar relies for its analysis on a
British report (also cited in Bahrain's Memorial at paragraph 426-427) from March
1909. The extracts from this report quoted by Qatar are:
"The facts are that Dowasir of Budaiya and Zellaq on the north-west
coast of Bahrain are in the habit of every winter partially migrating to
Zakhnuniya and Hawar Islands for fishing (sharks as well as edible fish)
and hawking. A Dosiri is said to have built the Zakhnuniya fort many
decades ago, and Shaikh Ali bin Khalifa (Esa's father) rebuilt the fort
during the reign of his brother Muhammad whom we deposed. Since
then, the Dowasir have once again repaired the fort, but now it is in ruin
and only the four unroofed bastions are standing." 257
and:
"If Shaikh Esa is willing to claim sovereignty over Zakhnuniya our
position will be fairly plain sailing ... butf Shaikh Esa doesn't want or
dare assert his sovereignty over Hawar we shall be in rather a quandary.
However, I hope next week to be able to give a satisfactory report about
his attitude." (Footnotes omitted.)
However, these extracts quoted are taken from a four page report and, presented in this
manner, are misleading in their incompleteness. Qatar fails to mention that the report
clearly shows that:
Britain acknowledged that the Bahrain Dowasir occupied the Hawar
Islands and that they recognised the authority of the Ruler of Bahrain;
Britain thus considered that the Hawar Islands belonged to Bahrain;
there was no discussion by any of the three parties (Bahrain, Britain, and
the Ottomans) of a "Qatari" or an AI-Thani presence on the west coast of
the Qatar peninsula or the Hawar Islands during the·incident;
the Ottoman Empire never made a claim to the Hawar Islands despite the
islands'open occupation by the Bahrain Dowasir;
Britain noted that the Dowasir "are in the habit of every winter partially
migrating" to the Hawar Islands.
257 QM paras. 5.39 and 5.40.
-77-175. Furthermore, Qatar'sinference from the report- that the Ruler of Bahrain could
not have claimed the Hawar Islands - is inconsistent with the information contained
therein. The British report expresses Britain's concern that if the Ruler of Bahrain
declined to assert his sovereignty over the Hawar Islands, then difficulties would arise.
Shortly thereafter, the Ottomans backed down and withdrew their claim. The crisis was
defused to Bahrain's advantage and no difficulties arose. Qatar's Memorial concludes
from this alone that "obviously" the Ruler of Bahrain refrained from asserting a claim to
the Hawar Islands. Qatar provides no evidence or explanation for this unexplained and
inexplicable conjecture. If anything could be extracted from these events, it would be
that the Ruler of Bahrain did make such a claim, because the result feared by Britain if
he did not -that difficulties would arise - failed to materialise.
176. Bahrain stands by its analysis of the Zakhnuniya incident, which is based on
258
authentic documents rather than groundless and implausible speculation.
177. Qatar invokes the unratified 1913 Anglo-Ottoman Convention (discussed in
Section 2.2 above) to support its proposition that the Hawar Islands were recognised as
belonging to a political entity called Qatar, 259 notwithstanding the fact that Qatar's
Memorial acknowledges that the territorial limits of Bahrain and Qatar were not defined
with precision in this unratified Convention. Qatar argues that because three islands off
the east coast of the Arabian peninsula were specifically mentioned in the Convention,
but the Hawar Islands were not, the latter were therefore somehow implicitly understood
to belong to Qatar.260 This argument is not supported by any evidence or analysis other
thanQatar'sconjecture that:
258
BM paras. 426-429.
259 QM paras.3.57, 5.43 and 5.47.
260 QMpara. 3.57.
-78- "[i]f they had been considered as appertaining to Bahrain, their location
so close to Qatar would surely have required express confirmation of this
fact".261
Qatar omits to mention that none of the islands of Bahrain was mentioned in the
Convention other than the three islands that lie off the Arabian coast, described above.
262
Bahrain was described in the document only as: "the Bahrein islands." Thus Qatar's
conjecture on this point collapses.
178. At another point, Qatar'sMemorial also declares, without any evidence:
"As at the time of signing the Anglo-Ottoman Convention of 1913, no
need was felt when signing the British-Qatar Treaty of 1916 to define
Qatar territory or to refer specifically to Hawar or Janan islands as the
British and Qatar were clear about the fact that the Hawar islands were
part of Qatar." 263
Qatar offers no support for this proposition. It is manifestly contrary to the historical
record. It contradicts the evidence from the Zakhnuniya incident, when Britain
recognised the Hawar Islands as part of Bahrain, and is supported only in the forged
documents, not discussed here. 264 Qatar's claim also founders on the established
historical fact, discussed in Section 2.2.1 above, that at the time of the signing of the
1916 Treaty the territory of the Al-Thani was restricted to the Doha enclave on the east
coast of Qatar (a fact which was recognised publicly by Sheikh Abdullah AI- Thani and
Britain even in the 1930s).
261 QM para. 3.57. Qatar bolsters this strained argument by reference to the forged documents.
262
BM Ann. 81, Vol. 3, pp. 432-433.
263 QM para.5.47.
264 See above and also BM paras. 426-431.
-79-179. As discussed in Section 2.3.0, Qatar presents a similarly strained interpretation
of the 1935 Qatar oil concession as well as other documents pertaining to oil concession
negotiations in Bahrain. 265
180. Qatar's Memorial offers another unsupported speculation in relation to a 1934
Royal Air Force reconnaissance report of the Qatar peninsula. 266 The RAF report notes
that:
"flying boats could take refuge in the southernmost bay of DJEZIRA
HAWAR." 267
A supplementary report by the RAF flying boat squadron confirms that:
"the southernmost bay of HAWAR ISLAND would possibly afford good
shelter in emergency." 268
On the basis of no other evidence or analysis than this, Qatar concludes that the RAF
"was thus in no doubt at this time that Hawar island belonged to Qatar." 269 This is self
evidently an untenable conclusion. The reports are variously titled "Report on
Reconnaissance over Qatar Peninsula" and refer also to Muharraq Island, Zakhnuniyah
Island, and other geographical locations that could not possibly have been considered as
part of the territories of Sheikh Abdullah.270 The information that was being sought and
265
QM para.6.26.
266 QMpara.6.27.
267
QM para.6.27.
268 QM para.6.27.
269
QMpara.6.27.
270 Letter from the British Political Resident to Air Headquarters, British Forces in Iraq, 5 June
1934, enclosing documentation relating to RAF reconnaissance of QatarQM Ann. III.94,
Vol.6, pp.484-487.
-80- relayed in the Report was purely geographical, as was also made clear during another
"Qatar Peninsula Reconnaissance" conducted in October 1935. 271
181. Thus, Qatar's claim that the Hawar Islands were recognised as being part of the
territoriesof the Al-Thani or a State of Qatar is without basis. To the contrary, the
historical record - even those authentic documents relied upon by Qatar - establishes
that the Hawar Islands were recognised as part of Bahrain. It could bardly be otherwise;
if the true historical record bad featured such acknowledgements and understandings,
the British decision of 1939 (which is discussed below) would not have concluded that
Qatar could marshal no evidence other than the legally irrelevant fact of proximity.
E. Qatar claims falselythat the Hawar Islands were never populated and could
not support habitation
182. Qatar's Memorial asserts that the Hawar Islands were not inhabited and that the
islands could not support a population by stating:
"It is a fact of nature that Hawar could not have been occupied
272
permanently before Bahrain took it over in 1936/37."
183. In the face of Qatar'sunsupported statement, Section 3.6 of Bahrain's Memorial
has described how the Hawar Islands supported a population of Bahrainis engaged in
their traditional livelihoods of fishing,273 pearling,274animal husbandry, 275and gypsum
271 India Office Paper, Qatar Peninsula Reconnaissance, 15October 1935. Ann. 70, Vol. 2,
pp.229-231.
272 QM para.6.174. Itmustbe notedthat thispositionseemsto be contradictedin Qatar'sclaimsto
the HawarIslandsthatarebasedonforgeddocuments.
SeeBMSection3.6.A.
274 SeeBMSection3.6.B.
275 BMSection3.6.C. Bahrain'sMemorialnotedthatthe Governmenthasintroduceda herdof oryx
to Jazirat Hawar(BMpara.498).
-81- 276
quarrying. Bahrain'sMemorial also describedthe physical evidence that attests to the
existence of a settled population with a pattern of regular habitation. This evidence
includes:water cisterns; no less than six cemeteries; the remains of two villages; an old
mosque; and a replacement mosque that was built by the Bahrain Government in
1939. 277
184. These facts were established by Bahrain and confirmed by British officials
duringthe course of the 1938-1939arbitration. They are consistent with the evidence in
the public record of regular habitation of the islands by Bahrainis, including evidence
dating from 1821-1829/ 781845, 2791873/ 80 1908, 281 1909, 282 and 1911/ 83in addition to
the 1930s 284• The physical evidence described above still exists on the Hawar Islands
and can be viewed by visitors today.
185. The Hawar Islands do not have any natural water wells, but there is well
documented evidence of water cisterns in the villages on the Hawar Islands that were
used to retain rainwater. 285 Eight of these cisterns can still be seen today. 286 Some of
276 BM Section 3.6.0.
277 BM Section 3.6.E.
278 See Brucks, op. cit., p. 563. BM Ann. 7, Vol. 2, p. 101. See also BM para. 415.
279 Recorded in Lorimer, op. cit., p. 391. BM Ann. 74, Vol. 3, p. 378. See also BM para. 417.
280
See BM para. 432.
281 Lorimer, op. cit., Vol. II, p.l513. BM Ann. 74, Vol. 3, p. 399. See also BM para. 422.
282
Letter from Capt. Prideaux, British Political Agent, to Major Cox, British Political Resident, 4
Aprill909. BM Ann. 236, Vol. 5,p. 1039; QM Ann. III.53, Vol. 6, p. 245. See also BM para.
424. Also in letter from Capt. Prideaux, British Political Agent, to Major Cox, British Political
Resident, 20 March 1909. BM Ann. 235, Vol. 5, p. 1034; QM Ann. III.51, Vol. 6, p. 293. See
also BM para. 427.
283 Letter from Ruler ofBahrain to Major Cox, British Political Agent, 15 January 1911. BM Ann.
239 (a and b), Vol. 5, pp. 1050-1051. See also BM para. 436.
284 See generally BM Section 3.6.
285
Letter from Hugh Weightman, British Political Agent, to Lt. Col. Fowle, British Political
Resident, 22 Aprill939. BM Ann. 281, Vol. 5, p. 1165; QM Ann. III.l95, Vol. 7, p. 497.
-82-these cisterns were set at the confluence of natural drainage beds in order to obtain a
maximum flow of water after a rainfall. 287 Salman bin Isa al Dosari, a former Hawar
288
Island resident, recalled that his father built two of the cisterns. A former neighbour
of his, Nasr bin Makk.ial Dosari, who was born on Hawar Island, recalled the existence
of the two cisterns and indicated that they were referred to by the Hawar Islanders by
289
the names "El Makhzoon" and "El Gredeh".
186. The water in the cisterns was a precious commodity and it was a cause of great
excitement to the Hawar Island children to race to see how full the cisterns were after
rain. One formerHawar Islander described this:
"There was no natural source of water so previous generations of
Dowasir had built many cisterns all over the Island to catch the rain water
during the rainy season. I remember as a child running to the nearest
cisternto check how full it was after it had rained. I would race the other
children back to the village to tell the elders how full it was. We were
never allowed to swim or wash in the cisterns. We had to wait until the
water settled and then we could draw off water for drinking and
290
cooking. "
187. In addition to the water supply from the cisterns, water was also brought from
Bahrain and stored in the water tanks of pearling boats. When supplies ran low, water
would be brought and bartered by the fish merchants from Muharraq when they came to
the islands to pick up the fish to take to market. A former Hawar Island resident
recalled:
"Whenthere was not enough water in the cisterns, the boats which would
come from the islands of Bahrain and Muharraq to pick up the fish to
286 Archaeological Report on the Hawar Islands, Professor Paolo Costa, University of Bologna, 17
January 1995. BM Ann. 310, Vol. 6, pp. 1336-1337 ("Costa Report").
287
Costa Report. BM Ann. 310, Vol. 6, p. 1340.
288 Statement of Salman bin Isa al Dosari. BM Ann. 315, Vol. 6, p. 1393, para. 5.
289 Statement ofNasrbin Makki alDosari. BM Ann. 314, Vol. 6, p. 1381, para. 11.
290
Statement ofHamoud bin Muhanna al Dosari. BM Ann. 313, Vol. 6, p. 1365, para. 15.
-83- take to market would bring water. They would usually go to Muharraq to
a place called Halat Abu Mahir, where there was a spring called Ain
Fakhro to bring supplies of fresh water in the tanks. Additionally, if we
were fishing near the west coast of the Qatar peninsula we would go to
291
Zekrit. There was a spring there where we could get fresh water."
Charles Belgrave, the Adviser to the Government of Bahrain, recorded that "in years
when the local (Hawar Islands) water supply fails they obtain water from Bahrain. "292
188. The history of the Hawar Islands and the lives of its inhabitants- including their
regular trade with the main island of Bahrain and Muharraq Island - has been recounted
293
by Bahrainis who are still living and who grew up and lived on the Hawar Islands.
189. It is no response to this mass of evidence- of which Qatar has been aware since
at least 1939- for Qatar now to assert baldly that it "is a fact of nature" that the Hawar
Islands could not have been permanently occupied. The overwhelming evidence
demonstrates that they could be, they were, and they still are occupied.
F. Qatar claims falsely that the Dowasir tribe, the principal occupants of the
Hawar Islands, were not subject to the authority of Bahrain
190. Qatar's Memorial challenges the established view that the Bahrain Dowasir were
residents of Bahrain and that they owed their allegiance to the Ruler of Bahrain. 294
291 Ibid at para. 16. See Statement of Ibrahim bin Salman AI Ghattam. BM Ann. 316, Vol. 6, p.
1402, para. 8, and Statement ofNasr bin Makki al Dosari. BM Ann. 314, Vol. 6, p. 1381, para.
11.
292 Bahrain Counter-claim (in the fonn of a letter from Charles Belgrave, Adviser to the Bahrain
Government, to Hugh Weightman, British Political Agent, 22 December 1938). BM Ann. 274,
Vol. 5, p. 1133; QM Ann. III.174, Vol. 7, p. 373.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 fishing very close to the coast, when they would use the spring at Zekrit.
293 See statements of Bahrainis who fonnerly lived in the Hawar Islands in BM Ann. 313-316,
Vol. 6, pp. 1363-1413.
294
QM paras. 6.53 and 6.104-6.105. Paragraph 6.53 also states- without reference to any authority
-that the Ruler of Bahrain was deposed in 1923. This odd assertion is not true. Sheikh Isa bin
Al-Khalifa ruled from 1869-1932. The 1923 refonns referred to related to pearl-diving
regulations and other administrative matters of government.
-84-Whilst Qatar's argument is largely based on the forged documents, which Bahrain
disregards, Qatar also endorses the opinion to this effect of a British Political Agent,
295
Major Alban, made in a 1941 despatch. Both Qatar'sview and Major Alban's report
are unsubstantiated by any evidence. They contradict the overwhelming historical
evidence to the contrary cited in Bahrain's Memorial, in this Counter-Memorial and
even in documents cited in Qatar'sMemorial. 296
191. The first claim- that the Bahraini Dowasir were not really residents of Bahrain
can be quickly dismissed. The material in Section 3.5 of Bahrain's Memorial
establishes beyond doubt that they were. The record is clear. Thus, in 1869, the British
Political Resident wrote to "the Chief and Members of the Dowasir Tribe" in Budaiya
and Zellaq to insist that they conform to an interdiction on smuggling from Bahrain:
"I request you will oblige me by arranging that neither persons, animals
or property be allowed to leave the coast of Bahrein.
Should any craft or person attempt to leave, please detain her or him and
inform me. Any of the Dowasir tribe coming on board my ship will have
safe conduct and be politely received.
Should persons or property be allowed to depart without my consent, the
consequences will be on the head of all concerned." 297
Similarly, the 1917 Gazetteer of Arabia recorded:
"In Bahrain the Dowasir are the most numerous Sunn'i tribe after the
Utub [AI Khalifa], and are the second of all the Bahrain tribes in political
importance, being inferior in this respect to the Utub only." 298
295
QM para. 6.104. See also the discussion on Alban and PriinSection 2.3.Hinfra.
296 See BM Sections 3.5 and 3.6.
297 Letter from the British Political Resident to the Chief and Membersf the Dowasir Tribe at
Budaiya and Zellaq, 21 November 1869. Ann. 7, Vol. 2, pp. 14-15.
298 Gazetteer of Arabia, Vol. 1, p. 487. Ann. 46, Vol. 2, pp. 142-143.
-85-192. As the sole support for the second claim - that the Bahrain Dowasir were not
subject to the authority of the Ruler of Bahrain - Qatar and Major Alban refer to the
period of three and a half years (from autumn of 1923 to spring of 1927) when the
Bahrain Dowasir removed themselves from Bahrain. However, that episode does not
support Qatar'sproposition. In fact, it supports exactly the opposite conclusion.
193. The principal documents relating to this short episode are contained in a special
India Office file entitled The Dowasir tribe and their removal from Bahrain; their return
and retrieval of their property, which covers the period 1922-1928. 299 Bahrain does not
propose to replicate the entire file here. However, the documents in it make abundantly
evident that, although occasionally argumentative, the Bahrain Dowasir were subjects of
the Ruler of Bahrain:
"The Dowasir have been settled so long m Bahrain that they are
recognised as Bahrain subjects." 300
Other salient facts emerge from the file:
the Dowasir threatened to remove themselves from Bahrain as part of an
attempt to resist government administrative reforms in Bahrain (related
mainly to pearling, but also the imposition of new taxes on the
Dowasir); 301
the Ruler of Bahrain called their bluff and permitted the Dowasir to
leave;
299 Public Record Office File R/15/2/87.
300
Note from British Political Agent, to British Political Resident, entitled "Bahrain Affairs,"
13 July 1922, at p. 3. Ann. 49, Vol. 2, pp. 155-158. See also QM Ann. III.72, Vol. 6, p. 379.
301 Letter from Lt. Col. A.P. Trevor, British Political Resident to D. deS. Bray, Foreign Secretary to
Government of India, 16July 1922. Ann. 50, Vol. 2, pp. 159-161. Qatar claims in paragraph
6.53 of its Memorial that the Dowasir created disturbances because of the deposition of the Ruler
of Bahrain. However, the Ruler of Bahrain was never deposed and Qatar does not cite any
authority for this strange claim. Furthermore, the document on which Qatar relies regarding its
Dowasir claim actually supports Bahrain's description of events. Qatar seems to have
misinterpreted a reference in this document to "the new regime" of taxes and lost privileges as
being a reference to a new politica1leadership.
-86- almost immediately thereafter the Dowasir began supplicating to be
allowed to return to Bahrain; 302 this is acknowledged in Qatar's
Memorial· ,303
the conditions proposed for the Dowasir return to Bahrain were that they
could not claim to be internally autonomous from the Ruler of Bahrain
and:
"They would have to pay the same taxes as other
agriculturists and traders, they must be submissive to the
Shaikh's Courts in Manama and Muharraq, and they
should accept the police post which had been established
in their chief town. Their official headmen would be
nominated and could be changed, if necessary, by the
Ruler, and their Baharani (Shiah) tenants and ... divers
would be fully protected and have equal rights of
citizenship with others of their class." 304
these unequivocal terms are acknowledged by Qatar'sMemorial; 305
the Dowasir agreed to return under these conditions imposed by the Ruler
of Bahrain· ,306
when the Dowasir returned to Bahrain m 1927, the British Political
Resident:
"informed them categorically that the whole matter rested
with their acceptance of the laws of the country, that as
long as they realised that they were as subject to law as
any other person in Bahrain and had no privileged position
Shaikh Hamad would naturally be glad to see them back in
Bahrain. They accepted the condition without reserve and
the interview ended amicably." 307
302
Memorandum from British Political Agent to British Political Resident, 31 March 1924.
Ann. 53, Vol. 2, pp. 170-172.
303 QM para. 6.54.
304
Despatch from British Political Resident to the Foreign Secretary of India, 4 December 1926.
QM Ann. 111.70,Vol. 6, p. 369. See also QM Ann. III.72, Vol. 6, p. 379.
305 QM para. 6.54.
306
Despatch from British Political Resident to Foreign Secretary of India, 27 March 1927. QM
Ann. III.73, Vol. 6, p. 383.
307 Despatch from British Political Resident to Foreign Secretaryf India, 27 March 1927. QM
Ann. III.73, Vol. 6, p. 383.
-87-194. Further details, all of which confirm the historical account, can be found in the
India Office memo entitled Desire of Dowasir tribe to return to Bahrain, dated 7 July
1927. It must be recalled,in addition,that:
the Bahraini Dowasir have lived under the authority of the Ruler of
Bahrain for almost two hundred years; their absence for some 3 ~ years
representsan insignificantpart of that time;
there are consistent records of the Bahraini Dowasir recognising the
308
authority of the Ruler of Bahrain, including using the Ruler's flag;
indeed, the Bahraini Dowasir Sheikhs were related by marriage to the
Rulers ofBahrain· 309
'
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
Rulerof Bahrain.
195. Thus, contrary to Qatar's unsubstantiated assertions, the historical record
establishingthat theBahrainDowasirrecognised the authority of the Ruler of Bahrain is
not disturbed by this incident. 310 This is recognised in the very documents cited by
311
Qatar at the relevantplaces in its Memorial. 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
ultimatelypermittedto return to Bahrain.
308
See Administrative Report for Bahrain Political Agency for the year 1911. BM Ann. 237, Vol.
5,p. 1044. See also BM para. 429.
309 Letter from Capt. Prideaux, Britisholitical Agent, to Major Cox, British Political Resident,
4 April1909. BM Ann. 236, Vol. 5,p. 1039. See also BM para. 424.
310
The fact that the Bahraini Dowasir inhabited the Hawar Islands on a regular basis consistently
from the beginningof the 19th Century has been discussed in Bahrain's Memorial in Chapter 3
and in this Counter-Memorial at Section 2.3.E.
311 QM paras. 6.53-6.57.
-88-G. Qatar'sversion of the history of oil concession negotiations is a fabrication
196. Thehistorical record of the negotiationsfor oil concessions in Bahrain and Qatar
contradicts Qatar'sclaim that the Hawar Islands were understood to be part of Qatar.
Rather, it establishesthat from the early 1930s,when issues regarding the ownership of
the Islands first arose, until the British decision awarding them to Bahrain in 1939, the
Hawar Islands were consistently regarded by Bahrain and Britain as within the
territoriesof Bahrain.
197. The true history of the concession negotiations also makes it impossible to
accept Qatar's accusation that Britain had ulterior motives allegedly leading it to
conductthe 1939 arbitration with bias against Qatar. Qatar has argued that the decision
to acknowledge Bahrain's sovereignty over the Hawar Islands furthered British
interests.12 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
grantofthe Hawar Islandsto Qatar.
(i) The 1925 Bahrain oil concession
198. Negotiations for the Bahrain oil concession commenced in the early 1920s
between the Eastern and General Syndicate (EGS), a British registered company, and
the Ruler of Bahrain. Pursuantto an undertaking givenby the Ruler of Bahrain in 1914
not to grant any oil concessions in his territory without Britain'sprior approval, 313the
Ruler involvedthe British Governmentat every step of the negotiations.
199. Early drafts of the concession agreement prepared by EGS sought to defme the
area to be covered by the concession, often with the aid of maps. Qatar relies on one
312
QM Chapter III, Section 5 and Chapter VI, Section 2.B.3.
313
Telegram from Secretaryf State for India to Viceroy for I15iAugust 1929. BM Ann. 95,
Vol. 3, p. 553.
-89-such map accompanying a 1923 draft concession agreement - in isolation and presented
out of context- as evidence demonstrating "Bahrain's assumption and therefore [sic] its
recognition that the Hawar Islands belonged to Qatar". 314 Qatar bases its assertion on
the fact that the Hawar Islands are shown on this map in white, the same colour as the
peninsula of Qatar, while the area of the prospective concession is shown in red and
covers only the four principal islands of the Bahrain archipelago: Bahrain Island,
Muharraq, Sitrah and Umm Na'assan. 315
200. Qatar's reliance on this map is misplaced. The purpose of the red colouring on
the map was to define the area proposed by EGS to be covered by the concession.
Neither of the parties to the negotiation, nor Britain, considered the red colouring to
delimit the boundaries of Bahrain. This is confirmed by the legend appearing on the
map itself, which reads: "It is Agreed by Both Parties to this Agreement ... that the
AREA painted Red on this MAP is the Area to which the BAHREIN CONCESSION
ATTACHED HERETO refers." 316 This conclusion is further supported by the fact that
while the Qatar peninsula is shown in white, so also is the entire eastern coast of Arabia,
as well as other States in the region.
201. Two years later, in December 1925, with Britain'sapproval, the Ruler of Bahrain
awarded the Bahrain oil concession to EGS. The relevant Articles of the Concession
Agreement provided:
"Article I. The Sheikh grants to the Company ... an exclusive exploration
license ... whereby the Company shall be entitled throughout the whole
of the territories under his control to explore and search the surface of
such territories ....
314 QM para. 5.51, p. 74.
315 Draft Concession Agreement between the Rulerof Bahrain and Eastern and General Syndicate
Limited, 12 May 1923. QM Ann. III.66, Vol. 6, pp. 327 and 345.
316 Ibid.
-90- Article V. The Sheikh hereby undertakes ... to grant to the Company on
the expiration of the prospecting license or earlier if application therefor
is made by the Company, a mining lease over an aggregate not exceeding
100,000 acres divided into not more than three blocks .... " 317 (Emphasis
added.)
202. Qatar's entire argument that Britain and Bahrain recognised Qatar's sovereignty
over the Hawar Islands in the early 1930s focuses on the underlined words in Article 1
of the Agreement. Qatar argues that because the area granted under the concession was
in respect of the "territories under [the Ruler of Bahrain's] control", and as the Hawar
Islands were not included within the concession area, the Hawar Islands were thus
considered by Britain and all other parties as not within Bahrain's control. 318
203. The flaw in Qatar's syllogism arises from the simple fact that the 1925 Bahrain
Concession was never intended to cover any territory beyond that of the main island of
319
Bahrain. The question of the Hawar Islands aside, even Qatar has never questioned
that the territories of Bahrain include some 30 islands in addition to the main island of
Bahrain. The fact that the other principal islands of the Bahrain archipelago were not
included in the definition of the concession territory indicates that the Concession
Agreement's grant of exploration rights "throughout the whole of the territories under
[the Ruler of Bahrain's] control" was never intended to reflect the full extent of the
Ruler's sovereignty. Rather, the language had been drafted by EGS as expansively as
possible to ensure that no geologically significant territory would be excluded from its
concession area. As long as the language was broad enough clearly to incorporate
317 Concession Agreement, 2 December 1925. BM Ann. 90, Vol. 3, p. 529; QM Ann. III.68, Vol. 6,
p. 353.
318 See QM paras. 6.13 etseq.,pp. 92-95.
319 Letter from J.G. Laithwaite, India Office, F.C. Starling, Petroleum Department, 3 May 1933
("The existing Bahrein Petroleum concession is I understand in respect of areas in Bahrein
Island only"). QM Ann. IIT.84, Vol. 6, p. 431. See also, Copy of Letter from Chief Local
Representative of BAPCO to the British Political Agent, 8 August 1933 ("Further I should like
to know whether it is correct to assume that the "area remaining" includes all that portion of the
main Island of Bahrain that may prove to be outside the 100,000 acres when selected and also all
of the smaller Islands of the Bahrain Group .... "). Ann. 63, Vol. 2, pp. 211-212.
-91-Bahrain'smain island, EGS was satisfied. The full extent of the Sheikh'sterritories at
this stage wasirrelevantas far as EGS was concerned.
204. Facing operating capital problems, EGS in 1928 assigned its concession to the
Bahrain Petroleum Company Limited (BAPCO), a wholly owned subsidiary of
Standard Oil Company of California (SOCAL), registered in Canada. At this time,
Britain had become concerned over American economic competition in the region.
Accordingly, Britain had laid down that any assignment of the Bahrain concession
should be subject to its approval. Britain had also prohibited the assignment of the
concession to a non-British company. 320 BAPCO'sCanadian- i.e., Commonwealth
nationalitywas an artificial device that had been conceived by SOCAL 321to circumvent
Britain'sobjective of ensuring that the Bahrain concession should not be assigned to a
322
non-Britishcompany.
205. As will be seen, the establishment in Bahrain of what was for all practical and
economic purposes an American oil company - notwithstanding the fact that Bahrain
had for so long been one of the principal staging points for British petroleum activities
in the Gulf and notwithstanding the safeguards imposed by Britain - had a significant
impact on the direction the British Government's policies concerning future oil
concessionnegotiations would take. After this, Britain was to do its utmost to promote
the interestsof British oil companiesover those of American oil companies.
320 BM para. 235.
321
SOCAL's involvement in the region was not limited to Bahrain. It had also secured important
concessionary rights in Saudi Arabia, which was not under British protection. In 1933, in spite
of competition from the British-controlled Iraq Petroleum Company, Ibn Saud had awarded the
Saudi concession to SOCAL, with the result that United States, as opposed to British, interests
had gained control of the eastern Saudi Arabian oil concession.
322 BM paras. 236-237.
-92-(ii) Negotiations for the Bahrain Unallotted Area concession: 1928-1933
206. That portion of the Ruler of Bahrain'sterritory not covered by the 100,000 acre
option that had been awarded to EGS under the 1925 Bahrain Concession came to be
known as the "BahrainAdditional Area" or "unallotted area".
207. Qatar's Memorial asserts that "[t]here is strong evidence that throughout the
negotiations on an additional area between 1928 and 1933, both the British officials and
the oil companies themselves were clearly of the view that the Hawar islands did not
belong to Bahrain." 323 In fact, a review of the history of these negotiations establishes
quite the opposite. It shows that from the first occasion on which the ownership of the
Hawar Islands first arose as a negotiation issue in 1933, Britain recognised that the
islands were claimed by Bahrain. No mention, however, is made at all of a competing
claim to the Hawar Islands by Qatar. The truth of the matter is that the Doha Sheikhs
probably were not even aware of the existence of the Islands.
208. An application for the Bahrain unallotted area was first made in 1928 by EGS.
Major Frank Holmes, at the time EGS' local representative in Bahrain, attempted to
identify specificallythe area applied for:
"The total area of the Bahrain Islands including its Territorial Waters is
roughly 198,000acres approximately 309 square miles.
The Area granted under the Bahrain Oil Concession Agreement is 156
square miles. Therefore this request is for permission to negotiate for the
balance of the total area including Territorial Waters which is 153 square
miles equalling 97, 920 square acres." 324
323
QMpara.6.13.
324
Letter from Major Frank Holmes (EGS) to the British Political Agent, 23 April 1928. QM
Ann.III.74,Vol.6, p. 389.
-93-209. Qatar relies on these calculations by Major Holmes in two places to support its
claimthat neither Britain nor Bahrain'sconcessionaires considered the Hawar Islands to
fall within the "unallotted area" and to be partf the territories of Bahrain:
"Now, it is clear that the acreage of the 'AreaRemaining'applied for by
Major Holmes in 1928 (amounting to 97,920 acres) is altogether too
small to be capable of being interpreted as including such areas as the
Hawar islands, Fasht Dibal or Qit'atJaradah ... "325
210. This is true, but unremarkable. As discussed above, the 1925 Bahrain
Concession applied only to territory on the main island of Bahrain. EGS'sole interest
was in gaining the concession rights to territory thought to be part of the oil-bearing
structure. The application submitted by EGS in 1928, thus was for all of the territory
remaining on the main island of Bahrain, as well as the three other immediately
adjoining islands of Muharraq, Sitrah and Umm Na'assan. It did not include other
islands, territories or territorial waters of Bahrain. Major Holmes' calculations
accordinglyonly pertained to those specifiedareas. 326
211. Similarly, Qatar relies on certain acreage calculations relating to the unallotted
area concession made by the British Government'sPetroleum Department several years
later, once again taken out of context, in further support of its assertion that Britain did
not recognise the Hawar Islands to be part of the Bahrain Islands group. 327What Qatar
fails to note is that these calculations were made simply in the context of evaluating the
implications of including a one-mile belt of territorial water around the concession area
that had been granted to BAPCO in 1925 (only on the main island of Bahrain) and
around the immediately adjoining islands for which BAPCO had subsequently applied.
As the only areas under discussion were those allotted on the four islands mentioned in
32S QM paras. 6.17 and 5.52.
326 Letter from Major Frank Holmes (PCL) to H.R. Ballantyne (BAPCO), 6 September 1933.
Ann. III.93, Vol. 6, pp. 475-478.
327
QM paras. 6.18 and 6.19.
-94-the preceding paragraph, the calculations made by the Petroleum Department naturally
did not includethe Hawar Islands. 328
212. The first mention in British records of any issue concerning the ownership of the
Hawar Islands appears in 1933, in the context of an application by BAPCO for an
extensionof its Bahrain oil concession. 329
213. An agreement in principle was reached between the Ruler of Bahrain and
BAPCO,wherebythe Ruler agreed to grant BAPCO
"the exclusive right and easements whereby the Company shall be
entitled throughout the whole of that portion of His Excellency the
Shaikh's Territories - including all the Islands and all the Territorial
Waters - remaining after excluding and apart from that area already
covered by the Concession Agreement dated December 2nd 1925, to
explore and search the surface of the abovementioned area ... upon the
following terms and conditions ...
(c) The Concession granted covering the whole of the additional area
including all the Islands and all the Territorial Waters of the Shaikh's
Dominions shall be governed in all ways by the terms and conditions as
laid down in the [1925]Concession Agreement. "330 (Emphasis added.)
214. The expansive terms in which the proposed concession area was described
prompted the British Governmentto look into the question of the area of covered by "all
... of the Shaikh'sTerritories- including all the Islands and all the Territorial Waters".
The record of these early enquiries demonstrates, contrary to Qatar's assertions, that
Britainhad never had occasionto examine the matter prior to this time:
"I have been looking into the question of the area covered by the Sheikh
of Bahrein'sdominions ... The Sheikh maintains a rather nebulous claim
to certain areas on the Arab coast .... His dominions may be regarded as
328 Letter from F.C. Starling (Petroleum Department) to J.G. Laithwaite (India Office), 17 August
1933. QM Ann. 111.92,Vol. 6, p. 469.
329
Letter from BAPCO to the British Political Agent, 4 April1933. Ann. 57, Vol. 2, pp. 197-199.
330
Letter from Major Frank Holmes (BAPCO) to the British Political Agent, 17 May 1933.
Ann. 58, Vol. 2, pp. 200-202.
-95- consisting of the Bahrein archipelago. The Bahrein archipelago consists
of the Island of Bahrein, and the adjoining islands of Muharraq, Umm
Na'assan, Sitrah and Nabi Salih.... The existing Bahrein Petroleum
concession is I understand in respect of areas in Bahrein Island only....
The information above, which is I fear rather scrappy, is taken from
Lorimer'sGazetteer. The Persian Gulf Pilot suggests that the archipelago
is surrounded by reefs running out to a considerable distance and banks
to which the Sheikhwould no doubt lay claim if any question arose; and
in considering any grant of a concession in respect of his 'dominions'or
'Bahrein'it would seem necessary to have a clear understanding as to
preciselywhat is covered ...."331
215. As the matter was investigated further, the implications of the BAPCO proposal
for territorial issues, which until then had been dormant and irrelevant, became clearer.
Lt. Col. Gordon Loch, at the time the British Political Agent, reported the situation as
follows:
"There is one point on which I should give a serious warning. The phrase
'all the Islands and all the Territorial waters' is a dangerous one, for
besides the well known islands of Bahrain (the main island, Muharraq,
Sitrah and one or two islets) claims are still made to other islands and to
areas on the Qatar coast (and possibly even on the Hasa coast). That
these claims are not regarded locally as dead and gone is shown by the
fact that I have heard mutterings that the explorers of the Anglo-Persian
Oil Company Limited in Qatar have examined places to which the Ruler
of Qatar had no right to allow them to go, and which people of Bahrain
frequent to this day as a summer resort; indeed, it is said that as late as
last year (1932)the Ruler of Qatar admitted in public that certain areas on
the Qatar coast pertain to Bahrain. I have refrained from making
enquiries, but the fact of my having heard of the matter shows that an
awkward incident might arise at any time, unless the area allotted to the
Companyis carefullylaid down." 332
216. The British Political Agent'sadvice to his superiors shows that Britain was well
aware of the fact that the Ruler of Bahrain had claims to islands and territories in
addition to the islands which constituted the core of the Bahrain archipelago, yet no
331 Letter from J.G. Laithwaite (India Office) to F.C. Starling (Petroleum Department), 3 May 1933.
QM Ann. III.84, Vol. 6, p.431.
332
Letter from the British Political Agent to the British Political Resident, Ann. 59,
Vol. 2, pp. 203-206.
-96- 333
mention was made of any sort of claim by the Ruler of Qatar. Britain's concern at this
point was to avoid an "awkward situation" arising with Ibn Saud, as a result of oil
exploration activities being conducted by BAPCO in areas on the Qatar peninsula which
Ibn Saud claimed belonged to him.
217. In June 1933, the Anglo-Persian Oil Company decided to join the competition
for the Bahrain unallotted area. 334 The introduction of a British commercial interest into
the equation increased Britain's concern to ensure that any additional concession rights
awarded to the American-owned BAPCO were confmed to as small an area as
335
possible. BAPCO at this time was apparently unaware of the strength of the Ruler of
Bahrain's claim to the Hawar Islands. British officials, however, were sensitive to the
possibility that a BAPCO claim to concession rights in the islands could arise at any
time. In order to pre-empt the possibility of such an eventuality materialising, Britain
proposed that any agreement with BAPCO regarding the unallotted area specifically
refer to the concerned islands of the Bahrain group by name:
"It would however be prudent to name islands i.e. Bahrain Island,
Muharraq and Sitrah (Umm Naasan and other islets near main island
might be included if question is raised), otherwise controversy may arise
over Hawar Island and Bahrain claim to certain places on the west coast
of Qatar peninsula." 336
333 Ibid Report from Capt. Gastrell to the British Political Resident, 30 July 1933. QM Ann.
III.87, Vol. 6, pp. 445-448; Telegram from the British Political Resident to the Government of
India, 31 July 1933. QM Ann. 111.88,Vol. 6, pp. 449-452.
334
Letter from Yusuf bin Ahmed Kanoo to the British Political Agent, 21 June 1933 (APOC
applied for permission to negotiate for "those areas in the territories of Bahrain which are not yet
allocated for such development .... "). Ann. 60, Vol. 2, p. 207.
335
Letter from the British Political Resident to the Secretary of State for the Colonies, 22 June 1933
("It seems to me there are obvious advantages in having a second competitor, especially British,
in the field."). Ann. 61, Vol. 2, p.8; Letter from the British Political Resident to the British
Political Agent, 29 June 1933 ("It would, as you will appreciate, be much more satisfactory from
our pointof view if remainder of Island were to be developed by Anglo Persian Oil Company or
Iraq Petroleum Company ... "). Ann. 62, Vol. 2, pp. 209-210.
336
Telegram from British Political Resident to the Secretary of State for the Colonies, 23 July 1933.
QM Ann. 111.85,Vol. 6, p. 437.
-97-218. The Ruler of Bahrain refused to jeopardise his sovereignty over the Hawar
Islands and Zubarah, and accordingly objected to the proposal. He informed the British
Government that the islands off the Qatar peninsula were dependencies of Bahrain and
that he did not wish any misunderstanding to arise from the omission of these islands in
any list. At the same time, however, Bahrain was in need of the concession royalties.
The Ruler of Bahrain knew that the British Government was cognisant of his position in
relation to the Hawar Islands and other areas on the Qatar coast. Moreover, he did not
wish to forestall the conclusion of the oil negotiations. He accordingly agreed to the use
of the term "Bahrain Islands" to distinguish the core islands of the Bahrain archipelago
from the islands of the periphery and the territories on the Qatar peninsula, clearly on
the understanding that this did not involve a compromise of his position. The Ruler of
Bahrain's acceptance of the British proposal, viewed in its proper context, was in no
way an acknowledgement by the Ruler that the Hawar Islands were not his, as Qatar
contends. The British Political Agent reported:
"As regards the designation of the area, the Shaikh and his son
immediately objected to the 'islands' being shown by name. They
explained that the islands off Qatar were the cause of this hesitancy (here
the Shaikh added that the Foreign Office knew that these islands are the
dependencies of Bahrain and that there is a ninety year old agreement
somewhere to this effect) and, therefore, to avoid any misunderstanding
by the omission of these islands, they would like the area to be called
'BahrainIslands'."337
219. This geographic distinction was clearly understood and endorsed by Britain as
indicated in the British Political Resident'sreport to the Secretary of State for India:
"[Shaikh] desires that area be called Bahrain Islands without specifically
naming any so that the question of Hawar Island and Qatar will not be
337 Despatch from the British Political Agent to the British Political Resident, 30 July 1933. QM
Ann. III.87, Vol. 6, p. 445. Telegram from the British Political Resident to the Government of
India, 31 July 1933. QMAnn. 111.88,Vol. 6, p. 449.
-98- made prominent by their omission. I think we may accept this as Hawar
338
Island is clearly not one of the Bahrain group."
220. The manner in which the British Political Resident's opinion is expressed
indicates that he was acknowledging this distinction as reflecting nothing more than a
geographical reality. Contrary to Qatar's assertions, in no way was he opining on the
Ruler of Bahrain's claim of sovereignty over the Islands. Fowle was aware of the fact
that BAPCO'sapplication for the Bahrain unallotted areas related only to territory on the
main island of Bahrain and the immediately adjoining islands. Thus, if the American
owned BAPCO were to set its sights on other islands pertaining to Bahrain, the British
Government could always claim that the term "Bahrain Islands" was only intended to
cover the area for which BAPCO had applied.
221. Britain was now satisfied that it had forestalled a possible claim to the Hawar
Islands by BAPCO under the proposed additional area concession by the use of the term
"Bahrain Islands". Discussion then turned to whether a possible claim could be made
by BAPCO under the 1925 Concession Agreement to concession rights in the Hawar
Islands and areas on the Qatar coast.
"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, of a claim being put forward by the Syndicate [i.e., BAPCO] to
rights in respectof Hawar and the area in Qatar to which a vague claim is
maintained by Bahrain." 339
222. It is evident, from the reasons marshalled by Britain for objecting to a claim by
BAPCO to expand its concession area, that Britain had at this juncture still made no
effort to examine the Ruler of Bahrain's sovereignty over the Hawar Islands. It thus
"presumed", by virtue of the Hawar Islands' geographical proximity to the west coast of
338
Telegram from the British Political Resident to the Secretary of State for India, 31 July 1933.
QM Ann. 111.88,Vol. 6, p. 449.
339 Letter from J.G. Laithwaite (India Office) to F.C. Starling (Petroleum Department), 9 August
1933. QM Ann. 111.91,Vol. 6, p. 461.
-99-Qatar,that the islands could not be considered underthe 'control'of the Ruler of Bahrain
and hence be open to a claim by BAPCO. The British Government thus decided that its
response to BAPCO in the event that BAPCO sought to include the Hawar Islands and
Zubarah in its concession area could be grounded in the language of the 1925
Concession Agreement itself:
"The exploration licence granted under the Agreement of 2 December
1925 (from the area specified in which the areas under the prospecting
license and mining lease must be selected) is, however, 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 western most and
the largest of a group of islands just off the Qatar coast.... The position
in regard to any concession in respect of the balance of the Sheikh's
territories outstanding after the mining lease is taken up under the
original concession will be safeguarded ... by the use ... of the phrase
'BahreinIslands." 340(Emphasis added.)
223. It is significant that at no time during the entire discussion regarding the
definition of the Bahrain unallotted area concession did Britain once mention any sort of
rights of the Ruler of Qatar to the Hawar Islands. This is all the more significant in
view of the fact that Britain was at this time promoting and participating in the
negotiations between the Ruler of Qatar and the British Anglo-Persian Oil Company
("Anglo-Persian") for the Qatar oil concession. Had there been any basis for a claim by
the Ruler of Qatar, it would surely have been actively supported by Anglo-Persian, and
at least some acknowledgement of it found in British records. Yet Qatar has presented
no such claim in its Memorial, and Bahrain has encountered no such evidence.
224. On 11 August 1933, BAPCO withdrew its offer for an additional concession to
the Bahrain unallotted area, leaving on the table only a request for an extension of its
original prospecting licence. Among members of Bahrain's Ruling Family it was felt
340 Ibid.
-100-that Britain had failed to act in Bahrain's best interests, favouring instead British
commercialinterests:
"Sheikhs Abdulla and Sulman do not hesitate to say that the British
Government has dissuaded Bahrain from coming to terms with the
American company over the additional area in order to help A.P.O.C.
341
[Anglo-Persian] to a geta footing in here ..."
225. In November 1933, the Ruler of Bahrain granted BAPCO's request for an
extension. Thisin effectplacedthe issue of the definitionof the Bahrain unallotted area
in abeyance. Until BAPCO had selected its 100,000 acres under the original 1925
concession, it was not possible to define the unallotted area. Eventually, in 1934, the
Ruler of Bahrain l¥ld BAPCO eventually signed a mining lease under the 1925
concessionfor an area of I00,000acres on the main islandof Bahrain.
226. In sum, the historical record of the negotiations for BAPCO'sbid to extend its
1925 Bahrain concessionestablishes that Britain was clearly aware, from the moment
when the question of sovereignty over the Hawar Islands first arose, of the claims
assertedby the Ruler of Bahrainto the Islands. Conversely,not once did Britain at this
stagereferto the existence of a competing claim by the Ruler of Qatar. Qatar'sattempt
to rely on British documents to establish Britain'srecognition of Qatar's sovereignty
over the Islands, and by implication a competing claim to the Islands by the Ruler of
Qatar, is entirely without merit. Similarly, as discussed below, Qatar'sattempt to rely
on the oil concession awarded in 1935 to Anglo-Persian by the Ruler of Qatar, as
evidenceof Britain's recognitionthat the HawarIslandsbelongedto Qatar, is baseless.
(iii) The 1935 Qatar oil concession
227. The discoveryof oil in Bahrain in 1932 gave rise to considerable interest in the
prospect that oil might be found in Qatar. Britain considered it important that Anglo-
341 Letter from Charles D. Belgrave, Financial Adviser to the Bahrain Government, to the British
Political Agent, 16August 1933. Ann. 64, Vol. 2, pp. 213-215.
- 101-Persian succeed in its negotiations for the Qatar Concession, not only in order to further
British commercial interests (American oil companies had already obtained concessions
in Saudi Aratia and Bahrain), but also in order to contain the extension of Ibn Saud's
influence on the Qatar peninsula.
228. In its attempts to support Anglo-Persian's application for the Qatar concession,
Britain was able to invoke the threat posed by Ibn Saud to the Ruler of Qatar'shopes for
autonomy against the Ruler of Qatar. Britain informed the Ruler of Qatar that it would
agree to guarantee his southern border with Saudi Arabia, but only on the condition that
the Qatar concession was granted to Anglo-Persian. The Ruler of Qatar agreed.
229. A concession agreement was accordingly signed by Anglo-Persian and the Ruler
342
of Qatar on 17 May 1935, with the approval of the British Govemment. Within
months of its signing, Anglo-Persian assigned the concession to Petroleum Concessions
Limited (PCL), a subsidiary of the Iraq Petroleum Company, in which Anglo-Persian
was a major shareholder.
230. Pursuant to Article 1of the 1935 Qatar Concession, the Ruler of Qatar granted to
Anglo-Persian various rights to explore, to prospect, to drill for and to extract petroleum
and other specified substances "throughout the principality of Qatr". 343
231. Article 2 provided:
"... the Company can operate in any part of the State of Qatr as is defined
below .... The State of Qatr means the whole area over which the Shaikh
rules, and which is marked on the north of the line drawn on the map
344
attached to this Agreement."
342 Agreement between the Anglo-Persian Oil Company and the Ruler of Qatar, 17 May 1935. BM
Ann. 104, Vol. 3, p. 615; QM Ann. III.99, Vol. 6, p. 507.
343 Ibid
344
Ibid
- 102-232. The language of Article 2 avoided defining the area over which the Ruler of
Qatar ruled. Nonetheless, Qatar relies on Articles 1 and 2 of the 1935 Concession
Agreement, and in particular the map attached thereto, as support for its assertion that
the "Hawar group of islands is unmistakably comprehended within the territory of the
State of Qatar as so defined."345
233. Qatar's contention does not withstand scrutiny. As discussed in further detail
below, in April 1936, in the context of an application for a concession to the Bahrain
unallotted area, PCL requested the British Government to clarify whether the Hawar
Islands were considered to belong to the Ruler of Qatar or to the Ruler of Bahrain. In
support of its assertion that in Qatar Concession included the Hawar Islands, PCL
referred to the 1935 Concession Agreement, which had been approved by Britain, and
the map referred to in that Article:
"We are, as you know, now negotiating with the Shaikh of Bahrain for
that partof his group of islands which has not already been given to the
Californians [i.e.BAPCO]. He has commenced by claiming that the
Island of Hawar is part of his dominions. This island is, in fact, situated
off the west coast of Qatar, from which it seems to be not more than %
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 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 partf Qatar and not of Bahrain." 346
234. As a matter of geography, the Hawar Islands were included on the map attached
to the agreement north of the line - but so was all of Bahrain. The only conclusion that
can be drawn from the text of the Agreement and the map is that the Qatar concession
was to operate on such territory north of the line over which the Sheikh of Qatar did in
345
QM para. 6.26, p. 97. As discussed in Section 2.2.1, in 1935 the Sheikh's authority was only
established in the Doha enclave and nothing more.
346 Letter from J. Skliros (PCL) to J.C. Walton (India Office), 29 April 1936. QM Ann. III.l04,
Vol. 7, p. 21.
- 103-fact rule. This posed the question of the extent of the Sheikh of Qatar's sovereignty; it
did not answer it.
235. PCL's spurious argument was thus quickly dismissed by the India Office:
"I doubt whether the map attached to the Qatar concession is relevant in
this connection - its object was to define the southern boundary of the
Concession. Incidentally, it marks the Bahrein Islands as well as
Hawar." 347
236. This dismissal was reiterated in a letter dated 25 May 1936 from the British
Political Resident to the Secretary of State for India:
"The map in question showed not only Qatar, but part of the
neighbouring territory including the Islands of Bahrain, so that the fact of
Hawar appearing on it is of course no proof of ownership one way or the
other."348
(iv) The so-called 1936 British "Provisional Decision"
237. Having secured, with the intervention of the British Government, a concession in
the territory over which the Ruler of Qatar ruled - undefined as that was - PCL set its
sights, in January 1936, on the Bahrain unallotted area concession. 349
238. As discussed above, in the first round of negotiations, Britain had succeeded in
ensuring that the Hawar Islands could not be included in the definition of the Bahrain
unallotted area concession; the principal motive for Britain's efforts was the fact that the
applicant had been the American-owned BAPCO. As the second round of negotiations
for the unallotted area got underway, the Ruler of Bahrain was keen to ensure that there
347 Letter from J.C. Walton (India Office) to J. Skliros (PCL), 14May 1936.Ann. 248, Vol. 5,
p. 1076.
348
Express Letter from the British Political Resident to the Secretary of State for India, 25 May
1936. QM Ann. 111.107,Vol. 7, p. 31.
349 Letter from T.C. Fowle, British Political Resident, to M.J. Clauson, Indiace, 4 January
1936. Ann. 71, Vol. 2, p. 232.
- 104-would be no misunderstanding regarding the prospective concession area. He thus
insisted that the concession area which was to form part of the Bahrain unallotted area
shouldbe defmed so as to reflecthis sovereigntyover the Hawar Islands.
239. The implications of the Ruler of Bahrain's assertion of sovereignty over the
HawarIslands were not lost on PCL. If the Hawar Islands were considered to be part of
Qatar, then their concession rights would automatically fall to PCL by virtue of the
Qatar Concession. If, on the other hand, they were considered to be part of Bahrain,
PCL would find itself confronted with stiff competition from BAPCO for what was
consideredto be an area with significant oil potential. 350Accordingly, PCL'sManaging
Directorformally requested that the British Governmentstate its view on the question of
sovereignty over the Hawar Islands, making it clear that PCL considered the Islands to
be part of Qatar. In support ofPCL's position, the Managing Director invoked the 1935
Qatar Concession and the map attached thereto. The irrelevance of this map as support
for Qatar's claims to the Hawar Islands has already been demonstrated above (see
paragraphs230 to 236 above). 351
240. PCL also went so far as to warn the British Government that it would be
prepared to instigate a territorial dispute over the Hawar Islands if it did not obtain the
concession rights to them. PCL'sposition is reflected in a report submitted by Captain
T. Hickinbotharn, the British Political Agent (officiating), on a conversation held with
Major Frank Holmes, by then PCL'slocal representative:
"Major Holmes stated that if the Bahrain Government claimed Hawar
then the Qatar concessionaires would probably maintain that it was
included under the Qatar Concession and protest against the Shaikh of
Bahrain'sclaim. A claim to the Islands fs' added in manuscript] by the
350 Letter from Captain T. Hickinbotham, Officiating British Political Agent to the British Political
Resident, 9 May 1936("... the ownership of the Hawar group is of great importance because it
is directly in what Major Holmes called the oil 'line"'). Ann. 73, Vol. 2, pp. 236-237.
351
Letter from J. Sk1iros(PCL) to J.C. Walton (India Office) of29 April 1936. QM Ann. III.l04,
Vol. 7, pp. 19-21.
- 105- Shaikh would probably bring the Bahrain Petroleum Company Limited
into the fieldin competition with Petroleum Concession Limited for the
Concession at present being negotiated here by him. He also said that if
Petroleum Concessions Limited obtained the present concession then the
question of ownership of the Island in question would not be brought up
by them. I gathered that he was suggesting that if Petroleum Concessions
Limited obtained the concession they are negotiating here a possibly
352
difficult questionof territorial rights would be avoided."
241. Hickinbotham's report is noteworthy for a second reason: it highlights the fact
that any protest against the Ruler of Bahrain's sovereignty over the Hawar Islands would
be made at PCL'sinstigation. No mention is made of the Ruler of Qatar.
242. It was in this context that,on 28 April 1936, Charles Belgrave, the Adviser to the
Bahrain Government, wrote to the British Political Agent in Bahrain:
"In connection with the present negotiations for an oil concession over
the territoryof Bahrain which is not included in the 1925 oil concession,
I have the honour to inform you that the [Ruler] has instructed me to state
to you that the Hawar group of islands lying between the southern
extremity of Bahrain island and the coast of Qatar is indisputably part of
Bahrain."
"His Excellency has frequently mentioned this fact to His Britannic
Majesty's Political Agent in Bahrain and he wishes to remind you that he
informed you that Hawar belonged to Bahrain when accompanied by
Shaikh Abdullah bin Isa Al-Khalifa and myself he called on you on 18th
April1936 to discuss the question of a new oil concession. As he regards
his sovereignty over the Hawar islands which includes one of the largest
islands belonging to Bahrain of great importance he considers that the
fact should be stated officially in writing.353
243. In view of PCL's request for an "advisory opinion" regarding the ownership of
the Hawar Islands, the British Government investigated the matter. On 6 May 1936,
Loch, who was still the British Political Agent, submitted a report on the issue to Sir
352
Letter from Capt. T. Hickinbotham, Officiating British Political Agent to the British Political
Resident, 9 May 1936. Ann. 73, Vol. 2, pp. 236-237.
353 Letter from Charles D. Belgrave, the Adviser to the Government of Bahrain, to the British
Political Agent, 28 Aprill93QM Ann. III.l03, Vol. 7, p. 15.
-106-Trenchard Fowle, the British Political Resident. On the basis of the evidence available
to him at the time, the British Political Agent concluded:
"I am inclined to think there is real substance in Sheikh Sir Hamad bin
!sa's [the Ruler of Bahrain] claim." 354
244. The British Political Agent clarified that he had not made any efforts to seek out
the views of the Ruler of Qatar, principally, it would appear, because there seemed to
have been no record of the Ruler of Qatar having ever asserted any sort of claim to the
Hawar Islands:
"I do not know what Sheikh Abdullah bin Jasim of Qatar's views about
the Islands are, but I have never heard any protest from him against the
activities of Bahrain'ssubjects there." 355
This, despite the involvement and interests of the Qatar concessionaire.
245. Additional evidence adduced by PCL, in support of its view that the Hawar
Islands belonged to Qatar, was also submitted for the British Political Resident's
consideration. 356 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. The
absence of any mention of the Ruler's views can only be explained by the fact that the
354
He went on to say that it might in certain circumstances suit the British politically to have as
large an area as possible included under Bahrain. The British Political Agent, however, gave no
reasons in support of his suggestion and British records contain no indication that it was ever
given any consideration in Whitehall. Qatar's attempts to use the British Political Agent's
comments to corroborate its allegations of British-Bahraini collusion are, therefore, utterly
baseless. Letter from Lt. Col. Gordon Loch, British Political Agent, to the British Political
Resident, 6 May 1936. BM Ann. 247, Vol. 5,p. 1074; QM Ann. III.106, Vol. 7, p. 27.
3SS Ibid.
356
Note entitled "Hawar Islands" from the India Office to the British Political Resident Persian
Gulf, undated, with enclosure entitled ''Note on 'Hawar' Island" submitted by S.H. Longrigg
(PCL), 29 April1936. Ann. 72, Vol. 2, pp. 233-235.
-107-Ruler of Qatar had nothing to say on the subject Indeed, as discussed in Bahrain's
Memorial at Section 3.3.B, based on the Ruler's description in 1939 of where he
consideredthe Hawar Islands to be located indicated that he was unaware of where the
Islandswere.
246. The British Political Resident now had before him a detailed statement of the
evidence on whichthe Ruler of Bahrain based his claims of sovereignty over the Hawar
Islands, the evidence considered to be relevant to the issue (in the form of the PCL
Managing Director'sletter and a separate report submitted by PCL), and the results of
the British Political Agent's investigations. In a letter dated 25 May 1936, to the
Secretary of State for India, the British Political Resident set out his analysis of the
available evidence and on that basis endorsed the view that the Ruler of Bahrain was
entitled to sovereigntyover the Hawar Islands:
"It is convenient to deal first with the statement in the first paragraph of
[PCL'sManaging Director's]letter ... that the fact of the Island of Hawar
being shown on the map annexed to the Qatar Oil Concession is proof
that the Island belongs to Qatar. The map in question showed not only
Qatar, but part of the neighbouring territory including the Islands of
Bahrain, so that the fact of Hawar appearing on it is of course no proof of
ownership one way or another.
... it is beyond doubt that the [Hawar] Islandhas long been occupied by
the Dowasir tribe of Bahrain (vide paragraph 7 of Letter No. 207 dated
4th April 1909from the Political Agent, Bahrain to the Political Resident
... and the reference to the Gazetteer of the Persian Gulf ...), and it
appears beyond doubt that the present Shaikh of Bahrain's father (who
succeeded in 1869) and the Shaikh himself have exercised active
jurisdiction in Hawar down to the present day (vide paragraphs 4-6 of
Letter no. C/180 dated 28th April 1936 from the Adviser to the
Government of Bahrain to the Political Agent, Bahrain), apparently
without interferenceor protest by the Shaikh of Qatar."357
357 Lt. Col. T.C. Fowle, British Political Resident, to the Secretary of State for India, 25 May 1936.
QM Ann.III.l07, Vol. 7, p. 31.
-108-247. He went on to conclude that:
"In all the circumstances of the case, 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. We have
heard nothing on the subject from the Shaikh of Qatar, and it is quite
possible that he may not dispute the claim of the Shaikh of Bahrain." 358
248. Fowle, however, felt it necessary to highlight the implications ofhis fmdings:
"The decision as to the ownership of Hawar may, according to Major
Holmes, affect the future activities of [BAPCO] as, if it is awarded to
Bahrain, that Company may think it worth while to compete with [PCL]
359
for the remaining area. "
249. The British Political Resident'swarnings regarding BAPCO were not misplaced.
On 20 June 1936, BAPCO confirmed its interest in negotiating for the unallotted area. 360
The Foreign Office did not hide its concern regarding BAPCO'sentry into the race:
"H.M.G. would certainly prefer that P.C.L. should get this concession,
but they would raise no objection to [BAPCO] securing it subject to their
receiving the necessary political safeguards and to their being convinced
that the concession was in the best interests of the Sheikh." 361
250. The India Office also supported a strategy of exerting pressure on the Ruler of
Bahrain to award the unallotted area concession to PCL:
"... [His Majesty's] Government may consider it desirable to suggest to
the Sheikh that it might be a good thing to give the remainder of the
concession to Bahrain to [PCL]. Once BAPCO gets the whole area it
will probably increase the difficulty of any arrangement being entered
into between Standard Oil of California and the other big groups (which
358
Ibid.
359 Ibid.
360 Telegram from the British Political Agent to the British Political Resident, 20 June 1936.
Ann. 74, Vol. 2, p. 238.
361
Foreign OfficeMinute,26 June 1936. Ann. 75, Vol.2, p. 239.
- 109- really means the Iraq Petroleum Company) over this territory with the
362
object of securing a measure of British control."
251. On 9 July 1936, an inter-departmental meeting was held at the India Office in
London, involving representatives of the Foreign Office, Petroleum Department,
Admiralty and the India Office, to consider the issue of the ownership of the Hawar
363
Islands. Despite the clear incentive to find in favour of the Ruler of Qatar now that
BAPCO had expressed its interest in the unallotted area, the British Political Resident's
conclusions were adopted as the official view of the British Government:
"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
364
that the Sheikh of Bahrein should be informed accordingly."
252. The implications of this decision were not lost on the Petroleum Department:
"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
365
from the Gulf and that the whole area would fall under British control."
(Emphasis added.)
253. The Ruler of Bahrain was informed of the British Government's opinion through
his Adviser, Charles Belgrave. Britain, however, was very careful to point out that the
opinion being expressed was only provisional, and that no final determination on the
362
Letter from F.C. Starling, Petroleum Department to M.J. Clauson, India Office, 3 July 1936.
Ann. 76, Vol. 2, pp. 240-242.
363 Minutes of a meeting held at the India Office, 9 July 1936. Ann. 77, Vol. 2, pp. 243-245.
364
Ibid.
365 Ibid.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."
-110-matter of sovereignty over the Hawar Islands would be possible until the views of the
Ruler of Qatar had been heard:
"Mr. Clauson and I saw Mr. Belgrave on lOth July, and explained to him
the position in regard to Hawar, viz.,that on the evidence before H.M.G.
it appears to belong to the Sheikh of Bahrain, and that the burden of
disproving his claim lies on any other potential claimant. It was
explained to him that it would be impossible to give a final ruling without
knowing whether the Sheikh of Qatar has a claim, and hearing it if he has
one. Mr. Belgrave understood the position. He said that the Sheikh
would enter the island in the list of his possessions to be given to
[PCL]."366
254. The same proviso was conveyed to PCL:
"It is important that the Company should clearly understand that
[Britain's] position is as stated in the last sentence [of the India Office's
letter to PCL dated 14 July 1936], namely, that on the basis of the
evidence at present before them it appears to them that Hawar belongs to
the Sheikh of Bahrain and the burden of disproving his claim would lie
on any other potential claimant ... confirm that the Company appreciate
the limited nature of the decision given by [Britain] in regard to this
group of islands."67
255. Notwithstanding Britain's concern to ensure that any claim by the Ruler of Qatar
be given a full and fair hearing, 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 ofBahrain. 368
256. In May 1937, the Ruler of Bahrain decided to postpone negotiations for the
unallotted area concession in order to focus his attention on the crisis developing in
366 Minute by the India office, 14 July 1936. QM Ann. 111.111,Vol. 7, p. 51.
367 Letter from M.J. Clauson, India Office, to S.H. Longrigg,14 September 1936. Ann. 79,
Vol. 2, p. 248.
368
Letter from. Dalrymple Belgrave to Hood, 18 July 1936. Ann. 78, Vol. 2, pp. 246-247. Letter
from J.C. Walton (India Office) to F.C. Starling (Petroleum Department), 30 July 1936. QM
Ann. 111.112. Telegram from Sir Trenchard Fowle, British Political Resident, to Secretary of
State for India, London, 12 February 1937. Ann. 80, Vol. 2, pp. 249-250.
- 111-Zubarah. Negotiations recommenced in January 1938, setting in motion the events that
would ultimately lead to the British Arbitration concerning the sovereignty of the Hawar
Islands.
257. As discussed in Sections 3.3, 3.4 and 3.5, below, in questioning the propriety of
the 1939 British decision, Qatar argues that throughout the proceedings Qatar was
treated as the claimant as a resultf a "provisional decision" by Britain in 1936 that the
Hawar Islands belonged to Bahrain. This alleged tilt, Qatar contends, was motivated by
British bias and was based on an improper consideration of the available evidence.
Contrary to Qatar's assertions, all that the British Government had done in 1936 was to
give an advisory opinion in the context of negotiations between the Ruler of Bahrain
and PCL for an oil concession. In so doing, Britain simply confirmed a historical reality
of which it was already aware. This opinion had very little significance for the formal
arbitration that was to take place in 1939.
258. Qatar suggests that "political considerations" may also have influenced the
British Government's decision. This suggestion cannot sensibly be supported. After
BAPCO's entry into the negotiating framework, if "political considerations" had been
Britain's principle motive, Britain would clearly have favoured granting Qatar
sovereignty over the Islands. This would have meant that PCL would automatically
have gained the concession rights to the Islands under its 1935 Qatar Oil Concession.
Britain'sdecision in 1936, like its arbitration two years later, was based on an objective
evaluation of the evidence of the exercise of Bahraini sovereignty over the Hawar
Islands.
259. It is also clear from the foregoing that the British Political Agent and the British
Political Resident investigated the matter as thoroughly and objectively as was required
by the circumstances. PCL had requested an advisory opinion from the British
Government in the context of on-going negotiations for the Bahrain unallotted area
concession, so that it could be certain it knew what areas iwas negotiating for with the
-112-Ruler of Bahrain. Qatar's Memorial complains at paragraph 6.37 that "no attempt was
made by [either the British Political Agent or British Political Resident] to inform the
Ruler of Qatar that a claim to Hawar had been advanced on behalf of Bahrain .... " 369 In
the circumstances, there was no reason for Britain to consult with the Ruler of Qatar,
nor to report to him the findings that had been made. The issue had been raised by PCL,
not by the Ruler of Qatar.
(v) The British decision regarding sovereignty over the Hawar Islands
260. Negotiations for the Bahrain unallotted area concession recommenced in early
1938. Before their suspension, the Ruler of Bahrain had decided to divide the Bahrain
unallotted concession area between BAPCO and PCL. 370 The scheme of division gave
to PCL those areas in which it was most interested, namely the Hawar group of islands,
Fasht al Jarin, Khor Fasht and Fasht ad Dibal, as well as a number of other smaller
islands and reefs. PCL therefore renounced its attempt to secure concession rights over
the entire Bahrain unallotted area.
261. Obtaining the concession rights to the whole of the Bahrain unallotted area,
however, remained BAPCO's goal, as recorded in the following Note by an India Office
official:
"[BAPCO] would be quite content to see no concession given for the rest
of the Sheikh's territory but if one were given they were anxious to obtain
the whole of the unallotted area, since they thought it would be
regrettable if two companies were operating side by side in so small an
area."37t
369 QM para. 6.37, p. 101.
370
Letter from H.R. Ballantyne (BAPCO) to Charles D. Belgrave, Adviser to the Government of
Bahrain, 5 October 1936. QM Ann. III.114, Vol. 7, p. 65.
371 Note by J.P. Gibson, India Office, 7 April1938. Ann. 84, Vol. 2, pp. 262-263.
- 113-262. PCL obtained Britain'sapproval to press forward with its negotiations with the
Ruler of Bahrain for those concession areas included within its sub-division. 372 This
again brought to the fore the issue of whether the Hawar Islands belonged to the Ruler
of Bahrain, and as such, could be granted as part of the Bahrain unallotted area
concession.
263. As discussed above, in giving its 1936 "advisory opinion" regarding Bahrain's
ownership of the Hawar Islands, Britain had been careful to point out that a final ruling
would not be possible until it had been ascertained whether the Ruler of Qatar had a
claim, and hearing it if he did. Contrary to Qatar'sclaims, it was clear that Britain had
on no previous occasionmade a formal ruling on the question:
"Hitherto no attempt has been made to determine the sovereignty of the
islands in question as between Bahrein and Qatar; but in view of the
manner in which it has been raised by [PCL], a decision cannot be
delayed further...." 373
264. Although Britain would have preferred to avoid the issue/ 74 this was no longer
possible:
"Now, however, that the P.C.L. want to commence negotiations with the
Sheikh concerningthis area in which Hawar is situated, H.M.G. will have
to give a decision as the Company will want to know before entering on
negotiations whether Hawar does or does not belong to Bahrein." 375
265. Britain was also concerned to ensure that the Ruler of Qatar be given a full and
fair opportunity to air whatever claimshe may have had:
372 Letter from R. Peel, India Office, to S.H. Longrigg, PCL, 29 April 1938.Ann. 85, Vol. 2,
pp. 264-266.
373 Note by A.C.B. Symon, 4 April1938. Ann. 83, Vol. 2, pp. 260-261.
374
Note to A.C.B. Symon from T.C. Fowle, 5 April, 1938. BM Ann. 254, Vol. 5, p. 1090; QM
Ann. 111.146,Vol. 7, p. 233.
375 Ibid.
-114- "... it is only fair, I think, to Qatar, to give him an opportunity of having
his say ..376
266. In February 1938, the British Political Agent contacted the Ruler of Qatar to
ascertain whether he wished to put forward a formal claim to the Hawar Islands, and had
ascertained that, at that time, he did not. 377 By May 1938, however, the negotiations
between PCL and the Ruler of Bahrain had progressed considerably, and the prospect of
an agreement being reached between the parties seemed all the more likely. Thus, on 10
May 1938, following yet another visit from the British Political Agent to urge him to
submit a claim, Sheikh Abdullah of Qatar submitted the first of two letters that
constituted his claim to the Hawar Islands. 378
267. Given the need for a prompt decision on the question due to the on-going oil
concession negotiations, the British Political Resident issued instructions to expedite the
379
processing of Qatar's claim. The British Political Agent responded to the Ruler .of
Qatar'sletter, emphasising the urgency with which the matter had to be addressed and
the need for the Ruler to submit evidence supporting his claim of sovereignty over the
Hawar Islands:
"It is indeed a fact that by their formal occupation of the Islands for some
time past the Bahrain Government possess a prima facie claim to them ...
even so [Britain] will be prepared to give the fullest consideration to any
formal claim put forward by you to the Hawar Islands, provided that your
claim is supported by a full and complete statement of the evidence on
which you rely in asserting that you, as Sheikh of Qatar, possess
376
Ibid.
Copy of Express Letter No. C/312 from the British Political Agent, to the British Political
Resident in the Persian Gulf, Bushire, 15 May 1938. BM Ann. 257, Vol. 5, p. 1096; QM Ann.
111.152,Vol. 7, p. 261.
378 Translationof a letter dated 1OthRabi alA wwal 1357 from Shaikh Abdulla bin Qasim AI-Thani,
Ruler of Qatar, to Hugh Weightman, British Political Agent, 10 May 1938. This letter was
officially providedo the Bahrain Government under cover of the British Political Agent's letter
20 May 1938. BM Ann. 256, Vol. 5, p. 1094; QM Ann. III.150, Vol. 7, p. 253.
379 Telegram from British Political Resident, to British Political Agent, 19 May 1938. QM Ann.
111.153,Vol. 7, p. 267.
- 115- Islands (assuming, of course, that Bahrein sovereignty over them 1s
386
recognisedby H.M.G.) ...."
274. Accordingly, the Ruler of Bahrain was encouragednot to take any final decision
387
on the awarding of the concessionand to give PCL an opportunityto re-state its case.
275. PCL seized the opportunity that had been created for it. Playing on the Ruler of
Bahrain's fears, it emphasised that awarding the entire unallotted area concession to
BAPCO would have serious implications for the Ruler's relations with the British
Government. 388 The British Political·Resident supported the British Government's
intervention on PCL'sbehalf:
"I am defmitely of the op1mon that His Majesty's Government's
declaration to Shaikh that Hawar should be allotted to P.C.L. should.be
conveyed to him now rather than later when Shaikh may have informed
B.P.C. that it is included in their area which is likely to happen .... If we
wait till that stage our intervention will it seems to me be much more
awkward." 389
276. Concerned by the possibility of losing British protection, the Ruler of Bahrain
sought assurances from the British Government:
"Before submitting our opinion to you regarding the two offers for
Additional Area we wish to enquire whether British Government has any
political objection to our granting a concession to [BAPCO] extending
over our whole territory. Our reason for enquiries is because we are being
informed from certain quarters that such action would seriously injure
our friendship with the British Government. "390
386 Draft India Office Paper prepared R. Peel, 8 November I938. Ann. 9I, Vol. 2, pp. 275-278.
387 Telegram from Secretary of State for India to British Political Resident, I6 December I938.
Ann. 92, Vol. 2, pp. 279-281.
388 Decypher of telegram from British Political Agent, to Political Department, India Office,
8 January I939. Ann. 93, Vol. 2, p. 282.
389
Telegram from British Political Resident, to Secretary State for India, London, 9 January
I939. Ann. 94, Vol. 2, p. 283.
390 Decypher of telegram to British Political Resident, repeated to India Office, from the British
Political Agent,I January 1939. Ann. 95, Vol. 2, p. 284.
- 118-277. The British Government assured the Ruler that there was no risk of his losing
Britain's goodwill, and that there was no connection between the Ruler's decision on the
oil concession and the issue of his claim to the Hawar islands.
"[His Highness] 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 [the British 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 a grant of a
concession in Hawar [Britain] 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 the
islands."391
278. Britain appeared to believe that PCL still had a chance to win the Hawar Islands
concession, in part because it was convinced that the Ruler of Bahrain would not want
to lose Britain's goodwill.
279. The Ruler of Bahrain was encouraged by these assurances. BAPCO had
meanwhile increased the value of its offer. After evaluating the offers it had received
from both BAPCO and PCL, the Bahrain Government decided that the offer made by
BAPCO would be in Bahrain'slong-term interests. 392
280. Britain could not deny the advantages that would accrue to Bahrain from the
BAPCO concession, even though it recognised the geopolitical considerations that
weighed against agreeing to such a concession:
391
Telegram from Secretary of State for India, London, to British Political Resident, 14 January
1939. Ann. 96, Vol. 2, p. 285.
392 Letter fromSheikh Hamad bin lsa Alkhalifah to the British Political Agent, 6 February 1939.
Ann. 97, Vol. 2, pp. 287-294.
- 119- "However much weight the arguments [i.e.,commercial and geopolitical
considerationsfavouring a grant of the HawarIslands concession to PCL]
set out ... may carry one way or another, the essence of the existing
situation is that [BAPCO'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
[PCL] under the advice of [Britain] will be as disastrous to the prestige
and position of [the British 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 effectf the almost
inevitable comment, if [the British Government]insist on Hawar going to
[PCL],- 'theBritish have served their own interests at the cost of 1 112
million pounds to the Shaikh of Bahrain'. The effect of hostile
propoganda, overt and covert, which might be based on such a statement
is incalculable."
"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'sGovernment and of the Bahrain State." 393
281. Britain realised that its hands were tied. One avenue still remained open. As yet
no formal decision had been issued as to which of the two Rulers possessed sovereignty
over the Hawar Islands. The Secretary of State for India wrote to the British Political
Resident reminding him that the sovereignty issue remained open:
"It would seem to be necessary, if [Britain] were to approve of
concession over whole of unallotted area being given to [BAPCO], to
warn both the Sheikh and the Company that the question whether the
Hawar Islands are included in the concessional area depends on whatever
decision is eventually given by [Britain] regarding the sovereignty over
the islands, and that consequently no operations could be commenced in
Hawar pending such decision .... In the circumstances, however, it
would seem highly desirable that an early decision should be reached on
the question of sovereignty over the Hawar Islands .... If [the Sheikh of
393 Express Letter from British Political Agent to British Political Resident, Bahrain, 12 February
1939 at p.. Ann. 98-99, Vol. 2, pp. 295-302. ·
-120- Qatar] has not yet replied he might be asked to submit his reply within
such furthershortperiodas you think reasonable." 394
282. It was thereforeconsideredappropriatethat any agreementbetween BAPCO and
the Ruler of Bahrainincludea caveatto the effectthat the concession was subject to the
British Government'sdecisionconcerning sovereigntyoverthe islands. 395
283. In addition, before it had even informed either the Ruler of Bahrain or BAPCO,
the British Government informed PCL that it was going to approve the BAPCO
concession agreement. 396 It was pointed out to PCL that the British Government's
decision to permit the Ruler of Bahrain to grant the concession to BAPCO was
"... subject, of course,as regards the Hawar Islands, to the question of sovereignty over
the Islands beingeventuallydecidedin the Sheikh'sfavour." 397
284. On 22 April 1939, the British Political Agent submitted his final analysis and
evaluationofthe evidencethat had been submittedby the respective Rulers of Qatar and
Bahrain. He summarisedhisfindings as follows:
"The Shaikh of Qatar has produced no evidence whatsoever. He relies
solely on an uncorroborated assertion of sovereignty, on geographical
propinquity and on the alleged statements of unidentified persons. On
the Bahrain side there is evidence that the original occupation of Hawar
by the Dawasir was effected under the authority of the AI Khalifah, that
the Zellaq Dawasir have frequented these islands for a great number of
years, that the courts established by the Shaikhs of Bahrain have
promulgated decisions in regard to disputes over property there, that
questions of ownership of fish traps have been submitted to the decision
of the Bahrain Shara Court, that seven years ago Bahrain processes were
served in Hawar, that the boats owned by the Dawasir of Hawar are
394 Express Letter from Secretary of State, India, to British Political Rinthe Persian Gulf,
1 March 1939. QM Ann.III.183, Vol. 7, p. 417.
395
Letter from Military Branch, Admiralty to R.T. Peel, India Office,arch 1939. Ann. 100,
Vol. 2, pp. 303-305.
396 LetterS.F.Stewart to Lord Cadman (PCL), 14 April1939. Ann. 101, Vol. 2, pp. 306-308.
397 Ibid.
- 121- registered in Bahrain and that gypsum or juss is excavated from Hawar
under licence from the Bahrain Government." 398
285. In furtherance of British geopolitical and commercial interests, Britain could still
have found in favour of the Ruler of Qatar, which would have resulted in PCL gaining
the Hawar Islands concession by default. However, the Ruler of Qatar had submitted no
evidence in support of his claim, while the Ruler of Bahrain had submitted a wealth of
evidence demonstrating Bahrain'shistorical sovereignty over the Islands.
286. By mid-June 1939, the British Government had considered the views put
forward by the British Political Agent and decided internally that the Hawar Islands
belonged to Bahrain. Before the decision was formally issued, PCL made a last-ditch
effort to convince the British Government that it should consider awarding the Islands to
Qatar.399
287. The weight of the evidence, however, was clearly in favour of Bahrain. On 11
July the Rulers of Bahrain and Qatar were informed that after having given the matter
careful consideration, Britain had decided that the Hawar Islands belonged to Bahrain
and not to Qatar. 400 The British award of 1939 thus confirmed the historical fact of
Bahrain'ssovereignty over the Hawar Islands.
398
Letter from H. Weightman, British Political Agent, to the British Political Resident in the
Persian Gulf, 22 Aprili939. BM Ann. 281, Vol. 5, p. I165; QM Ann. III.195, Vol. 7, p. 497.
399 Letter from Managing Director of PCL to the Under Secretary of State for India, 30 June I939.
BM Ann. 285, Vol. 5, p. II78; QM Ann. III.206, Vol. 8, p. 27.
400
Letter from British Political Resident to Ruler of Bahrain, II July 1939. BM Ann. 287, Vol. 5,
p. 1182; QM Ann. 111.208,Vol. 8, p. 37. Letter from British Political Resident to Ruler of Qatar,
1I July 1939. BM Ann. 288, Vol. 5, p. I183; QM Ann. III.209, Vol. 8, p. 41.
- 122-H. Prior's and Alban's criticisms of the 1939 Award were hasty, unfounded,
and disproved
288. In its effortsto impugn the 1939 British decision awarding the Hawar Islands to
Bahrain, Qatar places considerable weight on the views expressed by Lt. Col. Geoffrey
Prior, who succeeded Sir Trenchard Fowle as British Political Resident, and Prior's
subordinate, Major R.G.E. Alban, who succeeded Sir Hugh Weightman as British
PoliticalAgent in Bahrain. Qatar relies on statementsmade by Prior and Alban, taken -
as usual- out of context, in order to buttress its allegations of British bias and collusion
401
with Bahrainto stealthe HawarIslands from Qatar. Qatar'sMemorial alleges:
"What is remarkable in this story is that both Prior ... and Alban ...
should have expressed such unease and disquiet about the correctness of
the British decision of 1939 on the Hawar islands. They did not
particularise their unease and disquiet by pointing to specific procedural
irregularities, but it is clear that both them were anxious to have the
decisionre-opened; and the refusal of the British officials to re-open it in
1941was attributed not so much to a firm belief on the part of Caroethat
Fowle and Weightman were right, but rather to the political
undesirability,if not impracticability, of reversing the decision made in
1939."402
289. Qatar's charges of British bias have been refuted in their entirety in Section
3.5.(A). Leaving aside the forged Qatari documents,which constitute the sole evidence
for Qatar's conspiracy theory, it is easily demonstrated that, viewed in their proper
context, Prior'sstatements reflected nothing more than his tentative, personal opinion,
expressedon the basis of unverified, inaccurate and incomplete information, which was
immediately discredited and properly ignored by senior British officials. As such,
Prior'sstatement can be accorded no weight. In addition, Qatar'sattempts to use Prior's
401
QM paras. 6.100 to 6.109, pp. 125-129.
402
QM para6.137,p.139.
- 123-and Alban's views to corroborate the substance of the allegations "evidenced" by the
forged documents must be disregarded in their entirety.
290. Lt. Col. Geoffrey Prior was appointed as the British Political Resident in Bushire
in September 1939 and held this post until May 1946. He appears to have believed that
the Hawar Islands rightfully belonged to Qatar and not to Bahrain, and therefore that the
British authorities had erred in awarding the Islands to Bahrain. In this respect, Prior
disagreed with Sir Hugh Weightman, who had served as the British Political Agent in
Bahrain for 3 years (October 1937 until October 1940) and who had thoroughly
investigated and commented on the claims advanced by both parties; with Sir Trenchard
Fowle, the British Political Resident in Bushire for over 7 years, who had examined and
accepted the views of Weightman; and the British and Indian Governments, which had
given effect to the British Political Agent's views on the basis of the British Political
Resident's recommendation.
291. It fell to Prior, soon after his appointment as British Political Resident, to
reconfirm the 1939 Award to the Ruler of Qatar. On 25 September, 1939, Prior wrote a
partly illegible file note stating:
"I have little doubt that a grave miscarriage of justice hasoccurred, and I
am not surprised that my predecessor wanted the case to be put up after
he handed over. It is too late to do anything now and the Shaikh can only
be informed that H.M.G. have already passed final orders and that the
matter cannot be reopened." 403
292. There are no records of Prior having reported his personal opinions to his
superiors either at that time or after he received a further letter dated 18th November
from the Ruler of Qatar regarding the 1939 decision.
403 Manuscript minutes by Political Residency, August-September 1939. QM Ann. 111.212,Vol. 8,
p. 53.
-124-293. Prior'sfirst official expression of his views came in the context of his response to
a letter he had received from the Secretary of State dated 12 March 1940, requesting his
views on the line of division between Bahrain and Qatar. 404
294. In his response, some three months later, Prior concluded:
"I have grave doubts regarding justice of decision in Hawar Islands case
and am raising question after making further inquiries." 405
At the same time, Prior directly attacked Weightman'srole in the matter:
"It is ridiculous to suppose that territory can be acquired in these waters
by the erection of 'nationalmarks'and it is unfortunate that the Political
406
Agent did not report it before."
295. Weightman, who was still British Political Agent, rose swiftly to the challenge to
refute Prior's allegations that he had failed to report the erection of beacons to Fowle
and Prior'sinsinuation that he had lacked complete impartiality.
"The fact that Bahrain had erected national marks on all islands or islets
to which they laid claim was fully known to the Political Resident at the
time when he despatched his Express Letter ... dated the 7th May 1938.
... I would request therefore that if you see no objection the suggestion of
an important omission on my part conveyed in your telegram under
reference may be removed." 407
296. Weightman went on to state that his views had been in accordance with Britain's
official policy regarding the methods for establishing sovereignty over territory. Prior
tried to evade the issue, thus prompting Weightman to express his views on the matter
more fully:
404 Express Letter from R. Peel, India Office, to British Political Resident, Persian Gulf, 12 March
1940. QM Ann. IV.58, Vol. 9, p. 283.
405
Telegram from British Political Resident, to Secretaryf State for India, London, 7 June 1940.
QM Ann. III.220, Vol. 8, p. 89.
406 Ibid
407 Express Letter from British Political Agent, to British Political Resident, 13 June 1940.
Ann. 105, Vol. 2, pp. 328-329.
- 125- "I feel that I should pursue the matter for the following reason. In the
second paragraph of your telegram ... dated the 7th June 1940 there is
referenceto my failure to report action taken by the Bahrain Government,
while in the last paragraph doubt is thrown on the justice of the decision
in the Hawar case which was based on a factual report submitted by me.
Since in both cases - as indeed also in my assumption that the erection of
a national mark constitutes a valid method of claiming sovereignty in
unoccupied areas - the advantage goes to Bahrain, I fear that the
inference might be drawn that there was some question of my entire
impartiality."408
297. Following Weightman'smore detailed response, there appears to be no records
of any further action by Prior to press his case that the 1939 Award be re-examined or to
question Weightman'srecommendations which had led to that Award. It appears, in
fact, that although Prior had raised the issue in the first place, he now hoped that it
would become dormant. Despite Prior'ssilence, however, on 16January 1941the India
Officerequested a fuller expression ofhis views:
"Would you please refer to your telegram of the 7th June ... regarding the
ownership of.the islands, reefs and waters lying between Bahrein and
Qatar. To prevent any misunderstanding I should perhaps let you know
that before taking any further action in this matter we have been awaiting
the fuller expression of your views which we assume you will send by
mail in due course." 409
298. Faced with the reminder, Prior had no alternative but to attempt to fashion a
reasonedresponse. Prior fmally replied to the India Office on 26 October 1941,over 10
months after having received the reminder and 16 months after he had first expressed
his views. His response was based largely on a note prepared by Alban at Prior's
request.
299. Alban had been appointed as British Political Agent only recently. His relative
lack of knowledge and appreciation of regional affairs is reflected, as was shown in
408
Express Letter from British Political Agent, to British Political Resident, 3 July 1940. QM Ann.
III.222, Vol. 8, p. 99.
409
Letter from R. Peel, India Office, to Lt. Col. G.C. Prior, British Political Resident Persian Gulf,
16 January 1941. Ann. 106, Vol. 2, p. 330.
-126-Section 2.3.F above, in his complete lack of appreciation of the Dowasir tribe's
connection with the Ruler of Bahrain. It is further reflected in Alban's comment that it
is "possible to wade from Hawar to the mainland at low water." 4° Clearly Alban had
never visited the Hawar Islands.
300. None of the five points which Alban put forward for Prior's consideration
suggests that he had considered the matter seriously. Indeed, it is hardly likely that he
would have had any opportunity to do so: on 23 October 1941 Prior had requested
Alban to "have tabulated and shown to me on arrival any information you have been
able to collect regarding Bahrain claim to Hawar lsland". 411 Prior sent his response to
Peel on 26 October 1941, only three days after receiving Alban's information. In these
circumstances, Qatar's evaluation that "The 1941 Note indeed is much more objective
and fair-minded than any document produced by Weightman or Fowle ... " is baseless.412
301. . Relying largely on the Alban Note, Prior crafted his response to the India Office.
It is apparent from Prior's response not only that Prior's views were provisional and
tentative, but also thatPrior was conscious that he possessed insufficient knowledge to
state a definitive view on the issue (see, e.g., Prior's recommendation that a former
British Political Agent, Daly, be asked to examine the matter). The bulk of Prior's two
and-a-half page letter consists of a purported refutation of the points raised in Belgrave's
undated memorandum setting forth Bahrain's claim to the Hawar Islands, without any
positive evidence supporting Prior's opinion that the 1939 decision was unfair. Prior did
not comment on any of the "evidence" submitted by the Ruler of Qatar, on any of the
evidence that must already have existed in the Residency files, or on Weightman's eight-
410 Note by R.G.E. Alban, British Political Agent, "Ownership of Hawar", undatedQM Ann.
111.228,Vol. 8, p. 123.
411 Telegram from British Political Resident, to British Political Agent, 23 October 1941. QM Ann.
111.227,Vol. 8, p. 119.
412 QM para. 6.105, p. 127.
-127-page analysis and evaluation of the competing claims put forward by the Rulers of
Bahrainand Qatar.
302. A copy ofPrior's letter of26 October 1941had been forwardedto Sir OlafCaroe
of the Government of India's External Affairs Department. On 19 November 1941
Caroe wrote to Peel, reco~endi n essence, that the substantive views expressed in
Prior'sletter be disregarded:
"Where the local experts differ so markedly as in this case, it is difficult
to adjudicate, and the Government of India are of the view that the only
safe course is to follow Prior's own advice at the end of his letter and
decide that it is now outside practical politics to reverse the decision
made in 1939and communicatedto both Rulers." 413
303. It is clear that Caroe did not treat Prior's views lightly, and that he had
investigatedthe backgroundof the matter carefully:
"They have however consulted Weightman, whose report in his letter ...
of the 22nd April 1939 forms the foundation on which the decision to
allot the Islands to Bahrain was based and have ascertainedthat, as might
be expected, he holds to the opinion he then gave. That report is
certainly a considered document based on visitsto the Hawar main Island
itself, and it is reasonable to observe that the counter opinion now given
is not related directly to it, but to the claims put forward by the Bahrein
Adviser." 414
304. Caroe also examined the sources that Prior had relied on and evaluated the
argumentsthat Prior had put forward:
"For the rest of the opinion now given appears to be founded mainly on
two considerations (i) that the rights of Qatar to the Hawar Islands find
endorsement in Lorimer and (ii) that the general view of independent
Arabs, presumably (though it is not so stated) proceeding mainly from
the theory of geographical propinquity, with the consequent power to
exercise the attributes of sovereignty, is in favourof Qatar.
413
Letter from O.K. Caroe, External Affairs Department, Government of India, to R. Peel, External
Affairs Department, Government of India, 19November 1941. QM Ann. 111.230,Vol. 8, p. 133.
414
Ibid.
-128- On the first point the only reference traceable to Hawar in Lorimer is on
page 1513 of Volume II of his Gazetteer of the Persian Gulf. Here
Hawar is mentioned only as one of the Islands adjoining the Western
Qatar coast, and there is no reference to sovereignty or proprietary rights
except in so far as such can be deduced from the fact that, as is known
already, the Dawasir tribe built cisterns and have houses at two places on
the main island. By those who know the Arabs of the Persian Gulf the
second point may possibly be held to override all logic, and Prior's
opinion on such a point is entitled to great weight. But here also the
Government of India cannot but think that, even in dealing with Arabs, it
would be unwise to arrive at a decision on sovereignty or proprietary
rights without full consideration of matters of use, occupancy and
exercise of the attributes of sovereignty. On that point the weight of the
evidence so far adduced would appear to be in favour of Bahrain." 415
305. There can be no questioning Caroe's analysis. It was based on an examination of
the sources relied upon by Prior and of the other evidence that had been adduced in the
1938-1939 Arbitration. Qatar'ssole response to Caroe's rebuttal of Prior's arguments is,
yet again, to invoke its fraudulent documents. As these documents must be disregarded,
Caroe'sviews stand unchallenged.
306. Aside from Caroe, other high-ranking British officials also dismissed Prior's
vtews. A longhand annotation made by Peel on Caroe's 19 November letter to him
states:
"I think we should certainly accept the G of I's [i.e.,Government of
India's] view and let the matter rest. I cannot help feeling that the P.R.
has to some extent allowed himself to be influenced by personal
animosity against Messrs. Belgrave and Weightman." 416
307. Similarly, Rupert Hay (later Sir Rupert Hay), who had acted as British Political
Resident from October 1941 until September 1942, and therefore, must have been
familiar with Prior's letterof 26 October 1941, commented in June 1946 on the views
held by Prior:
415 Ibid.
416 Handwritten annotation by R. Peel, External Affairs Department, Government of India, on O.K.
Caroe's 19November 1941letter. Ann. 107, Vol. 2, pp. 331-332.
- 129- "The question of the ownership of the Hawar Islands was definitely
decided in 1939 and it is outside practical politics to reverse that
417
decision ...."
308. Contrary to Qatar's contentions, the historical record establishes that, far from
being "anxious" for the 1939 decision to be re-opened, Prior and Alban were reluctant to
pursue the matter. Indeed, Prior had put nothing forward that would have justified the
British Government to re-examine its decision. The episode, however, confums
Britain's continuing recognition in the early 1940s of Bahrain's historical sovereignty
over the Hawar Islands.
I. Janan Island is part of the Hawar Islands group and was awarded to
Bahrain by the 1939 British Award
309. In its Memorial, Qatar asserts that Bahrain has no rights over the island of
Janan. 418 Qatar appears to put forward four separate grounds to justify this assertion,
and to support its claim of sovereignty over Janan.
310. First, Qatar'sMemorial states that "in a slightly broader context, Janan can be
seen as a component of the offshore topography and the nearshore dynamic system
419
associated with the Qatar coast." Bahrain does not contest the facts of the physical
shape and location of the Hawar Islands which, in Bahrain's contention, include Janan
Island. As discussed in Section 4.3 of Bahrain'sMemorial and in Section 2.3.B of this
Counter-Memorial, however, geographical proximity is irrelevant to the disposition of
the sovereignty issues in the case at hand. It is therefore pointless for Qatar to refer to
417 Express letter, W.R. Hay, British Political Resident, to Retaxandum, London, 4 June 1946.
Ann. 108, Vol. 2, pp. 333-334.
418 QM para. 7.11. As discussed in the Memorial, Janan and Hadd Janan refer to the two plateaux
of the same structure, and are generally considered together as the single island of Janan.
419
QM para. 7.3.
-130-the unremarkable observation by the geographer Lorimer that Janan Island is an island
on the "West side of Qatar". 420
311. Second, Qatar relies on documents purporting to support its claim that the
Ottomans and various Rulers of Abu Dhabi recognised "that Janan Island, as much as
the whole group of the Hawar islands, is part of Qatar territory". 421 This assertion is
based on forged documents and merits no further consideration.
312. Third, Qatar invokes "[m]ost of the reasons given in [its] Memorial to show that
the Hawar islands belong to Qatar" as also applicable to Janan Island. 422 Bahrain has
established with authentic and verifiable evidence, in both its Memorial and in this
Counter-Memorial, the historical reality of its uninterrupted sovereignty over the Hawar
Islands from the 18th Century until the present day. In contrast, other than documents
that are demonstrably fraudulent, Qatar has presented no evidence of any acts of
sovereignty over the Hawar Islands, including Janan Island.
313. Fourth, Qatar claims that Britain "decided" in 1947 to award Janan Island to
Qatar. 423This argument will be the focus of this section. As will be shown, Britain has
never made such a decision regarding Janan Island, whether in 1947, or at any other
time. To the contrary, Britain did recognise Bahrain's sovereignty over the Hawar
Islands in 1936 (see Section 2.3.G.(iv)), accepting at that time the inclusion of Janan
Island within the composition of islands in the Hawar group. In addition, the historical
record of the negotiations for oil concessions establishes that by 1939, when Britain
issued its Award confirming Bahrain's sovereignty over the Hawar Islands, not only the
British Government and Bahrain, but also Qatar'soil concessionaire (and therefore, by
420
QM para. 7.4.
421 QM para. 7.4.
422 QM para. 7.5.
423 QM paras. 7.5 and 7.11.
- 131-association, the Ruler of Qatar), recognised that Janan Island was one of the Hawar
Islands. The 1939 Award thus included Janan Island. The issue of Bahrain's
sovereignty over Janan Island is therefore res judicata in the same manner as it is with
respectto the other Hawar Islands.
(i) Britain did not "decide" in 1947to awardJanan Island to Qatar
314. Qatar asserts that Britain "decided" in 1947 that Janan Island belonged to Qatar.
Its assertion is based on a mischaracterisation of two substantively identical letters sent
on 23 December 1947 by the British Political Agent to the Rulers of Bahrain and Qatar,
respectively, informing them of the British Government'sviews regarding the division
of the seabed between the two States.
315. The British Political Agent'sletter to the Ruler of Bahrain read in pertinent part:
"With the exceptions noted below [Britain] will, in future, regard all the
sea-bed lying to the west of this line as being under the sovereignty of
Your Highness and all the sea-bed lying to the east of it as being under
the sovereignty of the Sheikh of Qatar ....
The exceptions referred to above are:-
Your Highness is recognised as having sovereign rights in
(i) the areas of the Dibal and Jaradeh shoals ...
(ii) Hawar Island, the islands of the Hawar group and the territorial
waters pertaining thereto .... It should be noted that Janan Island is not
regarded as being included in the islands of the Hawar group." 424
316. As discussed more fully in Part II, Section 7.3, the purpose of the 1947 letters
was not to notify the Rulers of a "decision" which they would be bound to respect. It
was merely to inform them that the British authorities would henceforth consider the
424
Letter from British Political Agent to the Ruler of Bahrain, 23 December 1947. QM
Ann. III.257, Vol. 8, p. 269. Letter from British Political Agent to the Ruler of Qatar. BM Ann.
297, Vol.5,p. 1208; QM Ann. 111.256,Vol. 8, p. 265.
-132-seabed as being divided by the line described in the letters, particularly in the course of
their dealings with the two competing oil companies concerned- PCL and BAPCO.
317. Qatar conveniently relies on only one part of Britain'sso-called 1947 "decision"
- the part purportedly awarding Janan Island to Qatar - yet rejects the rest of that
"decision"- the part confirming Bahrain'ssovereignty over the Hawar Islands, Fasht ad
Dibal and Qit'atJaradah. Qatar'sreliance on the 1947letters is thus not only misplaced,
but internally inconsistent. For its part, Bahrain has never accepted the 1947 letters as
425
legally binding.
318. The policy expressed in the 1947 letters was based largely on an analysis and
recommendation prepared in December 1946 by the then British Political Agent, A.C.
Galloway. In approving that recommendation to the Secretary of State for India, the
British Political Resident identified three reasons why the British Political Agent had
excluded Janan Island from the Hawar Islands in making his recommendation for the
seabed delimitation:
"[Janan] (a) is separated from the main group of islands by a deep water
channel, (b) flanks the Zakerit bay where Petroleum Concession Limited
have their landing place, and (c) is not included in the list of islands
submitted by the Bahrain Government in 1938 when the question of the
ownership of the Hawar group was being decided." 426
319. As will be shown, not one of the reasons given by Galloway constituted a valid
basis for denying Bahrain's sovereignty over Janan Island. Qatar's reliance on the
425
The Ruler of Bahrain immediately infonned the British authorities of his disagreement with the
proposed delimitation, pointing out that at no time during lengthy oil concession negotiations
had British officials ever demurred from Janan's inclusion in the concession areas under
discussion. He also identified specific actsovereignty by Bahrain in connection with Janan.
Translation of letter dated 19 Safar 1367 (corresponding to 31 December 1947) from the Ruler
ofBahrain to the British Political Agent, C.J. Pelly. QM Ann. IV.118, Vol. 10, p. 83.
426
Letter from British Political Resident to the Secretary of State for India, 18 January 1947. BM
Ann. 344, Vol. 6, p. 1478; QM Ann. III.250, Vol. 8, p. 233.
- 133-British Political Agent'sviews to support its claims of sovereignty over Janan Island is
therefore misplaced.
(ii) The British Political Agent's choice of the 1938list was mistaken
320. One of the principal reasons cited by the British Political Agent for excluding
Janan Island from the Hawar Islands was the omission of Janan from a list submitted by
the Bahrain GovernmentAdviser in May 1938:
"The Bahrain Government have submitted at least three conflicting
statements of the composition of the 'group'. In August, 1937, it was
stated thatthere were nine islands in the Hawar archipelago, in 1938 their
list included Hawar and 16 islands or groups of islets, and in 1946 the
list comprised Hawarand 17.
The 1938 list was submitted in connection with the Hawar arbitration,
and I propose to take that as their considered claim, particularly as no
explanations have ever been given for changes." 427 (Emphasis added.)
321. Itwill be shown that the words emphasised are obviously mistaken. The British
Political Agent appears not to have known, or not to have made any effort to ascertain,
is that, in addition to the three lists he did consider, there was a fourth list. That list
clearly included Janan Island as one of the Hawar Islands.
322. As discussed in Section 2.3.G, in 1936, the Qatar concessionaire, PCL, had
entered into negotiations with the Ruler of Bahrain for a concession to the Bahrain
unallotted area. In the circumstances, the Ruler of Bahrain had sought to ensure that the
concession area was defined precisely. Accordingly, the Adviser to the Bahrain
Government submitted to the British Government a written statement formally
confirming the Ruler of Bahrain'sassertion of sovereignty over the Hawar Islands. The
statement included a list of the islands considered by the Ruler at that time to be part of
the Hawar Islands, as follows:
427 Letter from British Political Agent to British Political Resident, 31 December 1946. QM Ann.
III.249, Vol. 8, p. 219.
- 134- "The Hawar group of islands include the following named islands as well
as a number of small islets.
1. Noon
2. Meshtaan
3. Al-Materrad
4. Rubadh
5. Hawar
6. Ginan [i.e.Janan]
7. Mahazwarah" 428
323. The significance ofthe 1936list lies in the fact that Janan Island was included in
what appears to be the first formal written statement by Bahrain of its sovereignty over
the Hawar Islands. When PCL sought the British Government's opinion as to whether
the Islands belonged to the Ruler of Bahrain or Qatar, Britain did not object to the
Ruler's definition of the Hawar Islands. Moreover, at no time during its evaluation of
the evidence presented did Britain consider Janan as separate from the rest of the Hawar
Islands, and itdid not exclude Janan Island from the scope of the opinion it issued, even
though to have done so would have been in PCL's, and hence Britain's,best interests; it
will be recalled that if Janan Island had been considered separate from the Hawar
Islands, it would automatically have fallen to PCL under its 1935 Qatar concession.
324. The first of the three lists Galloway did consider was one submitted in August
1937 by the Bahrain Government in response to a request from the then British Political
Agent, Hugh Weightman, for a list setting out the islands the Ruler of Bahrain
considered to be his. This list stated as follows:
"In addition to the large islands forming the Bahrain archipelago, which
are well known, the following islands belong to Bahrain:-
Fisht Dibal (a reef)
Qattah Jarada (an island)
Fisht al Jarim (a reef)
Khor Fisht (an island)
AI Benat (an island)
428 Letter from the Adviser to the Government of Bahrain to the British Political Agent, 28 April
1936. BM Ann. 246, Vol. 5, p. 1071; QM Ann. III.103, Vol. 7, p. 15.
-135- the Howar archipelago, consisting of nine islands near the Qatar
coast."429
325. That no mention is made specifically of Janan obviously cannot be interpreted to
mean that the Bahrain Government no longer considered- or the British Government no
longer understood - the island to be among those of the "Howar archipelago". To the
contrary, in the light of the clearly demarcated concession area that Bahrain was
offering to PCL at the time (see Section 2.3.G, above), with Britain's acquiescence,
there can be no question that the island was understood to be one of the "nine"
considered to constitute the "Howar archipelago". Thus, there was no greater need for
Bahrain to mention Janan than any of the other islandsin the Hawar group.
326. The second of the three lists considered by Galloway was an attachment to a
preliminary statement of evidence which Belgrave had submitted to Weightman on
29 May 1938, in the context of the Hawar arbitration. The attachment was entitled "The
Hawar Islands". It read:
"This group of islands consist of one large island ... which is known as
Hawar island and also a number of islands and rocky islets which are
adjacent to Hawar island. On each of the islands there is a stone
beacon .... The beacons are numbered as follows:-
1. South Sawad (Sawad- Black)
2. AIWakra (1) (Hawk'sstand)
3. II (2)
4. II (3)
5. Bu Sedad rocks, four rocks.
6. Bu Saada islands, four small islands
II
7.
8. II
II
9.
10. AI Mahzoura.
11. North Sawad.
12. AI Hajiat (the female Hajis)
13. " two islands.
14. Ajaira. (the widow)
429 Letter from Charles Belgrave, Adviser to the Bahrain Government to the British Political Agent,
14 August 1937. BM Ann. 335, Vol. 6, p. 1456.
-136- 15. Rabadh.
16. Al Moataradh.(the intervener)" 430(Emphasisadded.)
327. In choosing to characterise this list as Bahrain's "considered claim" in the
1938/39Hawar arbitration, Galloway failed to appreciate that the list was not intended
by Belgrave to identify all the islands constituting the Hawar group; this is clear from
the explicittext that precedesthe list ("the beacons are numbered as follows:"). Rather
it was a listing of those of the islands in the Hawar group on which Bahraini beacons
had been placed as of May 1938. 431 Janan Island was one among a number of Bahraini
islandsthat hadnot been beaconedas of that date. The fact that it was not on Belgrave's
list, therefore,cannotbe taken to imply a recognitionthat it, like the other non-beaconed
islands, did not belongBahrain.
328. The foregoing is confirmed by the fact that within days of submitting the
"preliminary statement", to which the list of beaconed islands was attached, Belgrave
forwardedto the British Political Agent a concessionmap clearly showing Janan Island
as part of the Hawar Islands concession area being offered by the Ruler of Bahrain to
PCL. (See Section2.3.G,above).
329. On 10 July 1946, Belgrave submitted the third of the three lists considered by
Galloway. It was describedas a complete list of "the cairns which were erected on the
various reefs and islands ... built during 1357 and 1358 [i.e.,1938 and 1939]." 432
Belgrave indicated that all of those islands numbered 1 through 18 on the list were
considered to be part of the Hawar Islands. Janan Island was included on the list as
430 Note by Charles D. Belgrave, Adviser to the Government of Bahrain, entitled "the Hawar
Islands", 29 May 1938. BM Ann. 261, Vol. 5, p. 1106; QM Ann. 111.158,Vol. 7, p. 291.
431
Translationof letter dated 19 Safar 1367 (corresponding to 31 December 1947) from the Ruler
of Bahrain to the British Political Agent ("[Janan] is marked by a beacon which we constructed
in 1358"]. QM Ann. IV.ll8, Vol. 10, p. 83. The first month of the Islamic year 1358
corresponds to February 1939. Janan, thus, was beaconed sometime after February 1939.
432 Letter from Charles Belgrave, Adviser to the Bahrain Government to British Political Agent, 10
July 1946. BM Ann. 342, Vol. 6, p. 1473; QM Ann. III 243, Vol. 8, p. 195.
-137-number 15. (This confirms the fact that the 1938 list was only a limited listing of
Bahraini beaconed islands.)
330. In sum: Galloway's choice of the 1938 list was demonstrably mistaken. It did
not represent Bahrain's, Britain's, or the oil companies' understanding of what islands
were included in the Hawar group. He misused the list for a purpose for which it was
not intended. Moreover, there is no evidence that he was aware of or considered the
1936list, which specifically identified Janan Island as one of the Hawar Islands and was
the first list submitted by Bahrain as part of a formal claim to the Islands. He
inexplicably interpreted the general reference to the Hawar archipelago in the 1937 list
as excluding Janan Island. And he gave no weight to the 1946 list, which was the most
recent and complete statement of the islands that Bahrain considered to be part of the
Hawar Islands group. The British Political Agent's only justification for choosing the
1938 list appears to be that the Bahrain Government had never explained why the three
lists he considered varied from each other. British records, however, contain no
indication that he ever made any effort to clarify the matter with Bahrain. Most of all,
the 1938 list on its face shows that it was not intended to define the Hawar Islands, but
to identify islands on which beacons had been erected.
(iii) The British Political Agent relied on unverified survey information
331. In preparing his report, Galloway visited the Hawar Islands. Solely on the basis
of the visual impressions he formed on that trip, he submitted to the British Political
Resident the following unverified observations relating to the geo-morphological
features of Janan Island, which the British Political Resident and other British officials
would subsequently accept as scientific truths:
"Janan is shown on charts and plans as a pimple of an island, but, in fact,
at low tide it shows a long low reef rising above the sea. It is dry at all
tides at its western end, and dries out a long way towards the mainland.
It has not been surveyed, but to the layman it appears to be part of the
-138- 433
Ras Awainat Ali feature, and completely separate from Hawar."
(Emphasis added.)
332. When the India Office conveyed the British Political Agent'srecommendation to
the Admiralty Department, it failed to make any reference to Galloway'sadmission that
his assessment of Janan Island's geo-morphological features was that of a "layman" or
that his impressions had not been confirmed by a proper survey. Galloway's
434
information thus took on a misleading appearance of legitimacy.
333. The effect of the repeated mischaracterisation of the British Political Agent's
435
"survey" gradually led to acceptance of his assessment as a verified scientific fact.
Thus, when the British Government refused the Ruler of Bahrain's request that the
proposed seabed delimitation be re-examined, one of the principal reasons cited was the
Galloway survey:
".. .as an examination on the spot has shown that it is separated from the
Hawar Group of Islands by a deep channel and is rather part of the Ras
Awainat Ali feature of the mainland of Qatar rather than of the Hawar
group of islands, it has been decided that it cannot be regarded as having
436
been allotted to Bahrain by the Order of 1939 .... "
(iv) The British Political Agent was influenced by extraneous considerations
334. In 1946, BAPCO applied to commence drilling operations in the additional area
it had been granted under its Bahrain concession, including on the main island of
433 Letter from British Political Agent to British Political Resident, 31 December 1946. QM Ann.
III.249, Vol. 8, p. 219.
434 Letter from F.A.K. Harrison, India Office, to G.C.B. Dodds, Admiralty, 13 February 1947.
Ann. 109, Vol. 2, pp. 335-339.
435 Qatar also appears to have been impressed by Galloway's "layman's" assessment, which it
invokes, without reference to any independent corroboration, to support its claim that the
"Hawar islands as a whole", like Janan, are part of the Ras Awainat Ali feature. QM para. 7.11.
Leaving aside the validity of Galloway's information, the existence or not of the geo
morphological features Galloway mentioned are irrelevant to the issue of sovereignty.
436 Letter from the British Political Agent to the Ruler of Bahrain, 30 AprilQM Ann. IV.l33,
Vol. 10, p. 179.
- 139-Hawar. BAPCO'sintention to start drilling in areas near to its concession territory
concernedPCL,thus prompting itto make its views known to the British Government:
"You will remember a visit ... paid to you on 17th June. \Ve spoke,
among other things about the water which passes between Hawar Island
(allotted to Bapco) and the mainland of Qatar, which is ours. Our fear
was that Qatar,and thereforeourselves, might not receive its due share of
the territorial waters between the two zones.... Our hope is that the
Qatar/Hawarwater questionmay be favourably settled before Bapco start
drilling.437
335. Evidently Galloway must have been influenced by the concerns PCL had
expressed, as reflected in one of the reasons he gave in support of his recommendation
that Janan Islandbe severedfromthe Hawar Islands:
"Before a delimiting line can be drawn the composition of the 'group'
must be decided, and Janan lends itself to separate treatment and is a
convenientstartingpoint. The line on chart A.P.G. is drawn covering the
island of Janan, which lies just south of Hawar, and which flanks the
entrance to the Duhat Az Zagreet in which lies the P.C.L. landing place,
Zagreet. The island was included in the Additional Area on the plans
annexed to the draft leases. The deep water channel lies between Hawar
and Janan, and as Hawar belongs to Bahrain if Janan is to be considered
as an island of the 'group'then the entrance to the Duhat Az Zagreet
would be controlled by Bahrain and the Bahrain Petroleum Company.
That state of affairs would be most undesirable, for example a rig might
be erectedand block the channel." 438(Emphasisadded.)
437
Letter from PCL to E.P. Donaldson (India Office), 16 July 1946QM Ann. IV.84, Vol. 9,
p. 401.
438 Letter from British Political Agent to British Political Resident, 31 December 1946. QM Ann.
111.249,Vol. 8, p. 219. It is notable that in the aftermath of Britain's 1939 Award, PCL had
emphasised to the British Government the importance of the Bahrain to Zekrit route to PCL's
operations:
"If the Bahrein Petroleum Company are proposing to commence operations in the Hawar Group
shortly the matter is not without importance to this Company.
It is essential to the Co.'swork at the moment, for instance, that the present route from Bahrein
to Zekhrit where it passes between the main Hawar Island and the Islet of Jinan (about a mile
south of it) should be kept open as a right of way."
Letter from E. Packet (PCL) to H. Weightman, British Political Agent, 2 December 1939.
Ann. 103, Vol. 2, p. 310.
- 140-336. Gallowaythus took into account considerations having absolutely no bearing on
legal entitlement to territory. This is not an issue of bias, but of disqualifying the
recommendation as a legallybinding "decision" (seealso Section 7.3.B).
(v) The British Political Agent failed to take into account directly relevant
evidence
337. Galloway disregarded evidence specifically establishing Bahrain's sovereignty
overJanan, as demonstratedby this excerpt from his report.
"The island is barren, but is used by Bahrain fishermen ... and beyond
the erection of a cairn by the Bahrain Government I know of no
justification for their claimto ownership."439
338. The British Political Agent thus acknowledged two indicia of Bahraini
sovereigntyover Janan Island: first, that the island was used by Bahraini nationals, and
secondly, that it had been marked in 1938 by Bahrain. He gave neither factor any
weight.
339. In contrast, the British Political Agent was only able to hazard a guess as to
JananIsland'suse by Qatarisubjects:
"Theisland ... is used by Bahrain fishermen,and I dare say by Qataris on
440
occasions." (Emphasisadded.)
340. The British Political Agent's statement is inconsistent with the known human
geography of the Qatar peninsula at the time, which Bahrain has described in detail in
Sections2.2.A and 2.2.B of this Counter-Memorial:the west coast of Qatar simply was
not inhabited by persons owing their allegiance to the AI-Thani chiefs based in Doha
acrossthe desert.
439 Ibid.
440
Letter from British Political Agent to British Political Resident, 31 December 1946. QM Ann.
111.249,Vol. 8, p. 219.
-141-341. In his report to the British Political Resident, Galloway recommended that
Britain recognise Bahrain's sovereignty over Fasht ad Dibal and Qit'at Jaradah. The
British Political Resident reported the recommendation to the Secretary of State for
India in the following terms:
"On both shoals there is a cairn and an artesian well bored by [BAPCO]
on behalf of the Bahrain Government...
With regard to the ownership of these two places I reluctantly agree with
the Political Agent that ... they must be regarded as belonging to
Bahrain. They have been treated by the Bahrain Government as their
property and beacons have been erected and wells bored without any kind
of protest by the Shaikh of Qatar. In fact, as the Political Agent points
out, the Shaikh of Qatar is a late arrival on the scene. He only
consolidated his position on the mainland as recently as 1937 and has not
taken steps to establish his position over neighbouring islands and
shoals.... Further, [the British Government] and its officers have
acquiesced in these shoals being described as Bahrain property in the
negotiations with [PCL] in 1938-39 vide Article I of the various draft
agreements and the maps attached to them. My view is therefore that the
two shoals should be assigned to Bahrain which has done all it can to
establish its sovereignty over the places ... without any kind of protest
441
from Qatar."
342. This passage shows that the British Political Resident identified five factors
which in his view established Bahrain's sovereignty over Fasht ad Dibal and Qit'at
Jaradeh. They were: (1) acts of sovereignty by the Ruler of Bahrain, as evidenced by
the erection of cairns; (2) use of the territory in question by Bahrain; (3) failure by Qatar
to assert sovereignty over the territory in question; (4) lack of any protest by the Ruler
of Qatar to acts of sovereignty by Bahrain; and (5) recognition by the British authorities
in the context of the oil concession negotiations that the territory in question was
considered to be part of Bahrain.
441 Letter from British Political Resident to Secretary of State for India, 18 JanuAnn.1947. BM
344, Vol. 6, p. 1478; QM Ann. 111.250,Vol. 8, p. 233.
- 142-343. It is striking to note that the very reasons Galloway gave to justify his
recommendation with respect to Qit'at Jaradeh and Fasht ad Dibal, apply equally to
Janan Island. (See Sub-Section (vii), below.) Yet without any justification, he chose to
disregard every one of them.
(vi) Bahrain's sovereignty over Janan Island was recognised by Britain in 1936
and confirmed in 1939
344. It is irrelevant that in 1947, almost 10 years after the 1939 Award, in the context
of setting forth their views regarding a proposed seabed delimitation between Bahrain
and Qatar, that British officials interpreted the 1939 Hawar Islands Award not to apply
to Janan Island. 442 The fact remains that the 1939 Award stands as the only legally
binding ruling concerning the ownership of the Hawar Islands. When it was issued, it
did nothing more than confirm the historical reality of Bahrain's sovereignty over the
Islands. Specifically with respect to Janan Island, the record of the concession
negotiations for the Bahrain unallotted area demonstrates that the 1939 Award
confirmed a finding that Britain had made just three years earlier in 1936.
345. Following Britain's 1936 opinion, all oil concession negotiations included the
Hawar Islands as being within the concession territory of Bahrain. As discussed below,
given the explicit mention of Janan Island in the relevant correspondence, none of the
concerned parties could have been mistaken as to Janan Island's status as part of that
territory.
346. Thus in April1937, the concession area offered to PCL was described as:
442 Letter from British Political Agent to the Ruler of Bahrain, 30 April 19Ann.QMIV.l33,
Vol.10, p. 179.
- 143- "The Hawar group of islands consisting of Hawar and approximately 14
lesser islands which are distinguished by stone beacons, Fisht Jarim,
Khor Fisht Dibil." 443(Emphasisadded.)
34 7. The islandscomprisingthe Hawar group weredescribed as all of those contained
within an areaenclosedby the followingpoints:
"(a) The northernedge ofBainain islet.
(b) The westernedge of a reed north of Muharraq.
(c) The southwest edge of reef offRas al Birr.
(d) A pointto the south of Jenan island.
(e) A pointto the east of Hwar island.
(f) A pointto the east ofHawar island.
(g) North westedge of a reefNorth ofFisht Dibal.
(h) and(i) Twopoints on the northern edge of a reef to the North ofFasht
al Jarim."444(Emphasisadded.)
A map illustrating the area described above, also clearly included Janan Island within
the demarcatedconcessionarea and, as such, as part ofthe "Hawargroup of islands".
348. Prior to the commencement of the 1938-1939 arbitration, Britain fully
understood Janan Island to be one of the Hawar Islands. On 28 April 1938, the India
Office forwarded to Sir Trenchard Fowle, the British Political Resident, two maps
attached to a document entitled "[PCL] Draft Bahrein Lease". The territorial scope of
the proposedconcessionwas describedin the followingterms:
"The areas to which this Agreement applies are ... SECONDLY:- The
whole of that portion of the Shaikh's dominions (Leased Area No.2)
including the whole of the Hawar Group of Islands and all reefs, shoals,
islandsand waters comprised within the following boundary limits.... "445
(Emphasisadded.)
443 Copy of letter No. P.A./171 from E.A. Skinner, BAPCO, to British Political Agent, 13 April
1937. Ann. 81, Vol.2, pp. 251-258.
444
Ibid.
445
Letter from A.C.B. Symon, India Office to Sir Trenchard Fowle, British Political Resident,
28 April1938. BMAnn. 337, Vol. 6, p. 1458.
- 144-Once again, a map attached to the draft lease showed Janan Island as included within the
demarcated concession area, and thus as one of the islands making up the "Hawar Group
of Islands."
349. The British Government gave its considered assent to the terms of the draft
concession, and in the process specifically expressed its agreement with the definition of
the Hawar Islands:
"... there is no objection so far as [the British Government] are concerned
to [PCL] applying to the Sheikh of Bahrein (at the appropriate time) for a
concession over the two areas indicated in the maps attached to the draft
concession...
With regard to the definition of the proposed concession areas we think
that as the boundary limits which are defined by the geographical co
ordinates in Article 1 of the draft lease clearly go round the Hawar group
of islands it would be advisable in present circumstances to avoid
mentioning these islands by name." 446(Emphasis added.)
350. Even after the Ruler of Qatar had formally submitted his claim to the Hawar
Islands on 10 May 1938, the British Government continued to acknowledge that the
Hawar Islands included Janan Island. This is evidenced by a letter from the British
Political Agent to the Secretary of State for India dated 22 May, 1938:
"I forward herewith descriptions of the areas to be offered to [PCL] and
[BAPCO], which have been prepared with the assistance of the Senior
447
Naval Officer, Persian GulfDivision."
351. The description of the concession area confirmed beyond question that Janan
Island was considered by Britain to be part of the Hawar group of islands. It stated in
pertinent part:
446 Letter from R. Peel, India Office to S.H. Longrigg, PCL, 29 April 1938.Ann. 85, Vol. 2,
pp. 264-266.
447 Letter fromH. Weightman, British Political Agent to Secretary of State for India, 22 May 1938.
Ann. 86, Vol. 2, pp. 267-268b.
- 145- "... thence in a straight line running in a south-easterly direction to point
D on the southern extremity of JENAN island in the Hawar Group of
Islands."448(Emphasis added.)
352. A few days after Belgrave submitted Bahrain's "preliminary statement", in a
report to the British Political Agent regarding a meeting with PCL to discuss the
proposed concession area, he attached a description of that area which clearly included
Janan Island within its borders:
"The Hawar group of islands consisting of Hawar and approximately 14
lesser islands which are distinguished by stone beacons, Fisht Jarim,
Khor Fist Dibil. All reefs, fresh water submarine springs, submerged
lands, islands and waters contained within the area enclosed by the
following points:-
(a) The northern edge ofBainain islet
(b) The western edge of a reef north ofMuharraq
(c) The south west edge of reef off Ras al Birr
(d) A point to the south of Jenan island
(e) A point to the east of Hwar island
(f) A point to the east ofHawar island
(g) North west edge of a reef north ofFisht Dibal
(h) and (i) Two points on the northern edge of a reef to the North ofFasht
449
al Jarim." (Emphasis added.)
Although no map was provided, the description of the proposed area was exactly the
same as that which had been under discussion in April 1937. As discussed, the map
illustrating the 1937 proposed concession area clearly included Janan Island as one of
the "Hawar group of islands".
353. A 1939 draft of the concession agreement between PCL and the Ruler of
Bahrain, to which the British Government does not appear to have voiced any objection,
confirms that Bahrain and Britain continued to view Janan Island as part of the Hawar
Islands in 1939. Article 1 of the draft 1939 agreement stated as follows:
448 Ibid.
449 Letter from the Adviser to the Bahrain Govt. to British Political Agent, 6 June 1938. Ann. 89,
Vol. 2pp. 27la-27ld.
-146- "Theareato which this Agreement applies is:-
The whole of that portion of the Shaikh's dominions being all
those Islands known as the Hawar group of Islands in which is
comprised a total of fourteen (14) islands and the waters between
those Islands and the waters between those Islands and the
territorialwaters on the western side ofthe main Island ofHawar.
The above area (hereinafter referred to as the "Leased Area") is
shown on the Enlarged Inland Departmental Government of
Bahrainmap ...and reproduced on the attached map- the "Leased
Area" being coloured in Red .... "450
Consistent with the generally held view, like the other Hawar Islands, Janan Island was
also colouredred.
354. The record of the oil concession negotiations establishes unequivocally that
Janan Island was understood to be part of the Hawar Islands by the British authorities,
PCL (Qatar'soil concessionaire), BAPCO and the Bahrain Government. The terms
"HawarIslands Group", "Hawar group of islands", "Hawar group" and "Hawar Islands"
were used synonymously by all concerned. Their draft concession agreements,
concession maps and related correspondence,unquestionably and consistently included
Janan Island as one ofthe Hawar Islands. Accordingly,when Britain undertook in 1938
to determine finally the question of the ownership of the Hawar Islands, it was clearly
understoodthat the enquiry included Janan Island withinits purview.
355. British records from before the start of the arbitral proceedings, confirm that
British officials were aware that they had to determine the ownership, as between the
Rulers of Qatar and Bahrain, of the "Hawar group of islands".
356. Thus, for example, at a meeting held on 12April 1938, at the India Office, PCL
indicated its understandingthat the Ruler of Bahrain was considering giving to BAPCO
450 Draft Concession Agreement entitled "1939; The Leased Area; Hawar Islands; Bahrain",
Article 1. Ann. 104, Volpp.311-327.
-147-"everything except the Hawar Group of islands". 451 (Emphasis added.) In the
discussion that ensued, Sir Trenchard Fowle, one of the British officials involved in
administering the proceedings, pointed out that PCL's "proposed concession area
included certain islands (i.e., the Hawar Group and Fasht Dibal) whose ownership as
452
between Bahrein and Qatarhad not yet been clearlydetermined." (Emphasis added.)
357. The scope of the enquiry is further clarified in a letter from the Foreign Office to
the India Office,dated 13April 1938:
"I write in reply to yom letter ... about the resumption of oil negotiations
for the 'Bahrein unallotted area' and the question of the ownership of
Fasht Dibal and the Hawar Group of islands .... In view of the
impending oil negotiationswe feel that a decision on this question will be
convenient ...."453(Emphasisadded.)
358. On 20 May 1938, the British Political Agent notified the Bahrain Government
454
that the Ruler of Qatar was "laying claim to the Hawar Islands." (Emphasis added.)
Similarly, in forwarding the Ruler of Qatar'sclaim to the British Political Resident, the
British Political Agent defined the scope of the dispute between the two Rulers in the
following terms:
"... in reply to the present communication from Shaikh Abdullah bin
Qasim I should write and inform him that though the Bahrain
Government possess a prima facie claim to the Hawar group of islands
which is supported by their formal occupation of them for some time
past, [Britain] would be prepared to give consideration to a formal claim
by him provided such a claim were supported by a full and complete
451 'Record of an Infonnal Meeting held at the India Office on 12 April 1938 to discuss the activities
ofPCL on the Arab Coast ofthe Persian Gulf. QM Ann. III.148, Vol. 7, p. 241.
452
Ibid.
453 Letter from T.V. Brenan, Foreign Office, to J.P. Gibson, India Office, 13 ApBM Ann..
255, Vol.5,p. 1092; QM Ann. 111.149,Vol. 7, p. 249.
454 Letter from British Political Resident to the Adviser to the Bahrain Government, 20 May 1938.
QM Ann. 111.154,Vol. 7, p. 271.
-148- statement of the evidence on which he relied in asserting Qatar
455
sovereignty over this group of islands." (Emphasis added.)
359. The Foreign Office and the India Office also understood the scope of the dispute
to be with respect to the Hawar group of islands:
"I am replying to your letter ... in regard to the rival claims of the Sheikh
of Qatar to the Hawar group of islands". 456(Emphasis added.)
360. The British Political Agent whose responsibility it had been to gather and
evaluate the evidence of the two Rulers at the time was Hugh Weightman. In his
capacity as British Political Agent, there can be no doubt that he was both fully aware of
all of the oil concession negotiations, and would have been sensitive to any territorial
issues raised in the context of those negotiations. Indeed, the need for a decision on the
question of the ownership of the Hawar Islands had been triggered by the very
concession negotiations he was monitoring. By virtue of his integral role in the oil
negotiations, which entailed his reviewing the concession maps and draft agreements
referred to above, Weightman would have understood that the "Hawar group of islands"
included Janan Island. If Weightman thought that Janan Island should not be covered
by the 1939 Award, he would have had to say so when he made his detailed analysis and
recommendation in favour of Bahrain. He did not.
361. In his report to the British Political Resident, Weightman confirmed Bahrain's
sovereignty over the Hawar Islands. He further confirmed that it was his understanding
that the decision that would ultimately be taken on the basis of his report would apply to
allof the Hawar Islands:
"The small barren and uninhabited islands and rocky islets which form
the complete Hawar group presumably fall to the authority of the Ruler
establishing himself in the Hawar main island, particularly since marks
4SS Express letter from H. Weightman, British Political Agent to Lt. Col. Fowle, British Political
Resident, IS May 1938. BM Ann. 257, Vol. 5, p. 1096;QMAnn. III.l52, Vol. 7, p. 261.
456
Letter from Foreign Office to India Office, 12July 1938. QM Ann. Ill.165, Vol. 7, p. 327.
-149- have been erected on all of them by the Bahrain Government." 457
(Emphasis added.)
362. The British decision in July 1939 expressed the following general understanding
as to which islands it applied to:
"... on the subject of the ownership of the Hawar Islands I am directed by
His Majesty'sGovernment to inform you that, after careful consideration
of the evidence adduced ... they have decided that these Islands belong to
the State of Bahrain and not to the State ofQatar." 458
No reservation was made with respect to Janan Island.
(vii) Independently of the 1939 British Award, Bahrain's sovereignty over Janan
Island in the Hawar Islands is well-established
363. Britain's 1939 Award notwithstanding, Bahrain's ownership of Janan Island, as
with the other Hawar Islands, is established by the island'suse by Bahraini subjects and
the Ruler of Bahrain'sexercise of authority over the island. In contrast, although Qatar
challenges Bahrain's sovereignty over Janan Island, it has provided no authentic
evidence supporting its claim of sovereignty over the island other than the so-called
British "decision" in 1947. If anything, all the 1947 letters did was record a
geographical truth that Janan Island lies physically closer to the Qatar peninsula than to
the main islands of Bahrain. This Bahrain does not dispute. It is, however, irrelevant to
the question of ownership.
364. Bahrain'ssovereignty over Janan Island is well-recorded:
457 Letter from H. Weightman, British Political Agent, to Lt. Col. Fowle, British Political Resident,
22 April1939. BM Ann. 281, Vol. 5, p. 1165; QM Ann. III.195, Vol. 7, p. 497.
458
Letters from British Political Resident to Ruler of Bahrain and Ruler of Qatar, 11 July 1939.
BM Ann. 287, Vol. 5, p. 1182 and BM Ann. 288, VoL 5, p. 1183; QM Ann. 111.208,Vol. 8,
p. 37 and QM Ann. 111.209,Vol. 8, p. 41.
-150- In 1947 the Ruler of Bahrain requested the British Government to reconsider its
position regarding the proposed seabed delimitation. In that context he proffered
evidence demonstrating Bahrain'sownership of Janan Island.
"We are unable to understand why our island of Jinan, which,
owing to the rich fishing grounds around it, is an island of value,
hasbeen excluded from the Hawar group. Jinan is used as a base
by our fishermen who are accustomed, with our permission, to
erect huts on the island in the fishing season. Jinan has been
recognised as one of the islands of the Hawar group and was
specifically referred to by us in our letter to H.B.M.'s Political
Agent, vide letter No. C/180 of April 28, 1936 from our Adviser
to H.B.M.'s Political Agent. It is marked by a beacon which we
constructed in 1358 [i.e.1939]." 459
Both the fact of Janan Island'suse by Bahraini fisherman and the fact that a cairn
had been erected on the island by the Bahrain Government were acknowledged
460
in Galloway'sreport to the British Political Resident of31 December 1946.
Janan Island's use by Bahraini subjects is further confirmed by the direct
testimony of living Hawar Island residents, which Bahrain hasalready provided
461
to the Court with its Memorial.
J. The evidence of Bahrain's sovereignty over the Hawar Islands is not
undermined by Qatar's arguments
365. Genuine evidence, on the public record, establishes beyond doubt Bahrain's
historical sovereignty over the Hawar Islands, including Janan Island. Undeniable
historical facts led Britain to recognise Bahrain's sovereignty over the Islands in 1936.
459 Translation of letter dated 19 Safar 1367 (corresponding to 31 December 1947) from the Ruler
ofBahrain to the British Political Agent (C.J. Pelly). QM Ann. IV.118, Vol. 10, p. 83.
460 Letter from British Political Agentritish Political Resident, 31 December 1946. QM Ann.
III.249, Vol. 8, p. 219.
461
SeeBM para. 405.
- 151-Unquestionableand uncontrovertedproof provided the basis for Britain'sarbitral award
in 1939.
366. In its efforts to challenge the historical record, Qatar's sole response is the
production of 81 fraudulent documents. Interwoven with these forgeries are genuine
documents, excerpted,extracted, distorted and de-contextualisedto relate a history that
is both misleading and inaccurate. Once the fraudulent documents are discounted, the
vacuity of Qatar'sarguments is left exposed, with little authentic evidence to support its
claim to the Hawar Islands. Its claim is reduced to one of geographical proximity,
which is irrelevantto the present case. The extent of the positive evidence Bahrain can
and has producedto showthe continuum of its sovereigntyover the Hawar Islands from
the 18th Century to the present day is in no way adversely affected by Qatar's
arguments.
367. Bahrain has presentedto the Court in its Memorial,as it did to Britain during the
1938-1939 Arbitration, compelling evidence of its continuous sovereignty. Qatar's
challenge to Bahrain's evidence is not tenable in the face of the historical record.
Bahrain's Memorial details how the Hawar Islands supported a settled population of
Bahrainis engaged in their traditional livelihood of fishing, gypsum quarrying, animal
husbandry and pearling. Qatar'sunsubstantiated denialthat the Dowasir - the principal
inhabitants of the islands - were Bahraini residents or subjects cannot withstand
minimal scrutiny. The evidence showing Bahraini habitation was confirmed by the
British authorities in the courseof the 1938-1939 arbitration. The history of the oil
concessionsdemonstratesthat Bahrain and the oil companiesconsidered that the Hawar
Islands (includingJanan Island) were Bahraini. Thepublic record demonstrates this.
368. Bahrain'scase is consistent with the public record showing evidence of regular
Bahraini habitation of the islands from the early 1800s as well as with the physical
evidence of that occupationthat still exists to the present day. As has been shown, the
Hawar Islands today, as in the past, form an integral part of the economic, social and
- 152-political structure of the State of Bahrain. No authentic evidence of Al-Thanicontrol
over the Islandshas ever been produced. In sharp contrast, Bahrainhas produced such
evidence in abundance. Bahrain'ssovereignty over the Hawar Islands, from the 18th
Century until the present day, is beyond challenge.
- 153- CHAPTER3
BAHRAIN'S TITLE TO THE HAWAR ISLANDS
IS RES JUDICATA
SECTION3.1 Introduction
369. The Hawar Islands have been a part of the State of Bahrain for two centuries,
during which Bahrain has continuously manifested the degree of habitation and control,
consistent with the physical character of the islands, required by international law. The
British decision of 1939 merely confirms a venerable historical, factual and legal
situation.
370. Bahrain considersthat the 1939decision is resjudicata, for the reason that it was
a valid and binding arbitral award. Qatar'sresponse to this contention is to assert that
the decision is vitiated by a number of procedural flaws. In so doing, Qatar appears to
acceptthat the decision was "arbitral" in character. For example, Qatar'sMemorial cites
in paragraph 6.79, without any reservation, a British Foreign Office analysis in 1938 of
the contemplated proceedings which advises the British Political Resident about proper
procedures "whenone is assuming an arbitral rule [sict 62of this character."
371. But the terminology used in Qatar'sMemorial is not always consistent, and no
explanation is given for the differences in wording. At paragraph 6.122, Qatar refers to
"the exercise of quasi-judicial powers of the kind which the British authorities were
. purporting to apply." Likewise, in paragraph 6.122 Qatar refers to "the exercise of
quasi-judicial power of the kind which the British authorities were purporting to apply
to the determination of the conflicting claims of Qatar and Bahrain". Again, at page 141
462 Probably"role,"as thequotationin QMpara. 6.79agrees.
- 154-of Qatar'sMemorial (paragraph 6.144) Qatar submits that the 1939 decision "cannot be
equated to an arbitral award and that, whether or not it is to be so treated, it would in
any event be invalidated by reason of the serious procedural defects to which Qatar has
drawn attention." Thus, the possibility is not entirely to be excluded that Qatar's
argument may be that Britain's action in 1939 should be classified as something other
than arbitral.
372. In Bahrain's view any such submission would be pointless. The procedural
standards of arbitral or quasi-judicial proceedings are the highest that can be demanded
of any person or body charged with determining rival claims - no matter how that
process of determination may be described. Britain fully met those requirements. A
fortiori, it must be concluded that Britain has satisfied the requirements of any other
procedure.
SECTION3.2 The procedures for the 1939 arbitration were straightforward
and fair
373. The procedures in the 1939 arbitration were discussed in relevant detail in
Bahrain'sMemorial at Section 3.3. The record shows that, notwithstanding the need for
an expedited decision created by the urgency of ongoing oil concession negotiations, the
procedures developed by Britain were designed to ensure a full and fair review of the
evidence presented by each claimant. The British Government took measures to ensure
that the Ruler of Qatar was given every opportunity to present· his claim in the most
comprehensive way possible.
374. By describing the arbitral procedure out of chronological sequence, Qatar
misrepresents it as a complicated and confusing exercise that ultimately compromised
the interests of the Ruler of Qatar. To set the record straight, Bahrain sets out below in a
- 155-chronological order and m telegraphic style the pertinent stages of the arbitral
proceedings.
February 1938 British Political Agent meets Ruler of Qatar in Doha. Ruler of
Qatar asserts that Hawar Islands belong to Qatar. British Political
Agent encourages the Ruler to substantiate his claim, to which Ruler
states Bahrain had no "de jure rights" to Hawar Islands but says
nothing further. No claim formulatedby Qatar at this stage. 463
10May 1938 First of two letters constituting Qatar's formal claim to Hawar
Islands. 464 Reporting on claim to British Political Resident, British
Political Agent comments that "apart from the geographical argument
no evidence is offered in support ofthe Qatar claim." 465
19 May 1938 British Political Resident informs Bahrain of Ruler of Qatar's
claim to Hawar Islands. 466
20 May 1938 British Political Agent writes to Ruler of Qatar to encourage
Qatar's claim. British Political Agent states to Ruler of Qatar that
Britain "will give the fullest consideration to any formal claim" by
Qatar, provided such claim "is supported by a full and complete
statement of the evidence on which you rely in asserting that you, as
Sheikh of Qatar, possess sovereignty over them." 467 British Political
Agent reiterates "how important it is that your formal claim, supported
by all the evidence which you can produce", be submitted.
463 Letter from Hugh Weightman, British Political Agent, to Lt. Col. Fowle, British Political
Resident, 15 May 1938. BM Ann. 257, Vol. 5, pp. 1096-1097; QM Ann. III.152, Vol. 7,
pp. 261-266.
464 Letter from Ruler of Qatar to Hugh Weightman, British Political Agent, 10 May 1938. BM
Ann. 256, Vol. 5, pp. 1094-1095; QM Ann. III.l50, Vol. 7, pp. 253-256.
465
Letter from Hugh Weightman, British Political Agent, to British Political Resident, 15 May
1938. BM Ann. 257, Vol. 5, pp. 1096-1097; QM Ann. III.l52, Vol. 7, pp. 261-266.
466 Telegram no. 191 of Lt. Col. Fowle, British Political Resident, to Charles Belgrave, Adviser to
the Bahrain Government, 19 May 1938. QM Ann. III.153, Vol. 7, pp. 271-273.
467
Letter from Hugh Weightman, British Political Agent, to Ruler of Qatar, 20 May 1938. BM
Ann. 258, Vol. 5, pp. 1098-1100; QM Ann. III.156, Vol. 7, pp. 279-284.
-156- 23May1938 Bahrain conveys to British Political Agent the Ruler of Bahrain's
amazement at Qatar's submission of a claim to Bawar Islands.
Adviser to Government of Bahrain states that proof of Bahraini
468
sovereignty can be provided when demanded. Subsequently
Bahrain submits to the British Political Agent a "preliminary
statement." 469
27 May 1938 Qatar submits the second of two letters constituting its formal
claim to Hawar Islands. 470
30 May 1938 British Political Agent meets with Ruler of Qatar and his advisers
(his two sons Hamad and Ali and his Secretary Saleh al Mana) to
discuss Qatar's claim. The British Political Agent "questioned [the
Ruler] closely"in regardto Qatar'sclaim. 471 Repeatedlyenquiresas to
whetherthe two lettersput forwardby the Ruler of Qatarpresented his
claim "in all the detail he wished", or whether Ruler had "any other
evidence,documentaryor otherwise,which he would wish to submit".
Ruler states he has set out all he wishedto say in the two letters. The
British Political Agent observes that Qatar'sclaim consists of: "(1) a
bare assertion of sovereignty; and (2) the affirmation that the Hawar
Islandsarepart ofthe geographicalunit ofQatar." 472
3 June 1938 British Political Agent forwards to British Political Resident
"preliminary statement" submitted by Bahrain and Qatar's
473
second letter of claim. British Political Agent states, referring to
the "preliminary statement", "I have not acknowledged receipt, since
the Bahrain counter-claimhas not yet been called for officially; nor
should this document be regarded as a full and final compilation of
the Bahrainevidence."
468
Letter from Charles Belgrave, Adviser to Bahrain, to Hugh Weightman, British Political Agent,
23 May 1938, India Office Records. Ann. 87,ol. 2, p. 269.
469 Bahrain "preliminary statement" submitted to British Political Agent. The dateis statement
is unclear, but "29.5.38." has been written manually at the top of the frrst page, perhaps
indicating its date of receipt rather than its date of expedition. BM Ann. 25,,pp. 1106-
1111; QM Ann. III.158, Vol. 7, pp. 291-298.
470 Letter from Rulerof Qatar to Hugh Weightman, British Political Agent, 27 May 1938. BM
Ann. 260, Vol.5,pp. 1102-1105; QM Ann. 111.157,Vol. 7, pp. 285-290.
471
Extract from British Political Agent'snote, 30 May 1938. Ann. 88, Vol. 2, pp. 270-271.
472 Letter from British Political Agent to British Political Resident, 3 June 1938. BM Ann. 262,
Vol. 5,p. 1114; QM Ann. III.159, Vol. 7, p. 304.
473
Letter from Hugh Weightman, British Political Agent, to Lt. Col. Fowle, British Political
Resident, 3 June 1938. BM Ann. 262,Vol. 5,pp. 1112-1114; QM Ann. III.159, Vol. 7, pp. 299-
304.
- 157- 15 June 1938 Request from Ruler of Qatar to British Political Agent to be
informed of the bases of Bahrain's claim, in order to be able to rebut
them. The Ruler states that he may have more evidence to produce,
depending on the nature of Bahrain'sclaims. 474
21 June 1938 British Political Agent forwards to the British Political Resident
the Ruler of Qatar's 15 June letter. British Political Agent
recommends that no notice be taken of the Sheikh's claim that new
evidence may be available, calling such claim "...a complete
contradiction of his previous very clear statement to me personally, in
response to repeated questions, that he had produced all the evidence
on which he relied. I do not consider that any notice need be taken of
the new suggestion that further evidence might be available since he
was very clearly instructed in my letter No. C/324-1.a/29 dated 20
May 1938 to produce at once all the evidence which he has." 475
27 June 1938 British Political Resident forwards British Political Agent's 21
June letter to the Secretary of State for India. British Political
476
Resident states that he concurs with the sentiments expressed in it.
12 July 1938 Foreign Office recommends to Secretary of State for India that
Ruler of Qatar should be allowed to see Bahrain's Counter-claim
(following its submission) and to respond to it. Foreign Office
proposes that a decision then be made on the basis of each party's
claim and response:
"Under this procedure, the party who loses the case at least knows the
grounds on which the decision was given, and has no opportunity of
feeling that some erroneous statement, which he was able to
controvert, has been relied upon in reaching a decision.
We feel, therefore, that, even though the Sheikh of Qatar may not have
any more really effective arguments to advance in support of his
claim, a refusal on our part to accord him the same opportunity as was
given to his rival might leave him with a genuine sense of grievance
attributable to this cause alone."77
474 Letter from Ruler of Qatar to Hugh Weightman, British Political Agent, 15 June 1938. BM
Ann. 263, Vol. 5,pp. 1115-1116;QM Ann. 111.160,Vol. 7, pp. 305-310.
475
Letter from Hugh Weightman, British Political Agent, to Lt. Col Fowle, British Political
Resident, 21 June 1938. QMAnn. III.162, Vol. 7, pp. 315-318.
476 Letter from Lt. Col. Fowle, Britishitical Resident, to Secretary of State for India, 27 June
1938. BMAnn.264, Vol.5,p.1117;QMAnn.III.163, Vol. 7,pp.319-322.
477
Letter from C. W. Baxter, Foreign Office, toR. Peel, Secretary of State for India, 12 July 1938.
QMAnn. III.165, Vol. 7, pp. 327-332.
- 158- 21 July 1938 Secretary of State for India disagrees with advice of British
Political Resident and British Political Agent and instructs that
the Ruler of Qatar should be permitted to see Bahrain's Counter
claim (followingits submission), in order to reply to it.
"HMG... while recognising that Sheikh of Qatar may be able to add
nothing of substance to the statements he has already made, consider
that on the whole it would be preferable to give him an opportunity to
comment on the Bahrain reply. This would be in accordance with the
normal procedures in such cases, and it is undesirable, if the eventual
decision is in favour of Bahrein, that the Sheikh of Qatar should be left
with a sense of grievance that he hasnot been fully heard. ...[P]lease
communicate statement of Bahrein Government when received to
Sheikh of Qatar and allow him reasonable period for his comments
and for the production of any further evidence in support of his
claim".478
14 August Acting British Political Agent forwards Qatar's claim to Bahrain
1938 with a request that Bahrain submit a full and detailed Counter
claim.479
8November The British Political Agent reminds Bahrain to submit its
1938 Counter-claim. 480
22 December
Bahrain submits its Counter-claim. Counter claim presents
1938 evidence of Bahrain's sovereignty over the Hawar Islands dating back
to the 18th Century. 481
5January British Political Agent forwards Bahrain's Counter-claim to
1939 Qatar. 482
478 Letter from R. Peel, Secretary of State for India, to Lt. Col. Fowle, British Political Resident, 21
July 1938. BM Ann. 269, Vol5,p. 1124.
479
Letter from Capt. Howes, Officiating British Political Agent, to the Acting Adviser to Govt. of
Bahrain, 14 August 1938. BM Ann. 270, Vo5,p. 1125; QM Ann. lll.168, Vol. 7, pp. 343-346.
480 Letter from Hugh Weightman, Britisholitical Agent, to the Adviser to the Govt. of Bahrain,
British Political Resident, 8 November 1938. BM Ann. 272,5,p. 1127.
481
Bahrain Counter-claimin the form of a letter from Charles Belgrave, Adviser to the Govt. of
Bahrain to Hugh Weightman, British Political Agent), 22 December 1938. BM Ann. 274, Vol.
5,pp. 1129-1135; QM Ann. lll.174, Vol. 7, pp. 371-384.
482 Letter from Hugh Weightman, British Political AgtoRuler of Qatar5 January 1939. BM
Ann. 276, Vol5,pp. 1141-1142; QM Ann. 177, Vol. 7, pp. 393-396.
-159- 16 March 1939 British Political Agent requests that Qatar's rejoinder be
submitted by end of month. British Political Agent states
"...otherwise it will be assumed that you do not wish to put forward
any further arguments beyondthose you have already written, and the
matter will at once be submitted to His Majesty's Government for
483
decision."
19 March 1939 Ruler of Qatar protests to British Political Agent about the time
484
limit being imposed.
22 March 1939 British Political Agent reiterates to Ruler of Qatar the need for his
claim to be submitted by the end of the month. British Political
Agent states: "...you must remember that you had unlimited time in
which to make your original claim which was expected to include all
your argumentsand evidence, and that at present you have been given
an opportunityonly to add any further commentsthat you may wish to
make after seeing the Bahrain Government'sreply. In other parts of
the world when cases of this nature arise it is normal for such final
statements as you are now preparing to be ready within two weeks or
485
at the most a month."
24 March 1939 Ruler of Qatar protests to British Political Agent that his initial
claim had been made immediately on hearing of Bahrain's
activities in Hawar Islands. 486
487
30 March 1939 Qatar submits its rejoinder.
483
Letter from Hugh Weightman, British Political Agent, to Ruler of Qatar, 17 March 1939. QM
Ann. III.188, Vol. 7, pp. 437-439.
484 Letter from the Rulerof Qatar to Hugh Weightman, British Political Agent, 19 March 1939.
BM Ann. 277, Vol. 5, p. 1143; QM Ann. 111.189,Vol. 7, pp. 441-444.
485
Letter from Hugh Weightman, British Political Agent, to Ruler Qatar, 22 March 1939. QM
Ann. 111.190,Vol. 7, pp. 445-448.
486 Letter from Rulerof Qatar to Hugh Weightman, British Political Agent, 24 March 1939. QM
Ann. 111.191,Vol. 7, pp. 449-452.
487 Qatar rejoinder (in the formf a letter from the Ruler of Qatar to Hugh Weightman, British
Political Agent), 30 March 1939. BM Ann. 278 and 279, Vol. 5, pp. 1144-1145 and 1146-1162;
QM Ann. 111.192,Vol. 7, pp. 453-488.
-160- 20 April1939 Bahrain clarifies in letter to British Political Agent its submission
in its preliminary statement regarding property in Hawar which is
subject to the laws of Bahrain. It had been stated that certain Hawar
fishtraps were registered in Hawar. In fact, the fishtraps in question
are not registered as they are subject to a dispute in the Bahrain Court
and cannot be registered until the case, and therefore the question of
ownership, has been settled. 488
22 April1939 British Political Agent communicates the record of the
proceedings and his analysis to the British Political Resident. 489
29 April1939 British Political Resident forwards British Political Agent's record
and analysis to the British Government in London. 490
13June 1939 British Government decides·.in favour of Bahrain's claim to
sovereignty over the Hawar islands, subject to the assent of the
491
Government of lndia.
1 July 1939 Government of India concurs in the decision of British
492
Government.
11July 1939 British Government's decision is communicated to the Rulers of
493
Bahrain and Qatar.
488 Letter from Charles Belgrave, Adviser to Govt. of Bahrain, to Hugh Weightman, British
Political Agent, 20 April1939.BM Ann. 280, Vol. 5, pp. 1163-1164; QM Ann. III.193, Vol. 7,
pp. 489-492. This letter does not constitute a withdrawal of evidence regarding fishtraps, as
Qatar claims. Rather, it clarifies evidence already submitted that property in the Hawar Islands
is subject to the courts in Bahrain. Further instances of fishtraps in the Hawar Islands owned by
Bahraini subjects are cited.
489 Weightman Report- Letter from Hugh Weightman, British Political Agent, to Lt. Col. Fowle,
British Political Resident, 22 April 1939. BM Ann. 281, Vol. 5, pp. 1165-1172; QM Ann.
III.195, Vol. 7, pp. 497-506.
490 Letter from Lt. Col. Fowle, British Political Resident, to Secretary of State for India, 29 April
1939. BM Ann. 282, Vol. 5, p. 1173; QM Ann. III.199, Vol. 7, pp. 519-521.
491
Letter from Foreign Office (London) to India Office (London),3 June 1939. BM Ann. 284,
Vol. 5, p. 1176.
492 Letter from Deputy Secretary to the Govt. India to Lt. Col. Fowle, British Political Resident, 1
July 1939. BM Ann. 286, Vol. 5,p. 1181.
493
Letters from Lt. Col. Fowle, British Political Resident, to Rulerrain and Ruler of Qatar,
11 July 1939. BM Ann. 287 and 288, Vol. 5,p. 1182 and 1183; QM Ann. III.208 and III.209,
Vol. 8, pp. 37-40 and pp. 41-44.
-161-SECTION3.3 Qatar's allegations of British wrongdoing cannot be considered
by the Court in the absence of Great Britain as a Party
A. Qatar has alleged unlawful acts by Britain
375. Before examining the "formal defects" which Qatar has alleged in respect of the
1939 Award, it is necessary to confront an important issue of admissibility.
376. Qatar's Memorial alleges that Britain and Bahrain conspired to perpetrate on
494
Qatar a fraud of historic proportions. This conspiracy, so Qatar alleges, consisted of
manufacturing invalid evidence in Bahrain's favour, suppressing valid evidence that
would have favoured Qatar, and conducting an invalid and biased arbitration. Aside
from the fact that these allegations are unfounded (as will be seen in Section 3.5(B)),
they are inadmissible, in that they would require the Court to examine the legality of the
behaviour of a State that has not accepted the Court's jurisdiction, as well as the
significant legal consequencesflowing therefrom.
B. Qatar's allegations necessarily implicate the British Government and not
only Weightman and Belgrave
3 77. Qatar apparently hesitated to accuse Britain directly of complicity in the alleged
conspiracy directly against Britain, preferring to proceed by implication. Qatar's
Memorial goes to some lengths in its attempt to focus its conspiracy theory entirely on
Sir Charles Belgrave and Sir Hugh Weightman. 495 Weightman is depicted as a man of
questionable probity 496 and, moreover, as being dominated by the more powerful
497
personality of Belgrave, the Adviser to the Ruler of Bahrain. This leads Qatar into a
494 See Section 3.3.B infra. See also, for example, QM paras. 5.55, 5.56, 5.57, 5.64, 5.65, 5.66,
6.50, 6.64, 6.70, 6.71, 6.81, 6.109, 6.170, 6.230.
495
See,for example, QM paras. 5.56, 6.50 and 6.71.
496 See QM para. 6.74.
497 See, for example, QM para. 6.89.
- 162-contradiction. At several places Qatar'sMemorial states that Qatar does not allege that
the British Government as a whole or its officials generally were involved in the
conspiracy, but only one British official (Weightman). 498 Yet at many other places
Qatar'sMemorial directly implicates Britain, the British Government, and no less than
five named British officials in the conspiracy.
378. The five British officials directly impugned by Qatar are:
499
1) Lt.-Col. Trenchard Fowle, British Political Resident;
2) Lt.-Col. Percy Loch, British Political Agent, prior to Weightman; 500
3) Hugh Weightman, British Political Agent; 501
4) Abdul Razag bin Rizoogi, British Residency Agent in the Trucial States; 502
5) Khan Bahador Issa Abdul Lateef Al-Sarkal, Representative of the British
Government in Sharjah. 503
379. Qatar's Memorial seeks to implicate Britain directly in the conspiracy no less
504
than 12 times. For example, Qatar invokes correspondence that was exchanged in
498 See, for example, QM para. 6.71.
499
See, for example, QM paras. 6.35, 6.37, 6.116, 6.163.
soo See, for example, QM paras. 6.35, 6.37, 6.65, 6.66, 6.70.
SOl
See QM paras. 5.56, 6.71, 6.88, 6.89, 6.90, 6.91, 6.92, 6.95, 6.109, 6.116, 6.154, 6.163, 6.170,
6.189. Qatar attacks Weightman personally on the ground that he was acting to further the
interests ofBritain:
"There is evidence to show that the British Political Agent in Bahrain [Weightman] was at least
partly aware of, if not actively initiating or supporting Belgrave's plans, presumably to show his
superiors gains in increasing the area ofBritish influence." (QM para. 5.56.)
502
See QM paras. 6.67, 6.70, 6.158, 6.160, 6.185, 6.186, 6.187.
503 See QM paras. 5.65, 6.169, 6.173.
504
See QM paras. 5.55, 5.57, 5.64, 5.65, 5.66, 5.67, 5.69, 6.64, 6.81, 6.109, 6.170, 6.230.
- 163- 1936 between two senior British officials in the Gulf stating that it could suit Britain's
political interests to have as much territory as possible under Bahrain's control.
Referring to this correspondence, Qatar's Memorial unmistakably seeks to implicate
Britain in the alleged conspiracy:
"5.57 In other words, efforts were to be made to add to the territory of
Bahrain. This "plot", which began to be implemented from
around 1930, and evidence which subsequently became available
about the false basis of Bahrain's claims to the Hawar islands is
dealt with in detail in the next Chapter." 505 (Emphasis added.)
380. Qatar'sMemorial also alleges that by July of 1938 "officials in the India Office
... were already parti pris" in favour of Bahrain in relation to the Hawar Islands
arbitration.506 Qatar asserts that Bahrain's evidence submitted during 1938-1939 was
accepted by "British authorit[ies]" in India and London without having been "subjected
507
to critical examination. " Qatar'sallegations continue:
"... Qatar has already reviewed the evidence demonstrating that the
British authorities in the Gulf and in London had no clear idea in 1938/39
either of the composition or of the exact location of the Hawar islands.
Their ignorance was equalled only by their predisposition to give them to
Bahrain in view of the supposed advantages which would accrue to
Britain from such a decision." 508
381. Qatar alleges that Britain and its officials were generally biased toward Bahrain
and that this bias affected the validity of the 1938-1939 arbitration. 509 In particular,
510
Qatar alleges violations of the audi alteram partem rule, the nemojudex in causa sua
505 QM paras. 5.56 and 5.57.
. 506
QM para. 6.81.
501 QM para. 6.109. This statement was made by Qatar in the context of accusing Bahrain of
having submitted "wholly fictitious" evidence in 1938-1939.
508
QM para. 6.230.
509 See QM paras. 6.121-140,6.144.
510
QM paras. 6.124-6.131.
- 164-rule,m and the rule prohibiting bias in the decision-maker. 512 Qatar's position 1s
summed up in the conclusion of Chapter VI of its Memorial in the following terms:
"Furthermore, the procedure followed by the British was so defective that
the resulting decision can only be considered a nullity ... there were clear
instances of bias, both by Britain generally and by Weightman in
513
particular, in favour of Bahrain ... " (Emphasis added.)
Thus, despite its attempts to equivocate, the Qatar's Memorial's conspiracy theory
expressly and repeatedly implicates Britain. Qatar is saying nothing less than that
Britain colluded with Bahrain to dispossess Qatar of the Hawar Islands.
C. Qatar'sallegations are inadmissible in the absence of Britain as a Party
382. These allegations have serious jurisdictional implications. According to Qatar's
Memorial, the alleged participation of Britain in a ten-year conspiracy actively to
defraud Qatar of the Hawar Islands achieved its objective when Britain manipulated
evidence and followed improper procedures in 1938-1939 in order to award the Islands
to Bahrain. In helping Bahrain prevail over Qatar, Britain was - so Qatar alleges -
pursuing its own interests. These allegations, which were first raised in Qatar's
Memorial on the basis of the forged documents, present an issue of admissibility which
obviously could not previously have been addressed by Bahrain.
383. The corruption of a judge, judex corruptus, is an acknowledged ground for
annulling an award. Most publicists 514 who have considered the matter agree that an
award can be annulled if it is established, cumulatively, that· (i) the arbitrator was
corrupted, such that, in his decision, he pursued private ends incompatible with his
511 QM paras6.132-6.140.
512 QM paras6.132-6.140.
513
QM para6.251.
514 See, e.g., K. Carlston, The Process oflntemational Arbitration (1946) at p. 53.
- 165-public duty; and (ii) the corrupt behaviour was a significant factor in the formation of an
award such that the evidence, had it been fairly weighed and applied, would not have
sustained it.
384. When a government functions as arbitrator, the allegation of judex corruptus
relates perforce to the actions of officials and functionaries of that government, for a
government can only operate through individuals. Hence the argument that a
government,acting as arbitrator, might have been corrupt is not, in theory, implausible.
Qatar'sessential allegation on this issue is that Britain and the British Government acted
as judex corruptus by participating in this conspiracy.
385. Qatar'sfactual allegation raises an acute jurisdictional problem. For the Court to
consider the allegation would involve it in making judgments about the propriety and
lawfulnessof behaviour of the British Government. If the Court were to sustain Qatar's
allegation, it would touch upon obligations that Britain owed, as a result of its
behaviour, to Qatar. (And, indeed, to Bahrain as well, for Bahrain would then be
deprived, by reason of the perfidy of Britain, of an arbitral award which, on the
objective evidence, it could otherwise claim to have been in its favour.) Moreover, if
Qatar's allegation of corruption and bias were sustained, it might, in addition to
invalidatingthe Award, also serve as the basis for further actions by Qatar and even by
Bahrain against Britain for breach of treaty rights and fiduciary duties owed to both
States. The Court should therefore find this allegation inadmissible.
386. In view of the recent consideration by the Court of a case raising issues relating
to the conduct of a State not party to the proceedings, namely, the East Timof 15case, it
is unnecessary for Bahrain now to refer to the authorities in any detail. It is sufficient to
recall that in the Monetary Gold 516case the Court declined to proceed to consider an
SIS
Case concerning East Timor (Judgment), 30 June 1995, ICJ Rep. 1995, at p. 159.
SJ6 Case of the Monetary Gold Removed from Rome in 1943 (Judgment, Preliminary Question),
ICJ Rep. 1954, at p. 33.
- 166- issue between Italy and the United Kingdom which turned upon the question of the
legality of the conduct of Albania, a State not a party to the proceedings. Similarly, in
the East Timor casethe Court refused to consider, in proceedings between Portugal and
Australia,the legality ofthe conduct of Indonesia.
387. The Court must decline to hear all the arguments about the invalidity of the
British Award of 1939 because these arguments put in issue Britain's international
responsibility. In the absence of Britain's consent, consideration of such a matter is
impermissible. In East Timor, the Court stated that if it exercised jurisdiction,
"Indonesia'srights and obligationswould thus constitutethe very subject-matterof such
ajudgment made in the absence of that State'sconsent." 517 That would also be the case
if the Court were to exercise jurisdiction in respect of Qatar's allegations regarding
Britain'sconductofthe 1938-1939proceedings.
SECTION3.4 The burden of proof with respect to the validity of the 1939
Award rests on Qatar
388. As stated inparagraph370, there appearsto be no controversy as to the character
ofthe 1939decision. It will be recalledthat the Foreign Office gave advice to the India
Office, which supervisedthe British officials responsible for the 1938-39 adjudication,
on appropriate conduct "when one is assuming an arbitral rule [sic: "role"] of this
character"518 (Emphasis added.) That is what Britain thought it was doing; that is what
Britain did.
389. An arbitral award as such is entitled to be respected: there is a praesumptio in
·favorem validitatis sententiae. 519 If a party challenges an award, it has the burden of
517
Ibid at para. 34.
518 Letter from Foreign Officeto India Office,ly 1938. QM Ann. III.l67, Vol. 7, p. 327.
519 Klockner v. Cameroon: Decision of the Ad Hoc Committee, I ICSID Rev. For. Investment
(1986) L.J. 89.
-167-proof. This has been the position of the Permanent Court in the Societe Commerciale
de Belgique case 520 and of the International Court in the Award of the King of Spal.n 521
and the Guinea Bissau v. Senegal 522judgments.
SECTION3.5 Refutation of Qatar's criticisms of the 1939 Award
A. Qatar's allegation of absence of consent isunfounded
(i) Explicit Consent
390. Qatar'sMemorial alleges:
"[o]bviously, there was no arbitration agreement authorising the British
Government to act as arbitrator between Qatar and Bahrain in the matter
of the dispute over title to the Hawar group of islands." 523
The argument is wrong. Just as was the case with Bahrain, 524 Qatar had granted, in a
series of agreements over the years, a general authority to Britain, as its protecting
power, to determine what boundaries it was obliged to protect.
391. Among these agreements 525 there was a Qatari expression of consent which
amply supports Britain's arbitral jurisdiction in the 1938-39 proceedings. On 12
September 1868, as a result of the unsuccessful attempt by the Doha confederation to
rebel against Bahrain's authority in Doha, described in Section 2.2.G, Muhammed bin
520 The Societe Commerciale de Belgique (Judgment), 15 June 1939, P.C.I.J. Series AlB, No. 78,
pp. 160-90..
521 Case concerning the Arbitral Award made by the King of Spain on 23 December 1906
(Honduras v. Nicaragua), (Judgment of 18November 1960), I.C.J. Rep. 1960 p. 192.
522
Case concerning the Arbitral Award of31 July 1989 (Guinea-Bissau v. Senegal), (Judgment of
12November 1991), I.C.J. Rep. 1991 p. 53.
523 QM para. 6.115.
524
British-Bahraini 1861Treaty ofFriendship. BMAnn. 8, Vol. 2, p. 110.
525 These agreements are more fully recalled in Section 2.2.G.
-168-Thani signed a unilateral guarantee regarding his behaviour. One of the principal
obligations that he undertook was that:
"... in the event of a difference of opinion [with Bahrain] arising as to any
question, whether money payment or other matter, the same is to be
referred to the Resident."526
The words "any question" and "or other matter" make this an unrestricted acceptance of
the competence of the British Resident to decide differences between Qatar and Bahrain.
Thus, from 1868, the AI-Thani accepted that all differences between them and Bahrain
were to be referred to Britain for settlement.
392. The role of Britain as adjudicator of all disputes between Bahrain and Qatar was
endorsed by Muhammed bin Thani's grandson, Abdullah bin Jasim Al-Thani, in 1916.
On 3 November of that year, Britain and Sheikh Abdullah signed the treaty that created
a State of Qatar. That treaty expressly included within its terms the unilateral
undertakings of Mohammed AI-Thani of 1868:
"Whereas my grandfather, the late Shaikh Mohammed bin Thani, signed
an agreement on the 12th September 1868 engaging not to commit and·
breach of the Maritime Peace, and whereas these obligations to the
527
British Government have devolved on me his successor in Qatar."
The obligation that had been assumed by the AI-Thani to refer to the British Resident
any "difference of opinion arising as to any question" with Bahrain was, therefore,
incorporated in and survived the 1916 Treaty. That treaty governed British-Qatari
relations until Qatar'sindependence in 1971.
526 Aitchison's Treaties, op. cit., pp. 183-184. BM Ann. 12, Vol. 2, pp.l57-158.
527 Aitchison's Treaties, op. cit., p. 258. BM Ann. 84, Vol. 3, p. 513.
- 169-(ii) Implied Consent: Participationwithout Protest
393. Explicit prior consent is not the only way to create jurisdiction. The Tribunal in
Dubai/Sha.IjahBorder said that "international law does not require here an excessive
formalism." 528 Qatar quotes the passage with approval. 529 Qatar, itself, acknowledges
that:
"The Judgment of the Court of 1 July 1994 in the jurisdictional phase of
the present case confmns that international law does not require consents
530
[sic]to be expressed only in the form of an arbitration agreement."
Participation constitutes implied consent by operation of a type of forum prorogatum.
In the Award of the King of Spain, the Court commented on a cognate claim made by
Nicaragua with respect to the impropriety of the appointment of the arbitrator and the
exercise of hisjurisdiction. The Court stated:
"No question was at any time raised in the arbitral proceedings before the
King with regard either to the validity of his designation as arbitrator or
his jurisdiction as such. Before him, the Parties followed the procedure
that had been agreed upon for submitting their respective cases. Indeed,
the very first occasion when the validity of the designation of the King of
Spain as arbitrator was challenged was in the Note of the Foreign
Minister ofNicaragua of 19 March 1912." 531
394. It is clear, moreover, that Qatar acquiesced in the procedure that Britain followed
in 1939. Qatar could have protested or remained entirely aloof. There is no indication
in the record that the Ruler of Qatar ever stated that Britain hadno authority or right to
determine the title and boundaries in question. To the contrary, the Ruler of Qatar
sought the ruling by Britain and then participated actively in the process. Such
participation in these circumstances constituted consent.
528 Dubai!Sha.tjahBorder, Award of 19 October 1981, 911.L.R 1993, p. 576.
529 QM para. 6.114.
530 QM para. 6.115.
531
King of Spain (Honduras v. Nicaragua)op. citpp. 192,206-07.
- 170-B. There was no·British bias
395. At the very core of Qatar's challenge to the 1939 Award is its charge that
Britain's self-interest caused it to conduct the proceedings with bias against Qatar.
Leaving aside the inferences which Qatar derives from the fraudulent documents, the
main elements of Qatar's accusations are that Britain pre-judged the question of the
ownership of the Hawar Islands in 1936 without giving Qatar a proper and equal
opportunity to be heard. Furthermore, as a result of this "provisional decision", which
was based on fragmentary and inconclusiveevidence,Qatar was treated as the claimant
in the 1939 proceedings. The British official administering the proceedings colluded
with the BahrainGovernmentAdviser to deny Qataraccessto Bahrain'sevidence and to
give Bahrain improper access to Qatar'sevidence. Motivated by its broader economic
and political interests,and its long-standingrelationship with Bahrain, so the argument
continues,Britain conductedthe 1939proceedingsin manner that favoured Bahrain and
was biased against Qatar. To corroborate its accusation of British bias, Qatar relies on
statementsmade by two Britishofficialsin the aftermathofthe 1939decision. 532
396. As demonstrated in detail in Chapter 2, Qatar- perhaps overimpressed by the
forgeddocuments-has fundamentallymisunderstoodthe commercial interests involved
in the early oil industry, and therefore has concocted a theory of British bias which is
utterly implausible as a matter of motivation. As shown in Section 2.3.G, British
interests would have inclined it to recognising sovereignty over the Hawar Islands by
Qatar, not Bahrain. In this section, Bahrain leaves aside the issue of Britain's
motivation,and contendsthat at any ratethe recordin factreveals no bias.
397. Bahrain has demonstrated the fraudulent nature of the documents upon which
Qatarfounds the core of its case regardingthe allegedbias of British officials. The only
evidence other than these forged documents consists of extracts that Qatar has selected
532 See QM paras. 6.100-6.110.
-171-from the writings - published and private - of Belgrave. None of these extracts
supports the allegation of bias independently of the forged documents. Furthermore, the
extracts are presented in a misleading manner, i.e., with certain essential passages
omitted and/or taken out of context. When viewed in their entirety and in context, these
extracts in truth show no bias.
398. Qatar develops a conspiracy theory focusing on two men: Sir Charles Belgrave,
Adviser to the Government of Bahrain, who is presented as nothing less than a criminal,
intent on advancing Bahrain's cause by any means; and Sir Hugh Weightman, British
Political Agent, and supposedly under Belgrave's influence, as his accomplice. 533
Qatar's Memorial implicates four other British officials, as well as the British
Government in the conspiracy.
399. This theory, if correct, would eliminate much of Bahrain'sevidence in relation to
the Hawar Islands. Any document that passed through Belgrave's hands should, in
Qatar'sview, be presumed to be suspect. As it was Belgrave who presented Bahrain's
case, the entire body of evidence adduced by Bahrain during the 1938-1939 arbitration
should, so Qatar contends, now to be dismissed en bloc as contaminated- despite the
fact that that evidence is consistent with and confirmed by the public record.
400. Weightman was Britain's Political Agent for Bahrain and Qatar from 1937 to
1940. In that capacity he organised the arbitral proceedings regarding the Hawar Islands
and made a preliminary assessment of the factual bases of the two Parties' claims. By
characterising him as Belgrave'saccomplice, Qatar today seeks a radical solution to the
difficulty arising from its failurein 1938-39 to present any probative evidence beyond
the fact of proximity. Qatar thus suggests that it would in fact have proved its case if its
evidence had not been suppressed, if it had been given adequate time to do so, or if
Britain and its officials had not misconducted themselves.
533 Qatar uses the phrase "pernicious influence" to describe the relationship. QM para. 6.89.
- 172- 401. The theory is neat; like all conspiracy theories, it is designed to explain
everything. It is easy to launch such accusations, but difficult to demonstrate that they
are justified. Particularly serious charges like those of bad faith, deceit, and fraud
require particularly serious proof. What Qatar offers today is the fruit of wishful
thinking and is itself based on a real and proven fraud - i.e., the 81 forgeries which
Qatar submitted with its Memorial. Qatar's thesis is profoundly prejudicial to both
Britain and Bahrain, who stand accused of participating in a ten-year conspiracy to
deprive Qatar of its rights, and then perpetuating the conspiracy to the present day by
maintaining its effects through the years. Qatar would like the Court to believe that
Belgrave and Weightman were ignoble conspirators, that Bahrain's overwhelming
evidence of its sovereignty over the Hawar Islands was pervasively contaminated, that
Britain was biased, an actor in the conspiracy, and that Qatar had good evidence that
was suppressed. Moreover,Qatarwould like the Courtto believe that this extraordinary
manipulation remained undiscovered or ignored by the entire world for over half a
century.
402. But the fact is that the alleged bases for Qatar'saccusation are to be found only
in the81 forged documents. Whenthese are removed, Qatar'scharges collapse, and are
exposed as nothing more than implausible speculationor preposterous interpretations of
innocentdocuments.
403. Disregardingthe forged documents, the remaining structure of Qatar'stheory is
built on nine extracts from Belgrave'spersonal diary during May 1938 and January and
February 1939. 534 These nine extracts, like most of Belgrave's diary, are banal and
. innocuous. They show that Weightman was one of the many people whom Belgrave
met on a frequent basis while assisting in the affairsof the Bahrain Government. Even
Qatar does not attempt to imply from these extracts more than that there were close
534 QM para6.72.
- 173-relations and easy access between Belgrave and the various Political Agents in Bahrain.
What the extracts fail to reveal, presented in isolation as they are, is that Belgrave
enjoyed equally close relations, on a reciprocal basis, and easy access with most persons
of influence in Bahrain. Furthermore, Belgrave's diary makes it clear that this sort of
relationship was entirely normal within the small expatriate community in Bahrain.
There was nothing improper or unusual about it.
404. To mask this, Qatar's Memorial pretends that the invidious nature of the nine
extracts can be divined by reading them in conjunction with an extract about
Weightman from Belgrave's 1972 memoirs and three Belgrave diary entries from April
1939. The extract from Belgrave's 1972 memoirs 535in fact is plucked from a mundane
chronological account of life in Bahrain at the outbreak of the Second World War:
"... In June 1940, when France collapsed, I cabled to [my wife] to join
me, with our son, in Bahrain. They got a passage in the P & 0
Strathnaver. The voyage from England to Ceylon took over a month,
during which they were attacked by bombers and chased by submarines.
It was a horrible experience. Having got as far as Karachi my son, who
had started measles during the long train journey from the south of India,
was put into the municipal fever hospital in Karachi bazaar, not a
salubrious place, but by pulling some strings and because I was
Commandant of Police in Bahrain, a quasi-military post, he was admitted
to the Military Hospital where I found him when I went down to Karachi
to meet them.
Hugh Weightman left Bahrain for Delhi in August and subsequently
became Foreign Secretary to the Government of India. I and many others
much regretted his departure. Both he and, later, E.B. Wakefield, who
also served in Bahrain and then in Delhi, were very valuable friends at
court; they did much to keep Bahrain on the map and helped us to
maintain a supply of food from India. In October there was a night attack
on Bahrain by Italian aircraft, which came from the Dodecanese
536
islands ..."
535 QM para. 6.73.
536
C. Belgrave, Personal Column (1972), p. 121. QM Annex III.299, Vol. 8, p. 500.
-174-How this reference to Weightman and Wakefield translates into evidence of bias is not
explained by Qatar. It is certainly not apparent on the face of the above-quoted section.
405. Similarly, no explanation is offered for the apparently irrelevant and
unconnected reference, made in the next paragraphs of Qatar's Memorial, to
537
Weightman's personal business activities in Abu Dhabi following his retirement.
Such an incongruous reference appears to be part of the pattern in Qatar'sMemorial of
attempting to create an atmosphere of doubt about the propriety of the innocuous
behaviour of Weightman and Belgrave generally. However, without any authentic
evidence to support it, the suggestion can be made only by innuendo, and does not
withstand even the most superficial scrutiny.
406. Qatar's forced interpretations of the Belgrave selections culminate in three
entries taken from Belgrave's diaries that, according to Qatar, "demonstrate the
pernicious influence which Belgrave exercised over Weightman." 538 (Emphasis added.)
The first entry so cited is from 18 April 1939, the relevant parts of which are presented
here in full:
"... Drove out to Rumaitha in afternoon to see HH [the Ruler of Bahrain].
A nice drive, took about an hour, some of the country is quite green but
very short grass. We had tea by the roadside on the way back. HH [the
Ruler of Bahrain] was sitting on the steps outside his little house
surveying more camels & young ones, it is a small place high up & nice
air. He tooks [sic] us up to a hill where we could see the fort at Hawar &
also HW's [Hugh Weightman] launch returning from there, he went to
visit the place. Discussed the succession ..."539
Far from revealing a "pernicious influence", a more ordinary and harmless series of
events could hardly be imagined. Yet this is the best authentic evidence that Qatar has
537 QM para. 6.74.
538 QM para. 6.89.
539
Entries from the diary of Sir Charles Dalrymple Belgrave, 18 April 1939. Ann. 102, Vol. 2,
p. 309.
- 175-presented on which it founds a claim of bias. Again, how Belgrave'schance sighting of
Weightman'sboat equates to any form of influence, let alone "pernicious influence", is
not explained, nor is it evident.
407. The next diary extract presented by Qatar is portentously described as being
"equallyrevealing". The day'sentry is presented here in full:
"At Agency for some time in morning hearing about H's [Weightman's]
trip to Hawar. It seems to have been satisfactory from our point of view.
Motored to Budeya in the afternoon & had tea there, country looking
quite green, lovely day. Dinner party, Young Jameson, Cubbitts, Howes,
Ayars, Dr Barney, quite a good party." 540
Once more, it is puzzling that Qatar could infer a "pernicious influence" from this
pedestrian account of the fact that Belgrave merely listened to Weightman. Whether
Weightman ought to have mentioned his Hawar trip to Belgrave or whether Belgrave
should have listened to Weightman is surely of little moment, given that Weightman
knew that Belgrave knew (as indeed probably the entire expatriate community in
Bahrain knew) that Weightman had just visited the Hawar Islands. Belgrave had
himself visited the Hawar Islands. So both men were aware of what Weightman had
just observed on the Hawar Islands (indeed much of what he observed there can still be
observed by any visitor today). Belgrave'sconclusion that the trip seemed to have been
satisfactory is clearly Belgrave's independentjudgement.
408. As the apotheosis of its bias and conspiracy allegation, Qatar points to a passage
from Belgrave'sdiary:
"At Agency for some time in the morning, discussed the Hawar claim,
saw HWs letter regarding the whole thing, our case looks strong." 541
(Emphasis in Qatar'sMemorial.)
540
Entries from the diary of Sir Charles Dalrymple Belgrave, 20 April 1939. Ann. 102, Vol. 2,
p. 309.
541 QM para.6.90.
-176-Onthis, Qatarcomments:
"... There can be no more glaring illustration of bias in favour of the
Bahraini claim to Hawar during the 1930s than is provided by this
episode."542(Emphasisaddedby Qatar.)
409. In fact, the passage extracted by Qatar from Belgrave'sdiary was significantly
shortened. Itshouldhave read:
"At Agency for some time in the morning, discussed the Hawar claim,
saw HW's[Hugh Weightman] letter regarding the whole thing, our case
looksstrong,Abdullahbin Jassimhas no argumentexceptthat the islands
543
are close to his shore." (Emphasisedpassage omitted from quotation in
Qatar'sMemorial.)
410. This passage is presented as the apex of Belgrave'spernicious influence over
Weightman and of Weightman'sbias in favour of Bahrain. Yet two aspects of this
passage merit immediateattention. The first is that the Ruler of Qatar and his advisers
had themselves spoken privately about the case with Weightman on several previous
occasions. 544 In the nature of his role, Weightman could be expected to have precisely
this kind of contact. He could hardly be sequestered for the many months of the
arbitration any more than could Belgrave. This kind of contact was inevitable in the
discharge of his duties. What is significant is that the extract demonstrates that
Weightmanwas speakingto both parties - who were not speaking to each other. Thus
the equality of the parties was maintained.
411. Secondly, Belgrave's conclusion that Bahrain's case was strong is clearly
predicated on the observation in the last phrase of the passage - notably omitted by
Qatar- that the Ruler of Qatar had "no argument except that the islands are close to his
542 QM para.6.91.
543
Entries from the diary Sir Charles Dalrymple Belgrave, 22 April 1939Ann. 102, Vol. 2,
p. 309.
544 See Section 3.2.
- 177-shore." It is not surprisingthat this phrase was omitted by Qatar. Even were it possible,
arguendo, to discern in the innocuous events described above a "pernicious influence"
exercised by Belgrave, indeed even if Belgrave had read Weightman'sreport, neither of
these events could have affected the outcome of the arbitration. The fact remains that in
1938-1939, there was no authentic evidence to support Qatar's claim to the Hawar
Islands,just as there is none today.
412. If the forged documents are disregarded, and the unsupported interpretation of
"pernicious influence" on the part of Belgrave is set aside, the few remaining authentic
pieces of evidence adduced in Qatar's Memorial to supplement Qatar's forgery-based
theory of bias and conspiracy are revealed as marginal and trivial. Beyond insinuation
and unfounded extrapolations,there is nothing to show that British officials were biased
in the conduct of the arbitration.
413. Finally, Bahrain notes the utter implausibility of Qatar'stheory of British bias.
Qatar had awarded an oil concession in its territory to a British company, while Bahrain
had awarded a concessionto an American company. (See Section 2.3.G.) If the Hawar
Islands had been awardedto Qatar, Britain would have automatically benefited from the
Qatar oil concession extending to the islands. A plausible conspiracy theory would,
therefore, have the British Government plotting against Bahrain and in favour of Qatar,
and not vice versa. It would have had Britain conspiring to give Bahraini territory to
Qatar and not Qatari territory to Bahrain. The internal logic of Qatar's conspiracy
theory is as implausible as is the documentary evidence on which it rests. There is no
evidence that Britain abused its power. To the contrary. It rendered the correct legal
decision.
C. There was no violation of audi alteram partem
414. Qatar submits, in its Memorial, that a "principal"rule for arbitrations is:
- 178- "the rule that both parties must have a proper and equal opportunity to
545
present their case [sic] at all stages (taudi alteram partem rule)."
415. Bahrain takes no issue with this general formulation of the principle. The parties
disagree only as regards its implementation.
416. Qatar first contends that Britain did not observe the principle in 1936. It is
common ground that the decision-maker in 1939 - three years later - was the same
British Government that had continuously exercised protecting functions by virtue of a
series of treaties and agreements dating from 1820. When States parties select as their
arbitrator another State that has other and possibly overlapping relations with each of
them severally, the appointed State will inevitably continue to interact with each of the
States as circumstances require. It would be absurd if each such interaction, taking
place years before the arbitration and, indeed, before the idea of an arbitration of the
issue had even been conceived, gave rise to the nullity of the ultimate award because it
did not involve the other State and hence violated the audiatur rule. Such a view would
require the arbitrator State, if it had the slightest forethought that an arbitration might
take place, to transform every exchange with either party, long before any arbitration
proceedings had commenced, into an adversarial procedure in which the other party had
a full opportunity to participate. If the arbitrator State does not have that degree of
prescience (and who would?), then any subsequent award will constitute a violation of
the audiatur rule, because it will emerge retrospectively that the arbitrator had not
treated as adversarial all contacts prior to the initiation of the arbitral procedure.
417. Yet this is precisely the absurdity that Qatar proposes. It takes the VIew
expressed by Britain in 1936, calls it a "provisional decision," implying that it was part
of the 1939procedure, and then claims that this 1936 "provisional decision" nullifies the
545 QM para. 6.122.
-179-1939 award, because it violated, in 1936, a supposed audiatur obligation that reaches
forwardto 1939. 546 Thus, Qatar asserts:
"[f]rom the description of the procedures followed by the British
authorities in the years leading up to the formal decision of 11 July 1939,
it is abundantly clearthat this principle was not observed."547
The so-called "provisional decision" in 1936 was that the Hawar Islands belonged to
Bahrain, a conclusion that would hardly have seemed controversial for anyone familiar
with the history of the region. Moreover, such a conclusion was a necessary function
for Britain, given its protective obligations with respect to Bahrain and the fact that it
was responding to a request for clarification from an oil company engaged in
commercialnegotiations with Bahrain (see Section 2.3.G.(iv)). Britain had to decide, in
this context, what were the territories of Bahrain and to inform the oil company, and
Bahrain, of its view in this regard. Yet Qatar seeks to transform this routine and
conventionally necessary exchange into a violation of the audiatur rule which must
annul the 1939award.
418. Consider Qatar'sargument:
"The Court will recall that, in that year [1936],Bahrain submitted for the
first time a formal claim to the Hawar islands. The British authorities did
not even inform the Ruler of Qatar that Bahrain had made such a claim.
Instead, and again without informing Qatar, the British Government, on
the advice of its representatives in the Gulf, made a "provisional
decision" in favour of the Bahrain claim to Hawar. They do not even
appear to have informed the Ruler of Qatar in 1936 that they had made
such a "provisional decision." There was not even an appearance of
affording Qatar an opportunity to present its case before the "provisional
decision" was reached in 1936. There could hardly be a more flagrant
case of a failure to observe the fundamental rule of fairness in quasi
judicial procedures. As Qatar has already submitted,the procedures were
S46 QM para. 6.125.
547 QM para. 6.126.
-180- thus fundamentally flawed from the outset by the action taken m
548
1936."
This is a specious argument. What was done in 1936 was proper and lawful as a
discharge of Britain'sobligations. It was not part of the 1939 procedure, which had not
evenbeen conceived at the time. To argue that Britain'sresponse in 1936 was subject to
arbitral standards that applied in 1939 would create a need for international actors to
have perfect clairvoyance, lest acts quite properly performed at the time be annulled
subsequentlybecause later eventsmight dressthem with a quite different appearance.
D. Britain violated no obligation in its assignment of the burden of proof
419. Qatar alleges that Britain's allocation of the burden of proof to Qatar in the
proceedings leading to the 1939decision constituted both a manifestation of bias and a
violation of the audiatur rule. The issue of bias hasbeen dealt with under Sub-Section
B. above. Bahrain will address here only the argument that assignment of burden of
proof violates the audiatur principle.
420. The various documents which Qatar invokes are internal documents in which the
British authorities, in what were in effect the arbitral tribunal's deliberations, expressed
the view, in the course of the proceedings, that the obvious preponderance of evidence
supported Bahrain'sposition. The problem was not that a burden of proof was placed
on Qatar, but that, then and now, Qatar was simply unable to adduce any credible and
non-fraudulent evidence that would show that it was entitled to the Hawar Islands.
421. A tribunal is competent to state where the burden of proof lies. All the
indications of the procedure followed in connection with the 1939 Award are that the
general principle of actori incumbit probatio was applied. None of the authentic
documents which Qatar hasadducedproves the contrary.
548 QM para.6.126.
- 181-422. Members of any tribunal may certainly remark to each other in the course of a
proceeding that one side is not presenting a credible case and may even ask that ·side
specificquestionsto drawits attentionto the problem. They may, in their ownthinking,
take one of the parties'contentions as a hypothesis and test it against the evidence that
has been adduced. To suggest that the careful and deliberate process of evolving a
decision implies a bias or an unfair imposition of the burden of proof is to reveal a
complete misunderstandingof the judicial process. Nor is Qatar'sview supported by
any authority.
E. There were no procedural improprieties with regard to hearings or
witnesses
(i) Oral hearing
423. Qatar argues that "there was no oral hearing and no opportunity to examine or
cross-examinewitnessesas to mattersof fact." 549
424. There is no absolute rule that all litigation must necessarily involve an oral
hearing. Whilst it is true that in contentious cases before the Court normally involve
oral as well as written proceedings,this is not necessarilythe case in advisory opinion
proceedings (see the Rules of the Court, Article 105(2)(c)), even though such
proceedings may often involve points of contention between States. There are,
moreover, other international tribunals - especially the administrative tribunals of
internationalorganisations- which regularlydispensewith oral proceedings. Yet there
has neverbeenany suggestionthat the absenceof suchhearings involves any procedural
irregularityor injustice.
425. Also, as need hardly be said, if Qatar had wished to produce witnesses and
present oral argumentsduring the 1938-1939proceedings,it could have made a request
549 QM para. 6.88.
-182-to do so, but it did not. Reference should be made especially to the letter from the Ruler
of Qatar to the British Political Agent, of 30 March 1939, and the accompanying
comments by the Ruler on the statement made by Bahrain. 550 The latter document
concludeswith the following sentence:
"Now that I have explained my comments and remarks to Your
Excellency as fully as is required by the circumstances of this case, I am
confident that His Majesty's Government will stand impartially in this
matter ...." (Emphasis added.)
426. It is significant that the reproduction of the Ruler's statement in the annexes to
Qatar'sMemorial stops just short of this paragraph 551and thus deprives the Court of the
opportunity of appreciating the extent to which Qatar accepted at the time the propriety
of the proceedingsconducted by Britain.
(ii) Cross-examination of witnesses
427. The same reticence marks the treatment by Qatar of the evidence offered by
Bahrain in the letter of 22 December 1938 from the Adviser to the Government of
Bahrain to the British Political Agent. 552 That letter referred to a petition "signed by the
leading men of Hawar". The petition was attached to the letter. All "the leading men"
were named. Fourteen of them impressed their thumbprints, three of them signed the
petition and two of them attached their seals. Qatar cannot say that it was unaware in
1939 of the petition'sexistence and of the fact that there were then witnesses who were
willing to testify to Bahrain'spresence and authority in the Hawar Islands. Qatar could
have asked to cross-examine them, but it did not do so. It cannot now be heard to
complain that it was given no opportunity of cross-examination.
sso See BM Vol. 5, Ann. 278 and 279.
SSI
See QM, Vol. 7, Ann. III.192, p. 467.
SS2
BM Ann. 274, Vol. 5,p. 1129.
- 183-F. Reasons
428. Lastly, Qatar devotes a section to "the legal significance of the fact that the
British decision of 11 July 1939 was unsupported by reasons." 553 It is, of course, true
that the formal letter from the British Political Resident in the Persian Gulf to the Ruler
of Qatar of that date did no more than communicate the decision of His Majesty's
Government that the Hawar Islands belonged to Bahrain and not to Qatar. But that is
not to say that the decision was reached without reasons. It is important to recall the
detailed assessment of the positions of the parties in the letter of22 April1939 from the
British Political Agent in Bahrain to the British Political Resident in the Persian Gulf, 554
which would certainly have sufficed as a statement of reasons had it, or its contents,
been made known to the Ruler of Qatar. The fact that it has since become known to
Qatar (as its reproduction in the Qatar Annexes shows) renders Qatar'sobjection to the
summarynature of the letter of 11July 1939formalistic.
429. In any event, it is necessary to take into account in this connection the fact that
the 1939 decision belonged to the special genre of arbitrations conducted by Heads of
State and Government. Whentwo governments selected as their arbitrator the head of a
foreign government, it was not unexpected, in the relevant period, that elaborate
juridical reasons would not be delivered with the Award. Thus, we fmd in the boundary
case between Bolivia and Peru in 1909, an award by the President of the Argentine
555
Republic of one-half a page. The award of Victor-Emmanuel III, the King ofltaly, in
the Guiana Boundary case was two and one-half pages long. 556 The award in the
Barotseland Boundary case was also two and one-half pages long. 557 The Cordillera
553 QM para. 6.I41.
554 QM Ann. III.I95, Vol. 7, p. 499.
555
Boundary Case Between Bolivia and Peru (Bol. v. Peru) II U.N. R.I.A.A. I33 (1909).
556 The Guiana Boundary Case (Braz. v. Great Britain) 11 U.N. R.I.A.A. 11 (1904).
557 The Barotseland Boundary Case (Great Britain v. Portugal) 11 U.N. R.I.A.A. 59 (1905).
-184-case between Argentina and Chile, which was decided by Edward VII, was one and
one-halfpages long; the report of the Tribunal he appointed was five pages long. 558
430. Finally, it should be emphasisedthat Qatar did not, until the present proceedings,
invoke the lack of reasons as a ground for challenging the validity of the 1939 decision.
When the Ruler of Qatar, in his letter of 4 August 1939 to the British Political Resident
in the Persian Gulf, 559complained of the decision and reserved his rights to the Hawar
Islands, he did not challenge ,the validity of the decision on the grounds of any
insufficiency of reasons. His position in his letter of 18 November 1939 560was the
same. The fact that the complaint about the lack of reasons has not been made until a
time when the reasons have become available only serves to emphasise the formality
and lack of substancein Qatar'scontention; Qatar'scomplaint was not that there were no
reasons, but that it did not like them.
431. It is at this point appropriate to return to a matter to which brief reference was
made at the beginning of this Chapter (see paragraphs 371 and 372), namely, the
possibility that Qatar may contend that the 1939 decision is not an arbitral or quasi
judicial decision, but is, rather, some kind of a political decision. As already indicated,
Bahrain does not consider that it is appropriate at this stage of the case to enter into
discussion of a possibility which has not been expressly developed by Qatar. However,
Bahrain reserves the right, should the matter ever become an issue in the case, to
contend that ifthe 1939decision is regarded as not being arbitral or quasi-judicial, then
it is a valid and authoritative political decision to which the requiiement of a "reasoned"
judgment does not apply.
sss The Cordillera of the Andes Boundary Case (Argentina v. Chile) 9 U.N. R.I.A.A. 29 (1902).
SS9 QM Ann. III.211, Vol. p.50.
S60
QM Ann. III.213, Vol. p.62.
- 185-SECTION3.6 The 1939 Award isconfirmation of a settled state of affairs
432. The 1939 Award confirmed that Bahrain's sovereignty over the Hawar Islands
was already a settled state of affairs by 1938. Bahrain believes it appropriate to recall
the principle stated in the Grisbadama case:
"dans le droit des gens, c'estun principe bien etabli, qu'ilfaut s'abstenir
autant que possible de modifier l'etatdes choses existant de fait et depuis
longtemps." 561
"[It is a settled principle of the law of nations that a state of things which
actually exists andhas existed for a long time should be changed as little
as possible.]"
In the Temple of Preah Vihear Judgment, then Vice-President Alfaro in a separate
opinion observed:
"A State bound by a certain treaty to another State must rest in the
security that a harmonious and undisturbed exercise of the rights of each
party and a faithful discharge of reciprocal obligations denote a mutually
562
satisfactory state of things which is permanent in character.... "
433. This clear policy is pertinent to the issue of the Hawar Islands. Long before the
1939 Award and continuously since then, Bahrain has remained in full possession of,
and has exercised full sovereignty over, the Hawar Islands to the degree required by
their physical character. Respect for the Grisbadarna principle is even more compelling
when, as here, it may be demonstrated that the decision was eminently well-founded in
substance, as Bahrain has shown in Chapter 2.
561
Affaire des Grisbadarna II U.N. R.I.A.A. (I909) I53, I61.
562 Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand), (Judgment of I5 June
I962), I.C.J. Rep. I962, atp. 42.
-186-SECTION3.7 The special status of decisions establishing boundaries
434. The norm of stability and finality of boundaries is so important to the
international system that it may legitimately be considered to have a special status.
Considering that the relevant stakes are so often measured in life-or-death terms, this is
hardly unwarranted. The rule is that if States have resolved a border dispute through
some form of legally cognisable process, it must be presumed that the dispute is
resolved and the border permanent. Henceforth, it "runs with the land." The special
status of this norm is reflected in the Vienna Convention, Art. 62(2)(a) of which
provides that the concept ofrebus sic stantibus does not apply to boundary treaties. In
the present case, a disturbance of the 1939 Award, now almost 60 years old, could open
a veritable Pandora's Box as other Gulf States might be incited to revive ancient - but
not forgotten - quarrels. This would raise a spectre of incalculable danger, because
there is hardly a single border in the region which someone does not consider iniquitous.
The Court has itself reaffirmed "the fundamental principle of the stability of
563
boundaries."
435. Bahrain's position is moreover reinforced by the principle of uti possedetis,
which holds that countries emerging from colonial rule into independence accept
existing colonial borders as inviolable. In the case of Bahrain and Qatar, the analysis is
simplified by the fact that both countries were protectorates of Britain, and both acceded
to full independence in 1971. At that moment, Britain's position was clear and long
established: the Hawar Islands belonged to Bahrain, as acknowledged in the 1938-1939
564
arbitration and reflected on maps issued by the British Government since then.
436. In sum, at the time of independence the issue of the Hawar Islands was closed.
563 Libya/Chad, ICJ Rep. 1994 at 37, para. 72, and the authorities there cited.
S64
See, e.g., 1972 UK Ministry ofDefence map, between BM pp. 163-164.
-187- 437. The International Court of Justice recognised in Frontier Dispute (Burkina
Faso/Mali) that uti possedetis is a "general principle" and a "rule of general scope" in
the case of decolonisation. 565 Inthe Cairo Declarationof 1964,the member States of the
Organisation of African Unity undertook "to respect the frontiers existing on their
achievement of independence." 56•
438. The focus of those who have reservations about the general contemporary
applicability of the uti possedetis principle is that one should avoid "drawing borders so
that individualswill not simply be part of an oppressedminority in a new state." 567 That
concern would only arise if the Hawar Islands were taken from Bahrain and given to
Qatar. The residents of the Hawar Islands have long formed a heterogeneous group of
Bahrainis, integrated in Bahrain. There is no minority group. Qatar has not sought to
showthe contrary. It cannot.
SECTION 3.8 Qatar claims falsely to have maintained its challenge to the
BritishAward since 1939
439. Qatar'sMemorial claimsthat Qatar maintainedits challenge to the British Award
568
continuously since 1939. This claim is not true.
440. A close reading of Qatar'sMemorial reveals that Qatar itself counts a total of
only six protests made by Qatar to the British Award of 1939. 569 Of these, three were
565 Frontier Dispute (Burkina Faso/Mali), ICJ Rep. 1986, p. 565.
. 566
O.A.U. Resolution on Border Disputes, AGHIRES.16(I).
56.7 See, e.g. S. Ratner, "Drawing a Better Line:Uti possedetisand the Borders of New States,"
(1996), 90 AJIL 590 at 612.
568
QM paras. 6.239-6.243.
569 August 1939, November 1939, June 1940, July 1946, February 1948 and April1965. Paragraph
6.245 of Qatar'sMemorial makes vague and unsubstantiated reference to "further protests" from
the two Rulers in the early 1950s. Bahrain is uncertain to what this refers.
- 188-made within the first year following the Award. Of the remaining three, two were made
during 1946-1948 as part of Qatari responses to British inquiries related to the 1947
British maritime delimitation. The final protest noted by Qatar was in 1965, again in
response to British inquiries related to the maritime delimitation.
441. Thus, after 1940, Qatar was silent about the Award and the Hawar Islands for 7
years and after 1948 for a further 17 years. During the 25 years between 1940 and 1965
-by Qatar's own account- Qatar made three protests against the Award. This can
570
hardly been viewed as constituting "continuous protests" against the Award that
"repeatedly asked for its reconsideration",m as alleged in Qatar's Memorial. Qatar has
attempted to downplay its failure to protest against the Award by commenting that the
matter "became rather more quiescent in the 1950s." 572 However, a more convincing
explanation can be found in the Report on Qatar from the British Political Agency dated
5 December 1939:
"The Shaikh of Qatar is protesting to the British Govt. against their
decision that Hawar belongs to Bahrain. As regards an early delimitation
of a boundary the Ruler [of Qatar] takes the somewhat "naive" view that
as Hawar belongs to Qatar the point cannot arise.
The Ruler [of Qatar]'sreal conviction is that he must ultimately abide by
the decision ofH.M.G." 573(Emphasis added)
442. Qatar claims that its 1965 protest over the Hawar Islands and the 193-9Award
which led directly to the present dispute between the Parties over the Hawar Islands -
arose from a sincere belief, held by Qatar since 1939, that the British Award was faulty.
Bahrain repeats that Qatar's 1965 claim was nothing more than a tactical counter to
570 QM para. 6.243.
571 QM para. 6.243.
572
QM para. 6.246.
573 Report on Qatar, British Political Agency, 5 December 1939. BM Ann. 292, Vol. 5, pp. 1190-
1194.
- 189-Bahrain'scontinuing claim to the Zubarah Region. This is demonstrated through the
statementsof the Ruler of Qatar himself:
1) From 1948until1965, Qatarvoiced no interest in the Hawar Islands or the 1938-
1939British arbitration,
2) In February 1961, shortly before the revival of Qatar'sclaim, the Ruler of Qatar
informed the British Political Resident that "he did not contest our (the British)
decisionon Hawar"· 574and
'
3) Later in 1961, the Ruler of Qatar changed his position and told the British
Political Agent that "if the (Ruler of Bahrain) persisted in pursuing his claim to
Zubarahe for his part would raisethe questionofHawar Island." 575
443. Thus, Qatar's current claim to the Hawar Islands is properly understood as a
tactical response to Bahrain'sgenuine and continuous claim to the Zubarah Region (see
Section 2.14 of Bahrain'sMemorial and Chapter 4 below). The use by Qatar of forged
documentsas virtually its only evidence to support its claim in the case currently before
the Court is in this light entirely consistent with wl)«tthe Ruler of Qatar'sthreats in his
discussionwith the British Political Agent in 1961.
574 See BM para. 501.
575
See BM para. 502.
- 190- CHAPTER4
BAHRAIN'S RIGHT TO SOVEREIGNTY OVER THE ZUBARAH REGION
REMAINS INTACT
444. Qatar'sMemorial rejects Bahrain'sclaim to sovereignty over the Zubarah Region
on both factual and legal grounds. On the one hand, Qatar asserts that since the time of
the 1868 agreements "which formally recognised the separation between Qatar and
Bahrain ... Qatar has had full control" and sovereignty over Zubarah. 576 On the other
hand, Qatar argues that Zubarah's incorporation into Qatar was "repeatedly and
explicitlyconfirmed by the Turks and the British from the 1870s" and that Bahrain itself
had "on many occasions recognised Qatar'ssovereignty over Zubarah ... " and for many
years has "made no mention of any claim that it might have had to Zubarah." 577
445. As has been seen in Chapter 2, Qatar's contention to the effect that its
"statehood" was recognised in 1868 is a gross rewriting of history, and its allegation of
full control and sovereignty over Zubarah is flatly contradicted by the historical record.
Itis unnecessaryto repeat that demonstration here.
446. For present purposes, it is sufficient to stress that Qatar is not in lawful
possession of Zubarah, and that Bahrain has never abandoned its right, nor lost it by any
legalprocess.
576
QM para. 8.58.
577
QM para. 8.59.
- 191-SECTION 4.1 In accordance with a legal principle explicitly acknowledged by
Qatar itself, Bahrain's sovereignty over Zubarah was not lost in
1937
447. The circumstances of Qatar'sarmed attack on Zubarah in 1937 were related in
Bahrain'sMemorial (Section 2.13).
448. Bahrain notes with approval the endorsement m Qatar's Memorial of the
principlethat:
"aggression and hostile occupation is clearly unsupportable m
international law and would have no basis in law. As stated m
Oppenheim:
'The principle ex iniuria ius non oritur is well established in
international law, and according to it acts which are contrary to
international law cannot become a source of legal rights for a
wrongdoer.'
In support of this proposition, the learned authors point out that 'TheICJ
has repeatedly held that a unilateral act which is not in accordance with
law cannot confer upon a State a legal right'."(Footnotesomitted.)
449. This is consistent with Bahrain'sargument, at Section 5.1 of its Memorial, that
Qatar'sarmed conquest did not enable Qatar to acquire lawful title to the Zubarah
Region. Zubarah therefore lawfully remains under Bahrain'ssovereignty.
SECTION 4.2 Bahrain has never acquiesced in Qatar's conquest of Zubarah,
nor has Qatar's claim to sovereignty ever been acknowledged
by a binding decision
450. Bahrain has been persistent in its efforts to have its grievance heard.
Notwithstandingthis, Bahrain'ssovereign rights in the Zubarah Region have never been
578
QM para. 5.59.
- 192-adjudicated. Bahrain reiterates its submission that the Court should repair the illegality
that Qatar committed in 1937.
451. The history of Bahrain's unsuccessfulattempts to reverse the effects of Qatar's
use of armed force against Bahrain in the Zubarah Region in 1937 is summarised in
Bahrain'sMemorial at Section 2.14. That pleading noted no fewer than 24 officially
recorded protests and claims in relation to the Zubarah Region made by Bahrain to
Britain and Qatar between 1937and 1961. 579 These included:
the 6 July 1937 protest by Bahrain to Britain against the Al-Thani attack on
Zubarah and the Naim-led tribal Confederation;
Bahrain's embargo of Qatar from 1937-1944 in protest against Qatar's 1937
armed attack;
further protests and sovereignty claims by Bahrainto Britain during 1939;
Bahrain'sparticipation in the mediation of the Zubarah dispute by Britain during
1943-1944 in response to Bahrain'srepeated protests and claims;
Bahrain's signature of the ultimately unsuccessful 1944 Bahrain-Qatar
Agreement on the ZubarahRegion;
negotiations with Qatar from 1944-1946 regarding the implementation of the
1944 Agreement andthe Zubarah dispute itself;
Bahrain's repeated sovereignty claims to Zubarah to Britain and Qatar during
1944-1945;
protests and sovereignty claims made by Bahrain in 1946, 1947, and 1948 in
relation to Zubarah;
Bahrain's direct overtures to the British Government on the Zubarah issue
through its London lawyerin 1948;
Bahrain'sdirect communications to the British Foreign Minister on the Zubarah
issue in 1948;
Bahrain'srepeated protests and claims prompted Britain to try to mediate another
solution with Qatar from 1949-1950;
579
See BM paras. 295-336.
- 193- the unsuccessful 1950Bahrain-Qataroral agreementon the status of Zubarah;
Bahrain's 1950protest over Qatar'sbreach of the 1950oral agreement;
Bahrain'sinstigation of further British involvement in the dispute in 1952;
Bahrain'sMarch 1953protest against Qatar'sactivities in Zubarah;
the June 1953 claim presented by Bahrain to the British Minister of State for the
Foreign Office;
Bahrain's protest and assertion of sovereignty m relation to Zubarah in
November 1953;
Bahrain'sclaim to Zubarah in January 1954;
Bahrain'sparticipation in April 1954 in a meeting on the Zubarah issue between
the Ruler of Bahrain and the British Political Resident;
Bahrain'sparticipation in the unsuccessful British mediationf May 1954;
Bahrain'sclaim to Zubarah in May 1957;
Bahrain's.continuous reference to and pressing its claim toZubarah from 1957-
1960, as officially recognised by Britain;
Bahrain's continued claim against Zubarah m the context of the seabed
discussions that started in 1960;and
Bahrain'sclaim to Zubarah in 1961.
452. Thus, in the period following the attack on Zubarah in 1937 and prior to the
independence of Bahrain and Qatar in 1971, Bahrain repeatedly attempted to bring the
matter before the British Government but was repeatedly rebuffed. Qatar's quickly
abating objection to the 1939 Hawar Islands Award (see Section 3.8 above) contrasts
sharply with Bahrain'sefforts to have its rights to the Zubarah Region restored - rights
which have never been taken from Bahrain by any legal process. Britain's
unsympathetic attitude seems to have had geopolitical motives, in the sense that
Britain's officials feared that the re-establishment of Bahrain's authority in Zubarah
could be disruptive. Whatever the merits of this reasoning, or of such other
- 194-considerations as may have underlain the refusal to hear Bahrain's complaint, 580they
were not legal in nature. Britain did not reject Bahrain's claims, but refused to hear
them.
453. Bahrain has maintained its position in relation to the Zubarah Region during the
mediation ofH.H. The King of Saudi Arabia. The Courtwill recall Bahrain'sinsistence,
in the face of Qatar'sopposition,that sovereignty over Zubarahbe included as one of the
issues in the present case.
454. Bahrain's sovereignty over Zubarah could not have been lost by Qatar's armed
attack in 1937. Nothing has happened since then to effect a change of sovereignty in
favour of Qatar.
580 The British Government had approved the Qatari Oil Concession of 1935 granted to a British
led consortium, PCL (see BM paras. 240-247). The territory included in the concession
agreement was not defmedwith any degree of precision. It was described as [North ofthe line,
which includesthe islandsof Bahrain, the Qatar peninsula,parts ofHasa]. See Section 2.3.G for
a discussion of Britain'sinterest in having as much territory included within "Qatar" for this
reason.
- 195- ........
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LEGEND:
:::;::Bahrainpearlingbank
::::::. Other pearlingbank PART II- THE MARITIME DELIMITATION
455. Bahrain's position concerning the maritime delimitation is set out in Part Two of
Bahrain's Memorial. 581 The maritime boundary proposed by Bahrain is shown on Map
1.582 Nothing in Qatar's Memorial 583has led Bahrain to alter its position in any respect.
For this reason, Bahrain considers it unnecessary to repeat its position here. In this Part
of the Counter-Memorial, Bahrain will limit itself to a critical analysis of the arguments
relating to maritime delimitation contained in Qatar's Memorial and to a demonstration
that the maritime boundary claimed by Qatar is fundamentally inconsistent with the
international legal principles and rules pertaining to maritime delimitation.
456. The Parties' Memorials reveal a number of points - some extremely significant -
on which the Parties agree. In order to avoid unnecessary debate, Bahrain considers it
important to identify these points and to define, with respect to each, the precise extent
ofthe Parties' agreement. This is the purpose of Chapter 5 ofthis Part. In the following
Chapters, Bahrain will present its critical analysis of Qatar's arguments and claims in
relation to the maritime delimitation.
581 BM pp. 245-305.
582
Evidence which has recently come into Bahrain'spossession demonstrates that the six pearling
banks of Abu Haqul, AI Waadi, Hayr Abu Ath Thama, Naywah AI Amari AI Shamaliyah,
Shiquita, and Shutayah, which were previously believed to belong to Saudi Arabia, in fact
belong to Bahrain. The names of these pearling banks are accordingly shown in red on Ma1
and all other relevant maps in this Counter-Memorial. This new evidence does not affect the
location of the maritime boundary betweenBahrain and Qatar claimed by Bahrain.
583 QM pp. 209-306.
-196-SECTION5.4 The delimitation is to be effected according to the
contemporary law of maritime delimitation
464. The Parties agree that, since neither the 1958 Geneva Conventions nor the 1982
Convention is in force as between them, the maritime delimitation must be effected
according to the principles and rules of customary international law, as found in the
practice of States, in decisions of the International Court of Justice and of international
arbitraltribunals, and in those provisions of the 1958Geneva Conventions and the 1982
Conventionwhich express rules of customary law.
465. Bahrain and Qatar also agree that the delimitation should be effected in
accordance with contemporary customary international law, and not as it may have
existed at given moments in the past. Qatar's Memorial states that the maritime
boundary should be determined "under present international law". 591Bahrain agrees. 598
In the light of the considerable and rapid changes relating to the law of the sea which
have taken place in recent decades, the Parties' agreement on this point is extremely
important: the maritime boundary must be delimited in accordance with contemporary
concepts, a contemporary vocabulary and contemporary rules, and not in accordance
with those of the past.
466. Finally, theParties agree as to the substantive content of the applicable law.
467. In the southern sector, where the delimitation to be effected is one between two
territorial seas, the Parties agree that the applicable law is to be found in the customary
rule which is set out in Article 15of the 1982 Convention, and which was previously set
out in Article 12 of the 1958 Geneva Convention on the Territorial Sea and the
Contiguous Zone. 599This rule provides that the delimitation exercise should be effected
597
QM para. 11.2. See QM paras. 11.18, 11.36, 12.16.
598 BM para. 563.
599 BM para. 609; QM para. 11.36.
-200-in two stages. The starting point should be the equidistance line, which should then be
adjusted, if necessary, in the light of whatever special circumstances or historic rights
mightobtain. 600
468. The Parties also seem to agree that the low-tide elevations in the disputed area
are susceptible to appropriation and are subject to the sovereignty of one or the other.
The Parties disagree, however, with respect to the question of which of them has
sovereigntyovertwo of the low-tideelevations, Fasht ad Dibal and Qit'atJaradah.
469. As to the northern sector, where the maritime boundary will separate the two
States' respective continental shelves and superjacent waters, the Parties agree that
whether one is concerned with delimiting continental shelves, fishing zones, exclusive
economic zones or a single maritime boundary, and whether the relevant coasts are
opposite or adjacent, a solution should be found which is equitable in the light of the
601
legally relevant factors in each given situation. This is accomplished by taking the
equidistance line as a starting point and adjusting it if legally relevant factors require
thisin orderto achievean equitableresult.
470. The Partiesthus agreethat three legal formulationsare essentially identical:first,
the rule in Article 15 of the 1982 Convention governing territorial sea delimitations
either as a treaty rule or as a customary law rule; second, the equidistance-special
circumstances rule in Article 6 of the 1958 Convention governing continental shelf
delimitations as a conventional rule; and, third, the customary rule of delimitation
accordingto equitable principlesgoverning all other delimitations (i.e.continentalshelf
delimitationsnot governed by the 1958 Convention, fishing zone or exclusiveeconomic
zonedelimitations,or delimitations of a single maritime boundary).
600 BM paras. 609-614; QM para. 11.37.
601 BM paras. 610 and 650; QM paras. 11.41, 12.13, 12.16.
-201-471. There is, thus, no disagreement between the Parties as to the character or the
substance of the law governing the delimitation which they have asked the Court to
effect.
SECTION 5.5 The impact of the supervening factor created by the extension
of the Parties' respective territorial seas to 12 nautical miles
472. Qatar insists that a "new situation", a "new legal situation", has been created by
the extension of the Parties' respective territorial seas from 3 to 12 nautical miles in
1992and 1993. 602On 8 July 1991, when the present proceedings were initiated, each of
the Parties possessed a territorial sea of 3 nautical miles, so that the two States'
territorial seas did not overlap and, as a result, there was an area of high seas and
continental shelf between their respective outermost limits. Qatar extended its territorial
sea to 12 nautical miles in 1992, while Bahrain did the same in 1993. This, so Qatar
emphasises, has created a new and significantly different situation. In addition, Qatar
points out that the situation of Fasht ad Dibal and of Qit'at Jaradah has changed
significantly. Formerly, each of these maritime features was situated outside the
territorial sea of either Party. Qit'atJaradah is now situated within the area of overlap of
the Parties' respective territorial seas, while Fasht ad Dibal is situated partly within
603
Qatar'sterritorial sea. It is "within the context of this situation", "in the light of that
situation", according to Qatar, that the delimitation is to be effected.604
473. Bahrain rejects Qatar's basic assumptions that (i) the maritime delimitation
should ignore the islands and other maritime features situated between the main island
of Bahrain and Qatar, and (ii) Qatar has sovereignty over the Hawar Islands and
602 QM paras. 11.3, 11.5-11.12.
603 QM paras. 11.10-11.11.
604 QM paras. 11.3 and 11.12.
-202-Zubarah. That aside, the extension of the Parties'respective territorial seas from 3 to 12
605
nautical miles certainly cannot be overlooked. As will be seen later, prior to the
extension of the Parties' respective territorial seas - accepting Qatar's basic assumptions
for the purposes of argument - the respective territorial seas did not overlap. The
relevant part of the British line of 1947 lay completely between the outer limits of the
Parties' respective territorial seas, i.e., not within the territorial seaeither, as did also
the median line between the main island of Bahrain and the Qatari coast. Today, by
contrast - still accepting Qatar's basic assumptions for the purposes of argument - both
the 1947 line and the median line between the main island of Bahrain and the Qatari
coast pass through the area of overlap of the Parties'territorial seas, i.e., through Qatar's
territorial sea as well as through what Qatar considers to be Bahrain'sterritorial sea.
SECTION5.6 .The British line of 1947 is not the maritime boundary
474. Qatar does not ask the Court to decide that the line defined in the letters written
by the British Political Agent on 23 December 1947 "is to be automatically regarded as
the boundary line." Qatar limits itself to asking the Court to define the boundary "with
due regard to" this line.606 Bahrain is pleased to note Qatar's explicit recognition of the
fact that the British 1947 line formed part of a historical context which is now
superseded, and hence that the 1947 line cannot be considered to be the maritime
boundary in the context of the contemporary law of maritime delimitation.
SECTION 5.7 The two major points of disagreement
475. It thus appears that the Parties concur on a number of significant points. On two
major points, however, they manifestly disagree.
605 See infraparas. 582et seq.
606
QM paras. 11.19-11.20.
-203-476. First, Qatar's maritime claim is founded upon the proposition that there is a
physical and legal vacuum between the main island of Bahrain and the coast of Qatar -
with the exception of the Hawar Islands, Fasht ad Dibal and Qit'at Jaradah, over all of
which Qatar claims sovereignty. This postulate is both factually and legally erroneous.
It is factually erroneous because the area between the two "mainland coasts" contains,
not the nothingness which Qatar assumes, but numerous islands and other features
whose existence cannot be negated by the stroke of a pen. Qatar'sproposition is legally
erroneous because itfails to recognise the essentially insular and archipelagic character
ofthe State ofBahrain.
477. Secondly, while Qatar agrees with Bahrain that the 1947 line does not govern
and is not the maritime boundary, Qatar still tries to slip the 1947 line in through the
back door by asking that some legal effect be given to it as a special or relevant
circumstance. Qatar goes so far as to maintain that it is only to the north of the point
BLV (i.e.,beyond the northernmost limit of the 1947 line) that the Court is required to
effect a de novo delimitation. 607 To the south of this point (i.e., where the 1947 line
exists), Qatar alleges, "it cannot be said that the Court is faced with a purely de novo
maritime delimitation." 608 In Bahrain's view, the 1947 line is completely irrelevant in
the context of contemporary international law and has no role to play in the delimitation
of the single maritime boundarythe Court is requested to effect.
478. Accordingly, Chapters 6 and 7 will refute:
the proposition, basic to Qatar'sentire argument, that the delimitation is
to be effected on the basis of the fiction that a physical and legal vacuum
lies between the main island of Bahrain and the coast of Qatar (with the
607 QM paras. 12.4-12.5.
608 QM para. 11.2.
-204- exception of the Hawar Islands, Fasht ad Dibal and Qit'at Jaradah, over
allof which Qatar unjustifiably claims sovereignty); and
the weight which Qatar unjustifiably and inconsistently gives to the
British 1947 line.
Finally, having examined critically the foundations upon which Qatar's claim is based,
Bahrain proposes, in Chapter 8, to demonstrate that the maritime boundary which Qatar
claims manifestly fails to comply with the requirements of contemporary international
law.
-205- CHAPTER6
QATAR'S CLAIM RESTS ON THE FICTION OF A GEOGRAPHICAL AND
LEGAL VACUUM BETWEEN THE COAST OF BAHRAIN'S MAIN ISLAND
AND THE QATARI PENINSULA, DISREGARDING THE INSULAR AND
ARCIDPELAGIC NATURE OF BAHRAIN
479. According to Qatar, the maritime delimitation must use as a starting point a
median line "drawn by taking exclusively into consideration the two main opposite
coasts, without regard to the numerous particular features existing in the area". 609 Qatar
subsequently reaffirms this proposition, stating that for the purpose of comparing the
Parties'respective coastal lengths, "no account will be taken either of islands and islets
or of low-tide elevations". 610 Later still, for the purposes of defining the imaginary line
separating the southern and northern sectors and, hence, determining the starting point
for the delimitation it claims in the northern sector, Qatar restates "the position ...
always taken in the present Memorial, that no account should be taken of islands, islets,
rocks and low-tide elevations in drawing the dividing line." 611 Qatar'sclaim, then, is for
a delimitation between the main island of Bahrain and the Qatari coast which does not
take into account and completely ignores the presence of the numerous insular and other
features lying between these two coasts. 612
609 QM para. 11.37.
610
QM para. 12.31.
611 QM para. 12.63.
612 The only maritime features mentionednQatar'sMemorial are the Hawar Islands, Fasht ad Dibal
and Qit'at Jaradah. The Hawar Islands have been discussein this Counter-Memorial at para.
473, supra. Fasht ad Dibal and Qit'atJaradah will be discussed at paras. 502 et seq., infra.
-206-480. Qatar is well aware of the geographical reality, as is evidenced by the
613
geographical description which appears at the beginning of Qatar'sMemorial. Qatar
refers to Lorimer's well-known Gazetteer, whose volume II, published in 1908-1915,
"described the group of islands that formed the sheikhdom of Bahrain as follows: '...
taken all together these form a compact group almost in the middle of the gulf.... "'4
Lorimer'sdescription was in fact more explicit than Qatar'sbrief citation leads one to
believe:
"Extent and importance.- 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.
Connected with the sovereignty of Bahrain, or possibly appertaining to
the Shaikh as hereditary personal property, are certain ill-defmed rights
upon the mainland of Qatar, at present (1905) under discussion.
Whatever the nature or extent of these rights our attention will be
confined, in the present article, to the undisputed insular possessions of
the Shaikh."
Lorimer refers to the "islands of the archipelago" and to the "Bahrain Islands", and
describes the coasts "of Bahrain Island, as also of the other Islands of the group". 615
These references, and particularly the trouble taken by Lorimer to distinguish between
the main island of Bahrain and the other islands of the group, show beyond any doubt
that Lorimer was awake to the insular and archipelagic character of the group which,
together with the Zubarah Region, formed the Emirate of Bahrain, and today constitutes
the State of Bahrain.
613 QMpara.2.10.
614
Ibid. (Emphasisaddedin Qatar'sMemorial.)
615
Lorimer,Gazetteer. QM Ann. 11.3,Vol. 3,p. 88.
-207-481. More recently, this point of view was expressed in the Persian Gulf Pilot (1982-
1994),to which Qatar'sMemorialalso refers:
"AI Bahrayn... or Bahrain is an island about 27 miles in length from
North to South, with a breadth of about 8 miles for most of its length...;
together with a number of small islands and islets lying close to its
616
shores,they formthe independentSovereignStateofBahrain".
482. Qatar also states that the name "Bahrain"has been used to refer in some cases to
the main island, formerly known as "Awal", and in other cases to the three principal
islands (Bahrain, Muharraq and Sitrah). 617 In reality, as the above-cited passages from
Lorimer and from the Persian Gulf Pilot demonstrate,the name "Bahrain" is employed
to refer to the group or archipelago which (together with the Zubarah Region)
constitutes the State of Bahrain.
483. These references tothe Gazetteerand to the Pilot 618show clearly that the drafters
of Qatar's Memorialare well aware of the special characterof the State of Bahrain as an
insular and archipelagic ensemble which cannot be reduced, by a play on the dual
reference ofthe name "Bahrain",to one of its components. It is, therefore, all the more
surprising that two pages later, when describing the maritime area to be delimited,
Qatar's Memorial completely changes its approach. There is now no mention of a
"group of islands" or of an "archipelago";nor of any distinction between the use of the
name "Bahrain" to refer to the entire State and its use to refer to a component of the
entire State. As if by magic, "Bahrain" no longer refers to the multi-island State of
616
Persian Gulf Pilot, published by The Hydrographer of the Navy, Twelfth Edition, 1982 as
correctedto 24September 1994by SupplementNo. 6-1994. QM Ann. Il.l, Vol. 3, p. 37.
617 QM para. 2.10.
618 Elsewhere in its Memorial (QM para. 11.37), Qatar refers to a report of 1948 by Boggs and
Kennedy in which these eminent geographers propose seabed boundaries for the Arabian Gulf
which take into account only the technical aspects of the problem Ann. IV.127, Vol. 10,
pp. 123-154). They characterise "Bahrain as a political entity (which includes, in addition to
Bahrain Island, the Hawar Islands, Muharraq Island, and numerous islets, reefs and shoal
areas)." (p. 133)
-208-Bahrain. Now it refers only to its main island. Qatar's play on words mistakes the part
for the whole, rather as if, in the course of determining the boundaries of the state of
New York, one were to refer only to the boundaries of the city of New York on the
ground that the two entities share a common name. When Qatar defines the area to be
delimited as the area "between the east coast of Bahrain and the west coast of Qatar", or
"between the coasts of Qatar and Bahrain", 619the contrived ambiguity leaps at the
reader. This superficially nominalist approach echoes the approach taken in Qatar's
Memorial to the territorial issues in dispute.
484. As to the other legally relevant components of the archipelago, Qatar makes a
systematic attempt to minimise them. Thus, for example, when describing the main
geographic features in the relevant area, Qatar's Memorial states rather dismissively that
there are some "small islets, rocks and sand-banks." 620 It also refers to "islets", "rocks",
"reefs", and "shoals". 621 Clearly, Qatar would like the Court to overlook the
archipelago's numerous islands within the meaning of Article 121(1) of the 1982
Convention. Some (e.g.,AI Mu'tarid and Umm Jalid) are not even mentioned. Others
(e.g.,Halat Noon and Mashtan) are referred to by the pejorative term "islets" -a term
devoid of legal meaning, since an island is an island in international law regardless of its
size. Qatar attempts to minimise the significance not only of islands, but also of low
tide elevations, which also enjoy an important legal status in contemporary customary
international law. Thalib (Tighaylib) and Fasht AI 'Azm are described as "reefs",
whereas they are in fact low-tide elevations. Jabbari is referred to as a "rock", whereas
it is in fact an island. Other low-tide elevations, such as Fasht Bu Thur and Qita'a el
Erge, are simply ignored.
619
QM paras. 9.2 and 9.8.
620 QM para.10.17.
621 QM para.9.9.
-209-485. Having ignored, minimised, or reduced to factual insignificance the numerous
features lying between the main island of Bahrain and Qatar, Qatar proceeds to deny
them any legal relevance whateverby proposing to effect the delimitation as if they did
not exist. The unstated assumption is that the purpose of the delimitation is to
determine the boundary, not between the State of Bahrain and the State of Qatar, but
betweenthe largestisland ofthe State ofBahrain and the State of Qatar. Qatar assumes,
in other words, that the Stateof Bahrain may be treated as if it were no more than its
main island.
486. Qatar's calculated obliviousness to the political and geographical realities
requires it to fabricate a justification. Qatar'spurportedjustification is to be found in a
few linesof paragraph 11.37of Qatar'sMemorial:
"... a provisional median line has to be drawn by taking exclusively into
consideration the two main opposite coasts, without regard to the
numerous particular features existing in the area, because most of those
features do not qualify as islands generating their own maritime zone.
Those features can be regarded as 'unusual features' which are to be
neglectedor disregardedfor delimitationpurposes."
Qatar goes on to claim that this method is consistent with State practice in the Gulf
region, citing the Bahrain/Saudi Arabia Delimitation Agreement of 1958 and the
Iran/QatarDelimitationAgreement of 1969.
487. Few words need be wasted on Qatar'sattempt to justify its method by reference
to allegedStatepracticein the Gulfregion. The agreementswhich Qatar cites date from
a period when neither the concepts of islands and low-tide elevations nor their legal
regime had been defmed with precision in customary international law. The
development of the modem law of maritime delimitation had scarcely begun.
Moreover, the widely different solutions adopted by States in the context of freely
negotiated agreements do not necessarily reflect legal principles. As the Court has
stated on many occasions, while there is no legal limit to the considerations which
States may take into account when negotiating delimitation agreements, only certain
-210-considerations may be taken into account when a tribunal is called upon to effect a
delimitation on the basis of law. 622 Indeed, the Court hasheld that the fact that a State
has adopted a given method of delimitation vis-a-visanother State by agreement may
not be invoked against that State in the context of another delimitation. 623
Consequently, the fact that islands or low-tide elevations may or may not have been
taken into account in one or another of the delimitation agreements concluded between
coastal States of the Gulf cannot determine the rules governing the present delimitation.
This is all the more so because the present case hascharacteristics which distinguish it
~
from all the other delimitation agreements concluded between Gulf States. The present
delimitation is not a continental shelf delimitation but a delimitation of a single
maritime boundary. The contemporary law of maritime delimitation, which the Parties
agree applies here, has evolved considerably in the course of recent years. Most
important, the present case is not one where somewhat insignificant features situated
near the mainland coastline of one of the Parties could displace what would otherwise
be an equitable boundary, but one concerning islands and other features which, together
with the Zubarah Region, constitute integral parts of the insular and archipelagic State
of Bahrain.
488. The other considerations which Qatar sets out in this most important passage at
paragraph 11.37 of its Memorial merit a more detailed examination. Bahrain will
demonstrate (a) that the concept of "main coasts" has been expressly rejected by
international jurisprudence; (b) that Qatar'stheory of "features which do not qualify as
622 See North Sea Continental Shelf, I.C.J. Reports 1969, p. 50, para. 93; Continental Shelf
(Libya/Malta), I.C.J Reports 1985, p. 40, para. 48; Delimitation ofthe Maritime Boundary in the
Area between Greenland and Jan Mayen, I.C.J Reports 1993, p. 63, para. 57. In relation to the
extreme diversityof the solutions adopted by agreement among States, see D.W. Bowett,
"Islands, Rocks, Reefs and Low Tide Elevations in Maritime Delimitation", in J.l. Charney and
L.M. Alexander (eds.), International Maritime Boundaries, Martinus Nijhoff, (1993), Vol. I, pp.
131et seq.
623 Delimitation of the Maritime Boundary in the Area between Greenland and Jan Mayen, I.C.J
Reports 1993,pp. 76-77, paras. 85-86.
-211-islands generating their own maritime zone" does not take account of contemporary
international law; and (c) that Qatar's appeal to the theory of "particular or unusual
features" is based upon a complete misconception of this theory.
SECTION 6.1 The erroneous theory of so-called "main coasts"
A. There is no hierarchy between the coasts
489. Qatar asks that the Court effect a maritime delimitation between the two main
opposite coasts, like the British line of 1947, i.e.between the eastern coast of the main
624
island ofBahrain and the western coast ofQatar.
490. This is not the first occasion on which a State party to a maritime delimitation
dispute has attempted to distinguish between that part of the other party's coast which it
considers "primary" and that part which it considers "secondary". In the Gulf of Maine
case, a Chamber of the Court rejected "an argument ignoring even the existence of real
coasts, and disregarding them on account of their allegedly 'secondary'character." 625
The Chamber observed that "the very legitimacy of such a distinction ... is very
dubious" and that it would be unacceptable to attribute, "for the purposes of
delimitation", "greater importance" to so-called primary coasts than to so-called
secondary coasts:
"... geographical facts are not in themselves either primary or secondary:
the distinction in question is the expression, not of any inherent property
of the facts of nature, but of a human value judgment, which will
necessarily be subjective.... [T]he facts of geography are not the product
of human action amenable to positive or negativejudgment, but the result
of natural phenomena, sothat they can only be taken as they are." 626
624 QM Chapter X, Section 2.C.l.
625 Delimitation of the Maritime Boundary in the Gulf of Maine Area, I.C.J Reports 1984, p. 320,
para. 177.
626
Op. cit., p. 271, para. 36-37.
-212-All the coasts of Bahrain'sislands and other legally relevant maritime features are "real
coasts". There is neither legal authority nor factual basis for demoting them to
"secondary"rank irc~omparison with the coasts of the main island of Bahrain. There
are, in fact, no "main coasts" of Bahrain and of Qatar; there are only "coasts", all of
whichare of equal value.
491. Itmay be added that in international law "the coast" is a term of art, which may
be the low-water line of the terrafirma or, in certain configurations, of reefs or low-tide
elevations, or, in other configurations,straight baselines. Where baselines are properly
drawn, they are the coast. This is why international law ascribes such importance to
basepointsand baselines.
492. International law recognises the full range of maritime rights to all insular
territories- not only to island States, but also to islands subject to the sovereignty of a
State, whether that State is insular or continental. Under the rule of customary
international law codified in Article121 of the 1982 Convention, an island, i.e., "a
naturally formed area of land, surrounded by water, which is above water at high tide",
is entitled to a territorial sea, a contiguous zone, an exclusive economic zone and a
continental shelf"in accordance with the provisions applicable to other land territory."
Theserights exist whateverthe size or socio-economicstatus of the island, and even if it
is uninhabited or unfit for human habitation. Under Article 121(3) of the 1982
Convention(whose scopeand customary status are uncertain), only "rocks which cannot
sustain human habitation or economic life of their own" receive a reduced entitlement;
suchrocks are not entitledto an exclusiveeconomic zone, nor to a continental shelf.
493. The contemporary law of the sea, as expressed in the relevant provisions of the
1982 Convention, holds that certain maritime features other than islands may constitute
an integral partof the coastline and hence give rise to maritime entitlements. In certain
circumstances which will be further discussed below, low-tide elevations are legally a
-213-part of the coastline of the State to whose sovereignty they are subject and hence give
rise to maritime entitlements. 627
494. Finally, the respect due to geographical reality must not be forgotten.
Jurisprudence has repeatedly proclaimed that delimitations must not attempt to
refashionnature, nor to remodel geographical reality. 628 Nature and geographical reality
are as they are, and "the Court does not consider that markedly pronounced
629
configurationscan be ignored".
B. Bahrain is a sea-orientedarchipelagic State
495. By excluding the territories other than the mrun 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, 630together 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. If the old usage had continued
wherebythe main island still bore a name distinct from that of the ensemble, such as Al-
627
See infra,paras. 521et seq.
628 North Sea Continental Shelf, I.C.J Reports 1969, pp. 49-50, para. 91; Continental Shelf
(Libya/Malta), I.C.J Reports 1985,pp. 39-40, para.46.
629
Op. cit., p. 51, para. 96.
630 BMparas. 606 et seq.
-214-Awal, this obvious point would not require clarification. Nominal usage does not alter
reality.
496. Qatar is a continental land-oriented State; Bahrain, on the other hand, is a
maritime sea-oriented State. Bahrain has marshalled in its Memorial evidence
demonstrating that it always was considered to be essentially an archipelago and that the
geographical, economic and social data demonstrate the inextricable relationship
631
between the islands inter se, the Zubarah Region and the sea. To use an expression
employed by the Court, "[s]uch are the realities which must be borne in mind." 632 These
realities require that all the constituent parts of the State of Bahrain - and not only its
main island- be taken into account as an inseparable whole. Leaving these realities out
of account would not be, as Qatar argues, a simplification. It would be a distortion and
reinvention of reality to suit Qatar'sown predetermined objectives, and an amputation of
Bahrain. Just as it would have been illegitimate to ignore, under the guise of
"simplification", the special character of the Norwegian skjaergaard in the Fisheries
case, or the "bouclier" (shield) constituted by the Bijagos Islands in the Guinea/Guinea
Bissau case, or to ignore all of the maritime features constituting Indonesia except for
Java and Sumatra, so it would be illegitimate in the present case to effect, for the
ostensibly innocent purpose of "simplification", a maritime delimitation pretending that
the State of Bahrain consists only of its main island.
497. As the Court has stated in a different but cognate context, one should not
overlook the consideration of "certain economic interests peculiar to a region, the reality
633
and importance of which are clearly evidenced by a long usage". In particular,
Bahrain has drawn the attention of the Court to its fishing interests in the region. 634 It
631
BM paras.568-605.
632 Fisheries, I.C.J Reports 1951, p. 128.
633 Fisheries, I.C.J.Reports 1951, p. 133.
634 BM paras. 594-597.
-215-would be unnecessary to refer to these again if Qatar'sMemorial had not asserted that
635
the question of fishing activities is irrelevant. In support of this contention, Qatar
invokestwo arguments,one factual,the other legal.
498. Qatar'sfactual argumentis to the effectthat fishing:
"was traditionally exercised by all communities in the Gulf, with no
exclusive rights.... At present, the respective catches of Qatar and
Bahrain are roughly equivalent. Fishing is thus of equal importance to
the economiesof both States...." 636
This statement is both imprecise and misleading. Unlike Bahrain's Memorial which
637
contains detailed information concerning fishing activity carried out by Bahrain,
Qatar's Memorial offers no detailed information in support of its assertion that the
respective catches of Bahrain and Qatar are "roughly equivalent." In addition, to infer
from the proposition that the respective catches of Bahrain and Qatar are "roughly
equivalent" that fishing "is thus of equal importance to the economies of both States"
assumes that the other economic activities of the respective States are approximately
equal. In fact, as Bahrain's Memorial notes, 638 Bahrain's economy has nothing to
comparewith Qatar'shigh dailyoil production or its vast liquefiednatural gas projects.
499. The most serious inaccuracy in Qatar's statement is its failure to refer to the
geographical location of the maritime areas where Bahrain's and Qatar's respective
fishing activities are carried out. As Bahrain's Memorial makes clear, 639Bahrain's
fishing activity is carried out almost exclusively in the maritime area lying between
Bahrain's main island and Qatar, and much of this activity takes place within the
635 QM para. 9.15.
636
QM para. 9.16.
637
BM paras. 594-597.
638 BM paras. 55-57,69-71.
639 BM paras. 594-597.
-216-maritime areas in dispute between the two countries. By contrast, little of Qatar's
fishing activity, so far as Bahrain is aware, takes place within any of the maritime areas
which Bahrain claims. Qatar'sfishing activity takes place principally in the waters lying
off Qatar's eastern coast, where more than 90% of Qatar's population lives, and is
therefore irrelevant to the present dispute.
500. Qatar's legal argument is to the effect that "there do not appear to be any reasons
based on fishing activities for modifying the course of the single maritime boundary
640
which might otherwise be determined by the Court to produce an equitable result. "
Qatar here completely misapprehends Bahrain's submission. Bahrain does not present
data relative to its fishing activities as a special circumstance necessitating an
adjustment of the initial equidistance line. To the contrary, the fishing-related data
presented by Bahrain, which demonstrate once again the links between Bahrain and the
sea, serve to confirm the equitable character and the ineluctability of the median line in
this case.
501. Bahrain's Memorial also demonstrates that:
"insofar as [the features lying to the east of Bahrain's main island] lend
themselves to a certain form of human activity, it is only from Bahrain
and by the inhabitants of Bahrain that such activity has ever been
performed." 641
Nothing in Qatar'sMemorial contradicts this demonstration.
502. This is particularly true of Fasht ad Dibal and Qit'at Jaradah. As Bahrain has
pointed out in its Memorial, 642 Bahrain has conducted surveys and granted oil
concessions over both of these features, and has constructed a cairn and an artesian well
640 QMpara. 9.16.
641
BM para.603.
642 BM paras.576-587.
-217-upon each of them. In relation to Fasht ad Dibal, Bahrain has granted licences in respect
of permanent fish traps. Bahrain has regularly concerned itself with navigational
difficulties in relation to Fasht ad Dibal; Bahrain'sMemorial notes instances of maritime
emergencies to which Bahrain reacted by sending assistance, as well as the interest
which the Bahraini authorities demonstrated in resolving navigational difficulties on a
long-term basis.
503. These acts of jurisdiction led the British Political Agent to conclude that Fasht
ad Dibal and Qit'atJaradah should be considered as Bahraini territory. In a letter dated
31 December 1946to the British Political Resident, the British Political Agent noted:
"... The Bahrain Government erected a cairn, numbered it and registered
the shoal in their land records.
The Oil Company which holds the oil concession over Bahrain sunk,
through a contractor, an artesian well on Deebal, and there is also a well
on Jaradeh....
... Possibly Bahrain line-carrying boats use them more frequently than
those of Qatar, and certainly Bahrain fishermen do visit the fashts." 643
The British Political Agent went on to observe:
"With regard to the fashts being unknown until 1929, Lorimer mentions
that in 1878 'afleet of three Bahrain craft despatched by the Shaikh to
patrol towards the Fasht-al-Deebal proceeded instead to Ras Rakan'. This
shows that the shoal has been known to Bahrain for over 50 years.
Surely it must have been known to mariners for a thousand years past." 644
The British Political Agent concluded:
643 Letter from British Political Agent to British Political Resident, 31 December 1946. QM Ann.
IV.92, Vol. 9, p. 446.
644
Letter from British Political Agent to British Political Resident,mber 1946. QM Ann.
IV.92, Vol. 9, p. 442.
-218- "My view then, based on the claims submitted and taking into account
local opinion, is that the fashts Deebal and Jaradeh should be considered
as Bahrain territory.... "645
646
504. As Bahrain has noted in its Memorial, the British Political Resident's detailed
report to the India Office dated 18 January 1947 unequivocally supported the conclusion
that Bahrain had successfully established its sovereignty over Fasht ad Dibal and Qit'at
Jaradah.
505. A letter dated 10November 1947 from the Secretary of State for Commonwealth
Relations to the British Political Resident (cited by Qatar in its Memorial) shows that
the British Government agreed with this conclusion:
"(b) Fasht ad Dibal and Jaradeh shoals. Since the Sheikh of Bahrein has
taken steps usually regarded as sufficient for an assertion of sovereignty,
647
it is considered that these shoals must be allotted to him."
506. The recognition of the inextricability of all of the components of the insular and
archipelagic ensemble which is the State of Bahrain- and not just Bahrain's main island
-is a geographical, political and legal necessity. To use, once again, an expression
employed by the Court, "[t]his solution is dictated by geographic realities." 648 In the
instant case, this solution is dictated not only by geographic realities, but also by
political realities and by the legal principles upon which the law of the sea is based.
645
Letter from British Political Agent to British Political Resident, 31 December 1946. QM Ann.
IV.92, Vol. 9, p. 447.
646 BM para. 586.
647
QM para. 10.47. Express letter from Secretary of State for Commonwealth Relations to British
Political Resident, 16November 1947. QM Ann. IV.108, Vol. 10, pp. 37-39.
648 Fisheries, I.C.J. Reports 1951, p. 128.
-219- SECTION6.2 Qatar's equivocal reference to "features which do not generate
their own maritime zone"
507. To support its fundamental thesis that all of Bahrain'scoasts other than that of its
main island should be ignored, Qatar also argues that most of the maritime features
situated between the east coast of Bahrain'smain island and the west coast of Qatar "do
not qualify as islands generating their own maritime zone". 649 This assertion, which is
neither substantiatednor developed in Qatar'sMemorial,is unfounded.
. A. Bahrain's islands
508. Qatar does not dispute that, under contemporary international law, an island,
according to the definition of Article 121(1) of the 1982 Convention, is "a naturally
formed area of land, surrounded by water, which is above water at high tide". Nor does
Qatar dispute that such an island, be it large or small, inhabited, uninhabited, or even
uninhabitable, entitles the State to whose sovereignty it is subject to the same maritime
jurisdiction, according to the same rules, as does any other land territory. The rule set
out in Article 121(2), according to which islands are in this respect to be treated exactly
as other land territory, is today firmly established. Controversies over the territorial sea
entitlement of an uninhabited or uninhabitable island are a legacy of the past. Thus, it is
difficult to understand what advantage Qatar hopes to gain from its attempt to reduce
certain islands in the region to "islets" or "rocks", given that these terms have no legal
significance or relevanceto an island'sterritorial seaentitlement.
509. In stating that "most of the features" lying between the east coast of the main
island of Bahrain and the west coast of Qatar do not qualify as islands generating their
own territorial sea, Qatar must recognise ipso facto that some of these features do so
qualify. Given that Qatar does not dispute that these islands form part of the State of
649 QM para. 11.37.
-220-Bahrain, Qatar's basic assumption, that the delimitation between Bahrain's and Qatar's
respective maritime zones should be based exclusively on the coastlines of Bahrirln's
main island and of the Qatar peninsula, simply cannot be sustained. The well-known
formula that the land dominates the sea means that all land territory, continental ·or
insular (except, of course, land-locked territory), gives rise to maritime entitlements. By
claiming a mainland-to-mainland delimitation while at the same time accepting, as it
must, that every island gives rise to maritime entitlements and that there are islands,
which are subject to Bahrain's sovereignty, between Bahrain's main island and Qatar,
Qatar locks itself into a self-contradiction.
510. There is no possible doubt of the island status of certain of Bahrain's maritime
features within the meaning of Article 121. As Bahrain'sMemorial states, in addition to
the main Bahrain island and the islands of Sitrah and AI Muharraq, the Hawar Islands,
Rabad al Gharbiyah, Rabad ash Sharkiyah, AI Mu'tarid, Jazirat Mashtan, and Umm
Jalid qualify as islands under international law. Qatar's argument, therefore, is
untenable with regard to these maritime features.
511. Concerning Qit'at Jaradah, Qatar asserts that it is a low-tide elevation, despite
the fact that it acknowledges that parts are dry at high tide, a geographical fact that
makes it an island.650 Bahrain's Memorial has shown that factually and legally Qit'at
Jaradah qualifies as an island under intemationallaw. 651
512. Part B of Appendix 5 of Qatar'sMemorial, 652in which Qatar purports to "present
in chronological order information gathered concerning ... Qit'at Jaradah", in fact
supports Bahrain's view. Qatar cites, for example, a communication dated 26 March
650
QM para. 10.55 and Appendix 5, Vol. 15, pp. 125-143.
651 BM paras. 622-624.
652 QM Appendix 5, Vol. 15, pp. 135-141.
-221-1940 from the British Political Agent to the British Political Resident, in which the
former states that
"my information ... is that a small part of both these reefs remains
exposed at all states of the tide."653
513. Again, Qatar cites a report dated 20 March 1956 from the British Political
Resident to the Foreign Office, in which the British Political Resident states:
"Arrangements were therefore made to revisit the shoal at high water
springs on February 28, 1956, and at this time ... an area of about a
hundred square yards of sand by the beacon was dry to a height of two
feet above the water level. The tidal height at the time of the visit is
unlikely ever to be exceeded by more than half a foot, so that itwould
appear that this part of the shoal is permanently uncovered at all states of
the tide in present circumstances." 654
514. Qatar also cites a minute dated 21 April 1956 from Ewart-Biggs of the Eastern
Department, Foreign Office:
"(ii) Qit'at Jaradah in its present state seems to have an area of sand
permanently uncovered.... " 655
515. The report by the Commander ofH.M.S. Loch Fada dated 14 April1959, based
on a visit to Qit'atJaradah which took place on the evening of 9 April 1959, lends even
more support to the proposition that Qit'at Jaradah was an island from the 1950s until
1986, when Qatar carried out an armed attack on Fasht ad Dibal and Qatari bulldozers
removed that part of Qit'atJaradah which was exposed at high tide: 656
"At high water a pear-shaped island ninety yards long ·andfifty broad
remained above water. The axis of the 'pear'lay north east to south west,
the narrower portion being to the north east. The height of the island was
between 2 feet and 2 feet 3 inches and it was evident that it had not been
653 QM Appendix 5, Vol. 15, p. 136.
654
QM Appendix 5, Vol. 15, p. 139.
655
Ibid.
656 QM Appendix 5, Vol. 15, p. 140.
-222- covered by water for some time. The highest ridge has a hard crust about
a quarter of an inch thick which is thought to be caused by the combined
action of the sun and the feet of the many cormorants that roost there."
516. Finally, Qatar cites a letter dated 20 August 1959 from the British Political
Resident to Walmsley of the Arabian Department of the Foreign Office, reporting that
the Navy had indicated as follows:
"(a) Prognosis of future of Jaradeh:
'Althoughit is never possible to forecast accurately the changing effect of
wind, tide and current it is considered that as Jaradeh was found to be a
2ft. high island in February, 1956 and when visited in April, 1959 was
again found to be of approximately the same height, it is probable that it
.will remain an island...."'
517. Bahrain notes in passing that Appendix 5 of Qatar's Memorial, in which Qatar
purports to "present in chronological order information gathered concerning Fasht ad
Dibal and Qit'at Jaradah, including marine surveys, sailing directions (Persian Gulf
Pilot), some relevant charts and other official documents", 657 fails to cite a letter written
by Sir Charles Belgrave to the British Political Agent on 14August 1937 in which Qit'at
658
Jaradah is clearly referredto as "an island".
518. In answerto these numerous pieces of evidence demonstrating that Qit'atJaradah
remained an island throughout the 1950s, Qatar's only resource (other than citations
from the Persian Gulf Pilot which do not purport to be based upon recent surveys) is to
state that
"In spite of all these reports, Kennedy, of the Admiralty, was not quite
sure of the permanency of the islet on Qit'atJaradah and envisaged that it
might turn back into a low-tide elevation (letter dated 25 August 1959 to
Walmsley, of the Foreign Office)." 659
657
QM Appendix 5, Vol. 15, p. 127.
658 This letters cited at BM para. 581.
659 See Letter fromR. Kennedy, Hydrographic Department, Admiralty to A.R. Walmsley, Foreign
Office, 25 August 1959. QM Ann. IV.223, Vol. 11,p. 301.
. 223.Qatar thus explicitly admits that Qit'at Jaradah was an island by the end of the 1950s;
Qatar's argument for ignoring this reality is that one British official, in spite of what
Qatar admits to be a significant number of pieces of evidence, was "not quite sure" that
Qit'atJaradah would remain an island, and envisaged "that it might turn back into a low
tide elevation." The hollowness of this argument is self-evident and requires no further
comment.
519. Paragraph 22 of Part B of Appendix 5 of Qatar's Memorial 660 contains the
misleading statement that in 1986 "[m]ilitary intervention by the Qatari forces restored
the statusquo." The truth is that, as Bahrain has already pointed out in its Memorial 661
and in this Counter-Memorial, 662 Qatari bulldozers removed that part of Qit'at Jaradah
which was exposed at high tide.
520. Even Qatar's own conclusion, following its reVIew of citations which it
purportedly produces in support of its contention that Qit'at Jaradah is not an island, is
confused and hesitant. Qatar states: 663
"in spite of some hesitation from 1940 onwards, it appears that Qit'at
Jaradah is ... partly a sand bank which may not be dry at all states of the
tide along its southern edge.... The'conclusion is that Qit'at Jaradah is a
low tide elevation in its natural form."
In the light of the many authorities which Qatar itself cites, and which support Bahrain's
contention that Qit'atJaradah had become an island by the 1950s and remained so until
Qatar'sarmed intervention in 1986, this "conclusion" must be dismissed as unsupported
and self-serving.
660 QM Appendix 5, Vol. 15, p. 141.
661 BM para.623.
662
Para. 515, supra.
663 QM Appendix 5, Vol. 15, p. 141.
-224-B. Bahrain'slow-tideelevations
521. By asserting that most of the maritime features situated between the main island
of Bahrain and Qatar do not qualify as islands generating their own maritime
entitlement, Qatar seems to imply that only islands generate a maritime entitlement,
while low-tide elevations do not. Since several of the maritime features situated
between the eastern coast of the main island of Bahrain and Qatar'speninsula are low
tide elevations,this point merits attention.
522. Without retracing in detail the complex evolution of the concept of low-tide
elevation and its legal regime, it will suffice to recall that both concept and regime have
taken an extended time to become settled. The judgment of the Court in the Fisheries
case shows how uncertain these matters still were even in the 1950s. The Court referred
there to the case of a "low-tide elevation (drying rock)" (in the French version of the
judgment: "en cas d'une elevation qui ne decouvre qu'a maree basse (d'une seche)"),
withoutadopting a position on whether, and in what circumstances, such a feature might
be taken into account as a basepoint for measuring the breadth of the territorial sea. 664
The first reports of the International Law Commission reveal significant terminological
and conceptual variations, both in English and in French. In English, there are
references to "drying rocks", "shoals", "rocks awash"; in French, to "seches", "fonds
aftleurants", "fonds couvrants et decouvrants". These different terms were not always
precisely defined. The terminology accepted today - "low-tide elevations", "hauts
fonds decouvrants"- was first established at the Geneva Conference of 1958, when the
concept was given a precise definition and legal regime in Article 11 of the Geneva
Convention on the Territorial Sea and the Contiguous Zone; this provision is
incorporated,in identical terms, in Article13of the 1982Convention.
664
Fisheries, I.C.J. Reports 1951, p. 128.
-225-523. Article 13 of the 1982 Convention defmes a low-tide elevation as "a naturally
formed area of land which is surrounded by and above water at low tide but submerged
at high tide." The low-water line of a low-tide elevation may be used as the baseline for
measuring the breadth of the territorial sea "[w]here a low-tide elevation is situated
wholly or partly at a distance not exceeding the breadth of the territorial sea from the
mainland or an island" (but not from another low-tide elevation, in order to prevent so
called leapfrogging). However, "[w]here a low-tide elevation is wholly situated at a
distance exceeding the breadth of the territorial sea from the mainland or an island, it
hasno territorial sea of its own." In the case of straight baselines, Article 7(4) of the
1982 Convention provides that if the other conditions for the drawing of such baselines
are satisfied, straight baselines may be drawn to and from low-tide elevations when
lighthouses or similar installations which are permanently above sea level have been
built on them or when the drawing of such baselines has received general international
recognition.
524. The meaning of these rules- whose customary status is not denied by Qatar 665-
is clear. By providing that a low-tide elevation wholly situated at a distance greater than
the breadth of the territorial sea from the nearest mainland or island "has no territorial
sea of its own", Article 13(2) implies that low-tide elevations situated wholly or partly
at a distance not exceeding the breadth of the territorial sea from the mainland or an
island do have their own territorial sea. Given "the close dependence of the territorial
sea upon the land domain", and in the light of the principle that "[i]t is the land which
confers upon the coastal State a right to the waters off its coasts", 666the fact that low
tide elevations may in some circumstances give rise to a territorial sea entitlement
demonstratesthat they form part of the territory of the State in question and that they are
subject to its territorial sovereignty. Territorial sea can only exist if territorial
665
Qatar relies on Article 13 (1) with respect to Fasht ad Dibal and Qit'at Jaradah (QM para. 10.62).
666
Fisheries, I.C.J. Reports 1951, p. 133.
-226-sovereignty exists to generate it. This brings to an end the old controversy as to whether
667
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." 668 Since, other than the Hawar
Islands, Fasht ad Dibal and Qit'atJaradah, 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 under
Bahrain's sovereignty. As an integral part of Bahrain, they entitle Bahrain to maritime
jurisdiction in accordance with the principles and rules of international customary law.
C. The law governing sovereignty over low-tide elevations is the law governing
territorial sovereignty
525. With respect to the maritime entitlements of islands and other legally relevant
maritime features, Qatar's Memorial puts forward a bizarre theory. 669 Qatar's analysis
relates specifically to Fasht ad Dibal and Qit'at Jaradah, the only two features (other
than the Hawar Islands) situated between the main island of Bahrain and Qatar which
Qatar claims. Given that Qatar regards Fasht ad Dibal and Qit'at Jaradah as low-tide
elevations, 670Qatar's argument, if it were valid at all, would apply equally to the other
low-tide elevations which form part of the State of Bahrain, and to which Qatar makes
no claim.
667 See for example, Minquiers and Ecrehos, I.C.J. Reports 1953, p. 53, and Fitzmaurice, The Law
and Procedure of the International Court of Justice, Grotius, (1986), Vol. I, pp. 287-288.
668
QM p. 307. See QM para. 10.73.
669 QM paras. 10.49 and 10.59et seq.
670
QM paras. 10.54-10.55 and 10.58. The parties agree that Fasht ad Dibal is a low-tide elevation
(See BM para. 626). As to Qit'at Jaradah, Bahrain has shown that it is an island within the
meaning of Article 121 (see supra, paras. 511 et seq.).
-227-526. Qatar'sMemorial demonstrates Qatar'sevident embarrassment at the fact that in
1947 the British authorities concluded that Fasht ad Dibal and Qit'atJaradah, although
situated to the east of the proposed continental shelf boundary, belonged to Bahrain
671
because only Bahrain had exercised effective acts of sovereignty over them. To
escape this inconvenient fact, Qatar alleges that the British authorities made an error of
lawby applying the rules governing territorial sovereignty to these two features: "unlike
islands, whose ownership is acquired by the usual methods of acquisition of land
territory," so Qatar writes, "the acquisition of low-tide elevations ... is governed by
application of the law of the sea.... [T]he reasoning of the British Government insofar
672
as it was based on the analogy of land territory lacks conviction." Qatar criticises
what it calls "a mistaken analogy between low-tide elevations and land territory" 673and
asserts that low-tide elevations are governed by the law of the sea alone.
527. In regard to the provisions of the 1982 Convention, whose customary status
Qatar admits, Qatar then asserts:
that a low-tide elevation situated within a State'sterritorial sea belongs to
that State "aspart of the bed of its territorial sea" 674since, under Article 2
of the 1982 Convention, the sovereignty of a State "extends to the air
space over the territorial sea as well as to its bed and subsoil";
that a low-tide elevation situated outside a State'sterritorial sea, but on its
continental shelf, forms an integral part of the latter; Qatar says that
671 Qatar citesinthis regard a letter from British Political Resident Hay dated 18 January 1947 (QM
para. 10.60) and a letter from the Secretary of State for the Commonwealth to the British
Political Resident, 10 November 1947 (QM para. 10.47).
672 QM para. 10.49.
673 QM para. 10.59. On the issue ofthe impermissibility of challenging the validity of an arbitral
award on the basis of an alleged error oflaw, see supra, para. 387.
674 QM para. 10.62.
-228- under Article 77 of the 1982 Convention the coastal State enjoys
exclusive sovereignrights over such a low-tide elevation, so as to render
675
it incapable of appropriationby a third State;
that a low-tide elevation situated on the high seas (i.e., outside the
exclusive economic zone and continental shelf of any State) is incapable
of appropriation, by virtue of Article 89 of the 1982 Convention which
provides that ''NoState may validly purport to subject any part of the
high seas to its sovereignty."676
528. The theoryput forwardby Qatar amountsto treating low-tideelevationsas a part
of the seabed and subject to the same legal regime as the seabed. For Qatar, low-tide
elevations are subject to the regime of the territorial sea (and hence capable of
appropriation in sovereignty) if they are situated within the territorial sea of a coastal
State; they are subject to the regime of the continental shelf (and hence liable only to
appropriationof sovereignrights but not to appropriation in sovereignty proper) if they
are situatedoutsidethe territorialsea but within the limits of the continentalshelf; while
they are subject to the regime of the high seas (and hence incapable of any
appropriation) if they are situated on the high seas. Under this theory, low-tide
elevations have no legal autonomy; although above water at low tide, they are to be
treated exactly as if they were a part of the seabed; they can never constitute a territory
overwhich sovereigntymay be acquiredand disposed of accordingto the principles and
rules governing territorialsovereignty.
529. This theory, which is evidently propounded in an attempt to neutralise the
legally decisive acts of sovereigntywhich Bahrain - and Bahrain alone - has exercised
over Fasht ad Dibal and Qit'at Jaradah, is unambiguously condemned by the 1982
67S QMpara. I0.64.
676 QM para. 10.63.
-229-Conventionwhich Qatar claims to invoke in its support. The 1982Convention, far from
treating low-tide elevations as a part of the seabed, expressly provides that a low-tide
elevation may in certain circumstances generate its own territorial sea. If the 1982
Convention had not considered a low-tide elevation to constitute a territory, it could not
have provided that a low-tide elevation may be used as a normal baseline if situated
wholly or partly within the territorial sea of the relevant State. Nor could it have
providedthat, even if it does not satisfy this condition, a straight baseline may be drawn
to or from a low-tide elevation if a lighthouse or similar installation permanently above
water has been built on it, or if the drawing of such a straight baseline has received
general international recognition. Qatar'stheory, by making the rights of a State over a
low-tide elevation depend upon its status as a part of the seabed, inverses the
fundamental relationship between the land and sea: instead of the land dominating the
sea,the sea would dominatethe land.
530. Qatar'sstrange conception is first applied to Fasht ad Dibal and to Qit'atJaradah
in the situation of a territorial sea of 3 nautical miles, such as existed in 1991 when
Qatar filed its Application. Qatar argues that these two features, which were then
situated outside Qatar'sthree-mile territorial sea limits and hence were not subject to its
sovereignty, were part of Qatar'scontinental shelfbecause they were situated to the east
of the British seabed boundary line of 1947.
531. The untenability and absurdity of Qatar's theory (whereby low-tide elevations
constitute an integral part of the seabed) becomes apparent when one examines its
consequences having regard to the extension of each Party'sterritorial sea to 12 nautical
miles.
532. As regards Fasht ad Dibal, Qatar recognises that, on the basis of a 12-mile
territorial sea, only a part - and the smaller part at that - of this low-tide elevation is
-230-situated within Qatar's territorial sea,7as is shown by Map N° 14 of Qatar's Memorial
(reproduced as Map 4 of this Counter-Memorial). According to Qatar's reasoning under
which sovereignty over a low-tide elevation depends upon the seabed on which it is
situated, one wonders what is to become of that part of Fasht ad Dibal which is situated
outside Qatar'sterritorial sea. If, as Qatar claims, low-tide elevations are to be treated as
part of the seabed, then that part of Fasht ad Dibal which is further than 12 miles from
Qatar would be situated on both Qatar's and Bahrain's continental shelf (since it is less
than 200 nautical miles from each of them). A problem of territorial sovereignty would
therefore arise, whose resolution would depend upon the prior delimitation of the
continental shelf. In other words, the delimitation of the continental shelf would
precede the determination of territorial sovereignty. The sea would dominate the land.
The legal reality is, of course, the opposite: the land dominates the sea. In order to
delimit the two countries' continental shelves beyond their 12-mile territorial seas, it is
necessary first to determine to which country Fasht ad Dibal belongs. Such a
determination can only be made by applying the principles and rules governing the
acquisition of territorial sovereignty. Only after the question of sovereignty over Fasht
ad Dibal has been determined can one proceed to effect the maritime delimitation.
533. As to Qit'at Jaradah, Qatar's position appears even more untenable. With a 12-
mile territorial sea, Qit'at Jaradah is currently situated in the territorial sea of both
countries, i.e.,in the area where the respective territorial seas overlap. If sovereignty
over a low-tide elevation - assuming arguendo that Qit'at Jaradah is a low-tide
elevation, rather than an island as Bahrain has demonstrated that it is - depended upon
its situation on the seabed, Qit'at Jaradah would be under the sovereignty of both
Bahrain and Qatar pending authoritative establishment of the maritime delimitation.
This demonstrates once more the necessity of proceeding from the land to the sea. Once
again, only after determining the territorial sovereignty over Qit'atJaradah in the light of
677 QM para. 10.69.
-231-the principles and rules relating to sovereignty over territory can one proceed to the
delimitationof the maritimeboundary.
534. In an attempt to escape the absurd implications of its theory, Qatar suggests
678
approachingthe problem "from another perspective" - a euphemistic understatement
for a complete change of approach. Abandoning the criterion which it had just
proposed, Qatar notes that Fasht ad Dibal and Qit'atJaradah are closer to Qatar than
they are to "Bahrain" (which for Qatar means "the main island of Bahrain") and "Qatar
now requests the Courtto adjudge and declarethat Dibal and Qit'atJaradah are low-tide
679
elevations which, by their very location, are under Qatar'ssovereignty." (Emphasis
added.)
535. As already seen, Qatar thus recognises that under contemporary international
law, low-tide elevations are in certain circumstances capable of appropriation in
sovereignty. According to the fundamental principles of the law of the sea, territorial
sovereignty determines both the entitlement of the coastal State over the adjacent
maritime areas, and the delimitationbetween the areas belonging to States with opposite
or adjacent coasts. This implies that the delimitation of a single maritime boundary
between Bahrain and Qatar which the Court has been requested to effect must
necessarily begin with the determination of territorial sovereignty over the islands and
other legally relevant maritime features which are situated in the area to be delimited.
Only after thus determiningthe question of territorial sovereignty will the Court be in a
position to delimitthe maritimeboundary.
678 QM paras. 10.69 and 10.72.
679
QM para. 10.73.
-232-D. Bahrain's sovereignty over all the features lying between the eastern coast
ofBahrain's main island and the western coast of the peninsula of Qatar
536. The first step, then, is to determine which of the two States exercises sovereignty
over these maritime features. Qatar answers this question only with respect to the
Hawar Islands and to Fasht ad Dibal and Qit'at Jaradah. The question of the Hawar
Islands is discussed in Chapters 2 and 3 of this Counter-Memorial, and there is no need
to return to it here. As to Fasht ad Dibal and Qit'at Jaradah, Qatar claims that these
features are subject to Qatar's sovereignty "by their very location". Bahrain has
demonstrated that (i) the theory whereby proximity and contiguity may serve as the
basis of sovereignty in a situation of competing claims has been definitively rejected
under internationallaW' 80and (ii) Fasht ad Dibal and Qit'at Jaradah are, by virtue of the
principles and rules of international law governing sovereignty over territory, subject to
the sovereignty of Bahrain. 681 As to the legally relevant maritime features other than
Fasht ad Dibal and Qit'atJaradah, Qatar does not claim sovereignty over them.
537. Bahrain's 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
-the Hawar Islands, Fasht ad Dibal, Qit'atJaradah, and all the other maritime features
hasa critical consequence for delimitation: the principles of the law of the sea will not
countenance a maritime delimitation which treats these maritime features as if they did
not exist, or, in other words, as if the only relevant coastlines were the coastlines of
Qatar and of the main island of Bahrain. In Tunisia/Libya, the Court declined to effect
the delimitation as if Jerba Island or the Kerkennah Islands and surrounding low-tide
elevations did not exist. 682 The coast of each one of the maritime features situated
680
BM paras. 521 et seqand 591.
681 BM paras. 577-586,597.
682 Continental Shelf(Tunisia/Libya), I.C.J. Reports 1982, pp. 63-64, para. 79, and pp. 88-89.
-233-betweenBahrain'smain island and Qatar- be it a small, uninhabited island or a low-tide
elevation, provided only that it fulfils the requisite legal conditions - is just as relevant
to the delimitation of the maritime boundary as are the coastlines of Bahrain's main
island and of Qatar. Qatar claims that a delimitation ignoring these maritime features
would be a "simplification". In fact, it would be an amputation. It would constitute a
gross violation of the essentially insular and archipelagic character of the State of
Bahrain and distort its geographical and political reality, and also would be inconsistent
with the fundamentalrules of the law of maritime delimitation. 683
538. Itshould be unnecessaryto remind the Courtthat, in requesting that the maritime
delimitation take account of the fact that the maritime features situated between
Bahrain'smain island and Qatar form an integral part of the State of Bahrain, indeed, are
the State of Bahrain, Bahrain does not claim to be entitled to the whole of the maritime
684
areas between its main island and Qatar. As Bahrain's Memorial explicitly states,
Bahrain asks only that the ·delimitationbe effected between the coastline of Qatar, on
one hand, and that of Bahrain as it factually and legally is (rather than as Qatar attempts
to depict it), on the other. Qatar's image of "Bahrain ruling the waves" 685 is pure
fantasy.
SECTION 6.3 Qatar's misconceived recourse to the theory of "unusual
features"
539. In support of its argument that the maritime delimitation should be effected as
between the east coast of Bahrain's main island and the west coast of Qatar without
683 It is noteworthy that in 1947 the British authorities were quite hesitant in this regard. See, for
example, the letter from the India Office to the Foreign Office dated 13 February 1947. QM
Ann. IV.94, Vol. 9, p. 461-462 and the Minute dated12 March 1947 by Beckett. QM Ann.
IV.95, Vol. 9, p. 468.
684 BM para. 589.
685 QM para. 10.33.
-234-taking into account the maritime features situated between them, Qatar's Memorial
fmally asserts that these maritimefeatures "can be regarded as 'unusualfeatures'which
are to be neglected or disregardedfor delimitation purposes." 686 Bahrain presumes that
Qatar here intends to refer to the jurisprudence according to which the process of
delimitation, although it is not to refashion nature or rectify geography, should
minimise, or even in some cases eliminate, the exaggerated effect which would
otherwisebe producedby certainminor geographicalaccidents.
540. It is scarcely necessary to recall that in the 1950s, m the course of the
proceedings of the International Law Commission, it was suggested that "provision
must be made for departures [from the equidistance rule] necessitated by any
exceptional configuration of the coast, as well as the presence of islands or navigable
channels." 687 Different formulations of this exception were considered, before the
Commission decided,in 1953,to adopt the expression "specialcircumstances". During
the Geneva Conference, Commander Kennedy mentioned, as one of the special
circumstances which could call for consideration in the course of delimitation, "the
presenceof a smallor largeislandin the areato be apportioned". Commander Kennedy
suggestedthat "islandsshould be treated on their merits" and that "very small islands or
sand cays" 688 should not be taken as starting points for delimitation. In a memorandum
distributed by the British delegation at the 1958 Conference, Commander Kennedy
stated: "It would seem most inequitable, for instance, if the existence of an island or
islet (which by definition need only be a small above-waterrock or sandbank, possibly
686
QM para. 11.37. As already noted (supra, paras. 507 et seq.), the inapplicability of this part of
Qatar'sargument is virtually acknowledged when Qatar statesthat "most of those features do not
qualify as islands generating their own maritime zone." (Emphasis added.) Qatar's
acknowledgement that islands are present in the area to be delimited exposes its argument for
simplification as absurd.
687 Yearbook of the InternationalLaw Commission 1953,Vol. II, p. 216, and 1956, Vol. II, p. 300.
688
UNCLOS I, Official Records,Vol. VI, p. 93.
-235-only a few yards long and a few feet high) should be allowed to divert a boundary and
thus give extensive areas of shelfto the State possessing the island." 689
541. In 1969, in the North Sea cases, the Agent of the Federal Republic of Germany
presented to the Court a diagram showing that, as between adjacent coasts, even an
insignificant projection of one of the coasts, or the presence of a tiny islet lying off one
of the coasts, could bring about a disproportionate diversion of the equidistance line - a
diversion, moreover, which would increase as one moved further from the coasts- in
favour of the State enjoying the benefit of such an accident of nature, at the other State's
expense. The Agent added that an equivalent effect could be produced as between
opposite coasts, although in this case it would be described less as a "diversion effect"
than as a "roll-back, push-off effect", in that the presence of the island would cause the
equidistance line to be rolled back, or pushed off, towards the opposite coast. 690 It was
to avoid such an effect that the Court referred in its judgment to "abating the effects of
an incidental special feature from which an unjustifiable difference of treatment could
result" 691and "ignoring the presence of islets, rocks and minor coastal projections, the
692
disproportionally distorting effect of which can be eliminated by other means" and
decided that the delimitation should take into account "the presence of any special or
unusual features". 693
542. With variations in terminology, the subsequent jurisprudence confirmed and
developed this approach, which consists of giving, for delimitation purposes, full effect,
689
Kennedy, "Brief Remarks on Median Lines and Lines ofEquidistance and on the Methods Used
in their Construction", NCONF. 13/42, p. 93, in Northcott Ely, "Seabed Boundaries Between
Coastal States: The Effect to be Given Islets as 'Special Circumstances'", International Lawyer,
Vol. 6, 1972, pp. 219etseq.,at p. 225.
690
North Sea Continental Shelf, I.C.J. Pleadings 1968, Vol. II, pp. 29-30.
691 I.C.J Reports 1969, p. 50, para. 91.
692
Op. cit., p. 36, para. 57.
693 Op. cit., p. 54, para. 101 D).
-236-partial effect or no effect to a given island, islet, rock or low-tide elevation. 694 The
philosophy behind this jurisprudence is clear. Its object is to prevent a minor accident
of geographyfrom causing a disproportionate deviation of the equidistance line, which
would be a sourceof inequity, while making compensatory adjustments elsewhere in the
delimitationline.
543. The purpose of this jurisprudence is neither to correct geographical reality in
order to render it more equitable nor "to create a situation of complete equity where
nature and geography have established an inequity." 695 The tribunals have, therefore,
carefullyavoided applying the theory in ways that would involve refashioning nature or
rectifying geographical reality. In the Delimitation of the Maritime Boundary in the
Gulf of Maine Area case, for instance, the Chamber of the Court, while applying the
theory of particular features in certain cases, 696 categorically rejected "the idea ... that
certain geographical features are to be deemed aberrant by reference to the presumed
dominant characteristicsof an area, coast or even continent." 697
544. The theory of particular or unusual features does not apply to the present case,
because the delimitation here is not between two continental coasts between which
islands and other off-lying features belonging to one or other of the parties happen to be
situated. In that situation, various solutions have been adopted by States negotiating
treaties among themselves and by tribunals resolving disputes, giving to each maritime
feature, as the case may be, full effect, partial effect or no effect. The present
delimitation, however, is a delimitation between the Qatar peniiisula and the system of
694 SeeP. Weil, The Law of Maritime Delimitation- Reflections, Grotius, p. 89 and pp. 2et seq.
(1989).
695 Delimitationofthe Continental Shelf between the United Kingdom and France, United Nations,
Reports of International Arbitral Awards, Vol. XVIII, p.116, para. 249.
696 I.C.J Reports 1984, p.0, para. 201; p. 336-337, para. 222.
697
Op. cit., p. 271, para. 36.
-237-546. To conclude,in whatevermanner the problem is approached, Qatar'sproposal of
a delimitation which takes account of none of the islands or other legally relevant
maritime features lying between the eastern coast of Bahrain's main island and the
westerncoast ofthe Qatari peninsula is unacceptable.
-239- CHAPTER7
QATAR'S CLAIM GIVES UNDUE WEIGHT
TO THE BRITISH LINE OF 1947
Qatar's position
SECTION 7.1
547. In its Application of 5 July 1991, Qatar requested the Court to delimit a single
maritimeboundary between the two countries "with due regard to the line dividing the
sea-bed ofthe two Statesas describedin the British decisionof23 December 1947." By
"the British decision of 23 December 1947", Qatar means the two letters, in identical
terms, which were sent on 23 December 1947 to the Rulers of Bahrain and Qatar
respectively by C.J. Pelly, the then British Political Agent in Bahrain. These letters
purportedto:
"... forward herewith for Your Excellency'sinformation a copy of a map
showing the line ... which, His Majesty'sGovernment considers, divides
in accordancewith equitableprinciplesthe sea-bed...." 699
548. Qatar'spositionwithrespect to the 1947line may be summarised as follows:
(a) The 1947line does not constitute per se a single maritime boundary which now
delimitsthe two States'maritimeareas:
"Qatar does not contend that the 1947 line is to be automatically
regarded as the boundary line to be delimited between the
maritime areas pertaining to Qatar and those pertaining to
Bahrain.... Qatar ... is not claiming a single maritime boundary
drawn'along'that line...."00
699 The text of these letters is reproduced in QM Ann. 11.52,Vol. 5, pp. 205 and 209 and QM Ann.
IV.115 and 116, Vol.0, pp. 71 and 75. The present whereabouts ofthe original map enclosed
with Pelly's letters is unknown (see QM para.note 107).
700
QM paras. 11.19-11.20. (Emphasis in original.)
-240-(b) Qatar requests that the single maritime boundary be delimited "with due regard"
to the 1947 line in the sense that "The Court, when drawing the single maritime
boundary, cannot act as if that line had never existed." In other words, "the 1947
line, by the very fact that it was drawn as a continental shelf boundary between
the two Parties, is a factor or circumstance highly relevant for the purpose of
drawing a single maritime boundary." 701 Qatar asks the Court to consider the
1947line:
702
as a "special circumstance" for the purposes of the territorial sea
delimitation in the southern sector, under the customary rule set out in
Article 15 of the 1982 Convention, according to which territorial sea
delimitationsshould be effected bythe equidistance method except where
it is necessary by reason of "historictitle or other special circumstances"
to delimit the territorial sea of the two States in a way which is at
variancetherewith;
as a "relevant circumstance" in that part of the northern sector where the
1947 line exists, i.e., as far as the point BLV. Qatar refers here to a
"relevant circumstance", since the delimitation in this sector is not a
territorial sea delimitation, but a delimitation of maritime zones situated
outside the territorial sea. The customary rule applicable to such
delimitations is that delimitation should be effected according to
equitable principles, taking into account relevant circumstances so as to
arrive at an equitablesolution. 703
701 QMpara. 11.19.
702 QM paras. 11.20, 11.39. Qatar also suggests,without however making a clear statement to this
effect, that the47 letters could have created an "historic title" (QM para. 11.39). See infra,
paras. 585 and 586.
703
QM paras. 11.41, 12.14. In the case of the Maritime Delimitation in the Area between
Greenland and Jan Mayen, the Court noted "a tendency towards assimilation" between the
-241-(c) Qatar asks the Court: (i) to disregard the segment of the British 1947 line
running from its southernmost point, the point M, to the point L, and to replace
this segment by another boundary described in Qatar's Memorial; 704 and (ii) to
consider as a special or relevant circumstance the segment of the line running
from the point L in the south to the point BLV in the north. 705
(d) As the British 1947 line does not extend north of the point BLV, Qatar asks the
Court to effect a delimitation de novo 106to the north of this point. For this
purpose, Qatar asks the Court to draw from the point BLV a line perpendicular
to the line joining Ra's Rakan 707and Muharraq and passing through the point
BLV. This perpendicular is then slightly rotated about the point BLV.
SECTION7.2 Qatar's position is self-contradictory
549. Qatar's request is flagrantly self-contradictory in a number of respects. Qatar
asserts that it"is not claiming a single maritime boundary drawn 'along'that line", 708and
that the British 1947 line is not the present single maritime boundary, but merely "a
709
circumstance highly relevant for the drawing of a single maritime boundary." On the
other hand, Qatar candidly recognises that up to the turning point of BLV the boundary
"special circumstances" which "might modify the result produced by an unqualified application
of the equidistance principle" and the "relevant circumstances" which "can be described as a fact
necessary to be taken into account in the delimitation process" (I.C.J. Reports 1993, pp. 62-63,
paras. 55-56). The partieagree on this point: see BM para. 650; QM·para.11.41.
704 QM paras. 1127-11.33.
70S
QM para. 11.34.
706 QM para. 12.5.
707
Not exactly the island of Ra's Rakan but rather the northernmost point of the Qatar peninsula
(see QM para. 12.63, and infra, fn. 767). For convenience, this point is refetohereafter as
Ra'sRakan.
708 QM para. 11.20.
709
QMpara. 11.19.
-242-it claims "corresponds to the line laid down by the 1947 decision." 710 And in its
Submissions at the end of its Memorial, Qatar explicitly "requests the Court ... to draw a
single maritime boundary" s~ut oh the point BLV "following the line of the British
decision of 23 December 1947 ... up to point L." 711
550. Qatar'sposition contains a second contradiction of a more legal character. In the
law of maritime delimitation, special circumstances and relevant circumstances -
whether geographical or of a different nature - are used to draw the dividing line; they
are not the dividing line in themselves. Qatar, however, states explicitly that "the 1947
line in itself constitutes a special circumstance" 71- thus confusing a circumstance to be
taken into account in drawing a boundary line with the boundary line itself. Over the
greater part of its extent, the boundary which Qatar claims before the Court coincides
exactly with the British 1947line. As appears from Map 3, the sole difference between
the boundary which Qatar claims to draw "with due regard to" the British 1947 line and
a boundary drawn "along" the 1947 line lies in the fact that Qatar asks the Court to
"disregard" the segment of the 1947 line which does not suit it- namely, the segment
lying to the south of the point L: "the southern part of the 1947 line (south of point L)
now has to be disregarded." 713 The same selective process leads Qatar to promote what
it deems to be the binding nature of the 1947 line in relation to Janan Island and yet
reject it insofar as the rest of the Hawar Island group, and Fasht ad Dibal and Qit'at
Jaradah (recognised therein as Bahraini), are concemed. 714 How can the so-called
"decision" of 1947 be "a highly relevant circumstance" over a part of its extent, to the
710 QM para. 12.62.
711 QMp. 307.
712 QM para. 11.39.
713
QM para. 11.20. The word "disregarded" subsequently reappears on three occasions in a few
lines (QM paras. 11.23, 11.24, 11.26), and then again at QM paras. 11.30 and 11.33.
714
See Section 2.3.supra.
-243-so· 50"30' iSI" 51"30'
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LEGEND:
Single maritime boundary requested by Qatar
ARABIA ::::::Bahrain pearling bank
::::::Other pearling bank
Map2 THE SINGLE MARITIME BOUNDARY
REQUESTED BY QATAR
~----~---- ~ ~~~~~S ~20 nautical miles
201 30 kilometre s
51. i.......~I.~-..I~i~..;Bis0atte milespoint that the single maritime boundary to be delimited today is supposed to coincide
with it,if it has to be "disregarded" over another part of its extent? According to Qatar's
position, the British 1947 line is alternately a highly relevant circumstance and a totally
irrelevant circumstance. This "pick and choose" approach attaches such a selective
meaning to the expression "with due regard to" as to destroy its value. In fact, what
Qatar refers to as "due regard to the 1947 line" turns out to mean, in concrete terms,
"disregarding the 1947 line southwards from point Land following it northwards from
point L."
551. If Qatar's proposition that the British 1947 is a highly relevant circumstance and
715
that the Court "cannot act as if that line had never existed" were correct, then it should
logically extend to that segment of the British 1947 line which enclaves the Hawar
Island group, which the letters of 23 December 1947 confirmed as being subject to
Bahrain's sovereignty. The so-called British "decision" should similarly be respected
where it recognises sovereign rights in Bahrain's favour over Fasht ad Dibal and Qit'at
Jarad.ah. In these respects also, Qatar'sposition is inconsistent and self-contradictory.
SECTION7.3 The British 1947line is irrelevant to the delimitation which the
Court is requested to effect
A. The letters of 23 December 1947, unlike Britain's arbitral award of 1939 in
relation to the Hawar Islands, did not constitute a "decision" purporting to
bind Bahrain and Qatar, nor was it regarded by the Parties as such
552. Qatar's Memorial refers continually to "the 1947 British decision". To the extent
that Qatar thereby intends to imply that the letters of 23 December 1947 notified the
respective Rulers that the British Government had made a definitive decision in relation
715
QM para. 11.19.
-244-to the division of the seabed, Qatar's characterisation of Pelly's letters is manifestly
inaccurate.
553. Bahrain has shown above 716that its title to the Hawar Islands is a legally settled
matter. This is so, whether the British decision of 1939 is viewed as an arbitral award,
or as a political decision implementing rights and obligations that Britain had assumed
under the international agreements between it and, respectively, Bahrain and Qatar.
554. Bahrain has shown that the 1939 British decision is entitled to recognition on the
basis that both Qatar and Bahrain gave their implied consent to Britain's jurisdiction by
participating without protest in the procedure which resulted in the British decision of
1939. 717 Indeed, the proceedings of 1938-1939 followed a request by the Ruler of Qatar
that the British Government determine his claim to sovereignty over the Hawar Islands.
Qatar thus gave its consent to Britain's decision-making by actively seeking it and then
participating in the proceedings. 718 The 1947 letters, by contrast, were in no sense the
result of proceedings - whether arbitral or otherwise - conducted by the British
Government with the express or implied consent of the Parties. Neither Bahrain nor, to
the best of Bahrain's knowledge, Qatar at any time requested that the British
Government delimit any kind of seabed or maritime boundary or consented to any such
determination by the British Government.
555. Again, Bahrain has shown that the audi alteram partem principle was fully
respected in the procedure which led to the British decision of 1939. 719 Each Party was
given a proper and equal opportunity to present its case. By contrast, the British
Government did not, prior to 23 December 1947, solicit or receive the views of the
716 Chapter 3,supra.
717 See Section 3.3 C (isupra.
718
Section 3.4 Csupra.
719 Sections 3.5 Band C,supra.
-245-Parties in relation to the 1947 letters, nor did it conduct any kind of arbitral or
adversarial procedure.
556. Finally, Bahrain has shown that the British decision of 1939 is both the
confirmation and the foundation of a settled state of affairs.20 Long before the decision
of 1939 and continuously since 1939, Bahrain has remained in full possession of and
has exercised full sovereignty over the Hawar Islands to the degree required by their
physical character, 721while Qatar has exercised no sovereignty over the Hawar Islands,
either prior to or after the 1939 decision. A very different situation pertains with respect
to the 1947 letters, in relation to which Bahrain has recognised no authority. Long
before 1947 and continuously since 1947, Bahrain has exercised sovereignty and
authority over maritime features and maritime areas lying both to the west and to the
east of the British 1947 line.
557. All three of the essential elements referred to above, which were present for the
1939 decision, were, in Bahrain'ssubmission, absent in the case of the 1947letters.
558. The language of the 1947 letters is conspicuous by its failure to definitively
determine anything. This failure is unsurprising in view of the British Government's
deliberate decision not to conduct any kind of adversarial, let alone arbitral, procedure
as a preliminary to the 1947 letters, and in view of the lack of manifestation of any
desire on the part of the Rulers of either Bahrain or Qatar that the British Government
should make any determination of the maritime boundary between the respective States.
In his letters, the British Political Agent "informed" the respective Rulers that the
British Government "has, for some time past, had under consideration the boundary
which should delimit" their respective rights in the seabed lying between their
respective territories. He "forward[ed] ... for ... information" a map "showing the line
720 Section 3.6supra.
721 See supra,paras. 432et seqsee alsosupra,para. 553.
-246-which, His Majesty's Government considers, divides in accordance with equitable
principles the sea-bed aforesaid, and stated that
1HM Government will, in future, regard all the sea-bed lying to the west
of this line as being under the sovereignty of [the Ruler of Bahrain] and
all the sea-bed lying to the east of it as being under the sovereignty of
[the Ruler ofQatar]. 11722
Thus, the purpose of the letters was not to notify the Rulers of a decision which they
would be required to respect, but merely to inform them that the British authorities
would henceforth consider the seabed as being divided by the line described therein,
particularly in the course of their dealings with the two oil companies concerned. The
letters purported only to express the policy of the United Kingdom. Moreover, the
purported division was expressly stated to be provisional and subject to revision. Pelly
stated at the end of the lettersthat:
1•••this division has been made on the basis of the maps and information
available and detailed application of the principles of the division is
subject to revision in the event of more exact geographical data being
723
forthcoming at a laterdate."
559. The contrast could not be sharper between the language of the 1947 letters and
that ofthe 1939decision. In 1939, the Resident wrote:
"I am directed by His Majesty's Government to inform you that, after
careful consideration of the evidence adduced by Your Highness and the
Sheikh of [Qatar/Bahrain],they have decided that these islands belong to
the State of Bahrain and not to the State of Qatar." 124
1939was a binding decision, 1947was not.
722 Letter from British Political Agent to Ruler of Qatar, 23 December 1947. QM Ann. IV.llS,
Vol. 10, p. 71; Letter from British Political Agent to Ruler of Bahrain, 23 December 1947. QM
Ann. IV.116, Vol. 10, p. 75.
723
Ibid.
724 QM Ann. III.208, Vol. 8, p. 39, and QM Ann. III.209, Vol. 8, p. 43. (Emphasis added.)
-247-560. The British authorities clearly considered the division which they contemplated
to be subject to the assent of the respective Rulers, as appears from the British
preparatory documents cited in Qatar's Memorial and reproduced in the Annexes
thereto. 725Thus, the Admiralty wrote on 19 May 1947to the Indian Office:
"When we reach the stage of making concrete proposals the two States
might be prepared to agree to simplified straight median lines...." 726
Two months later, the Foreign Office wrote in a letter dated 28 July 1947that
"... this announcement might be made in the first place in tentative form
and six months allowed for the raising of objections...." 727
This proposal was accepted by the Secretary of State for Commonwealth Relations, who
nevertheless suggested in a letter dated 10 November 1947 that a shorter time limit
should be allowed. 728 On 29 November 1947, the British Political Resident in the Gulf
recommended that the Commonwealth Relations Office abandon the idea of a period for
objections "as this will inevitably result in lengthy representations from both Rulers."
He therefore suggested that the British position "should be announced in an absolute
form, but that if any valid objections are received they should be considered." 729
561. Qatar's Memorial rightly states that the division of the seabed envisaged by the
British letters was accepted neither by Bahrain nor by Qatar. 730 As the Legal Adviser of
the Foreign Office, Sir Eric Beckett, wrote on 14July 1949, "none of the Rulers is under
725 QM paras. 10.13 et seq.
726
Letter from Admiralty to India Office, 19 May 1947. QM Ann. IV.97, Vol. 9, p. 482.
(Emphasis added.)
727 Letter from Foreign Office to India Office, 28 July 1947. QM Ann. IV.101, Vol. 10, p. 5.
728
Express letter from Secretaryf State for Commonwealth Relations to British Political Resident,
10 November 1947. QM Ann. IV.108, Vol. 10, p. 39.
729 Telegram from British Political Resident to Commonwealth Relations Office, 29 November
1947. QM Ann. IV.111, Vol. 10, p. 53.
730 QM paras. 3.83-3.84, 6.244, 10.22 et seq., 10.27 et seq.
-248-564. In fairness to the United Kingdom, one must note that in 1947 it was, indeed,
scarcely possible to go beyond a pragmatic resolution of the immediate problem, for
two reasons.
565. The first reason is that, as the 1947 letters themselves acknowledge, little
accurate geographical information concerning the region existed at that time. Qatar's
Memorial admits that the region was an "area which was largely unsurveyed" and that it
was "difficult to have a precise knowledge of the detailed configuration of the
coastlines." 740 The British authorities may therefore be excused for having decided to
ignore some of Bahrain's islands and low-tide elevations, and to focus on the main
island of Bahrain, 741but the same excuse cannot be invoked by Qatar, fifty years later
and with accurate geographical information at its disposal, to justify ignoring the
geographical reality.
566. There is a second, compelling reason. The 1947 line could not have purported to
constitute a delimitation of the continental shelf on a legal basis, because no legal rules,
whether based on international treaties or drawn from State practice, existed at that time
in relation to the delimitation of the continental shelf. Indeed, only a few years later,
Lord Asquith held that the doctrine of the continental shelf itself had not yet entered the
742
realm of positive internationallaw. In assessing the legal value of the 1947 line, it
should be remembered that in 1953 - six years later - the International Law
Commission still felt, in relation to the question of the delimitation of the continental
6 June 1947. QM Ann. IV.99, Vol. 9, p. 489; Minute dated 22 July 1947 by Evans. QM Ann.
IV.100, Vol. 9, p. 495. Even the reference to the principles of the Truman Proclamation did not
receive unanimous support within the British administration (see.g.Minute dated 12 March
1947 by Beckett. QM Ann. IV.95, Vol. 9, pp. 468 and 474).
740 QM para. 10.17; See para.10.19.
741
See QM para. 10.17.
742 Petroleum Development (Trucial Coast) Ltd v. Sheikh of Abu Dhabi, International Law Reports
XVIII (1951), pp. 144 et seq., especially pp. 155 et seq.
-251-shelf, that there was a legal vacuum in this area - so much so that it was suggested that
disputes in this area be submitted to arbitration ex aequo et bono. 143Only following the
report of the Committee of Experts, which suggested de lege ferenda that the rules
governing the delimitation of the territorial sea might also be applied to continental shelf
delimitations, 744was the Commission able to proceed towards defining a legal basis for
the delimitation of the continental shelf.
567. Qatar acknowledges that in 1947 there existed no rules of law worthy of the
name to govern the delimitation of the continental shelf:
"At the time the British decision was taken, there was no helpful
precedents or established rules of delimitation, and no specific rule or
method of delimitation could yet be regarded as being already part of the
emerging legal doctrine of the continental shelf." 745
In the light of this summary of the state of international law with respect to the
continental shelf in 1947, it is difficult to understand how Qatar ventures to argue that
the British 1947 line not only was based on legal rules, but was based on legal rules
which are still valid today.
C. The 1947 letters related exclusively to the delimitation of the continental
shelf, and expressly did not purport to delimit the superjacent waters
568. As Bahrain has demonstrated, the delimitation of a boundary between the areas
subject to Bahrain'sand Qatar'srespective sovereign rights was neither the sole nor even
the principal objective of the process which led to the letters of23 December 1947. The
principal concern of the British authorities was to effect a division of the seabed
between the two interested oil companies. This appears from the letter dated 3 August
743
Yearbook of the International Law Commission 1953, Vol. II, pp. 48-49,216 (paras. 82 and 84).
744 Op. citp. 79.
745 QM para. 10.15.
-252-1946, also quoted, in which the Secretary of State for India requested the British
Political Resident in the Gulf to examine the possibility of defining a line which
"... could be regarded either as simply demarcating the areas in which
[His Majesty's Government] are willing to permit the respective Oil
Companies to operate, or as dividing the sea-bed, including the portion
outside territorial waters, between Bahrain and Qatar, and allotting to
each Ruler virtual sovereignty over his respective portion without
prejudice to existing navigation rights." 746
Thus, at the outset, the British authorities envisaged two possibilities. One was simply
to demarcate the areas in which the two oil companies would be permitted to operate;
the other was to go further and to delimit the areas of continental shelf over which each
of the two Rulers could claim to exercise sovereignrights. The Secretary of State added
that if the second option were chosen, the delimitation of the continental shelf would in
any event be "without prejudice to navigation rights", i.e.,without affecting the rights of
either State in relation to the superjacent waters.
569. In the end, the second option was selected. The letters of 23 December 1947
referred to "the boundary which should delimit Your Excellency'srights in the bed of
11
the sea.... They also enclosed for the attention of the respective Rulers
1••• a map showing the line ... which, His Majesty's Government
11
considers, divides in accordancewith equitableprinciples the sea-bed....
The letters went on to inform the Rulers that
1•••His Majesty'sGovernment will, in future, regard all the sea-bed lying
to the west of this line as being under the sovereignty of ..:[the Sheikh of
Bahrain], and all the sea-bed lying to the east of it as being under the
sovereignty of [the Sheikhof Qatar]. 11
Finally,they stated that:
746 Letter from Secretary of State for India to British Political Resident, 3 August 1946. QM Ann.
IV.88, Vol. 9, p. 422.
-253- "This decision covers the sea-bed only and not the waters above and is
withoutprejudice to existing navigationrights."
The 1947 letters could not have been more explicit: rights over the supe:rjacentwaters
were specificallyexcluded from their scope.
570. Qatar'sattempt to persuade the Court to consider the 1947 line as a "highly
relevant circumstance" for the purpose of delimiting a single maritime boundary thus
stands condemnedby the wording of the British letters, their manifest intention, and the
context in whichthey were prepared and dispatched.
571. Qatar is evidently conscious of the difficulty inherent in asking that the single
maritime boundary which the Court is now requested to delimit be drawn so as to
coincide with the line which the British authorities proposed in 1947 for the sole
purpose of separating the continental shelves of the two States. Qatar recognises that
the maritime boundarywill be a "single line in the sensethat it will divide the respective
areas of sea-bed, subsoil and supe:rjacentwaters, and will be an all-purpose dividing
line", and that "[i]t is quite obvious that different questions arise immediately as far as
the pre-existing dividing line drawn in 1947 for the continental shelf is concemed." 747
Qatar's uneasiness in this respect is obvious. Qatar asks: "Could the solution of
transforming a continental shelf delimitation into a single maritime boundary applying
748
also to [exclusive economic zone] delimitation be transposed in the present case ?"
This question is not answeredby Qatar'sMemorial.
572. Without entering into a detailed discussion of this problem in all its aspects,
Bahrain observes that Qatar's Memorial refers later on to "the application
(exhaussement)" of the continental shelf delimitations effected by the Iran/Qatar
Agreement of 1969 and the Bahrain/Iran Agreement of 1971 to fishing zones and
747
QM para. 11.16.
748 QM para. 11.17.
-254-exclusive economic zones. Qatar recognises that this "application ('exhaussement')"
i.e., the projection of the agreed line upward through the water column- requires the
consent of the parties, and considers that such consent has been given in relation to the
Iran/Qatar Agreement and the Bahrain/Iran Agreement. 749 Bahrain notes in passing that
the parties' consent was equally important to the Court's decision to delimit a single
maritime boundary in the Gulf of Maine case. 750 In the case of the Maritime
Delimitation in the Area between Greenland and Jan Mayen, where one party requested
that the Court delimit a single maritime boundary while the other party opposed this
request, the Court proceeded to effect separate continental shelf and fishing zone
delimitations.751 Despite the tendency, in State practice and in international
jurisprudence, towards a single, all-purpose maritime boundary, the Parties certainly
retain the right to distinct delimitations in respect of the continental shelf, on one hand,
and of fishing zones or exclusive economic zones, on the other.
573. In the present case, even supposing- quod non- that the 1947letters effected a
continental shelf delimitation between Bahrain and Qatar which is valid today, this
delimitation may not, in any event, be projected upward through the water column so as
to become a single all-purposemaritime boundary without Bahrain'sconsent; and to this
Bahrainwould not consent.
574. For this reason also, Qatar's claim for a single maritime boundary which
coincides for the greaterpart of its extent with the 1947 line should be rejected.
D. The concepts and rules by reference to which the 1947 line was drawn do
not correspond to the contemporary international legal concepts and rules
749 QM paras. 12.8-12.9.
750 Seesupra, para. 458.
751
I.C.J. Reports 1993, pp. 57-58, paras. 43-44.
-255- under which the Parties have called upon the Court to delimit a single
maritimeboundary between the two States
575. To the extent that the British authorities, in their search for a pragmatic solution,
may have referred to any legal concepts and rules, and even assuming, contrary to fact,
that such concepts and rules were central to their proposals, these concepts and rules in
any event do not correspond to the concepts and rules of contemporary international law
under which the Court is asked, by the agreement of the two Parties, to delimit a single
maritimeboundarybetween them.
576. In the first place, the very concept of the continental shelf has changed
significantly. Qatar'sMemorial itself observes that the British "decision" of 1947 "was
752
taken within the context of the then emerging continental shelf legal doctrine." The
TrumanProclamation, which, as the Court was to state in 1969, "came to be regarded as
the starting point of the positive law on the subject and the chief doctrine it
enunciated", 753had been issued only a few months previously. Much uncertainty still
prevailed in relation to the concept of the continental shelf and its legal regime, as is
clear from numerous academic studies of that period and, even more so, from the
proceedings of the International Law Commission in the 1950s. Since then, the concept
has acquired legal authority and undergone continual evolution. At the 1958 Geneva
Conference, the continental shelf was defined by reference to criteria based on depth
and exploitability. In the 1982 Convention, the continental shelf was defined
principally by reference to a distance-based criterion, supplemented by the notion of
natural prolongation. The concept of natural prolongation, to which in 1969 the Court
had attributed a central place in the theory of the continental shelf, was itself to undergo
a profound evolution, which detached it from its physical components and gave it a
752
QM para. 11.13.
753
North Sea Continental Shelf, I.C.J. Reports 1969, pp. 32-33, para. 47.
-256-legal character dominated by the criterion of distance. The concept of the continental
shelf thus became partially merged with the concept of the exclusive economic zone at
UNCLOS III. The notion of the exclusive economic zone, unknown in 1947, was
therefore to bring about a fundamental change in the theory of the continental shelf. In
view of the profound differences between the embryonic notion of the continental shelf
known to the British authorities in 1946-1947, and the modem concept developed by the
jurisprudence of the Court in the light of international treaties and State practice, Qatar's
claim that the Court should consider the 1947 seabed line a relevant circumstance for
the present delimitation of a single maritime boundary is utterly incongruous.
577. Along with the profound change in the concept of the continental shelf over the
last half-century, the principles and rules governing the delimitation of the continental
shelf have also changed. In 1947,as Qatar'sMemorial admits, these principles and rules
were not only embryonic; they did not exist. 754 The formula of delimitation "in
accordance with equitable principles", laid down by the Truman Proclamation, was
never subsequently to be abandoned and became, indeed, central to the law of maritime
delimitation. The concepts of equity, and of equitable principles, which referred, at the
outset, to a subjective, almost discretionary equity, without any precise criteria, finally
received a legal content and became distinguishable from the notion of ex aequo et
bono, in particular in the judgments of the Court in the Libya/Malta and Jan Mayen
cases. The concept of delimitation according to the equidistance-special circumstances
rule did not appear until the proceedings of the International Law Commission in 1953,
and that of relevant circumstances did not take its place in the law of maritime
delimitation until the Court'sjudgment in the North Sea Continental Shelf cases of 1969
-the two concepts being merged in 1993 in the Jan Mayen case. To assert, as Qatar
does, that "[a]lthough the expression was not used at the time for obvious reasons, the
concept of relevant circumstances was unquestionably at the root of the choice made by
754 Seesupra,para. 567.
-257-the British authorities"755 in 1947, attributes to the British authorities a quasi-divine
legal prescience. Qatar's position is even less defensible when it is recalled that the
notion of a single maritime boundary only appeared on the legal scene several decades
later, and that the scope, validity independent of the parties' consent, and
implementation of this notion have yet to be fully determined. Whether one considers
the legal concepts underlying the process of maritime delimitation or the method of
delimitation, the conclusion is inevitable: the line envisaged by the British authorities in
1947 cannot be considered relevant for the purposes of the present delimitation, which is
to be effected in the light of contemporary international law as it has emerged from, in
particular, the Court'smost recent judgments.
578. In many other respects, the contemporary law of the sea bears only a distant
resemblance to the law of the sea as it existed in 1947. Terminology, concepts and rules
have all changed. A review of the British preparatory documents to the 1947 letters,
which are contained in the Annexes to Qatar'sMemorial, demonstrates the extent of the
changes which have occurred. ·Itwas thought at that time that an island was only
entitled to a territorial sea if it was habitable, or even if it was in fact inhabited. 756
Today the rule is that every island, without exception, is entitled to a territorial sea. The
concepts of island, rock and shoal were not well distinguished from one another, and
were certainly not distinguished according to the criteria accepted by contemporary
international law. As Bahrain has shown above, even the terminology employed at that
time differed from the terminology which is employed today. It was widely believed
that "shoals" could never generate a territorial sea entitlement: this view is reflected by
the statement in the 1947 letters that "the Fasht ad Dibal and Qit'at Jaradahshoals ...
755
QM para. 11.40.
756
See, for example, Letter from Foreign Office to India Office, 28 July 1947. QM Ann. IV.101,
Vol. 10, p. 7; Letter from Foreign Office to Commonwealth Relations Office, 6 October 1947.
QM Ann. IV.106, Vol. 10, p. 29; Aide-Memoire from British Embassy in Washington,
12 December 1947. QM Ann. IV.l14, Vol. 10,p. 70.
-258-should not be considered as islands having territorial waters." Widely differing and
often contradictory views were expressed at that time on this issue and the legal rules
were not settled. Indeed Qatar admits this: referring to the rules which today are set out
in the 1982Convention, Qatar'sMemorial states:
"However,things have not always been so clear. In particular, at the time
of the British decision of 1947, and for some years later, there were
differing views among British Lawyers and decision-makers as to the
exact definition of these concepts." 757
579. In the fifty years since the Pelly letters were written, the law of the sea has been
radically transformed - both in relation to the rights of coastal States over the maritime
zones adjacent to their coasts and in relation to the delimitation of maritime zones as
between States having opposite or adjacent coasts. These fundamental changes suffice
to deprive the British 1947 line of all possible relevanceto the present delimitation.
E. The 1947line does not rest on any known or identifiable legal ground
580. The only legaljustification given by the British authorities in support of the line
which they proposed was that this line divided the seabed "in accordance with equitable
principles". 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, or, in other words, to equitable principles which "display consistency and a
degree of predictability."758 Indeed, "equitable principles" has now become a term of art
referring to a judicially-elaborated code of rules and principles for maritime boundary
delimitation. More importantly still, the "equitable principles" to which the 1947 line
purported to conform are impossible to identify. Qatar's observation that the line
conforms to three "criteria"("exclusive consideration of the two main coasts", "selection
757
QM para.10.56.
758
Libya/Malta, I.C.J. Reports1985, p. 39, paras. 45-46; Jan Mayen, I.C.J. Reports 1993,
pp.63-64, para58.
-259-of fixed turning points", "a simplified line" 759) merely replicates the 1947 letters,
without providing an explanation of the rationale for the line. Qatar recognises that
"[t]he 1947 line is neither an equidistant line, nor the strict or true median line." 760 In
other words, it is not even a mainland-to-mainlandmedian line, since it is significantly
closer to Bahrain'smain island than to Qatar. The line disadvantages Bahrain, first by
failingto take into account Bahrain'sterritory other than its main island, and second, by
being displaced towards the west. How can this be justified? No one knows the
answers. Qatar'sassertion that "that line was based on geographical considerations" 761
has no authority other than Qatar's ipse dixit. All Qatar can provide are highly
speculativeexplanations:
"One of the factors taken into account (although this is nowhere
explicitly stated) may have been the difference in coastal lengths, the
coast of the Qatar peninsula being much longer than that of the main
762
Bahrainisland."
"The line ... was drawn closer to the coast of Bahrain ... apparently in
763
view of the differencebetweencoastal lengths."
In truth, no one even knows whether the reasons behind the 1947 line were
geographical.
581. Not only does the raison d'etre of the location and course of the 1947 line
remain shrouded in obscurity, but so does the raison d'etre of the choice of the two
turning points mentioned in the 1947 letters, namely the North Sitrah Light Buoy
(NSLB in Qatar'sMemorial)and the Bahrain Light Vessel (BL V in Qatar'sMemorial).
Qatarindulgesin furtherspeculationin an attemptto explainthis:
759 QM paras. 10.16-10.20.
760 QM para. 10.21.
761
QM para. 11.39.
762 QM para. 10.21 (Emphasis added).
763 QM para. 11.14 (Emphasis added).
-260- "Another consideration which the British Government no doubt took into
account was the desirability of protecting maritime access to Bahrain
through the Sitrah Channel and this probably provided sufficient reason
for the choice of the North Sitrah Light Buoy and the Bahrain Light
Vessd as points of reference for the drawing of the dividing line....
When the British authorities selected those points, they had in mind the
requirements of maritime access to Bahrain through the Sitrah Channel,
and this was probably sufficient motivation for the choice of these aids to
navigation as points of reference for the drawing of the dividing
764
line....
"No doubt", "probably": Qatar's speculation fails to stand up to a simple objection:
Pelly's letters stated that "[t]his decision covers the sea-bed only and not the waters
above and is without prejudice to navigation rights." Whatever the reasons for the
selection by the British of the points referred to as "North Sitrah Light Buoy" and
"Bahrain Light Vessel" as turning points for the 1947 seabed line, the selection of these
points cannot have been based on concern for surface traffic.
F. The 1947line has no relevance in the light of the supervening factor created
by the extension of the territorial sea of both countries from 3 to 12 miles
582. As already noted/ 65 Qatar observes on several occasions that the extension of the
two States'territorial seas from 3 to 12 nautical miles, in 1992 and 1993,
"... hasgenerated a new legal situation with respect to which the weight
to be given to the 1947 dividing line has to be evaluated." 766
Prior to this extension, as Qatar explains,
"... each of the two territorial seas had a breadth of 3 nautical miles and
they did not overlap, thus leaving an area of continental shelf and
764 QM paras. I0.19 and 11.40 (Emphasis added).
165
See supra,para. 472.
166
QMpara.ll.3.
-261- supeijacent high seas between the two facing coasts of Qatar and
Bahrain. n767
This situation, Qatar notes, continued to exist at the date of its Application, 8 July 1991.
The situation today, however, is different, as Qatar emphasises:
"Not only do the new 12-mile territorial seas overlap ... but there is also
an overlap between some portion of the sea-bed as delimited in 1947 and
the extended territorial waters. The latter is all the more important in that
it could involve some conflict between sovereign rights pertaining to one
State and the sovereignty of the other State. Thus, the request presented
to the Court for the drawing of a single maritime boundary has to be
examined in the light of that situation."8
583. If that part of the British 1947line which separates the Hawar Islands from Qatar
is left outof consideration - if the discussion is restricted, in other words, to that part of
the 1947 line which is situated northwards of the point L - then it may be seen that,
from the point of view which the British authorities adopted in 1947, which involved
taking into account only the main island of Bahrain and the Hawar Islands, on one hand,
and the coast of the Qatar peninsula, on the other, Qatar's comments are correct. With
3-mile territorial seas based on the conception which the British authorities had in 1947
of the two States, the 1947 line divided the continental shelf situated between the outer
limits of their respective territorial seas. Between the two so-called main coasts, there
was a distance sufficient for the two States'respective 3-mile territorial seas plus an area
of continental shelf. In other words, in the British perspective of 3-mile territorial seas,
the 1947 line would not have cut across the territorial sea of either of the two States.
Applied to the present situation- and again assuming a so-called·mainland-to-mainland
delimitation- the 1947 line would cut across the two States' respective territorial seas,
and would thus delimit their territorial seas, not according to the customary
equidistance-special circumstances rule expressed in Article 15 of the 1982 Convention,
767
QM para.11.10.
768 QM para.11.12.
-262-but on legal bases which no one can identify. This appears from a comparison of Map
N° 14 of the Memorial of Qatar (reproduced here as Map 4) showing the 1947 line
within the context of a 12-mile projection from the coasts of Bahrain's main island and
the Qatar peninsula, with Map 5 showing the 1947 line within the context of a 3-mile
projection from these coasts.
584. The same conclusion follows from these considerations as from those discussed
earlier: the line envisaged by the British authorities in 1947 is not relevant for the
purposes of the present delimitation, which is to be effected in the light of contemporary
international law.
G. The 1947line has no relevance as a source of "historic title"
585. The customary rule set out in Article 15 of the 1982 Convention provides for the
equidistance line to be set aside as a line of territorial sea delimitation "when it is
necessary" to do so "by reason of historic title". Qatar'sMemorial states:
"While it cannot be said that any historic titlehas derived from [the so
called British 1947decision], the situation thus created however does not
fall far short of it."
586. It is remarkable to find in a legal document two consecutive phrases that so
blatantly contradict each other; Qatar says 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
1947letters. Qatar'shistorical argumentdoes not call for any further comment.
SECTION7.4 Conclusion
587. In thefinalanalysis, Qatar asks the Court to hold that contemporary international
law calls for a single maritime boundary which, except for its southernmost and
northernmost segments, is identical to the line which Britain envisaged half a century
769 QM para11.39.
-263- l I
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·. ...··. Fasht Ghraibah
... ·..······: •..•(AI Amari)ah 27°
ri . ·. ~•• BuSa'afah
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••••••....:AI Rajayjah ·::~Shmaliyah
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..:·
...
LEGEND:
British 1947 line
~o · 3 nautical miles projection from Bahrain main
island and from Qatar
ARABIA ::::::Bahrain pearling bank
::::::Other pearling bank
Map 5 : BRITISH 1947 LINE WITH 3 NAUTICAL MILES
PROJECTION FROM BAHRAIN MAIN ISLAND AND FROM QATAR
10
'----+-- -'-t--..0...l;.,etre
~--~~--~-- 10 ~~S --~0 Britishstatute miles
51"ago as a pragmatic proposal for dividing the seabed. Except for that part of the 1947
line which reflects Bahrain'ssovereignty over the Hawar Islands, Qatar in fact asks the
Court to effect the present delimitation, not "with due regard to", as Qatar'sMemorial
misleadingly puts it, butin accordance with the 1947line. Qatar'suse ofthe expression
"with due regard to" is nothing other than sleight of hand. Qatar infact asks the Court
to hold that modem 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.
-264- CHAPTERS
THE SINGLE MARITIME BOUNDARY REQUESTED BY QATAR IS NOT IN
ACCORDANCE WITH THE PRINCIPLES AND RULES OF INTERNATIONAL
LAW
SECTION8.1 The two sectors
A. The Parties agree that there are two sectors
588. The Parties agree that the delimitation should be effected by dividing the region
to be delimited into two sectors, and that the boundary between the two sectors should
be situated at a latitude between 26° 10'and 26°30'.
B. The reasons and methodological implications of distinguishing two sectors
589. Bahrain believes that this approach is compelled here, as in earlier cases where it
was followed, 770by the geographical facts of the situation.As the Court has stated, it is
necessary "to take account of the fact that a change in the geographical perspective ... is
to be noted at a certain point."771 Not only does the relationship between the coasts
differ as between the southern and northern sectors, as a glance at the map suffices to
show; but also the delimitation in the southern sector is a territorial sea delimitation,
whereas the delimitation in the northern sector is essentially a delimitation of maritime
zones outside the territorialea
770 Delimitation of the Continental Shelf between UK and France, U.N. Reports of International
Arbitral Awards, Vol. XVIII, pp. 58-59, para. 103, and p. 96, para. 204; Continental Shelf
(Tunisia/Libya), I.C.J. Reports 1982, p. 82, para. 115, and p. 93, para. 133 C; Delimitation of
the Maritime Boundary in the Gulf of Maine Region, I.C.J. Reports 1984, p. 331, para. 206.
771
Delimitation of the Maritime Boundary in the Gulf of Maine Region, I.C.J. Reports 1984,
p. 331, para. 206.
-265-590. The ratio legis of distinguishing sectors in boundary delimitation was expressed
clearly by the Chamber in Gulf of Maine: such difference of treatment is ultimately
dictated by the primordial requirement of achieving an overall equitable:;result. When
different partsof a delimitation area are so geographically different that their treatment
as a single area to be delimited by a single operation would produce an inequitable
result, their division into two sectors to be subjected to two separate applications of the
same legal principles and methodology is an imperative of the objective of securing, by
delimitation, an equitable result.
591. Distinguishing sectors in maritime boundary delimitation is not an empty
analytical exercise. Significant consequences flow from the distinction. In each sector,
the geographical characteristics of that sector are examined to determine if they qualify
as special circumstances. For example, the relative length of coast of each State in the
particular sector is compared to determine whether an adjustment in the equidistance
line is appropriate. There would be no point in taking the trouble to distinguish separate
sectors if, having done so, one were to invoke maritime features lying in one sector in
order to delimit the maritime boundary in the other.
592. This is not to say that different principlesf law and different methodologies are
applied in different sectors. Quite the contrary. Bahrain considers that the delimitation
which the Court is asked to effect is in its essence a single operation, implying the
application of the same legal principles and methods to two dissimilar areas. Bahrain
772
has shown that the law of maritime delimitation has developed in such a way that the
rules governing maritime delimitation have become progressively more unified -
whether one considers customary law or treaty law; whether one considers adjacent or
opposite coasts; or whether one considers the delimitation of the territorial sea, of the
continental shelf, of exclusive economic zones, or a single maritime boundary.
m
Seesupra,paras. 464et seq.
-266-C. The locationof the line dividing the two sectors
593. Bahrain regards the southern sector as finishing, and the northern sector as
commencing, at the line Fasht ad Dibal/Ra's Rakan. In both sectors, Bahrain proposes,
consistent with the principles which the Court has set out in judgments in earlier cases,
that the delimitation be effected by starting with an equidistance line between the
international legal baselines of the Parties and then enquiring whether and to what
extent special circumstances or relevant factors - as the case may be - may require an
adjustment of the equidistance line in order to arrive at an equitable result. This is the
method of delimitation which Bahrain defined and followed in its Memorial.
594. In certain respects, Qatar's conception of the division into two sectors coincides
with that of Bahrain. The Parties agree that their coasts are opposite in the southern
sector, but can no longer be described as opposite in the northern sector. They also
agree that the delimitation in the northern sector relates essentially to areas lying beyond
the outer limit of the Parties' territorial waters.
595. Qatar disagrees, however, with Bahrain's dividing line, for Qatar's division is
based upon the line from Muharraq to Ra's Rakan, which may be seen as the line
MQIRK (marked "Closing Line") on Map N° 20 of Qatar's Memorial (reproduced as
Map 7 of this Counter-Memorial).
D. Qatar'sjustification for its proposeddividingline
596. "The southern sector, so Qatar argues, is the one in which the main part of the
774
line of the British decision of 1947 is located." As to the northern sector, its main
m
BM paras. 559-560 and 635-636; QM paras. 11.2, 11.11, 12.6, 12.10. Taking into account the
Zubarah Region, however, the delimitation to be effected in the southern sector is partly between
adjacent coasts (BM para. 566). Concerning the relationship between the coasts in the northern
sector, sinfraSection 8.3.A.
774
QM para. 11.2.
-267-characteristic,so Qatar also argues, is that it calls for a "de novo delimitation" 775because
the British 1947 line ceases at the point BLV. Qatar's division into two sectors,
therefore, is based only partly upon geographical considerations, and mainly upon the
British 1947 line. 776
597. The division dictated by geographical considerations does not, however,
coincide with the division which the 1947 line would dictate. The separation between
the two sectors on a geographical basis is located at a latitude of approximately 26°10'
to 26°20'. 777 On the basis of the 1947 line, by contrast, the southern sector should
terminate, and the northern sector commence,in the point BL V, since the 1947 line ends
at this point. This leads to a continual equivocation in Qatar'sMemorial whereby the
northern sector is describedas commencing alternately at the line Ra'sRakan!Muharraq
and at the point BLV. 778
E. The consequencesof Qatar'scontradiction
598. Since Qatar is effectively claiming a boundary coincident with the 1947 line as
far north as the point BLV, both to the south and to the north of the Ra's
Rakan!Muharraq line, why does Qatar wish to define the division between the two
sectors by reference to this line? Qatar'sreason for invoking the Ra'sRakan/Muharraq
line may be found in its need for a "notional" and "imaginary" 779 line to serve as the
"closing line"780 of a fictitious "bay" to which it proposes to draw a perpendicular. In
775
QM para. 12.5.
776 It may be noted that this division is presented by Qatar not in Chapter IX of its Memorial,
devoted to a "General Presentation of the Relevant Maritime Area", but in Chapter XI, entitled
"The Single Maritime Boundary and the 1947 Line."
777
QM para. 112. See also Map N° 17 of Qatar'sMemorial.
778 QM paras. 11.2, 12.4, 12.7, 12.13, 1220.
779
QM paras. 11.2 and 12.10.
780 QM para. 12.63. See Maps N° 17,20 and 21 of Qatar's Memorial.
-268- 5150 '(
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MAPW16the final analysis, Qatar's division into two sectors is motivated not so much by
geographical considerations as by Qatar'sneed for a "closing line" upon which to base
its otherwise unsupportable perpendicular to the north of the point BLV. Bahrain's
Counter-Memorial will discuss this aspect in more detail when examining the boundary
claimed by Qatar in the northern sector. 781
SECTION 8.2 The southern sector
599. The boundary claimed by Qatar in the southern sector is depicted on Map N° 16
of Qatar's Memorial, reproduced here as Map 6. According to its legend, this map
shows in blue "the portion of the 1947 line as a relevant factor for the delimitation of
the single maritime boundary", and in green "the single maritime boundary disregarding
the southern part ofthe 1947line".
A. The segment of the boundary requested by Qatar to the south of point L
600. To the south of point L, the boundary claimed by Qatar diverges from the British
1947 line. Far from being treated as a "special circumstance", the 1947 line is here
"disregarded". Qatar resists a delimitation of the maritime boundary which recognises
the fact that the Hawar Islands form an integral part of the insular and archipelagic
ensemble comprising the State of Bahrain. Qatar rejects, therefore, that segment of the
British 1947 line which confirms and draws the inevitable consequences of Bahrain's
sovereignty over the Hawar Islands, a matter which has been resjudicata since the 1939
award. Furthermore, Qatar considers that the southernmost point of the single maritime
boundary to be delimited by the Court cannot be the point M from which the British
1947line commences in the south, i.e., the point situated at 25°30'00"N 50°33'55"E. 782
The reason given by Qatar is that this point "is clearly situated within the maritime zone
781
Seeinfra,Section 8.3.
782
See QM para. 11.27.
-269-Hawar Islands, which the British authorities suggested in 1947 on the basis of a
territorial sea of 3 miles, is now incorporated in Bahraini waters. Today, Bahrain's
territorial sea extends from the main island of Bahrain to the Hawar Islands without
interruption.
B. The segment of the boundary requested by Qatar from point L to the
intersection with the so-called "closing line"
606. Qatar'sdescription of this segment, in the legend of its Map N° 16, as the portion
of the 1947 line as a "relevant factor for the delimitation of the single maritime
791
boundary", is both euphemism and understatement. What Qatar seeks to conceal is
that, over this segment, the line claimed by Qatar and the British 1947 line are one and
the same. As already noted, 192 the segment of the boundary claimed by Qatar to the
north of the point L is the 1947 line.
607. For this very reason, the segment of the boundary claimed by Qatar in the
southern sector from point L northward is open to all of the objections which Bahrain
detailed above, and which it suffices to recall briefly here:
(a) Qatar's proposed line is constructed on the basis of an assumption that none of
the islands or other relevant maritime features making up the State of Bahrain,
other than the main island of Bahrain, should be taken into account. For this
very reason, it misrepresents the integrated insular and archipelagic quality of the
State of Bahrain and presents a caricatured, indeed amputated image of the
Bahrain coast, as if it were rectilinear and perfectly regular. It also misapplies
the principle that every maritime delimitation must start from the parties' coasts
791 See QM para. 11.34.
792 Seesupra,para. 598, and Map 3.
-272- as they are represented by the baselines from which the breadth of their
territorialseas is measured.
(b) The course of this segment of Qatar's proposed line has no known or even
identifiablerationaleand rests on no legal basis.
(c) Qatar claims sovereignty over Qit'atJaradah, not on the basis of any effective
exercise of sovereignty by Qatar, but solely because Qit'at Jaradah would be
situatedto the east of the boundary which Qatarclaims.
(d) Qatar is silent as to the question of sovereignty over the other maritime features
situatedto the east of the boundary which it claims. This might be interpreted as
recognition on Qatar'spart of Bahrain'ssovereignty over these features, and of
the insular and archipelagic character of the State of Bahrain. On this
assumption, however, the boundary claimed by Qatar would deprive those of
Bahrain's features, insular or other, which are situated to the east of that
boundary of their maritime projections under international law. If, on the other
hand, Qatar'ssilence regarding the maritime features other than Qit'atJaradah is
to be interpreted as indicating that in Qatar'sview the features situated to the
west of the boundary claimed by Qatar belong to Bahrain while those situated to
the east of that boundary belong to Qatar, then territorial sovereignty would
become an accessory or consequence of maritime delimitation, which would
clearly be unacceptable. Under the principles and rules governing territorial
sovereignty, Bahrain is sovereign over all of the features situated between the
coast of the main island of Bahrain and the coast of Qatar, and the single
maritimeboundarybetween Bahrainand Qatarmust be delimited on the basis of,
and taking into account, Bahrain's sovereignty. The approach suggested by
Qatar runs counterto the principles and rules of international law.
(e) The boundary which Qatar claims in the southern sector northwards of the point
L fails to take into account Bahrain'ssovereigntyover the Zubarah Region.
-273-SECTION8.3 The northern sector
608. As shown above, 793 Qatar's Memorial engages in continual equivocation a
propos the location of the division between the two sectors. Sometimes this division is
stated to be at the point where the Parties' coasts cease to be opposite coasts, i.e.,at a
latitude of approximately 26°10'20''N,while sometimes the division is stated to be at the
point BL V, which is the northernmost point of the British 1947 line, at a latitude of
26°33'35''N.
609. Qatar has no justification for its attempt to situate the division between the two
sectors at the point BLV. The point BLV hasno geographical or other basis. It is
totally arbitrary. Its sole explanation is that it happens to be situated on the line
suggested half a century ago by the British authorities for the division of the seabed, and
in fact is the northern terminus of that line. In no way can the point BLV constitute the
basis for the division between the southern and the northern sector for delimitation
purposes. The division between the two sectors lies where the coastal relationship
794
ceases to be a relationship of opposite coasts, i.e.,at a latitude of approximately
26°10'to 26°20'N.
A. The coastal relationship in the northern sector
610. The Parties' respective positions as to the geographical relationship between the
coasts in the northern sector are not very different. Bahrain's Memorial notes that in the
northern sector the delimitation is "between adjacent, rather th3n opposite coasts." 795
Qatar observes that this part of the area to be delimited is "lying completely outside the
area where Qatar and Bahrain have directly facing coasts, i.e.beyond the imaginary line
793 See supra,paras. 59et seq.
794 Qatar sometimes accepts this approach (QM paras. 11.2, 12.10)
795
BM para. 635.
-274-from [Ra'sRakan]to [Muharraq], without howevercorrespondingto the situation of two
adjacent States." 796 To the north of the imaginary line separating the two sectors, the
delimitation is to be effected, as Qatar correctly states, "in the open sea·" 797 Bahrain
agrees with Qatar that "it is unnecessary to make a legal characterisation of the
geographical situation in the northern sector", because the principles and rules of
international law do not differ substantially as between one case and the other, and the
798
distinction "hasno direct legal effect." Howeverthe situation in the northern sector is
characterised, the applicable rule is the customary rule of equitable principles-relevant
circumstances,whichhas the same content and methodologyas the equidistance-special
799
circumstancesrule applicableto the territorial sea delimitation in the southern sector.
In both cases, the process of delimitation starts with a provisional equidistance line
between the international legal baselines of the parties, which is then adjusted if the
relevant circumstances so require.
B. The legally relevant circumstances in the northern sector
611. Qatar is correct m referring to the issue as one of "legally relevant
circumstances." 800 Not every circumstanceis legallyrelevant. 801 Some are, others not.
796 QM paras. 12.10and 12.59.
797 Ibid. This analysis is reminiscent of the analysis made by a Chamber of the Court in the Gulf of
Maine case a propos the segment of the maritime boundary which was to be delimited "in the
outer area",i.e.beyond the line Nantucket/Cape Sable, which the parties both considered as the
closing line of the Gulf of Maine: the Court noted that "this portion of the line ... will ... be
situated in the open ocean." (Delimitation of the Maritime Boundary in the Gulf of Maine Area,
I.C.J. Reports 1984, p. 337, para. 224). One is also reminded of the Anglo-French case, where
both the parties and the award of the Tribunal distinguished between the delimitation "in the
Channel" and the delimitation "in the Atlantic Region". (U.N., RIAA, Vol. XVIII, p. 58, para.
103, and p. 96, para. 204).
798 QM para. 12.11.
799
See QM paras. ll.41, 12.14, 12.16.
800 QM para. 12.22.
801
Continental Shelf(Libya/Malta), I.C.J. Reports 1985, p. 40, para. 48. See Maritime Delimitation
in the Area between Greenland and Jan Mayen, I.C.J. Reports 1993, p. 63-64, paras. 57-58.
-275-612. Some of the circumstances which Qatar invokes as being legally relevant
undoubtedly may be so. For example, Bahrain agrees with Qatar that delimitation
agreements with third States, and in particular the Bahrain/Iran and Iran/Qatar
Agreements,may be legally relevant circumstances. 802
613. Bahrainalso agrees with Qatar'sview that a maritime delimitation should always
take into accountthe geographicalconfiguration of the Parties'respective coasts.3But
Bahrain finds Qatar's application of this principle completely unacceptable. Qatar
asserts thata quick glance at the geographical configuration of the coastlines of Qatar
and Bahrain is sufficient to show" that neither coastline has "deep indentations or
irregularities, pronounced deviations or distortions, or major anomalies", and that
neither coastline has "pronounced concave or convex features", or "sharply defined
receding coasts or coastal projections". Qatar goes on to argue that the two coasts are
804
characterisedby their regularity,their "ordinariness",and their "normality"and hence
that thereis no need to take into account "any irregularity in the general direction of the
coastlines of Qatar and Bahrain." A "quick glance" at the map shows exactly the
contrary. 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 economically interrelated islands and other relevant features, whose
aggregate coast is a complex constructof lines. Bahrain'seastern maritimefa~a dsno
less complex than the coastal fa~ad with which the Court was confronted in the
Fisheriescase.
614. Bahrain also agrees with Qatar's proposition that a significant disparity or
disproportion between the relevant coastal lengths of the Parties may be taken into
802 QM paras12.37etseq.BM para651.
803 QM para. 12.26.
804
QM para. 12.27-12.29.
-276-account as a relevant circumstance. 805 Here again, however, Qatar'sapplication of this
principle is unacceptable. Qatar measures the length of Bahrain'scoastal f~ad en the
basis of Qatar'sposition that "no account will be taken either of islands and islets or of
low-tideelevations", 806and thereby postulates a fictitious and artificial coasfa~a fdre
Bahrain, which, according to Qatar, measuresjust 55.5 kilometres (29.9 nautical miles)
807
in length. Here again, Qatar creates a caricature of Bahrain'scoastline by arbitrarily
excluding from the computation the coasts of the islands and other legally relevant
features of Bahrain. It may be recalled that in the Guinea/Guinea-Bissau case, where it
had been proposed that the Bijagos Islands not be counted in the computation of the
coastal lengths, the Tribunal said
"If the Bijagos Islands were not taken into account, the coastline of
Guinea-Bissau would be only 128 miles long. This State's coastline is
therefore affected by a coefficient of 20%, which equitably brings out the
808
importance of the islands in this case...."
615. In addition, even if there were a disparity between Bahrain's and Qatar's
respective coastal lengths, it is difficult to see how such a disparity would be relevant to
the delimitation in the northern sector, which does not lie off these coasts and is
geographically quite distant from them. The geographical configuration of the Parties'
coasts in the southern sector can by no means be held out as a relevant circumstance for
the delimitation in the northern sector, which is situated, as Qatar rightly points out, "in
the open sea". 809It is appropriate to recall how the Tribunal in the Anglo-French case
reacted to France's suggestion that the delimitation in the Atlantic Region should be
80S
QM paras. 12.30 etseq.
806 QMpara. 12.31.
807 QM para. 12.32.
808
Delimitationof the Maritime Boundaries between Guinea and Guinea-Bissau, U.N. RIAA,
Vol. XIX, p. 185,para. 97. (English version from ILR. Vol. 77, p. 679.) --
809 QM paras. 12.10 and 12.59.
-277-effected by drawing a median line by reference to the prolongation of the general
directions of the coasts of the parties in the Channel, an area geographically distinct
from the Atlantic Region. The Tribunal held that this suggestion
"... detaches the delimitation almost completely from the coasts which
actually abut on ... the Atlantic region."810
As explained earlier, therationale for treating areas in dispute as separate sectors is that
they are so geographically different that to treat them as a unit would lead to an
inequitable result. Qatar cannot at one and the same time agree that the sectors are to be
treated separately and "reach over" from one to the other sector in order to find and then
import convenient features which might influence the delimitation in an area to which
they are alien.
616. Finally, Qatar cites "the geological and geomorphological unity of the sea-bed
area" 811as a legally relevant circumstance for the delimitation of the northern sector.
The Court has held in the Libya/Malta case that "to ascribe a role to geophysical or
geological factors" in the delimitation of the continental shelf would amount to
"allot[ting] those factors a place which now belongs to the past." 812 Since geological
and geomorphological factors have ceased to be relevant for the purposes of continental
shelf delimitations, Qatar's assertion that such factors are relevant for the purpose of
delimiting an all-purpose single maritime boundary is certainly inconsistent with the
contemporary principles of law which Qatar agrees are to be applied in the instant case.
617. It is indeed difficult to understand why Qatar takes the trouble to list and analyse
the "legally relevant circumstances". No sooner has Qatar compiled its list than it
proceeds to claim a boundary which takes no account of the circumstances it has
810
U.N., RIAA, Vol. XVIII, p. 115, para. 246.
811
QM paras. 12.23 et seq.
812 Continental Shelf(Libya/Malta), I.C.J. Reports 1985, p. 36, para. 40.
-278-enumerated. The function of relevant circumstances (or factors) in the customary law of
maritime delimitation is to provide a basis for an adjustment or shift of the provisional
equidistance line, if, in view of the circumstances (or factors), such an adjustment or
shift appears necessary in order to bring about an equitable result. But Qatar'sproposed
method of delimitation in the northern sector does not at all consist of starting with an
equidistance line and then adjusting or shifting this line in the light of legally relevant
circumstances in order to arrive at an equitable result. To the contrary, Qatar proposes
to take the British 1947 line as it is, up to its terminus at the point BLV. Qatar then
proposes to draw from this point a line perpendicular to the line Ra's Rakan/Muharraq,
disregarding the segment of this perpendicular to the south of the point BLV and
conserving only the segment which is situated to the north of the point BLV. Finally,
Qatar proposes to rotate this segment from west to east. Having correctly described the
principles of the method of delimitation, Qatar ignores what it has written and proceeds
to draw a line that is oblivious to these principles.
618. In its enumeration of the relevant circumstances, Qatar fails to mention the
presence of Bahrain's pearling banks. Elsewhere in its Memorial, Qatar argues "the
irrelevance of pearl fishing for the purpose of maritime delimitation in the present
case."813 Qatar invokes two factual arguments and one legal argument in support of this
814
proposition.
619. Qatar's factual arguments are to the effect that "rights in pearl fisheries in the
Gulf were the collective property of all tribes living in the Gulf\ and that "Qatar also
had a role - even if less important than that of Bahrain - in the exploitation of pearl
fisheries." These arguments are misleading and irrelevant.
813
QM paras. 9.15 and 10.39-10.40.
814 These arguments are developedinAppendix 4 of Qatar's Memorial. QM Appendix 4, Vol. 15,
pp. 113et seq.
-279-620. Qatar'sfirst factual argument - that "rights in pearl fisheries in the Gulf were the
collective property of all tribes living in the Gulf' - amounts to an assertion that neither
Bahrain nor any other State exercised exclusive jurisdiction over any pearl fishery in the
Gulf, and a conclusion therefrom that every pearl fishery was owned in common by all
Gulf tribes.
621. Qatar's implied assertion that neither Bahrain nor any other State exercised
exclusive jurisdiction over any pearl fishery in the Gulf is true in relation to Bahrain to
the extent that Bahrain has never attempted to exclude foreign fishing vessels entirely
from any of its pearling banks, but false to the extent that it implies that Bahrain did not
purport to regulate the activities of foreign fishing vessels at these banks. The
regulations imposed by the Ruler of Bahrain, for example, in relation to the opening and
closing of the diving season, or prohibiting the use of artificial diving apparatus, were
strictly applied to and observed by all including foreigners. Again, any loss of life or
damage to property which occurred at Bahrain'spearling banks would, regardless of the
nationalities of the persons concerned, be dealt with by the Government ofBahrain. 815
622. It follows that Qatar'sconclusion that every pearl fishery was owned in common
by all Gulf tribes is incorrect.
623. Qatar's second factual argument - that "Qatar also had a role - even if less
important than that of Bahrain- in the exploitation of pearl fisheries"- is spurious. It is
based on an unwritten assumption that Bahrain'sclaim relates to the entirety of the pearl
fisheries in the Gulf and sidesteps, by a kind of verbal sleight-of-hand, the question of
which pearl fisheries Bahrain and Qatar exploited respectively.
624. Bahrain does not deny that Qatar has had a role in the exploitation of pearl
fisheries, or even that there are pearling banks which might be said to belong to Qatar in
SIS See the statement of Jabor Mussallam dated 26 October 1950, p. 2. BM Ann. 349, Vol. 6,
p.1503 and QM Ann. IV.254, Vol. 12,p.45.
-280-the same sense in which the pearling banks claimed by Bahrain can be said to belong to
Bahrain. The essential point is that Qatar's role in the exploitation of the pearling banks
claimed by Bahrain was very inferior to that of Bahrain, and indeed was almost non
existent.816Qatar'scrude attempt to evade the debate on this point is an admission that
Qatar is unable to produce evidence of Qatari activity in relation to Bahrain's pearling
banks which competes in any serious respect with the evidence of Bahraini activity
which Bahrain has put forward.
625. Qatar'slegal argument is to the effect that the exploitation ofpearling banks does
not confer on the exploiting State a right over the continental shelf where the banks are
situated but that, to the contrary, it is the right over the continental shelf which confers
on the State the right to exploit the pearling banks. This argument misrepresents
Bahrain's position. Bahrain does not argue that an entitlement to the continental shelf
derives from the exploitation of pearling banks situated on this shelf. Rather, Bahrain
submits that the presence of pearling banks which have traditionally been exploited by
its citizens, under its jurisdiction and control, constitutes a legally relevant
circumstance which must be taken into account when the Court arrives at the stage of
817
determining "the relative weight to be accorded to different considerations. " In the
Jan Mayen case, the Court explicitly addressed "the question whether access to the
resources of the area of the overlapping claims constitutes a factor relevant to the
delimitation." The Court replied to this question in the affirmative, recalling that, in
regard to the continental shelf, it had previously declared that "[t]hose resources are the
essential objective envisaged by States when they put forward claims to sea-bed areas
containing them." 818 This consideration led the Court in the Jan Mayen case to consider
816
Ibid
817 Maritime Delimitation in the Area between Greenland and Jan Mayen, I.C.J. Reports 1993,
p.63,para.58.
818 Op. cit., p. 70, para. 72.
-281- 819
as a legally relevant factor "the equitable access to fishery resources". Qatar
recognises that "sedentary fisheries -a category to which pearl fishing undoubtedly
belongs - are considered as resources of the continental shelf." 820 The control and
jurisdiction traditionally exercised by Bahrain over certain pearling banks in the
northern sector, together with the traditional exploitation of these pearling banks by
Bahrain'scitizens and vessels, constitutes a relevant circumstance which may affect the
position of the boundary line. This, precisely, is the argument on which Bahrain bases
its request that the provisional equidistance line in the northern sector be shifted so as to
take this factor into account.821
626. In the light of these general considerations, Bahrain will now proceed to analyse
critically the delimitation method claimed by Qatar in the northern sector. In this
respect, it is necessary to distinguish the segment of the boundary claimed by Qatar
situated to the south of the point BLV and the segment of this boundary situated to the
north ofBLV.
C. The segment of the single maritime boundary requested by Qatar to the
south of point BLV, i.e., from the so-called closing line northwards to point
BLV
627. Qatar states that "Up to the turning point of BLV, the boundary corresponds to
the line laid down by the 1947 decision." 822 The defects in this method, which consists
of simply taking the 1947 line which Qatar acknowledges not to be a binding maritime
boundary, as the single maritime boundary, without demonstrating that such a line is
required by the application of contemporary equitable principles, have been
819
Op.cit.p. 71, para. 75.
820 QM para. I0.40; Appendix 4, para. 24.
821 BM paras. 638 and 653.
822
QM para. 12.62.
-282-demonstratedabove. 823 They need not be repeated in detail here. These defects are even
more glaring in the northern than in the southern sector. The points NSLB and BLV
bear no relationship whatever to the coastal geography. The only basis which Qatar has
been able to fmd for these points is that they were "probably" chosen in order to
facilitate maritime access to Bahrain. In short, as noted above, 824the segment of the
boundary claimed by Qatar to the south of BLV has no known raison d'etre,
justification or explanation. In proposing this segment, Qatar acts in contradiction to the
principles and rules of maritime delimitation which the Court has laid down, and which
Qatar'sMemorial itself recalls.
D. The segment of the single maritime boundary requested by Qatar to the
north of point BLV
(i) The delimitation method proposed by Qatar
628. The segment of Qatar'sclaimed maritime boundary situated to the north of the
point BLV is even more unjustifiable. If Bahrain has correctly understood Qatar's
Memorial in this respect, Qatar requests that the Court adopt the following process of
delimitation:
(a) The starting point of Qatar'sproposed delimitation process is that "[t]he single
maritime boundary ... in the northern sector must necessarily pass through point
825
BLV." Why? Because- so Qatar says- this is the "terminal point" of the
1947 line, and "there is no other objective factor in this part of the delimitation
area which could be taken into consideration." 826
823 See supra,paras. 552et seq.
824
See supra,paras. 606et seq.
825 QM para. 12.62.
826 QM para. 11.42.
-283-(b) Once this "anchor point" has been chosen, Qatar'sproposed method consists of
drawing through the point BLV a perpendicular to the "closing line" Ra's
Rakan/Mulmrraq. This produces the line RIBLV/S on Map N° 20 of Qatar's
Memorial, reproduced here as Map 7.
(c) The line RIBLV/S, which is perpendicular to the "closing line" and passes
through the "anchor point" BLV, nevertheless is not, as such, the boundary
claimed by Qatar in the northern sector. To become Qatar's claimed boundary,
the perpendicular RIBLV/S must undergo two transformations.
(d) Transformation n° 1: between the point R, situated on the "closing line", and the
point BLV, the perpendicular is reduced to a dotted line, fading away, in some
mysterious fashion, so as to give place to the corresponding segment of the
British 1947 line, which lies further to the west (passing through NSLB) and is,
therefore, more favourable to Qatar. Between the points R and BLV, in other
words, the perpendicular vaunted by Qatar as being "very well suited to the
geography of the area" 827is set aside in favour of the 1947 line, which is
manifestly not based upon perpendicularity. "[T]he boundary must be drawn in
accordance with the perpendicularity method", 828 so Qatar asserts, but the
boundary claimed by Qatar to the south of BLV is in fact the 1947 line, which is
not at all a perpendicular.
(e) Transformation no 2: in the light of the fact that the intersection of Qatar's
perpendicular with the continental shelf boundary agreed in the Bahrain/Iran
Agreement of 1971- i.e.,pointS on Qatar'sMap N° 20- turns out to be situated
1,271.97 metres to the west of point 2 of the Bahrain/Iran Agreement, which
under the Bahrain/Iran Agreement is the westernmost possible location for the
827 QM para. 12.43.
828 QM para. 12.62.
-284- SD"OO' £ 5010l s40' f ~0SO' I 51 '00 E 5110t 510 E
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MAP No 21 eastern terminus of the Bahrain/Iran continental shelf boundary, Qatar proposes
"for the sake of simplicity" to rotate the line R/S of its Map N° 20 towards the
east, so as to make its northern terminal point coincide with point 2 of the
Bahrain/Iran continental shelf boundary. 829 As a consequence of this rotation,
the segment of the perpendicular which is situated to the south of BLV (shown
as a dotted line on Qatar's Map N° 20) is no longer aligned with the segment
which is situated to the north ofBLV. In order to reconstitute a straight line and,
hence, avoid creating an angle at the point BLV, Qatar proposes to slide the
point R of its Map N° 20 by 822.24 metres towards the west, so as to become the
point T of Qatar's Map N° 21. Nevertheless, the corrected segment T/BLV is
also shown as a dotted, and therefore fictitious, line, because south of the point
BLV Qatar continues to claim the relevant segment of the 1947 line as the
maritime boundary, rather than either the original or the corrected perpendicular.
The line R/BL V/S, and the so-called "modified perpendicular" line T/BLV/2, are
shown on Map No 21 of Qatar'sMemorial, reproduced here as Map 8.
(f) The scope and effect of these two transformations are shown on Map 9.
(ii) The perpendicularity method
629. Qatar's Memorial dwells on the merits of the perpendicularity method.
According to Qatar, the major advantage of this method is that it "is derived from the
same rationale as the equidistance method. In fact it is only a variant of that method." 830
This is correct, so far as it goes. For territorial sea delimitations between adjacent
coasts, the perpendicular to the coastal direction at the intersection of the land boundary
829 It may be noted that point 2 is described by Qatar as "a very significant reference point...
because it is the Qatar/Iran/Bahrain tripoint" (QM para. 12.72). Qatar, however, states elsewhere
in its Memorial, quite rightly, that "the Court has no jurisdiction to determine the
Qatar/Iran/Bahrain tripoint without the express consentan." (QM para. 12.42; see also QM
para. 12.64,n.154.)
830 QM para. 12.44.
-285-with the coast has indeed found favour as a delimitation method in the past, because it
permitted the equal division of the area of overlap; it was perceived to have the same
advantage as the median line between opposite coasts. As a Chamber of the Court was
to observe in the Gulf of Maine case:
"[t]he method of the perpendicular was probably the oldest method to
come to mind when problems arose in the delimitation by adjacent States
of their territorial sea."1
Gidel saw in the perpendicularity method, as Mililchhad seen before him:
"une modalite speciale de la ligne mediane entendue au sens large [a
specific application of the median line as broadly understood]." 832
The perpendicular between adjacent coasts and the median line between opposite coasts
were envisaged, not as divergent methods, but as variants of a single method. Gidel
thus noted:
"[la] [f]aveur generalement rencontree en pratique et en doctrine par la
solution de la ligne mediane perpendiculaire ala direction generale de la
cote [the favour which the median line perpendicular to the general
direction of the coast has generally received in practice and in scholarly
commentary]",
and added that:
"la solution de la ligne mediane ou perpendiculaire a re9u un certain
nombre d'applications positives [the solution of the median or
perpendicular line has been applied in practice on a number of
occasions]." 833
630. What Qatar's Memorial omits to state, however, is that it became rapidly
apparent that the perpendicularity method is too crude to attain the desired objective of
831 I.C.J. Reports 1984, p. 320, para. 175.
832 G. Gidel, Le droit international public de Ia mer, Paris, Sirey, 1932-1934, Vol. III, p. 769. See
E. MUnch,Die Technischen Fragen des Kustenmeers, Kiel, 1934, p. 156.
833
Op. cit., pp. 768-769.
-286- 50°30'
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LEGEND:
Single maritime boundary requested by
Qatar (northern sector)
y R-S : perpendicular to MQ-RK passing through BLV
AIArish2-BLV : segment of the boundary claimed by Qatar
BLV-T: prolongation of this segment to the MQ-RK line
BOUNDARY REQUESTED BY QATARIME
(NORTHERN SECTOR)
0 5 10nauticalmiles
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, Q A T A R 0._.. ___ ..__~.......!.O.ittemilesan equal division of the maritime zones whenever the coast is not rectilinear and it is,
accordingly, difficult to identify its general direction. This desired objective can only be
attained in the case of perfectly rectilinear coasts, which do not occur often in nature. In
the real world, coasts are not often perfectly straight. Hence the acute problem of
defining the general direction of the coast. As the Special Adviser on Geography of the
United States Department of State, S.W. Boggs, pointed out, the perpendicularity
method
"... is open to criticism because it is not always feasible to determine the
general trend of the coast: how much coast should be taken into
consideration for this purpose - a distance of three miles on each side of
the land boundary, or five miles, ortwenty miles?" 834
631. Qatar'sMemorial also omits to state that, owing particularly to the writings of
Boggs, 835the more scientifically developed equidistance method has progressively come
to replace the comparatively primitive perpendicularity method. As an example of this
tendency, the Committee of Experts consulted by the International Law Commission in
1953- of which Boggs was a member- noted that in many instances it is impracticable
to establish any "general direction of the coast" and that the result would depend on the
scale of the chart used for the purpose and the somewhat arbitrary decision as to how
much coastline should be utilised in attempting to determine any "general direction of
the coast". The Committee of Experts therefore ruled out the perpendicularity method
and recommended the use of the equidistance method, i.e.,drawing a line every point of
which is equidistant from the two coasts, for both territorial sea and continental shelf
delimitations, between opposite as well as adjacent coasts. 836 As Professor Fran~ois,
834 S.W. Boggs, "Problems of Water-Boundary Defmition: Median Lines and International
Boundaries Through Territorial Waters", Geographical Review, Vol. 27, 1937, p. 454.
835
Op. cit.pp. 447et seq.See also International Boundaries. A Study of Boundary Functions and
Problems, New York, Columbia University Press, 1940, pp. 178 et seq.;"Delimitation of
Seaward Areas under National Jurisdiction", American Journal of International Law, Vol. 45,
1951, pp. 239et seq.
836
Yearbook of the International Law Commission 1953, Vol. II, p. 77.
-287-Rapporteurspecial to the International Law Commission, was to note the following
year:
"Ia methode de Ia ligne tiree perpendiculairement a Ia direction generale
de Ia cote manque de precision juridique [the method of drawing a line
perpendicular to the general direction of the coast is not legally
precise]."837
The Commission supported the proposals of the Committee of Experts. 838
632. The equidistance method is, therefore, a scientifically more developed and
refmed version of the perpendicularity method. In fact, the technique of the
equidistance method incorporates that of the perpendicularity method. Since the line of
equidistance between two points is by definition the perpendicular bisector of the line
joining the two points, an equidistance line is, in the fmal analysis, nothing other than a
succession of perpendiculars. The disadvantages inherent to the strict perpendicularity
method have, nevertheless, discouraged its use, in State practice and in international
jurisprudence, except in the rare geographical situations where that method and the
equidistance method are interchangeable, particularly where the delimitation is between
virtually rectilinear coastsor seawards of a bay the imaginary closing line of which is,
by definition, perfectly rectilinear. Qatar recognises that the perpendicularity method
has been employed in State practice and international jurisprudence in these "two
839
geographical contexts". Qatar fails, however, to state that it is only in these two
exceptional situations, where it is identical with the equidistance method, that the
perpendicularity method has been used, and that it has been abandoned for all other
situations.
837
Op.cit.1954, Vol. II, p. 6.
838 Op.cit.1956, Vol. II, p. 272.
839 QM para.12.48.
-288-(iii) The perpendicular to the general direction of the coast
633. It is difficult to understand why Qatar considers it useful to dwell on the use of a
perpendicular to the general direction of the coast. 840 Qatar obviously does not purport
to justify its use of a perpendicular in the northern sector on this basis, but rather on the
basis that a perpendicular in the northern sector is analogous to a perpendicular to the
closing line of a bay or estuary.
634. Moreover, in several of the examples of State practice cited by Qatar, the
perpendicularity method was employed precisely because the result to which it led was
exactly the same as the result which the equidistance method would have produced.
Thus, the 1958agreement effecting a territorial sea delimitation between Poland and the
USSR in the Gulf of Gdansk defines the delimitation line as "a line perpendicular to the
shoreline at the terminal point of the Polish-Soviet State frontier". But, as Eric Frankx
notes in his commentary:. "The method used to determine the turning and terminal
points was strictly equidistance." 841 So also the Brazil/Uruguay Agreement of 1972. 842
Although it defines the maritime boundary between the respective countries as "a line
running ... in a direction nearly perpendicular to the general line of the coast," the
analysis in Limits in the Seas (N° 73) notes that it was first agreed by the two
Governments to delimit their boundary "in accordance with equidistance" and, as
Eduardo Jimenez de Arechaga has observed in his commentary, the perpendicular
agreed upon "achieved substantially the same result" as an equidistance line. 843 As for
the Costa Rica/Panama Agreement of 1980, it defines the maritime boundary as:
840 QM para. 12.48.
841 J.L Charney and L.M. Alexander (eds.),op. cit., Vol. II, pp. 2039 et seq., at p. 2045.
842
Op. cit., Vol. I, pp. 785 et seq.
843 Charney and Alexander, op. cit., Vol. I, p. 786.
-289- "the median line every point of which is equidistant from the nearest
points of the baselines from which the breadth of the territorial sea of
each State is measmed". 844
This boundary, the commentary in Limits in the Seas {N° 97) remarks:
"may be said to be akin to a perpendicular to the general direction of the
coastline measured in the area of the land boundary terminus."
635. As to the jurisprudence cited by Qatar, the arbitral award of 1909 in the
Grisbadarna case was decided at a time when the technique of equidistance was
unknown; it is therefore of no precedential value in this regard. In the Tunisia/Libya
case,the Court drew a perpendicularto the coastline for a short segment of the boundary
only, close to the coast, because, as it noted:
"a line drawn perpendicular to the coast becomes, generally speaking, the
less suitable as a line of delimitation the further it extends from the
845
coast."
Itmight be added that, as with the boundary in the Grisbadarna award, the origin of the
line in Tunisia/Libya predated the development of modem methods of delimitation. In
the final analysis, the only precedent worthy of the name is the arbitral award in the
Guinea/Guinea-Bissau case, where the Tribunal used a perpendicular to a line
representing the general direction of the coasts over a distance of 800 kilometres,
crossing the land territory of the two States for nearly 350 kilometres, in some places
nearly 70 kilometres inland. This was surely an exceptional case.
(iv) The perpendicular to the closing line of a coastal concavity
636. In its attempt to give credence to the delimitation method which it proposes in
the northern sector, Qatar does not in fact rely on the precedents employing a
perpendicular to the general direction of the coasts, but on those which employ a
844
Charney and Alexander, op. cit., pp. 537 et seq., at p. 543.
845
I.C.J. Reports 1982, pp. 87-88, para. 125.
-290-(I ~9· ) \ ~1• ~s· ) sj•
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MAP No19perpendicularto the closing line of a coastal concavity. Two such precedents are cited
by Qatar. One precedent, the Treaty of Rio de Ia Plata of 1973 between Argentina and
Uruguay, is an example drawn from State practice; the other is the judgment of a
Chamber of the Courtin the Gulf of Maine case.
637. Itis difficultto see what assistance Qatar hopes to derive from the Treaty of Rio
846
de la Plata. Article 70 of this Treaty explicitly definesthe maritime boundary, beyond
the imaginary closing line of the Rio which joins Punta del Este (Uruguay) and Punta
Rasa del Cabo SanAntonio (Argentina), as a line equidistant between these two points.
Qatar correctly observes that this line could just as well have been defined as a
perpendicularto the closing line ofthe Rio drawn from the midpoint of that closing line.
What this precedent demonstrates is that in a situation characterised by a perfectly
regular coastline(be it real, or, as in the case of the Treaty, imaginary), the equidistance
and perpendicularity methods lead to the same result - which no one denies. This
precedent gives no support to the proposition that the perpendicularity method is to be
preferred, since, to the contrary, the parties to the Treaty referred explicitly to the
equidistancemethodto define the boundary which they agreed to delimit.
638. In the Gulf of Maine case, the maritime boundary in the outer area, i.e.,in the
area beyond the closing line of the Gulf (which, as the two parties agreed, ran from
NantucketIsland to Cape Sable), was defined by the Chamber as a perpendicular to this
closing line commencing at the intersection of the previous segment with the closing
line. Given that the previous segment consisted of a median line between opposite
coasts which was shifted towards the east, the starting point for the perpendicular was
not situated at the midpoint of the closing line, but was also displaced towards the
847
east. Therefore, in the words of Professor Weil (quoted by Qatar), the perpendicular
846 QM paras. 12.50et seq.See Map N° 18of Qatar'sMemorial, reproduced here as Map 10.
847
I.C.J. Reports 1984, pp.336-337, para. 222-224. See Map N° 19 of Qatar's Memorial,
reproduced here as Map 11.
-291-in the areas outside the Gulf was "the equivalent of an equidistance line controlled by
848
two points at the far endsof the closing line and shiftedeastwards."
639. From these two precedents, Qatar concludes that in certain geographical
conditions "the perpendicularitymethod allows a reasonable and equitable delimitation
of maritime areas lying off a coastal concavity, be it deep or shallow, an estuary or a
gulf." Qatar adds that the technique is simple: "It is sufficient to draw the line
perpendicular to the imaginary closing line of the indentation concerned." As for the
starting point of the seawardsegment of the boundary, Qatar writes that:
"it corresponds to a point situated on the closing line of the concavity,
which point may coincide, but does not necessarily do so, with the mid
point of the closingline."849
(v) In the present case there is no coastal concavity.•.
640. In attempting to apply these principles to the northern sector, Qatar'sreasoning
goes astray in severalrespects.
641. 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 .firma. The waters between Bahrain and Qatar are, rather, a channel open
on both sides. Of this Qataris perfectly aware:
"It is quite clear that the territories of Qatar and Bahrain do not meet in
the south.... In this respect, they are different from the territories of
Argentina and Uruguay which meet at the end of the Rio de la Plata; they
are also different from the territories of Canada and the United States
which are contiguous at the end of the Gulf of Maine." 850
848
P. Weil, The Law of Maritime Delimitation- Reflections, Cambridge, Grotius (1989), p. 275.
849
QM para. 12.57
850 QM para. 12.59. See para. 12.58.
-292-It is atthis precisepoint that Qatar'sargumentbreaks down. The situation in the present
case, Qatarrecognises, is not that of a "pronounced coastal concavity"; it is neither that
of the Rio de la Plata, nor that of the Gulf of Maine. It is, so Qatar argues, "related to
sucha situation", 851"reminiscent"of such a situation:the word "reminiscent" appearsno
fewer than five times in a few lines. 852 Qatar'sclaim to apply the methodology of the
Rio de la Plata - which, be it recalled, is defmed by the Treaty itself as that of
equidistance and not that of perpendicularity - to "a geographical configuration which,
while not in the strict sense of the word a gulf or an estuary, is certainly reminiscent of
such a configuration", 853 is based upon an indefensibleconceptual shift.
(vi) •••and, therefore, no "closing line"
642. Having thus extended a method which, in certain circumstances, is appropriate
for a gulf or estuary, to what Qatar recognises to be neither a gulf nor an estuary but
merely something "reminiscent" of these, Qatar proceeds to extend the concept of a
"closing line", which is valid for gulfs and estuaries, and wrongly applies it to a
situation which is neither a gulf nor an estuary. Wherever Qatar'sMemorial discusses
the separation between the two sectors, it refers simply - and quite correctly - to a
"notional line" or an "imaginary line" from Ra'sRakan to Muharraq. 854 When it comes
to the discussion of the delimitation method applicable to maritime areas lying off a
coastal concavity, an estuary or a gulf, Qatar's Memorial refers to "the line
perpendicularto the imaginaryclosing line of the indentation concerned." 855 Contraryto
what Qatar would have one believe (see Maps N° 17, 20 and 21 of Qatar'sMemorial),
851
QM para. 12.49.
852 QM paras. 12.58-12.59.
853
QM para. 12.58
854
QM paras. 11.2 and 12.10. See para. 12.61.
855 QM para. 12.57. (Emphasis added.)
-293-however, the line Ra'sRakan/Muharraq is not in any sense a "closing line". This shift in
meaning extends and confirms Qatar's original conceptual shift. Qatar would have the
Court believe that the present case concerns the delimitation of a gulf, one segment of
the maritime boundary being situated in an inner area, within the gulf, the other segment
being situated in an outer area, outside the gulf, and the two areas being separated by the
closing line of the gulf. This characterisation is pure fantasy, and Qatar's incorrect
usage of the term "closing line"- a term of art (see Art. 10(4) of the 1982 Convention)
which does not have infinitely elastic meanings - is just as unacceptable as Qatar's
incorrect treatment of the maritime boundary delimitation between Bahrain and Qatar as
a delimitation of a gulf or estuary.
(vii) The single maritime boundary requested by Qatar to the north of point
BL V is a perpendicular only in name
643. The method which Qatar purports to apply in the northern sector is, in fact, not
the method of perpendicularity at all, but an arbitrary method which has nothing in
common with the perpendicularity method except appearances.
644. The method which Qatar has devised does not start from what Qatar itself calls
the starting point of the perpendicular, i.e., the point on the imaginary line Ra's
Rakan/Muharraq at which the perpendicular to this line is to be erected. Qatar's method
starts from BLV, because Qatar regards it as axiomatic that the single maritime
boundary in the northern sector "must necessarily pass through point BLV" - in Qatar's
words, a "true reference point or anchor point" and a "turning point" of the greatest
importance. 856 The location of the starting point of Qatar's so-called perpendicular is
thus determined by a point which is external to the line Ra's Rakan/Muharraq, and
which is, in fact, situated considerably to the north of this line. The point R on Qatar's
Map N° 20 has not been selected on its own merits. Itis merely the consequence - the
856
QM paras. 12.5 and 12.62.
-294-side-effect, one might say - of the choice of the point BLV as the anchor point of the
perpendicular. The method followed in the delimitations of the Rio de la Plata and of
the Gulf of Maine was completely different: in these two cases, the starting point of the
perpendicular on the closing line was selected on its own merits, not on the basis of a
point external to the closing line. Point R of Qatar'sMap N° 20 is not the starting point
on the so-called closing line, it is not "the base of the boundary of the seaward maritime
areas" - as Qatar admits it should be. Point R is no more than a result of the arbitrary
choice of the point BLV as the anchor point of the perpendicular. The Qatari
perpendicular does not start from the so-called closing line. It starts from the point
BLV.
645. Contrary to the precedents of the Rio de la Plata and the Gulf of Maine, the so
called perpendicular which Qatar claims does not "follow or continue the line drawn" in
the inner area. This is plainly apparent from Map N° 20 in Qatar's Memorial. The
boundary which Qatar claims between the so-called closing line and the point BLV is
not a perpendicular. The segment RIBLV on Qatar's Map No 20, and the corrected
segment T/BLV on Qatar'sMap N° 21, are both shown as dotted lines; neither is the
boundary which Qatar claims; they are both phantom perpendiculars. In short, having
trumpeted the virtues of the method of drawing a perpendicular to a closing line, Qatar
claims a boundary N/NSLB/BL V which bears no relation whatever to a perpendicular.
646. Only to the north ofthe point BLV is Qatar'sperpendicular shown as a solid line.
But as this perpendicular is attached to no point on the land, it is not governed by the
coastal geography. In the Treaty of the Rio de la Plata and in the Gulf of Maine case the
land points at the two extremities of the closing line played a decisive role. Here, by
contrast, the so-called perpendicular which Qatar claims is independent of any coastal
points. The segment of the boundary claimed by Qatar northwards of the point BLV, so
Qatar explains, "corresponds to the perpendicular from BLV" on the so-called closing
-295-line, "it being understood that this perpendicular has been slightly modified so that the
end point of the boundary in the northern sector can coincide" 857 with point 2 of the
Bahrain/Iran Agreement, which Qatar then refers to as the Qatar/Iran/Bahrain tripoint.
A "modified" perpendicular, however, is simply not a perpendicular. For all its talk of
perpendicularity, Qatar's line is determined by the point BLV, a point which bears no
relation to geographical reality, whose rationale is unknown, and which Qatar surmises
was "probably" chosen for reasons related to navigation. The real and only raison d'etre
of the point BLV is that it is situated on the British 1947 line. Qatar's affirmation that
the "geometrical method" of perpendicularity "is based on the coasts of the Parties
themselves, and on the northernmost points of their respective territories" 858 is
contradicted by the manner in which Qatar purports to apply this method to the present
case. Qatar's insistent reminders of the primacy of geographical reality 859are reduced to
empty platitudes when Qatar comes to apply the perpendicularity method to the concrete
facts of the case.
E. The proportionality test in Qatar's Memorial
647. The a posteriori proportionality test, which Qatar has seen fit to append to its
claim, 860is just as arbitrary. In the light of the findings of the Court in the Jan Mayen
case, this type of exercise is today irrelevant. The Court considered that "the disparity
between the respective coastal lengths of the relevant area" is a relevant circumstance
which must be taken into account; a "significant" disparity, the Court said, "must be
taken into consideration during the delimitation operation." The Court, however, added
that
857
QM para. 12.72.
858 QM para. 12.43.
859
QM para. 12.26.
860 QM para. 12.65.
-296- "It is not a question of determining the equitable nature of a delimitation
as a function of the ratio of the lengths of the coasts in comparison with
that of the areas generated by the maritime projection of the points of the
coasts. n861
862
648. Bahrain has demonstrated above that there is no significant disparity between
Bahrain'sand Qatar'srespective coastal lengths. There is therefore no justification for
adjusting the equidistance line to be drawn in the southern sector. There is still less
justification for such an adjustment in the northern sector, which is removed from any
coast, "in the open sea", as Qatar correctly states, and whose only reference points on
land are the northernmost points of the two countries (Ra'sRakan and Fasht ad Dibal,
according to Bahrain; Ra'sRakan and Muharraq, according to Qatar).
649. The proportionality test, then, has no application in the instant case. As a result,
Bahrain sees no reason to engage in a detailed analysis of Qatar'spurported application
of the proportionality test. Bahrain simply points out the absurdity of Qatar'sattempt to
compare the ratio ofthe areas of the respective maritime zones delimited by its proposed
boundary in the northern sectorwith the ratio of the Parties'respective coastal lengths in
the southern sector. 863 Once again, Bahrain recalls the rejection by the Tribunal in the
Anglo-French case of France'sproposal for a delimitation of the Atlantic Region along a
median line delimited by reference to the prolongation of the general directions of the
Channel coasts of the two countries. 864 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.
861 I.C.J. Reports 1993, pp. 67-68, paras. 65-68.
862
See supra, paras. 614 et seq.
863 QM paras. 12.70-12.71.
864 See supra, paras. 589 and 615.
-297-SECTION8.4 The single maritime boundary requested by Qatar is not in
accordance with the fundamentals of the law of maritime
delimitation
A. The single maritime boundary requested by Qatar disregards the very
concept of maritime delimitation
650. In its judgment in the Maritime Delimitation in the Area between Greenland and
Jan Mayen case, the Court held that:
"... maritime boundary claims have the particular feature that there is an
area of overlapping entitlements, in the sense of overlap between the
areas which each State would have been able to claim had it not been for
the presence of the other State; this was the basis of the principle of non
encroachment enunciated in the North Sea Continental Shelf cases." 865
There is no place for maritime delimitation unless the entitlements of two States
overlap, and delimitation is nothing other than the division of what the Court called in
that case "the area of overlapping potential entitlement". 866 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.
651. By looking again at Map N° 14 of Qatar'sMemorial, reproduced here as Map 4,
one can see that - even assuming (which Bahrain denies) the Hawar Islands and the
Zubarah Region to belong to Qatar, and even ignoring (for which Bahrain sees no
justification) the other Bahraini maritime features - the boundary requested by Qatar
runs partially, if not mostly, within the territorial sea of Bahrain (shown in pink on the
map), and not within the area of overlap of the 12-mile projections of the two States.
865 I.C.J. Reports 1993, p. 64, para. 59.
866
Op. cit., p. 47, para. 19. On this concept, seeP. Weil, op. cit., p. 47.
-298-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'smain island are to be ignored, for a major part of its extent Qatar's
proposed boundary encroaches upon Bahrain's 12-mile entitlement only, while leaving
Qatar's12-mileentitlementintact.
B. The single maritime boundary requested by Qatar disregards the principles
and rules governing the delimitation process
652. Qatar rightly emphasises the importance of the principle of the "primacy of the
general configuration of the coasts of the States which are parties to a delimitation
process." 867 As the Chamber of the Court stated in the Gulf of Maine case, "[t]he
delimitation line to be drawn in a given area will depend upon the coastal
configuration." 868 The boundary which Qatar claims violates this principle in the
southern sector by disregarding the true coasts of the insular and archipelagic ensemble
which constitutes the State of Bahrain and taking into account exclusively the coastline
of the main island of Bahrain, which is merely one of the components of this ensemble.
It violates this principle in the northern sector because it systematically disregards the
configurationof the Parties'respective coastsand depends exclusively and arbitrarily on
the British 1947 line, which is, itself, detached in this sector from any coastal
considerations.
653. Qatar correctly emphasises the unity of the rules governing the delimitation
process under contemporary internationallaw. 869Whetherthe delimitation concerns the
territorial sea, the continental shelf, the exclusive economic zone or a single maritime
867 QM para. 12.26.
868 I.C.J. Reports 1984, p. 330, para. 205.
869
QM paras. 11.37, 11.41, and 12.13-12.16.
-299-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. Qatar'sclaim, however, completely fails to comply with this principle.
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 southwardsof 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'sproposed method is completely different: Qatar takes as its provisional line the
British 1947 line as far north as the point BLV, and a line passing through BLV,
perpendicular to a so-called closing line. 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.
-300-C. The single maritime boundary requested by Qatar disregards the
fundamental principle that an equitable solution is "the aim of any
delimitationprocess"
654. This principlewas reaffirmedon several occasions in the Maritime Delimitation
870
in the AreabetweenGreenlandand Jan Mayencase.
655. The single maritime boundary claimed by Qatar disregards a significant
proportion of Bahrain'scoastline: not only the coasts of the Hawar Islands and of the
ZubarahRegion,but also the coasts ofFasht ad Dibal, Qit'atJaradah and all of the other
legally relevantfeatures which together make up the State of Bahrain. By no stretch of
imagination can such a boundary be regarded as an equitable result as required by
internationallaw.
656. To the north of latitude 26° approximately, the single maritime boundary
requestedby Qatar allocates to Qatar more than its 12-mileterritorial sea while leaving
to Bahrain less than its 12-mileterritorial sea. This is particularly unacceptable to the
north of Qit'atJaradah, where the coasts of Bahrain and Qatar are separated by more
than 24 miles and where there can be no justification for a boundary which amputates
the territorial seaof one Party while leaving to the other more than the entirety of its
territorial sea. By no stretch of imagination can such a boundary be regarded as an
equitableresult as required by internationallaw.
870
I.C.J. Reports 1993, p. 59, para. 48; p. 62, para. 54 (ineach and every situation must
be to achieve an equitable result"); p. 69, para. 70 (an equitable result "is the objective of every
maritime delimitation based on law").
-301- SUBMISSIONS
In view of the facts and arguments set forth in Bahrain'sMemorial and in this Counter
Memorial;
May it please the Court, rejecting all contrary claims and submissions, to adjudge and
declarethat:
1. Bahrain is sovereignover Zubarah.
2. Bahrain is sovereign over the Hawar Islands, including Janan and Hadd
Janan.
3. In view of Bahrain'ssovereignty over all the insular and other features,
including Fasht ad Dibal and Qit'at Jaradah, comprising the Bahraini
archipelago, the maritime boundary between Bahrain and Qatar is as
described in Part Two of Bahrain's Memorial and in this Counter
Memorial.
Bahrain reserves the right to supplement or modify the preceding submissions.
(Signed)------------------------------------------------
Jawad Salim AIArayed
Minister of State and Agent of the State of Bahrain
-302- APPENDICES
1. LIST OF ILLUSTRATIVE MAPS IN THE COUNTER-MEMORIAL
2. LIST OF DOCUMENTARY ANNEXES
-303- APPENDIX I
LIST OF ILLUSTRATIVE MAPS IN THE COUNTER-MEMORIAL
Map No. Description
1. The maritime boundary proposed by Bahrain
2. The single maritime boundary requested by Qatar
3. The British 1947line and the single maritime boundary requested by Qatar
4. Map N° 14 of Qatar'sMemorial
5. British 1947 line with 3 nautical miles projection from Bahrain main island
and from Qatar
6. Map N° 16 of Qatar'sMemorial
7. Map N° 20 of Qatar'sMemorial
8. Map N° 21 of Qatar'sMemorial
9. The single maritime boundary requested by Qatar (northern sector)
10. Map N° 18 of Qatar'sMemorial
11. Map N° 19 of Qatar'sMemorial
-304- APPENDIX2
LIST OF DOCUMENTARY ANNEXES
-305- Annex Description Page No.
No.
1(a) AI Emir AI Hafiz Ibn Makola, in AI Ikmal Vol. 1, p. 99 (475HI 1
1082 AD)
1(b) Translationof AI Emir AI Hafiz Ibn Makola, in AI lkmal Vol. 1, 2
p.99
2(a) Sam'ani, in AI Ansab Folio 180/Manuscript (562 Hl1166 AD) 3
2(b) Translationof Sam'ani, in AI Ansab Folio 180/Manuscript 4
3(a) Yaqut al Hamawi, in M'ojam al Buldan Vol. 1, p. 315 (622 HI 5
1228 AD)
3(b) TranslationofYaqut al Hamawi, in M'ojam al Buldan Vol. 1, 6
p.315
4 7-9
Report of the British Political Resident to the Political Department
of the Government oflndia, 2 February 1863, Letter No. 38 of 1863
Bombay Archives, Political Department File No. 248
5 Understanding between representative of the Ruler of Bahrain and 10-12
representative of the Sheikhs of the Doha confederation, 10 April
1869 (lOR L/P&S/9/15)
6 Despatch from British Political Resident, 18 November 1869, 13
Supplement to the Gazette oflndia, 22 January 1870
7 Letter from the British Political Resident to the Chief and Members 14-15
of the Dowasir Tribe at Budaiya and Zellaq, 21 November 1869,
Supplement to the Gazette of India, 22 January 1870, pp. 66-67
8 Report to British Political Resident, dated 1 May 1870, Bombay 16-17
Archives, Political Department Vol. 105, (1869)
9 Major S. Smith, Report of the Assistant British Political Resident 18
from Biddah, 20 July 1871 (R/15/2/E/11 0)
IO(a) F. Wiistenfeld, Bahreinund Jemama, (1874), pp. 6-10 19-24
10(b) Translation ofF. Wiistenfeld, Bahrein und Jemama, (1874), 25-29
pp. 6-10
11 Letter from News Agent, Bahrain, to British Political Resident, 30-31
14 October 1874 (R/15/2/E/10)
12 Report from Officiating 2nd Assistant Resident to British Political 32-34
Resident, 8 March 1875 (lOR P/775)
-306-13 Letter from News Agent, Bahrain, 16 March 1875 (lOR P/775) 35
14 Translated purportf a letter from Jasim bin Thani, El-Bida, to 36
British Political Resident, (included in a collection of 1880
correspondence) (lOR P/1741)
15 Letter from Sheikh Jasim Al Thani to British Political Resident, 37-38
24 November 1880, Bombay Archives, Political Department File
No. 1680, Vol. 158 (lOR P/1741)
16 Report from Lieutenant A. R. Stock to Commander G.W. Hand 39-40
(H.M.S. Beacon, Senior Officer in Persian Gulf), 4 December 1880
(lOR P/1741)
17 Note from British Political Resident of secret interview with Nasir 41-43
bin Mubarrak at Guttur, 1881(lOR L/P&S/9/66A)
18 Residency and Muscat Political Agency Reports, 1886-1887, p. 7 44
19 Persian Gulf Administrative Reports, 1886-1887, p. 6 45
20 Bahrain Residency Agent Reports, 29 December 1887 46
(lOR P/3/276), p. 363
21 Despatch from Bahrain Residency Agent, 3 January 1888 47-48
(lOR P/3276)
22 Letter from Rulerof Bahrain to British Political Resident, 4 January 49
1888 (lOR P/3276)
23 Memorandum from India Office to Foreign Office, 2 November 50
1888, Muscat Archives, 1888 Book, Political Section
24(a) Letter from the Governor of the Sancak ofNejd, 17 October 1891 51
(Askeri M 1310, m. 16)
24(b) Translationof Letter from the Governor of the Sancak ofNejd, 52
17October 1891
25(a) Ottoman Report on Qatar, 22 September 1893 (YEE K14 E250 53-68
Z126 K8)
25(b) Translation of Ottoman Report on Qatar, 22 September 1893 69-86
26(a) Ottoman Report on Bahrain, 16 September 1895 87-89
(HR.HMS.ISO 39/2-2)
26(b) Translationof Ottoman Report on Bahrain, 16 September 1895 90
-307-27(a) OttomanReport concerning Zubarah and Bahrain, 12 February 91-92
1896 (HR.HMS.ISO 39/2-2)
27(b) Translationof OttomanReport concerning Zubarah and Bahrain, 93
12 February 1896
28(a) Report on Bahrein from the Ottoman Council Chamber, 22 April 94-95
1900 (HR.HMS.IS0.39/2-2)
28(b) Translation of Report on Bahrein from the Ottoman Council 96-97
Chamber, 22 April1900
29 Letter from J.C. Gaskin, Assistant British Political Agent to 98-99
Lieutenant-Colonel C.A. Kemball, British Political Resident,
22 March 1902 (lOR R/15/2/26)
30 Letter from J.C. Gaskin, Assistant British Political Agent to 100-102
Lieutenant-Colonel C.A. Kemball, British Political Resident,
29 March 1902 (lOR R/15/2/26)
31 Memorandum from Captain Prideaux, British Political Agent to the 103-105
British Political Resident in the Persian Gulf, 23 December 1905
(lOR R/15/2/26)
32 Letter from Captain Prideaux to Major Cox, 3 February 1906 106-107
(FO 3711344 131010)
33(a)
Note from Ottoman Minister of the Interior to Council of 108-109
MinistersNizier, 11 December 1908 (BEO No. 259726)
33(b) Translationof Note from Ottoman Minister of the Interior to 110
Council of MinistersNizier, 11 December 1908
34 Administrative Report on the Persian Gulf Political Residency for Ill
April to December 1908, Calcutta, Superintendent Government
Printing, India,909, p. 5
35(a) Report from province of Basra to Ottoman Ministry of the Interior, 112
25 September 1909 (DH.MUI 34-2/11)
35(b) Translation of Report from province of Basra to Ottoman Ministry 113
of the Interior, 25 September 1909
36(a) Communications between Vali of Basra and Ottoman Minister of 114-115
the Interior re Zubarah, 30 November 1911 (HR.HMS.ISO 39/2-2)
36(b) Translationof Communications between Vali of Basra and Ottoman 116
Minister of the Interior re Zubarah, 30 November 1911
-308-37(a) Note from Hakki Pasha, former Grand Vizier, 25 February 1913 117
(A.AMD.HV. 103/19 Inner File 59)
37(b) Translationof Note from Hakki Pasha, former Grand Vizier, 118
25 Febtuary 1913
38(a) Document from Ottoman Ambassador to London to Ottoman 119
Council of Ministers, 28 February 1913 (A.DVN Dossier 800 Inner
File 49)
38(b) Translationof Document from Ottoman Ambassador to London to 120
Ottoman Council of Ministers, 28 February 1913
39(a) Telegram from acting Vali ofBasra to Grand Vizier, 8 March 1913 121
(A.DVN. Dossier 801 Inner File 47/6)
39(b) TranslationofTelegram from acting Vali of Basra to Grand Vizier, 122
8 March 1913
40(a) Projected Ottoman Council of Ministers decision concerning Qatar 123-124
renegotiations with Britain, 11 March 1913 (A.AMD.MV 1093/19
Inner File 57-58)
40(b) Translation of Projected Ottoman Council of Ministers decision 125
concerning Qatar renegotiations with Britain, 11 March 1913
41 Memorandum from British Political Resident to Government of 126-127
India,30 June 1913 (FO 371/1828)
42 Telegram from British Political Residentto Foreign Secretary of 128
India,31 August 1913 (lOR R/15/5/27)
43(a) Official reportf the Ottoman Council of Ministers, 1 February 129-130
1914 (MV. 233 p. 50)
43(b) Translationof Official report of the Ottoman Council of Ministers, 131
1 February 1914
44 Letter from British Political Resident to Foreign Secretary India, 132-135
15 September 1914 (lOR R/15/5/27)
45 Lorimer, Gazetteer of the Persian Gulf, Oman and Central Arabia, 136-141
Vol. I, 1915, pp. 793-794, 798-800, 834 and 848
46 Gazetteer of Arabia, Vol. 1, 1917, pp. 486-87 142-143
47(a) Ottoman Report concerning Bahrain, Qatar, Nejd and Basra, 144-150
29 May 1917 (HR.HMS.ISO 29/2-1)
-309-47(b) Translationof Ottoman Report concerning Bahrain, Qatar, Nejd and 151
Basra, 29 May 1917
48 Letter from British Political Resident to Foreign Secretaryia, 152-154
13 May 1921 (FO 37117724)
49 Note from British Political Agent, to British Political Resident155-158
entitled "Bahrain Affairs," 13 July 1922 (lOR R/15/2/87)
50 Letter from Lt. Col. A.P. Trevor, British Political Resident to 159-161
S. Bray, Foreign Secretary to the Government India, 16 July
1922 (lOR R/15/2/87)
51 Despatch from Lieutenant-Colonel A.P. Trevor, British Political 162-166
Resident, to DenysdeS. Bray, Foreign Secretary to the
Government oflndia, 10 November 1922 (lOR L/P&S/11/222)
52(a) Al-Nabhani, al-Tuhfaal-Nabha fnia~rkhal-Jaziraal-'Arabi 167-,68
(Cairo 1923) (section entitled "The Battle ofUmm Suwayya")
52(b) Translation of Al-Nabhani, al-Tuhfa al-Nabhaniya fi Ta'rikh 169
al-Jazira al-'Arabiya (Cairo 1923) (section entitledattle of
Umm Suwayya")
53 Memorandum from British Political Agent to British Political 170-172
Resident, 31 March 1924 (IORR/15/2/87)
54 1924 Bahrain Civil Lists 173-174
55 Letters from W. Hendry to Sheikh Hamad bin Isa Alkhalifa, 15 and175-191
19 September 1925, attaching 1925 Bahrain Civil Lists
56 Letter from British Political Resident to the Foreign Secretary 192-196
India, 7 June 1932 (FO 371/16000)
57 Letter fromBAPCO to British Political Agent, 4 April 1933 197-199
(lOR R/15/2/389)
58 Letter from Major Frank Holmes (BAPCO) to British Political 200-202
Agent, 17 May 1933 (lOR R/15/1/652)
59 Letter from British Political Agent to British Political Resident,
203-206
29 May 1933 (lOR R/15/1/652)
60 Letter from Yusufbin Ahmed Kanoo to British Political Agent, 207
21 June 1933 (lOR R/15/2/389)
61 Letter from British Political Resident to the Secretary of State for208
the Colonies, 22 June 1933 (lOR R/15/1/652)
-310-62 Letter from British Political Resident to British Political Agent, 209-210
29 June 1933 (lOR R/15/2/389)
63 Copy of Letter from Chief Local Representative ofBAPCO to 211-212
Britisholitical Agent, 8 August 1933 (lOR R/15/11653)
64 Letter from Charles D. Belgrave, Financial Adviser to the Bahrain 213-215
Government, to British Political Agent, 16 August 1933
(lOR R/15/2/390)
65 Letter from C.S. Burnett to T.C. Fowle, British Political Resident, 216
28 November 1933 (R/15/11627)
66 India Office Memorandum, 11 January 1934 (FO 371117813) 217-219
67 India Office Memorandum, 21 February 1934 (FO 371117798) 220-224
68 Letter from Foreign Minister of Saudi Arabia to British Foreign 225-227
Office, 20 June 1934, in British Memorial for the Buraimi
Arbitration, Annex D No. 7
69 Despatch from A.S. Calvert to SirS. Hoare, 10 September 1935 228
(FO 371118915)
70 India Office Paper, "Reconnaissance - Qatar Peninsula", 15 October229-231
1935 (FO 371118908)
71 Letter from T.C. Fowle, British Political Resident, to M.J. Clauson, 232
IndiaOffice, 4 January 1936 (FO 371119973)
72 Note entitled "Hawar Islands" from the India Office to British 233-235
Political Resident, undated, with enclosure entitled "Note on
'Hawar'Island" submitted by S.H. Longrigg (PCL), 29 April1936
(lOR R/15/1/688)
73 Letter from Captain T. Hickinbotham, British Political Agent 236-237
(officiating), to British Political Resident, 936
(lOR R/15/11688)
74 Telegram from British Political Agent to British Political Resident, 238
20 June 1936 (FO 371119973)
75 Foreign Office Minute, 26 June 1936 (FO 371119973) 239
76 Letter from F.C. Starling, Petroleum Department to M.J. Clauson, 240-242
India Office, 3 July 1936 (lOR R/15/2/400)
77 Minutes of a meeting held at the India Office, 9 July 1936 243-245
(lOR 371119973)
-311-78 Letter from C. Dalrymple Belgrave to Hood, 18 July 1936 · 246-247
(FO 371119973)
79 Letter from M.J. Clauson, India Office, to S.H. Longrigg, PCL, 248
14 September 1936 (FO 371119974)
80 Telegram from Sir Trenchard Fowle, British Political Resident, to 249-250
Secretary of State for India, 12 February 1937 (lOR R/15/11689)
81 Copy ofletter No. P.A./171 from E.A. Skinner, BAPCO, to British 251-258a
Political Agent, 13 April1937 (I.O.R. R/15/1/689)
82 Telegram from British Political Resident to Secretary of State for259-259b
India, 28 April1937 (FO 371120783)
83 Note by A.C.B. Symon, 4 April1938 (lOR R/15/11689) 260-261
84 Note by J.P. Gibson, India Office, 7 April1938 (lOR R/15/11690) 262-263
85 Letter fromR. Peel, India Office to S.H. Longrigg, PCL, 29 April 264-266
1938 (I.O.R. R/15/2/437)
86 Letter from H. Weightman, British Political Agent, to Secretary of267-268b
State for India, 22 May 1938 (I.O.R. R/15/1/690)
87 Letter from Charles Belgrave, Adviser to the Government of 269
Bahrain, to Hugh Weightman, British Political Agent, 23 May
1938, India Office Records (lOR R/15/2/547)
88 Extract from BritishPolitical Agent's Note, 30 May 1938 270-271
(lOR R/15/2/547)
89 Letter from Adviser to Government of Bahrain to British Political 271a-271d
Agent, 6 June 1938 (Bahrain Government Archives)
90 Letter from British Political Agent to British Political Resident, 272-274
10 June 1938 (IORL/P&S/12/3854)
...
91 Draft India Office Paper prepared by R. Peel, 8 November 1938 275-278
(lOR L/P&S/12/3854)
92 Telegram from Secretary of State for India to British Political 279-281
Resident, 16 December 1938 (lOR R/15/11691)
93 Decypher of telegram from British Political Agent to Political 282
Department, India Office, dated 8 January 1939
(lOR L/P&S/12/3854)
94 Telegram from British Political Resident to Secretary of State for 283
India, London, 9 January 1939 (lOR R/15/1/691)
-312-95 Decypher of telegram to British Political Resident from the British 284
Political Agent, 11 January 1939 (lOR L/P&S/12/3854)
96 Telegram from Secretary of State for India to British Political 285
Resident, 14 January 1939(lOR R/15/11691)
97 Letter from Sheikh Hamad bin Isa Alkhalifah to Britisholitical 287-294
Agent, 6 February 1939 (L/P&S/12/3854)
98-99 Express Letter from British Political Agent to British Political 295-302
Resident, 12 February 1939 (lOR R/15/11691)
100 Letter from Military Branch, Admiralty, to R.T. Peel, India Office,303-305
31 March 1939 (lOR L/P&S/12/3854)
101 Letter from S.F.Stewart to Lord Cadman (PCL), 14 April1939 306-308
(lOR L/P&S/12/3854)
102 Entries from the diary of Sir Charles Dalrymple Belgrave, Tuesday 309
18 April, Thursday 20 April and Saturday 22 April1939
103 Letter from E. Packet (PCL) to H. Weightman, British Political 310
Agent, 2 December 1939 (I.O.R. R/15/2/547)
104 Draft Concession Agreement entitled "1939; The Leased Area; 311-327
Hawar Islands; Bahrain", (I.O.R. R/15/692)
105 Express Letter from British Political Agent to British Political 328-329
Resident,13 June 1940 (lOR R/15/11693)
106 Letter from R. Peel, India Office, to Lt. Col. G.C. Prior, British 330
Political Resident, 16 January 1941 (lOR R/1511/693)
107 Letter from O.K. Caroe to R. Peel, Government of India, 331-332
19 November 1941, containing a handwritten annotation by R. Peel
(lOR L/P&S/12/3895)
108 Express letter from W.R. Hay, British Political Resident,"4 June 333-334
1946 (FO 371152254)
109 Letter from F.A.K. Harrison, India Office, to G.C.B. Dodds, 335-339
Admiralty, 13 February 1947 (F.O. 371161441)
110-112 The LeQuesne Report on the Boundary between Saudi Arabia and 340-352
Shaikhdoms of Qatar and Abu Dhabi and the Sultanate of Muscat
and Oman, (1953), pp. 85-96
113(a) Lam'al Shehab, Fi Sirat Muhammad b. 'AbdAl-Wahhab' (edited by 353-354
A.M. Abu Hakima), (1967}, p. 78
-313-113(b) Translation ofLam'al Shehab, Fi Sirat Muhammad b. 'Abd 355-356
Al-Wahhab'(Edited by A.M. Abu Hakima), (1967), p. 78
114 J.B. Kelly, Britain and the Persian Gulf, (1968) pp. 162-163, 357-363
360-363
115-116 G. Bibby, Looking for Dilmun, (1970), pp. 122-123 364-366
117 J.B. Kelly, Arabia, the Gulf and the West, (1980) pp. 191-192 367-370
118(a) Bahrain Historical Document Centre, Al-Watheeka Vol. 4 (1984) 371-372
118(b) Translation ofBahrain Historical Document Centre, Al-Watheeka 373-377
Vol. 4 (1984)
119 A. Montigny-Kozlowska, Evolution d'ungroupe bedouin dans un 378-382
pays producteur de petrole: lesINairn de Qatar, (1985 Ph.D.
thesis), at pp. 66-67 and 136-137
120 A. Montigny-Kozlowska, "Le partage des biens d'unancien 383-396
dirigeant de Qatar" published in Gast, M, ed. Heriter en Pays
Musulman pp. 43-54 (1987)
121 J.C. Wilkinson, Arabia'sFrontiers: The Story of Britain'sDrawing 397-409
in the Desert, pp. 90, 99, 103-109, 138, 154, (1991)
122 Note of 12 March 1934 meeting between British Political Resident 410-414
and Ruler of Qatar. Records of Qatar, 1820-1960, (1991), Vol. V,
p. 419-423
-314- CERTIFICATION
I, the undersigned, Jawad Salim AI Arayed, Agent of the State of Bahrain, hereby
certify that the copies of the documents attached as documentary Annexes of the
Counter-Memorialsubmittedby the State ofBahrain in Volume 2 are accurate copies of
the documents they purport to reproduce and that where a translation of such a
documentis attachedthat translation is an accuratetranslation of the document.
This day of December 1997
Jawad Salim AI Arayed
Minister of Stateand Agent of the State of Bahrain
-315-
Counter-Memorial of the Government of the State of Bahrain