6 of 9 DOCUMENTS

INTERNATIONAL COURT OF JUSTICE

CASE CONCERNING MARITIME DELIMITATION AND TERRITORIAL QUESTIONS BETWEEN QATAR AND BAHRAIN

(QATAR v. BAHRAIN)

MERITS

General List No. 87

INTERNATIONAL COURT OF JUSTICE

2001 ICJ LEXIS 4

16 March 2001

TYPE: [*1] Judgment

JUDGES: Present: President Guillaume; Vice-President Shi; Judges Oda, Bedjaoui, Ranjeva, Herczegh, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Buergenthal; Judges ad hoc Torres Bernardez, Fortier; Registrar Couvreur.

TEXT: Territorial dispute -- The Parties' claims.

Geographical setting -- Historical context -- States formerly protected by Great Britain -- Good offices of the King of Saudi Arabia -- "Bahraini formula" -- Doha "Minutes".

Zubarah -- Content and significance of the Agreements concluded on 6 and 12 September 1868 between the British Government and the Chiefs of Bahrain and Qatar respectively -- Lack of direct acts of authority by Bahrain -- Irrelevance of ties of allegiance between the Naim tribe and the Ruler of Bahrain -- Recognition of Qatari sovereignty by the British and the Ottomans -- The unratified Anglo-Ottoman Convention of 29 July 1913 and the Anglo-Ottoman Treaty of 9 March 1914 -- Position of the British Government -- Acts of authority by the Ruler of Qatar -- Events of 1937.

Hawar Islands -- "Bahraini formula" -- Nature and legal significance of the British [*2] decision of 11 July 1939 -- Validity of the decision -- Parties' consent to the process -- Absence of procedural violations -- Lack of reasons -- Opposability -- Significance of official protests by Qatar -- No need for the Court to rule on original title, geographical proximity, territorial unity, effectivites, or the principle of uti possidetis juris.

Janan and Hadd Janan -- No definition of the Hawar Islands in the British decision of 11 July 1939 -- Lists produced by Bahrain in 1936, 1937, 1938 and 1946 -- Letters sent on 23 December 1947 to the Rulers of Qatar and Bahrain by the British Government -- Authoritative interpretation of the British decision of 11 July 1939.

Request for the drawing of a single maritime boundary -- Delimitation of various jurisdictions -- Delimitation of the territorial sea of two States with opposite coasts -- Delimitation of the continental shelf and the exclusive economic zone of two States with coasts comparable to adjacent coasts.

Law applicable to the delimitation -- 1958 Convention on the Territorial Sea and the Contiguous Zone -- 1982 United Nations Convention on the Law of the Sea -- Customary international law. [*3]

Method consisting of provisionally drawing an equidistance line and adjusting it to take account of special circumstances or to obtain an equitable result.

Determination of baselines and basepoints -- Relevant coasts -- Relevant baselines -- Low -- water line and straight baselines -- Claim to status of an archipelagic State -- Finality of the Judgment.

Fasht al Azm -- Part of island or low--tide elevation.

Qit'at Jaradah -- Island status-- Acts performed a titre de souverain -- Construction of navigational aids.

Fasht ad Dibal -- Low--tide elevation -- Low--tide elevations situated in the territorial sea of only one State -- Low--tide elevations situated in the overlapping zone of the territorial seas of two States -- Question of appropriation.

Equidistance/special circumstances rule -- Location and small size of an island.

Equitable principles/relevant circumstances -- Pearling banks -- Line dividing the seabed established in 1947 by the British Government -- Respective lengths of the relevant coasts -- Fasht al Jarim -- Effect of this maritime feature on the delimitation.

Delimitation undertaken without affecting [*4] rights of third States.

Single delimitation line -- Co-ordinates of that line.

Waters separating the Hawar Islands from the other Bahraini Islands -- Not internal waters -- Right of innocent passage -- Passage of Qatari vessels through Bahrain's territorial waters.

In the case concerning maritime delimitation and territorial questions,

between

the State of Qatar,

represented by

H.E. Mr. Abdullah bin Abdulatif Al-Muslemani, Secretary-General of the Cabinet of the Government of the State of Qatar,

as Agent and Counsel;

Mr. Adel Sherbini, Legal Adviser,

Mr. Sami Abushaikha, Legal Expert,

as Counsel;

Mr. Eric David, Professor of International Law, University libre de Bruxelles,

Mr. Ali bin Fetais Al-Meri, Director of Legal Department, Diwan Amiri,

Mr. Jean-Pierre Queneudec, Professor of International Law, University of Paris I (Pantheon-Sorbonne)

Mr. Jean Salmon, Professor emeritus of International Law, Universitey libre de Bruxelles, Member of the Institut de droit international

Mr. R. K. P. Shankardass, Senior Advocate, Supreme Court of India, former President of the International Bar Association,

Sir Ian Sinclair, K.C.M.G., Q.C., Barrister [*5] at Law, Member of the Institut de droit international,

Sir Francis Vallat, G.B.E., K.C.M.G., Q.C., Professor emeritus of International Law, University of London, Member emeritus of the Institut de droit international

Mr. Rodman R. Bundy, avocat a la Cour d'appel de Paris, Member of the New York Bar, Frere Cholmeley/Eversheds, Paris,

Ms Nanette E. Pilkington, avocat a la Cour d'appel de Paris, Frere Cholmeley/Eversheds, Paris,

as Counsel and Advocates;

Ms Cheryl Dunn, Member of the State Bar of California, Frere Cholmeley/Eversheds, Paris,

Ms Ines Sabine Wilk, Rechtsanwalt before the Court of Appeal, Member of the Chamber of Lawyers of Berlin,

as Counsel;

Mr. Scott B. Edmonds, Director of Cartographic Operations, MapQuest.com, Columbia, Maryland (United States of America)

Mr. Robert C. Rizzutti, Project Manager, MapQuest.com, Columbia, Maryland (United States of America),

Ms Stephanie K. Clark, Senior Cartographer, MapQuest.com, Columbia, Maryland (United States of America),

as Experts;

H.E. Sheikh Hamad bin Jassim bin Jabor Al-Thani, Minister for Foreign Affairs of the State of Qatar,

H.E. Mr. Ahmed bin Abdullah Al-Mahmoud, Minister of State for [*6] Foreign Affairs of the State of Qatar,

as Observers;

and

the State of Bahrain,

represented by

H.E. Mr. Jawad Salim Al-Arayed, Minister of State of the State of Bahrain,

as Agent;

Mr. Fathi Kemicha, Kemicha & Associes (Tunis), avocat a la Cour d'appel de Paris,

Sir Elihu Lauterpacht, Q.C., C.B.E., Honorary Professor of the University of Cambridge, Member of the Institut de droit international

Mr. Jan Paulsson, Freshfields, Paris, avocat a la Cour d'appel de Paris, Member of the District of Columbia Bar (United States of America)

Mr. Michael Reisman, Myres S. McDougal Professor of International Law of Yale Law School, Member of the Bar of Connecticut, associe de l'Institut de droit international

Mr. Robert Volterra, Freshfields, London, Member of the Bar of Upper Canada

Mr. Prosper Weil, Emeritus Professor at the University of Paris II (Pantheon-Assas), Member of the Academie des sciences morales et politiques (Institut de France), Member of the Institut de droit international,

as Counsel and Advocates;

Sheikh Khalid bin Ahmed Al-Khalifa, First Secretary, Ministry of Foreign Affairs of the State of Bahrain,

Commander Christopher Carleton, M.B.E., Head [*7] of the Law of the Sea Division of the United Kingdom Hydrographic Office

Mr. Hongwu Chen, Freshfields, Paris, avocat a la Cour d'appel de Paris, Member of the Beijing Bar

Mr. Graham Coop, Freshfields, Paris, Barrister and Solicitor of the High Court of New Zealand and Solicitor of the Supreme Court of England and Wales

Mr. Andrew Newcombe, Freshfields, Paris, Member of the Bar of British Columbia (Canada),

Ms Beth Olsen, Adviser, Ministry of State of the State of Bahrain

Mr. John Wilkinson, Former Reader at the University of Oxford, Emeritus Fellow, St. Hugh's College, Oxford,

as Advisers;

H.E. Sheikh Mohammed bin Mubarak Al Khalifa, Minister for Foreign Affairs, State of Bahrain,

H.E. Sheikh Abdul-Aziz bin Mubarak Al Khalifa, Ambassador of the State of Bahrain to the Netherlands,

H.E. Mr. Mohammed Jaber Al-Ansari, Adviser to His Highness, the Amir of Bahrain

Mr. Ghazi Al-Gosaibi, Under-Secretary of Foreign Affairs, State of Bahrain,

H.E. Sheikha Haya Al Khalifa, Ambassador of the State of Bahrain in France

Mr. Yousef Mahmood, Director of the Office of the Foreign Minister, State of Bahrain,

as Observers;

Mr. Jon Addison, Ministry of State of the State of [*8] Bahrain,

Ms Maisoon Al--Arayed, Ministry of State of the State of Bahrain,

Ms Alia Al-Khatar, Freshfields

Mr. Nabeel Al-Rumaihi, Ministry of State of the State of Bahrain

Mr. Hafedh Al--Qassab, Ministry of State of the State of Bahrain

Mr. Yousif Busheery, Ministry of Foreign Affairs of the State of Bahrain,

Ms Janet Cooper, Ministry of State of the State of Bahrain,

Ms Eleonore Gleitz, Freshfields, Ms Aneesa Hanna, Embassy of Bahrain in the United Kingdom,

Ms Jeanette Harding, Ministry of State of the State of Bahrain,

Ms Vanessa Harris, Freshfields, Ms Iva Kratchanova, Ministry of State of the State of Bahrain,

Ms Sonja Knijnsberg, Freshfields,

Ms Sarah Mochen, Freshfields

Mr. Kevin Mottram, Freshfields

Mr. Yasser Shaheen, Second Secretary, Ministry of Foreign Affairs of the State of Bahrain,

as Administrative Staff,

The Court,

composed as above,

after deliberation,

delivers the following Judgment:

1. On 8 July 1991 the Minister for Foreign Affairs of the State of Qatar (hereinafter referred to as "Qatar") filed in the Registry of the Court an Application instituting proceedings against the State of Bahrain (hereinafter referred to as "Bahrain") in respect [*9] of certain disputes between the two States relating to "sovereignty over the Hawar islands, sovereign rights over the shoals of Dibal and Qit'at Jaradah, and the delimitation of the maritime areas of the two States".

In this Application, Qatar contended that the Court had jurisdiction to entertain the dispute by virtue of two "agreements" concluded between the Parties in December 1987 and December 1990 respectively, the subject and scope of the commitment to the Court's jurisdiction being determined, according to the Applicant, by a formula proposed by Bahrain to Qatar on 26 October 1988 and accepted by Qatar in December 1990 (hereinafter referred to as the "Bahraini formula").

2. Pursuant to Article 40, paragraph 2, of the Statute of the Court, the Application was forthwith communicated by the Registrar of the Court to the Government of Bahrain; in accordance with paragraph 3 of that Article, all other States entitled to appear before the Court were notified by the Registrar of the Application.

3. By letters addressed to the Registrar on 14 July 1991 and 18 August 1991, Bahrain contested the basis of jurisdiction invoked by Qatar.

4. By an Order of 11 October 1991, the President [*10] of the Court, having consulted the Parties in accordance with Article 31 of the Rules of Court, and taking into account the agreement reached between them concerning procedure, decided that the written pleadings should first be addressed to the questions of the jurisdiction of the Court to entertain the dispute and of the admissibility of the Application. By the same Order, the President fixed time-limits for the filing of a Memorial by Qatar and a Counter-Memorial by Bahrain on the questions of jurisdiction and admissibility; those pleadings were duly filed within the time prescribed.

5. By an Order of 26 June 1992, the Court, considering that the filing of further pleadings by the Parties was necessary, directed that a Reply by Qatar and a Rejoinder by Bahrain be filed on the questions of jurisdiction and admissibility, and fixed time-limits for the filing of those pleadings; these pleadings were duly filed within the time prescribed.

6. Since the Court included upon the Bench no judge of the nationality of either of the Parties, each Party proceeded to exercise the right conferred by Article 31, paragraph 3, of the Statute to choose a judge ad hoc to sit in the case; Bahrain [*11] chose Mr. Nicolas Valticos, and Qatar Mr. Jose Maria Ruda.

7. At public hearings held between 28 February and 11 March 1994, the Parties were heard on the questions of the Court's jurisdiction and the admissibility of the Application.

8. By a Judgment of 1 July 1994, the Court found that the exchanges of letters between the King of Saudi Arabia and the Amir of Qatar of 19 and 21 December 1987, and between the King of Saudi Arabia and the Amir of Bahrain of 19 and 26 December 1987, and the document headed "Minutes" and signed at Doha on 25 December 1990 by the Ministers for Foreign Affairs of Bahrain, Qatar and Saudi Arabia, were international agreements creating rights and obligations for the Parties; and that, by the terms of those agreements, the Parties had undertaken to submit to the Court the whole of the dispute between them, as circumscribed by the Bahraini formula. Having noted that it had before it only an Application from Qatar setting out that State's specific claims in connection with that formula, the Court decided to afford the Parties the opportunity to submit to it the whole of the dispute. It fixed 30 November 1994 as the time-limit within which the Parties were [*12] jointly or separately to take action to that end, and reserved any other matters for subsequent decision. The Court further stated that, on completion of the reference of the whole dispute to it, it would fix time-limits for the simultaneous filing of written pleadings, that is, each Party would file a Memorial and then a Counter-Memorial, within the same time-limits.

9. Judge ad hoc Ruda died on 7 July 1994. By letter of 5 September 1994, the Agent of Qatar informed the Court that his Government had chosen Mr. Santiago Torres Bernardez to replace him.

10. On 30 November 1994, within the time-limit laid down in the Judgment of 1 July 1994, Qatar filed in the Registry a document entitled "Act to comply with paragraphs (3) and (4) of operative paragraph 41 of the Judgment of the Court of 1 July 1994", in which Qatar referred to the absence of an agreement between the Parties to act jointly and declared that it was thereby submitting to the Court "the whole of the dispute".

On the same day, Bahrain filed in the Registry a document entitled "Report of the State of Bahrain to the International Court of Justice on the attempt by the Parties to implement the Court's Judgment of 1st [*13] July, 1994"; then, by a letter of 5 December 1994, the Agent of Bahrain indicated that "the Qatari separate Act . . . cannot create [the jurisdiction of the Court] or effect a valid submission in the absence of Bahrain's consent".

11. By a Judgment of 15 February 1995, the Court found that it had jurisdiction to adjudicate upon the dispute between Qatar and Bahrain which had been submitted to it; that it was now seised of the whole of the dispute; and that the Application of the State of Qatar as formulated on 30 November 1994 was admissible.

12. Mr. Valticos resigned from his duties as judge ad hoc with effect from 15 February 1995.

13. By an Order of 28 April 1995, the Court, having ascertained the views of Qatar and having given Bahrain the opportunity to make its own views known, fixed 29 February 1996 as the time-limit for the filing by each of the Parties of a Memorial on the merits.

By an Order of 1 February 1996, the Court, at the request of Bahrain, and taking into account both the views expressed by the Parties and the particular circumstances of the case, extended to 30 September 1996 the time-limit for the filing of those pleadings; these were duly filed within [*14] the time-limit thus extended.

By an Order of 30 October 1996, the President of the Court, taking into account the views expressed by the Agents of the Parties, fixed 31 December 1997 as the time-limit for the filing by each of the Parties of a Counter-Memorial on the merits.

14. By letter of 17 February 1997, the Agent of Bahrain informed the Court that his Government had chosen Mr. Mohamed Shahabuddeen as judge ad hoc. The latter having resigned from his duties with effect from 18 September 1997, the Agent of Bahrain, by letter of 20 October 1997, informed the Court that his Government had chosen Mr. Yves Fortier to replace him.

15. By letter of 25 September 1997, the Agent of Bahrain informed the Court that his Government challenged the authenticity of 81 documents, copies of which had been produced by Qatar as annexes to its Memorial, that this matter was "distinct and severable from the merits", and that Bahrain would disregard the content of the documents in question for the purposes of preparing its Counter-Memorial; to that communication were attached various document search and experts' reports.

By letter of 8 October 1997, the Agent of Qatar informed the Court that, [*15] in his Government's view, the objections raised by Bahrain were linked to the merits, that they should be considered and determined within the framework of the merits, and that the Court could not, however, "expect Qatar, at the present stage of preparation of its own Counter-Memorial, to comment on the detailed Bahraini allegations".

By letter of 17 October 1997, the Agent of Bahrain stated that his Government considered that the use by Qatar of the challenged documents gave rise to "procedural difficulties that strike at the fundamentals of the orderly development of the case"; subsequently, by letter of 18 November 1997 with enclosure, he informed the Court inter alia of a "new development" concerning the origin of the seals with which some of the documents produced by Qatar were impressed, and which was relevant to assessment of the authenticity of those documents.

16. At the conclusion of a meeting held by the President of the Court on 25 November 1997 with the Agents of the Parties, it was agreed inter alia that the Counter-Memorials would not cover the question of the authenticity of the documents challenged by Bahrain and that other pleadings would be submitted by [*16] the Parties at a later date.

17. The Counter-Memorials of the Parties were duly filed and exchanged on 23 December 1997.

18. By letter of 31 December 1997, the Agent of Bahrain sent the Court particular documents supplementing those presented on 25 September 1997; subsequently, in a letter of 2 February 1998, he noted that Qatar was continuing in its Counter-Memorial to rely on the challenged documents and emphasized the need for the Court to decide the question of their authenticity as a preliminary issue.

By letter of 26 March 1998, to which were attached a document and experts' reports, the Agent of Bahrain also disputed the authenticity of a document annexed to the Counter-Memorial of Qatar. Consequently, there were in total 82 documents challenged by Bahrain.

19. By an Order of 30 March 1998, the Court, having regard to the views expressed by the Agents of the Parties at a further meeting held with them by the President on 17 March 1998, fixed 30 September 1998 as the time-limit for the filing by Qatar "of an interim report, to be as comprehensive and specific as possible, on the question of the authenticity of each of the documents challenged by Bahrain". In the same Order, [*17] the Court directed the submission of a Reply on the merits by each of the Parties and decided that "the Reply of Qatar will contain its detailed and definitive position on the question" and that "the Reply of Bahrain will contain its observations on the interim report of Qatar"; it fixed 30 March 1999 as the time-limit for the filing of those Replies.

20. Qatar duly filed its interim report within the time-limit fixed. Citing the differing views between the experts of the Parties and between its own experts, Qatar stated in that report that it had "decided [to] disregard all the 82 challenged documents for the purposes of the present case so as to enable the Court to address the merits of the case without further procedural complications".

In a letter of 27 November 1998 the Agent of Bahrain noted "the effective abandonment by Qatar of . . . the impeached documents" and concluded in consequence that Qatar "cannot make any further reference to the 82 forged documents, that it will not adduce the content of these documents in connection with any of its arguments and that, in general, the merits of the case will be adjudicated by the Court without regard to these documents".

By letter [*18] of 15 December 1998, the Agent of Qatar expressed "[his Government's] regret at the situation that [had] arisen and the inconvenience that this [had] caused to the Court and Bahrain".

21. By letter of 11 December 1998, the Agent of Qatar requested the Court to extend to 30 May 1999 the time-limit for the filing of the Parties' Replies.

22. By letter of 13 January 1999, the Agent of Bahrain, acknowledging receipt of the letters of 11 and 15 December 1998 from the Agent of Qatar, stated that his Government "appreciated Qatar's expression of regret" and "had no objection to the modification of the Court's Order of 30 March 1998 to accommodate Qatar's request".

By letter of 1 February 1999, the Agent of Qatar, referring to the position adopted by his Government with regard to the documents challenged by Bahrain, confirmed that this was its definitive position.

23. By an Order of 17 February 1999, the Court, taking into account the concordant views of the Parties on the treatment of the disputed documents and their agreement on the extension of time-limits for the filing of Replies, placed on record the decision of Qatar to disregard, for the purposes of the present case, the 82 documents [*19] whose authenticity had been challenged by Bahrain, decided that the Replies would not rely on those documents, and extended to 30 May 1999 the time-limit for the filing of the said Replies; those pleadings were duly filed within the time-limit as thus extended.

24. Following a meeting held by the President of the Court on 28 June 1999 with the Agents of the Parties, the Court decided that no further round of written pleadings would take place in the case; that the Parties would be authorized to file supplemental documents, accompanied by a brief commentary of no more than a page per document, limited to placing the document in question in the context of the written pleadings; and that the Court would fix a time-limit within which such documents would have to be filed once it had determined the date for the opening of the hearings on the merits. As instructed by the Court, the Registrar informed the Agents of the Parties of this decision by letters of 5 July 1999.

25. At a further meeting held by the President of the Court with the Agents of the Parties on 16 November 1999, the latter expressed their agreement that the hearings on the merits should commence on 29 May 2000; it appeared, [*20] however, that the Parties disagreed as to the length of those hearings, and that they had reached differing views as to the nature and scope of the "supplemental documents" that they would be permitted to produce.

Following this meeting, the Court decided:

(1) to permit the Parties to file supplemental experts' reports and historic documents, but no further witness statements, it being understood that they would endeavour to produce such supplemental documents in the two official languages of the Court, French and English;

(2) to fix 1 March 2000 as the time-limit for the filing of the supplemental documents;

(3) that the hearings would open on Monday 29 May 2000, at 10 a.m., and would last for a maximum of five weeks, and that the Parties should endeavour to reach agreement on the organization of the oral proceedings.

As instructed by the Court, the Registrar informed the Agents of the Parties of this decision by letters of 9 December 1999.

At Bahrain's request, to which Qatar raised no objection, the Court extended to 6 March 2000 the time-limit for the filing of supplemental documents by Bahrain. Each of the Parties proceeded to file its documents within the time-limit allowed [*21] to it.

26. By separate letters of 1 March 2000, the Agents of the Parties communicated to the Court the text of a joint statement embodying the result of their consultations concerning the organization of the oral proceedings. The Court, taking account of the views of the Parties, set a timetable for the hearings and the Registrar communicated it to the Parties by letters of 7 April 2000.

27. Pursuant to Article 53, paragraph 2, of the Rules of Court, the Court, having consulted the Parties, decided that the following would become available to the public at the opening of the oral proceedings: the Memorials, Counter-Memorials and Replies and all the documents annexed thereto; the supplemental documents filed by the Parties in March 2000 in accordance with the relevant decisions of the Court; and all the communications, including any documents or reports annexed thereto, submitted by the Parties to the Court with regard to the question of the authenticity of certain documents.

28. Public hearings were held from 29 May to 29 June 2000, at which the Court heard the oral arguments and replies of:

For Qatar:	H.E. Mr. Abdullah bin Abdulatif Al-Muslemani,
	Mr. Jean Salmon,
	Ms Nanette E. Pilkington,
	Mr. Ali bin Fetais Al-Meri,
	Mr. R. K. P. Shankardass,
	Sir Ian Sinclair,
	Mr. Rodman R. Bundy,
	Mr. Eric David,
	Mr. Jean-Pierre Queneudec.

[*22]

For Bahrain:	H.E. Mr. Jawad Salim Al-Arayed,
	Sir Elihu Lauterpacht,
	Mr. Jan Paulsson,
	Mr. Michael Reisman,
	Mr. Robert Volterra,
	Mr. Fathi Kemicha,
	Mr. Prosper Weil.

29. At the hearings, Members of the Court put questions to the Parties, to which replies were given in writing, in accordance with Article 61, paragraph 4, of the Rules of Court. Each of the Parties submitted written comments on the replies provided by the other, in accordance with Article 72 of the Rules of Court.

30. In the course of the oral proceedings and after their closure, each of the Parties produced new documents pursuant to Article 56 of the Rules of Court without any objection being raised by the other Party. As Bahrain referred, in support of its arguments during its last round of oral pleadings, to five new documents that it had initially proposed to use only for purposes of its reply to a question from a Member of the Court, the Court decided, in order to safeguard the adversarial nature of the proceedings, to authorize Qatar, in accordance with the wish expressed by it, to submit written comments on the line of argument thus put forward by Bahrain and on the documents in question. [*23] Those comments were filed by Qatar within the time-limit fixed for that purpose.

31. In its Application filed in the Registry on 8 July 1991, Qatar made the following requests:

"Reserving its right to supplement or amend its requests, the State of Qatar requests the Court:

I. To adjudge and declare in accordance with international law

(A) that the State of Qatar has sovereignty over the Hawar islands; and

(B) that the State of Qatar has sovereign rights over Dibal and Qit'at Jaradah shoals;

and

II. With due regard to the line dividing the sea-bed of the two States as described in the British decision of 23 December 1947, to draw in accordance with international law a single maritime boundary between the maritime areas of sea-bed, subsoil and superjacent waters appertaining respectively to the State of Qatar and the State of Bahrain."

32. In its Application as formulated on 30 November 1994 ("Act to comply with paragraphs (3) and (4) of operative paragraph 41 of the Judgment of the Court dated 1 July 1994"), Qatar submitted the following requests:

"The following subjects fall within the jurisdiction of the Court by virtue of the rights and obligations created by the [*24] international agreements of December 1987 and 25 December 1990 and are, by virtue of Qatar's Application dated 5 July 1991 and the present Act, submitted to the Court:

1. The Hawar Islands, including the island of Janan;

2. Fasht ad Dibal and Qit'at Jaradah;

3. The archipelagic baselines;

4. Zubarah;

5. The areas for fishing for pearls and for fishing for swimming fish and any other matters connected with maritime boundaries.

It is understood by Qatar that Bahrain defines its claim concerning Zubarah as a claim of sovereignty.

Further to its Application Qatar requests the Court to adjudge and declare that Bahrain has no sovereignty or other territorial right over the island of Janan or over Zubarah, and that any claim by Bahrain concerning archipelagic baselines and areas for fishing for pearls and swimming fish would be irrelevant for the purpose of maritime delimitation in the present case."

33. In the course of the written proceedings, the following submissions were presented by the Parties:

On behalf of the Government of Qatar,

in the Memorial, Counter-Memorial and Reply on the merits (mutatis mutandis identical texts):

"In view of the above, the State of [*25] Qatar respectfully requests the Court, rejecting all contrary claims and submissions:

I. To adjudge and declare in accordance with international law:

A. (1) That the State of Qatar has sovereignty over the Hawar islands;

(2) That Dibal and Qit'at Jaradah shoals are low-tide elevations which are under Qatar's sovereignty;

B. (1) That the State of Bahrain has no sovereignty over the island of Janan;

(2) That the State of Bahrain has no sovereignty over Zubarah;

(3) That any claim by Bahrain concerning archipelagic baselines and areas for fishing for pearls and swimming fish would be irrelevant for the purpose of maritime delimitation in the present case;

II. To draw a single maritime boundary between the maritime areas of sea-bed, subsoil and superjacent waters appertaining respectively to the State of Qatar and the State of Bahrain on the basis that the Hawar islands and the island of Janan appertain to the State of Qatar and not to the State of Bahrain, that boundary starting from point 2 of the delimitation agreement concluded between Bahrain and Iran in 1971 (51 [degree] 05' 54" E and 27 [degree] 02' 47" N), thence proceeding in a southerly direction up to BLV (50 [degree] [*26] 57' 30" E and 26 [degree] 33' 35" N), then following the line of the British decision of 23 December 1947 up to NSLB (50 [degree] 49' 48" E and 26 [degree] 21' 24" N) and up to point L (50 [degree] 43' 00" E and 25 [degree] 47' 27" N), thence proceeding to point S1 of the delimitation agreement concluded by Bahrain and Saudi Arabia in 1958 (50 [degree] 31' 45" E and 25 [degree] 35' 38" N) . . ."

On behalf of the Government of Bahrain,

in the Memorial, Counter-Memorial and Reply on the merits (mutatis mutandis identical texts):

"In view of the facts and arguments set forth in Bahrain's Memorial, Counter-Memorial and . . . Reply;

May it please the Court, rejecting all contrary claims and submissions, to adjudge and declare that:

1. Bahrain is sovereign over Zubarah.

2. Bahrain is sovereign over the Hawar Islands, including Janan and Hadd Janan.

3. In view of Bahrain's sovereignty 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, Part Two of Bahrain's Counter-Memorial and in [its] Reply.

[*27] Bahrain reserves the right to supplement or modify the preceding submissions."

34. At the oral proceedings, the following submissions were presented by the Parties:

On behalf of the Government of Qatar,

at the hearing of 22 June 2000:

"The State of Qatar respectfully requests the Court, rejecting all contrary claims and submissions:

I. To adjudge and declare in accordance with international law:

A. (1) That the State of Qatar has sovereignty over the Hawar islands;

(2) That Dibal and Qit'at Jaradah shoals are low-tide elevations which are under Qatar's sovereignty;

B. (1) That the State of Bahrain has no sovereignty over the island of Janan;

(2) That the State of Bahrain has no sovereignty over Zubarah;

(3) That any claim by Bahrain concerning archipelagic baselines and areas for fishing for pearls and swimming fish would be irrelevant for the purpose of maritime delimitation in the present case;

II. To draw a single maritime boundary between the maritime areas of sea-bed, subsoil and superjacent waters appertaining respectively to the State of Qatar and the State of Bahrain on the basis that Zubarah, the Hawar islands and the island of Janan appertain to the State [*28] of Qatar and not to the State of Bahrain, that boundary starting from point 2 of the delimitation agreement concluded between Bahrain and Iran in 1971 (51 [degree] 05' 54" E and 27 [degree] 02' 47" N), thence proceeding in a southerly direction up to BLV (50 [degree] 57' 30" E and 26 [degree] 33' 35" N), then following the line of the British decision of 23 December 1947 up to NSLB (50 [degree] 49' 48" E and 26 [degree] 21' 24" N) and up to point L (50 [degree] 43' 00" E and 25 [degree] 47' 27" N), thence proceeding to point S1 of the delimitation agreement concluded by Bahrain and Saudi Arabia in 1958 (50 [degree] 31' 45" E and 25 [degree] 35' 38" N)."

On behalf of the Government of Bahrain,

at the hearing of 29 June 2000:

"Having regard to the facts and arguments set forth in Bahrain's Memorial, Counter-Memorial, and Reply, and in the present hearings,

May it please the Court, rejecting all contrary claims and submissions, to adjudge and declare that:

1. Bahrain is sovereign over Zubarah.

2. Bahrain is sovereign over the Hawar Islands, including Janan and Hadd Janan.

3. In view of Bahrain's sovereignty over all the insular and other features, including Fasht [*29] 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."

35. The State of Qatar and the State of Bahrain are both located in the southern part of the Arabian/Persian Gulf (hereinafter referred to as "the Gulf"), almost halfway between the mouth of the Shatt al'Arab, to the north-west, and the Strait of Hormuz, at the Gulf's eastern end, to the north of Oman. The mainland to the west and south of the main island of Bahrain and to the south of the Qatar peninsula is part of the Kingdom of Saudi Arabia. The mainland on the northern shore of the Gulf is part of Iran (see sketch-map No. 1 below).

The Qatar peninsula projects northward into the Gulf, on the west from the bay called Dawhat Salwah, and on the east from the region lying to the south of Khor al-Udaid. The capital of the State of Qatar, Doha, is situated on the eastern coast of the peninsula.

Bahrain is composed of a number of islands, islets and shoals situated off the eastern and western coasts of its main island, which is also called al-Awal Island. The capital of the State of Bahrain, Manama, is situated [*30] in the north-eastern part of al-Awal Island.

Zubarah is located on the north-west coast of the Qatar peninsula, opposite the main island of Bahrain.

The Hawar Islands are located in the immediate vicinity of the central part of the west coast of the Qatar peninsula, to the south-east of the main island of Bahrain and at a distance of approximately 10 nautical miles from the latter.

Janan is located off the south-western tip of Hawar Island proper.

Fasht ad Dibal and Qit'at Jaradah are two maritime features located off the north-western coast of the Qatar peninsula and to the north-east of the main island of Bahrain.

36. The Court will begin with a brief account of the complex history which forms the background to the dispute between the Parties.

37. Navigation in the Gulf was traditionally in the hands of the inhabitants of the region. From the beginning of the sixteenth century, European powers began to show interest in the area, which lay along one of the trading routes with India. Thus the Portuguese took control of Hormuz, on the strait of the same name, where the Gulf meets the Indian Ocean. Portugal's virtual monopoly of trade was not challenged until the beginning of [*31] the seventeenth century. Great Britain was then anxious to consolidate its presence in the Gulf to protect the growing commercial interests of the East India Company.

38. Between 1797 and 1819 Great Britain despatched numerous punitive expeditions in response to acts of plunder and piracy by Arab tribes led by the Qawasim against British and local ships. In 1819, Great Britain took control of Ras al Khaimah, headquarters of the Qawasim, and signed separate agreements with the various sheikhs of the region. These sheikhs undertook to enter into a General Treaty of Peace. Such a treaty was in fact signed in January 1820 by the British Government, the Sheikhs of Ras al Khaimah, of Jourat al Kamra, of Abu Dhabi and of Zyah; in the following weeks, it was also signed by the Sheikh of Dubai, the Chief of Sharjah, the Sheikhs of Bahrain, the Chief of Ajman and the Chief of Umm al Qaywayn. By this Treaty, these sheikhs and chiefs undertook on behalf of themselves and their subjects inter alia to abstain for the future from plunder and piracy. Piracy nonetheless persisted, and in 1835 a maritime truce was concluded, on the initiative of the British, by the heads of what then became known [*32] as the "Trucial Sheikhdoms". This truce was renewed on a yearly basis until the signature on 24 August 1853 of a Treaty of Maritime Peace in Perpetuity, compliance being guaranteed by Great Britain, by force if necessary. The need to establish peace at sea and to protect its interests, drew Great Britain into intervening in tribal disputes, though such intervention did not establish any British sovereignty or suzerainty over the various sheikhdoms or territories in the area. It was only towards the end of the nineteenth century that Great Britain would adopt a general policy of protection in the Gulf, concluding "exclusive agreements" with most sheikhdoms, including those of Bahrain, Abu Dhabi, Sharjah and Dubai. Representation of British interests in the region was entrusted to a British Political Resident in the Gulf, installed in Bushire (Persia), to whom British Political Agents were subsequently subordinated in various sheikhdoms with which Great Britain had concluded agreements.

39. On 31 May 1861 the British Government signed a "Perpetual treaty of peace and friendship" with Sheikh Mahomed bin Khalifah, referred to in the treaty as independent Ruler of Bahrain. Under this [*33] treaty, Bahrain undertook inter alia to refrain from all maritime aggression of every description, while Great Britain undertook to provide Bahrain with the necessary support in the maintenance of security of its possessions against aggression. There was no provision in this treaty defining the extent of these possessions.

40. Following hostilities on the Qatar peninsula, the towns of Doha and Wakrah were destroyed in 1867 by the combined forces of the Sheikhs of Bahrain and Abu Dhabi. This action led the British Political Resident in the Gulf to intervene. He approached Sheikh Ali bin Khalifah, Chief of Bahrain, and Sheikh Mohamed Al-Thani, Chief of Qatar, and on 6 and 12 September 1868 respectively, occasioned each to sign an agreement with Great Britain. By these agreements, the Chief of Bahrain recognized inter alia that certain acts of piracy had been committed by Mahomed bin Khalifah, his predecessor, and, "in view of preserving the peace at sea, and precluding the occurrence of further disturbance and in order to keep the Political Resident informed of what happens", he promised to appoint an agent with the Political Resident; for his part, the Chief of Qatar undertook [*34] inter alia to return to and reside peacefully in Doha, not to put to sea with hostile intention, and, in the event of disputes or misunderstanding arising, invariably to refer to the Political Resident. On 13 September 1868, again through the mediation of the British Political Resident, tribal chiefs "residing in the province of Qatar", solemnly agreed to pay to Sheikh Ali bin Khalifah, Chief of Bahrain, the annual sums previously paid by them to the Chiefs of Bahrain; these sums were paid to Mohamed Al-Thani of Doha, who was in turn to transmit them together with his own contribution to the Political Resident for delivery of the total to the agent of the Chief of Bahrain.

41. According to Bahrain, the "events of 1867-1868" demonstrate that Qatar was not independent from Bahrain; the British Political Resident is said rather to have "extracted unilateral personal undertakings from the Rulers of Bahrain and Abu Dhabi, as well as from Muhammed bin Thani, chief of the Doha confederation, not to engage in naval military activities". Furthermore, the formalization of the taxes payable by the dependent tribes of the Qatar peninsula to the Ruler of Bahrain, in the manner provided for [*35] by the Agreement of 13 September 1868 between the Sheikhs of Qatar and the Sheikh of Bahrain, confirmed the latter as the sovereign authority on the peninsula; Sheikh Al-Thani of Doha had thus acknowledged the continuing authority of the Rulers of Bahrain and their right to claim taxes from him. In Bahrain's view, until 1916, there was thus no State of Qatar possessing attributes of sovereignty over the whole of the peninsula of Qatar.

42. According to Qatar, on the contrary, the 1868 Agreements formally recognized for the first time the separate identity of Qatar. They treated the Ruler of Bahrain and the Ruler of Qatar as equals and also confirmed that the British recognized that the authority of the Sheikh of Bahrain did not extend to the territory of Qatar. The British Government considered that the undertaking of 13 September 1868, providing for the payment of tribute to the Ruler of Bahrain by Mohamed Al-Thani on behalf of the chiefs of Qatari tribes, in no way affected the independence of Qatar vis-a-vis Bahrain; that payment was to be considered as a fixed contribution by Qatar to sums to be paid by both Qatar and Bahrain to the "Wahhabis", in order to secure their frontiers [*36] against the latter, more particularly during the pearl-diving season. The tribute was in any event only paid for two years and was discontinued "when the Turks established themselves in Bida" (which is part of present-day Doha).

43. While Great Britain had become the dominant maritime Power in the Gulf by this time, the Ottoman Empire, for its part, had re-established its authority over extensive areas of the land on the southern side of the Gulf. At the beginning of the 1870s, the Ottomans installed a garrison in Bida and made Qatar an administrative division of their empire. They accorded their protection to Sheikh Mohamed Al-Thani, who was designated kaimakam of the kaza of Qatar. They remained for more than 40 years on the Qatar peninsula.

44. In the years following the arrival of the Ottomans on the Qatar peninsula, Great Britain increased its influence over Bahrain. By an agreement of 22 December 1880 with Lieutenant-Colonel Ross, British Political Resident in the Gulf, Sheikh Isa bin Ali al Khalifah, Chief of Bahrain, bound himself and his successors to abstain from entering into any negotiations, or making treaties of any sort, or establishing diplomatic or consular [*37] agencies, with any third government without the consent of the British. The special ties thus established culminated in the conclusion of the Exclusive Protection Agreement of 13 March 1892 between Sheikh Isa bin Ali, Chief of Bahrain, and Lieutenant-Colonel Talbot, British Political Resident in the Gulf. Under this agreement the Chief of Bahrain undertook inter alia that neither he nor his heirs and successors would enter into any agreement or correspondence "with any Power other than the British Government". He undertook further that he would not permit, without the assent of the British Government, the residence within Bahrain of the agent of any other Government and that he would not cede, sell, mortgage or otherwise give for occupation any part of his territory save to the British Government.

45. Subsequently, Great Britain and the Ottoman Empire, desiring to settle certain questions relating to their respective interests in the Gulf and in the surrounding territories, as well as to preclude all possible causes of misunderstanding with respect to those questions, opened treaty negotiations. On 29 July 1913, the Anglo-Ottoman "Convention relating to the Persian Gulf and surrounding [*38] territories" was signed, but it was never ratified. Section II of this Convention dealt with Qatar. Article 11 described the course of the line which, according to the agreement between the parties, was to separate the Ottoman Sanjak of Nejd from the "peninsula of al-Qatar" (see paragraph 87 below).

46. Qatar contends that the non-ratification of this Convention was largely attributable to the outbreak of the First World War. Qatar further points out that the Ottomans and the British had also signed, on 9 March 1914, a treaty concerning the frontiers of Aden, which was ratified that same year and whose Article III provided that the line separating Qatar from the Sanjak of Nejd would be "in accordance with Article 11 of the Anglo-Ottoman Convention of 29 July 1913 relating to the Persian Gulf and the surrounding territories".

47. For its part, Bahrain contends that "the 1913 Convention was not ratified because the complex set of interdependent proposals . . . ultimately fell apart": the "Wahhabis", under Ibn Saud, had expelled the Ottomans from Hasa on the eastern coast of Arabia, and the Al-Thani had rapidly lost their control over Doha, while the Ruler of Bahrain had remained [*39] in possession, inter alia, of the northern part of the Qatar peninsula. Bahrain also observes that the text of the 1913 treaty and that of the 1914 treaty do not coincide.

48. After the conclusion of the 1913 Convention, the Ottomans maintained their garrison at Doha, of which the last personnel left only following the arrival of a British warship on 19 August 1915. Negotiations subsequently ensued between Great Britain and Sheikh Al-Thani regarding an exclusive agreement, comparable to those concluded with the other Arab Sheikhs. These negotiations resulted in the signature, on 3 November 1916, of a treaty between Great Britain and the Sheikh of Qatar. Under this treaty, whose preamble referred to the undertakings by the grandfather of Sheikh Al-Thani under the Anglo-Qatari Agreement of 12 September 1868, the Sheikh of Qatar bound himself inter alia not to "have relations nor correspond with, nor receive the agent of, any other Power without the consent of the High British Government"; nor, without such consent, to cede to any other Power or its subjects, land either on lease, sale, transfer, gift, or in any other way whatsoever; nor, without such consent, to grant any monopolies [*40] or concessions. In return, the British Government undertook to protect the Sheikh of Qatar and his subjects and territory from all aggression by sea and to do its utmost to exact reparation for all injuries that the Sheikh of Qatar or his subjects might suffer "when proceeding to sea upon [their] lawful occasions". The British Government also undertook to grant its "good offices" should the Sheikh or his subjects be assailed by land within the territories of Qatar. There was no provision in this treaty defining the extent of those territories.

49. The first petroleum concession between the Ruler of Bahrain and Eastern and General Syndicate Ltd. was concluded on 2 December 1925. Under the terms of that agreement, the Ruler of Bahrain granted the company an exclusive exploration licence for a period not exceeding two years (with the possibility of extension for a further period of two years) "throughout the whole of the territories under his control". The Ruler of Bahrain also undertook to grant Eastern and General Syndicate Ltd., either during the duration of the exploration licence or upon its expiry, a prospecting licence over areas to be selected by the company with the approval [*41] of the Ruler and with the cognizance of the British Political Resident in the Gulf. In addition, the Ruler undertook to grant to the company, on the expiry of the prospecting licence, a "mining lease over an aggregate area not exceeding 100,000 acres", divided into blocks to be selected by the company. Beginning in 1928, negotiations were conducted between Eastern and General Syndicate Ltd., its successor the Bahrain Petroleum Company Ltd. (which, in 1930, took over the 1925 concession) and the Ruler of Bahrain for a concession over the "additional" or "unallotted" area, that is, that portion of the Bahrain islands and territorial waters remaining after the company had chosen its 100,000 acres.

50. In March 1934 discussions were held between the British Political Resident and the Ruler of Qatar regarding the grant of an oil concession by the latter. On 11 May 1935, the British Political Resident in the Gulf wrote to the Ruler of Qatar concerning the protection which Great Britain was prepared to extend to him on land. In return for this protection, the Ruler of Qatar was asked to grant a petroleum concession to the British company Anglo-Persian Oil Company. Such a concession was [*42] granted on 17 May 1935. The second article of the Agreement stated that the company could operate in any part of the State of Qatar, i.e., "the whole area over which the Shaikh [of Qatar] rules and which is marked on the north of the line drawn on the map attached" to the Agreement, which line separated the peninsula of Qatar from the Kingdom of Saudi Arabia.

51. The negotiations conducted between 1928 and 1933 between the Ruler of Bahrain and the concessionaires for a concession in the additional area in Bahraini territory were intended to identify the acreage of land and territorial waters which would be included in that concession in the unallotted area; they were suspended in 1933 at the request of the Bahrain Petroleum Company Ltd. and were not resumed until 1936, when Petroleum Concessions Ltd., which had taken over the concession granted by Qatar to the Anglo-Persian Oil Company, joined in the bidding.

52. In a letter dated 28 April 1936, Charles Belgrave, Adviser to the Government of Bahrain, referring to the negotiations then in progress for the grant of an oil concession over the territory of Bahrain, informed the British Political Agent that "the Hawar group of islands [*43] lying between the southern extremity of Bahrain Island and the coast of Qatar [was] indisputably part of the State of Bahrain".

53. On 29 April 1936 the representative of Petroleum Concessions Ltd. wrote to the British India Office, which had responsibility for relations with the protected States in the Gulf, drawing its attention to the Qatar oil concession of 17 May 1935 and observing that the Ruler of Bahrain, in his negotiations with Petroleum Concessions Ltd. over the unallotted area, had laid claim to Hawar; he accordingly enquired to which of the two Sheikhdoms (Bahrain or Qatar) Hawar belonged.

54. In a letter dated 6 May 1936, addressed to the British Political Resident in the Gulf, the Political Agent in Bahrain supported Bahrain's claim to Hawar. On 25 May 1936, the Political Resident wrote to the Secretary of State for India in London that he was inclined to the view that Hawar should be regarded as belonging to the Sheikh of Bahrain and that the burden of disproving his claim should lie on the Sheikh of Qatar. On 10 July 1936 two India Office officials informed Bahrain, through Charles Belgrave, that on the evidence then available to the British Government Hawar appeared [*44] to belong to the Sheikh of Bahrain and that any potential claimant would therefore have the burden of disproving the Bahrain claim. On 14 July 1936, Petroleum Concessions Ltd. was informed by the India Office that it appeared to the British Government that Hawar belonged to the Sheikh of Bahrain. The content of those communications was not conveyed to the Sheikh of Qatar.

55. In 1937, Qatar attempted to impose taxation on the Naim inhabiting the Zubarah region; Bahrain opposed this as it claimed rights over this region. Relations between Qatar and Bahrain deteriorated. Negotiations started between the two States in spring of 1937 and were broken off in July of that year. According to Bahrain Qatar illegally took Zubarah by force and illegally destroyed the community of the Bahraini subjects living there. Qatar contends that the steps taken by its Ruler in 1937 were only designed to exercise his authority by force on his own territory over certain members of the Naim tribe, and to put an end to their smuggling and other unlawful activities.

56. Qatar alleges that Bahrain clandestinely and illegally occupied the Hawar Islands in 1937. Bahrain maintains that its Ruler was simply performing [*45] legitimate acts of continuing administration in his own territory.

57. By a letter dated 10 May 1938, the Ruler of Qatar protested to the British Government against what he called "the irregular action taken by Bahrain against Qatar", to which he had already referred in February 1938 in a conversation which took place in Doha with the British Political Agent in Bahrain. On 20 May 1938, the latter wrote to the Ruler of Qatar, inviting him to state his case on Hawar at the earliest possible moment. The Ruler of Qatar responded by a letter dated 27 May 1938. Some months later, on 3 January 1939, Bahrain submitted a counter-claim dated 22 December 1938. In a letter of 30 March 1939, the Ruler of Qatar presented his comments on Bahrain's counter-claim to the British Political Agent in Bahrain. The Rulers of Qatar and Bahrain were informed on 11 July 1939 that the British Government had decided that the Hawar Islands belonged to Bahrain.

58. Qatar points to no less than five protests it claims to have made, on 4 August 1939, 18 November 1939, 7 June 1940, 13 July 1946 and 21 February 1948, against this decision and the "unlawful occupation" of the Hawar Islands by Bahrain. The latter [*46] claims that Qatar protested only three times between 1939 and 1965 against the British decision of 1939, in July 1946, February 1948 and April 1965.

Bahrain also states that it made, from 1937 until the mid-1960s, numerous officially recorded claims to Great Britain and Qatar in relation to the Zubarah region.

59. On 24 June 1944, the British Political Agent, acting as mediator in order to resolve the dispute over Zubarah, succeeded in getting the two parties to sign an agreement providing as follows: