Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain)
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Questions of jurisdiction and/or admissibility
Overview of the case
On 8 July 1991, Qatar filed in the Registry of the Court an Application instituting proceedings against Bahrain in respect 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 their maritime areas. Qatar founded the jurisdiction of the Court upon certain agreements between the Parties stated to have been concluded in December 1987 and December 1990, the subject and scope of the commitment to accept that jurisdiction being determined by a formula proposed by Bahrain to Qatar in October 1988 and accepted by the latter State in December 1990 (the “Bahraini formula”). As Bahrain contested the basis of jurisdiction invoked by Qatar, the Parties agreed that the written proceedings should first be addressed to the questions of jurisdiction and admissibility. After a Memorial of the Applicant and Counter-Memorial of the Respondent had been filed, the Court directed that a Reply and a Rejoinder be filed by each of them, respectively.
On 1 July 1994 the Court delivered a first Judgment on the above-mentioned questions. It took the view that both the exchanges of letters of December 1987 between the King of Saudi Arabia and the Amir of Qatar, and between the King of Saudi Arabia and the Amir of Bahrain, and the document entitled “Minutes” and signed at Doha in December 1990 constituted international agreements creating rights and obligations for the Parties ; and that by the terms of those agreements they had undertaken to submit to the Court the whole of the dispute between them. In the latter regard, the Court pointed out that the Application of Qatar did not cover some of the constitutive elements that the Bahraini formula was supposed to cover. It accordingly decided to give the Parties the opportunity to submit to it “the whole of the dispute” as circumscribed by the Minutes of 1990 and that formula, while fixing 30 November 1994 as the time-limit within which the Parties were, jointly or separately, to take action to that end. On the prescribed date, Qatar filed a document entitled “Act”, which referred to the absence of an agreement between the Parties to act jointly and declared that it was submitting “the whole of the dispute” to the Court. On the same day, Bahrain filed a document entitled “Report” in which it indicated, inter alia, that the submission to the Court of “the whole of the dispute” must be “consensual in character, that is, a matter of agreement between the Parties”. By observations submitted to the Court at a later time, Bahrain indicated that the unilateral “Act” of Qatar did not “create that jurisdiction [of the Court] or effect a valid submission in the absence of Bahrain’s consent”. By a second Judgment on the questions of jurisdiction and admissibility, delivered on 15 February 1995, the Court found that it had jurisdiction to adjudicate upon the dispute submitted to it between Qatar and Bahrain, and that the Application of Qatar, as formulated on 30 November 1994, was admissible. The Court, having proceeded to an examination of the two paragraphs constituting the Doha Agreement, found that, in that Agreement, the Parties had reasserted their consent to its jurisdiction and had defined the object of the dispute in accordance with the Bahraini formula ; it further found that the Doha Agreement permitted the unilateral seisin and that it was now seised of the whole of the dispute. By two Orders, the Court subsequently fixed and then extended the time-limit within which each of the Parties could file a Memorial on the merits.
Following the objections raised by Bahrain as to the authenticity of certain documents annexed to the Memorial and Counter-Memorial of Qatar, the Court, by an Order of 30 March 1998, fixed a time-limit for the filing, by the latter, of a report concerning the authenticity of each of the disputed documents. By the same Order, the Court directed the submission of a Reply on the merits of the dispute by each of the Parties. Qatar having decided to disregard the challenged documents for the purposes of the case, the Court, by an Order of 17 February 1999, decided that the Replies would not rely on those documents. It also granted an extension of the time-limit for the filing of the said Replies.
In its Judgment of 16 March 2001, the Court, after setting out the procedural background in the case, recounted the complex history of the dispute. It noted that Bahrain and Qatar had concluded exclusive protection agreements with Great Britain in 1892 and 1916 respectively, and that that status of protected States had ended in 1971. The Court further cited the disputes which had arisen between Bahrain and Qatar on the occasion, inter alia, of the granting of concessions to oil companies, as well as the efforts made to settle those disputes.
The Court first considered the Parties’ claims to Zubarah. It stated that, in the period after 1868, the authority of the Sheikh of Qatar over Zubarah had been gradually consolidated, that it had been acknowledged in the Anglo-Ottoman Convention of 29 July 1913 and definitively established in 1937. It further stated that there was no evidence that members of the Naim tribe had exercised sovereign authority on behalf of the Sheikh of Bahrain within Zubarah. Accordingly, it concluded that Qatar had sovereignty over Zubarah.
Turning to the Hawar Islands, the Court stated that the decision by which the British Government had found in 1939 that those islands belonged to Bahrain did not constitute an arbitral award, but that did not mean that it was devoid of legal effect. It noted that Bahrain and Qatar had consented to Great Britain settling their dispute at the time and found that the 1939 decision must be regarded as a decision that was binding from the outset on both States and continued to be so after 1971. Rejecting Qatar’s arguments that the decision was null and void, the Court concluded that Bahrain had sovereignty over the Hawar Islands.
The Court observed that the British decision of 1939 did not mention Janan Island, which it considered as forming a single island with Hadd Janan. It pointed out, however, that in letters sent in 1947 to the Rulers of Qatar and Bahrain, the British Government had made it clear that “Janan Island is not regarded as being included in the islands of the Hawar group”. The Court considered that the British Government, in so doing, had provided an authoritative interpretation of its 1939 decision, an interpretation which revealed that it regarded Janan as belonging to Qatar. Accordingly, Qatar had sovereignty over Janan Island, including Hadd Janan.
The Court then turned to the question of the maritime delimitation. It recalled that international customary law was the applicable law in the case and that the Parties had requested it to draw a single maritime boundary. In the southern part, the Court had to draw a boundary delimiting the territorial seas of the Parties, areas over which they enjoyed territorial sovereignty (including sea-bed, superjacent waters and superjacent aerial space). In the northern part, the Court had to make a delimitation between areas in which the Parties had only sovereign rights and functional jurisdiction (continental shelf, exclusive economic zone).
With respect to the territorial seas, the Court considered that it had to draw provisionally an equidistance line (a line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial sea of each of the two States is measured) and then to consider whether that line must be adjusted in the light of any special circumstances. As the Parties had not specified the baselines to be used, the Court recalled that, under the applicable rules of law, the normal baseline for measuring the breadth of the territorial sea was the low-water line along the coast. It observed that Bahrain had not included a claim to the status of archipelagic State in its formal submissions and that the Court was therefore not requested to take a position on that issue. In order to determine what constituted the Parties’ relevant coasts, the Court first had to establish which islands came under their sovereignty. Bahrain had claimed to have sovereignty over the islands of Jazirat Mashtan and Umm Jalid, a claim which had not been contested by Qatar. As to Qit’at Jaradah, the nature of which was disputed, the Court held that it should be considered as an island because it was above water at high tide ; the Court added that the activities which had been carried out by Bahrain were sufficient to support its claim of sovereignty over the island. With regard to low-tide elevations, the Court, after noting that international treaty law was silent on the question whether those elevations should be regarded as “territory”, found that low-tide elevations situated in the overlapping area of the territorial seas of both States could not be taken into consideration for the purposes of drawing the equidistance line. That was true of Fasht ad Dibal, which both Parties regarded as a low-tide elevation. The Court then considered whether there were any special circumstances which made it necessary to adjust the equidistance line in order to obtain an equitable result. It found that there were such circumstances which justified choosing a delimitation line passing on the one hand between Fasht al Azm and Qit’at ash Shajarah and, on the other, between Qit’at Jaradah and Fasht ad Dibal.
In the northern part, the Court, citing its case law, followed the same approach, provisionally drawing an equidistance line and examining whether there were circumstances requiring an adjustment of that line. The Court rejected Bahrain’s argument that the existence of certain pearling banks situated to the north of Qatar, and which were predominantly exploited in the past by Bahraini fishermen, constituted a circumstance justifying a shifting of the line. It also rejected Qatar’s argument that there was a significant disparity between the coastal lengths of the Parties calling for an appropriate correction. The Court further stated that considerations of equity required that the maritime formation of Fasht al Jarim should have no effect in determining the boundary line.
This overview is provided for information only and in no way involves the responsibility of the Court.