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Case Note: Maritime Delimitation and Territorial Questions
between Qatar and Bahrain (Qatar v. Bahrain) On
16 March, the International Court of Justice rendered its
decision in the long-running dispute between Qatar and Bahrain
concerning maritime delimitation and sovereignty over certain
islands. This brief note seeks to provide a concise summary of
the main elements of the decision in this complex case. For
reasons of brevity and space, the main emphasis of the note is
on the maritime delimitation issue. For the same reasons, little
attention is given to the separate and dissenting opinions,
although these were of significant interest. On 16 March, the International Court of Justice (ICJ) delivered its judgment in the case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain). This brings to an end the longest-running case in ICJ history and should hopefully finally resolve the dispute between the two countries that has been on-going for many years. The dispute relates mainly to some small islands and shoals which lie between Qatar and Bahrain and to the delimitation of the maritime boundary between the two countries. The dispute has its direct origins in the 1970s, when the new rules on the law of the sea began to be developed and when, also, the two countries ceased to have the status of United Kingdom Protected States. (The full history of the dispute, however, as elaborated in the judgment, is much longer). Prior to the matter being taken up by the ICJ, the parties had taken up various direct cooperative endeavours to find a solution to the dispute, involving several mediations involving the King of Saudi Arabia. However, after a failure to reach agreement during the 1970s and 1980s, Qatar instituted proceedings against Bahrain in the ICJ in 1991 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 the maritime areas of the two States". After a period of almost ten years, during which various legal questions were settled by the Court, including two hearings on jurisdiction (which was contested by Bahrain), the judgment on the merits was finally delivered in March this year. This article briefly examines that judgment, both with respect to the territorial and the maritime delimitation questions. Territorial Questions The Court had to consider certain territorial questions in relation to five areas either claimed by both States or subject to some dispute between the States:
The latter two areas were connected with the question of maritime delimitation, and will be considered in that section. The remaining three territorial questions, although forming the major part of the judgment, will only be briefly summarized here, since this report is concerned mainly with the maritime delimitation questions. It should be noted, however, that at times the judges differed greatly regarding the best approach to these questions, even though they did not always disagree on the outcome. In particular, there were disagreements concerning the emphasis that should be placed on the position taken by Great Britain, as the former Protecting Power, as opposed to the general principles of international law on the acquisition of territory. (See, in particular, the joint dissenting opinion of Judges Bedjaoui, Ranjeva and Koroma, who pointed out that, in places, the British position had served as virtually the sole basis of the Court's Judgment and that principles related to the identification of historical title had been disregarded). With this caveat out of the way, the following is an extremely brief summary of the ICJ decisions on these questions. The Court considered first the Parties' claims to Zubarah. Examining the historical evidence, it noted that the authority of the Sheikh of Qatar over Zubarah was gradually consolidated in the period after 1868, when agreements were signed by the Sheikhs of Bahrain and Qatar with Great Britain. This authority was acknowledged in an agreement signed by Great Britain and the Ottoman Empire in 1913 (although the agreement was never ratified) and definitively determined in certain events that occurred in the territory in 1937. Accordingly, it concluded, unanimously, that Qatar had sovereignty over Zubarah. Next the Court considered the Hawar Islands and here the crucial factor was a decision in 1939 by which the British Government found that the islands belonged to Bahrain. Although the Court held that the decision did not constitute an arbitral award, as Bahrain contended, it stated that this did not mean that it was devoid of legal effect. It noted that Bahrain and Qatar consented to Great Britain settling their dispute at that time and that the decision must be regarded as binding from the outset on both States and continued to be binding after 1971, when Qatar and Bahrain ceased to be British protected States. Although several of the judges were not altogether satisfied with the reliance on the 1939 decision, with some differences as to its status and effect being expressed, the Court nevertheless concluded, by twelve votes to five, that on this basis, Bahrain had sovereignty over the Hawar Islands. Finally, the Court turned to the Janan Islands, which was not mentioned in the British decision of 1939. It considered, however, later correspondence between the British Political Agent in Bahrain and the Rulers of Qatar and Bahrain, in which the British Government made it clear that "Janan Island is not regarded as being included in the islands of the Hawar group" and that the British Government did not recognize the Sheikh of Bahrain as having sovereign rights over that island. Accordingly, by thirteen votes to four, the Court found that Qatar had sovereignty over Janan Island, including Hadd Janan. Maritime delimitation On the question of maritime delimitation, the Court began by noting that the applicable law was customary international law since neither Bahrain nor Qatar was party to the 1958 Geneva Conventions on the Law of the Sea and although Bahrain had ratified the 1982 Law of the Sea Convention, Qatar was only a signatory to it. Both Parties, however, agreed that most of the relevant provisions of the 1982 Convention reflected customary law. The Court also noted that the parties had requested it to draw a single maritime boundary (i.e. a single boundary between the two States, encompassing, as appropriate, the territorial sea, EEZ and continental shelf). The Court further observed that in the present case this would be the result of the delimitation of various jurisdictions, since in the southern part of the delimitation area, where the coasts of the Parties are opposite each other, the distance between the two coasts is always less than 24 nautical miles (thus consisting entirely of territorial seas), whereas in the northern section, where the coasts of the two States are more comparable to adjacent coasts, the delimitation would concern the continental shelf and exclusive economic zone regimes. The delimitation was thus approached in two stages: delimitation of the territorial sea and delimitation of the EEZ and continental shelf. Delimitation of the territorial sea: the equidistance line The principle applied by the Court to delimit the territorial sea was the so-called "equidistance/special circumstances" rule, as set out in Article 15 of the 1982 Law of the Sea Convention and which both Parties agreed was part of customary law. The Court then observed that the most logical and widely practised approach was first to draw provisionally an equidistance line (i.e. a line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States are measured) and then to consider whether that line must be adjusted in the light of the existence of special circumstances. However, since neither of the Parties had as yet specified their baselines and since, furthermore, some land areas relevant to the question of baselines were subject to a territorial dispute between Qatar and Bahrain, the Court first had to determine the relevant coasts of the Parties, from which the location of the baselines could be determined, and the pertinent basepoints from which the equidistance line could be measured. The Parties both made submissions as to the appropriate method to be applied in order to construct the equidistance line. Neither were accepted by the Court, however. Of particular note, is Bahrain's claim that it is a de facto archipelagic State (thus allowing it, under Article 47 of the 1982 Law of the Sea Convention, to draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago). The Court observed, however, that Bahrain had not made this claim one of its formal submissions and that it was not therefore requested to take a position on this issue. Importantly, it further emphasized that its decision would be binding on the parties, and consequently could not be put in issue by the unilateral action of either of the Parties, and in particular, by any decision of Bahrain to declare itself an archipelagic State. The rule applied by the Court was the usual rule for normal baselines, as expressed in Article 5 of the 1982 Law of the Sea Convention, namely that the normal baseline for measuring the breadth of the territorial sea is the low-water line along the coast. In order to determine these baselines, however, it was first necessary to determine what the relevant coasts were as there were islands and other maritime features over which there were disputes between Bahrain and Qatar. The Court had, of course, already settled some of these earlier in its judgment and there were some islands for which there were no disputes. However, the Court drew attention to three areas where a dispute did exist and which had not been settled thus far:
At the outset, it may be useful to recall here the distinction made in international law between an island and a low-tide elevation. According to Article 121(1) of the 1982 Law of the Sea Convention and customary law, an island is "a naturally formed area of land, surrounded by water, which is above water at high tide." A low-tide elevation, on the other hand, is "a naturally formed area of land which is surrounded by and above water at low tide, but submerged at high tide" (Article 13(1), 1982 Convention). The implication of the distinction is that the territorial sea and, in most cases, the continental shelf and EEZ around an island are measured in accordance with the general rules on baselines, whereas the rules for low-tide elevations are slightly different. As regards the latter, the low-water line on the elevation may be used as the baseline for measuring the territorial sea if it is situated wholly or partly at a distance not exceeding the breadth of the territorial sea from the mainland or an island, but if it lies beyond this distance, a low-tide elevation does not generate a territorial sea of its own. The different distinction may also be a relevant factor considered by the Court when determining the "special circumstances" justifying departure from the equidistance line. The distinction thus has important practical implications. As regards the particular questions considered by the Court, no definitive answer was provided as regards the status of Fasht al Azm. However, because of the delimitation chosen by the Court later in its judgment, this was not considered to be an obstacle. Next the Court considered Qit'at Jaradah, and, after examining the evidence, concluded that it satisfied the criteria to be called an island and that the activities carried out by Bahrain on that island were sufficient to support Bahrain's claim that it has sovereignty over it. The final question considered by the Court was, perhaps, the most interesting, namely whether the low-tide elevation of Fasht ad Dibal could be appropriated by Bahrain in accordance with the normal criteria pertaining to the acquisition of territory or whether, as Qatar contended, such elevations could not be appropriated. This question was interesting not only from a legal perspective, but also a practical one as the elevation in question was situated in the overlapping area of the territorial seas of the two States. As the Court pointed out, assuming that such elevations could not be appropriated, both States in principle are entitled to use its low-water line for the measuring of the breadth of their territorial sea. The elevation then forms part of the coastal configuration of the two States, even if it is nearer to the coast of one State than that of the other, or nearer to an island belonging to one party than it is to the mainland coast of the other. For delimitation purposes the competing rights derived by both coastal States from the relevant provisions of the law of the sea would by necessity seem to neutralize each other. In Bahrain's view, however, it depended upon the effectivités presented by the two coastal States which of them has a superior title to the low-tide elevation in question and is therefore entitled to exercise the right attributed by the relevant provisions of the law of the sea, just as in the case of islands which are situated within the limits of the breadth of the territorial sea of more than one State. The decisive question, therefore, was whether a State could acquire sovereignty by appropriation over a low-tide elevation situated within the breadth of its territorial sea when that same low-tide elevation lies also within the breadth of the territorial sea of another State. In the view of the Court, although neither conventional nor customary law explicitly deal with this issue, the few relevant rules that do exist do not justify a general assumption that low-tide elevations are territory in the same sense as islands. This view is surely correct, as to accept the Bahraini position would be effectively to assimilate, from the point of view of acquisition, low-tide elevations with islands, which does not seem consistent with the considerable differences which the law of the sea attributes to islands and low-tide elevations. Consequently, it was found that there was no ground for recognizing the right of Bahrain to use as a baseline the low-water line of those low-tide elevations which are situated in the zone of overlapping claims, or for recognizing Qatar as having such a right. The Court accordingly concluded that for the purposes of drawing the equidistance line, such low-tide elevations should be disregarded. Delimitation of the territorial sea: special circumstances Having determined the relevant coasts, and the relevant method to be applied, the Court was at this stage able to determine the equidistance line, although, in fact, two hypothetical lines were drawn taking into account the two possibilities concerning the status of Fasht al Azm. The Court then turned to the question of whether there were special circumstances which would make it necessary to adjust the equidistance line as provisionally drawn in order to obtain an equitable result in relation to this part of the single maritime boundary. The Court's conclusions may be summarized as follows: (1) With regard to the question of Fasht al Azm, the Court considered that on either of the two hypotheses there were special circumstances which justified choosing a delimitation line passing between Fasht al Azm and Qit'at ash Shajarah. (2) With regard to Qit'at Jaradah, the Court considered that a disproportionate effect would be given to the island, which was very small, uninhabited and without vegetation, if its low-water line were to be used for determining a basepoint in the construction of the equidistance line. Consequently, the Court found that there was a special circumstance warranting the choice of a delimitation line passing immediately to the east of Qit'at Jaradah. (3) Having decided that no effect should be given to Qit'at Jaradah, the Court then returned to the question of Fasht al Azm and noted that, under both hypotheses, the result was that Fasht ad Dibal fell largely or totally on the Qatari side of the adjusted equidistance line, and that it therefore considered that the boundary line should be drawn between Qit'at Jaradah and Fasht ad Dibal. As Fasht ad Dibal thus was situated in the territorial sea of Qatar, it fell under the sovereignty of that State. On the basis of these considerations, the Court decided that, from the point of intersection of the respective maritime limits of Saudi Arabia on the one hand and of Bahrain and Qatar on the other, (which could not be fixed as they were dependent upon the limits of the respective maritime zones of Saudi Arabia and of the Parties), the boundary should follow a north-easterly direction, then immediately turn in an easterly direction, after which it should pass between Jazirat Hawar and Janan; it should subsequently turn to the north and pass between the Hawar Islands and the Qatar peninsula and continue in a northerly direction, leaving the low-tide elevation of Fasht Bu Thur, and Fasht al Azm, on the Bahraini side, and the low-tide elevations of Qita 'a el Erge and Qit'at ash Shajarah on the Qatari side; finally it will should between Qit'at Jaradah and Fasht ad Dibal, leaving Qit'at Jaradah on the Bahraini side and Fasht ad Dibal on the Qatari side. (The precise coordinates of the delimitation are set out in the judgment). Delimitation of the continental shelf and exclusive economic zoneIn the northern part, the Court followed the same approach, provisionally drawing an equidistance line and examining whether there are circumstances which require an adjustment of that line. The parties raised a number of possibilities, most of which were not accepted by the Court. In particular, the Court rejected Bahrain's argument that some pearling banks to the north of Qatar, which had predominantly been exploited by Bahraini fishermen, constituted a special circumstance, as the pearling industry had effectively ceased to exist a considerable time ago and pearl diving in the Gulf area traditionally was considered as a right which was common to the coastal population. The Court also rejected Qatar's argument that there was a significant disparity between the coastal lengths of the Parties, necessitating an appropriate correction. On the other hand, the Court did accept that considerations of equity required that a remote projection of Bahrain's coastline known as Fasht al Jarim of which, at most, only a minute part was above water at high tide, should have no effect in determining the boundary line. To give the projection its full effect would "distort the boundary and have disproportionate effects". The Court accordingly decided that the single maritime boundary in this sector should be formed in the first place by a line which, from a point situated to the north-west of Fasht ad Dibal, meets the equidistance line as adjusted to take account of the absence of effect given to Fasht al Jarim. The boundary then follows the adjusted equidistance line until it meets the delimitation line between the respective maritime zones of Iran on the one hand and of Bahrain and Qatar on the other. Chris
Hedley Further links Full text of the Judgment of 16 March 2001 ICJ Press Release 2001/9, 16 March 2001
Qatar
v Bahrain section of the ICJ website
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