Maritime Delimitation and

Territorial Questions (Qatar v.

Bahrain)
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.

Citation. I.C.J., 1994 I.C.J. 112

Brief Fact Summary. A claim to settle a dispute involving sovereignty

over certain islands, sovereign rights over certain shoals and
delimitation of a maritime boundary was filed by Qatar (P) in the
International Court of Justice against Bahrain (D). The Court’s
jurisdiction was however disputed by Bahrain (D).
Synopsis of Rule of Law. An international agreement creating rights
and obligations can be constituted by the signatories to the minutes of
meetings and letters exchanged.

Facts. A dispute concerning sovereignty over certain islands and

shoals, including the delimitation of a maritime boundary were issues
upon which Qatar (P) and Bahrain (D) sought to resolve for 20 years.
During this period of time, letters were exchanged and acknowledged
by both parties heads of state. A Tripartite Committee “for the purpose
of approaching the International Court of Justice”�..”� was formed
by representatives of Qatar (P), Bahrain (D) and Saudi Arabia.
Though the committee met several time, it failed to produce an
agreement on the specific terms for submitting the dispute to the
Court. Eventually, the meetings culminated in “Minutes”�, which
reaffirmed the process and stipulated that the parties “may”� submit
the dispute to the I.C.J. after giving the Saudi King six months to
resolve the dispute. The Court’s jurisdiction was disputed by Bahrain
(D) when Qatar (P) filed a claim in the I.C.J.

Issue. Yes. An international agreement creating rights and obligations

can be constituted by the signatories to the minutes of meetings and
letters exchanged. Though Bahrain (D) argued that the Minutes were
only a record of negotiation and could not serve as a basis for the
I.C.J.’s jurisdiction, both parties agreed that the letters constituted an
international agreement with binding force.
International agreements do not take a single form under the Vienna
Convention on the Law of Treaties, and the Court has enforced this
rule in the past. In this case, the Minutes not only contain the record of
the meetings between the parties, it also contained the reaffirmation of
obligations previously agreed to and agreement to allow the King of
Saudi Arabia to try to find a solution to the dispute during a six-month
period, and indicated the possibility of the involvement of the I.C.J.
The Minutes stipulated commitments to which the parties agreed,
thereby creating rights and obligations in international law. This is the
basis therefore of the existence of international agreement.
On the part of the Bahrain’s (D) Foreign Minister, he argued that no
agreement existed because he never intended to enter an agreement
fails on the grounds that he signed documents creating rights and
obligations for his country. Also, Qatar’s (P) delay in applying to the
United Nations Secretariat does not indicate that Qatar (P) never
considered the Minutes to be an international agreement as Bahrain
(D) argued. However, the registration and non-registration with the
Secretariat does not have any effect on the validity of the agreement.

Held. Yes. An international agreement creating rights and obligations

can be constituted by the signatories to the minutes of meetings and
letters exchanged. Though Bahrain (D) argued that the Minutes were
only a record of negotiation and could not serve as a basis for the
I.C.J.’s jurisdiction, both parties agreed that the letters constituted an
international agreement with binding force.

Discussion. There is no doubt that language plays a vital role in

influencing a court’s decision as to whether an agreement has been
entered into and in this particular case, the language was the main
focus of the I.C.J and it was the contents of the Minutes that
persuaded the I.C.J. to reject the Bahrain foreign minister’s (D) claim
that he did not intend to enter into an agreement. Where this is
compared to general U.S. contract law, where a claim by one of the
parties that no contract existed because there was no meeting of the
minds might be the ground upon which a U.S. court would consider
whether a contract did exist with more care and thought than the I.C.J.
gave the foreign minister of Bahrain’s (D) claims.

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Legal Status of Eastern
Greenland (Norway v.
Denmark)
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View this case and other resources at:

Citation. Court of Int’l Justice, 1993 P.C.I.J. (ser. A/B) No. 53 at 71

Brief Fact Summary. The statement made by the Norwegian Minister

was claimed to be binding on his country by Denmark (P).

Synopsis of Rule of Law.  A country is bound by the reply given on

its behalf by its Minister of Foreign Affairs.

Facts. The agreement not to obstruct Danish (P) plans with regard to

Greenland was what Denmark wanted to obtain from Norway (D). To
this request, a declaration on behalf of the Norwegian government (D)
was made by its Minister for Foreign Affairs that Norway (D) would not
make any difficulty in the settlement of the question.

Issue. Is a country bound by the reply given on its behalf by its

Minister of Foreign Affairs?

Legal Status of Eastern

Greenland (Norway v.
Denmark)
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Held. Yes. A country is bound by the reply given on its behalf by its

Minister of Foreign Affairs. Therefore in this case, the response by the
diplomatic representative of a foreign power is binding upon the
country the Minister represents.
Discussion. The main source of international law on treaties is the
Vienna Convention on the Law of Treaties. The Convention was
ratified by 35 countries but not by the United States. Unilateral
statements may also be binding on states.

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Nuclear Tests (New Zealand v. France)

OVERVIEW OF THE CASE

On 9 May 1973, Australia and New Zealand each instituted proceedings against
France concerning tests of nuclear weapons which France proposed to carry out
in the atmosphere in the South Pacific region. France stated that it considered
the Court manifestly to lack jurisdiction and refrained from appearing at the public
hearings or filing any pleadings. By two Orders of 22 June 1973, the Court, at the
request of Australia and New Zealand, indicated provisional measures to the
effect, inter alia, that pending judgment France should avoid nuclear tests
causing radioactive fall-out on Australian or New Zealand territory. By two
Judgments delivered on 20 December 1974, the Court found that the
Applications of Australia and New Zealand no longer had any object and that it
was therefore not called upon to give any decision thereon. In so doing the Court
based itself on the conclusion that the objective of Australia and New Zealand
had been achieved inasmuch as France, in various public statements, had
announced its intention of carrying out no further atmospheric nuclear tests on
the completion of the 1974 series.

Nuclear Tests Case (Australia

& New Zealand v. France)
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Citation. I.C.J. 1974 I.C.J. 253, 457.

Brief Fact Summary. Australia and New Zealand (P) requested

France (D) to put an halt to atmospheric nuclear test in the South
Pacific.
Synopsis of Rule of Law. Declaration made through unilateral acts
may have the effect of creating legal obligations.

Facts. 

Nuclear Tests Case (Australia

& New Zealand v. France)
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Held. Yes.