1 Maritime Delimitation and Territorial Questions Between Qatar and Bahrain (Qatar v. Bahr.), para. 31 (Int’l Ct. Justice Mar. 16, 2001) [hereinafterjudgment]. Qatar amended its original application on November 30,1994. Id., para. 32. The decisions, pleadings, and basic documents of the International Court of Justice (ICJ) are available online at <http://www.icj-cij.org>. There are seven “sketch-maps” appended to the Judgment; they are available through hyperlinks within the online version of that document.

2 Id., para. 67.

3 Id., para. 252(1), (2) (a), (3), (4) (respectively).

4 This area lies on the northwest extremity of the Qatar peninsula.

5 These islands lie immediately off the west coast of the Qatar peninsula, and approximately ten nautical miles southeast of the main islands of Bahrain.

6 This island is located off the southwest tip of the main island of the Hawars.

7 This tiny island is roughly equidistant from the Qatar peninsula and the main island of Bahrain, and less than 12 nautical miles from the presumed coastal baselines of each.

8 This feature lies a few nautical miles north of Qit’at Jaradah, is closer to the Qatar peninsula than to the main islands of Bahrain, but is still within 12 nautical miles of both states’ presumed coastal baselines.

9 Judgment, supra note 1, para. 252(5).

10 Id., para. 252(6).

11 Convention on the Continental Shelf, Apr. 29,1958,15 UST 471,499 UNTS 311; Convention on Fishing and Conservation of the Living Resources of the High Seas, Apr. 29, 1958, 17 UST 138, 559 UNTS 285; Convention on the High Seas, Apr. 29, 1958, 13 UST 2312, 450 UNTS 82; Convention on the Territorial Sea and Contiguous Zone, Apr. 29, 1958, 15 UST 1606, 516 UNTS 205.

12 UN Convention on the Law of the Sea, opened for signature Dec. 10, 1982,1833 UNTS 397, reprinted in 21 ILM 1261 (1982) [hereinafter LOS Convention].

13 Id., para. 167.

14 Id., paras. 1–34.

15 Id., paras. 35–69.

16 See id., paras. 55–56.

17 Id., paras. 83–87. The agreement made clear that Great Britain would not tolerate Bahraini armed intervention on the Qatar peninsula.

18 Id., paras. 87–91.

19 Id., paras. 92–95. The Osmanlis ceased to be a factor after 1915.

20 Id., para. 84.

21 Id., paras. 85–86.

22 The entire Court found the award to lack the necessary formal and procedural preconditions to be an arbitration, id. paras. 112–14—namely, a process for “the settlement of differences between States by judges of their own choice, and on the basis of respect for law,” id., para. 113.

23 Id., paras. 111–47.

24 Id., para. 148.

25 Id., paras. 51–54.

26 Id., para. 117 (citing Dubai/Sharjah Border Arbitration (Dubai v. Sharjah), Oct. 19, 1981, 91 ILR 543,577).

27 Id., paras. 137, 139.

28 Id., para. 140. The British political agent in Bahrain made this promise in his May 20,1938, letter to the ruler of Qatar, id., para. 119, who subsequently referred to the promise in his May 27,1938, reply to the political agent, id., para. 120. The Court seems to have accepted that it was fulfilled.

29 Id., para. 141.

30 Id., para. 142.

31 Id., para. 143.

32 Id., para. 144.

33 Id., para. 145.

34 Id., para. 157.

35 Id., para. 160.

36 Id., para. 164.

37 Delimitation of the Maritime Boundary in the Gulf of Maine Area (Can. v. U.S.), 1984 ICJ Rep. 246 (Oct. 12). 38 This argument is less than persuasive. For example, the acknowledged maritime boundary between Indonesia and Singapore suggests, to the contrary, that archipelagic baselines, like any others, are not dispositive with respect to the question of maritime boundaries.

38 Judgment, supra note 1, para. 183. Moreover, in denying Bahrain’s alternative claim to be entitled to use (ordinary) straight baselines, the Court applied for the first time a restrictive interpretation of LOS Convention Article 7 (“Straight baselines”). See id., paras. 212–15.

40 Id., para. 201. The Court cites in this context both Article 11(1) of the Convention on the Territorial Sea and the Contiguous Zone and Article 13(1) of the LOS Convention.

41 LOS Convention Article 13(1) provides:

• 1.

  1. A low-tide elevation is a naturally formed area of land which is surrounded by and above water at low tide but submerged at high tide. Where a low-tide elevation is situated wholly or partly at a distance not exceeding the breadth of the territorial sea from the mainland or an island, the low-water line on that elevation may be used as the baseline for measuring the breadth of the territorial sea.

• 2.

  2. Where a low-tide elevation is wholly situated at a distance exceeding the breadth of the territorial sea from the mainland or an island, it has no territorial sea of its own.

42 In this context, the Court might well have felt a need to distance itself, albeit not expressly, from the first award in the Eritrea/Yemen arbitration, see infra note 67.

43 Judgment, supra note 1, paras. 205–08.

44 It reasoned that “ [f] or 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.” Id., para. 202.

45 Id., para. 209.

46 The uncertain status of Fasht al Azm, discussed infra notes 51–52 and accompanying text, did not affect this conclusion, because “under both hypotheses [concerning that status], Fasht ad Dibal is largely or totally on the Qatari side of the adjusted equidistance line.”Judgment, supra note 1, para. 220.

47 Judgment, supra note 1, para. 169.

48 Article 15 provides:

In a qualification of its application of the law, the Court noted that it must also “tak[e] into account that its ultimate task is to draw a single maritime boundary that serves other purposes as well,” Judgment, supra note 1, para. 174—arguably, an oblique reference to the need to adjust the line to ensure a smooth “transition” to the northern sector.

49 Judgment, supra note 1, paras. 185, 195. Article 121 provides:

• 1.

  1. An island is a naturally formed area of land, surrounded by water, which is above water at high tide.

• 2.

  2. Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive economic zone, and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory.

• 3.

  3. Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.

50 Judgment, supra note 1, para. 190.

51 If Fasht al Azm were considered part of Sitrah Island, it would “push” the equidistance line eastwards towards Qatar; if it were considered a low-tide elevation not naturally connected to the island, it would be disregarded for delimitation purposes on the same ground as Fasht ad Dibal. Id., para. 220; see id., sketch-map 3.

52 Qit’at ash Shajarah is a low-tide elevation just to the east of Fasht al Azm. The Court stated that

Id., para. 218 (cross-references omitted); see id., sketch-map 3.

53 Id., para. 219.

54 Id., paras. 218–20. The Court also, in accordance with common practice, simplified an otherwise complex delimitation line in the region of the Hawars. Id., para. 221.

55 Delimitation of the Maritime Boundary in the Gulf of Maine Area (Can. v. U.S.), 1984 ICJ Rep. 246,327 (Oct. 12).

56 Judgment, supra note 1, para. 173.

57 Id., para. 170.

58 Id., para. 233 (citing Continental Shelf (Libyan Arab Jamahiriya/Malta), 1985 ICJ Rep. 13, 47 (June 3)).

59 Id., para. 230.

60 Id., para. 248.

61 Id., paras. 246–48. The Court rejected as “relevant circumstances” both Bahrain’s former dominance in exploiting the pearl banks north of Qatar, id., paras. 235–36, and the (small) disparity in length of the parties’ coastal fronts, id., para. 243 (the Court has never actually found such a disparity to be a relevant circumstance). It did not, moreover, countercheck the equity of its proposed line by determining, as it did in Maritime Delimitation in the Area Between Greenland and Jan Mayen (Den. v. Nor.), 1993 ICJ REP. 38 (June 14), whether or not that line would result in an areal disparity.

62 It was the first such case to be judged by the full Court, a chamber having decided the Land, Island and Maritime Frontier Dispute (El. Sal. v. Hond.), 1992 ICJ REP. 351 (Sept. 11).

63 The single maritime boundary delimited by a chamber of the Court in Delimitation of the Maritime Boundary in the Gulf of Maine Area (Can. v. U.S.), 1984 ICJ REP. 246 (Oct. 12), concerned only the continental shelf/EEZ boundary. In Greenland and Jan Mayen, the full Court, while formally delimiting separate continental shelf and EEZ boundaries, delimited what was, in effect, a single maritime boundary limited to those zones.

64 North Sea Continental Shelf (FRG v. Den.; FRG v. Neth.), 1969 ICJ REP. 3, 51 (Feb. 20); Aegean Sea Continental Shelf (Greece v. Turk.), Jurisdiction, 1978 ICJ REP. 3, 36 (Dec. 19).

65 Judgment, supra note 1, para. 185.

66 The main significance of the findings of sovereignty over the arid, inhospitable, and sometimes tiny territorial areas was their use to locate baselines or basepoints from which an equidistance line might be drawn. The fact that some judges disagreed with the Court’s Judgment on the location of particular baselines or basepoints did not prevent those same judges from agreeing that the delimitation decided upon might nonetheless provide an equitable solution to the maritime dispute.

67 Eritrea v.Yemen, First Stage, Territorial Sovereignty and Scope of the Dispute (Perm. Ct. Arb. Oct. 9,1998); Eritrea v.Yemen, Second Stage, Maritime Delimitation (Perm. Ct. Arb. Dec. 17,1999). Both awards are available online at <http://www.pca-cpa.org>. The first-and second-stage awards are discussed in case reports by W. Michael Reisman at 93 AJIL 668 (1999) [hereinafter First-Stage Report] and94AJIL721 (2000), respectively.

68 See supra note 26, infra note 70, and accompanying text.

69 Most recently, in Kasikili /Sedudu Island (Bots. v. Namib.) (Int’l Ct. Justice Dec. 13, 1999) and Land and Maritime Boundary Between Cameroon and Nigeria (Cameroon/Nig.), Preliminary Objections, 1998 ICJ Rep. 275 (June 11).

70 For example, Delimitation of the Continental Shelf’(U.K. v. Fr.), 18 R.I.A.A. 3 (June 30,1977), reprinted in 18 ILM 398 (1979), which was so treated in Greenland and Jan Mayen, 1993 ICJ REP. at 58, 62–63, and also in the instant case, Judgment, supra note 1, paras. 247–48.

71 In other respects, perhaps, Judge Higgins’s reticence was merciful. In choosing to be brief, and to issue a mere declaration, she might well have had in mind Sir Robert Jennings’s call for economy in drafting opinions, see The International Court of Justice After Fifty Years, 89 AJIL 493, 497–99 (1995).

72 See First-Stage Report, supra note 67, at 674–76, 678–80.

73 See Judgment, supra note 1, Decl. Higgins, J. An explanation was desirable—particularly in view of the Eritrea-Yemen Tribunal’s liberal treatment of an aspect of the proximity principle, the “portico doctrine.” This doctrine is based on considerations of convenience and security. First formulated by Lord Stowell in The Anna, 5 C. Rob. 373,165 Eng. Rep. 809 (1805), it “came to possess independent integrity as a means of attributing sovereignty over offshore features which fell within the attraction of the mainland,” D. P. O’connell, 2 The International Law of the Sea 185–86 (I. A. Shearer ed., 1982). From it, the Tribunal developed two liberal principles: (1) the “propinquity presumption” (the “strong presumption that islands within the twelve-mile coastal belt will belong to the coastal state, unless there is a fully-established case to the contrary,” Eritrea v. Yemen, First Stage, para. 474), which amounted to a virtual presumptio iuris et de iure: see First-Stage Report, supra note 67, at 679; and (2) the “appurtenance factor” (“the general opinion that islands [as well, it seems, as low-tide elevations] off a coast [and lying beyond the coastal state’s territorial sea] will belong to the coastal state, unless another, superior title can be established,” Eritrea v. Yemen, First Stage, para. 480, see para. 527 (ii), (iv), (v)). If the judge’s view was that the “propinquity presumption” ought not to be applied in favor of the (nearer) coastal state when the islands in question also lie, as in the instant case, within the territorial sea claimed by another state, such a position is difficult to reconcile with (1) the intertemporal aspects of the instant case (Qatar and Bahrain increased their territorial sea claims from 3 to 12 nautical miles only in 1992 and 1993, respectively. During most of the duration of the dispute, the islands did not lie within the territorial seas claimed by both, and most lay with the area claimed by Qatar.); (2) the strength that the presumption would appear to gain when the islands are, as in this case, connected to the “coastal state” (that is, the Qatari) mainland at low tide; and (3) the Eritrea-Yemen Tribunal’s application of the “appurtenance factor” to vest title in the nearer coastal state when islands lie in waters subject to overlapping EEZ claims.

74 As in the Western Sahara advisory opinion, 1975 ICJ REP. 12 (Oct. 16), this interplay was complicated by its application to largely nomadic tribal societies, originally bound together by personal rather than geographic ties, but emerging during the course of the twentieth century into a world where frontiers needed to be identified and boundaries set, inter alia, for the purpose of allocating natural resources. The Court’s decision not to refer to Western Sahara in the instant case might have reflected a desire to appear less Eurocentric.

75 See Judgment, supra note 1, Joint Diss. Op. Bedjaoui, Ranjeva, & Koroma, JJ., para. 14. There was an unsatisfying asymmetry between the Judgment’s brief and formalistic treatment of this issue and its full legal analysis of the maritime delimitation.

76 That the judge ad hoc appointed by Bahrain—Judge Fortier—was willing, for reasons of legal stability, to concede that Qatar had sovereignty over Zubarah could only confirm that such was the case. See id., Sep. Op. Fortier, J. ad hoc, paras. 38–40.

77 See id., Diss. Op. Torres Bernardez, J. ad hoc, paras. 13–21.

78 See id., Joint Diss. Op. Bedjaoui, Ranjeva, & Koroma, JJ., paras. 14–42; id., Diss. Op. Torres Bernardez, J. ad hoc, paras. 294–352.

79 The other “formal” solution argued by Bahrain—applying the uti possidetis juris principle, which would have obviated reliance on the parties’ consent to a third-party decision—was not, in fact, open to the Court. Even if one assumes that the Court is entitled to apply the principle to Middle Eastern territory (an assumption that the Middle Easternjudge doubted was accurate, see id., Sep. Op. Al-Khasawneh, J., para. 10), it may do so only in a postcolonial, and not in a postprotectorate, situation.

80 Dubai/Sharjah Border Arbitration (Dubai v. Sharjah), Oct. 19, 1981, 91 ILR 543.

81 Three questions stand out. (1) Could the consent of Qatar, in 1939 a small and poor protectorate bound by an exclusivity agreement with Great Britain, really have been free? (2) Could its consent, such as it was, remedy the procedural inadequacies surrounding the decision—especially the reversal of the onus of proof established under the “portico doctrine,” see supra note 73, and the lower standard of procedural fairness than that found in contemporary international arbitration—so as to yield a result equally binding as an arbitral award? (3) Were even the requirements of “truth and justice” satisfied, bearing in mind Great Britain’s own apparent view of the procedures, as expressed in a document placed before the Court: “to some extent, it was imposed from above, and no question of its validity or otherwise was raised. It was quite simply a decision which was taken for practical purpose in order to clear the ground for [Bahraini] oil concessions [to British companies]”? Sovereignty over Hawar Islands, Confidential Foreign Office Minute of G. C. Long (June 10,1964), reproduced in Reply Submitted by the State of Bahrain (Merits), Vol. 1, Ann. 2, at 4, Judgment, supra note 1 (emphasis added); see id., Joint Diss. Op. Bedjaoui, Ranjeva, & Koroma, JJ., para. 20; id., Diss. Op. Torres Bernardez, J. ad hoc, para. 303. Even if one accepts that Bahrain and Qatar were aware in 1939 that any administrative decision of Great Britain would inevitably be colored by its own interests, one is left with a feeling of disquiet that the Court gave such a decision the same effect as an arbitration to which parties had freely consented.

82 This approach would not necessarily have resulted in one party taking all. For example, in looking for original titles and their historical consolidation, the Court might have supported one of three alternatives: (1) the Qatari thesis that the Al-Thani rulers of the eastern part of the Qatar peninsula gradually obtained and consolidated title to the whole of the peninsula and its appurtenances (the proximate Hawar Islands and Janan Island); (2) the Bahraini thesis that, after emigrating from Zubarah in the eighteenth century, the Al-Khalifah obtained and consolidated tide to all the (non-Saudi) islands to the west of the Qatar peninsula, including the Hawars and Janan, while they also retained a foothold in the northwest of the peninsula, through their “adherents,” the Nairn; or, most likely, (3) some tertium quid, including, perhaps, a nuanced solution involving division of the Hawars, or individual islands thereof, where circumstances required it.

83 Compare Judgment, supra note 1, para. 164, with id., para. 239.

84 See supra note 52 and accompanying text.

85 An equidistance line’s “brushing” a low-tide elevation was a novel—and strange—”special circumstance.” It might be questioned, moreover, whether the “first special circumstance” justified the Court’s choosing between two alternative equidistance lines, as opposed to modifying a single provisional equidistance line.

86 Cf. Judgment, supra note 1, Decl. Vereshchetin, J., para. 13.

87 It might have lain on the Bahraini side of the eastern of the two alternative provisional equidistance lines (projected northwards in view of Qit’at Jaradah’s noninsular status), on the Qatari side of the western one, and quite possibly across any single line determined by the Court in view of the “first special circumstance” and projected northwards. The Court appears to have viewed the influence of the “first special circumstance” as limited, enabling it to resolve the conundrum of the alternative equidistance lines in the vicinity of Fasht al Azm, but not that of the appropriate impact of either Qit’at Jaradah or Fasht ad Dibal.

88 See Judgment, supra note 1, paras. 191–97. This result should serve as a salutary warning to counsel to take great care in their use of expert evidence before the Court. The uncertain physical nature of Qit’at Jaradah was apparently compounded by efforts of both parties to alter its nature artificially. See id., para. 192; id., Decl. Vereshchetin, J., para. 13; Joint Diss. Op. Bedjaoui, Ranjeva, & Koroma, JJ., para. 195.

89 Judgment, supra note 1, para. 197. The Court considered the drilling of artesian wells to be “controversial as acts performed a titre de souverain,” but the construction of navigational aids to be potentially “legally relevant in the case of very small islands.” Id. The latter assertion appears to contradict Minquiers and Ecrehos (Fr./UK), 1953 ICJ REP. 47, 7l (Nov. 17). In the context of its discussion of Qit’atjaradah, the Court made special note, Judgment, supra note 1, para. 198, of the test in Legal Status of Eastern Greenland, 1933 PCIJ (ser. A/B), No. 53, at 46: “in many cases the tribunal has been satisfied with very little in the way of the actual exercise of sovereign rights, provided that the other State could not make out a superior claim.”

90 Judgment, supra note 1, para. 195.

91 An unwanted consequence of the findings was their potential impact upon Bahrain’s claim in the alternative o be a de facto archipelagic state. The Court’s formalism in rejecting this claim might have been largely motivated by Qit’atjaradah’s status as a potential location for an archipelagic basepoint. Its use as such might legitimize an archipelagic claim otherwise unlikely to satisfy the strict proportionality criteria of LOS Convention Article 47( 1). If the Court had not found a formal exit from the problem, it would have had little choice but to deal with a number of difficult legal questions, including: the customary law status vel non of Part IV of the LOS Convention; whether Bahrain’s failure to make a. formal archipelagic claim was excused by its alleged desire to avoid aggravating the dispute; and the claim’s legal impact, if any, upon the maritime delimitation line and navigational interests. It might be argued, however, that Bahrain’s third formal submission, see Judgment, supra note 1, para. 33, was actually broad enough to include its claim to be a de facto archipelagic state. In that submission, Bahrain asked the Court to “adjudge and declare that. . . [i]n view of Bahrain’s sovereignty over all the insular and other features, including Fasht ad Dibal and Qit’atjaradah, comprising the Bahraini archipelago, the maritime boundary between Bahrain and Qatar is as described” in Bahrain’s memorial (part II), countermemorial (part II), and reply.

92 The Court stated that “[t]he most logical and widely practised approach is first to draw provisionally an equidistance line and then to consider whether that line must be adjusted in the light of the existence of special circumstances.”Judgment, supra note 1, para. 176.

93 Id., para. 231.

94 The Court’s failure to apply an “areal proportionality” countercheck is understandable since the inability to locate the exact tripoints with Iran and Saudi Arabia, coupled with Bahrain’s mutually exclusive alternative claims to Zubarah and to the de facto status of an archipelagic state, made it too difficult to identify precisely which waters were in dispute. In order to preserve consistency of jurisprudence, the Court ought perhaps to have explicitly acknowledged this difficulty.

95 Maritime Delimitation in the Area Between Greenland andjan Mayen (Den. v. Nor.), 1993 ICJ REP. 38 (June 14).

96 Supra note 11.

97 1993 ICJ REP. at 58, 62–63.

98 Delimitation of the Continental Shelf (UK v. Fr.), 18 R.I.A.A. 3 (June 30, 1977).

99 LOS Convention Article 15 sets forth an unequivocal rule about the median line and then states that it does not apply when it is necessary to diverge from it “by reason of historic title or other special circumstances,” whereas Continental Shelf Convention Article 6 incorporates special circumstances into the statement of the rule itself: “In the absence of agreement, and unless another boundary line is justified by special circumstances, the boundary is the median line . . . .”

100 See supra the first phrase of the quotation in note 92.

101 Why else would the Court have constructed an artificial dual meaning for “single maritime boundary” and have employed that phrase in a dual sense—to describe both the whole boundary being delimited and the coincident jurisdictional zones part of it (the latter being the standard sense) ? See Judgment, supra note 1, paras. 173–74. Why else would the Court have ignored Qatar’s argument, based on intertemporal considerations, that since the long-standing maritime dispute was solely about seabed resources—and resources that had lain, until the parties’ 1992–93 extensions of territorial waters, under the high seas—the Court should simply apply to the whole boundary the rules relevant to a continental shelf/EEZ boundary delimitation?

102 Id., para. 252(2) (b). This declaration was made in view of one consequence of the delimitation line adopted by the Court—that “Qatar’s maritime zones situated to the south of the Hawar Islands and those situated to the north of those islands are connected only by the channel separating the Hawar Islands from the peninsula. This channel is narrow and shallow, and little suited to navigation.” Id., para. 223. The Court thus wished to make it clear that Qatari ships could pass between those zones via the Bahraini territorial sea west of the Hawar Islands.

103 Jennings, Robert Y., The International Court of Justice After Fifty Years, 89 AJIL 493, 498 (1995)Google Scholar.