The Bahrain-Qatar Border Dispute: The World Court Decision, Part I

On March 16, the International Court of Justice (ICJ, the World Court) in The Hague issued a ruling at the end of what it itself described as the longest case in its history: Qatar v. Bahrain: Maritime and Territorial Delimitation Questions Between Qatar and Bahrain. The two sides had previously agreed that the ICJ decision was binding, and thus a quarrel with its roots in the 18th century has, presumably, been ended by the World Court. With it ends a dispute which has several times led the two members states of the Gulf Cooperation Council (GCC) close to blows, including moments in 1986 when gunboats actually did open fire and Qatar did take a few Bahrainis prisoner briefly. It has long been one of the most explosive of many lingering boundary disputes between GCC members.

Many press reports have sometimes referred to this case as the "Hawar Islands" dispute, and certainly those islands, adjacent to the coast of Qatar (wadeable at low tide) but occupied by Bahrain, were one of the key issues in dispute. But the case involved a whole range of disputes, some dynastic in origin, including Bahrain's claim to the town of Zubara on the (now) Qatari mainland as well as Qatar's claim to the Hawar, and disputes over various reefs in the Gulf.

The Gulf has many longstanding border disputes, but few with the complexity of this one. Oil exploration rights are, of course, a key element in the dispute, but the dispute precedes the discovery of oil: it is rooted in tribal and dynastic rivalries, and in the fact that the Al Khalifa who now rule Bahrain once had their seat at Zubara in what is now Qatar, and are hereditary rivals of the Al Thani of Qatar. Like most Gulf disputes, this tribal rivalry has been overlaid with disputes over actions taken during the British protectorate period, British-Ottoman agreements, geographical and legal disputes, and of course, the prospect of oil.

The quarrel has long simmered. As mentioned, in 1986 Qatar sent gunboats to the reef called Fasht al-Dibal and fired a few warning shots when Bahrain started to build up the reef, which had previously been submerged at high tide. That crisis led to Saudi mediation and a decision to dredge Fasht al-Dibal low enough in the water to make it an impractical reef on which to build. But many of the disputed islands and other territories could not simply be sunk beneath the sea, and even a sunken Fasht al-Dibal remained part of the dispute over where the maritime boundary should run: a boundary important for offshore exploration.

For years Saudi Arabia sought to mediate the dispute. And for years, little happened. Qatar had fractious relations with the Saudis and had long urged taking the case to the ICJ. Bahrain resisted, insisting on regional mediation, meaning the Saudis. Finally in 1991 a frustrated Qatar took the case to The Hague. Bahrain eventually agreed to abide by the World Court's decision, and the case was argued at length. Both sides made elaborate historical presentations.

This dispute is hardly new to longtime readers of The Estimate. A Dossier, "Roots of the Bahrain-Qatar Quarrel", was published in the issue of January 3, 1997, when tensions between the two countries were unusually high; the World Court case has been covered from time to time since. This two-part Dossier looks at how the Court decided the case.

The case, according to the ICJ itself, is the longest in the Court's history, and the decision in Qatar v. Bahrain is a complex one, full of historical, geographical, and other arguments. Because of the importance of the case, ICJ President Judge Gilbert Guillaume made a public statement on the case, noting that the decision itself is 70 pages long "and does not make for easy reading"; in addition, there are dissents, separate opinions by some judges, and various maps and other appended material. The Court itself also issued a lengthy "Summary" of the whole judgment. For those who (like The Estimate) have a weak spot for historical boundary disputes, the full text of the judgment can be found at http:// www.icj-cij.org/icjwww/idocket/iqb/iqbjudgments/ ijudgment_20010316/iqb_ijudgment_20010316. htm, with links to the maps and dissents, while the Summary can also be found through the ICJ site at www.icj-cij.org. (The site cited is for the English version of the decision; the French version, which is official, can be reached through the ICJ site as well.)

The issue, as noted in the introduction, has been a difficult one, with roots in the ancestral rivalries of the ruling houses of Bahrain and Qatar when both controlled parts of the peninsula of Qatar. It has brought them close to war a time or two, and has been a continuing problem, first for the British as protectors of both emirates, and more recently for the GCC and Saudi Arabia, attempting to keep the peace in the neighborhood.

The Court's decision was essentially a Solomonic one, dividing the disputed territories. It ruled that Bahrain had no claim to Zubara, the ancestral base of the Bahraini ruling family on the mainland of what is now Qatar; that the Hawar Islands, occupied by Bahrain just off the Qatari coast, were indeed Bahrain's; that the islands of Janan and Hadd Janan, however, were not part of the Hawar group and were rightfully Qatari; that the island/reef of Qit‘at Jarada was Bahraini; that the reef of Fasht al-Dibal belongs to Qatar; and the Court also drew a "single maritime boundary" defining the maritime border between Bahrain and Qatar.

This two-part Dossier looks at some of the longstanding issues which were resolved by the case, and how the Court resolved them.

Zubara
The Court dealt first of all with one of the most far-reaching claims, Bahrain's claim to the town (or townsite) of Zubara on the northwest coast of the mainland of Qatar. Zubara has been an abandoned ruin for more than a century, but Bahrain has never abandoned its claim. On this issue, alone of the several territorial issues decided, the Court was unanimous in rejecting the Bahraini claim.

The Main Lines Claimed and the Disputed Areas (Part Two of this Dossier will contain the map and the final lines: Map based on the contained in the ICJ Decision)

The claim itself relates to the history of the ruling dynasties. The Al Khalifa of Bahrain are a part of a clan called the Bani ‘Utub, of the larger ‘Anaiza grouping, who settled in the northern Gulf from the 1600s onward. The Al Sabah of Kuwait are another tribe of the same group. About 1766 the group which became the Al Khalifa came from the Kuwait region and settled on the peninsula which is now known as Qatar and founded the trading center of Zubara. The Al Khalifa gradually extended their authority and, Bahrain claims, received tribute from the Al Thani, ancestors of the present rulers of Qatar, among others.

The Bahrain islands, meanwhile, had been ruled by the Portuguese from 1521 until 1602, when Iran took control. But Iran entered a period of weakened power projection and in 1783, the Al Khalifa and some of their allies took possession of Bahrain from the Iranian garrison.

At least initially, the Al Khalifa also retained their base at Zubara; the first Khalifa to rule Bahrain was buried at Zubara, and Bahrain claims that the rulers summered in Bahrain and wintered in Zubara. But the Al Khalifa found they had to concentrate their energies on defending Bahrain (the Sultan of Muscat took it in 1800; Iran tried several times to recover it). Meanwhile the smaller Gulf states began playing a careful game balancing the rising power of the Wahhabi (Saudi) state to their West with the Ottoman Empire and the British, who were increasingly present in the Gulf.

By 1800 the Khalifas were firmly ensconced in Bahrain and Zubara went into decline. Beginning about 1851 the Al Thani of Doha, the later rulers of Qatar, began efforts to throw off their tribute to the Al Khalifa.

By the 1860s, after an intervention by the British Political Resident, the Al Thani were allowed to pay their tribute not to the Al Khalifa but to the Na‘im tribe in the Zubara region. Later, the Al Thani were given permission by the Ottomans (at a time of Ottoman suzerainty in parts of the Arabian Peninsula) to abandon their tribute.

Zubara was already in ruins at this time, but in 1894 and 1895, the Al Thani encouraged a tribe known as the Al Bu ‘Ali, who had quarreled with the Al Khalifa, to reoccupy Zubara. They did so, provoking new quarrels. When the Al Thani raised an Ottoman flag over Zubara the British stepped in, and over the next few years, first Bahrain and then Qatar accepted protectorate status from Britain.

This is a confusing period in which the British, the Ottomans, and the rising Saudi power were all competing in the Gulf for the attention of the small states. Once both Bahrain and Qatar came under British protection, conflicts between them were suppressed, but the Al Khalifa did not forget their claim to their ancestral site at Zubara, despite the fact that after 1895 it was once again an abandoned ruin.

In 1937, when the Al Thani ruler of Qatar sought to impose Qatari taxes on the Na‘im tribe, who lived in the Zubara area, they appealed to Bahrain's Al Khalifa. The Al Thani evicted the Na‘im, and took control. Bahrain has claimed that it enjoyed at least nominal sovereignty over Zubara up to 1937, and that the forcible eviction of the Na‘im did not give Qatar a legitimate claim. Qatar denies that Bahrain exercised authority over Zubara after fighting between the two sides in the 1860s.

The Court actually did not rule so much on the disputed facts between the parties as on what the British position had been. It noted that the Anglo-Ottoman Convention of 29 July 1913 said that the peninsula of Qatar would, "as in the past" be governed by the Al Thani, and that "The Government of His Britannic Majesty declares that it will not permit the Sheikh of Bahrain to interfere in the internal affairs of Qatar". Although that convention was not ratified, the Court ruled that it showed the British interpretation, and that the Anglo-Ottoman Treaty of 9 March 1914, which was ratified, spoke of the boundary between Ottoman-controlled Nejd and Qatar, as if Qatar controlled the whole peninsula.

As for the disputed events of 1937, the Court noted that the British Political Resident in the Gulf had indicated that Britain did not support Bahrain's claim to Zubara, citing a communication with the British Secretary of State for India.

Finally, the Court concluded unanimously that: "In the period after 1868, the authority of the Sheikh of Qatar over the territory of Zubarah was gradually consolidated; it was acknowledged in the 1913 Anglo-Ottoman Convention and was definitively established in 1937. The actions of the Sheikh of Qatar in Zubarah that year were an exercise of his authority on his territory and, contrary to what Bahrain has alleged, were not an unlawful use of force against Bahrain."

In all probability, few Bahrainis really expected the Court to acknowledge the claim to Zubara, despite its dynastic and emotional attachments. The Hawar Islands were another matter.

The Hawar Islands
Many press reports of the dispute have used the shorthand of calling it a dispute over the Hawar Islands, though these were only one of a number of territorial issues in play. The Hawar Islands have long been occupied by Bahrain, but lie adjacent to the coast of Qatar; Qataris have long said that one can walk to them, hopping from rock to rock, at low tide without getting one's feet wet. Because sovereignty over the Hawar Islands may directly relate to ownership of petroleum resources, their possession has been a key issue between the two countries. The Court found, by 12 votes to 5, that the Hawar are Bahraini (though emphasizing that Qatar has a right of innocent passage in the waters between the Hawar and Bahrain proper). The issue has long been a difficult one; disputes over oil rights have complicated exploration in the Hawar, and Bahraini efforts to build tourist sites there have irritated the Qataris. In 1982, the year after the creation of the GCC (which was supposed to resolve territorial disputes, among other things), Bahrain named a new gunboat the Hawar, infuriating Qatar.

The Hawar Islands (for overall locations see earlier map)

Qatar based its claim to the islands on its priority of title and on the principle of proximity and territorial unity; Bahrain based its claim on a 1939 British decision granting them to Bahrain. The islands, Qatar claimed, all lie within the 12 nautical mile limit of the Qatari coast, and most lie within a three nautical mile limit. The islands are thus an integral part, they claimed, of the coast of Qatar.

Bahrain claimed that it had exercised sovereignty over the Hawar "continuously and uninterruptedly" for two centuries, and that Qatar never exercised any competing authority. But, in addition to citing many examples of Bahraini links with the islands through the years, it also relied on the British decision of July 11, 1939 giving the islands to Bahrain.

That decision came about after Qatar charged that Bahrain had illegally occupied the islands in 1937. The two sides both appealed to the British and the latter ruled in favor of Bahrain. Bahrain insisted that this amounted to an arbitration award. And since 1939 Bahrain could show that it had indeed maintained continuous occupation and exercised sovereignty on the islands.

Qatar rejected the 1939 decision because it was done by the colonial power without Qatari acquiescence. It denied that it amounted to an arbitration and insisted it was done without Qatar's consent.

There were complex legal issues involved: the legitimacy of the 1939 colonial-era decision, precedents concerning territorial integrity versus actual control of territory, and the like.

In its decision, the Court placed considerable weight upon the findings of the British in 1939, which essentially gave greater weight to the evidence of past Bahraini occupation than to Qatar's claim of territorial proximity. It found that both parties had indeed had the opportunity to present their arguments before the British, and that in some of the correspondence Qatar had entrusted the decision to the British. Though the Qatari ruler protested the decision after it was made, the Court found that Britain had the right to make it. It therefore held that the 1939 decision was binding, regardless of other arguments, and found for Bahraini sovereignty.

This decision provoked considerable debate, and five judges objected for various reasons, among them the question of accepting a colonial-era decision as binding.

Next Time in Part Two:
In Part Two, in the next issue, we look at the Court's rulings on Fasht al-Dibal, Qit‘at al-Jarada, and the delineation of the maritime boundary between the two states.

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