The Bahrain-Qatar Border Dispute: The World Court Decision: Part 2

The March 16 decision by the International Court of Justice (ICJ, the World Court) on the longstanding series of border disputes between Bahrain and Qatar serves as an intriguing example of what an internationally binding decision can do to end an ancient feud. Both Qatar and Bahrain welcomed the decision (though most analysts would say that Bahrain won more than Qatar did) and promptly announced new areas of dialogue and mutual cooperation. It might almost be described as a case of both sides displaying a palpable sense of relief that a longstanding dispute, which neither side could afford to compromise on, had been removed from the table of issues between them.

The Court rendered a Solomonic sort of decision, dividing the disputed territories between the two states; it also used a variety of principles in judging the varying disputes. In Part I of this Dossier, in the last issue of The Estimate, we looked at the Court's decision in the two most ancient disputes, Zubara and the Hawar Islands. Though Zubara on the Qatar Peninsula was the ancestral home of the family which now rules Bahrain, the Court held unanimously that Qatar had established sovereignty over Zubara in the 19th century and definitively secured it by 1937, thus effectively rendering judgment based on longstanding control of the territory. On the disputed Hawar Islands, occupied by Bahrain but adjacent to the coast of Qatar, the Court instead turned to a decision made by Great Britain, as the colonial protecting power, in 1939, which awarded the islands to Bahrain. The Court held that while the British decision was not a true arbitration, it did have the prior consent of both states and therefore was binding, leaving the Hawar Islands under Bahraini sovereignty. The Court was more divided on this issue, however: it ruled 12 votes to 5 for Bahrain, but with several judges dissenting, in part over using a colonial era decision by the colonial power as binding on the modern states.

The other issues involved in the case have drawn less international attention than Zubara and the Hawars, though one of them, Fasht al-Dibal, led the two states to the brink of conflict in 1986. And in addition to rendering decisions on each of these issues, the Court also drew, at the request of the parties, a definitive maritime boundary between the two states, thus effectively ending all outstanding disputes. As noted, both parties seemed relieved and neither has disputed the basis of the decisions. This second part of the Dossier looks at the other issues, besides Zubara and the Hawar Islands, dealt with previously.

There are few more abstruse issues in international affairs than the law of the sea; the drawing of maritime boundaries is one of those arenas rife with disputes and yet critical in areas where offshore oil and gas are to be found or sought. After resolving the issue of Zubara and the Hawar Islands, the World Court turned to the remaining issues between the two states, all but one of which involved offshore structures, reefs and the like, and in some cases the complex issue of whether a structure is normally to be considered above water or submerged. The exception was a decision on whether the island of Janan (or the two islands of Janan and Hadd Janan, if they are two islands) is/are part of the Hawars, or not, and therefore belong to Bahrain or to Qatar.

The Fasht al-Dibal Crisis of 1986
One of these outstanding issues had the distinction (or notoriety) of having brought the two countries close to outright conflict as recently as 1986. Fasht al-Dibal is a reef off the coast to the north of Qatar and east of Bahrain. In 1986, Bahrain began building up the reef in order to make it into an island which would not be submerged at high tide, with the intention of establishing a Bahraini coast guard post there. On April 26, 1986, Qatar landed a contingent of troops and arrested 29 workmen, expatriate laborers employed by Bahrain. Both sides sent gunboats and made threatening gestures, and a few shots are said to have been fired across bows before Saudi Arabia stepped in to mediate.

Though the Saudis had not proved very effective as mediators on the more recalcitrant issues of the Hawar and Zubara, they found an obvious solution to the question of Fasht al-Dibal: the reef was dredged so that it was once again below the water line. That did not, however, resolve the more complex question of who controlled the seabed, and thus oil and gas which might be found there.

There were some other issues, along with who owned Fasht al-Dibal, wrapped up in the complex boundary dispute. A similar question arose over the Qit‘at al-Jarada, another reef; over the question of whether the submerged reef known as the Fasht al-‘Azm was or was not part of the island of Sitra, which is part of Bahrain. And there was the question of the island of Janan or, as seen by Bahrain, the two islands of Janan and Hadd Janan. Bahrain considered these part of the Hawar Islands, though Qatar had controlled them; Bahrain wanted them included if the Hawar was awarded to it, while the Qataris treated them as a separate issue.

Janan and Hadd Janan
The Court addressed the Janan issue after those of Zubara and Hawar, since it also involved land claims rather than issues of maritime boundaries. Having already decided the Hawar question on the basis of the British 1939 award to Bahrain, the Court determined that that decision had made no reference to Janan island, nor did it specify what the "Hawar Islands" included. Janan is considered by Qatar to be a single island off the southwestern tip of the main Hawar Island; while Bahrain claimed that Janan and Hadd Janan were two islands (though merged into one at low tide) and sought to include them as part of the Hawar group. (For Janan and Hadd Janan, see the map of the Hawar group in Part I of this Dossier.)

The Court found that though Bahrain submitted three lists prior to 1939 to the British listing what they considered to be the Hawar Islands, the name of Janan appears by name in only one. A fourth list, from 1946, came long after the 1939 opinion. The Court also considered letters sent by the British Political Agent in 1947 to the rulers of Qatar and Bahrain, in which the British said that Janan was not considered as being part of the Hawar group. The Court thereby held that Janan and Hadd Janan, whether considered one island or two, were under Qatari sovereignty in accordance with the 1947 statement. The Court held this by 13 votes to four.

Turning to the offshore issues, the Court had to deal with both the individual questions of the various reefs, and the broader question of how to draw the maritime boundary between Qatar and Bahrain. Neither country was party to the Geneva Conventions on the Law of the Sea of 1958, and while Bahrain had ratified the United Nations Convention on the Law of the Sea of 1982, Qatar was only a signatory to it. Accordingly, the Court would hold according to customary international law, but the two parties had agreed that the 1982 Convention reflected customary law.

The main question arising was how to determine the "relevant coasts" for determining where the maritime border should fall. Bahrain had argued that it should be considered an "archipelagic state", in which a variety of islands constitute the state, while Qatar argued for the "mainland-to-mainland" method, considering the mainlands as the baselines, but with the Qataris including major islands as part of the mainland. Without actually ruling on the "archipelagic state" argument, the Court set about determining which land belonged to which state. The main issues were the semi-submerged reefs, and whether "low-tide elevations" can be appropriated by one side or another.

Leaving out much of the complex legal argument here, we will simply note that the Court ultimately ruled that:
It is not necessary to rule whether or not Fasht al-‘Azm is part of the island of Sitra or a low-tide elevation in order to draw a maritime boundary, and therefore that issue was not explicitly decided.

Qit‘at Jarada, which Bahrain held to be an island and Qatar to be a low-tide elevation, concluded that the feature met the legal definition of an island and therefore recognized that Bahrain's activities there had been sufficient to support Bahrain's claim of sovereignty, which was therefore upheld, by 12 votes to five.

Fasht al-Dibal, the focal point of the 1986 dispute, raised a different set of issues. It was clearly a low-tide elevation, since both sides agreed on that. Bahrain contended that low-tide elevations are territory, and can be appropriated under the laws pertaining to acquisition of territory. The Court noted that when such an elevation is situated in an area where the territorial seas of two states overlap, the question is complicated by competing rights. It held that the law of the sea is largely silent on whether low-tide elevations in such a position are legally "territory" in the same sense as islands, and "recalls the rule that a low-tide elevation which is situated beyond the limits of the territorial sea does not have a territorial sea of its own." The Court therefore held that such low-tide elevations were to be disregarded in computing the equidistance line of territorial seas, and in accordance, the line it subsequently drew gave Fasht al-Dibal to Qatar. The Court was unanimous in giving it to Qatar, though the Court was more divided in actually drawing the line, with the final line (shown on Page Seven) being supported by a vote of 13 to four.

Lessons of the Case
As noted in Part I, the Court itself characterized the case of Qatar v. Bahrain as the longest case in its history. So far it is the only case of a Gulf boundary dispute which has been resolved through the ICJ rather than through mediation, arbitration, or negotiation. For decades, whenever Qatar sought to push its claim to the Hawars, Bahrain responded by reviving its claim to Zubara; Saudi mediation failed to find a formula to get around these issues.

Some critics have noted that the Court actually avoided settling some of the issue, deciding the Hawar Islands issue not on a principle of territorial law, for example, but by interpreting a British protectorate-era ruling as binding on the parties; some of the dissenting judges objected to this legitimization of a colonial-era decision. In a number of other issues the Court basically decided the issue on the basis of precedent or actual control rather than on broader principles of territorial and law of the sea issues.

But decide the case it did, in the process drawing a maritime boundary (as requested by the parties) and settling, apparently, all the outstanding territorial issues. Almost immediately Qatar and Bahrain both began praising the decision, though in each case some territorial claim it had long characterized as non-negotiable had been overridden (Bahrain's claim to Zubara, Qatar's to the Hawars). As noted in the introduction, there appeared to be an almost visible sense of relief on the two sides, for the Court had cut the Gordian knot which has long been the main point of contention between the two Gulf neighbors. Although Bahrain quickly invited foreign companies to begin oil exploration in the Hawar Islands, there was none of the protest from Qatar which would have been expected a few weeks earlier from the same announcement.

As noted in the last issue, Saudi Arabia and Qatar also formally signed the border agreement demarcating their border, negotiated earlier. The Saudis and Kuwaitis have also recently concluded border agreements, and Kuwait, Saudi Arabia and Iran are all in talks on their maritime lines. Saudi Arabia and Yemen have begun implementing the part of their recent border agreement calling for withdrawal of military forces from the new border. Earlier, Oman had resolved most of its boundary issues with its neighbors. The Arabian Peninsula is gradually beginning to replace the "no recognized boundary" lines on most maps with real, agreed borders. Twenty years after the creation of the Gulf Cooperation Council (GCC), one of the goals originally announced for it (resolution of disputes among the members) has largely been achieved, though generally not through the GCC but bilaterally or through mediation except in the one case, Qatar v. Bahrain, which went to The Hague for resolution. The fact that both sides welcomed the decision with relief, however, shows that even persistent disputes can be set aside if resolved through an accepted medium (in this case, the ICJ) and the rule of law.

There have been calls in the Arab world for a similar resolution of the major outstanding territorial dispute in the Gulf: the UAE's claim to the Iranian-occupied islands of Abu Musa and the Greater and Lesser Tumb. But that is unlikely to happen soon, since Iran, which is in firm possession, insists that the issue is closed. That issue may well remain an irritant long after the peninsular boundaries and offshore lines are demarcated and observed.

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