¹ Maritime Delimitation and Territorial Questions Between Qatar and Bahrain (Qatar v. Bahrain), Jurisdiction and Admissibility, Judgment of 1 July 1994, ICJ Rep 1994, 112.

² Maritime Delimitation and Territorial Questions Between Qatar and Bahrain (Qatar v. Bahrain), Jurisdiction and Admissibility, Judgment of 15 Feb 1995, ICJ Rep 1995, 6. For a discussion of both judgments see Evans, MD, ICJ Cases, (1995) 44 ICLQ 691.CrossRefGoogle Scholar

³ This was then reflected by the Court in its Order of 17 Feb 1999, ICJ Rep, 1999, 3, and in the current judgment, paras 15–23. Cf the Separate Opinion of Judge ad hoc Fortier, who took the view that these documents had" “polluted” and “infected” the whole of Qatar's case’ (para 4).

⁴ The historical background is outlined in paras 36–48 of the judgment.

⁵ Judgment, para 73.

⁶ Ibid, para 76.

⁷ Ibid, para 84. Similarly, the Court rejected the argument that the Nairn exercised sovereign authority on behalf of the Al-Khalifah, Ibid, paras 85–6.

⁸ Ibid, para 90. Although not ratified, the Court took the view that ‘signed but unratified treaties may constitute an accurate expression of the understanding of the parties at the time of signature’ (para 89) and noted the role played by Great Britain and the Ottomans in the region at that time.

⁹ Ibid, para 96.

¹⁰ Ibid, para 97. Cf Separate Opinion of Judge ad hoc Fortier, paras 35–41, who considered that Qatar had seized Zubarah by force in 1937 but that the state of the law at that time, and the passing of 60 years since, meant that Qatari sovereignty should be recognized.

¹¹ Ibid, para 99.

¹² Ibid, para 100 and see 101–2 setting out numerous examples.

¹³ Ibid, para 103.

¹⁴ Ibid, para 107. It also produced material that it claimed contradicted the view that the islands were generally considered to be subject to Bahraini sovereignty.

¹⁵ Ibid, para 106.

¹⁶ Ibid, paras 146–7. The approach was criticised by a number of judges who considered it unduly formalistic. See, eg, the Declaration of Judge Vereschetin, the Joint Dissenting Opinion of Judges Bedjaoui, Ranjeva, and Koroma and the Dissenting Opinion of Judge ad hoc Torres Bernardez, all of whom rejected the relevance of the 1939 Decision and, for a variety of reasons, considered that title to the Hawar islands rested with Qatar. Cf. the Separate Opinions of Judge Kooijmans, paras 44–79, and of Judge Al-Khasawneh who, whilst also rejecting the Court's approach, concluded that Bahrain had title to Hawar island based upon its effectivities which, though meagre, were sufficient for the purposes. All of these separate and dissenting opinions also reject the relevance of uti possedetis juris, either to situations that do not include a transfer to sovereignty or to the region in question.

¹⁷ Judgment, para 114.

¹⁸ Ibid, para 117.

¹⁹ Ibid, paras 118–35.

²⁰ Ibid, para 137.

²¹ Ibid, para 139.

²² Ibid, para 140.

²³ Ibid, para. 141, this being known by Qatar at the time it consented to the process.

²⁴ Ibid, para 143.

²⁵ Ibid, para 145.

²⁶ The parties disagreed whether Janan was a single island or comprised two islands that merged at low tide (Janan and Hadd Janan). The court felt entitled to conclude that was a single feature. Ibid, paras 149–50.

²⁷ Ibid, para 151.

²⁸ Ibid, para 152. Had the Court taken the view that it was dealing with two separate islands, (above n. 26) the arguments from proximity and location within the three-mile belt would have had quite different consequences.

²⁹ Ibid, paras 155–6.

³⁰ Ibid, paras 164–5. The background to this letter is set out in para 61. But cf Separate Opinion of Judge Kooijmans, who disagrees with this view, arguing that the only reason why in 1947 Janan was considered as separate were ‘political reasons’ flowing from the beginnings of oil exploration in the area (see paras 80–8). Kooijmans would have granted sovereignty over Janan to Bahrain, as would have Judges Oda, and Higgins and Judge ad hoc Fortier.

³¹ Judgment, para 167. But cf Judge Oda, Separate Opinion, para 12, who disagrees with this interpretation, noting that the submissions of the parties do not mention a single maritime boundary at all.

³² This Award was made in two phases, the first dealing with territorial question and the second with the maritime delimitation issues. The first was delivered on 9 Oct 1998 and the second on 17 December 1999. Both are available on the website of the Permanent Court of Arbitration <http://www.pca.cpa.org>. See further Autunes, N, ‘The Eritrea–Yemen arbitration; First Stage—The Law of Title to Territory Reaverred’ (1999) 48 ICLQ 362CrossRefGoogle Scholar and Evans, MD, ‘The Maritime Delimitation Between Eritrea and Yemen’ (2001) 14 LJIL 141.CrossRefGoogle Scholar

³³ Cf also Judgment, para 173.

³⁴ Ibid, para 174.

³⁵ Judgment, paras 175–6. Cf Separate Opinion of Judge Oda, paras 13–21, who challenges the Court's views of the content of customary law on these matters. Cf also Dissenting Opinion of Judge ad hoc Torres Bernβrdez, paras 480–9, who argued that LOSC Art 15 did not preclude the relevance of equitable principles and that given that a SMB had been requested, the ‘equitable solution’ approach should have bee applied in the both the southern and northern sectors.

³⁶ Judgment, para 179.

³⁷ Ibid, para 180.

³⁸ Ibid, para 181.

³⁹ Ibid, para 184.

⁴⁰ Ibid, para 183. The Court the pointed to the need to conduct the delimitation on the basis of ‘rules and principles of customary law which are pertinent under the prevailing conditions’ which clearly did not include a formal claim to archipelagic status or to archipelagic baselines. The judgment seems more than usually opaque concerning whether the Court would have considered that regime to have customary status had such a formal submission been made. See also Ibid, para 214. Cf. Churchill, RR and Lowe, AV, The International Law of the Sea, 3rd edn (Manchester: Manchester University Press, 1999), 130Google Scholar who consider the archipelagic regime to have passed into customary international law.

⁴¹ See Ibid, paras 212–15.

⁴² Ibid, para 185.

⁴³ Ibid, para 206.

⁴⁴ This may be difficult to reconcile with the well established principle that LTEs which have been built upon may be utilised for the purposes of constructing a straight baseline system even if located outside of the territorial sea generated from mainland or insular features (LOSC, Art 7(4)).

⁴⁵ Ibid, para 202.

⁴⁶ Ibid, paras 202 and 209. Cf Judge Oda, Separate/Opinion, paras 6–9, who seems to call for an even more cautious approach to the generative capacity of islets and LTEs and questions the customary law status of LOSC Art 13.

⁴⁷ Ibid, paras 196–9. This included the construction of navigational aids. Cf Separate Opinion of Judge Parra-Aranguren, para 6, who disagrees that such acts constitute acts of sovereignty. Cf also Declaration of Judge Vereshchetin, para 13, who points to the artificial attempt made by both parties to raise the surface of the feature, which he considers should be considered to be a LTE.

⁴⁸ Ibid, paras 190 and 216.

⁴⁹ Ibid, para 219.

⁵⁰ Ibid, para. 220.

⁵¹ A point forcefully made by in the Separate Opinion of Judge Oda, para 28.

⁵² Subsequently, in para 247 of its judgment, the Court recalls the Anglo-French Arbitration of 1977 when indicating that it is the rough equality in manner in which the coasts of the parties relate to this offshore area, which lies adjacent to their coasts, that justifies the use of this methodology. Thus the status of equidistance as the ‘starting point’ for a delimitation between adjacent coasts still remains unclear.

⁵³ Judgment, paras 224–31. The Court notes that the ‘equidistance/special circumstance’ rule and the «equitable principles/relevant circumstances’ rule applied in the context of the continental shelf and EEZ ‘are closely interrelated’ (para 231). Following this judgment, it would be interesting to know how the Court might choose to tell them apart.

⁵⁴ Ibid, para. 236. This seems to have been chiefly because the fishery ceased to exist some considerable time previously. However, there are also suggestions that this type of activity could only be considered relevant it had led to the recognition of an exclusive quasiterritorial right to the fishing grounds themselves or to the superadjacent waters’ (Ibid). This is rather peculiar, since no such preconditions seem to apply when considering the potential relevance of water column resource exploitation in previous cases.

⁵⁵ Ibid, para 237. This, it will be recalled was of considerable significance as regards the territorial sovereignty issues. One reason given for dismissing its relevance was that it referred to the ‘seabed’ and the current case concerned water column issues. This is a good example of the superficial attractions of adopting the SMB approach, since it can be manipulated to exclude otherwise uncomfortable practice relating to aspects of its component parts.

⁵⁶ Ibid, para 243. The Court considered the disparity on length insufficient to justify an alternation to the equidistance line, but did not specify what it considered that ratio to be. This is of some interest since latterly it has been almost orthodox to expect any equidistance line drawn between opposite coasts to be tampered with in order to reflect this factor. It may be that such disparities are to be seen as having less potency in the context of adjacent coasts, particularly where, as here, the coastal lengths in question are more properly associated with the portions of a boundary where the predominate coastal relationship is in fact one of oppositeness.

⁵⁷ Ibid, para 247.

⁵⁸ A point made in the Separate Opinion of Judge Kooijmans, para 3.

⁵⁹ Indeed, strict application of equidistance between Hawar Island and Qatar means that there is no navigable channel linking the southerly and northerly portions of the Qatari territorial sea and so it is reliant on the right of innocent passage through the Bahraini territorial sea. See Judgment, para 223.

⁶⁰ Indeed, the very fact that the Court does not make use of Art 121(3) when considering Fasht al Jarim suggests that it does not consider it to have customary status.