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Counter-Memorial the State of Bahrain

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Counter-Memorial the State of Bahrain INTERNATIONAL COURT OF JUSTICE CASE CONCERNING MARITIME DELIMITATION AND TERRITORIAL QUESTIONS BETWEEN QATAR AND BAHRAIN (QATAR v. BAHRAIN) COUNTER-MEMORIAL SUBMITTED BY THE STATE OF BAHRAIN (Merits) VOLUME 1 31 December 1997 CONTENTS CHAPTER! INTRODUCTION SECTION 1.1 Outline ofthe Counter-Memorial ............................................... 1 SECTION 1.2 The status and impact of the 81 forged documents .................... 2 PART I- THE TERRITORIAL QUESTIONS CHAPTER2 THE FUNDAMENTAL BASES OF BAHRAIN'S SOVEREIGNTY OVER THE ZUBARAH REGION AND THE HAWAR ISLANDS SECTION 2.1 General observations on Qatar's treatment of the territorial question ....................................................................................... 7 SECTION 2.2 The Zubarah Region was Bahraini until the Al-Thani attack of 193 7 .. .. .. .. .. .. .. .. .. .. .. .. .. .. ... ... .. .. ..... .. .. .. .. ... 12 A. Introduction............................................................................... 12 B. The threefold human geography of the Qatar peninsula: the Naim-led confederation of the north; the Saudi Bedouin in the south; and the Doha confederation in the east ............................................................................................ 17 c. The Nairn tribe who occupied the Zubarah Region maintained their allegiance to the Al-Khalifa Rulers ............... 18 D. Qatar's description of the "ancient" history ofZubarah prior to its founding by the Al-Khalifa in 1762 is inaccurate and misleading ......................................................... 26 E. Qatar's description of the history of the Qatar peninsula until the middle of the 19th Century prior to 1871 is inaccurate and misleading ......................................................... 30 F. Qatar claims falsely that Britain and Bahrain acknowledged the Qatar peninsula as a territorial unit under Al-Thani control from the mid-19th Century ................. 32 - 1 - G. The events of 1867-1868 did not amount to recognition of an independent "State of Qatar", but rather the opposite .......... 36 H. Qatar claims falsely that a political entity called "Qatar" was recognised prior to 1916 and that it included the entire Qatar peninsula ......................................................................... 41 (i) The Ottomans acknowledged that they never had any control outside the Doha enclave .............................................. 41 (ii) The AI-Thani understood that the Doha enclave was subject to the Ottoman protege and Al-Khalifa pretender- Sheikh Nasir bin Mubarak ........................................................ 44 (iii) Bahrain's claim to rights in Zubarah was recognised by Britain ....................................................................................... 46 (iv) Britain and Bahrain did not recognise Ottoman orAl- Thani rights in Zubarah ............................................................. 48 (v) 1896-1910: Fifteen critical years that are passed over without comment in Qatar's Memorial ..................................... 52 (vi) The negotiations over the unratified 1913 Anglo-Ottoman Convention ........................................ :....................................... 56 I. Qatar claims falsely that the i916 Treaty between Britain and the Chief of Doha included the entire Qatar peninsula ...... 59 J. Qatar's Memorial offers no post-Ottoman evidence of Al­ Thani activities in Zubarah until shortly before the 1937 attack ......................................................................................... 67 K. Qatarfs attack on the Zubarah Region in 1937 displaced Bahrain ...................................................................................... 67 L. The evidence of Bahrain's sovereignty over the Zubarah Region is not fundamentally disturbed by Qatar's arguments .................................................................................. 68 SECTION2.3 The Continuity of Bahrain's sovereignty over the Hawar Islands from the 18th Century to the present day ..................... 69 A. Introduction ............................................................................... 69 B. Qatar's claim that the Hawar Islands are geographically proximate to the Qatar peninsula is correct but irrelevant.. ...... 72 c. Qatar has not produced any authentic evidence of exercise of authority in the Hawar Islands .............................................. 73 -2- D. Qatar claims falsely that the Ottoman Empire, Britain, Bahrain and neighbouring States recognised the Hawar Islands as part of the territories controlled by the Doha confederation or Qatar .............................................................. 7 4 E. Qatar claims falsely that the Hawar Islands were never populated and could not support habitation .............................. 81 F. Qatar claims falsely that the Dowasir tribe, the principal occupants of the Hawar Islands, were not subject to the authority of Bahrain .................................................................. 84 G. Qatar's version of the history of oil concession negotiations is a fabrication ...................................................... 89 (i) The 1925 Bahrain oil concession .............................................. 89 (ii) Negotiations for the Bahrain Unallotted Area concession: 1928-1933 ................................................................................. 93 (iii) The 193 5 Qatar oil concession................................................ 101 (iv) The so-called 1936 British "Provisional Decision" ................ 104 (v) The British decision regarding sovereignty over the Hawar Islands ..................................................................................... 113 H. Prior's and Alban's criticisms ofthe 1939 Award were hasty, unfounded, and disproved ............................................ 123 I. Janan Island is part of the Hawar Islands group and was awarded to Bahrain by the 1939 British Award ..................... 130 (i) Britain did not "decide" in 1947 to award Janan Island to Qatar ........................................................................................ 132 (ii) The British Political Agent's choice of the 193 8 list was mistaken.................................................................................. 13 4 (iii) The British Political Agent relied on unverified survey information ............................................................................. 13 8 (iv) The British Political Agent was influenced by extraneous considerations ......................................................................... 139 (v) The British Political Agent failed to take into account directly relevant evidence ....................................................... 141 (vi) Bahrain's sovereignty over Janan Island was recognised by Britain in 1936 and confirmed in 1939 ................................... 143 -3- (vii) Independently of the 1939 British Award, Bahrain's sovereignty over Janan Island in the Hawar Islands is well- established ............................................................................... 150 J. The evidence of Bahrain's sovereignty over the Hawar Islands is not undermined by Qatar's arguments .................... 151 CHAPTER3 BAHRAIN'S TITLE TO THE HAWAR ISLANDS IS RES JUDICATA SECTION 3.1 Introduction ............................................................................. 154 SECTION 3.2 The procedures for the 1939 arbitration were straightforward and fair .......................................................... 155 SECTION 3.3 Qatar's allegations ofBritish wrongdoing cannot be considered by the Court in the absence of Great Britain as a Party ..................................................................................... 162 A. Qatar has alleged unlawful acts by Britain ............................. 162 B. Qatar's allegations necessarily implicate the British Government and not only Weightman and Belgrave .............. 162 C. Qatar's allegations are inadmissible in the absence of Britain as a Party ..................................................................... 165 SECTION 3.4 The burden of proof with respect to the validity of the 1939 Award rests on Qatar ..................................................... 167 SECTION 3.5 Refutation of Qatar's criticisms ofthe 1939 Award ............... 168 A. Qatar's allegation of absence of consent is unfounded ........... 168 (i) Explicit Consent.. .................................................................... 168 (ii) Implied Consent: Participation without Protest.. .................... 170 B. There was no British bias ........................................................ 171 C. There was no violation of audi alteram partem ..................... 178 D. Britain violated no obligation in its assignment of the burden of proof ....................................................................... 181 E. There were no procedural improprieties with regard to hearings or witnesses .............................................................. 182 (i) Oral hearing ............................................................................ 182 -4- (ii) Cross-examination of witnesses .............................................. 183 F. Reasons . .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. 184 SECTION 3.6 The 1939 Award is confirmation of a settled state of affairs .. ... .. ... .. .. .. .. ... .. ... .... .. .. .. .. .. .. .. .. .. .. .. ... .. 186 SECTION 3.7 The
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