Highlighted Version
Total Page：16
File Type：pdf, Size：1020Kb
HIGHLIGHTED VERSION The highlighted versions of Qatar's Memorial and Counter-Memorial are designed to assist the Court in determining which passages of those pleadings are no longer relied upon by Qatar because they depend solely upon documentary annexes which Qatar has pledged itself to disregard (See Qatar's Reply, para. 1.12) COUNTER-MEMORIAL SUBMITTED BY THE STATE OF QATAR (MERITS) VOLUME 1 31 DECEMBER 1997 Table of Contents (PDF file 334Kb) PART I - INTRODUCTION Chapter I The Main Elements of the Case at the Present Stage of the Proceedings PART II - THE HISTORICAL AND GEOGRAPHICAL BACKGROUND TO THE DISPUTE Chapter II Misstatements and Omissions in Bahrain's Presentation of the Historical and Geographical Background PART III - THE HAWAR ISLANDS AND OTHER TERRITORIAL QUESTIONS Chapter III The Hawar Islands Chapter IV Janan Island Chapter V Zubarah PART IV - MARITIME DELIMITATION Chapter VI General Assessment of Bahrain's Position Chapter VII The Single Maritime Boundary in the Southern Sector Chapter VIII The Single Maritime Boundary in the Northern Sector PART V - SUBMISSIONS __________ TABLE OF CONTENTS PREFACE xiii PART 1 INTRODUCTION 1 CHAPTER I THE MAIN ELEMENTS OF THE CASE AT THE PRESENT STAGE OF THE PROCEEDINGS 1 Section 1. Summary of the central elements of the case 1 A. Territorial questions 1 1. The Hawar islands 1 2. Janan island 3 3. Zubarah 3 B. Maritime delimitation 4 Section 2. Bahrain's litigation strategy 7 A.. Observations on Bahrain's presentation of its case 7 B. Observations on Bahrain's historical perspective of the disputes 9 C. The violations by Bahrain of the status quo commitments 11 Section 3. Structure of Qatar's Counter-Memorial 11 PART 11 THE HISTORICAL AND GEOGRAPHICAL BACKGROUND TO THE DISPUTE 13 CHAPTER 11 MISSTATEMENTS AND OMISSIONS IN BAHRAIN'S PRESENTATION OF THE HISTORICAL AND GEOGRAPHICAL BACKGROUND 13 Section 1. Development of AI-Thani authority over the entire peninsula 13 A. The international context in the area 14 1. The Wahhabi presence in Qatar and Bahrain 14 2. The Ottoman presence in Hasa and Qatar 15 3. The British presence in the Gulf 16 4. The Persian claim to sovereignty over Bahrain 16 B. The internal context: existence of a tribal system 16 1. Qatar 18 2. Bahrain 20 C. Establishment by the AI-Thani of authority and control over Qatar 21 1. The policy of the AI-Thani 21 2. The establishment and consolidation of AI-Thani authority 22 a) General authority prior to the Ottoman presence 22 b) General authority following arrival of the Ottomans in 1871 24 c) AI-Thani authority on the Hawar islands 29 d) AI-Thani authority in and around Zubarah 29 e) AI-Thani authority in the south-west of Qatar 31 f) AI-Thani authority in the interior 31 D. The absence of AI-Khalifah authority in Qatar 33 Section 2. The myth of Bahrain's maritime supremacy and the failure of its expansionist policies 38 A. Zakhnuniya island 39 B. The Lubainah islands 40 C. Fasht Bu Saafa 41 PART 111 THE HAWAR ISLANDS AND OTHER TERRITORIAL QUESTIONS 43 CHAPTER 111 THE HAWAR ISLANDS 43 Section 1. Introduction 43 Section 2. Qatari title to the Hawar islands prior to 1936 and its recognition by third States 45 A. Events leading up to the Agreements of 1868 and British recognition of the separate identities of Qatar and Bahrain 50 B. Events of 1867 and 1868 51 C. Payment of "tribute 57 D. Anglo-Ottoman Convention of 1913 59 E. British-Qatar Treaty of 3 November 1916 62 F. Other evidence of British recognition 65 G. Regional recognition 66 Section 3. Bahrain's illegal occupation of the main Hawar island 67 Section 4. Bahrain's failure to mention the crucial events of 1936 when Bahrain first formally asserted a claim to the Hawar islands and the British Government made a "provisional decision" in Bahrain's favour 72 A. The first formal Bahrain claim to the Hawar islands of 28 April 1936 72 B. Attitude of the oil companies in the 1930s 75 C. British knowledge of Qatar's title to the Hawar islands 77 D. Chronology of significant events relating to Hawar:1933-1936 79 E. The map attached to the Qatar oil concession of 1935 84 Section 5. Activities of Bahrain in or in relation to the Hawar islands cannot be invoked to establish title if they were motivated by an intent to deceive or occurred after the dispute between Bahrain and Qatar on this issue had become apparent 87 A. Bahrain's "evidence" in relation to Hawar 87 B. Status and allegiance of the Dowasir 87 C. The relevance of the date of the first formal claim by Bahrain to the Hawar islands 95 Section 6. Inadequacy of Bahrain's evidence to sustain a claim of title to the Hawar islands prior to 1936 98 A. Bahrain's contentions as to the Dowasir tribe are without any substance 99 B. Bahrain's other grounds in support of its claim to the Hawar islands are equally without substance 105 1. The 1878 Ottoman map 106 2. The Zakhnuniya parallel 106 3. The Brucks survey 107 4. The shipwrecked Ottoman soldiers of 1873 108 5. The Ruler of Bahrain's jurisdiction to serve summons on inhabitants of Hawar islands 108 6. Bahrain's post-1936 evidence 109 Section 7. The British decision of 11 July 1939 111 A. Bahrain's account of events omits many significant facts and embodies a number of misleading statements 112 B. The true significance of Annex 292 to the Bahrain Memorial 113 C. Miscellaneous Bahraini arguments 118 1. Fishing 120 2. Pearling 121 3. Animal husbandry 124 4. Gypsum quarrying 125 5. Permanent settlement 126 6. Acts of administration or authority 127 7. Status quo 128 8. General traverse 128 D. Further evidence of pre-judgment by the British authorities in the Gulf 129 E. The decision of 11 July 1939 is not resjudicata 131 Section 8. Qatar has never acquiesced in Bahrain's de facto control of the Hawar islands 136 CHAPTER IV JANAN ISLAND 143 Section 1. The geography 143 Section 2. Bahrain's claim is unfounded 144 CHAPTER V ZUBARAH 149 Section 1. Introduction 149 Section 2. The history corrected: Qatar's title to Zubarah 151 A. Early history 151 B. The period from 1868-1937 151 1. British rejection of Bahrain's claim to Zubarah at its inception 151 2. Bahrain claim of resistance to Ottornan/Al-Thani control of Zubarah 155 3. Bahrain's "claim" relating to Zubarah and concern for the security of Bahrain 160 4. Recognition of Zubarah as part of Qatar 164 5. Zubarah and the discovery of oil 167 6. The events of 1937 172 C. The period after 1937 Section 3. Bahrain has no legal basis for its claim to sovereignty over Zubarah 178 A. Absence of acts of sovereignty performed by Bahrain in or in relation to Zubarah 178 B. There is no factual or legal basis for Bahrain's argument based on the supposed allegiance of the Naim 178 1. The lack of foundation of the allegiance argument in fact and in law 179 a) The links of allegiance of the Naim towards the Ruler of Bahrain are not proved 179 b) The territory claimed by Bahrain was not occupied permanently or regularly by the Naim 181 c) The territory claimed by Bahrain was frequented by sections of the Naim tribe other than the Al-Jabr182 2. The absence of any legal basis for the Bahraini claim to sovereignty over Zubarah 183 PART IV MARITIME DELIMITATION 187 CHAPTER VI GENERAL ASSESSMENT OF BAHRAIN'S POSITION 187 Section 1. Main points of agreement and disagreement between the Parties 187 A. Points of agreement between the Parties 187 B. Points of disagreement between the Parties 188 Section 2. Bahrain's sovereignty argument 189 A. The falsity of Bahrain's argumentation concerning acquisition of rights over maritime features 189 B. The so-called evidence of Bahraini "acts of sovereignty 191 1. Erection of beacons or cairns 191 2. Activities of oil companies operating in Bahrain 192 3. Aids to fishermen provided by the Bahrain Government 193 4. Exclusive use of fashts by Bahraini boats 194 5. Navigational safety and police 195 Section 3. The Bahrain claim relating to pearling and fishing 195 A. Pearl fishing 195 B. Swimming fish 199 Section 4. The Bahraini claim to archipelagic status 201 A. The extraordinary presentation of the Bahraini claim 201 B. The concept of a geographical archipelago 203 C. Irrelevance of any Bahraini archipelagic claim for the present maritime delimitation 206 D. Irrelevance of archipelagic baselines in State practice 206 Section 5. The division of the relevant maritime area into two sectors 208 A. The artificial character of the Bahraini dividing line between the two sectors 208 1. The distortion by Bahrain of the geographical relationship between the two States 209 2. The treatment of what Bahrain terms "insular and other legally relevant maritime features" 211 a) Features recognised as being low-tide elevations are not the relevant Bahraini coast 212 b) Qit'at Jaradah is a low-tide elevation 213 B. The reasons for the choice of the notional line joining points MQ and RK as defined by Qatar 216 1. The actual coast of the two States 216 2. The northernmost points of the two opposite coasts 217 a) The northernmost point of the coast of Qatar 217 b) The northernmost point of the coast of Bahrain 218 3. The resulting line dividing the relevant maritime area into two sectors 218 C. The southern and the northern limits of the relevant maritime area and existing delimitations with third States 219 1.