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II. Substantive International Law - Second Part
2. LAW OF THE SEA
2.2. Determination of Maritime Boundaries

¤ Case Concerning Maritime
Delimitation and Territorial
Question between Qatar and
Bahrain (Qatar v. Bahrain)
Judgment of 16 March 2001

[pp. 91-92] 169. It should be kept in mind that the concept of "single maritime boundary" may encompass a number of functions. In the present case the single maritime boundary will be the result of the delimitation of various jurisdictions. In the southern part of the delimitation area, which is situated where the coasts of the Parties are opposite to each other, the distance between these coasts is nowhere more than 24 nautical miles. The boundary the Court is expected to draw will, therefore, delimit exclusively their territorial seas and, consequently, an area over which they enjoy territorial sovereignty.

170. More to the north, however, where the coasts of the two States are no longer opposite to each other but are rather comparable to adjacent coasts, the delimitation to be carried out will be one between the continental shelf and exclusive economic zone belonging to each of the Parties, areas in which States have only sovereign rights and functional jurisdiction. Thus both Parties have differentiated between a southern and a northern sector.

[pp. 93-94] 173. The Court observes that the concept of a single maritime boundary does not stem from multilateral treaty law but from State practice, and that it finds its explanation in the wish of States to establish one uninterrupted boundary line delimiting the various - partially coincident - zones of maritime jurisdiction appertaining to them. In the case of coincident jurisdictional zones, the determination of a single boundary for the different objects of delimitation

"can only be carried out by the application of a criterion, or combination of criteria, which does not give preferential treatment to one of these ... objects to the detriment of the other, and at the same time is such as to be equally suitable to the division of either of them",

as was stated by the Chamber of the Court in the Gulf of Maine case (I.C.J. Reports 1984, p. 327, para. 194). In that case, the Chamber was asked to draw a single line which would delimit both the continental shelf and the superjacent water column.

174. Delimitation of territorial seas does not present comparable problems, since the rights of the coastal State in the area concerned are not functional but territorial, and entail sovereignty over the sea-bed and the superjacent waters and air column. Therefore, when carrying out that part of its task, the Court has to apply first and foremost the principles and rules of international customary law which refer to the delimitation of the territorial sea, while taking into account that its ultimate task is to draw a single maritime boundary that serves other purposes as well.

175. The Parties agree that the provisions of Article 15 of the 1982 Convention on the Law of the Sea, headed "Delimitation of the territorial sea between States with opposite or adjacent coasts", are part of customary law. This Article provides:

"Where the coasts of two States are opposite or adjacent to each other, neither of the two States is entitled, failing agreement between them to the contrary, to extend its territorial sea beyond the median line every point of which is equidistant from the nearest point on the baselines from which the breadth of the territorial seas of each of the two States is measured. The above provision does not apply, however, where it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two States in a way which is at variance therewith."

176. Article 15 of the 1982 Convention is virtually identical to Article 12, paragraph 1, of the 1958 Convention on the Territorial Sea and the Contiguous Zone, and is to be regarded as having a customary character. It is often referred to as the "equidistance/special circumstances" rule. The most logical and widely practised approach is first to draw provisionally an equidistance line and then to consider whether that line must be adjusted in the light of the existence of special circumstances. Once it has delimited the territorial seas belonging to the Parties, the Court will determine the rules and principles of customary law to be applied to the delimitation of the Parties' continental shelves and their exclusive economic zones or fishery zones. The Court will further decide whether the method to be chosen for this delimitation differs from or is similar to the approach just outlined.

177. The equidistance line is the line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured. It can only be drawn when the baselines are known. Neither of the Parties has as yet specified the baselines which are to be used for the determination of the breadth of the territorial sea, nor have they produced official maps or charts which reflect such baselines. Only during the present proceedings have they provided the Court with approximate basepoints which in their view could be used by the Court for the determination of the maritime boundary.

[pp. 96-97] 183. With regard to Bahrain's claim that it is entitled to the status of archipelagic State in the sense of the 1982 Convention on the Law of the Sea, the Court observes that Bahrain has not made this claim one of its formal submissions and that the Court is therefore not requested to take a position on this issue. What the Court, however, is called upon to do is to draw a single maritime boundary in accordance with international law. The Court can carry out this delimitation only by applying those rules and principles of customary law which are pertinent under the prevailing circumstances. The Judgment of the Court will have binding force between the Parties, in accordance with Article 59 of the Statute of the Court, and consequently could not be put in issue by the unilateral action of either of the Parties, and in particular, by any decision of Bahrain to declare itself an archipelagic State.

184. The Court, therefore, will accordingly now turn to the determination of the relevant coasts from which the breadth of the territorial seas of the Parties is measured. In this respect the Court recalls that under the applicable rules of international law the normal baseline for measuring this breadth is the low-water line along the coast (Art. 5, 1982 Convention on the Law of the Sea).

185. In previous cases the Court has made clear that maritime rights derive from the coastal State's sovereignty over the land, a principle which can be summarized as "the land dominates the sea" (North Sea Continental Shelf, I.C.J. Reports 1969, p. 51, para. 96; Aegean Sea Continental Shelf, I.C.J. Reports 1978, p. 36, para. 86).

It is thus the terrestrial territorial situation that must be taken as starting point for the determination of the maritime rights of a coastal State. In accordance with Article 121, paragraph 2, of the 1982 Convention on the Law of the Sea, which reflects customary international law, islands, regardless of their size, in this respect enjoy the same status, and therefore generate the same maritime rights, as other land territory.

[pp. 100-103] 200. Both Parties agree that Fasht ad Dibal is a low-tide elevation. Whereas Qatar maintains - just as it did with regard to Qit'at Jaradah - that Fasht ad Dibal as a low-tide elevation cannot be appropriated, Bahrain contends that low-tide elevations by their very nature are territory, and therefore can be appropriated in accordance with the criteria which pertain to the acquisition of territory. "Whatever their location, low-tide elevations are always subject to the law which governs the acquisition and preservation of territorial sovereignty, with its subtle dialectic of title and effectivités."

201. According to the relevant provisions of the Conventions on the Law of the Sea, which reflect customary international law, a low-tide elevation is a naturally formed area of land which is surrounded by and above water at low tide but submerged at high tide (1958 Convention on the Territorial Sea and the Contiguous Zone, paragraph 1 of Article 11; 1982 Convention on the Law of the Sea, paragraph 1 of Article 13).

Under these provisions, the low-water line of a low-tide elevation may be used as the baseline for measuring the breadth of the territorial sea if it is situated wholly or partly at a distance not exceeding the breadth of the territorial sea from the mainland or an island. If a low-tide elevation is wholly situated at a distance exceeding the breadth of the territorial sea, it has no territorial sea of its own. The above-mentioned Conventions further provide that straight baselines shall not be drawn to and from low-tide elevations, unless lighthouses or similar installations which are permanently above sea level have been built on them (1958 Convention, paragraph 3 of Article 4; 1982 Convention, paragraph 4 of Article 7). According to Bahrain this is the case with regard to all low-tide elevations which are relevant in the present case for the delimitation process.

202. When a low-tide elevation is situated in the overlapping area of the territorial sea of two States, whether with opposite or with adjacent coasts, both States in principle are entitled to use its low-water line for the measuring of the breadth of their territorial sea. The same low-tide elevation then forms part of the coastal configuration of the two States. That is so even if the low-tide elevation is nearer to the coast of one State than that of the other, or nearer to an island belonging to one party than it is to the mainland coast of the other. For delimitation purposes the competing rights derived by both coastal States from the relevant provisions of the law of the sea would by necessity seem to neutralize each other.

203. In Bahrain's view, however, it depends upon the effectivités presented by the two coastal States which of them has a superior title to the low-tide elevation in question and is therefore entitled to exercise the right attributed by the relevant provisions of the law of the sea, just as in the case of islands which are situated within the limits of the breadth of the territorial sea of more than one State.

Bahrain contends that it has submitted sufficient evidence of the display of sovereign authority over all the low-tide elevations situated in the sea between Bahrain's main islands and the coast of the Qatar peninsula.

204. Whether this claim by Bahrain is well founded depends upon the answer to the question whether low-tide elevations are territory and can be appropriated in conformity with the rules and principles of territorial acquisition. In the view of the Court, the question in the present case is not whether low-tide elevations are or are not part of the geographical configuration and as such may determine the legal coastline. The relevant rules of the law of the sea explicitly attribute to them that function when they are within a State's territorial sea. Nor is there any doubt that a coastal State has sovereignty over low-tide elevations which are situated within its territorial sea, since it has sovereignty over the territorial sea itself, including its sea-bed and subsoil. The decisive question for the present case is whether a State can acquire sovereignty by appropriation over a low-tide elevation situated within the breadth of its territorial sea when that same low-tide elevation lies also within the breadth of the territorial sea of another State.

205. International treaty law is silent on the question whether low-tide elevations can be considered to be "territory". Nor is the Court aware of a uniform and widespread State practice which might have given rise to a customary rule which unequivocally permits or excludes appropriation of low-tide elevations. It is only in the context of the law of the sea that a number of permissive rules have been established with regard to low-tide elevations which are situated at a relatively short distance from a coast.

206. The few existing rules do not justify a general assumption that low-tide elevations are territory in the same sense as islands. It has never been disputed that islands constitute terra firma, and are subject to the rules and principles of territorial acquisition; the difference in effects which the law of the sea attributes to islands and low-tide elevations is considerable. It is thus not established that in the absence of other rules and legal principles, low-tide elevations can, from the viewpoint of the acquisition of sovereignty, be fully assimilated with islands or other land territory.

207. In this respect the Court 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. A low-tide elevation, therefore, as such does not generate the same rights as islands or other territory. Moreover, it is generally recognized and implicit in the words of the relevant provisions of the Conventions on the Law of the Sea that, whereas a low-tide elevation which is situated within the limits of the territorial sea may be used for the determination of its breadth, this does not hold for a low-tide elevation which is situated less than 12 nautical miles from that low-tide elevation but is beyond the limits of the territorial sea. The law of the sea does not in these circumstances allow application of the so-called "leap-frogging" method. In this respect it is irrelevant whether the coastal State has treated such a low-tide elevation as its property and carried out some governmental acts with regard to it; it does not generate a territorial sea.

208. Paragraph 3 of Article 4 of the 1958 Convention on the Territorial Sea and the Contiguous Zone and paragraph 4 of Article 7 of the 1982 Convention on the Law of the Sea provide that straight baselines shall not be drawn to and from low-tide elevations unless lighthouses or similar installations which are permanently above sea level have been built on them. These provisions are another indication that low-tide elevations cannot be equated with islands, which under all circumstances qualify as basepoints for straight baselines.

209. The Court, consequently, is of the view that in the present case there is no ground for recognizing the right of Bahrain to use as a baseline the low-water line of those low-tide elevations which are situated in the zone of overlapping claims, or for recognizing Qatar as having such a right. The Court accordingly concludes that for the purposes of drawing the equidistance line, such low-tide elevations must be disregarded.

[pp. 103-104] 212. The Court observes that the method of straight baselines, which is an exception to the normal rules for the determination of baselines, may only be applied if a number of conditions are met. This method must be applied restrictively. Such conditions are primarily that either the coastline is deeply indented and cut into, or that there is a fringe of islands along the coast in its immediate vicinity.

213. The fact that a State considers itself a multiple-island State or a de facto archipelagic State does not allow it to deviate from the normal rules for the determination of baselines unless the relevant conditions are met. The coasts of Bahrain's main islands do not form a deeply indented coast, nor does Bahrain claim this. It contends, however, that the maritime features off the coast of the main islands may be assimilated to a fringe of islands which constitute a whole with the mainland.

214. The Court does not deny that the maritime features east of Bahrain's main islands are part of the overall geographical configuration; it would be going too far, however, to qualify them as a fringe of islands along the coast. The islands concerned are relatively small in number. Moreover, in the present case it is only possible to speak of a "cluster of islands" or an "island system" if Bahrain's main islands are included in that concept. In such a situation, the method of straight baselines is applicable only if the State has declared itself to be an archipelagic State under Part IV of the 1982 Convention on the Law of the Sea, which is not true of Bahrain in this case.

215. The Court, therefore, concludes that Bahrain is not entitled to apply the method of straight baselines. Thus each maritime feature has its own effect for the determination of the baselines, on the understanding that, on the grounds set out before, the low-tide elevations situated in the overlapping zone of territorial seas will be disregarded. It is on this basis that the equidistance line must be drawn.

[pp. 104-109] 217. The Court now turns to the question of whether there are special circumstances which make it necessary to adjust the equidistance line as provisionally drawn in order to obtain an equitable result in relation to this part of the single maritime boundary to be fixed (see the case concerning Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway), Judgment, I.C.J. Reports 1993, p. 60, para. 50, p. 62, para. 54).

218. The first question to be considered is that of Fasht al Azm. The Court considers that if Fasht al Azm were to be regarded as part of the island of Sitrah, it would not be appropriate to take the equidistance line as the maritime boundary since, in view of the fact that less than 20 per cent of the surface of this island is permanently above water, this would place the boundary disproportionately close to Qatar's mainland coast (see sketch-maps Nos. 3 and 5 below). If, on the other hand, Fasht al Azm were to be regarded as a low-tide elevation, the equidistance line would brush Fasht al Azm, and for this reason would also be an inappropriate delimitation line (see sketch-maps Nos. 3 and 6 below). The Court considers that, on either hypothesis, there are thus special circumstances which justify choosing a delimitation line passing between Fasht al Azm and Qit'at ash Shajarah.

219. The next question to be considered is that of Qit'at Jaradah. The Court observes that Qit'at Jaradah is a very small island, uninhabited and without any vegetation. This tiny island, which - as the Court has determined (see paragraph 197 above) - comes under Bahraini sovereignty, is situated about midway between the main island of Bahrain and the Qatar peninsula. Consequently, if its low-water line were to be used for determining a basepoint in the construction of the equidistance line, and this line taken as the delimitation line, a disproportionate effect would be given to an insignificant maritime feature (see sketch-map Nos. 3, 5 and 6 below).

In similar situations the Court has sometimes been led to eliminate the disproportionate effect of small islands (see North Sea Continental Shelf, I.C.J. Reports 1969, p. 36, para. 57; Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, I.C.J. Reports 1985, p. 48, para. 64). The Court thus finds that there is a special circumstance in this case warranting the choice of a delimitation line passing immediately to the east of Qit'at Jaradah.

220. The Court observed earlier (see paragraph 216 above) that, since it did not determine whether Fasht al Azm is part of Sitrah island or a separate low-tide elevation, it is necessary to draw provisionally two equidistance lines. If no effect is given to Qit'at Jaradah and in the event that Fasht al Azm is considered to be part of Sitrah island, the equidistance line thus adjusted cuts through Fasht ad Dibal leaving the greater part of it on the Qatari side. If, however, Fasht al Azm is seen as a low-tide elevation, the adjusted equidistance line runs west of Fasht ad Dibal. In view of the fact that under both hypotheses, Fasht ad Dibal is largely or totally on the Qatari side of the adjusted equidistance line, the Court considers it appropriate to draw the boundary line between Qit'at Jaradah and Fasht ad Dibal. As Fasht ad Dibal thus is situated in the territorial sea of Qatar, it falls for that reason under the sovereignty of that State.

221. The Court is now in a position to determine the course of that part of the single maritime boundary which will delimit the territorial seas of the Parties. Before doing so the Court notes, however, that it cannot fix the boundary's southern-most point, since its definitive location is dependent upon the limits of the respective maritime zones of Saudi Arabia and of the Parties. The Court also considers it appropriate, in accordance with common practice, to simplify what would otherwise be a very complex delimitation line in the region of the Hawar Islands.

[pp. 109-110] 223. The Court notes that, because of the line thus adopted, Qatar's maritime zones situated to the south of the Hawar Islands and those situated to the north of those islands are connected only by the channel separating the Hawar Islands from the peninsula. This channel is narrow and shallow, and little suited to navigation.

The Court therefore emphasizes that, as Bahrain is not entitled to apply the method of straight baselines (see paragraph 215 above), the waters lying between the Hawar Islands and the other Bahraini islands are not internal waters of Bahrain, but the territorial sea of that State. Consequently, Qatari vessels, like those of all other States, shall enjoy in these waters the right of innocent passage accorded by customary international law. In the same way, Bahraini vessels, like those of all other States, enjoy this right of innocent passage in the territorial sea of Qatar.

[pp. 114-115] 245. In drawing the line which delimits the continental shelves and exclusive economic zones of the Parties the Court cannot ignore the location of Fasht al Jarim, a sizeable maritime feature partly situated in the territorial sea of Bahrain. The Parties have expressed differing views on the legal nature of this maritime feature but, in any event, given the feature's location, its low-water line may be used as the baseline from which the breadth not only of the territorial sea, but also of the continental shelf and the exclusive economic zone, is measured.

246. The Court recalls that in the Libya/Malta case, referred to above, it stated:

"the equitableness of an equidistance line depends on whether the precaution is taken of eliminating the disproportionate effect of certain 'islets, rocks and minor coastal projections', to use the language of the Court in its 1969 Judgment" (I.C.J. Reports 1985, p. 48, para. 64).

247. The Court further recalls that in the northern sector the coasts of the Parties are comparable to adjacent coasts abutting on the same maritime areas extending seawards into the Gulf. The northern coasts of the territories belonging to the Parties are not markedly different in character or extent; both are flat and have a very gentle slope. The only noticeable element is Fasht al Jarim as a remote projection of Bahrain's coastline in the Gulf area, which, if given full effect, would "distort the boundary and have disproportionate effects" (Continental Shelf case (France/United Kingdom), United Nations, Reports of International Arbitral Awards, Vol. XVIII, p. 114, para. 244).

248. In the view of the Court, such a distortion, due to a maritime feature located well out to sea and of which at most a minute part is above water at high tide, would not lead to an equitable solution which would be in accord with all other relevant factors referred to above. In the circumstances of the case considerations of equity require that Fasht al Jarim should have no effect in determining the boundary line in the northern sector.

249. The Court accordingly decides that the single maritime boundary in this sector shall be formed in the first place by a line which, from a point situated to the north-west of Fasht ad Dibal, shall meet the equidistance line as adjusted to take account of the absence of effect given to Fasht al Jarim. The boundary shall then follow this adjusted equidistance line until it meets the delimitation line between the respective maritime zones of Iran on the one hand and of Bahrain and Qatar on the other.

[pp. 126-127 S.O. Oda] 12. I note, to my surprise, that while the phrase "single maritime boundary" is not mentioned in Bahrain's submissions, it is repeatedly used in the Judgment. I also find it surprising that the Court proceeds to pronounce a decision on the "single maritime boundary" despite the fact that both Qatar and Bahrain presented in their submissions individual claims to a boundary line.

If the word "single" is used in connection with the "maritime boundary" in the Court's jurisprudence, this is only because it was generally thought that the boundary to be drawn for the continental shelf and for the exclusive economic zone should be the same, at least within 200 miles of the coast. The idea of a "single" boundary (or identical boundary) for both the continental shelf and the exclusive economic zone was born in the course of the 1982 case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya). The Judgment in that case was rendered by the Court on the eve of the adoption in December 1982 of the United Nations Convention on the Law of the Sea at UNCLOS III, in which the new concept of the exclusive economic zone was provided for for the first time (see para. 35 of this opinion).

The term "single" boundary has come to mean an identical boundary, being a single line for the two different régimes of the continental shelf and the exclusive economic zone, and was referred to in this sense in the 1984 case concerning the Delimitation of the Maritime Boundary in the Gulf of Maine Area, the 1985 case concerning the Continental Shelf (Libyan Arab Jamahiriya/Malta), and the 1993 case concerning the Maritime Delimitation in the Area between Greenland and Jan Mayen. The term "single" boundary does not mean anything else, despite the Court's use of this word in a different sense in the present Judgment.

[pp. 128-130 S.O. Oda] 15. ... A review of the history of oil development in the Gulf and the successive bilateral agreements concluded among the Gulf States over the last several decades leads me to submit that Qatar and Bahrain were contemplating the delimitation between themselves of the sea areas for oil exploitation. It is patently clear that the two States never thought that they would be engaged in a dispute concerning the delimitation of their respective territorial seas. That is, I believe, the reason why the Parties employ the expression "the maritime boundary" (Bahrain) or "single maritime boundary" (Qatar), but never the boundary of the territorial sea, in their respective submissions. To repeat, both Qatar and Bahrain talk about the "maritime boundary" or "single maritime boundary" because their concern does not lie with the delimitation of the territorial sea. The Court is not correct in attempting to apply the rules and principles governing the boundary of the territorial sea in the southern part of the region at issue.

16. Even if, for the sake of argument, the "southern sector" is to be delimited according to the rules and principles governing the boundary of the territorial sea, as the Court suggests, it appears to me that the Court is also mistaken in its interpretation of those rules and principles. The Court recommends that the boundary of the territorial sea (in the southern sector) should be drawn in accordance with Article 15 of the 1982 United Nations Convention on the Law of the Sea (which is quoted in full in the Judgment at paragraph 175 and is virtually identical to Article 12, paragraph 1, of the 1958 Convention on the Territorial Sea and the Contiguous Zone), which is "to be regarded as having a customary character" (Judgment, para. 176).

17. The Court states that Article 15 of the 1982 United Nations Convention "is often referred to as the 'equidistance/special circumstances' rule" (Judgment, para. 176), and also that

"the equidistance/special circumstances rule, which is applicable in particular to the delimitation of the territorial sea, and the equitable principles/relevant circumstances rule, as it has been developed since 1958 in case-law and State practice with regard to the delimitation of the continental shelf and the exclusive economic zone, are closely interrelated." (Judgment, para. 231.)

The fact of the matter is that the equidistance/special circumstances rule, so named by certain scholars after the 1958 Convention on the Continental Shelf, has been referred to mainly in connection with the delimitation of the continental shelf but, as far as I am aware, not in connection with the delimitation of the territorial sea. I wish to make this point because the Court, in this connection as well, appears to me to have confused the rules applicable to the boundary of the territorial sea with those applicable to the boundary of the continental shelf.

18. For the territorial sea, the principle is that the "median line" is to be used, although there may be exceptions to this principle where necessary because of historic title or other special circumstances. This rule is manifestly not the same as the one applicable to the boundary of the continental shelf, as will be explained below (see paras. 31 to 34 of this opinion).

The Court is not correct in stating, in its interpretation of Article 15 of the 1982 United Nations Convention, that "[t]he most logical and widely practised approach is first to draw provisionally an equidistance line and then to consider whether that line must be adjusted in the light of the existence of special circumstances" (Judgment, para. 176). It may be pertinent in this respect to note that the meaning of the phrase "special circumstances" in the case of the territorial sea was explained over 40 years ago at the 1958 United Nations Conference on the Law of the Sea by the United Kingdom's delegate to the Conference (Sir Gerald Fitzmaurice), who proposed the wording:

"[S]pecial circumstances did exist which, for reasons of equity or because of the configuration of a particular coast, might make it difficult to accept the true median line as the actual line of delimitation between two territorial seas. There might be a navigation channel, for instance, which was not in the middle of a strait but to one side of it, or went from one side to the other; or the situation might be complicated by small islands. [The] delegation therefore felt that it would be too rigid to specify that the median line must be adhered to regardless of special circumstances." (United Nations Conference on the Law of the Sea, Official Records, Vol. III, p. 189; emphasis added.)

The "true median line" is a general rule; this rule does not apply when historic title or other special circumstances so necessitate. And, in my view, this rule may have been realistic in 1958 when the "true median line" could, in principle, be objectively drawn, within the then narrowly defined territorial seas, by the application of mathematical or geometrical means.

[pp. 133-135 S.O. Oda] 25. Qatar and Bahrain have each requested the Court in their submissions to accept their respective claims to maritime boundary. Those claims are, of course, quite different. The Court, in dismissing the individual claims of the Parties, should have indicated the guidelines for drawing the maritime boundary in the disputed sea areas. The Court, however, has decided to demarcate a boundary in the southern part of the region in accordance with the rules of the boundary of the territorial sea and in the northern part in accordance with the rules pertaining to the boundary of the continental shelf. I would like to point out two things in this respect.

First, the maritime boundary - either of the territorial sea or of the continental shelf - cannot be determined with geometrical or mathematical precision. (The only exception is where the median line for the territorial sea lies within a very narrow band (3 miles); see para. 18 of this opinion.) A boundary may be drawn within the framework of international law but taking into account the variety of special or relevant circumstances and with due regard for equitable considerations. The question whether certain marine features constitute special circumstances is not a matter for legal determination.

26. I recall that in my separate opinion attached to the Judgment in the 1993 case concerning Maritime Delimitation in the Area between Greenland and Jan Mayen I suggested that there is no such thing as a single equitable line of delimitation. I quote just a few lines from my separate opinion in that case:

"In reality the delimitation of a line ... may vary in an infinite number of ways within a certain range, and the choosing of one of these variations after consideration of 'special circumstances', 'relevant circumstances' or 'factors to be taken into account' etc., does not belong to the function of law. No line thus drawn can be illegal or contrary to rules of international law." (I.C.J. Reports 1993, p. 111, para. 76.)

Equity exists in infinite variety and the determination of what is "equitable" depends on who is making that determination in a particular case. There is no definite criterion to apply. Seen from a legal point of view, there is not in the present case one definite, determinative line of delimitation that should be adopted.

27. I am not suggesting that the Court should leave aside the question of the criterion to apply but simply that the Court should not, in its Judgment, go beyond stating what elements should be taken into account in order to achieve an equitable solution and how those elements should be assessed. The decisive factor is not the legal principles (which are defined with unquestionable precision); the important point here is the Court's understanding of what is most suitable to the consideration of equity and how that understanding has led it to make a choice from among an infinite number of possibilities. In my view, the Court should always exercise moderation and self-restraint in its decisions on maritime boundaries.

The line adopted by the Court cannot therefore be defined, with legal precision, by reference to any legal standard. The reason for my concern is that, in spite of the fact that choosing a line of delimitation in the case is a relative matter, the Court, in paragraph 252 (6) of the Judgment, states that it "[d]ecides that the single maritime boundary ... shall be drawn [in the manner described in the Judgment]". We must remain aware that the line drawn by the Court is no more than the one considered by the Court to be the most appropriate in order to achieve an equitable solution to the present dispute concerning the maritime boundary. I reiterate, the line described by the Court is not one decided through the application of legal objectivity and precision.

[pp. 195-196 J.D.O. Bedjaoui, Ranjeva and Koroma] 167. On examination, it is apparent that the course of the single maritime boundary, whilst constructed within the terms of the formula, does not entirely satisfy the structural balance established in that compromissory clause. Recourse to the technique of enumerating the areas to be delimited has a dual aim: first, to specify individually the areas for delimitation and, secondly, to emphasize the distinct nature of each type of area in relation to the others, since each possesses its own coherent character in law. The Judgment is correct in speaking of a "single maritime boundary that serves other purposes as well". The single maritime boundary is not a composite line but a multifunctional one; that is to say, it serves simultaneously as a line of demarcation for each specific category of area to be delimited throughout its length. It follows that the single boundary line must not have the effect of changing the nature of the areas divided by it, or of affecting their legal status. It must cumulatively and simultaneously delimit each area, independently of the régime governing the maritime zone through which it passes, without any special preference or diminution in favour of a particular régime or zone. This is a condition based not simply on considerations of theory or expediency. Maximalist tendencies can only be counter-productive, given the requirements which governed the general conditions of equilibrium of the Montego Bay Convention: a line resulting in the application to that zone of the sole régimes of the territorial sea and the contiguous zone would have no chance of being generally accepted by States. Conversely, a "free-for-all" in regard to the régimes governing these maritime areas would run counter to the security considerations which, inter alia, underpinned the projection of territorial jurisdiction into the sea adjacent to coastlines. Thus, and by analogy with the test of equity which the Court applies in all maritime delimitations, the specific enumeration of areas in the Bahraini formula required the Court to ensure that the result it achieved was coherent over the entire maritime area delimited.

[p. 203 J.D.O. Bedjaoui, Ranjeva and Koroma] 186. Examination of the respective travaux préparatoires for the Geneva instruments and for the Third United Nations Conference on the Law of the Sea discloses a change in approach. The International Law Commission seems to have demonstrated a preference for having baselines serve both to fix the boundary with the high seas and also to fix the equidistance line. But this stance by the Commission was not confirmed at the Third United Nations Conference on the Law of the Sea. Within negotiating Group VII, which dealt with the question of the delimitation of the continental shelf and the exclusive economic zone, the problem of basepoints was a matter on which the delegations were unable to agree: some favoured adoption of the equidistance line, others an equitable solution. The former wished not only purely and simply to extend application of the normal baseline to all areas, but also to accord it this dual function; the merit of this solution lay in its mathematical simplicity. For the latter group, on the other hand, the search for an equitable solution did not require from the outset the adoption of criteria that were a source of inequity, or the automatic application of one principle or method in particular. In some cases this approach would have such distorting effects that there could be no question of raising it to the status of an absolute rule. To do so would be to create an obstacle to the conclusion of delimitation agreements between neighbouring States. The disagreement on this point, both within negotiating Group VII and within the Conference itself, calls into question the proposals and interpretations espoused by the International Law Commission in 1953 and 1956.

In conclusion, it is not established that in law baselines serve both for purposes of delimitation and for the fixing of the external boundaries of maritime areas.

[p. 205 J.D.O. Bedjaoui, Ranjeva and Koroma] 190. Contrary to what the Judgment appears to suggest, the systematic use of basepoints and lines to calculate the extent of the continental shelf and the exclusive economic zone, and to fix the external boundaries of those areas, is not prescribed by law, or by the Court's case law. The final solution is based on a specific appreciation of the factual circumstances, which courts assess at their discretion with the assistance of a minimum of mathematical apparatus and of a sense of equity.

191. In a delimitation of the territorial sea, this sense of equity is also a requirement of law. We can only criticize, and most particularly so in the present case, the interpretation which the Judgment gives to the "equidistance/special circumstances" rule, which is the norm applicable here.

[p. 207 J.D.O. Bedjaoui, Ranjeva and Koroma] 193. Following the award of the Hawar Islands, and above all of Qit'at Jaradah, to Bahrain and, to a lesser degree, of Janan to Qatar, the Court, given the narrowness of the delimited area was bound to ask itself whether the choice of the traditional basepoints was an equitable one. Grounds of law are in this case opposed by equity. Thus, in giving effect to islets or features located at a greater distance from the main island of Bahrain than the Hawar Islands are from Qatar, the Judgment failed to take account of any element other than those relating to title. The test of equitableness used to adjust the single line was applied by reference to basepoints which had not first been examined to ensure that their choice was equitable. In the event, the final choice of basepoints resulted in the equidistance line being located too far to the west, because of the exaggerated effects accorded to tiny, unimportant features. The drawing of the provisional equidistance line on the basis of the points chosen here, namely what are called "maritime features" or "les formations maritimes", had the effect of distorting the general direction of the coastline. It is surely curious that the sea should be dominated not by terra firma but by minor maritime features, precisely lacking firm foundations. If the principle of the pre-eminence of terra firma over the sea had been respected, the direct result would have been a baseline which faithfully followed the coastline, and an equidistance line which respected the topography of the land and its coastlines.

[pp. 217-218 Decl. Vereshchetin] 2. The Court has opted to found its Judgment purely on the presumed consent by the Rulers of Qatar and Bahrain to refer their dispute, which originated in the mid-1930s, to the British Government. Thus the Judgment of the Court on sovereignty over the Hawar Islands rests plainly and simply on the decision taken by the British Government in 1939. The Judgment states that the decision was binding at the time it was taken and "continued to be binding on [Bahrain and Qatar] after 1971, when they ceased to be British protected States" (para. 139 of the Judgment).

3. This characterization by the Court of the 1939 British decision implies that it was and remains a sort of legally binding third-party settlement of a territorial dispute between two sovereign States. Of necessity, this assumption must also imply that the two States under British protection at the relevant time could freely express their sovereign will to be legally bound by the British decision. They must actually, in one form or another, have made their commitments to be legally bound by this decision. In turn, the British authorities which rendered the decision must be presumed to be a neutral and impartial "third party", acting at the request of the Parties in dispute.

4. To assess the real nature of the presumed "agreement" between Qatar and Bahrain to the effect "that the issue [of sovereignty over the Hawar Islands] would be decided by 'His Majesty's Government'" (para. 114 of the Judgment) and accordingly to assess the nature and validity of the British decision, it would be pertinent to look at the criteria developed in the Institut de droit international, which for a number of years studied the topic of the distinction between international texts with or without legal import. The Institute could not come to any definitive conclusions. Nevertheless, it is interesting to note that its Rapporteur, Professor M. Virally, in the light of the debates there, in 1982 concluded, inter alia, that:

"The legal or purely political character of a commitment set forth in an international text of uncertain character depends upon the intention of the parties as may be established by the usual rules of interpretation, including an examination of the terms used to express such intention, the circumstances in which the text was adopted and the subsequent behaviour of the parties." (Annuaire de l'Institut de droit international, 1992, Tableau des résolutions adoptées (1957-1991), p. 159.) (Emphasis added.)

5. With reference to the above standards of interpretation, one inevitably sees that the circumstances in which the undertakings by the Rulers of Qatar and Bahrain were assumed were to say the very least not conducive to the genuinely free expression of will and the free choice of a third party: the recourse to any other State but Britain, or to any international organ, being practically precluded by the terms of the "special relationship" existing between Britain and the "protected States".

6. The Court cannot ignore the historical context in which the "consent" was given.

[pp. 219-220 Decl. Vereshchetin] 8. Certainly, legal characterization of the British involvement in the settlement of the dispute was not a matter of special consideration by the States concerned. For the British authorities it was a matter of course that they could act on their own authority. For Bahrain and Qatar the appeal to the British Government was not a choice, it was the only option, the single avenue open to them. It is regrettable that the Court, having placed complete reliance on the presumed consent by the Rulers of Qatar and Bahrain to be legally bound by the British decision, has not paid due attention to a very revealing document prepared by an official of the British Foreign Office, who in 1964 arrived at the following conclusion based on a thorough study of the history of the British decision:

"Neither of the two Rulers was asked beforehand to promise his consent to the award, nor afterwards to give it. H.M.G. simply 'made' the award. Although it followed the form of an arbitration to some extent, it was imposed from above, and no question of its validity or otherwise was raised. It was quite simply a decision which was taken for practical purposes in order to clear the ground for oil concessions." (Reply of Bahrain, Vol. 2, Ann. 2, p. 4.)

9. As to another criterion for the assessment of international texts of uncertain character mentioned by the Rapporteur of the Institut de droit international - the subsequent behaviour of the Parties - the constant protests of the Ruler of Qatar against the British decision speak for themselves. When the British decision was taken it was immediately protested against by Qatar as "unjust and inequitable". It was termed by Qatar the "opinion" of the British Government on the matter and the request was made that "the question may be considered again and that enquiries may again be made into it". The Ruler of Qatar stated that he "reserve[d] for [himself his] rights to the Hawar Islands until the true position ha[d] become clear" (para. 134 of the Judgment).

10. The foregoing does not lead me to conclude that the 1939 British decision is "null and void" or that it has no impact at all on the present legal situation, as contended by Qatar in its pleadings before the Court. I merely wish to say that this decision cannot be viewed as a fully-fledged third-party legal settlement of the dispute; much less can it be mechanically treated by the Court as if it had the character of res judicata. The legal effect of this administrative decision of the former protecting Power (the principle of uti possidetis set aside) cannot be the same in the assessment of the International Court of Justice in 2001 as it could have been for the two "protected States" at the time of its adoption in 1939, in an absolutely different legal and political setting. Even with the assumptions and presumptions of the consent by the Rulers of Bahrain and Qatar, the Court did not necessarily have to lend its imprimatur to the British decision without looking into its substantive grounding in law. The so-called "Bahraini formula", although not specifically required to do so, did not exclude a review by the Court of the British decision.

11. The Court should have analysed more deeply not only the formal procedural aspects of the British decision but also, and especially, whether it was well founded in law, in other words, the substance of the decision, and should have rectified it if appropriate. By resorting to the traditional grounds of territorial attribution, some of which were also the grounds allegedly relied on by the British authorities, as evidenced by the Weightman Report, the Court could have verified and if necessary modified the 1939 British decision before lending its authority to it.

12. The subtle interplay of the principle of proximity, effectivités and original title (in the absence of one single clearly prevailing ground) might have led the Court either to confirm or reverse the British decision, or else to modify it in the manner proposed by a group of judges (see the joint dissenting opinion of Judges Bedjaoui, Ranjeva and Koroma). In spite of all the pitfalls and uncertainty involved, such an approach would have been much less subject to criticism than mere reliance on the administrative decision of the former "protecting Power".

[pp. 279-280 D.O. Torres Bernárdez] 55. Bahrain has been unable to submit to the Court any international or domestic instrument defining the State of Bahrain as "an archipelagic State" with the dimensions alleged in the current proceedings. Not a single one. In fact, it is asking the Court to make a declaration to that effect in the place of the State of Bahrain. For that purpose it invoked Part IV of the 1982 Convention on the Law of the Sea. Qatar is not a party to that Convention and does not recognized that Part of the said Convention as declaratory of customary international law. But Bahrain is a party to the 1982 Convention and has nevertheless not fulfilled the clear obligation set forth in Article 47, paragraph 4, of the Convention concerning the drawing of archipelagic baselines before the institution of the present proceedings, namely that:

"The archipelagic State shall give due publicity to such charts or lists of geographical co-ordinates and shall deposit a copy of each such chart or list with the Secretary-General of the United Nations",

and/or other obligations of the archipelagic States provided for in other articles of Part IV of the 1982 Convention, obligations which were essential elements for the conventional agreement recorded in that Part.

56. Thus, even if Part IV of the 1982 Convention were already customary international law, the Bahraini archipelagic baselines allegedly based upon that Part IV would not be opposable to Qatar for any purpose, territorial or maritime. There is no such thing in conventional or general international law as a "secret archipelagic State" appearing in or disappearing from international judicial proceedings or international relations in general. There is a question of good faith involved here. In any case, it is worthwhile noting at this juncture that Part IV of the 1982 Convention does not contain any special rule concerning maritime delimitations of archipelagic States with other States. In matters of maritime delimitation, archipelagic States, like any other State, are subject to the same norms as set forth in other parts of the 1982 Convention and general international law.

57. Furthermore, the self-styled archipelagic State of Bahrain of the current proceedings would possess the singular characteristic of alleging title to territory over an area of the mainland, the so-called "Zubarah region", and of having always exercised authority and control in that area of the mainland (Bahrain's general thesis concerning Zubarah). In such circumstances, how is it possible for Bahrain to define itself as an "archipelagic State" of the kind referred to in Part IV of the 1982 Convention on the Law of the Sea? Bahrain's thesis and claim concerning Zubarah are in full contradiction with the definition of the terms "archipelagic State" and "archipelago" in Article 46 of the 1982 Convention, because Bahrain is not alternatively pleading its self-proclaimed condition of "archipelagic State" as referred to in Part IV of the Convention. In the current proceedings, Bahrain pleads that it is such an "archipelagic State", with or without the so-called "Zubarah region". A contradiction of such magnitude remains for me a conundrum with no satisfactory logical and/or legal explanation.

58. In the light of the above, I cannot but reject, as does the Judgment, Bahrain's claim to be an "archipelagic State" within the meaning of Part IV of the 1982 Convention on the Law of the Sea and, consequently, any alleged entitlement of the State of Bahrain to draw straight archipelagic baselines as provided for in Article 47 of that Convention.

[pp. 423-424 D.O. Torres Bernárdez] 475. ... [T]he Judgment's approach is without precedent in the international jurisprudence relating to maritime delimitations which, since the North Sea Continental Shelf case onwards, has disregarded minor maritime features located between the mainland coasts of the States parties as a factor intervening from the start in the delimitation operation because of its obvious distorting effects for achieving an equitable result, without prejudice of course to taking them or some of them into account at a later stage as "special or relevant circumstances". As stated in the Judgment of the Chamber of the Court in the Delimitation of the Maritime Boundary in the Gulf of Maine Area case:

"the Chamber likewise would point out the potential disadvantages inherent in any method which takes tiny islands uninhabited rocks or low-tide elevations, sometimes lying at a considerable distance from terra firma, as basepoint for the drawing of a line intended to effect an equal division of a given area. If any of these geographical features possess some degree of importance, there is nothing to prevent their subsequently being assigned whatever limited corrective effect may equitably be ascribed to them, but that is an altogether different operation from making a series of such minor features the very basis for the determination of the dividing line, or from transforming them into a succession of basepoints for the geometrical construction of the entire line. It is very doubtful whether a line so constructed could, in many concrete situations, constitute a line genuinely giving effect to the criterion of equal division of the area in question, especially when it is not only a terrestrial area beneath the sea which has to be divided but also a maritime expanse in the proper sense of the term, since in the latter case the result may be even more debatable." (I.C.J. Reports 1984, pp. 329-330, para. 201); (emphasis added).

476. The present Judgment's approach is just the opposite of the one described in the quotation above. As the quotation explains in fine, the fact that in the southern part or sector of the maritime delimitation area the single maritime boundary divides "territorial seas" is not a justification for proceeding otherwise without risking an inequitable result. What in fact happened in the present case is that the majority accepted one of the two following propositions or both of them, namely: (i) that in the case of an archipelago or multiple-island State the relevant principles and rules should be interpreted differently in their application to the case; or (ii) that when the maritime boundary line divides "territorial seas" the delimitation operation concerned should take into account from the very beginning of the process all minor or tiny maritime features without excluding low-tide elevations for the purpose of defining "basepoints".

[p. 427 D.O. Torres Bernárdez] 486. I have no doubt that in the present case the "equidistance method" should be applied in the southern as well as the northern parts of the delimitation area for the purpose of the construction of a "provisional equidistance" line subject to adjustments in the light of Qatari or Bahraini special or relevant circumstances.

487. The Judgment, however, follows a different path for the construction of its own "equidistance line" (see below). This prompts me to underline two points. First, that my understanding of the interplay of the two provisions of Article 15 of the 1982 Convention does not coincide with the line of reasoning of the Judgment in that respect. Secondly, that the two provisions of Article 15 by no means exclude the normative principle of the "equitable solution" expressly referred to in Articles 74 and 83 of the 1982 Convention. On the contrary, I consider that the "equitable solution" principle is an integral part of Article 15 of the 1982 Convention when read as a whole. Therefore, I cannot accept that the "equitable solution" principle has no role to play in a delimitation of "territorial seas".

488. As to the first point mentioned in the preceding paragraph the interplay of the two provisions of Article 15 of the 1982 Convention I am of the opinion that the special circumstances of the Article's second provision are supposed to intervene in the delimitation operation after the establishment of the "median line" under the first provision and not before or simultaneously, as the Judgment does.

489. It follows from the above that, for me, the "equitable solution" principle should be present in the delimitation effected by the single maritime boundary in both the northern and southern parts of the delimitation area, as recognized by the fundamental customary delimitation norm identified by the Chamber of the Court in the Gulf of Maine case.

490. Lastly, regarding Article 13 of the 1982 Convention relating to "low-tide elevations", the Judgment appears, in many respects, to view what is essentially a permissive rule as a kind of "legal obligation" for the Court. We disagree. The provision in question uses the verb "may" and not "shall". A State may or may not apply that provision. The same applies to the Court in a maritime delimitation entrusted to it. Thus it is the Judgment which has chosen to apply the provision referred to, but the Court is not obliged to do so when, for example, an "equitable solution" in a given maritime delimitation could be jeopardised by the application of that permissive rule.

[pp. 432-434 D.O. Torres Bernárdez] 506. An "equidistance line" is by definition a line between two lines, but there is no trace in the Judgment of those two lines required for the construction of the "equidistance line". Normally, those baselines are the mainland coasts or coastal front lines of the two States concerned. But the Judgment does not apply the "baselines" of the mainland to mainland method for the construction of its so-called "equidistance line".

507. On the other hand, once the "archipelagic baselines" and the "straight baselines" are excluded, the Judgment is without any Bahraini line serving as a baseline for the construction of its "equidistance line". What it does for this operation is to replace the coastal mainland baseline of Bahrain by a series of selected "basepoints" in the minor islets, rocks and sand banks already referred to and in low-tide elevations considered to be in the territorial sea of Bahrain alone. These features are rather isolated from each other. They have been selected, according to the Judgment, bearing in mind the pleadings and arguments of Bahrain in the present proceedings and related rules invoked. No Bahraini "basepoint" is situated on the mainland coast of Bahrain.

508. Where Qatar is concerned, the main "basepoints" of the "equidistance line" in the Judgment are situated on the western mainland coast of Qatar, namely on the Qatar peninsula. But Qatar did not plead "basepoints" but a "baseline", namely its western mainland coastline which extends, north to south, from Ras Rakan to Ras Uwaynat. The replacement of the mainland coastline pleaded by Qatar with some selected "basepoints" minimizes the western coast of Qatar as land territory generating territorial sea entitlements or rights.

509. In fact, the "equidistance line" of the Judgment is not an "equidistance line" in the ordinary sense of the term, but, as its very title indicates, an equidistance line taking into consideration all the islands as well as low tide-elevations located in the territorial sea of one State only. We are not, therefore, dealing with an equidistance or median line as this term is usually understood, but with something else.

510. I have the most serious doubts whether the "equidistance line" in the Judgment can be an appropriate instrument for making a fair maritime delimitation, even in the circumstances of the present case. A comparison between the "equidistance line" in the Judgment and the final course of the single maritime boundary adopted shows how many adjustments were required to define that boundary, not counting the several others which would have been necessary, in my opinion, to reach the overall legal goal of an "equitable solution".

511. As indicated, there is no doubt that by using the described method for the construction of its "equidistance line", the Judgment had in mind the fact that the State of Bahrain is geographically an archipelago. But, these geographical circumstances could and should have been taken into account by adjusting a true "equidistance line", namely an equidistance line between the mainland coast or coastal fronts of Qatar and Bahrain. The danger for an equitable result posed by an "equidistance line" such as the one in the Judgment for one of the two Parties is obvious.

512. In the present case this danger was real. The equidistance line method as used has not led, in my opinion, to an equitable result in all the segments conforming to the single maritime boundary finally adopted. In fact, in the southern part of the delimitation area, at an early stage in the legal delimitation operation, the "equidistance line" in the Judgment already left Bahrain the totality of the overlapping area of the 12-mile territorial sea generated by the western mainland coast of Qatar and even more than that. In terms of the law of the sea, that result is not an equidistance line capable of producing an "equitable result". The resulting excess of the method used has, however, been somewhat corrected by the Judgment by other means, although the single maritime boundary adopted still left Bahrain with more extensive maritime areas than any previous terms of reference external to the Parties, namely the 1947 British line and the Boggs-Kennedy line.

513. The so-called "mainland to mainland method" for the purpose of defining a "provisional equidistance line" or an "equidistance line" is a particularly reasonable method when, as in the Parties' southern sectors, the dividing line effects a territorial sea delimitation and the maritime area concerned is dotted with a great number of small islands, islets, rocks, reefs and low-tide elevations which could otherwise create a disproportionately distorting effect and ultimately lead to an inequitable result, or to jeopardizing the security interests of one Party or the other, or even to violations of the principle of non-encroachment. The small islands, islets, rocks, reefs and low-tide elevations referred to could even be "circumstances" justifying subsequent adjustments of a normal "equidistance line", but in no event could they be "basepoints" for the construction of the "median line" in the first provision of Article 15 of the 1982 Convention.

514. Moreover, the determination by an international court or tribunal of the "baselines" of an "equidistance line", constructed by it for the purpose of a maritime delimitation, is an operation which should by no means be confused with the one concerning the determination by a State of the baselines from which it measures the breadth of its own territorial sea. International jurisprudence is also quite clear in this respect. It follows that these baselines may coincide in some cases but not in others. The author, object and purpose and function of these two kinds of baselines are not the same. In the present case, the question of whether these two kinds of baselines coincide does not even arise. Both Parties have notified the Court that they have not yet established the baselines for measuring the outer limits of their respective territorial seas. The situation is therefore quite different from the Jan Mayen case in which both parties had already established those baselines before instituting proceedings before the Court, did not challenge them during the proceedings, and no territorial sea delimitation was at issue, as it is in the present case.

515. The "basepoints" of the "equidistance line" in the Judgment are located in the low-water line of the "relevant coasts" as constructed by the Judgment. This is the general rule and, consequently, it is acceptable for me provided that low-water lines concerned are clearly marked on large-scale charts officially recognized by the coastal State. However, this is far from being the situation in the present case. Consequently, the low-water line introduces into the present case a further subjective element in the delimitation operation effected by the Judgment.