1 July 1994

General List No. 87

international Court of Justice

Maritime Delimitation and territorial Questions between Qatar and Bahrain

Qatar

v. 

Bahrain

Judgment

[p.112]
THE COURT,

composed as above,

after deliberation,

delivers the following Judgment: [p 114]

1. On 8 July 1991 the Minister for Foreign Affairs of the State of Qatar (hereinafter referred to as "Qatar") filed in the Registry of the Court an Application instituting proceedings against the State of Bahrain (hereinafter referred to as "Bahrain") in respect of certain disputes between the two States relating to sovereignty over the Hawar islands,sovereign rights over the shoals of Dibal and Qit'at Jaradah, and the delimitation of the maritime areas of the two States.

2. Pursuant to Article 40, paragraph 2, of the Statute of the Court, the Application was forthwith communicated by the Registrar to the Government of Bahrain; in accordance with paragraph 3 of that Article, all other States entitled to appear before the Court were notified by the Registrar of the Application.

3. In its Application Qatar founded the jurisdiction of the Court upon two agreements between the Parties stated to have been concluded in December 1987 and December 1990 respectively, the subject and scope of the commitment to jurisdiction being determined, according to the Applicant, by a formula proposed by Bahrain to Qatar on 26 October 1988 and accepted by Qatar in December 1990.

4. By letters addressed to the Registrar of the Court on 14 July 1991 and 18 August 1991 Bahrain contested the basis of jurisdiction invoked by Qatar. At a meeting between the President of the Court and the representatives of the Parties held on 2 October 1991 it was agreed that questions of jurisdiction and admissibility should be separately determined before any proceedings on the merits.

5. By an Order dated 11 October 1991 the President of the Court, after referring to that meeting of 2 October 1991, noted that it was necessary for the Court to be informed of all the contentions and evidence of fact and law on which the Parties relied in connection with those questions; having consulted the Parties under Article 31 of the Rules of Court, and taking into account the agreement between them concerning the procedure, the President decided that the written proceedings should first be addressed to the questions of the jurisdiction of the Court to entertain the dispute and of the admissibility of the Application.

6. By the same Order the President fixed 10 February 1992 as time-limit for the Memorial of Qatar and 11 June 1992 as time-limit for the Counter-Memorial of Bahrain on the questions of jurisdiction and admissibility, and those pleadings were duly filed within the time-limits so fixed. By an Order dated 26 June 1992 the Court, considering that the filing of further proceedings by the Parties was necessary, directed that a Reply by Qatar and a Rejoinder by Bahrain be filed on the questions of jurisdiction and admissibility, and fixed 28 September 1992 and 29 December 1992 respectively as time-limits therefor; those pleadings were duly filed within the time-limits so fixed.

7. Since the Court included upon the Bench no judge of the nationality of either of the Parties, each Party proceeded to exercise the right conferred by Article 31, paragraph 3, of the Statute to choose a judge ad hoc to sit in the case; Bahrain chose Mr. Nicolas Valticos, and Qatar Mr. Jose Maria Ruda.

8. At a meeting with the Registrar on 8 January 1993, the Agents of the two Parties stated that their Governments had agreed that neither Party would call any witnesses or experts at the hearings. The agreement was confirmed to the [p 115] Registrar by a letter from the Agent of Qatar dated 20 November 1993 and a letter from the Agent of Bahrain dated 23 November 1993.

9. By a letter addressed to the Registrar on 11 January 1994 the Agent of Bahrain, referring to Article 56 of the Rules of Court, submitted certain documents which Bahrain wished to produce and refer to during the oral proceedings. Copies were communicated to the Agent of Qatar who, by a letter dated 10 February 1994, indicated that Qatar did not object to the production of the documents submitted by Bahrain, reserved the right to comment thereon, and submitted documents under Article 56, paragraph 3, of the Rules of Court. Copies were communicated to the Agent of Bahrain.

10. In accordance with Article 53, paragraph 2, of the Rules of Court, the Court, after ascertaining the views of the Parties, decided that copies of the pleadings and annexed documents should be made accessible to the public from the date of the opening of the oral proceedings.

11. At public hearings held between 28 February and 11 March 1994, the Court heard the oral arguments addressed to it by the following:
For Qatar: H.E. Mr. Najeeb Al-Nauimi, Agent,
Sir Ian Sinclair, Q.C.,
Mr. R. K. P. Shankardass,
Mr. Jean Salmon,
Mr. Jean-Pierre Queneudec,
Sir Francis Vallat, Q.C.

For Bahrain: H.E. Mr. Husain Mohammed Al Baharna, Agent,
Mr. Derek W. Bowett, Q.C.,
Mr. Elihu Lauterpacht, Q.C.,
Mr. Eduardo Jimenez de Arechaga,
Mr. Prosper Weil,
Mr. Keith Highet.


12. During the oral proceedings, questions were put by a Member of the Court to both Parties. In accordance with Article 61, paragraph 4, and

Article 72 of the Rules of Court, the Parties supplied written replies to these questions after the close of the hearings, and each Party commented in writing upon the reply given by the other.

13. In the course of the written proceedings, the following submissions were presented by the Parties:

On behalf of Qatar,

in the Memorial and in the Reply:

"the State of Qatar respectfully requests the Court to adjudge and declare, rejecting all contrary claims and submissions, that The Court has jurisdiction to entertain the dispute referred to in the Application filed by Qatar on 8 July 1991 and that Qatar's Application is admissible."

On behalf of Bahrain,

in the Counter-Memorial and in the Rejoinder:


"The State of Bahrain respectfully requests the Court to adjudge and declare, rejecting all contrary claims and submissions, that the Court is [p 116] without jurisdiction over the dispute brought before it by the Application filed by Qatar on 8 July 1991."

14. In the course of the oral proceedings submissions were presented by the Parties identical to those presented by them in the written proceedings.

**

15. The dispute between Bahrain and Qatar has a long history which there is no need to recall at this stage. However, it seems useful to summarize the circumstances in which a solution to that dispute has been sought over the past two decades.

16. These endeavours to find a solution took place in the context of a mediation, sometimes referred to as "good offices", beginning in 1976, by the King of Saudi Arabia with the agreement of the Amirs of Bahrain and Qatar. The first consequence of that mediation was that a set of "Principles for the Framework for Reaching a Settlement" was approved during a tripartite meeting in March 1983.

The first principle specified that

"All issues of dispute between the two countries, relating to sovereignty over the islands, maritime boundaries and territorial waters, are to be considered as complementary, indivisible issues, to be solved comprehensively together."

The second and third principles were aimed at the maintenance of the status quo, and of a cordial atmosphere between the Parties. The third principle also provided that the Parties undertook "not to present the dispute to any international organization".

Under the fourth principle, a Tripartite Committee was formed, with the aim of reaching substantive solutions acceptable to the two Parties.

Lastly, according to the fifth principle,

"In case that the negotiations provided for in the fourth principle fail to reach agreement on the solution of one or more of the aforesaid disputed matters, the Governments of the two countries shall undertake, in consultation with the Government of Saudi Arabia, to determine the best means of resolving that matter or matters, on the basis of the provisions of international law. The ruling of the authority agreed upon for this purpose shall be final and binding."

17. For the next few years, there was no progress towards a settlement of the dispute. The King of Saudi Arabia then sent the Amirs of Qatar and Bahrain letters in identical terms dated 19 December 1987, in which he put forward new proposals. Those proposals were accepted by letters from the two Heads of State, dated respectively 21 and 26 December 1987. The Saudi proposals thus adopted included four points. [p 117]

The first was that

"All the disputed matters shall be referred to the International Court of Justice, at The Hague, for a final ruling binding upon both parties, who shall have to execute its terms."

The second point was once more directed at the maintenance of the status quo.

The third provided for formation of a committee composed of representatives of the States of Bahrain and Qatar and of the Kingdom of Saudi Arabia,

"for the purpose of approaching the International Court of Justice, and satisfying the necessary requirements to have the dispute submitted to the Court in accordance with its regulations and instructions so that a final ruling, binding upon both parties, be issued".

Lastly, according to the fourth point, the Kingdom of Saudi Arabia was to "continue its good offices to guarantee the implementation of these terms".

In addition, on 21 December 1987 an announcement was issued by Saudi Arabia, the terms of which were approved by the two Parties. That announcement stated that Bahrain and Qatar accepted

"that the matter be submitted for arbitration, in pursuance of the principles of the framework for settlement which had been agreed by the two sisterly States, particularly the fifth principle".

as adopted in 1983, the text of which was quoted. It went on to state that "under the five principles" it had been agreed to establish a Tripartite Committee whose task was described in the same terms as in the exchanges of letters of December 1987.

18. That Tripartite Committee held a preliminary meeting in Riyadh in December 1987. Qatar then presented a draft of a joint letter to the Court which expressly contemplated, inter alia, the drafting of a special agreement. Bahrain proposed an agreement of a procedural character, relating to the organization and functioning of the Committee.

The Committee subsequently held its first formal meeting on 17 January 1988. Bahrain then filed a revised version of its draft stating expressly that the Committee was formed with the aim of reaching a special agreement. After a discussion, it was agreed that each of the Parties would present a draft special agreement.

Several texts were subsequently presented to the Committee by Bahrain and Qatar, but no agreement could be reached in the course of the first four meetings. Then, on 26 October 1988, following an initiative by Saudi Arabia, the Heir Apparent of Bahrain, when on a visit to Qatar, transmitted to the Heir Apparent of Qatar a text (subsequently known as the "Bahraini formula") which reads as follows: [p 118]

"Question

The Parties request the Court to decide any matter of territorial right or other title or interest which may be a matter of difference between them; and to draw a single maritime boundary between their respective maritime areas of seabed, subsoil and superjacent waters."


During the fifth meeting of the Committee on 15 November 1988, the representative of Saudi Arabia appealed to the Parties to come to an agreement and pointed out that

"the date of the beginning of the CCASG [[Co-operation Council of Arab States of the Gulf]] summit [[in December 1988]] is the date for terminating the Committee's mission whether or not it succeeded to achieve what was requested from it".

The Committee held its sixth meeting on 6-7 December 1988. Qatar asked for a reformulation of the text presented by Bahrain, and also proposed

"that the agreement which would be submitted to the Court should have two annexes, one Qatari and the other Bahraini. Each State would define in its annex the subjects of dispute it wants to refer to the Court."

Bahrain stated that these proposals would be studied.

The Tripartite Committee proceeded moreover to a discussion with the

"objective of defining exhaustively the matters which would be referred to the Court, which are:

1. The Hawar Islands, including the island of Janan

2. Fasht al Dibal and Qit'at Jaradah

3. The archipelagic baselines

4. Zubarah

5. The areas for fishing for pearls and for fishing for swimming fish and any other matters connected with maritime boundaries."


The two Parties agreed in principle upon the points thus mentioned, although Qatar made it clear that it could only accept the inclusion of the question of Zubarah in that list "if the content relates to private rights", not to sovereignty over Zubarah. Bahrain's reply was that it intended to submit its claims in that regard to the Court, "without any limitation".

With this sixth meeting, the Saudi mediator considered that the mission of the Tripartite Committee would come to an end, and in fact no further meetings of the Committee were held.

19. The matter was again the subject of discussion two years later, on the occasion of the annual meeting of the Co-operation Council of Arab States of the Gulf at Doha in December 1990. Qatar then let it be known that it was ready to accept the Bahraini formula. Following that meeting, [p 119] the Foreign Ministers of Bahrain, Qatar and Saudi Arabia signed Minutes recording that "Within the framework of the good offices of . . . King Fahd Ben Abdul Aziz", consultations concerning the existing dispute between Bahrain and Qatar had taken place between the Foreign Ministers of those States in the presence of the Foreign Minister of Saudi Arabia.

The text of those Minutes was in Arabic, and the English translations supplied by the Parties differ on certain points. The translation supplied by Qatar is as follows:

"The following was agreed:

(1) to reaffirm what was agreed previously between the two parties;

(2) to continue the good offices of the Custodian of the Two Holy Mosques, King Fahd Ben Abdul Aziz, between the two countries till the month of Shawwal, 1411 H, corresponding to May of the next year 1991. After the end of this period, the parties may submit the matter to the International Court of Justice in accordance with the Bahraini formula, which has been accepted by Qatar, and the proceedings arising therefrom. Saudi Arabia's good offices will continue during the submission of the matter to arbitration;

(3) should a brotherly solution acceptable to the two parties be reached, the case will be withdrawn from arbitration."

The translation supplied by Bahrain is as follows:

"The following was agreed:

1. To reaffirm what was previously agreed between the two parties.

2. The good offices of the Custodian of the Two Holy Mosques, King Fahd b. Abdul Aziz will continue between the two countries until the month of Shawwal 1411 A.H., corresponding to May 1991. The two parties may, at the end of this period, submit the matter to the International Court of Justice in accordance with the Bahraini formula, which the State of Qatar has accepted, and with the procedures consequent on it. The good offices of the Kingdom of Saudi Arabia will continue during the period when the matter is under arbitration.

3. If a brotherly solution acceptable to the two parties is reached, the case will be withdrawn from arbitration."

20. The good offices of King Fahd did not lead to the desired outcome within the time-limit thus fixed, and on 8 July 1991 Qatar instituted proceedings before the Court against Bahrain


"in respect of certain existing disputes between them relating to sov [p 120]ereignty over the Hawar islands, sovereign rights over the shoals of Dibal and Qit'at Jaradah, and the delimitation of the maritime areas of the two States".


According to Qatar, the two States:

"have made express commitments in the agreements of December 1987 . . . and December 1990 . . ., to refer their disputes to the . . . Court".

As both Parties had "given their requisite consent through the international agreements referred to above", Qatar considers that the Court has been enabled "to exercise jurisdiction to adjudicate upon those disputes" and, as a consequence, upon the Application of Qatar.

Bahrain maintains on the contrary that the 1990 Minutes do not constitute a legally binding instrument. It goes on to say that, in any event, the combined provisions of the 1987 exchanges of letters and of the 1990 Minutes were not such as to enable Qatar to seise the Court unilaterally. It emphasizes in this respect that a preliminary version of the 1990 Minutes provided that "Either of the two parties" should be entitled to seise the Court, and that, on the insistence of Bahrain, this text was modified to permit of such seisin only by "the two parties". From this Bahrain concludes that the Court lacks jurisdiction to deal with the Application of Qatar.

***

21. The Court will first enquire into the nature of the texts upon which Qatar relies before turning to an analysis of the content of those texts.

22. The Parties agree that the exchanges of letters of December 1987 constitute an international agreement with binding force in their mutual relations. Bahrain however maintains that the Minutes of 25 December 1990 were no more than a simple record of negotiations, similar in nature to the Minutes of the Tripartite Committee; that accordingly they did not rank as an international agreement and could not, therefore, serve as a basis for the jurisdiction of the Court.

23. The Court would observe, in the first place, that international agreements may take a number of forms and be given a diversity of names. Article 2, paragraph (1)(a), of the Vienna Convention on the Law of Treaties of 23 May 1969 provides that for the purposes of that Convention,

" 'treaty' means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation".

Furthermore, as the Court said, in a case concerning a joint communique,

"it knows of no rule of international law which might preclude a [p 121] joint communique from constituting an international agreement to submit a dispute to arbitration or judicial settlement" (Aegean Sea Continental Shelf, Judgment, I.C.J. Reports 1978, p. 39, para. 96).

In order to ascertain whether an agreement of that kind has been concluded, "the Court must have regard above all to its actual terms and to the particular circumstances in which it was drawn up" (ibid.).

24. The 1990 Minutes refer to the consultations between the two Foreign Ministers of Bahrain and Qatar, in the presence of the Foreign Minister of Saudi Arabia, and state what had been "agreed" between the Parties. In paragraph 1 the commitments previously entered into are reaffirmed (which includes, at the least, the agreement constituted by the exchanges of letters of December 1987). In paragraph 2, the Minutes provide for the good offices of the King of Saudi Arabia to continue until May 1991, and exclude the submission of the dispute to the Court prior thereto. The circumstances are addressed under which the dispute may subsequently be submitted to the Court. Qatar's acceptance of the Bahraini formula is placed on record. The Minutes provide that the Saudi good offices are to continue while the case is pending before the Court, and go on to say that, if a compromise agreement is reached during that time, the case is to be withdrawn.

25. Thus the 1990 Minutes include a reaffirmation of obligations previously entered into; they entrust King Fahd with the task of attempting to find a solution to the dispute during a period of six months; and, lastly, they address the circumstances under which the Court could be seised after May 1991.

Accordingly, and contrary to the contentions of Bahrain, the Minutes are not a simple record of a meeting, similar to those drawn up within the framework of the Tripartite Committee; they do not merely give an account of discussions and summarize points of agreement and disagreement. They enumerate the commitments to which the Parties have consented. They thus create rights and obligations in international law for the Parties. They constitute an international agreement.

26. Bahrain however maintains that the signatories of the Minutes never intended to conclude an agreement of this kind. It submitted a statement made by the Foreign Minister of Bahrain and dated 21 May 1992, in which he states that "at no time did I consider that in signing the Minutes I was committing Bahrain to a legally binding agreement". He goes on to say that, according to the Constitution of Bahrain, "treaties 'concerning the territory of the State' can come into effect only after their positive enactment as a law". The Minister indicates that he would therefore not have been permitted to sign an international agreement taking effect at the time of the signature. He was aware of that situation, and was prepared to subscribe to a statement recording a political understanding, but not to sign a legally binding agreement.

27. The Court does not find it necessary to consider what might have [p 122] been the intentions of the Foreign Minister of Bahrain or, for that matter, those of the Foreign Minister of Qatar. The two Ministers signed a text recording commitments accepted by their Governments, some of which were to be given immediate application. Having signed such a text, the Foreign Minister of Bahrain is not in a position subsequently to say that he intended to subscribe only to a "statement recording a political understanding", and not to an international agreement.

28. Bahrain however bases its contention, that no international agreement was concluded, also upon another argument. It maintains that the subsequent conduct of the Parties showed that they never considered the 1990 Minutes to be an agreement of this kind; and that not only was this the position of Bahrain, but it was also that of Qatar. Bahrain points out that Qatar waited until June 1991 before it applied to the United Nations Secretariat to register the Minutes of December 1990 under Article 102 of the Charter; and moreover that Bahrain objected to such registration. Bahrain also observes that, contrary to what is laid down in Article 17 of the Pact of the League of Arab States, Qatar did not file the 1990 Minutes with the General Secretariat of the League; nor did it follow the procedures required by its own Constitution for the conclusion of treaties. This conduct showed that Qatar, like Bahrain, never considered the 1990 Minutes to be an international agreement.

29. The Court would observe that an international agreement or treaty that has not been registered with the Secretariat of the United Nations may not, according to the provisions of Article 102 of the Charter, be invoked by the parties before any organ of the United Nations. Non-registration or late registration, on the other hand, does not have any consequence for the actual validity of the agreement, which remains no less binding upon the parties. The Court therefore cannot infer from the fact that Qatar did not apply for registration of the 1990 Minutes until six months after they were signed that Qatar considered, in December 1990, that those Minutes did not constitute an international agreement. The same conclusion follows as regards the non-registration of the text with the General Secretariat of the Arab League. Nor is there anything in the material before the Court which would justify deducing from any disregard by Qatar of its constitutional rules relating to the conclusion of treaties that it did not intend to conclude, and did not consider that it had concluded, an instrument of that kind; nor could any such intention, even if shown to exist, prevail over the actual terms of the instrument in question. Accordingly Bahrain's argument on these points also cannot be accepted.

30. The Court concludes that the Minutes of 25 December 1990, like the exchanges of letters of December 1987, constitute an international agreement creating rights and obligations for the Parties.

***[p 123]

31. Turning now to an analysis of the content of these texts, and of the rights and obligations to which they give rise, the Court would first observe that, by the exchanges of letters of December 1987 quoted in paragraph 17 above, Bahrain and Qatar agreed that

"All the disputed matters shall be referred to the International Court of Justice, at The Hague, for a final ruling binding upon both parties, who shall have to execute its terms."

The same exchanges of letters constituted a Tripartite Committee

"for the purpose of approaching the International Court of Justice, and satisfying the necessary requirements to have the dispute submitted to the Court".

The Parties thus entered into an undertaking to refer all the disputed matters to the Court and to determine, with the assistance of Saudi Arabia, the way in which the Court was to be seised in accordance with the undertaking thus given.

32. The determination of the "disputed matters" was the subject of lengthy negotiations at meetings of the Tripartite Committee. Those negotiations were unsuccessful in 1988 and the question was only settled by the Minutes of December 1990. Those Minutes placed on record the fact that Qatar had finally accepted the Bahraini formula. Both Parties thus accepted that the Court, once seised, should decide "any matter of territorial right or other title or interest which may be a matter of difference between [[the Parties]]"; and should "draw a single maritime boundary between their respective maritime areas of seabed, subsoil and superjacent waters".

33. The formula thus adopted determined the limits of the dispute with which the Court would be asked to deal. It was devised to circumscribe that dispute, but, whatever the manner of seisin, it left open the possibility for each of the Parties to present its own claims to the Court, within the framework thus fixed. For example, it permitted Qatar to present its claims in respect of the Hawar islands, just as it permitted Bahrain to present its claims in respect of Zubarah. However, while the Bahraini formula permitted the presentation of distinct claims by each of the Parties, it nonetheless presupposed that the whole of the dispute would be submitted to the Court.

34. The Court notes that at present it has before it solely an Application by Qatar setting out the particular claims of that State within the framework of the Bahraini formula. Article 40 of the Court's Statute, which provides that cases are brought before the Court "either by the notification of the special agreement or by a written application", also provides that, � In either case the subject of the dispute and the parties shall be indicated." These indications are thus requirements common to [p 124] both modes of approach to the Court. They are also laid down in the Rules of Court in Article 38 for cases instituted by application; and in Article 39 for notification of a special agreement. In the present case the identity of the parties presents no difficulty; but the subject of the dispute is another matter.

35. What, then, is "the subject of the dispute" referred to in Qatar's Application? That Application only presents the questions which Qatar would like the Court to decide. Qatar's "requests" in its Application are thus as follows:

"Reserving its right to supplement or amend its requests, the State of Qatar requests the Court:

I. To adjudge and declare in accordance with international law
(A)that the State of Qatar has sovereignty over the Hawar islands; and,
(B)that the State of Qatar has sovereign rights over Dibal and Qit'at Jaradah shoals;

and

II. With due regard to the line dividing the sea-bed of the two States as described in the British decision of 23 December 1947, to draw in accordance with international law a single maritime boundary between the maritime areas of sea-bed, subsoil and superjacent waters appertaining respectively to the State of Qatar and the State of Bahrain."


36. In argument before the Court it was made abundantly clear by Bahrain that in its view the Qatar Application comprises only some of the elements of the subject-matter intended to be comprised in the Bahraini formula; in particular there is the omission of any reference to a dispute over Zubarah to which Bahrain attaches importance, though this is not the sole subject of its concern. The fact that the subject-matter of Qatar's Application corresponds to only part of the dispute contemplated by the Bahraini formula was in effect acknowledged by Qatar, which invited Bahrain to remedy the matter by bringing a separate application or a counter-claim respecting, for example, Zubarah.

37. As early as 1983, the Parties, when adopting the "Principles for the Framework for Reaching a Settlement" (to which reference was made in the 1987 agreement) had agreed that

"All issues of dispute between the two countries, relating to sovereignty over the islands, maritime boundaries and territorial waters, are to be considered as complementary, indivisible issues, to be solved comprehensively together."

The 1987 agreement provides that "All the disputed matters shall be [p 125] referred to the International Court of Justice, at The Hague, . . .". The 1990 Minutes refer to the "matter" (in the singular) being submitted to the International Court of Justice; they also refer to the "matter" being submitted to arbitration. Finally they provide that if the good offices of the King of Saudi Arabia which were certainly directed to the whole of the dispute were successful, "the case will be withdrawn from arbitration". The authors of the Bahraini formula conceived of it with a view to enabling the Court to be seised of the whole of those questions, as defined by each of the Parties within the general framework thus adopted.

38. The Court has consequently decided to afford the Parties the opportunity to ensure the submission to the Court of the entire dispute as it is comprehended within the 1990 Minutes and the Bahraini formula, to which they have both agreed. Such submission of the entire dispute could be effected by a joint act by both Parties with, if need be, appropriate annexes, or by separate acts. Whichever of these methods is chosen, the result should be that the Court has before it "any matter of territorial right or other title or interest which may be a matter of difference between" the Parties, and a request that it "draw a single maritime boundary between their respective maritime areas of seabed, subsoil and superjacent waters". This process must be completed within five months of the date of this Judgment.

39. On the completion thus of the reference of the whole dispute to the Court, the Court will fix time-limits for the simultaneous filing of pleadings, i.e., each Party will file a Memorial and then a Counter-Memorial within the same time-limits.

*

40. The Court notes that Bahrain has attached importance to a matter which was referred to in Article V of a draft Special Agreement put forward by Bahrain during the 1988 discussions in the Tripartite Committee, which Article provided:

"Neither party shall introduce into evidence or argument, or publicly disclose in any manner, the nature or content of proposals directed to a settlement of the issues [[to be referred to the Court]], or responses thereto, in the course of negotiations or discussions between the parties undertaken prior to the date of this Agreement, whether directly or through any mediation."

The inclusion of an Article on these lines was objected to by Qatar, and no such provision appears in the 1990 Minutes. In any event, there is a rule of customary international law in this domain, defined in 1927 by the [p 126] Permanent Court of International Justice, namely that the Court cannot take account of declarations, admissions or proposals which the parties may have made in the course of direct negotiations when the negotiations in question have not led to an agreement between the parties (Factory at Chorzow, Jurisdiction, P.C.I.J., Series A, No. 9, p. 19; see also Factory at Chorzow (Claim for Indemnity), Merits, P.C.I.J., Series A, No. 17, pp. 51, 62-63). The continued existence of the rule was recognized by the Chamber formed to deal with the case concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), which commented as follows on the dictum of the Permanent Court:

"This observation . . . refers to the common and laudable practice which, indeed, is of the essence of negotiations whereby the parties to a dispute, having each advanced their contentions in principle, which thus define the extent of the dispute, proceed to venture suggestions for mutual concessions, within the extent so defined, with a view to reaching an agreed settlement. If no agreement is reached, neither party can be held to such suggested concessions." (I.C.J. Reports 1992, p. 406, para. 73.)


***

41. For these reasons,

The Court,

(1) By 15 votes to 1,

Finds that the exchanges of letters between the King of Saudi Arabia and the Amir of Qatar dated 19 and 21 December 1987, and between the King of Saudi Arabia and the Amir of Bahrain dated 19 and 26 December 1987, and the document headed "Minutes" and signed at Doha on 25 December 1990 by the Ministers for Foreign Affairs of Bahrain, Qatar and Saudi Arabia, are international agreements creating rights and obligations for the Parties;


IN FAVOUR: President Bedjaoui; Vice-President Schwebel; Judges Sir Robert Jennings, Tarassov, Guillaume, Shahabuddeen, Aguilar Mawdsley, Weeramantry, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma; Judges ad hoc Valticos, Ruda;

AGAINST: Judge Oda.

(2) By 15 votes to 1,

Finds that by the terms of those agreements the Parties have undertaken to submit to the Court the whole of the dispute between them, as circumscribed by the text proposed by Bahrain to Qatar on 26 Octo-[p 127]ber 1988, and accepted by Qatar in December 1990, referred to in the 1990 Doha Minutes as the "Bahraini formula";

IN FAVOUR: President Bedjaoui; Vice-President Schwebel; Judges Sir Robert Jennings, Tarassov, Guillaume, Shahabuddeen, Aguilar Mawdsley, Weeramantry, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma; Judges ad hoc Valticos, Ruda;

AGAINST: Judge Oda.

(3) By 15 votes to 1,

Decides to afford the Parties the opportunity to submit to the Court the whole of the dispute;

IN FAVOUR: President Bedjaoui; Vice-President Schwebel; Judges Sir Robert Jennings, Tarassov, Guillaume, Shahabuddeen, Aguilar Mawdsley, Weeramantry, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma; Judges ad hoc Valticos, Ruda;

AGAINST: Judge Oda.

(4) By 15 votes to 1,

Fixes 30 November 1994 as the time-limit within which the Parties are, jointly or separately, to take action to this end;

IN FAVOUR: President Bedjaoui; Vice-President Schwebel; Judges Sir Robert Jennings, Tarassov, Guillaume, Shahabuddeen, Aguilar Mawdsley, Weeramantry, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma; Judges ad hoc Valticos, Ruda;

AGAINST: Judge Oda.

(5) By 15 votes to 1,

Reserves any other matters for subsequent decision.

IN FAVOUR: President Bedjaoui; Vice-President Schwebel; Judges Sir Robert Jennings, Tarassov, Guillaume, Shahabuddeen, Aguilar Mawdsley, Weeramantry, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma; Judges ad hoc Valticos, Ruda;

AGAINST: Judge Oda.

Done in English and in French, the English text being authoritative, at the Peace Palace, The Hague, this first day of July, one thousand nine hundred and ninety-four, in three copies, one of which will be placed in the archives of the Court and the others transmitted to the Government of the State of Qatar and the Government of the State of Bahrain, respectively.

(Signed) Mohammed Bedjaoui,
President

(Signed) Eduardo Valencia-Ospina,
Registrar[p 128]

Judge Shahabuddeen appends a declaration to the Judgment of the Court.

Vice-President Schwebel and Judge ad hoc Valticos append separate opinions to the Judgment of the Court.

Judge Oda appends a dissenting opinion to the Judgment of the Court.

(Initialled) M.B.
(Initialled) E.V.O. [p 129]

Declaration of judge Shahabuddeen

My preference would have been for the issue of jurisdiction to be fully decided at this stage. I have, however, voted for the Judgment, understanding the intent to be to offer to the Parties an opportunity, which merits acceptance, to submit the whole of the dispute to the Court. The reasons for the preference are accordingly not set out.

(Signed) Mohamed Shahabuddeen. [p130]


Separate opinion of vice-president Schwebel

I have voted for the operative paragraphs of the Judgment because their content is unobjectionable. At the same time, as a judgment on jurisdiction and admissibility, the Judgment is novel � and disquieting.

The Judgment lacks an essential quality of a judgment of this Court or of any court: it does not adjudge the principal issue submitted to it. Unlike the characteristic judgments of this Court, it does not respond to the submissions of the Parties. It is � or until this Judgment, it was � a commanding feature of the jurisprudence of this Court that the submissions of the Parties define the parameters of a judgment, that it is the function of the dispositif of the judgment to rule upon and dispose of those submissions (unless exceptional considerations rendered them moot). That this Judgment fails to do.

The applicant State of Qatar requested the Court

"to adjudge and declare, rejecting all contrary claims and submissions, that �

The Court has jurisdiction to entertain the dispute referred to in the Application filed by Qatar on 8 July 1991 and that Qatar's Application is admissible."

The Judgment adopted by the Court does neither. The respondent State of Bahrain requested the Court

"to adjudge and declare, rejecting all contrary claims and submissions, that the Court is without jurisdiction over the dispute brought before it by the Application filed by Qatar on 8 July 1991".

The Court equally fails to accept or reject this submission.

The Court does make two findings, in the first and second operative paragraphs, which have judgmental elements. But these are preliminary decisions, which put the Court in a position to pass upon the submissions of the Parties; which the Court then fails to do (at any rate, as yet). Thus, the second operative paragraph, which makes a finding that is correct as far as it goes � that the Parties agreed that the whole of their dispute should be submitted to the Court � fails to draw what in my view is the proper conclusion from that holding, namely, that since not "the Parties" but one Party submitted to the Court not "the whole of the dispute [p 131] between them, as circumscribed by the text" agreed between them, but only part of that dispute, the Court lacks jurisdiction.

The Court rather proceeds, in the third operative paragraph, "to afford the Parties the opportunity to submit to the Court the whole of the dispute". But if the issue now before the Court is whether the Court lacks jurisdiction, either because, by the purport of the agreements between Qatar and Bahrain, the Court could be seised only by the two Parties acting together, or because its material jurisdiction comprises only the whole and not part of the dispute between them, or both, the Court should rule upon that issue. That would be a proper decision in exercise of its judicial function.

As it is, the Court has rather reserved, for a future time, its entire decision as to whether it has jurisdiction, whether the Parties move by what it calls "a joint act" or "separate acts". If the Parties together, or separately, make no fresh motions at all, the Court's ultimate position is unstated and unclear.

The Rules of Court provide, in respect of Preliminary Objections (and hence equally in respect of other ways of passing upon objections to jurisdiction or admissibility) that,

"After hearing the parties, the Court shall give its decision in the form of a judgment, by which it shall either uphold the objection, reject it, or declare that the objection does not possess, in the circumstances of the case, an exclusively preliminary character."

These are the three options afforded by Article 79, paragraph 7, of the Rules, but with this Judgment, the Court has invented another.

I question whether the judicial function is served by such an innovation, however well meant its purposes and however desirable it is that Qatar and Bahrain realize their commitment to submit their dispute to the Court.

(Signed) Stephen M. Schwebel. [p 132]


Separate opinion of judge Valticos

[Translation]

Without dissociating myself from the Judgment, I would like to be more specific about my own thinking. The Court has been dealing with a case that is confused in several respects and which is, if I may say so, not all that it might be from a legal standpoint. When the jurisdiction of the Court is being considered, one needs to be quite certain that the two States concerned have indeed agreed to refer their dispute to the Court and that they were likewise in agreement as to the subject of the dispute and the method of seisin of the Court. As matters now stand, one cannot assert that this is clearly the case.

Of course, I take the view that, as indicated in the Judgment, the exchanges of letters of December 1987 may be considered to be an international agreement, but an agreement in principle of which the implementing provisions had still to be specified. I am likewise prepared to admit, albeit less readily, that one may also consider as an agreement the Minutes signed in Doha under somewhat obscure conditions and in terms which have appeared ambiguous. There was indeed an agreement to come to the Court.

However, I am unable to refrain from mentioning the fact that a problem has arisen with respect to the Arabic term "al-tarafan" as used by the Parties with a view to describing the demarche to be taken to seise the Court.

However that may be, the Court should only proceed to deal with the merits of the present case if both the States concerned were to seise it of their disputes, whether jointly or separately, and in accordance with the so-called "Bahraini" formula which has been accepted by both of them and which provides that each of the States is to submit to the Court such issues as it may wish to have settled, without the other State being able to object to their being considered.

It is in this spirit that I associate myself with the terms of the Judgment.

(Signed) Nicolas Valticos. [p 133]


Dissenting opinion of judge Oda

Table of Contents

 

	Paragraphs
I. Introduction	1
II. A Unilateral Application but Not a Unilateral Notification of a Special Agreement	2-5
III. Neither the "1987 Agreement" nor the "1990 Agreement" Confer Jurisdiction upon the Court to Entertain the Qatari Application	6-17
IV. Efforts to Draw Up a Special Agreement and the Failure of Those Efforts	18-35
V. Conclusion	36

[p 134]
I. Introduction

1. To my profound regret but anxious to remain true to my legal conscience, I find myself unable to vote for the present Judgment as my views essentially differ from those of the Court. Although I have voted against each of the operative paragraphs, my objection is in fact directed to the Judgment as a whole, or to the way in which the Court determined that it had been seised of the present case. It appears to me that the Court, instead of determining whether it has jurisdiction to deal with the dispute referred to in the Application filed by Qatar on 8 July 1991, has been led to substitute, for that unilateral Application, a supposition that it was seised with the dispute referred to it by agreement and to have assumed that Qatar had proceeded to the Court on the basis of such an agreement, albeit misinterpreted by that Party. This has led the Court to order the redrafting of submissions in the present Judgment.

II. A Unilateral Application but Not a Unilateral Notification of a Special Agreement

2. In my view the Court should not have transformed a unilateral Application into a unilateral filing of an agreement which it found to have been improperly drafted, but should rather have answered "yes" or "no" to the Application unilaterally filed by Qatar. If the Court was unable to find that the documents referred to in operative clause (1) constituted a treaty or a convention such as to authorize the unilateral filing of an application by one of the Parties under Article 36 (1) of the Statute, it should have declared that it lacked jurisdiction to entertain the present Application. If, as is suggested in operative clauses (3) and (4), the "whole of the dispute" could have been presented by Qatar to the Court at the outset, Bahrain would not have opposed the Application. Rather, Qatar and Bahrain together could have jointly submitted the dispute by concluding a special agreement, and it would not have been the subject of a unilateral application. It is a fact that nut the "whole of the dispute" but only certain aspects of it (as selected by Qatar) were referred to the Court unilaterally.

3. It appears that the Court is now attempting to render an interlocutory judgment � which is not unusual in domestic legal systems � for the first time in the history of this Court and its predecessor. In my view, the application of this concept of domestic law to the jurisprudence of the International Court of Justice is most inappropriate. In a municipal legal system there is generally no problem of the court's jurisdiction and it is competent to hand down an interlocutory judgment since its jurisdiction [p 135] has been established without question. Sometimes, however, the interlocutory judgment itself is handed down in order to dispose of the issue of jurisdiction before entering into the merits phase. On the other hand, the present Court is now confronted by a question as to whether or not it has the jurisdiction to entertain the Application of Qatar. Without having disposed of this jurisdictional issue, the Court cannot hand down an interlocutory judgment. What the Court should do at the present stage is to state clearly whether or not it has jurisdiction to entertain certain limited aspects of the "whole" dispute, as submitted by Qatar.

4. Operative clause (4) of the Judgment seems to impose upon both Parties an obligation to "take action to this end". However, Qatar could only reconsider its own claim within the framework of a fresh case, brought either by a unilateral application or by the notification of a special agreement, and this would only be conceivable if the Court were to find that it lacked jurisdiction to entertain the claim as submitted at present. On the other hand, Bahrain is not in a position to receive an order from the Court, unless the Court's jurisdiction is first established. For the kind of order given in operative clause (4) of the Judgment to have any effect the Court must have been validly seised of the present dispute. I fail to understand how the Court envisages the follow-up to its decision, if the Parties are not willing to "take action" pursuant to operative clause (4). If the Parties do not "take [that] action", will it be accepted that either Qatar, or both Qatar and Bahrain, have not complied with the present Judgment? Or will the Court simply decide to discontinue the present case which has already been entered in the General List and of which it will assume that it has been seised? It seems to me that actually the Court is simply making a gesture of issuing an invitation, in the guise of a Judgment, to the Parties to proceed to the submission of a new case independently of the present Application.

5. The present Judgment cannot, in my view, be seen as the type of decision that the Court should hand down at a preliminary stage of the case concerned with the questions of the jurisdiction of the Court to entertain the dispute and the admissibility of the Application. If the Court does not find it possible to entertain the present Application as it stands, then it should reject it. The Court's desire to have the two Parties refer to it the "whole of the dispute", whether unilaterally or jointly, must be seen as a different matter. My dissent does not mean that I am opposed to the Court's desire to have the Parties come before it once again to submit the "whole of the dispute", and the Court's wishes could have been conveyed to the Parties if the present Application had been rejected. The Court should have taken a clear position on the matter of whether or not it was able to exercise its jurisdiction to deal with the Application unilaterally filed by Qatar under Article 38 (1) of the Rules of Court. By avoiding the essential point, the Court seems to be playing a role of conciliator rather than acting as a judicial institution. [p 136]

III. Neither the "1987 Agreement" nor the "1990 Agreement" Confer Jurisdiction upon the Court to Entertain the Qatari Application

6. The Application instituting proceedings brought by Qatar against Bahrain was submitted to the Court "in accordance with Article 40 (1) of the Statute of the Court read with Article 38 of the Rules of Court" (Application, para. 1). This is without any doubt "a written application addressed to the Registrar" (Statute, Art. 40 (1)) or "proceedings [brought] before the Court . . . instituted by means of an application" (Rules, Art. 38 (1)). The present case cannot be seen as a case brought before the Court "by the notification of the special agreement" (Statute, Art. 40 (1)), or as "proceedings . . . brought before the Court by the notification of a special agreement" (Rules, Art. 39 (1)). This is, in my view, so self-evident that there is no need for argument. I must emphasize this point, however, since in my view the present Judgment has been drafted so as to hold that the present submission was not the one agreed upon by the Parties in dispute. The Court may be validly seised of the present case only if proceedings were instituted by means of an application filed by Qatar, concerning disputes which fell within the category of "matters specially provided for ... in treaties and conventions in force" (Statute, Art. 36 (1)).

7. As has been clearly indicated in the submissions of both Parties, the Court is requested to determine whether it has jurisdiction to entertain the dispute to which reference is made in the Application unilaterally filed by Qatar. The question raised is whether the Court is competent to exercise its jurisdiction on the grounds that the matters in dispute are "matters specially provided for . . . in treaties and conventions in force", within the meaning of Article 36 (1) of the Statute. This provision of the Statute is meant to refer to the so-called "compromissory clause" which provides that, in the event of one party's referring a dispute to the Court, the other party is bound to accept the Court's jurisdiction to deal with it.

8. In its Application, Qatar appears to take both "the agreements of December 1987 and December 1990" as the grounds upon which the jurisdiction of the Court to adjudicate upon the dispute is said to be based (Application, para. 40). In fact, however, the relevant provision of the Qatari Application is ambiguous to an extent that permits of an interpretation that this submission is based on an agreement of the Parties. It is obvious, however, that Qatar might not have wished to contend that it had attempted to refer to the Court disputes, the content of which had been agreed upon, as otherwise this could not have been a unilateral application under Article 38 (1) of the Rules of Court, as it so clearly was. Bahrain, on the other hand, requested at the very outset that Qatar's Application should not be entered in the General List of the Court, apparently on the ground that there was no treaty or convention to provide a basis for the jurisdiction of the Court to deal with that unilateral [p 137] Application. In Bahrain's view, Qatar's Application could not be anything other than a request under Article 38 (5) of the Rules or, in other words, a request for the application of forum prorogatum. Subsequently, Bahrain, however, did not press this contention since it agreed that there should be a proceeding addressed to the questions of the jurisdiction of the Court to entertain the dispute and of the admissibility of the Application (Order of 11 October 1991).

9. In the present case the question is whether the "1987 Agreement" or the "1990 Agreement", or both, which Qatar invokes as a basis for the jurisdiction of the Court, are of the nature of "treaties and conventions in force" within the meaning of Article 36 (1) of the Statute, i.e., whether they contain a compromissory clause.

*

Agreement of December 1987

10. Of what does the "Agreement of December 1987" consist? There exists a letter dated 19 December 1987 from the King of Saudi Arabia addressed to the Amir of Qatar in which the former presented proposals as a basis for settling the relevant disputes. A letter in reply was trans-mitted by the Amir of Qatar to the King of Saudi Arabia on 21 December 1987, expressing his full agreement with the proposals set out in the King's letter. A letter identical to Saudi Arabia's letter to Qatar was despatched by the King of Saudi Arabia to Bahrain also on 19 December 1987, but Bahrain's response to Saudi Arabia was not sent until 26 December 1987. It should be emphatically noted that there was no exchange of letters directly between Qatar and Bahrain at that time. How could the two separate exchanges of letters, as described above, constitute a legally binding "international agreement concluded ... in written form" (Vienna Convention on the Law of Treaties, Art. 2 (1) (a)) between Qatar and Bahrain ?

11. Reference is also made to a "draft of the announcement made public on 21 December 1987" (quoted in part in paragraph 17 of the Judgment), which I quote below in paragraph 21. This text is incorporated into Qatar's Application but it is not known from the documents presented by Qatar whether this announcement, which is reported simply as "a draft", was actually made or not. If it was in fact made on 21 December 1987, this was, strange to relate, five days in advance of the despatch of a letter from Bahrain addressed to Saudi Arabia on 26 December 1987, in which Bahrain agreed to accept the Saudi Arabian offer. The "draft of the announcement" certainly was not signed by either Qatar or Bahrain and cannot constitute a legally binding document.

12. One may ask how a "treaty" which may be defined as "an international agreement concluded between States in written form and governed by international law" (Vienna Convention on the Law of Treaties, Art. 2 (1) (a)) was concluded between Qatar and Bahrain solely on the [p 138] basis of this chain of events? I fail to understand how the "Agreement of December 1987" can be regarded as one of the "treaties [or] conventions in force" contemplated by Article 36 (1) of the Statute. I have a rather firm view that there was, in December 1987, no treaty or convention within the meaning of Article 36 (1) of the Statute.

13. It may further be noted that Qatar, which regards the December 1987 Agreement as a basis of the Court's jurisdiction, did not register that "agreement" with the United Nations Secretariat, whereas the "1990 Agreement" was registered in June 1991. While it may not be necessary to discuss the effect of the registration of "every treaty and every international agreement" with the United Nations Secretariat (Charter, Art. 102), this fact may lead one to doubt whether Qatar has always regarded the December 1987 Agreement as a treaty in the true sense of the word.

*
Agreement of December 1990

14. Qatar's Application takes the "Agreement of December 1990" as a basis for the exercise of jurisdiction by the Court (Application, para. 40). Qatar did register the "1990 Agreement" with the United Nations Secretariat on 28 June 1991, just a few weeks before it filed its Application in the Registry of the Court. Bahrain, which did not regard this document as an international agreement, protested against that registration on 9 August 1991 and that protest was also duly registered.

15. Qatar uses the term "1990 Agreement" to denote the Minutes of a meeting on 25 December 1990 between the respective Ministers for Foreign Affairs of Saudi Arabia, Qatar and Bahrain which took place during the 1990 session of the Gulf Co-operation Council (GCC) summit in Doha (Application, Ann. 6). It is stated in these Minutes that, at the time of the GCC summit, consultations took place between the Foreign Ministers of Bahrain and Qatar and were attended by Saudi Arabia's Foreign Minister, and that certain items were agreed by the three Ministers, who signed the Minutes.

16. In fact, the three Foreign Ministers, in attestation of that agreement, did sign the Minutes of the meeting (i.e., the agreed record of the discussion that had taken place during that tripartite meeting) and, in my view, they certainly did so without the slightest idea that they were signing a tripartite treaty or convention. It is clear from what is described in paragraph 26 of the Judgment that at least the Minister for Foreign Affairs of Bahrain never thought that he was signing an international agreement. Given what we know of "the preparatory work of the treaty and the circumstances of its conclusion" which, according to the Vienna Convention on the Law of Treaties (Art. 32) is to be used as a supplementary means of interpretation of a treaty, as those "circumstances" are [p 139] reflected in the statement made by the Minister for Foreign Affairs of Bahrain, these Minutes cannot be interpreted as falling within the category of "treaties and conventions in force" which specially provide for certain matters to be referred to the Court for a decision by means of a unilateral application. Whether a document signed by the Foreign Minister in disregard of constitutional rules relating to the conclusion of treaties can or cannot be considered a legally binding treaty is not at issue. Quite simply, the Foreign Minister of Bahrain signed the Minutes without so much as thinking that they were a legally binding international agreement.

*

17. Thus, it may properly be concluded that neither the 1987 Agreement nor the 1990 Agreement constituted a treaty or convention within the meaning of Article 36 (1) of the Statute.

IV. Efforts to Draw Up a Special Agreement and the Failure of Those Efforts

18. If neither the December 1987 document nor the December 1990 document are to be seen as constituting a treaty or convention containing a compromissory clause, what were Qatar and Bahrain then in fact trying to achieve in the negotiations by endorsing those documents? It may be pertinent in this regard to make a recital of the negotiations which had been going on for more than two decades and of which, in my view, the present Judgment has not necessarily provided a sufficient reflection.

19. The "Principles of the Framework for Reaching a Settlement" of the disputes between Qatar and Bahrain, originally drafted in 1978 by Saudi Arabia, were amended in 1983 after Saudi Arabia had received certain comments from Qatar. The amended principles (which are quoted in paragraph 16 of the Judgment) read in part:

"'Firstly: All issues of dispute between the two countries, relating to sovereignty over the islands, maritime boundaries and territorial waters, are to be considered as complementary, indivisible issues, to be solved comprehensively together.
������������������������������������
Fourthly: Formation of a Committee from both sides, to be attended by a representative of the Kingdom of Saudi Arabia, with the aim of reaching solutions acceptable to the two parties on the basis of justice, good neighbourhood, balance of interests and security requirements of both parties.

Fifthly: In case that the negotiations provided for in the fourth [p 140] principle fail to reach agreement on the solution of one or more of the aforesaid disputed matters, the Governments of the two countries shall undertake, in consultation with the Government of Saudi Arabia, to determine the best means of resolving that matter or matters, on the basis of the provisions of international law. The ruling of the authority agreed upon for this purpose shall be final and binding." (Memorial of Qatar, Ann. II.10; Counter-Memorial of Bahrain, Ann. 1.1.)

Those principles did not include any reference to the International Court of Justice.

20. On 15 July 1987 Saudi Arabia suggested to Qatar that:

"[an effort to end the issues in dispute] should be based on the joint realisation that the difference of views between the brothers should be resolved by accord and brotherly understanding aimed at achieving the common interest in accordance with a common conviction that such a solution cannot be reached without a joint brotherly and sincere co-operation that accounts for an equal reduction of some claims, thus ensuring a compromise and bringing views closer" (Memorial of Qatar, Ann. II.13).

On 24 August 1987 Qatar replied to that suggestion by pointing out that:

"as our dispute with our brothers in Bahrain is related to the right of sovereignty over the disputed areas, it can only be settled if either party comes to the conviction that this right belongs to the other party, in such a manner as to admit the same willingly and intelli-gibly. Failing this, the duty of keenness shared by the two brotherly countries to maintain the fraternal relations that join them, and observance of their interests and the higher common interests of all of us, requires them to search, through international arbitration, for the just solution to their dispute which shall be binding on both of them." (Ibid., Ann. II.14.)

In this exchange of letters between Saudi Arabia and Qatar, no mention is made of a reference of the dispute to the International Court of Justice. Neither Qatar's documents nor Bahrain's documents tell us whether a similar correspondence was exchanged between Saudi Arabia and Bahrain.

*
GCC Summit in December 1987

21. Against this background, the GCC summit for the year 1987 was held in Riyadh in December of that year. On 19 December 1987, as I mentioned in paragraph 10 above, Saudi Arabia sent the letters to Qatar and Bahrain which are quoted in part in paragraphs 17 and 31 of the Judgment. These read in part as follows: [p 141]

"Firstly: All the disputed matters shall be referred to the International Court of Justice, at The Hague, for a final ruling binding upon both parties, who shall have to execute its terms.
������������������������������������
Thirdly: Formation of a committee comprising representatives of the States of Qatar and Bahrain and of the Kingdom of Saudi Arabia for the purpose of approaching the International Court of Justice, and satisfying the necessary requirements to have the dispute submitted to the Court in accordance with its regulations and instructions so that a final ruling, binding upon both parties, be issued." (Application, Ann. 4 (A).)

The idea of a possible reference to the International Court of Justice of the matters in dispute between Qatar and Bahrain appeared for the first time in those letters, the main aim of which was to set up a Tripartite Committee

"for the purpose of approaching the International Court of Justice, and satisfying the necessary requirements to have the dispute submitted to the Court in accordance with its regulations and instructions".

Both Qatar and Bahrain responded on 21 and 26 December, respectively, by accepting the aforementioned proposals of Saudi Arabia, as reflected in a "draft of the announcement made public on 21 December 1987" which was prepared by Saudi Arabia and to which I referred in paragraph 11 above:

"The contacts carried out by the Kingdom of Saudi Arabia with the two sisterly States have resulted in a proposal, submitted by the Kingdom of Saudi Arabia and sanctioned by the two countries, that the matter be submitted for arbitration, in pursuance of the principles of the framework for settlement which had been agreed by the two sisterly States, particularly the fifth principle which reads:

�The Governments of the two parties undertake to consult with the Government of the Kingdom of Saudi Arabia to determine the best means of resolving that matter or matters on the basis of the provisions of International Law. The decision of the authority agreed upon for this purpose shall be final and binding upon both parties."

Accordingly, it has been agreed by the two parties, under the five principles, to set up a committee comprising representatives of the State of Bahrain, the State of Qatar and the Kingdom of Saudi Arabia for the purpose of approaching the International Court of Justice and meeting the requirements to have the dispute submitted [p 142]to the Court according to its rules and instructions, so that a final ruling binding upon both parties be issued." (Application, Ann. 4 (B). N.B.: The fifth principle quoted herein, which is not identical to the text of the "amended principles" of 1983, as quoted in paragraph 19 above, must be the same in the original Arabic.)

22. During the summit meeting in December 1987 (but apparently after the Saudi Arabian letter of 19 December 1987), Bahrain prepared a "draft procedural agreement concerning the formation of the joint committee" (the precise date of which has not been reported), of which the relevant passage reads as follows:

"1. A Committee shall be formed of representatives of the State of Qatar and the State of Bahrain and representatives of Saudi Arabia with the aim of reaching a special agreement to submit the disputed matters between the parties to the International Court of Justice for a final judgment binding upon the Parties." (Counter-Memorial of Bahrain, Ann. I.5. N.B.: This is the text of a translation by Qatar which appears in the Counter-Memorial of Bahrain, although another, different, translation is incorporated in Qatari document Ann. II.17, Memorial of Qatar; emphasis added.)

It is believed that this document remained as a draft and was later reintroduced at the first session of the Tripartite Committee, as I explain in paragraph 24 below. Reference is also made only in Qatar's documents submitted to the Court to "Qatar's draft letter to the Registrar of the Court dated 27 December 1987", according to which the Court was to be informed of differences between Qatar and Bahrain (which incidentally did not refer to the question of Zubarah) and to the agreement between the Ministers for Foreign Affairs of both Qatar and Bahrain, to the effect that they were

"1. To submit their aforesaid differences, to the International Court of Justice (or a chamber composed of five judges thereof), for settlement in accordance with International Law.

2. To open negotiations between them with a view to preparing the necessary Special Agreement in this respect, and transmitting to you a certified copy thereof when it is concluded." (Memorial of Qatar, Ann. II.18; emphasis added.)

The letter was not, in fact, sent to the Registrar of the Court. In any event, one is led to conclude that Qatar as well as Bahrain recognized that they would have to prepare jointly a special agreement for submission of the dispute to the Court.

23. In my view, if any mutual understanding was reached between Qatar and Bahrain in December 1987 (albeit not in the form of a treaty [p 143] or convention), this was simply an agreement, if I may quote the relevant passage once more, to form a Tripartite Committee

"for the purpose of approaching the International Court of Justice, and satisfying the necessary requirements to have the dispute submitted to the Court in accordance with its regulations and instructions",

as stated in paragraph 21 above. Moreover, to repeat what has already been said, the purpose of the Tripartite Committee was to facilitate the drafting of a special agreement whereby the disputes could be submitted to the Court.

*

Tripartite Committee Meetings in 1988

24. The Tripartite Committee came into being at the time of the GCC summit in December 1987. The Committee met six times during 1988. "Bahrain's revised draft agreement (procedural agreement concerning the formation of the joint committee)" submitted at the first meeting of the Tripartite Committee on 17 January 1988 seems to have been identical to the draft presented by Bahrain to the summit meeting in December 1987, which I refer to in paragraph 22 above (Memorial of Qatar, Ann. II.19). The aim of the Committee was clearly to reach a special agreement to submit the disputed matters to the Court for a final judgment. Whether this so-called "revised" text of the agreement was actually signed by the representatives of the three countries is not known.

25. It is reported that as of 15 March 1988 Qatar prepared a draft special agreement according to which both Parties would have agreed upon the following provisions:

"Article I

The parties submit the questions stated in Article II of the present Agreement to the International Court of Justice for decision in accordance with international law.

Article II

The questions for the decision of the Court in accordance with Article I are:

1. To which of the two States does sovereignty over Hawar Islands belong?

2. What is the legal status of the Dibal and Jaradeh shoals? In particular, does either State have sovereignty, if any, over the Dibal or Jaradeh shoal or any part of either shoal?

3. . . . Does [the] median line [drawn by the British Political Agent [p 144] on 23 December 1947] represent the right boundary between the [respective] continental shelves?

4. . . . what should be the course of the boundary or boundaries between the maritime areas appertaining respectively to the State of Qatar and the State of Bahrain?" (Memorial of Qatar, Ann. II.21; Counter-Memorial of Bahrain, Ann. I.8.)

In parallel, Bahrain prepared as of 19 March 1988 a draft special agreement according to which:

"Article I

The parties shall submit the question posed in Article II to the International Court of Justice.

Article II

1. The parties request the Court

(a) to draw a single maritime boundary between the respective maritime areas of Bahrain and Qatar; such boundary to pass between the easternmost features of the Bahrain archipelago including most pertinently the Hawar Islands, Fasht ad Dibal and other adjacent or neighbouring features and the coast of Qatar, and to preserve Bahrain's rights in the pearling banks which lie to the north east of Fasht ad Dibal, and in the fisheries between the Bahrain archipelago and Qatar.

(b) to determine the rights of the State of Bahrain in and around Zubara.

2. The Court is requested to describe the course of the maritime boundary . . ." (Memorial of Qatar, Ann. II.22; Counter-Memorial of Bahrain, Ann. I.9.)

26. Qatar and Bahrain both apparently endeavoured to draft a special agreement by which they could jointly refer the matters in dispute to the International Court of Justice. A letter of Qatar dated 25 March 1988 addressed to Saudi Arabia (Memorial of Qatar, Ann. II.23), as well as a Memorandum of Qatar of 27 March 1988 addressed to Saudi Arabia concerning comments on the draft special agreement by Bahrain (ibid., Ann. II.24; Rejoinder of Bahrain, Ann. 1.2), together pointed to the efforts made by both Parties to agree on the text of a special agreement to be filed in the Registry of the Court. The intent of both countries was clear and their aim was to achieve an agreement on the matters to be referred to the International Court of Justice, in other words, on Article II of the respective draft special agreements as mentioned above. In both the draft special agreements prepared by Qatar and Bahrain, respectively, the matters which each Government wanted the Court to decide seem to have been quite different, in particular with regard to whether the question of Zubarah would be included or not.[p 145]

27. At the fourth meeting of the Tripartite Committee held in Jeddah on 28 June 1988, texts of a revised Article II were presented by both Qatar and Bahrain. The Qatari text read as follows:

"Article II
1. . . .

2. The parties request the Court to decide ... on the following questions:

(a) To which of the two States does sovereignty over the Hawar Islands belong?

(b) What is the legal status of Dibal and Jaradeh shoals? In particular, does either State have sovereignty, if any, over the Dibal and Jaradeh shoals or any part of either shoal?

(c) Does the line described in the letter of 23 December 1947 represent the correct boundary between the continental shelves of the State of Bahrain and the State of Qatar?

(d) Having regard to the answers of the Court to questions (a), (b) and (c), what should be the course of the boundary or boundaries between the maritime areas appertaining respectively to the State of Bahrain and the State of Qatar?" (The Meetings of the Tripartite Committee deposited by Qatar with the Registry, Doc. 7.)

The text of Bahrain's Article II read as follows:

"The Court is requested:

(1) to determine the extent to which the two States have exercised sovereignty over the Hawar Islands and have thus established such sovereignty;
(2) to determine the legal status of and sovereign and other rights of both States in any features, other than Fasht ad Dibal and the Bahraini island of Qitat Jaradah in the Bahrain archipelago, or in any natural resources both living and non-living which may affect the delimitation referred to in paragraph (4) below;

(3) to determine any other matter of territorial right or other title or interest claimed by either State in the land or maritime territory of the other;

(4) . . . to draw a single maritime boundary . . ." (Memorial of Qatar, Ann. II.27.)

The Amir of Qatar gave King Fahd of Saudi Arabia some explanations regarding this situation in a letter dated 9 July 1988:

"Since the previous three meetings had failed in making any progress with regard to agreeing on a text of the Special Agreement, the Qatari delegation presented to the fourth meeting of the Tripartite Committee a brief memo on the reasons which led to this situa-[p 146]tion, with the hope of joining our efforts to make the Committee succeed in its task." (Memorial of Qatar, Ann. II.28; emphasis added.)

That letter continues:

"Since Article Two in the Draft Special Agreements presented by the Governments of the State of Qatar and Bahrain is the basic article in both drafts, which states that upon referring the subjects of dispute to the Court it has been agreed that each side would come forth with proposals for the amendment of this article in the light of the discussions on it which were recorded in the minutes of the Tripartite Committee, and in such a manner as to close the gap between the viewpoints through the exclusion from this article in either draft of any provisions that are unacceptable due to their being contrary to the principles on which this article must be based, namely history, right, logic and law, and the consideration of remarks expressed on them on the basis of those principles." (Ibid.; first emphasis added.)

28. Some months elapsed after the fourth meeting and on 26 October 1988 Bahrain submitted a "Bahraini formula" (which is quoted in paragraph 18 of the Judgment), which was related to Article II of either Qatar's draft or Bahrain's draft, that is to say, the matters in dispute to be referred to the Court, and which read:

"The Parties request the Court to decide any matter of territorial right or other title or interest which may be a matter of difference between them; and to draw a single maritime boundary between their respective maritime areas of seabed, subsoil and superjacent waters." (Application, Ann. 5.)

At the fifth meeting held at Riyadh on 15 November 1988 Qatar welcomed the opportunity to discuss the Bahraini formula as a possible basis for negotiations but expressed strong reservations on the matter of whether Bahrain's claim to Zubarah should be considered as falling within the framework of the dispute. In other words, it was still difficult for Qatar and Bahrain to agree on the subject of the disputes to be referred to the International Court of Justice � even at the fifth meeting of the Tripartite Committee in November 1988.

29. At the sixth meeting on 6 December 1988 Qatar proposed an amendment of the Bahraini formula so that it would read as follows:

"[Qatar and Bahrain] submit to the International Court of Justice, under its Statute and the Rules of Court, for decision in accordance with international law, the existing dispute between them concerning sovereignty, territorial rights or other title or interest, and maritime delimitation." (Memorial of Qatar, Ann. II.31.) [p 147]

The Minutes of this session read:

"(1) There followed a discussion aimed at defining the subjects to be submitted to the Court, which shall be confined to the following subjects:

1. Hawar Islands, including Janan Island

2. Dibal shoal and Qit'at Jaradah

3. Archipelago base lines

4. Zubarah

5. Fishing and Pearling areas and any other matters related to maritime boundaries.

(2) The two parties agreed on these subjects. Qatar's delegation proposed that the agreement which would be submitted to the Court should have two annexes, one Qatari and the other Bahraini. Each State would define in its annex the subjects of dispute it wants to refer to the Court. The Bahraini delegation stated that the Qatari proposal that there be two separate annexes would be studied along with the Qatari amendment of the general formula of the proposed Bahraini question. Therefore, the Bahraini delegation asked for enough time to study the proposed amendment.

(3) The Qatari delegation also enquired what was meant by the content of the dispute regarding Zubarah. It stated that if the content of the dispute regarding Zubarah related to sovereignty over the area, then it would not agree in its inclusion in the subjects to be referred to the Court. But if the content relates to private rights in Zubarah, then Qatar's delegation would not object.

The Bahraini delegation responded that their claims regarding Zubarah which would be submitted to the Court would represent the most unrestricted maximum possible claims, and that it should be left to the Court to decide on this matter according to legal evidence and arguments submitted by Bahrain." (Memorial of Qatar, Ann. II.31.)
After all, the Parties seem to have agreed on the inclusion of the question of Zubarah but to have differed as to how that question would be comprised within the subjects of the disputes to be submitted to the Court.

30. It is important to note that the task of the Tripartite Committee in 1988 related to the form of words of a special agreement which certainly should have defined the matters in dispute to be referred to the Court. The Tripartite Committee was unable to produce an agreed draft of a special agreement to be notified to the Court.

*

Doha Meeting in December 1990

31. After the sixth meeting of the Tripartite Committee in December 1988, which did not produce any useful result, very little progress was made until the end of the year 1990 � the time of the signature of the "Doha Minutes" of the tripartite meeting in December, to which I referred in paragraph 15 above.

32. To what did the signatories then in fact agree in Doha in December 1990? The indications provided by the Doha Minutes read:

"The following was agreed:

(1) to reaffirm what was agreed previously between the two parties;

(2) to continue the good offices of [Saudi Arabia] between the two countries till the month of. . . May of the next year 1991. After the end of this period, the parties may submit the matter to the International Court of Justice in accordance with the Bahraini formula, which has been accepted by Qatar, and the proceedings arising therefrom. Saudi Arabia's good offices will continue during the submission of the matter to arbitration;

(3) should a brotherly solution acceptable to the two parties be reached, the case will be withdrawn from arbitration." (Application, Ann. 6; Counter-Memorial of Bahrain, Ann. I.20; emphasis added.)

The United Nations translation of paragraph 2 is given here below for clarity:

"2. The good offices of [Saudi Arabia], in addressing the dispute between the two countries shall continue until [May 1991]. Once that period has elapsed, the two parties may submit the case to the International Court of Justice, in accordance with the Bahraini formula accepted by the State of Qatar and the arrangements relating thereto. The good offices of the Kingdom of Saudi Arabia may continue during the period in which the case is referred to arbitration." (Counter-Memorial of Bahrain, Ann. I.20; emphasis added.)

33. It was agreed by the three Foreign Ministers in these tripartite talks that after May 1991 "the parties [the two parties � United Nations translation] may submit the case to the International Court of Justice". This must be interpreted as indicating that the good offices of Saudi Arabia aimed at finding some concrete solution to the dispute between Qatar and Bahrain were to be continued until May 1991 after which time, and in the event of the failure of those good offices, Qatar and Bahrain would be able to come to the Court. This conclusion may be confirmed if one looks at the letter dated 30 December 1990 and sent by Qatar to Saudi Arabia, in which Qatar stressed its confidence that its dispute with Bahrain could be settled "whether through your good offices or through the International Court of Justice" (Memorial of Qatar, Ann. II.33). In other
[p 149] words, reference to the International Court of Justice was to be an alternative to Saudi Arabia's good offices to be continued until May 1991 for the solution of the disputes between Qatar and Bahrain. This did not imply any authorization such as to permit one party to make an approach to the Court by unilateral application, ignoring "what was agreed previously between the two parties" (Doha Minutes), that is to say, the submission of the matter to the Court in accordance with the Bahraini formula which could itself have constituted Article II of a special agreement.

*
After the Doha Meeting

34. In May 1991, namely, after the lapse of this five-month period allowed for the resumed good offices of Saudi Arabia, Qatar and Bahrain could then have continued negotiations to work out a draft of a special agreement. In fact, in September 1991, Saudi Arabia suggested a draft special agreement to both countries (Counter-Memorial of Bahrain, Ann. I.24) and a draft special agreement was also drawn up by Bahrain on 20 June 1992 (Rejoinder of Bahrain, Ann. 1.7).

35. Qatar arrived at a different interpretation of the 1990 Doha Minutes and took steps to seise the Court by unilaterally addressing a written Application to the Registrar of the Court on 8 July 1991 and requested the Court to adjudge and declare what it had already stated in Article II of its March 1988 draft special agreement (as quoted in paragraph 25 above). Qatar took this action without due regard to the discussions held with Bahrain on the text of Article II contained in both Qatar's and Bahrain's draft special agreements at the ensuing sessions of the Tripartite Committee.

V. Conclusion

36. I am confident that neither the "1987 Agreement" nor the "1990 Agreement" can be deemed to constitute a basis for the jurisdiction of the Court in the event of a unilateral application under Article 38 (1) of the Rules of Court and that the Court is not empowered to exercise jurisdiction in respect of the relevant disputes unless they are jointly referred to the Court by a special agreement under Article 39 (1) of the Rules which, in my view, has not occurred in this case. The Court has nonetheless opted for the role of conciliator instead of finding, as I believe it ought to have done, that it lacks jurisdiction to entertain the Application filed by Qatar on 8 July 1991
.
(Signed) Shigeru Oda.